U.S. v. Streit

• Decision Date: 19 May 1992
• Docket Number: No. 90-10509,90-10509
• Citation: 962 F.2d 894
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Allen L. STREIT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 894

962 F.2d 894

UNITED STATES of America, Plaintiff-Appellee, v. Allen L. STREIT, Defendant-Appellant.

No. 90-10509.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 7, 1991.

Decided April 23, 1992.

As Amended May 19, 1992.

Stanley M. Slonaker, Phoenix, Ariz., for defendant-appellant.

Linda C. Boone, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee.

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

Before: GOODWIN, NORRIS, and THOMPSON, Circuit Judges.

GOODWIN, Circuit Judge:

Allen L. Streit appeals his sentence under the Sentencing Guidelines and his conviction, following a jury trial, for assault on a federal officer and for using or carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 111, 1114, and 924(c). We affirm Streit's conviction but vacate his sentence and remand to the district court for resentencing.

I. BACKGROUND

A. Facts

On January 24, 1989, FBI Agents J. David English and Anthony E. Oldham, working for the FBI's fugitive detail, attempted to arrest Streit in Peoria, Arizona. The agents observed Streit leave his father's house with a female companion, Dana Jensen, and head toward a Subaru parked in front of the house. English and Oldham drove to a spot approximately 15-20 feet behind the Subaru. The agents got out and approached Streit and Jensen, who were standing at the rear of the Subaru. English identified himself and ordered Streit to freeze. Oldham testified that when he got out of the car he also yelled "FBI."

Streit then got into the Subaru. Oldham followed with his gun drawn and entered the car on the passenger side. English opened the driver's side door and tried to restrain Streit. Streit started the car and began driving away. A violent struggle ensued, during which Streit obtained Oldham's revolver. Both Oldham and English fought with Streit to gain control of the gun. Streit bit English's thumb so hard that he crushed the bone. Both agents then lost their grip on the gun. English drew his own revolver and retreated behind the corner of a house across the street. Oldham and Streit continued to struggle. At one point, Streit bit Oldham's thumb severely. Streit regained control of the gun and pointed it at Oldham a short distance away. Streit then noticed English across the street and pointed the gun at him as well. English heard gunshots and fired five times at Streit, who fell to the ground with a self-inflicted gunshot wound. Uniformed officers from the Peoria police department soon arrived and ordered Streit to put down his weapon. Streit alternated between pointing the gun at the officers and at himself. Detective Mike Tellef, a hostage negotiator from the Peoria police department, spent over three hours talking Streit into unloading the gun and surrendering.

B. Proceedings Below

Counts I and II of the indictment charged Streit with violations of 18 U.S.C. §§ 111 and 1114, assault on a federal officer with a dangerous weapon, for his actions against agents English and Oldham, respectively. Counts III and IV charged Streit with violations of 18 U.S.C. § 924(c), using or carrying a firearm during a crime of violence, in relation to his commission of the offenses alleged in Counts I and II.

Streit was tried before a jury in June 1990. At the conclusion of the evidence, Streit requested and received a jury instruction on the lesser included offense of assault on a federal officer without a dangerous weapon. The jury convicted Streit on Count IV and on the lesser included assault offenses with respect to Counts I and II.

The district court sentenced Streit to consecutive three-year prison terms on Counts I and II, a statutory minimum five-year prison term on Count IV to be served consecutive to the assault sentences, three years of supervised release, and a $150 special assessment. Streit timely appealed. Subsequently, Streit filed a motion requesting the unsealing of FBI reports that had been submitted to the court in camera by the government. The motion was denied and Streit appealed.

II. ISSUES ON APPEAL

Streit argues (1) that the trial court erred by refusing to give a requested self-defense instruction and by failing to instruct the jury that Streit's use or carrying of a revolver must have occurred during or in relation to the assault; (2) that the indictment was constructively amended; (3) that the trial court improperly sealed certain FBI reports and denied discovery to the defense; and (4) that the district court erred in departing upward from the Sentencing Guidelines' presumptive range based on the aggravating circumstance of physical injury and on the inadequacy of Streit's criminal history category.

