United States v. Ortiz

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
February 19, 2009
No. 08-50164
Summary Calendar Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

GERARDO FELIPE ORTIZ,

Defendant–Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-1153-ALL

Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Gerardo Felipe Ortiz appeals his conviction for assaulting a federal agent
with a deadly weapon, a pickup truck. Testimony established that Ortiz
attempted to run over a Border Patrol agent who was making an investigatory
stop in a store parking lot. Ortiz contends that the district court abused its
discretion by refusing to instruct the jury that he could not be convicted if there
were a reasonable doubt that he believed in good faith that he was being
assaulted by private persons.

*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
 No. 08-50164

The district court “is afforded substantial latitude in formulating [its]
instructions.” United States v. Rochester, 898 F.2d 971, 978 (5th Cir. 1990). A
refusal to give a requested instruction on a good faith defense “is not fatal when
the jury is given a detailed instruction on specific intent and the defendant had
the opportunity to argue good faith to the jury.” Id.
The district court instructed the jury that it could not convict Ortiz unless
the Government proved that he committed the act “knowingly” and not “because
of mistake or accident, or other innocent reason.” This instruction adequately
protected Ortiz by conveying the concept of a good faith defense to the jury. See
United States v. St. Gelais, 952 F.2d 90, 93-94 (5th Cir. 1992). Further, Ortiz
was allowed to argue to the jury that he had reason to believe that the agents
were robbers. This further put the concept of good faith adequately before the
jury. See id. at 94. In addition, the only evidence of good faith offered by Ortiz
was an FBI agent’s testimony on cross-examination that Ortiz told the agent the
day after the incident that he fled because he thought he was being robbed. This
was contrary to a considerable amount of testimony that the agents clearly
identified themselves.
The district court did not abuse its discretion by refusing to give a specific
good faith instruction. See id. The judgment of the district court is AFFIRMED.

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