United States v. McGill, 10th Cir. (2010)

FILED
United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
January 4, 2010
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
No. 08-8075
(D.C. No. 2:07-CR-00193-WFD-1)
(D. Wyo.)
TRAVIS J. MCGILL,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO, GORSUCH, and HOLMES, Circuit Judges.
Defendant Travis J. McGill was convicted by a jury on six counts of

aggravated sexual abuse while in Indian country, 18 U.S.C. 2241(c), 1153(a),
and one count of possession of child pornography, id., 2252A(a)(5)(A), (b)(2).
The district court imposed a sentence of 560 months on each of the six aggravated
sexual abuse counts and a sentence of 120 months on the child pornography
After examining the appellate record and the materials submitted by the
defendant-appellant and his counsel, this panel has determined unanimously that
oral argument would not materially assist the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
count, to run concurrently, followed by a term of supervised release. After timely

initiating this appeal at defendants request, counsel moved to withdraw and filed
an Anders brief explaining that he could find no non-frivolous grounds for appeal.
See Anders v. California, 386 U.S. 738 (1967). For the reasons stated below, we
grant the motion and dismiss the appeal as frivolous.
I. Anders Framework
In Anders, the Supreme Court set out the following prophylactic procedure
as a guide for criminal defense counsel and the appellate court when a defendant
insists on taking an appeal that appears to be frivolous:
[I]f counsel finds [the defendants] case to be wholly frivolous, after
a conscientious examination of it, he should so advise the court and
request permission to withdraw. That request must, however, be
accompanied by a brief referring to anything in the record that might
arguably support the appeal. A copy of counsels brief should be
furnished the indigent and time allowed him to raise any points that
he chooses; the courtnot counselthen proceeds, after a full
examination of all the proceedings, to decide whether the case is
wholly frivolous. If it so finds it may grant counsels request to
withdraw and dismiss the appeal insofar as federal requirements are
concerned, or proceed to a decision on the merits, if state law so
requires. On the other hand, if it finds any of the legal points
arguable on their merits (and therefore not frivolous) it must, prior to
decision, afford the indigent the assistance of counsel to argue the
appeal.
Id. at 744; see Smith v. Robbins, 528 U.S. 259, 265, 269-76 (2000) (clarifying that
Anders procedure is proper, but not exclusive, means to balance defendants right
to appellate counsel with States interest in barring frivolous appeals).
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Counsel followed this procedure by filing a brief discussing one potential

ground for appeal and providing defendant a copy of the brief. 1 Defendant
responded by submitting a demand for thirty billion dollars from the federal
government, with cryptic references to bankruptcy law, truth-in-lending, and
corporate criminal fraud. We are thus left to address the only issue specified by
counsel, along with other matters considered in the course of our independent
examination of the record.
II. Sufficiency of the Evidence of Conviction
A review of the trial transcript assures us that legally sufficient evidence
supports the jurys verdict. The victims testimony recounted several incidents of
sexual abuse. The testimony was specific, consistent, and credible in its factual
detail. And text messages sent from defendants phone to the victim, when
defendant returned to the reservation after some time away, meshed with the
victims testimony in a way that clearly supported its credibility. In addition,
although no one witnessed the acts underlying the charged offenses, the victims
mother directly corroborated her daughters testimony about an earlier incident of
The trial court took pains to conceal the victims real name. However,
counsels brief mentioned the victim by name without redaction, and counsel
failed to alert the court to this fact. This error appears inadvertent, and we have
ensured that the brief is not publicly accessible. But maintaining victim
confidentiality is of the utmost importance in child sexual abuse cases, and we
remind counsel that they should employ due diligence to maintain that
confidentiality in such cases at all times.
-3-
sexually inappropriate conduct by defendant with the victim that presaged the
offenses later carried out with greater caution and deception. Finally, evidence of
sexual predation directed by defendant toward two other childrenincluding
another victim identified in five counts of the instant indictment that were
ultimately dismissed for reasons not relevant herefurther bolstered the
governments case.
As for the child pornography count, the governments proof may at times
have been technologically complicated, but it was straightforward as a legal
matter. Evidence of defendants knowing possession, on his cell phone, of an
image meeting the statutory definition of child pornography sufficed to support
his conviction.
The defendant did not testify (as was his right). The defense put on no
witnesses, relying solely on cross-examination of witnesses in the course of the
governments case in chief. The material points of the governments proof were
neither undermined nor opposed in any significant way.
In short, the substantive basis for defendants conviction is not open to any
reasonable objection. If there is any error requiring reversal, it must relate to the
procedural aspects of the prosecution, to which we turn next.
III. Indictment and Instructions
The one potential objection discussed in counsels Anders brief concerns
the use of a formalistic bare-bones indictment to prosecute six particularized
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time-specific incidents of criminal conduct. The six counts of aggravated sexual

