United States v. Willie McNeal ( 2019 )

FILED
NOT FOR PUBLICATION
MAR 20 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10421
Plaintiff-Appellee, DC No. CR 16-0014 GEB
v.
MEMORANDUM*
WILLIE JAMES McNEAL,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted March 14, 2019**
San Francisco, California
Before: WALLACE, TASHIMA, and McKEOWN, Circuit Judges.
Defendant Willie James McNeal (“McNeal”) appeals from his conviction for
assault resulting in serious bodily injury under 18 U.S.C. § 113(a)(6). The assault
occurred in a prison setting. He contends that the district court erroneously denied
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
his motion in limine to present evidence of self defense and requesting a self
defense jury instruction, and erroneously excluded portions of McNeal’s testimony
as well as McNeal’s proffered expert at trial. McNeal argued that the victim had
previously threatened McNeal at least twice and that, immediately prior to the
attack, McNeal realized that the victim was leading McNeal to an ambush in the
laundry room where the victim and his friends would beat up McNeal. Because of
these threats and the imminent ambush, McNeal argued that he had to
preemptively attack the victim to protect himself.
Where, as here, the district court’s ruling on the motion in limine precludes
the presentation of a defense, we review de novo. See United States v. Biggs, 441
F.3d 1069, 1070 n.1 (9th Cir. 2006). We review for abuse of discretion a district
court’s evidentiary rulings, Obrey v. Johnson, 400 F.3d 691, 694 (9th Cir. 2005),
and rulings on the admissibility of expert testimony, United States v. Castaneda,
94 F.3d 592, 595 (9th Cir. 1996). We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
1. The district court was correct to deny McNeal’s motion in limine
because McNeal could not demonstrate that he had “a reasonable belief that the use
of force was necessary to defend himself or another against the immediate use of
unlawful force.” Biggs, 441 F.3d at 1071; see also United States v. Glaeser, 550
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F.2d 483, 487 (9th Cir. 1977) (holding that a defendant must make out a prima
facie case in order to present evidence of an affirmative defense at trial). It is
uncontested that McNeal struck the first blow in the altercation that led to his
assault conviction. Under this Circuit’s precedent, McNeal is therefore foreclosed
from presenting a theory of self defense because he preemptively attacked. See
United States v. Acosta-Sierra, 690 F.3d 1111, 1126 (9th Cir. 2012) (“[A]n
individual who is the attacker cannot make out a claim of self-defense as a
justification for an assault.”); United States v. Urena, 659 F.3d 903, 907 (9th Cir.
2011) (explaining that “even if [the victim] possessed a knife, the evidence was
undisputed that it was [the defendant] who was the attacker, and thus he could not
in those circumstances successfully urge a self defense theory”). Thus, even taking
as true McNeal’s allegation that the victim of the assault had previously threatened
McNeal and was planning an ambush in the laundry room, McNeal was not
entitled to use preemptive self defense. See id.. Accordingly, the district court did
not err in denying McNeal’s motion in limine.
2. The district court also did not abuse its discretion in excluding
McNeal’s testimony regarding the victim’s alleged prior threats, nor in excluding
McNeal’s proffered expert. McNeal argues that both should have been admitted
because they were relevant to the issue of self defense. However, because the trial
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court did not err in denying McNeal’s motion to put forward a theory of self
defense, it did not abuse its discretion in excluding evidence related only to that
theory of self defense. Cf. United States v. Heller, 551 F.3d 1108, 1111 (9th Cir.
2009) (explaining that the district court did not err by failing to rule on a motion in
limine after the defendant waived is right to a jury trial and the evidence would no
longer go before the jury)).
AFFIRMED.
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