United States v. Joan Gividen , 468 F. App'x 744 ( 2012 )

FILED
NOT FOR PUBLICATION FEB 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10570
Plaintiff - Appellee, D.C. No. 4:09-cr-01185-JMR-
JCG-1
v.
JOAN ADA GIVIDEN, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
John M. Roll, District Judge, Presiding
Submitted February 15, 2012 **
San Francisco, California
Before: ALARCÓN and SILVERMAN, Circuit Judges, and GARBIS, Senior
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for Maryland, sitting by designation.
Joan Gividen appeals from a jury conviction and sentence on two counts of
assaulting a federal officer with a deadly or dangerous weapon in violation of 18
U.S.C. §§ 111(a)(1) and (b). She contends that the district court abused its
discretion in denying her request for an instruction on the offense of simple assault
as a lessor included offense in the crime of committing an assault with a deadly or
dangerous weapon on an agent of a branch of the United States who is engaged in
his or her official duties. We affirm because we conclude that the evidence was
insufficient to permit a rational jury to find the defendant guilty of simple assault
based on the evidence presented at trial. We have jurisdiction under 28 U.S.C.
§ 1291.
I
The Government presented the following evidence at trial to meet its duty to
demonstrate that Gividen was guilty of an assault with a deadly or dangerous
weapon on an agent of the United States. As border patrol agents drove past
Gividen’s residence on Beki Lane, in response to a report that illegal aliens had
been observed in the roadway ahead, she yelled at them, “[G]et the hell out of here,
you sons of bitches.”
After the agents apprehended the aliens, and as they stood in the roadway
processing the aliens and awaiting a transportation vehicle, Gividen drove her
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pickup truck down Beki Road toward the agents. Border Patrol Agent Earnest Kile
stepped into the roadway intending to speak with Gividen. Instead of stopping, she
accelerated, forcing the agent to jump out of the way to avoid being hit. Other
agents also had to jump out of the way to avoid being hit. As Gividen passed the
agents, she lost control of her vehicle and it fish-tailed. When she was stopped, an
agent asked her: “What are you trying to do[,] kill someone?” Gividen replied: “I
was trying to run you over.”
After Gividen got out of her vehicle, she yelled obscene words at the agents,
and was belligerent with them and the paramedics who had arrived to take her to
the hospital because she was hysterical.
In her defense, Appellant testified that she did not yell at the officers as they
drove by her house, nor did she try to hit any of the agents as she drove by them at
twenty-five miles per hour.
II
Our review of a district court’s denial of a jury instruction on a lesser-
included offense is in two steps. First, we review de novo whether the “offense on
which instruction is sought is a lesser-included offense of that charged.” United
States v. Rivera-Alonzo, 584 F.3d 829, 832 (9th Cir. 2009) (quoting United States
v. Hernandez, 476 F.3d 791, 797 (9th Cir. 2007)). Here, the government conceded
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and the district court agreed that elements of simple assault on a federal officer are
encompassed in the elements of assault on a federal officer with a deadly or
dangerous weapon. See id. at 833.
“[I]f the requested instruction pertains to a lesser-included offense,” we then
review the denial of the instruction of the lesser-included offense for abuse of
discretion. Id. at 832. “[T]o warrant a lesser[-]included offense instruction the
evidence at trial must be such that a jury could rationally find the defendant guilty
of the lesser offense, yet acquit him of the greater.” Id. at 834 (quoting Hernandez,
476 F.3d at 798 (internal quotation marks omitted) (citing Schmuck v. United
States, 489 U.S. 705, 716 n.8 (1989)); Keeble v. United States, 412 U.S. 205, 208
(1973)). “[A] district court may properly refuse to give an instruction on a lesser
included offense if the jury could not have convicted a defendant of the
lesser-included offense without finding the element(s) that would convert the lesser
offense to the greater.” Id. at 834 (citing United States v. Torres-Flores, 502 F.3d
885, 888 (9th Cir. 2007)).
With respect to the evidence prong of the two-part test, Gividen contends
that the district court abused its discretion because “if the jury had been instructed
on simple assault, it could have found that she was guilty of assault but not of
using her vehicle as a deadly or dangerous weapon.” The Government maintains
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that the lesser-included instruction was inappropriate because, as the district court
pointed out, “if [Gividen] didn’t use her car as a deadly weapon, there is no crime
[under 18 U.S.C. § 111(a)(1) or (b)]. She is not guilty.”
Gividen contends that “Agent Kile’s decision to put himself in the path of an
oncoming vehicle negates any evidence that Gividen used or attempted to use her
vehicle as a ‘deadly or dangerous weapon.’” She further contends that the video
recording shows “[she] did not veer left . . . . Thus, Agent Powell’s being in the
path of her oncoming vehicle was of his own volition . . . .” She also asserts the
jury could have found her guilty of the lesser-included offense if they concluded
that Agent Kile feared the speed of Gividen’s truck rather than the truck itself.
Gividen’s arguments are unsupported by the record. Agent Kile testified
that he realized Gividen was “not going to stop” and that he had to jump out of the
way to avoid being hit. The video introduced at trial showed that other federal
agents were forced to take cover out of fear of being hit and or killed as Gividen
drove her truck down a narrow road directly toward them.
We agree with the district court that a rational jury could not have convicted
Gividen of simple assault on a federal officer without finding that she used her
pickup truck as a deadly or dangerous weapon. Accordingly, it did not abuse its
discretion in denying Gividen’s jury instruction request.
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AFFIRMED.
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