                                                                                   United States Court of Appeals
                                                                                            Fifth Circuit
                                                                                         F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                         January 16, 2007
                                  FOR THE FIFTH CIRCUIT
                                                                                     Charles R. Fulbruge III
                                                                                             Clerk


                                          No. 05-11051



       UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                              versus

       RUBEN OMAR RUIZ,

                                                             Defendant-Appellant.


                        Appeal from the United States District Court for
                                 the Northern District of Texas
                                      (No. 4:04-CR-155)



Before REAVLEY, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

       We affirm the district court’s judgment in this case for the following reasons:

       1.      We hold that the jury was presented with sufficient evidence to find that Ruben Ruiz

               (“Ruiz”) willfully deprived David Davis of his Fourth Amendment right to be free

               from the use of unreasonable force by one acting under the color of law. See 18



       *
        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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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     U.S.C. § 242. Viewing this evidence in the light most favorable to the government,

     we hold that a rational jury could have found the elements of the offense proven

     beyond a reasonable doubt. See United States v. Gonzales, 436 F.3d 560, 571 (5th

     Cir.), cert. denied, 126 S.Ct. 2363 (2006); United States v. Adair, 436 F.3d 520, 525

     (5th Cir. 2006).

2.   Specifically, the jury heard testimony from five other police officers, each of whom

     testified that Ruiz kicked, kneed, or stepped on Davis’s head while he was lying face

     down on the ground and while the other officers present at the arrest worked to

     handcuff Davis. Several officers testified that Ruiz’s use of force was excessive under

     the circumstances. The jury viewed a videotape of the incident shot from a police

     helicopter which corroborated the officers’ version of events. The jury heard

     testimony from the medic who treated Davis for his injuries following the arrest; the

     medic reported that Davis stated that he was in pain and that he was hit at least six

     times during the arrest. Finally, the jury viewed a photograph of Davis taken after his

     arrest and treatment, in which the injuries he suffered to his face are apparent. This

     evidence was sufficient to support a guilty verdict. Though Ruiz asserts that the facts

     of this case are convoluted and that the witnesses’ versions of events were

     inconsistent, he does not contest that the jury heard a great deal of direct evidence

     against him.

3.   We hold that the jury instructions given by the district court did not substantially

     mislead the jury as to the elements of the offense or impair Ruiz’s ability to present

     a given defense. United States v. Cain, 440 F.3d 672, 674 (5th Cir. 2006); United


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     States v. Haas, 171 F.3d 259, 267 (5th Cir. 1999).

4.   Ruiz asserts that the district court abused its discretion by failing to instruct the jury

     that Davis’s injuries must have resulted “directly and only” from his actions. We find

     that the district court properly instructed the jury that it had to determine that Ruiz’s

     excessive use of force was the cause of Davis’s injuries, which is the law of this

     circuit. United States v. Brugman, 364 F.3d 613, 616 (2004), from which Ruiz

     selected the language he requested for his instruction, did not change the law of this

     circuit, it merely reiterated it: Brugman’s formulation of the standard indicates that

     the injury must have resulted from an excessive, not a reasonable, use of force.

5.   Ruiz also asserts that the district court abused its discretion by failing to instruct the

     jury that Davis’s injuries must have been more than “de minimis.” Because we find

     that Davis’s injuries were plainly not de minimis, and because any instruction

     regarding this legal concept would likely have only confused the jury, the district

     court did not abuse its discretion. See Haas, 171 F.3d at 267.

6.   Finally, Ruiz contends that the district court erred by failing to proffer a definition of

     “willfulness” within the offense elements, as in the Fifth Circuit pattern instructions

     for 18 U.S.C. § 242. Ruiz correctly points out that the pattern instruction states that

     an element of the offense is that “the defendant acted willfully, that is, that the

     defendant committed such act or acts with a bad purpose or evil motive, intending to

     deprive the victim of that right.” See FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS

     (CRIMINAL) § 2.18 (2001). The district court, in its explanation of the elements of the

     offense, instructed the jury that “an act is done willfully if it is done voluntarily and


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intentionally, and with the specific intent to do something the law forbids; that is, with

a bad purpose or evil motive either to disobey or disregard the law.” Ruiz asserts that

the district court’s failure to use the pattern instruction renders the instruction

insufficient, but the district court used the very language in the pattern instructions in

its explanation of the willfulness element. Ruiz asserts that the definition of “willfully”

offered by the district court was incorrect, but does not explain why this is so. By

using language substantially similar to the language in the pattern instructions, the

district court acted well within its latitude to instruct the jury.

AFFIRMED.




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