U.S. v. Keiser

• Decision Date: 16 June 1995
• Docket Number: No. 93-30293,93-30293
• Citation: 57 F.3d 847
• Parties: 42 Fed. R. Evid. Serv. 40 UNITED STATES of America, Plaintiff-Appellee, v. Ronald KEISER, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 847

57 F.3d 847

42 Fed. R. Evid. Serv. 40

UNITED STATES of America, Plaintiff-Appellee, v. Ronald KEISER, Jr., Defendant-Appellant.

No. 93-30293.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 10, 1995.

Decided June 16, 1995.

Vernon E. Woodward, Hendrickson, Everson, Noennig & Woodward, Billings, MT, for defendant-appellant.

Klaus P. Richter, Asst. U.S. Atty., Billings, MT, for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana.

Before: WRIGHT, HALL, and WIGGINS, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Ronald Keiser shot Victor Romero, paralyzing him from the waist down. The shooting occurred inside the boundaries of Fort Peck Indian Reservation in Montana. Keiser was indicted and convicted of violating 18 U.S.C. Sec. 113(f) (assault resulting in serious bodily injury). He is currently serving a prison term of 71 months. He raises on appeal two claims regarding his conviction (1) that the district court's instruction on self-defense and defense of another was not appropriate under the facts of this case; and (2) that the district court improperly excluded testimony regarding an incident outside the courtroom at trial that would have revealed the victim's violent character. He does not challenge his sentence.

The district court had jurisdiction under 18 U.S.C. Sec. 1153(a) (offenses committed within Indian country). The appellant timely filed his notice of appeal, vesting this Court with jurisdiction under 28 U.S.C. Sec. 1291. We affirm.

I.

The regrettable events giving rise to this prosecution occurred early in the morning of December 19, 1992, in Wolf Point, Montana. A group of people gathered at a home across the street from the home of the defendant, Ronald Keiser. The gathering was raucous. Members of the group had been drinking at various bars and the drinking apparently was continuing at the after-hours party.

Keiser went across the street to complain about the party. Testimony regarding the details of what happened next is conflicting, but it appears that several arguments ensued. Keiser may have slapped a woman; a scuffle began; a guest tried to throw Keiser out of the house; Keiser pulled a chunk of hair out of the head of one of the guests.

Keiser then returned home and was quite upset. His girlfriend was unable to calm him down, so she called the defendant's brother, Randy Keiser, to come over. Randy came and was successful in calming the defendant down. Randy then left the defendant's house and returned to his pickup truck, which was parked on the street between the two houses.

At around the same time as Randy was leaving, however, Victor Romero, the brother of the girl whom the defendant allegedly slapped, arrived at the house across the street. Angered that someone had slapped his sister, Romero set off across the street with two companions. En route, they encountered Randy, the brother of the defendant, sitting in his pickup truck as it warmed up. Romero saw Randy in the truck and, thinking it was Randy who had slapped his sister, began hitting and shoving Randy, who was still sitting in the driver's seat of his truck.

The defendant watched these events from inside his house. He testified that he saw one of the two men who were with Romero remove a gun from the back of a parked Ford Escort station wagon, place it in the back of his pants, and head in Randy's direction. ¹ He therefore feared the three men were about to kill his brother. Ronald retrieved a rifle from his bedroom. When he saw what he thought was a gun being used in the assault on his brother, he shot at the people by the truck, hitting Romero.

The bullet passed through Romero's kidney, colon, and small intestine, and lodged in his spine. Romero is now paralyzed from the waist down, and uses a wheelchair and a colostomy bag.

Keiser was arrested four days later and indicted on the charge of violating 18 U.S.C. Sec. 113(f). His theory at trial was that he had acted in defense of his brother, who he reasonably believed was in danger because of the assault by three armed and angry men.

During the second day of trial, the defense called the defendant's brother, Randy Keiser. Defense counsel began to ask Randy about an incident that had occurred the day prior in the lobby outside the courtroom. The prosecutor objected to the line of questioning as irrelevant and the court sustained the objection.

