FILED
NOT FOR PUBLICATION MAY 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10403
Plaintiff - Appellee, D.C. No. 4:10-cr-00914-FRZ-
JCG-2
v.
PANCHO JOSEPH GARCIA, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, Senior District Judge, Presiding
Argued and Submitted May 6, 2013
San Francisco, California
Before: W. FLETCHER, GOULD, and CHRISTEN, Circuit Judges.
Defendant-Appellant Pancho Garcia challenges his convictions in violation
of 18 U.S.C. § 1153(a) (offenses committed within Indian country) for two counts
of Assault with a Dangerous Weapon with Intent to do Bodily Harm under 18
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C. § 113(a)(3) and one count of Use of a Firearm During and in Relation to a
Crime of Violence under 18 U.S.C. § 924(c)(1)(A)(iii). Garcia challenges the
admission of law enforcement expert testimony, the sufficiency of the evidence,
the denial of justification and mistake jury instructions, and the imposition of the §
924(c) sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
a. Expert Testimony
Garcia challenges the admission of law enforcement expert testimony as
irrelevant. We review a district court’s decision to admit or exclude evidence for
abuse of discretion. United States v. Edwards, 235 F.3d 1173, 1178 (9th Cir.
2000); see also United States v. Redlightning, 624 F.3d 1090, 1110 (9th Cir. 2010)
(citing United States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir. 2009) (en banc)).
We only find that a district court abused its discretion if, despite applying the
correct legal rule, the district court’s application of the rule was illogical,
implausible, or without support in inferences that may be drawn from facts in the
record. Redlightning, 624 F.3d at 1110. And we may only reverse for an abuse of
discretion where such a nonconstitutional error more likely than not affected the
verdict. Edwards, 235 F.3d at 1178. Here, any error in admitting the expert
testimony on typical burglaries was harmless.
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b. Sufficiency of the Evidence
Garcia claims there was insufficient evidence for the jury to find that he
intended to harm the victims. We review de novo the denial of a Rule 29 motion
for acquittal. United States v. Riggins, 40 F.3d 1055, 1057 (9th Cir. 1994). “There
is sufficient evidence to support a conviction if, reviewing the evidence in the light
most favorable to the Government, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” United States v.
Lopez-Patino, 391 F.3d 1034, 1038 (9th Cir. 2004) (quoting United States v.
Hernandez, 105 F.3d 1330, 1332 (9th Cir. 1997)). Evidence at trial, including
Garcia’s testimony that he fired a gun at the car in which the victims were riding,
provided a sufficient basis for the jury to convict Garcia.
c. Jury Instructions
Garcia challenges the district court’s refusal to give his requested
justification and mistake-of-fact jury instructions. We review the denial of a
proposed jury instruction for an abuse of discretion. United States v. Heredia, 483
F.3d 913, 921 (9th Cir. 2007). Garcia was not entitled to a justification instruction
because he can provide no legal rule that would justify his conduct. Garcia was not
entitled to a mistake-of-fact instruction because none of the alleged mistakes of
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fact negated his culpability; even if the facts had been as he claimed to believe,
Garcia still could have been found guilty of the offense.
d. Double Jeopardy
Because Garcia did not object below, we review for plain error. United
States v. Zalapa, 509 F.3d 1060, 1064 (9th Cir. 2007). Garcia’s double jeopardy
argument fails because Sections 924(c)(1)(A)(iii) and 113(a)(3) each require proof
of at least one fact that the other does not. See United States v. Gonzalez, 800 F.2d
895, 897-98 (9th Cir. 1986). Garcia’s legislative intent argument fails. See S. Rep.
No. 98-225, at 313 n.8 (1984).
AFFIRMED.
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