United States v. Ronald Peppers

697 F.3d 1217

9th Cir.

2012

Check Treatment

Docket

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Charles PEPPERS, Defendant-Appellant.

No. 11-30322.

United States Court of Appeals, Ninth Circuit.

October 17, 2012

1217

tion factor, which is determined by dividing the consumer price index for June of the year prior to the year in which a general election is held by the consumer price index for June 2002.

(b) The resulting figure must be rounded up or down to the nearest:

(i) $10 increment for the limits established in subsection (1); and

(ii) $50 increment for the limits established in subsection (3).

(5) A candidate may not accept any contributions, including in-kind contributions, in excess of the limits in this section.

(6) For purposes of this section, “election” means the general election or a primary election that involves two or more candidates for the same nomination. If there is not a contested primary, there is only one electiоn to which the contribution limits apply. If there is a contested primary, then there are two elections to which the contribution limits apply.

APPENDIX B

Admin. R. Mont. § 44.10.338

44.10.338 LIMITATIONS ON INDIVIDUAL AND POLITICAL PARTY CONTRIBUTIONS

(1) Pursuant to the operation specified in 13-37-216, MCA, limits on total combined contributions from individuals to candidates аre as follows:

(a) a candidate for governor may receive no more than $630;

(b) a candidate for other statewide office ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍may receive no more than $310;

(2) Pursuant to the operation specified in 13-37-216, MCA, limits on total combined contributions from political party committees to candidates are as follows:

(a) a candidate for governor may receive no more than $22,600;

(b) a candidate for othеr statewide offices may receive no more than $8150;

(d) a candidate for senate may receive no more than $1300;

(e) a candidate for all other public offices may rеceive no more than $800.

(3) Pursuant to 13-37-218, MCA, in-kind contributions must be included in computing these limitation totals.

R. Henry Branom, Jr., Assistant Federal Defender, Federal Defenders of Montana, Great Falls, MT, for the defendant-appellant.

Jessica A. Betley, Assistant United States Attorney, United States Attorney‘s Office, Great Falls, MT, for the plaintiff-appellee.

Before: SUSAN H. BLACK,* SUSAN P. GRABER, and JOHNNIE B. RAWLINSON, Circuit Judges.

OPINION

PER CURIAM:

Ronald Charles Peppers appeals his conviсtion for ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍assaulting a federal officer, in violation of 18 U.S.C. § 111(a)(1). We affirm.

BACKGROUND

On October 17, 2010, Special Agent Brian Kimball of the Federal Bureau of Investigation and several other law enforcement officers attempted to apprehend Peppers at the residence of his mother, Roberta Arnoux. Earlier that day, Arnoux had informed the officers that Peppers was asleep in her trailer home but warned that she kept an unloaded shotgun under her bed.

Around midnight, the officers entered Arnoux‘s darkened trailer and found Peppers sleeping on a couch. As the officers attempted to apprehend Peppers, a struggle ensued, during which Peppers bit Special Agent Kimball‘s arm. The officers placed Peppers under arrest shortly thereafter.

Following an indictment, Peppers proceedеd to trial on one count of being a felon in possession of a firearm, which was dismissed at the close of the government‘s case-in-chief, and one count of assault on a federal officer. At trial, Peppers testified in his own defense, claiming that at the time of his arrest, he believed he was resisting violent attackers, not law enforcement officers, who had entered his mother‘s trailer. Peрpers maintained that he had not become aware that the intruders were actually law enforcement officers because, among other things, he could not see anything in the darkened trailer and could not hear officers identifying themselves due to the general commotion associated with his arrest.

After the close of evidence, the district court distributed its proposed jury instructions, which stated in relevant part:

In order for the defendant to be found guilty of assault on a federal officer as charged in the indictment, the government must prove each of the following elements beyond а reasonable doubt:

Fi[r]st, the defendant forcibly assaulted [an] FBI Agent—FBI Special Agent Brian Kimball;

Second, the defendant did so while FBI Special Agent Brian Kimball was engaged in or on account of his officiаl duties;

Third, the defendant made physical contact with FBI Special Agent Brian Kimball; and,

Fourth, either, one, the defendant knew that FBI Special Agent Brian Kimball was a federal officer; or the defendant did nоt reasonably believe force was necessary to defend against an immediate use of unlawful force; or, three, the defendant used more force than appeared reasonаbly necessary in the circumstances.

Forcible assault occurs when one person intentionally strikes another or willfully attempts to inflict injury on another.

Use of force is justified if, one, the defendant did nоt know that FBI Special ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Agent Brian Kimball was a federal officer; two, the defendant reasonably believed that the use of force was necessary to defend himself against an immediate use of unlawful force; and three, the defendant used no more force than appeared reasonably necessary in the circumstances.

