                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 21 2012

                                                                        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. 10-10570

              Plaintiff - Appellee,              D.C. No. 4:09-cr-01185-JMR-
                                                 JCG-1
  v.

JOAN ADA GIVIDEN,                                MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                      John M. Roll, District Judge, Presiding

                           Submitted February 15, 2012 **
                             San Francisco, California

Before: ALARCÓN and SILVERMAN, Circuit Judges, and GARBIS, Senior
District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for Maryland, sitting by designation.
      Joan Gividen appeals from a jury conviction and sentence on two counts of

assaulting a federal officer with a deadly or dangerous weapon in violation of 18

U.S.C. §§ 111(a)(1) and (b). She contends that the district court abused its

discretion in denying her request for an instruction on the offense of simple assault

as a lessor included offense in the crime of committing an assault with a deadly or

dangerous weapon on an agent of a branch of the United States who is engaged in

his or her official duties. We affirm because we conclude that the evidence was

insufficient to permit a rational jury to find the defendant guilty of simple assault

based on the evidence presented at trial. We have jurisdiction under 28 U.S.C.

§ 1291.

                                           I

      The Government presented the following evidence at trial to meet its duty to

demonstrate that Gividen was guilty of an assault with a deadly or dangerous

weapon on an agent of the United States. As border patrol agents drove past

Gividen’s residence on Beki Lane, in response to a report that illegal aliens had

been observed in the roadway ahead, she yelled at them, “[G]et the hell out of here,

you sons of bitches.”

      After the agents apprehended the aliens, and as they stood in the roadway

processing the aliens and awaiting a transportation vehicle, Gividen drove her


                                           2
pickup truck down Beki Road toward the agents. Border Patrol Agent Earnest Kile

stepped into the roadway intending to speak with Gividen. Instead of stopping, she

accelerated, forcing the agent to jump out of the way to avoid being hit. Other

agents also had to jump out of the way to avoid being hit. As Gividen passed the

agents, she lost control of her vehicle and it fish-tailed. When she was stopped, an

agent asked her: “What are you trying to do[,] kill someone?” Gividen replied: “I

was trying to run you over.”

      After Gividen got out of her vehicle, she yelled obscene words at the agents,

and was belligerent with them and the paramedics who had arrived to take her to

the hospital because she was hysterical.

      In her defense, Appellant testified that she did not yell at the officers as they

drove by her house, nor did she try to hit any of the agents as she drove by them at

twenty-five miles per hour.

                                           II

      Our review of a district court’s denial of a jury instruction on a lesser-

included offense is in two steps. First, we review de novo whether the “offense on

which instruction is sought is a lesser-included offense of that charged.” United

States v. Rivera-Alonzo, 584 F.3d 829, 832 (9th Cir. 2009) (quoting United States

v. Hernandez, 476 F.3d 791, 797 (9th Cir. 2007)). Here, the government conceded


                                           3
and the district court agreed that elements of simple assault on a federal officer are

encompassed in the elements of assault on a federal officer with a deadly or

dangerous weapon. See id. at 833.

      “[I]f the requested instruction pertains to a lesser-included offense,” we then

review the denial of the instruction of the lesser-included offense for abuse of

discretion. Id. at 832. “[T]o warrant a lesser[-]included offense instruction the

evidence at trial must be such that a jury could rationally find the defendant guilty

of the lesser offense, yet acquit him of the greater.” Id. at 834 (quoting Hernandez,

476 F.3d at 798 (internal quotation marks omitted) (citing Schmuck v. United

States, 489 U.S. 705, 716 n.8 (1989)); Keeble v. United States, 412 U.S. 205, 208

(1973)). “[A] district court may properly refuse to give an instruction on a lesser

included offense if the jury could not have convicted a defendant of the

lesser-included offense without finding the element(s) that would convert the lesser

offense to the greater.” Id. at 834 (citing United States v. Torres-Flores, 502 F.3d

885, 888 (9th Cir. 2007)).

      With respect to the evidence prong of the two-part test, Gividen contends

that the district court abused its discretion because “if the jury had been instructed

on simple assault, it could have found that she was guilty of assault but not of

using her vehicle as a deadly or dangerous weapon.” The Government maintains


                                           4
that the lesser-included instruction was inappropriate because, as the district court

pointed out, “if [Gividen] didn’t use her car as a deadly weapon, there is no crime

[under 18 U.S.C. § 111(a)(1) or (b)]. She is not guilty.”

      Gividen contends that “Agent Kile’s decision to put himself in the path of an

oncoming vehicle negates any evidence that Gividen used or attempted to use her

vehicle as a ‘deadly or dangerous weapon.’” She further contends that the video

recording shows “[she] did not veer left . . . . Thus, Agent Powell’s being in the

path of her oncoming vehicle was of his own volition . . . .” She also asserts the

jury could have found her guilty of the lesser-included offense if they concluded

that Agent Kile feared the speed of Gividen’s truck rather than the truck itself.

      Gividen’s arguments are unsupported by the record. Agent Kile testified

that he realized Gividen was “not going to stop” and that he had to jump out of the

way to avoid being hit. The video introduced at trial showed that other federal

agents were forced to take cover out of fear of being hit and or killed as Gividen

drove her truck down a narrow road directly toward them.

      We agree with the district court that a rational jury could not have convicted

Gividen of simple assault on a federal officer without finding that she used her

pickup truck as a deadly or dangerous weapon. Accordingly, it did not abuse its

discretion in denying Gividen’s jury instruction request.


                                           5
AFFIRMED.




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