dissenting.
As noted by the majority, a trial court does not abuse its discretion when it denies an *1407instruction as to a lesser included offense when there is no evidence upon which a reasonable jury could find the defendant guilty of that lesser offense. See United States v. Chapman, 615 F.2d 1294, 1298 (10th Cir.1980). What’s more, “[o]nly when an appellate court is convinced that the evidence issues are such that a rational jury could acquit on the charged crime but convict on the lesser crime may the denial of a lesser included offense charge be reversed.” U.S. v. Moore, 108 F.3d 270, 272 (10th Cir.1997) (citing Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973)) (emphasis in original). In reviewing the denial of a jury instruction, “we must give full credence to [the] defendant’s testimony.” United States v. Smith, 63 F.3d 956, 965 (10th Cir.1995). Because my review of the record reveals evidence upon which a reasonable jury could have found Defendant Hatatley guilty of the lesser included offense of involuntary manslaughter, yet not guilty of the offense of voluntary manslaughter, I conclude that the district court erred in refusing to give an instruction on involuntary manslaughter to the jury.
I first emphasize that in this case the Government explicitly chose not to charge Defendant with aiding and abetting in the killing of Kee Smith. In making this tactical move the Government undertook to hold Defendant accountable only for his own actions and accepted the burden of proving beyond a reasonable doubt not only that Defendant’s actions caused the death of Kee Smith, but also that those causative actions meet the statutory requirements of voluntary manslaughter.
In order for the jury to find Defendant guilty of involuntary manslaughter, but not voluntary manslaughter, the evidence would have to be such that it would have been possible for the jury reasonably to conclude that Defendant killed Smith by “the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.” 18 U.S.C. § 1112(a) (1984). Based upon this record, there is at least one way in which the jury could have made such a determination.
On the evidentiary record before it, the jury could have found that Defendant caused Smith’s death while performing a lawful act, namely self-defense, in an unlawful manner. A killing done in self-defense but by use of excessive force qualifies as involuntary manslaughter. See United States v. Begay, 833 F.2d 900, 901-03 (10th Cir.1987) (holding that where evidence is present that killing was done in self-defense but force used was criminally negligent, instruction on involuntary manslaughter is proper). The majority admits that Smith’s beating of Defendant at the hogan could have been lawful, in that it was arguably done in self-defense. The majority goes on to say that even assuming the lawfulness of Defendant’s actions in front of the hogan, because the evidence shows that Defendant further beat Smith in the car and in the wash, he “clearly entered the realm of unlawfulness.” This statement ignores the possibility that the jury could have found (a) Defendant’s lawful act in front of the hogan (self-defense), performed in an unlawful manner (excessive force amounting to criminal negligence), caused all of the serious bodily injury that lead to Smith’s death and (b) Defendant’s subsequent unlawful assault of Smith in the car and in the wash either did not cause Smith’s death or did not cause serious bodily injury to Smith and thus did not rise to the level of felonious assault.
The record strongly suggests that it was Smith who initiated the fight with Defendant at the hogan. Witness Marie Tsosie testified that Smith was looking for a fight and that Smith hit Defendant first. (See Tr. Rec. Aug. 12 at 779, 795-96.) Defendant told officials that someone jerked him out of a car and began hitting him, at which point Defendant began to fight back. (See Tr. Rec. Aug. 13 at 890.) Defendant also told officials that he kicked Smith out of anger because Smith had hit him first. (See Tr. Rec. at 901.) Until Benally entered the fray, the record suggests that Defendant was in the process of receiving a severe beating from Smith. *1408(See id. at 961-62.) Thus, the jury could reasonably have found that the blows Defendant administered to Smith during that altercation were undertaken in self-defense, albeit with unlawfully excessive force.
The majority asserts that the fight outside the hogan resulted in only minor injuries to the Defendant. However, that views the evidence most favorable to the Government. When evaluating whether a lesser included charge should be submitted to the jury, we have to ask whether there was evidence upon which that charge could be predicated. Here, there certainly was evidence upon which a jury could conclude that the fatal injuries were administered at the hogan during the stomping of Defendant. Indeed, his fatal injuries were internal and not inconsistent even with Marie Tsosie’s testimony.
The record is not clear as to the severity of the blows, if any, delivered by Defendant to Smith in the ear and in the wash. Hair that had been yanked from Smith’s head was found in Benally’s car, but the record is not clear whether Benally or Defendant was responsible for that. (See Tr. Rec. Aug. 9 at 543.) Benally and Defendant told investigators that there was some fighting between Smith and Defendant both in the car and in the wash, but the record is equivocal as to the severity of the fighting and the relative degrees of Benally’s and Defendant’s participation in that fighting. (See Tr. Rec. Aug. 13 at 900, 972.) Even though Defendant’s lawful act of self-defense may have terminated at the point when he and Benally placed Smith in Benally’s car, the jury could easily have found on this record that all of the serious bodily injury leading to Smith’s ultimate death had been done to Smith at the hogan and that none of the blows applied to Smith’s person after that were of a nature to result in serious bodily injury or to cause Smith’s death. In short, the jury could have found that after Smith’s beating at the hogan his demise was a foregone conclusion, and that nothing that happened afterward affected or accelerated Smith’s fate — e.g. that Smith received the ruptured liver and head hematoma injuries during the fight at the hogan and that those injuries caused his death. In this way the jury could have found that Defendant caused Smith’s death during the performance of the lawful act of self-defense done with unlawfully excessive force. Thus, I conclude that Defendant was entitled to an involuntary manslaughter instruction.
For the above reasons, I conclude that it was reversible error for the district court to deny Defendant’s requested jury instruction on involuntary manslaughter. Accordingly, I respectfully DISSENT.