III. JURY INSTRUCTIONS

This circuit has not resolved the question whether a district court's denial of a proposed jury instruction is reviewed for errors of law, sometimes characterized as "de novo," or for an abuse of discretion. See United States v. Sotelo-Murillo, 887 F.2d 176, 179 (9th Cir.1989) (collecting cases); United States v. Davis, 876 F.2d 71, 72 (9th Cir.) (per curiam) (same), cert. denied, 493 U.S. 866, 110 S.Ct. 188, 107 L.Ed.2d 143 (1989). It is not necessary to resolve this issue on the present appeal, however, because the result would be the same under either standard.

An assertion that the trial court's instructions to the jury misstated the elements of the crime does present a question of law subject to de novo review. See United States v. Terry, 911 F.2d 272, 279 (9th Cir.1990). The trial court's formulation of the instructions and choice of language, however, is reviewed for an abuse of discretion. See United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir.1985); see also United States v. Belgard, 894 F.2d 1092, 1095 (9th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 164, 112 L.Ed.2d 129 (1990).

A. The Requested Self-Defense Instruction

Streit argues that the trial court erred in failing to instruct the jury on self-defense. A criminal defendant is entitled to a jury instruction on any theory "which provides a legal defense to the charge against him and which has some foundation in the evidence, even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility." United States v. Yarbrough, 852 F.2d 1522, 1541 (9th Cir.), cert. denied, 488 U.S. 866, 109 S.Ct. 171, 102 L.Ed.2d 140 (1988). A trial judge must instruct the jury on self-defense "if there is evidence upon which the jury could rationally sustain the defense." United States v. Jackson, 726 F.2d 1466, 1468 (9th Cir.1984). The "merest scintilla of evidence," however, will not suffice. Id.

The district court concluded that Streit was not entitled to an instruction on self-defense because there was not sufficient evidence in the record to support Streit's theory that he did not hear the FBI agents identify themselves and did not realize that the men he was struggling with were law enforcement officers. We agree.

Streit first suggests that there is no evidence to indicate that he was aware of the official status of Agents Oldham and English. The record contains ample evidence indicating that the men clearly identified themselves as FBI agents and that Streit was aware of their official status. Streit concedes that Dana Jensen, who was standing near Streit when the agents arrived, heard English and Oldham yell "FBI, freeze" as they approached Streit's car. During the standoff with Peoria police officers, Streit indicated that he was aware of the agents' official status when he referred to the gun he was wielding as a "police gun."

The only evidence in the record that might tend to support Streit's self-defense theory is Dana Jensen's testimony that Streit was getting into his car when she heard the initial FBI identification, and the statement, contained in Detective Tellef's police report, that Streit asked, "That is what they yelled at me?" after he heard one of the Peoria police officers mention the FBI. This evidence is simply not enough to justify a self-defense instruction. The fact that Streit was getting into his car when the agents yelled "FBI, freeze" from a distance of approximately 20 feet does not tend to prove that Streit was unable to hear the identification which Jensen heard clearly. Likewise, Streit's statement to Detective Tellef does not indicate that Streit was unaware that Agents Oldham and English were law enforcement officers. The statement suggests only that Streit was uncertain about which law enforcement agency the men worked for, and at best constitutes only a "scintilla" of evidence in support of Streit's self-defense theory. See Jackson, 726 F.2d at 1468. ¹

Relying on United States v. Gometz, 879 F.2d 256 (7th Cir.1989), cert. denied, 493 U.S. 1033, 110 S.Ct. 752, 107 L.Ed.2d 768 (1990), Streit next argues that he was entitled to a self-defense instruction even if he knew Oldham and English were FBI agents because he was resisting an unreasonable use of force by the agents. Streit's reliance on Gometz is misplaced. Gometz was charged with assaulting a federal officer while he was an inmate in prison. In contrast to the present case, the defendant in Gometz presented testimony from other inmates as to the abuse he suffered at the hands of prison officials. See 879 F.2d at 258. In the present case, Streit has presented no evidence to support his argument that the FBI agents employed unjustifiable force in their attempt to arrest Streit. Once the agents had identified themselves and Streit had attempted to flee, the agents were justified in using force in an attempt to restrain Streit.

B. The "Use or Carry" Instruction

Streit also argues that the trial court erred in failing to instruct the jury that to convict on Count IV it must find that Streit carried a firearm "in relation to" his commission of the lesser included offense in Count II. Because Streit contends that the district court failed to explain adequately an essential element...