abuse provided few actual facts and involved lengthy, partially overlapping time
frames from three to six years. 2 Thus, on its face, the indictment might well raise
concerns about the notice as to the nature of the charges. But any such concerns
were allayed by the governments open-file discovery policy, which gave
defendant access to evidence pinpointing the time and location of each incident to
be proven at trial. Defense counsel repeatedly affirmed on the record that this
discovery policy provided ample notice of the charges.
In his Anders brief, counsel does not focus on defendants pretrial notice of
charges. Instead, counsel focuses on the governments case at trial, suggesting
the possibility of a variance from the indictment, in that much of the factual
basis developed at trial in support of the charged counts had not been specified in
the indictment. Nevertheless, counsel opines, and we agree, that this line of
argument is clearly foreclosed by the record.
For example, compare count eight: On or about between August 20, 2000,
and August 19, 2004, in the District of Wyoming and within Indian Country, the
Defendant, TRAVIS J. McGILL, an Indian, did knowingly engage in a sexual act,
to-wit, contact between the penis and the vulva, with ____, a person who at the
time had not yet attained the age of twelve (12) years; with count nine: On or
about between August 20, 2001, and August 19, 2004, in the District of Wyoming
and within Indian Country, the Defendant, TRAVIS J. McGILL, an Indian, did
knowingly engage in a sexual act, to-wit, contact between the penis and vulva,
with ____, a person who at that time had not yet attained the age of twelve (12)
years. R. Vol. 1 at 57.
-5-
Where, as here, the new facts shown at trial do not so deviate from the
charged offense as to constructively amend the indictment by establishing a
different crime, a factual variance does not undermine the conviction unless
substantial rights of the defendant were otherwise prejudiced. United States v.
Sells, 477 F.3d 1226, 1237 (10th Cir. 2007); United States v. Hamilton, 992 F.2d
1126, 1129-30 (10th Cir. 1993). Such prejudice can occur either because [the
defendant] cannot anticipate from the indictment what evidence will be presented
against him, or because the defendant is exposed to the risk of double
jeopardy. [3] United States v. Caballero, 277 F.3d 1235, 1243 (10th Cir. 2002).
The first type of prejudice is negated here for the same reason pretrial
notice concerns were allayed: as counsel readily admitted, the governments
cooperation in discovery left the defense fully able to anticipate and prepare for
the evidence presented in support of the charged offenses at trial. Nor is there a
risk of double jeopardy exposure: defendant cannot be mistakenly retried for the
conduct actually underlying his conviction here, given the explicit one-to-one
linkage of the charged counts with the particular incidents proven at trial (the
implementation of this linkage, through jury instructions, is discussed below).
Regarding this risk, we have explained that a variance can be so great as

to violate the defendants Fifth Amendment right against double jeopardy because
a conviction based on the indictment would not bar a subsequent prosecution for
the conduct actually underlying the offense of conviction as found by the jury.
United States v. Stoner, 98 F.3d 527, 536-37 (10th Cir. 1996) (quotation omitted)
adhered to in relevant part on rhg en banc, 139 F.3d 1343 (1998).
-6-
We have repeatedly stressed that it is the judgment and not the indictment alone
which acts as a bar, and the entire record may be considered in evaluating a
subsequent claim of double jeopardy. Hamilton, 992 F.2d at 1130 (quoting
United States v. Whitman, 665 F.2d 313, 318 (10th Cir. 1981) (further quotations
omitted)). Given the careful framing of the jury instructions here, [t]he record in
this case eliminates any possibility that [defendant] could be reprosecuted for the
acts supporting his conviction. Accordingly, no fatal variance occurred.
Whitman, 665 F.2d at 318.
The use of generic, facially indistinguishable counts with broad
overlapping time frames could potentially raise additional double-jeopardy and
jury-unanimity concerns. As for double jeopardy, the jury could be misled into
convicting the defendant on more than one count for the same conduct; as for
jury-unanimity, different jurors might vote to convict on the same count on the
basis of different conduct. Both of these concerns, however, were obviated by
instructions, approved by the prosecution and defense alike, that linked specific
counts with particular incidents identified by unique factual circumstances. For
some counts, the unique identifier was a particular type of sexual act (already
specified in the indictment) that the evidence showed had occurred only once; for
others, the identifier was the particular location of the offense, which had been
associated with just one of the incidents described (in additional detail) by the
victim in her testimony. See generally R. Vol. 3 at 1515-28. And the government
-7-
reinforced these instructions during closing argument by highlighting the specific

