                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 18 2015

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10177

              Plaintiff - Appellee,              D.C. No. 3:12-cr-00121-LRH-
                                                 WGC-2
  v.

LINWOOD TRACY,                                   MEMORANDUM*

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                       Argued and Submitted March 9, 2015
                            San Francisco, California

Before: NOONAN, W. FLETCHER, and DAVIS,** Circuit Judges.

       Linwood Tracy, Jr. appeals his conviction for conspiracy to defraud the

United States in violation of 18 U.S.C. § 371. Tracy argues that (1) the indictment

was fatally insufficient because it failed to charge deceitful or dishonest means and


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
(2) the government offered insufficient evidence to establish his participation in a

conspiracy to defraud using deceitful or dishonest means. We have jurisdiction

under 28 U.S.C. § 1291 and we affirm.

      We review de novo the sufficiency of an indictment first challenged in

district court. United States v. Rodriguez, 360 F.3d 949, 958 (9th Cir. 2004).

“Generally, an indictment is sufficient if it sets forth the elements of the charged

offense so as to ensure the right of the defendant not to be placed in double

jeopardy and to be informed of the offense charged.” United States v. Woodruff,

50 F.3d 673, 676 (9th Cir. 1995). Because Tracy did not challenge the

indictment’s sufficiency until the close of the government’s case in chief, it will be

“liberally construed in favor of validity,” as a tardy challenge “suggests a purely

tactical motivation” and “tends to negate the possibility of prejudice in the

preparation of a defense.” United States v. Pheaster, 544 F.2d 353, 361 (9th Cir.

1976). The indictment provided the relevant statute and specifics of the conspiracy

that were adequate to put Tracy on notice regarding the content of the charge. See

United States v. James, 980 F.2d 1314, 1318 (9th Cir. 1992); United States v.

Coleman, 656 F.2d 509, 511–12 (9th Cir. 1981). Further, it is clear that Tracy’s

defense was not prejudiced, as his co-counsel told the jury in his opening statement

that the government would have to prove that Tracy had entered into an agreement


                                           2
to obstruct the government by deceitful or dishonest means. RT 56. Accordingly,

we reject this claim.

      We review sufficiency of the evidence de novo. United States v. Rizk, 660

F.3d 1125, 1134 (9th Cir. 2011). First, all evidence must be construed in favor of

the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Once the

evidence is so construed, this court must affirm the conviction if “any rational trier

of fact could have found the essential elements beyond a reasonable doubt.” Id.;

see also United States v. Nevils, 598 F.3d 1158, 1164–67 (9th Cir. 2010) (en banc).

Under this deferential standard, we conclude that the government provided

sufficient evidence to allow a rational trier of fact to convict Tracy.

      AFFIRMED.




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