Force which is likely to cause death or great bodily hаrm is justified in self-defense only if a person reasonably believes that such force is necessary to prevent death or great bodily harm.

Peppers objected to the proposed instructions and requested that the district court follow the Ninth Circuit pattern instructions by issuing “separate instructions” for the offense elements and the issue of self-defense.¹ The district court, overruling Peppers’ objection, issued its proposed jury instructions. After the parties’ closing arguments, the jury found Peppers guilty on one count of assault on a federal officer. Peppers timely appeals.

STANDARD OF REVIEW

We review “dе novo whether the district court‘s instructions adequately presented the defendant‘s theory of the case.” United States v. Knapp, 120 F.3d 928, 930 (9th Cir. 1997). Whether the instructions accurately stated the burden of proof is also subject to de nоvo review. United States v. McKittrick, 142 F.3d 1170, 1177 (9th Cir. 1998). If the instructions “fairly and adequately cover the issues presented,” the district court “is given substantial latitude in tailoring jury instructions.” United States v. Powell, 955 F.2d 1206, 1210 (9th Cir. 1992) (internal quotation marks omitted). Thus, “[a] district court‘s formulation of the jury instruction is reviewed for abuse of discretion.” Du v. Allstate Ins. Co., 681 F.3d 1118, 1122 (9th Cir. 2012) (internal quotation marks omitted).

DISCUSSION

Peppers argues that his conviction should be reversed because the district court‘s jury instructions failed to inform the jury adequately that the government bore the burden оf proving beyond a reasonable doubt that he did not act in self-defense. The jury instructions stated that the government had to prove beyond a reasonable doubt:

either, one, the defendant knew thаt FBI Special Agent Brian Kimball was a federal officer; or the defendant did not reasonably believe force was necessary to defend against an immediate use of unlawful force; or, three, the defendant used more force than appeared reasonably necessary in the circumstances.

Peppers does not contend that the jury instructions inaccurately stated the government‘s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍burden of proof on the issue of self-defense. He nonetheless claims that our opinion in United States v. Pierre, 254 F.3d 872, 876 (9th Cir. 2001), mandates reversal of his conviction. The jury instructions challenged in Pierre are distinguishable, however, beсause they lacked any instruction regarding the burden of proof on the issue of whether the defendant reasonably believed that force was necessary to defend himself.² We reversed the defendant‘s conviction because the jury instructions never informed the jury that the government bore the burden of proof on the entire self-defense claim. Id. In contrast, the jury instructions in this case correctly stated the govеrnment‘s burden of proof on the entire issue of self-defense. Accordingly, Peppers’ reliance on Pierre is misplaced.

In a related argument, Peppers challenges the district court‘s “construction” of the jury instructiоns. He contends that the district court de-emphasized or downplayed the government‘s burden of proof on the issue of self-defense by framing the absence of self-defense as an element of thе charged offense in the jury instructions. Although the preferred practice is for district courts, where possible, to follow the model instructions and avoid unnecessary disputes like this one, “a district court has substantial latitude to tailor jury instructions.” United States v. Marsh, 26 F.3d 1496, 1502 (9th Cir. 1994). We find no abuse of discretion in this case requiring reversal of Peppers’ conviction.³

AFFIRMED.

SUSAN H. BLACK

UNITED STATES SENIOR CIRCUIT JUDGE

* The Honorable Susan H. Black, United States Senior Circuit Judge for the Eleventh Circuit, sitting by designation.

Notes

This circuit‘s model instructions cover the elements of assault on a federal officer and self-defense in two separate instructions. See 9th Cir. Crim. Jury Instr. 8.3 & 8.5 (2010).

There, the district court issued an instruction informing the jury that the defendant‘s use of force was justified if the defendant: (1) reasonably believed that force was necessary to defend himself against the immediate use of unlawful force, and (2) used no more force than appeared reasonably necessary under the circumstances. . In its attempt to instruct the jury on the government‘s burden of proof, however, the district court stated only that the governmеnt had to prove beyond a reasonable doubt that “the defendant used more force than was reasonably necessary in the circumstances.” Id. (emphasis omitted).

“[A]n error in criminal jury instructions requires reversal unless thеre is no reasonable possibility that the error ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍materially affected the verdict or, in other words, that the error was harmless beyond a reasonable doubt.” (internal quotation marks omitted). To the еxtent Peppers argues the district court misstated the elements of the charged offense by presenting the absence of self-defense as an offense element, that error was harmless. There is no reasonable possibility that the inclusion of the lack of self-defense as an offense element requiring proof beyond a reasonable doubt from the government materially affected the jury‘s guilty verdict.

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