U.S. v. Estrada-Fernandez, ESTRADA-FERNANDEZ

• Decision Date: 10 August 1998
• Docket Number: ESTRADA-FERNANDEZ,No. 97-10661,97-10661
• Citation: 150 F.3d 491
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jaime; Jose Valenzuela-Hernandez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 491

150 F.3d 491

UNITED STATES of America, Plaintiff-Appellee, v. Jaime ESTRADA-FERNANDEZ; Jose Valenzuela-Hernandez Defendants-Appellants.

No. 97-10661.

United States Court of Appeals Fifth Circuit.

Aug. 10, 1998.

Tanya K. Pierce, Asst. U.S. Atty., Denise B. Williams, Lubbock, TX, for Plaintiff-Appellee.

Helen Miller Liggett, Asst. Fed. Pub. Defender, Lubbock, TX, for Jaime Estrada-Fernandez.

Gene Frank Walters, Lubbock, TX, for Jose Valenzuela-Hernandez.

Appeals from the United States District Court for the Northern District of Texas.

Before KING and DAVIS, Circuit Judges, and VANCE, ^* District Judge.

PER CURIAM:

Defendants-appellants Jaime Estrada-Fernandez and Jose Valenzuela-Hernandez appeal their convictions for assault with a dangerous weapon pursuant to 18 U.S.C. § 113(a)(3). They contend that the district court erred in failing to give certain lesser-included-offense instructions to the jury. For the reasons set forth below, we affirm the district court's judgment of conviction and sentence as to Jose Valenzuela-Hernandez, and we reverse the district court's judgment of conviction and sentence as to Jaime Estrada-Fernandez.

I. FACTUAL & PROCEDURAL BACKGROUND

On December 22, 1996, correctional officer Lt. Travis Gilbreath was notified that there was smoke in one of the prison units at the Federal Correctional Institute at Big Spring, Texas. Gilbreath and other officers went to the unit and discovered that some of the fire extinguishers had been discharged, causing a large cloud. At the bottom of a stairwell within the unit, Gilbreath discovered a pool of blood and parts of broken broom and mop handles. He then observed a group of twenty to thirty inmates with broken broom and mop handles and pipes chasing another inmate down a nearby stairwell. The inmate being pursued fell to the ground and the other inmates began beating him with the objects they carried.

Gilbreath began pulling inmates off of the fallen inmate and ordering them to stop the beating. As Gilbreath pulled the second or third inmate away, that inmate struck him on the arm. Further, as he attempted to gain control of that inmate, another inmate struck him in the back three or four times. Gilbreath later identified Jaime Estrada-Fernandez (Estrada) as the inmate who struck him on the arm. James Soles, another correctional officer who was on the scene, later identified Jose Valenzuela-Hernandez (Valenzuela) as the inmate who struck Gilbreath in the back.

Gilbreath testified at trial that Estrada hit him with a broken broom or mop handle that was approximately one and one-half to two inches in diameter. Soles testified that Valenzuela hit Gilbreath on the back with a similar object. As a result of the blows, Gilbreath suffered (1) redness in his upper back; (2) redness, tenderness, and swelling in his lower back; and (3) an abrasion on his right arm. In addition, one of the blows to his back broke a portion of his flashlight carrier and bent his handcuffs.

Estrada and Valenzuela each filed a Notice of Alibi prior to trial in which each asserted that he was not present at the scene of the altercation. At trial, Estrada testified that he was cleaning the telephone area when he noticed a group of people running. In addition, he testified that later some prison guards called him names, threw him to the ground, and handcuffed him. Valenzuela and two other inmates testified that Valenzuela was either in his room or on the balcony of his room during the incident.

At the conclusion of the trial, Estrada requested that the district court instruct the jury on the offenses of (1) assault by striking, beating, or wounding and (2) simple assault, each of which he claimed qualified as a lesser-included offense. The district court denied his request, and he objected to that denial. Valenzuela did not request either of the lesser-included-offense instructions, and he did not object to the district court's refusal to include them in the jury charge.

Estrada and Valenzuela each appeals the district court's judgment of conviction and sentence, arguing that the district court erred in refusing to include the instructions requested by Estrada.

II. DISCUSSION

Valenzuela and Estrada contend that the district court erred in failing to instruct the jury on the offenses of "[a]ssault by striking, beating, or wounding" pursuant to 18 U.S.C. § 113(a)(4) and "[s]imple assault" pursuant to 18 U.S.C. § 113(a)(5). They argue that each of these offenses constitutes a lesser-included offense of the crime of which they were convicted--"[a]ssault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse." 18 U.S.C. § 113(a)(3).

