                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAR 20 2019
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    17-10421

              Plaintiff-Appellee,                DC No. CR 16-0014 GEB

 v.
                                                 MEMORANDUM*
WILLIE JAMES McNEAL,

              Defendant-Appellant.


                   Appeal from the United States District Court
                       for the Eastern District of California
                  Garland E. Burrell, Jr., District Judge, Presiding

                            Submitted March 14, 2019**
                             San Francisco, California

Before:      WALLACE, TASHIMA, and McKEOWN, Circuit Judges.

      Defendant Willie James McNeal (“McNeal”) appeals from his conviction for

assault resulting in serious bodily injury under 18 U.S.C. § 113(a)(6). The assault

occurred in a prison setting. He contends that the district court erroneously denied


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
his motion in limine to present evidence of self defense and requesting a self

defense jury instruction, and erroneously excluded portions of McNeal’s testimony

as well as McNeal’s proffered expert at trial. McNeal argued that the victim had

previously threatened McNeal at least twice and that, immediately prior to the

attack, McNeal realized that the victim was leading McNeal to an ambush in the

laundry room where the victim and his friends would beat up McNeal. Because of

these threats and the imminent ambush, McNeal argued that he had to

preemptively attack the victim to protect himself.

      Where, as here, the district court’s ruling on the motion in limine precludes

the presentation of a defense, we review de novo. See United States v. Biggs, 441

F.3d 1069, 1070 n.1 (9th Cir. 2006). We review for abuse of discretion a district

court’s evidentiary rulings, Obrey v. Johnson, 400 F.3d 691, 694 (9th Cir. 2005),

and rulings on the admissibility of expert testimony, United States v. Castaneda,

94 F.3d 592, 595 (9th Cir. 1996). We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

      1.     The district court was correct to deny McNeal’s motion in limine

because McNeal could not demonstrate that he had “a reasonable belief that the use

of force was necessary to defend himself or another against the immediate use of

unlawful force.” Biggs, 441 F.3d at 1071; see also United States v. Glaeser, 550


                                          2
F.2d 483, 487 (9th Cir. 1977) (holding that a defendant must make out a prima

facie case in order to present evidence of an affirmative defense at trial). It is

uncontested that McNeal struck the first blow in the altercation that led to his

assault conviction. Under this Circuit’s precedent, McNeal is therefore foreclosed

from presenting a theory of self defense because he preemptively attacked. See

United States v. Acosta-Sierra, 690 F.3d 1111, 1126 (9th Cir. 2012) (“[A]n

individual who is the attacker cannot make out a claim of self-defense as a

justification for an assault.”); United States v. Urena, 659 F.3d 903, 907 (9th Cir.

2011) (explaining that “even if [the victim] possessed a knife, the evidence was

undisputed that it was [the defendant] who was the attacker, and thus he could not

in those circumstances successfully urge a self defense theory”). Thus, even taking

as true McNeal’s allegation that the victim of the assault had previously threatened

McNeal and was planning an ambush in the laundry room, McNeal was not

entitled to use preemptive self defense. See id.. Accordingly, the district court did

not err in denying McNeal’s motion in limine.

      2.     The district court also did not abuse its discretion in excluding

McNeal’s testimony regarding the victim’s alleged prior threats, nor in excluding

McNeal’s proffered expert. McNeal argues that both should have been admitted

because they were relevant to the issue of self defense. However, because the trial


                                            3
court did not err in denying McNeal’s motion to put forward a theory of self

defense, it did not abuse its discretion in excluding evidence related only to that

theory of self defense. Cf. United States v. Heller, 551 F.3d 1108, 1111 (9th Cir.

2009) (explaining that the district court did not err by failing to rule on a motion in

limine after the defendant waived is right to a jury trial and the evidence would no

longer go before the jury)).

      AFFIRMED.




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