United States v. Brian Wright

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 2021
• Docket: 19-10137
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 15 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10137

Plaintiff-Appellee, D.C. Nos. 17-CR-00142-JAD-VCF v.

BRIAN KEITH WRIGHT, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding

Submitted July 8, 2021** San Francisco, California

Before: GRABER and LEE, Circuit Judges, and VRATIL,*** District Judge.

Defendant Brian Keith Wright appeals his convictions for felony assault on a

federal officer or employee with a dangerous weapon, 18 U.S.C. § 111(a)(1) and (b),

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 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 Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by designation. and felony assault on a federal officer or employee with intent to commit another

felony, 18 U.S.C. § 111(a)(1). On appeal, Defendant challenges the constitutionality

of 18 U.S.C. § 111, the “quasi-expert” testimony of law enforcement officers, the

jury instructions and the district court’s denial of his motion for judgment of

acquittal. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. We review de novo Defendant’s claim that 18 U.S.C. § 111 is

unconstitutionally vague and overbroad because, as defined in 18 U.S.C. § 1114, a

“federal officer or employee” could hypothetically include private citizens assisting

a federal officer or employee. United States v. Zhi Yong Guo, 634 F.3d 1119, 1121

(9th Cir. 2011). As the district court noted, Defendant neither asserts an as-applied

challenge nor disputes that his “attempted vehicular flight from a home surrounded

by warrant-executing, federal law-enforcement officers and their vehicles squarely

and fairly falls within the statutorily pr[o]scribed conduct.” Ordinarily, “a litigant

whose conduct is clearly prohibited by a statute cannot be the one to make a facial

vagueness challenge.” Kashem v. Barr, 941 F.3d 358, 376 (9th Cir. 2019). Here,

Defendant has not shown “exceptional circumstances” which would permit him to

assert a facial challenge to 18 U.S.C. § 111. Id. at 377. Therefore, we reject his

constitutional challenge.

2. Because Defendant did not object to the testimony of law enforcement

officers about their perception of his conduct, we review the district court’s

2 admission of such testimony for plain error. United States v. Lloyd, 807 F.3d 1128,

1152 (9th Cir. 2015).

At trial, law enforcement officers testified that (1) until Defendant got out of

his vehicle, he was a threat to officer safety, (2) it appeared that Defendant knew that

an officer’s car was parked outside the garage door and that he was attempting to

flee and (3) it appeared that Defendant was going to use his car as a weapon, ram

through the officer’s car and flee. Even though the prosecutor prefaced some

questions with “based on your training and experience,” the testimony falls within

the scope of proper lay witness testimony. See Fed. R. Evid. 701 (lay witness

opinion testimony limited to opinion “rationally based on the witness’s perception,”

“helpful to clearly understanding the witness’s testimony or to determining a fact in

issue;” and “not based on scientific, technical, or other specialized knowledge”).

Defendant has not shown that the district court committed plain error in admitting

the testimony about how law enforcement officers perceived his conduct. See

United States v. Gadson, 763 F.3d 1189, 1213 (9th Cir. 2014) (“Because the

distinction between lay and expert testimony in this context is a fine one, we do not

fault the district court for failing to intervene sua sponte.” (internal quotation marks

and citation omitted)).

3. We review de novo whether the jury instructions accurately stated the

elements of a statutory crime. United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir.

3 2010).

Defendant argues that his felony convictions should be vacated because the

jury instructions erroneously omitted a requirement that the jury find that he had

“threatened the use of violent physical force.” Defendant ignores the fact that while

Count 1 required proof that he used a “dangerous weapon,” 18 U.S.C. § 111(b), the

statutory language of 18 U.S.C. § 111 does not use the terms “violence” or “violent

physical force.” On both counts, the district court correctly instructed that the

government had to show that Defendant “forcibly assault[ed]” a federal officer or

employee. 18 U.S.C. § 111. The instructions accurately defined a forcible assault

as including “when one person intentionally strikes another, or willfully attempts to

inflict injury on another, or intentionally threatens another coupled with an apparent

ability to inflict injury on another which causes a reasonable apprehension of

immediate bodily harm.” See 9th Cir. Model Crim. Jury Instr. 8.3 & 8.4 (2010).

Contrary to Defendant’s suggestion, even if one or both of the charged felonies

constitute a “crime of violence” or “violent felony” for other purposes, the jury

instructions need not use the word “violent” in defining forcible assault. See 9th Cir.

Model Crim. Jury Instr. 8.3 & 8.4 (2010); see also United States v. Dominguez-

Maroyoqui, 748 F.3d 918, 920–21 (9th Cir. 2014) (“The § 111(a) felony does not

require proof, as a necessary element, that the defendant used, attempted to use, or

threatened to use physical force as defined in” Johnson v. United States, 559 U.S.

4 133 (2010)). Defendant has not shown any error in the jury instructions.

4. At the close of the government’s case and after the jury returned a

verdict, Defendant moved under Federal Rule of Criminal Procedure 29 for

judgment of acquittal based on insufficiency of the evidence. We review de novo

the district court’s denial of Defendant’s motion. United States v. Gagarin, 950 F.3d

596, 602 (9th Cir. 2020), cert. denied, 2021 WL 2302020 (U.S. June 7, 2021).

Defendant argues that the evidence was insufficient to show that he intended

to threaten a law enforcement officer. The government presented evidence that

Defendant was going to “use the car as a weapon to try to get [out of] there at really

any costs” and was prepared to ram through the officer’s car to escape and to flee

“with no regard for [the officer’s] safety.” Based on this testimony, a rational jury

could have concluded beyond a reasonable doubt that he intended to threaten the law

enforcement officer standing near the car.

5. Because Defendant has not shown any error, his claim of cumulative

error also fails. United States v. Audette, 923 F.3d 1227, 1241 (9th Cir. 2019).

AFFIRMED.