FILED
NOT FOR PUBLICATION APR 22 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10508
Plaintiff - Appellee, D.C. No. 4:12-cr-02296-DCB-
CRP-1
v.
MARIO OSORIO-COLA, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and submitted March 11, 2015
San Francisco, California
Before: CALLAHAN, M. SMITH, and WATFORD, Circuit Judges.
Defendant-Appellant Mario Osorio-Cola (“Osorio-Cola”) appeals his
conviction and sentence for assault on a federal officer under 18 U.S.C. § 111.
Because the parties are familiar with the facts and procedural history, we do not
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
restate them except as necessary to explain our decision. We have jurisdiction
under 28 U.S.C § 1291, and we affirm.
1. Where, as here, the defendant does not object at trial, we review for
plain error the district court’s failure to exclude the prosecution’s reference to a
defendant’s silence. United States v. Lopez-Martinez, 543 F.3d 509, 516 (9th Cir.
2008). A defendant’s right to maintain his post-arrest, post-Miranda silence under
Doyle v. Ohio, 426 U.S. 610 (1976), is triggered by “(1) a defendant’s invocation
of his right to remain silent and (2) an omission in post-Miranda statements
arguably inconsistent with his trial testimony.” United States v. Ramirez-Estrada,
749 F.3d 1129, 1134 (9th Cir. 2014) (citation omitted). Even if Osorio-Cola did
invoke his right to remain silent, and it is not clear on this record that he did, any
resulting Doyle error did not amount to plain error. Osorio-Cola was able to testify
as to his version of the event, which did not turn on the credibility of his claim that
Agent McNeil struck him in the head. It instead turned on the credibility of
Osorio-Cola’s claim that he himself had never used force in the encounter. The
jury then credited his testimony at least in part and discounted the testimony of the
government witnesses when it acquitted him on all three counts of the indictment
and convicted him only of a lesser-included offense. On this record, Osorio-Cola
has not met his burden of showing that the alleged Doyle violation “materially
2
affected the verdict.” United States v. Anguiano, 873 F.2d 1314, 1319 (9th Cir.
1989).
2. We review for abuse of discretion the denial of a defendant’s
requested jury instruction due to an inadequate factual basis. United States v.
Daane, 475 F.3d 1114, 1119 (9th Cir. 2007). Where a party does not object at
trial, we review the district court’s formulation of the jury instruction for plain
error. United States v. Ruiz, 462 F.3d 1082, 1087 (9th Cir. 2006).
In light of Osorio-Cola’s own testimony that he did not use any force against
the federal agent and did not fight back, even to protect himself, the district court
did not abuse its discretion in determining that there was no factual basis for a self-
defense instruction, much less plainly err. The district court did not plainly err in
instructing the jury that officers acting in the good faith performance of their duties
may not be forcibly resisted because we approved a virtually identical instruction
in United States v. Span, 970 F.2d 573, 580–81 (9th Cir. 1992).
3. A lesser-included offense instruction may be given to the jury if 1)
“the elements of the lesser offense are a subset of the elements of the charged
offense” and 2) “the evidence would permit a jury rationally to find [Osorio-Cola]
guilty of the lesser offense and acquit [him] of the greater.” United States v.
Rivera-Alonzo, 584 F.3d 829, 832 (9th Cir. 2009) (citations omitted). We review
3
the district court’s determination on the first step de novo and its determination on
the second step for abuse of discretion. United States v. Arnt, 474 F.3d 1159, 1163
(9th Cir. 2007) (citations omitted).
To prove assault under 18 U.S.C. § 111(b), the government must show that
the defendant committed assault under § 111(a) and also either 1) used a deadly or
dangerous weapon or 2) inflicted bodily injury. Thus, the elements of assault
involving physical contact are a subset of assault resulting in bodily injury.
Moreover, given the evidence in the record, the district court did not abuse its
discretion in holding that a juror could determine that the federal agent’s injuries
were caused when he fell down the mountain, rather than due to any assault by
Osorio-Cola.
AFFIRMED.
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