U.S. v. Span, s. 90-10284
| Decision Date | 08 July 1992 |
| Docket Number | 90-10285,Nos. 90-10284,s. 90-10284 |
| Citation | 970 F.2d 573 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jerry SPAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Darlene SPAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Alan M. Dershowitz, Cambridge, Mass., for defendant-appellant.
Janet L. Patterson, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee.
Appeal from the United States District Court for the District of Arizona.
Before: SKOPIL, PREGERSON, and O'SCANNLAIN, Circuit Judges.
Jerry and Darlene Span, brother and sister, appeal their convictions following a jury trial of assault on a federal officer in violation of 18 U.S.C. § 111 (1988). 1 Mr. Span was fined $1,000 and sentenced to 30 months probation with the special condition that he serve four months under house arrest. Ms. Span was fined $6,000 and sentenced to 36 months probation with special conditions that she serve three months in a community treatment center and three months house arrest.
On appeal, the Spans contend that the trial court made several errors when instructing the jury. While in theory some of the Spans' legal arguments may have merit, we do not find plain error in the district court's jury instructions in light of the evidence presented by the defense. The Spans also contend that the trial court erred when it refused to grant their motion to dismiss the indictment on the ground that the government destroyed evidence. We disagree, and affirm the district court's decision denying the motion to dismiss. Finally, the Spans argue that their convictions must be reversed because the government failed to comply with the requirements of the Jencks Act, 18 U.S.C. § 3500 (1988), and of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We do not find that the district court's rulings on these issues were clearly erroneous. Accordingly, we affirm the Spans' convictions.
This case began when deputy U.S. Marshals Garry Grotewold and David Dains ("the marshals") were seeking a 63 year-old escaped fugitive named Mickey Michael, who they believed to be armed and dangerous. On April 7, 1988, the marshals drove to an address in Phoenix, Arizona where, according to a lead, Michael might be hiding. The marshals wore plain clothes and drove an unmarked car. Each carried a gun.
The rest of the story is hotly disputed. According to the marshals, Darlene Span met the marshals almost immediately after they got out of their car. The marshals testified that they told Ms. Span that they were looking for Mickey Michael and handed her a wanted flyer with Michael's picture. Ms. Span told them that the Mickey Michael she knew was out of town and that he was not the man in the wanted picture. Ms. Span then allegedly took the flyer from Marshal Dains and began to walk away.
Marshal Grotewold walked past Ms. Span and blocked her path by resting his arm against a truck. When Grotewold asked her what she was doing, Ms. Span responded that she was going to make a copy of the flyer. Grotewold told her she could not make a copy, and took the flyer from her. About that time, Jerry Span, Darlene's brother, approached Grotewold and demanded that the marshals leave his property.
Grotewold testified that he told Mr. Span that they were federal agents. Mr. Span allegedly hit Grotewold in the chest. Grotewold responded by pushing Mr. Span back and warning him that he had no business in the matter. Grotewold testified that he felt something at his waistband and thought that Mr. Span was trying to take the marshal's gun. Grotewold struck Mr. Span with his arm and told him that he was under arrest.
Marshal Dains attempted to handcuff Mr. Span. Meanwhile Darlene Span allegedly attacked Dains from behind and clawed at his face. Dains moved Ms. Span onto a car to make it easier to handcuff her. Ms. Span jumped down onto Dains' leg, causing a loud pop and a great deal of pain in his knee.
A witness at the scene called the local Phoenix police, and the officers helped arrest the Spans. Phoenix police then took the Spans to Maricopa County Jail for booking. Both marshals suffered injuries.
The Spans tell a different story, and presented testimony from two witnesses to support their version. The witnesses were customers of the Spans' building supply business. Both were near the fracas from the time it began.