Federal Rule of Criminal Procedure 31(c) states that a defendant "may be found guilty of an offense necessarily included in the offense charged." FED.R.CRIM.P. 31(c). In Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989), the Supreme Court explained that courts should apply an "elements" test to determine whether a lesser-included-offense instruction was proper in a given case. Id. at 716, 109 S.Ct. 1443; United States v. Browner, 937 F.2d 165, 168, 172 (5th Cir.1991) (interpreting Schmuck to adopt a "strict statutory elements test"). Under the elements test, "one offense is not 'necessarily included' in another unless the elements of the lesser offense are a subset of the elements of the charged offense." 26 MOORE'S FEDERAL PRACTICE § 630.32 (Daniel R. Coquillette et al eds., 3d ed.1998) (citing Schmuck, 489 U.S. at 716, 109 S.Ct. 1443). Since the adoption of that test, we have explained that a district court

may give a lesser-included offense instruction if, but only if, (1) the elements of the offense are a subset of the elements of the charged offense, and (2) the evidence at trial permits a jury to rationally find the defendant guilty of the lesser offense and acquit him of the greater.

United States v. Lucien, 61 F.3d 366, 372 (5th Cir.1995); see also United States v. Harrison, 55 F.3d 163, 166 (5th Cir.1995). This court applies a two-tiered standard of review when determining whether a district court erred in its application of this test: "the first prong is reviewed de novo, the second for abuse of discretion." Lucien, 61 F.3d at 372; see also Harrison, 55 F.3d at 167.

In determining, under the first prong of the test, whether an offense constitutes a lesser-included offense with respect to the charged offense, we compare "the statutory elements of the offenses in question, and not ... [the] conduct proved at trial." Schmuck, 489 U.S. at 716-17, 109 S.Ct. 1443. Therefore, regardless of the evidence adduced at trial, "[w]here the lesser offense requires an element not required for the greater offense, no instruction is to be given under Rule 31(c)." Id. at 716, 109 S.Ct. 1443.

In order to convict a defendant of assault with a dangerous weapon pursuant to 18 U.S.C. § 113(a)(3), the government must prove that the defendant (1) assaulted the victim ¹ (2) with a dangerous weapon (3) with the intent to do bodily harm. 18 U.S.C. § 113(a)(3); see also United States v. Guilbert, 692 F.2d 1340, 1343-44 (11th Cir.1982). In order to convict a defendant of the crime of assault by striking, beating, or wounding pursuant to 18 U.S.C. § 113(a)(4), the government must prove that the defendant made physical contact with the victim. Guilbert, 692 F.2d at 1344. Because physical contact with the victim is not an element of assault with a dangerous weapon, assault by striking, beating, or wounding does not qualify as a lesser-included offense of that crime. As the Tenth Circuit has explained Under the elements test, the offense of striking beating or wounding is simply not a lesser included offense of assault with a dangerous weapon. Assault by striking, beating or wounding under 18 U.S.C. § 113(a)(4) ... requires a physical touching and is the equivalent of simple battery. However, assault with a dangerous weapon under 18 U.S.C. § 113(a)(3) ... only requires proof of an assault with a dangerous weapon, with the intent to cause bodily harm. The offense does not require proof of any physical contact. Consequently, a defendant may commit assault with a dangerous weapon without committing assault by striking, beating or wounding.

United States v. Duran, 127 F.3d 911, 915 (10th Cir.1997) (citations omitted), cert. denied sub nom., --- U.S. ----, 118 S.Ct. 1389, 140 L.Ed.2d 648 and cert. denied, --- U.S. ----, 118 S.Ct. 1389, --- L.Ed.2d ---- (1998); see also Guilbert, 692 F.2d at 1345 (noting that § 113(d) is not a lesser-included offense of § 113(c) because it "requires some kind of actual physical contact with the victim [whereas] conviction under subsection (c) can be based upon an act that merely places the victim in reasonable apprehension of imminent bodily harm"). Therefore, we conclude that neither Estrada nor Valenzuela was entitled to a lesser-included-offense instruction for the crime of assault by striking, beating, or wounding.

Estrada and Valenzuela also contend that they were entitled to a lesser-included-offense instruction as to the crime of simple assault pursuant to 18 U.S.C. § 113(a)(5). In order to prove a defendant guilty of simple assault, the government need only show that the defendant assaulted the victim. In a prior case, we have approved of the district court's giving a lesser-included-offense instruction on the crime of simple assault where the defendant was charged with assault on a federal officer with a dangerous weapon under a statute similar to the one at issue in this case. See United States v. Bey, 667 F.2d 7, 11 (5th Cir. Unit B 1982). Thus, we conclude that the offense of simple assault under § 113(a)(5) does constitute a lesser-included offense of assault with a dangerous weapon.

We next turn to consideration of the second prong of the test for whether the defendants were entitled to a lesser-included-offense instruction on the offense...