USA v. Ronald Pepper

Filing

FILED PER CURIAM OPINION (SUSAN H. BLACK, SUSAN P. GRABER and JOHNNIE B. RAWLINSON) AFFIRMED. FILED AND ENTERED JUDGMENT. [8363732]

Case: 11-30322

10/17/2012

ID: 8363732

DktEntry: 17-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RONALD CHARLES PEPPERS,
Defendant-Appellant.





No. 11-30322
D.C. No.
4:11-cr-00042SEH-1
OPINION

Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
August 7, 2012—Seattle, Washington
Filed October 17, 2012
Before: Susan H. Black,* Susan P. Graber, and
Johnnie B. Rawlinson, Circuit Judges.
Per Curiam Opinion

*The Honorable Susan H. Black, United States Senior Circuit Judge for
the Eleventh Circuit, sitting by designation.

12575

Page: 1 of 6

Case: 11-30322

10/17/2012

ID: 8363732

UNITED STATES v. PEPPERS

DktEntry: 17-1

12577

COUNSEL
R. Henry Branom, Jr., Assistant Federal Defender, Federal
Defenders of Montana, Great Falls, Montana, for the
defendant-appellant.
Jessica A. Betley, Assistant United States Attorney, United
States Attorney’s Office, Great Falls, Montana, for the
plaintiff-appellee.

OPINION
PER CURIAM:
Ronald Charles Peppers appeals his conviction for assaulting a federal officer, in violation of 18 U.S.C. § 111(a)(1). We
affirm.
BACKGROUND
On October 17, 2010, Special Agent Brian Kimball of the
Federal Bureau of Investigation and several other law
enforcement officers attempted to apprehend Peppers at the
residence of his mother, Roberta Arnoux. Earlier that day,
Arnoux had informed the officers that Peppers was asleep in
her trailer home but warned that she kept an unloaded shotgun
under her bed.
Around midnight, the officers entered Arnoux’s darkened
trailer and found Peppers sleeping on a couch. As the officers
attempted to apprehend Peppers, a struggle ensued, during
which Peppers bit Special Agent Kimball’s arm. The officers
placed Peppers under arrest shortly thereafter.
Following an indictment, Peppers proceeded to trial on one
count of being a felon in possession of a firearm, which was

Page: 2 of 6

Case: 11-30322

10/17/2012

12578

ID: 8363732

DktEntry: 17-1

UNITED STATES v. PEPPERS

dismissed at the close of the government’s case-in-chief, and
one count of assault on a federal officer. At trial, Peppers testified in his own defense, claiming that at the time of his
arrest, he believed he was resisting violent attackers, not law
enforcement officers, who had entered his mother’s trailer.
Peppers maintained that he had not become aware that the
intruders were actually law enforcement officers because,
among other things, he could not see anything in the darkened
trailer and could not hear officers identifying themselves due
to the general commotion associated with his arrest.
After the close of evidence, the district court distributed its
proposed jury instructions, which stated in relevant part:
In order for the defendant to be found guilty of
assault on a federal officer as charged in the indictment, the government must prove each of the following elements beyond a reasonable doubt:
Fi[r]st, the defendant forcibly assaulted [an] FBI
Agent — FBI Special Agent Brian Kimball;
Second, the defendant did so while FBI Special
Agent Brian Kimball was engaged in or on account
of his official duties;
Third, the defendant made physical contact with
FBI Special Agent Brian Kimball; and,
Fourth, either, one, the defendant knew that FBI
Special Agent Brian Kimball was a federal officer;
or the defendant did not reasonably believe force
was necessary to defend against an immediate use of
unlawful force; or, three, the defendant used more
force than appeared reasonably necessary in the circumstances.

Page: 3 of 6

Case: 11-30322

10/17/2012

ID: 8363732

DktEntry: 17-1

UNITED STATES v. PEPPERS

12579

Forcible assault occurs when one person intentionally strikes another or willfully attempts to inflict
injury on another.
Use of force is justified if, one, the defendant did
not know that FBI Special Agent Brian Kimball was
a federal officer; two, the defendant reasonably
believed that the use of force was necessary to
defend himself against an immediate use of unlawful
force; and three, the defendant used no more force
than appeared reasonably necessary in the circumstances.
Force which is 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.
Peppers objected to the proposed instructions and requested
that the district court follow the Ninth Circuit pattern instructions by issuing “separate instructions” for the offense elements and the issue of self-defense.1 The district court,
overruling Peppers’ objection, issued its proposed jury
instructions. After the parties’ closing arguments, the jury
found Peppers guilty on one count of assault on a federal officer. Peppers timely appeals.
STANDARD OF REVIEW
We review “de novo whether the district court’s instructions adequately presented the defendant’s theory of the
case.” United States v. Knapp, 120 F.3d 928, 930 (9th Cir.
1997). Whether the instructions accurately stated the burden
1

This circuit’s model instructions cover the elements of assault on a federal officer and self-defense in two separate instructions. See 9th Cir.
Crim. Jury Instr. 8.3 & 8.5 (2010).

