                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 22 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                           No. 10-10561

              Plaintiff - Appellee,                 D.C. No. 4:09-cr-01164-DCB-
                                                    CRP-1
  v.

JAIME MARTINEZ-GARCIA, AKA                          MEMORANDUM*
Jaime Martinez,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                         Argued and Submitted July 9, 2013
                             San Francisco, California

Before: FERNANDEZ, PAEZ, and BERZON, Circuit Judges.

       Jaime Martinez-Garcia appeals his conviction for two counts of assaulting a

federal officer, in violation of 18 U.S.C. § 111.

       1. The district court did not err in concluding that Martinez-Garcia’s

confession was voluntary. See Doody v. Ryan, 649 F.3d 986, 1011 (9th Cir. 2011)


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(en banc); United States v. Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003); United

States v. Kelley, 953 F.2d 562, 565 (9th Cir. 1992). This conclusion was supported

by the testimony of the discharging nurse and the interrogating agents regarding

Martinez-Garcia’s medication and pain levels at the time closest to the confession.

Conversely, Martinez-Garcia did not present any evidence that he was in pain or

disoriented at the time of his interrogation. The evidence that he did present,

regarding his condition several hours before, and more than 36 hours after the

interrogation, was not directly probative of his medication and pain levels at the

time he signed the Miranda waiver and confession. Moreover, the statement by the

interrogating officer of which Martinez-Garcia complains, even if misleading, is

insufficient to constitute coercion of the confession. See Amaya-Ruiz v. Stewart,

121 F.3d 486, 495 (9th Cir. 1997).

      2. Given these same facts, the district court did not clearly err in concluding

that Martinez-Garcia knowingly and intelligently waived his Miranda rights,

“especially considering that he indicated that he understood his rights after they

were explained to him.” United States v. Bautista-Avila, 6 F.3d 1360, 1366 (9th

Cir. 1993).

      3. Considered as a whole, the disputed jury instructions regarding Count 3

“fairly and adequately cover[ed] the issues presented.” United States v. Peppers,


                                                                                        2
697 F.3d 1217, 1220 (9th Cir. 2012) (per curiam). Unlike in the cases on which

Martinez-Garcia relies, the instructions did not “allow[] the government to defeat

an excessive force theory of defense merely by proof beyond a reasonable doubt

that the defendant knew that the person that she allegedly assaulted was a federal

law enforcement officer.” United States v. Span, 970 F.2d 573, 577 (9th Cir. 1992)

(Span I); see United States v. Span, 75 F.3d 1383, 1389 (9th Cir. 1996) (Span II).

Moreover, Span I emphasized that the problem with the instructions in that case

was that the defendants were not permitted to argue that they had used “reasonable

force to repel excessive force by a federal law enforcement officer.” 970 F.2d at

577 (emphasis added); see id. at 578 (noting the “right to offer reasonable

resistance to repel any excessive force”) (emphasis added); id. at 581. Nor has

Martinez-Garcia identified any way in which the instructions misstate the law of

self-defense, which requires that a defendant “reasonably believe force was

necessary” and that he “use[ no] more force than appear[s] reasonably necessary.”

See United States v. Keiser, 57 F.3d 847, 850–52, 857 (9th Cir. 1995).

      As “the instructions fairly and adequately cover[ed] the issues presented,”

we review only for “abuse of discretion” the “district court’s formulation of the

jury instructions.” Peppers, 697 F.3d at 1220. Given the “substantial latitude”




                                                                                     3
accorded district courts in “in tailoring jury instructions,” the district court did not

abuse its discretion here. See Peppers, 697 F.3d at 1220.

      4. There was not sufficient evidence from which the jury could have

concluded that Agent Rocha used excessive force. Martinez-Garcia was therefore

not entitled to a self-defense instruction on Count 2. See United States v. Spentz,

653 F.3d 815, 818 (9th Cir. 2011).

      5. Sufficient evidence supported the district court’s decision to deny

Martinez-Garcia’s Rule 29 motion. United States v. Gonzalez-Diaz, 630 F.3d 1239,

1242 (9th Cir. 2011). Assuming, without deciding, that the government needed to

present testimony during its case-in-chief regarding what levels of force are

appropriate in response to particular situations, the government did just that.

      AFFIRMED.




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