United States v. Britt

113 F. App'x 843

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 24, 2004
• Docket: No. 03-30582
• Status: Published

Opinion

MEMORANDUM

*

The relevant jury instruction, which the parties agreed upon and the government has not challenged on appeal, required the government to prove defendant used force in assaulting, intimidating and interfering with the postal worker. The instruction stated that a defendant uses force only when he “reasonably causes a person to fear immediate bodily harm.”

Having agreed to the instruction, the prosecutor was not entitled to argue that the government need not prove the worker’s state of mind. The district court therefore abused its discretion in overruling defendant’s objection to the prosecutor’s argument. See United States v. Etsitty, 130 F.3d 420, 424 (9th Cir.1998) (per curiam) (noting the appropriate standard of review). We are not convinced the error was harmless.

REVERSED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.