Page: 4 of 6

Case: 11-30322

10/17/2012

12580

ID: 8363732

DktEntry: 17-1

UNITED STATES v. PEPPERS

of proof is also subject to de novo review. United States v.
McKittrick, 142 F.3d 1170, 1177 (9th Cir. 1998). If the
instructions “fairly and adequately cover the issues presented,” the district court “is given substantial latitude in tailoring jury instructions.” United States v. Powell, 955 F.2d
1206, 1210 (9th Cir. 1992) (internal quotation marks omitted).
Thus, “[a] district court’s formulation of the jury instruction
is reviewed for abuse of discretion.” Du v. Allstate Ins. Co.,
681 F.3d 1118, 1122 (9th Cir. 2012) (internal quotation marks
omitted).
DISCUSSION
Peppers argues that his conviction should be reversed
because the district court’s jury instructions failed to inform
the jury adequately that the government bore the burden of
proving beyond a reasonable doubt that he did not act in selfdefense. The jury instructions stated that the government had
to prove beyond a reasonable doubt:
either, one, the defendant knew that FBI Special
Agent Brian Kimball was a federal officer; or the
defendant did not reasonably believe force was necessary to defend against an immediate use of unlawful force; or, three, the defendant used more force
than appeared reasonably necessary in the circumstances.
[1] Peppers does not contend that the jury instructions
inaccurately stated the government’s burden of proof on the
issue of self-defense. He nonetheless claims that our opinion
in United States v. Pierre, 254 F.3d 872, 876 (9th Cir. 2001),
mandates reversal of his conviction. The jury instructions
challenged in Pierre are distinguishable, however, because
they lacked any instruction regarding the burden of proof on
the issue of whether the defendant reasonably believed that
force was necessary to defend himself.2 Id. We reversed the
2

There, the district court issued an instruction informing the jury that the
defendant’s use of force was justified if the defendant: (1) reasonably

Page: 5 of 6

Case: 11-30322

10/17/2012

ID: 8363732

UNITED STATES v. PEPPERS

DktEntry: 17-1

12581

defendant’s conviction because the jury instructions never
informed the jury that the government bore the burden of
proof on the entire self-defense claim. Id. In contrast, the jury
instructions in this case correctly stated the government’s burden of proof on the entire issue of self-defense. Accordingly,
Peppers’ reliance on Pierre is misplaced.
[2] In a related argument, Peppers challenges the district
court’s “construction” of the jury instructions. He contends
that the district court de-emphasized or downplayed the government’s burden of proof on the issue of self-defense by
framing the absence of self-defense as an element of the
charged offense in the jury instructions. Although the preferred practice is for district courts, where possible, to follow
the model instructions and avoid unnecessary disputes like
this one, “a district court has substantial latitude to tailor jury
instructions.” United States v. Marsh, 26 F.3d 1496, 1502 (9th
Cir. 1994). We find no abuse of discretion in this case requiring reversal of Peppers’ conviction.3
AFFIRMED.
believed that force was necessary to defend himself against the immediate
use of unlawful force, and (2) used no more force than appeared reasonably necessary under the circumstances. Pierre, 254 F.3d at 874. In its
attempt to instruct the jury on the government’s burden of proof, however,
the district court stated only that the government had to prove beyond a
reasonable doubt that “the defendant used more force than was reasonably
necessary in the circumstances.” Id. (emphasis omitted).
3
“[A]n error in criminal jury instructions requires reversal unless there
is no reasonable possibility that the error materially affected the verdict or,
in other words, that the error was harmless beyond a reasonable doubt.”
Pierre, 254 F.3d at 877 (internal quotation marks omitted). To the extent
Peppers argues the district court misstated the elements of the charged
offense by presenting the absence of self-defense as an offense element,
that error was harmless. There is no reasonable possibility that the inclusion of the lack of self-defense as an offense element requiring proof
beyond a reasonable doubt from the government materially affected the
jury’s guilty verdict.

Page: 6 of 6