FILED
NOT FOR PUBLICATION JUL 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10561
Plaintiff - Appellee, D.C. No. 4:09-cr-01164-DCB-
CRP-1
v.
JAIME MARTINEZ-GARCIA, AKA MEMORANDUM*
Jaime Martinez,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted July 9, 2013
San Francisco, California
Before: FERNANDEZ, PAEZ, and BERZON, Circuit Judges.
Jaime Martinez-Garcia appeals his conviction for two counts of assaulting a
federal officer, in violation of 18 U.S.C. § 111.
1. The district court did not err in concluding that Martinez-Garcia’s
confession was voluntary. See Doody v. Ryan, 649 F.3d 986, 1011 (9th Cir. 2011)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(en banc); United States v. Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003); United
States v. Kelley, 953 F.2d 562, 565 (9th Cir. 1992). This conclusion was supported
by the testimony of the discharging nurse and the interrogating agents regarding
Martinez-Garcia’s medication and pain levels at the time closest to the confession.
Conversely, Martinez-Garcia did not present any evidence that he was in pain or
disoriented at the time of his interrogation. The evidence that he did present,
regarding his condition several hours before, and more than 36 hours after the
interrogation, was not directly probative of his medication and pain levels at the
time he signed the Miranda waiver and confession. Moreover, the statement by the
interrogating officer of which Martinez-Garcia complains, even if misleading, is
insufficient to constitute coercion of the confession. See Amaya-Ruiz v. Stewart,
121 F.3d 486, 495 (9th Cir. 1997).
2. Given these same facts, the district court did not clearly err in concluding
that Martinez-Garcia knowingly and intelligently waived his Miranda rights,
“especially considering that he indicated that he understood his rights after they
were explained to him.” United States v. Bautista-Avila, 6 F.3d 1360, 1366 (9th
Cir. 1993).
3. Considered as a whole, the disputed jury instructions regarding Count 3
“fairly and adequately cover[ed] the issues presented.” United States v. Peppers,
2
697 F.3d 1217, 1220 (9th Cir. 2012) (per curiam). Unlike in the cases on which
Martinez-Garcia relies, the instructions did not “allow[] 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.” United States v. Span, 970 F.2d 573, 577 (9th Cir. 1992)
(Span I); see United States v. Span, 75 F.3d 1383, 1389 (9th Cir. 1996) (Span II).
Moreover, Span I emphasized that the problem with the instructions in that case
was that the defendants were not permitted to argue that they had used “reasonable
force to repel excessive force by a federal law enforcement officer.” 970 F.2d at
577 (emphasis added); see id. at 578 (noting the “right to offer reasonable
resistance to repel any excessive force”) (emphasis added); id. at 581. Nor has
Martinez-Garcia identified any way in which the instructions misstate the law of
self-defense, which requires that a defendant “reasonably believe force was
necessary” and that he “use[ no] more force than appear[s] reasonably necessary.”
See United States v. Keiser, 57 F.3d 847, 850–52, 857 (9th Cir. 1995).
As “the instructions fairly and adequately cover[ed] the issues presented,”
we review only for “abuse of discretion” the “district court’s formulation of the
jury instructions.” Peppers, 697 F.3d at 1220. Given the “substantial latitude”
3
accorded district courts in “in tailoring jury instructions,” the district court did not
abuse its discretion here. See Peppers, 697 F.3d at 1220.
4. There was not sufficient evidence from which the jury could have
concluded that Agent Rocha used excessive force. Martinez-Garcia was therefore
not entitled to a self-defense instruction on Count 2. See United States v. Spentz,
653 F.3d 815, 818 (9th Cir. 2011).
5. Sufficient evidence supported the district court’s decision to deny
Martinez-Garcia’s Rule 29 motion. United States v. Gonzalez-Diaz, 630 F.3d 1239,
1242 (9th Cir. 2011). Assuming, without deciding, that the government needed to
present testimony during its case-in-chief regarding what levels of force are
appropriate in response to particular situations, the government did just that.
AFFIRMED.
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