Defense witnesses testified that Ms. Span greeted the officers politely and asked if she could help them. According to their testimony, the marshals did not identify themselves. Rather, the marshals simply asked Ms. Span if she recognized the man in the wanted flyer. Ms. Span purportedly told them that she had a brother named Mickey Michael, but that she had never seen the man in the wanted photo. Apparently, Ms. Span's brother is about 30 years younger than the man pictured on the flyer. The witnesses testified that Mr. Span also told the marshals that he had Defense witnesses testified that Marshal Dains ran up to Ms. Span as she walked away, grabbed her from behind by her pony-tail, locked his arm over her head, and dragged her in this manner into a fence. At the same time, Grotewold tackled Mr. Span from behind, and held him to the ground. According to defense testimony, the marshals held the Spans in painful "chokeholds" for about ten minutes until Phoenix police officer Bill Jenkins arrived.
never seen the man in the picture. According to defense testimony, the Spans handed the photo back to the marshals and attempted to return to their customers without at any time assaulting either Grotewold or Dains
After a five-day jury trial, the Spans were convicted of assaulting a federal officer in violation of 18 U.S.C. § 111. The Spans are presently released on their own recognizance.
The Spans assert that the trial court made several errors when instructing the jury on defenses to the charge of assaulting a federal officer under 18 U.S.C. § 111. First, the Spans contend that the district court erred by refusing to give their general self-defense instruction and giving Ninth Circuit Model Instruction 8.02B in its place. Second, the Spans contend that the district court erred by refusing to give an instruction on the right to resist an arrest not supported by probable cause. Third, the Spans contend that the district court improperly directed the jury to find that the marshals were acting in performance of official duties.
The Spans argue that the district court erred when it gave the Ninth Circuit model instruction on defenses to section 111 in place of the general self-defense instruction offered by the Spans. 2 According to their argument, Ninth Circuit Model Instruction 8.02B was given erroneously because it forecloses acquittal even in cases where a jury could find that a defendant used only reasonable force to repel excessive force used by federal law enforcement officers.
The district court gave the following modified version of Ninth Circuit Model Instruction 8.02B (West 1989):
The defendants have offered evidence of having acted in self-defense. It is a defense to the charge as to a particular defendant if (1) that defendant did not know that Garry Grotewold and David Dains were federal officers (2) that defendant reasonably believed that use of force was necessary to defend oneself against an immediate use of unlawful force and (3) that defendant used no more force than appeared reasonably necessary in the circumstances.
* * * * * *
In addition to proving all the elements of the crime beyond a reasonable doubt the government must also prove beyond a reasonable doubt either (1) that the defendants knew that Garry Grotewold and David Dains were federal officers or (2) that the defendants did not reasonably believe force was necessary to defend against an immediate use of unlawful force or (3) that the defendants used more force than appeared reasonably necessary in the circumstances.
(emphasis added).
This instruction correctly states an affirmative defense to section 111 that the Supreme Court set out in United States v. Feola, 420 U.S. 671, 684, 95 S.Ct. 1255, 1263-64, 43 L.Ed.2d 541 (1975). In Feola, the Supreme Court held that, in certain situations, knowledge of the officer's official status was not an element of the offense. Id. The Court added, however In Feola, the Court was not presented with a situation involving alleged use of excessive force by a federal law enforcement officer. The Spans argue that the model instruction based on Feola can actually preclude acquittal based on an excessive force theory of defense. We agree.
that "an honest mistake of fact [about the victim's identity as a federal officer] would not be consistent with criminal intent." Feola, 420 U.S. at 686, 95 S.Ct. at 1264.
According to the plain terms of the model instruction, the jury could not acquit the Spans on grounds of self-defense even if the jury: 1) believed that the exercise of force by Marshals Dains and Grotewold was unlawful because it was excessive, and 2) found that the Spans reasonably defended themselves from that unlawful exercise of force. The revised model instruction given by the district court allows the government to defeat an excessive force theory of defense merely by proof beyond a reasonable doubt that the defendant knew that the person that she allegedly assaulted was a federal law enforcement officer.
We agree with the Spans that the model instruction would be inappropriate in a case where a defendant's theory of the case is self-defense against the use of excessive force by a federal law enforcement officer. As the Spans point out, the model instruction requires the jury to reject this theory of defense as long as the government proves beyond a reasonable doubt that the defendant knew that the person she is charged with assaulting...
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