Counsel then approached the bench and defense counsel made an offer of proof:

My purpose in this was not--yesterday afternoon Victor Romero [the victim] was with his family and friends in the presence of court security. He looked at this witness and he said words to the effect, there he is, that's the fucker's brother. And I want you to remember his face, remember his face.

And he had to be taken out of there, he was screaming. I think that's indicative of he wanted to get revenge, it is indicative of his actions on the night in question. This is not the sympathetic individual that comes in here and says he was very calm and collected. And I think it is indicative of his state of mind now and his state of mind at the time. I think it is relevant.

Tr. of May 11, 1993, at 271-72. The court again sustained the objection. Keiser was convicted on May 11, 1993 and is incarcerated for a term of 71 months.

II.

Keiser argues that the district court committed reversible error in giving a jury instruction regarding self-defense different than the one Keiser proposed. We reject this argument and hold that the district court's reading of Ninth Circuit Model Criminal Instruction 6.05 adequately informed the jury of Keiser's theory of the case. Cf. United States v. Goland, 959 F.2d 1449, 1454 (9th Cir.1992) (approving instructions that "adequately expressed [the] theory of the defense").

"[T]here is some dispute over the appropriate standard of review when a trial court rejects certain types of proposed jury instructions." United States v. Dinkane, 17 F.3d 1192, 1200 (9th Cir.1994). "Whether a jury instruction correctly sets forth the elements of a statutory crime is a question of law reviewed de novo. The district court's formulation of these elements for the jury is reviewed for abuse of discretion." United States v. Reese, 2 F.3d 870, 883 (9th Cir.1993) (citations omitted), cert. denied, --- U.S. ----, 114 S.Ct. 928, 127 L.Ed.2d 220 (1994). In this case, the appellant does not claim that the jury instructions were wrong as a matter of law, or that they failed to set forth the elements of the defense. Rather, he claims that the model instruction on self-defense and defense of another was "not appropriate under the facts." Because this argument appears to be a challenge to the district court's "formulation" of the elements of the defense, we conclude that abuse of discretion is the appropriate standard of review.

The defense introduced evidence that one of the men who was involved in the assault against the defendant's brother had, prior to approaching the brother, reached into the back of a car, removed a metal object, and placed it in the small of his back. The defendant testified that he thought he saw one of the men pulling a handgun out of the car and walking toward his brother with it. ² Not surprisingly, the prosecution denied that anyone had removed a gun from the back of the car. Instead, it presented evidence indicating that the man had grabbed a few beers from the back of the car. ³

After the shooting, the investigating officers performed a cursory search for a gun. They found none. Keiser argues on appeal that the failure to find any gun "obviously gives rise to evidence from which the finder of fact could have believed that the Defendant was mistaken in his belief that his brother's assailants were armed." He therefore requested at trial a jury instruction emphasizing that even a mistaken belief in the necessity of force can support a claim of self-defense or defense of another.

The defense offered the following instruction:

You are to consider the following requirements of the law in determining whether the use of force claimed by defendant was justified:

1. The defendant must not be the aggressor;

2. The danger of harm must be a present one;

3. The force threatened must be unlawful;

4. The defendant must actually believe the danger exists, that is, use of force by him is necessary to avert the danger and that the kind and amount of force which defendant uses is necessary;

5. The defendant's belief, in each of the aspects described, is reasonable even if mistaken.

You are further advised that even if you determine the use of force by defendant was not justified, the government still has the duty to prove each of the elements of the crime charged beyond a reasonable doubt.

Docket Entry No. 28.

The district court, without significant explanation, refused to give this instruction. Tr. of May 11, 1993, at 320 ("I think I want to give the Ninth Circuit one.... I'm giving the Ninth Circuit one."). Rather, it gave the model instruction on self-defense:

The defendant has offered evidence of having acted in self-defense. Use of force is justified when a person reasonably believes that it is necessary for the defense of oneself or another against the immediate use of unlawful force. However, a person must use no more force than appears reasonably necessary in the circumstances.

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

Tr. of May 11, 1993, at 335. The court also instructed the jury that the prosecution bore the burden of proving beyond a reasonable doubt that the defendant had not acted in reasonable self-defense. Id. at 331 ("the government must prove each of the following elements beyond a reasonable doubt: ... the defendant did not reasonably believe that force was necessary to...