incidents linked to each count, see id. at 1454-56, and underscoring for the jury
that [t]he important thing you must all agree on are what facts support each
count, id. at 1454.
Accordingly, we discern no grounds on which a non-frivolous challenge
could be made to defendants conviction on the basis of the indictment, variance
between the indictment and the proof at trial, or the manner in which the counts
of conviction were presented to the jury.
IV. Trial and Sentencing Proceedings Generally
We have reviewed the record for other potential non-frivolous issues, and
see nothing to suggest possible reversible error in the conduct of defendants trial.
There is no doubt concerning the admissibility of the compelling evidence of guilt
provided by the victim, which was corroborated by damning communications
from the defendant himself. And the district courts handling of evidence of
criminal sexual conduct by the defendant directed toward other child victims
under similar circumstances, pursuant to Federal Rules of Evidence 413/414, is
not subject to any colorable challenge. The evidence clearly fell within the
compass of these rules, and the court did not abuse its discretion in balancing
relevance against unfair prejudice under Rule 403. See generally United States v.
Benally, 500 F.3d 1085, 1089-91 (10th Cir. 2007).
-8-
Finally, in his Anders brief, counsel expressly disavows any challenge to

sentencing, noting that the district court imposed a sentence below the guideline
range of life imprisonment on the sexual abuse counts. We agree that there are no
non-frivolous objections to be made in this regard. The district court correctly
calculated the guideline range, 4 properly considered the statutory sentencing
factors to reduce the guideline sentence to a limited degree, and, given the nature
and duration of the conduct involved, reasonably declined defendants request for
a drastic sentence reduction. Any challenge to the sentence imposed would be
frivolous.
The court followed circuit precedent applying the one book principle in
U.S.S.G. 1B1.11(b)(2) and (3) to reject defendants argument for sentencing
under the guideline manual in force at the time of his earliest sex offense. See
United States v. Sullivan, 255 F.3d 1256, 1259-60 (10th Cir. 2001). Defendants
perfunctory effort to circumvent our precedent by invoking a later Supreme Court
case applying the rule of lenity to accept a defendants construction of an
ambiguous criminal statute, United States v. Santos, 128 S. Ct. 2020, 2025 (2008)
(Scalia, J., plurality opinion), was patently meritless. Santos concerned an
entirely different question of statutory interpretation; and the rule of lenity itself
was clearly a part of the legal landscape when Sullivan was decided, see Santos,
128 S. Ct. at 2050 (citing line of authority dating back to 1917), so that it cannot
be invoked as a newly-minted legal principle permitting reconsideration of our
precedent. In any event, the rule applies only when, after consulting traditional
canons of statutory construction, we are left with an ambiguous criminal statute,
United States v. Hayes, 129 S. Ct. 1079, 1089 (2009) (quotation omitted), and, as
Sullivan reflects, the guideline provisions involved here are easily construed
without any unresolved ambiguity.
-9-
Accordingly, counsels motion to withdraw is GRANTED and the appeal is

DISMISSED as frivolous.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

ORDER AND JUDGMENT *

Before LUCERO, GORSUCH, and HOLMES, Circuit Judges.

Defendant Travis J. McGill was convicted by a jury on six counts of

count, to run concurrently, followed by a term of supervised release. After timely

Counsel followed this procedure by filing a brief discussing one potential

time-specific incidents of criminal conduct. The six counts of aggravated sexual

Regarding this risk, we have explained that a variance can be so great as

reinforced these instructions during closing argument by highlighting the specific

Finally, in his Anders brief, counsel expressly disavows any challenge to

Accordingly, counsels motion to withdraw is GRANTED and the appeal is

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