                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               JUN 24 1998
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                            No. 96-2296
 v.
                                                     (D.C. No. CR-95-584-SC)
                                                     (District of New Mexico)
 JONATHAN BENALLY,

          Defendant - Appellant.




                             ORDER AND JUDGMENT *


Before BRISCOE, McWILLIAMS and LUCERO, Circuit Judges.




      Jonathan Benally seeks the reversal of a jury verdict finding him guilty of

second degree murder. He asserts that the district court erred in instructing the

jury on voluntary manslaughter and improperly denied his request for an

instruction on involuntary manslaughter. Additionally, defendant argues that the

district court abused its discretion by refusing to reduce his offense level for




      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
acceptance of responsibility. We have jurisdiction pursuant to 28 U.S.C. § 1291

and affirm.

                                          I

      On the night of October 3, 1995, Jonathan Benally, Arvin Benally and

Rodrick Benally gathered at Arvin’s house in Shiprock, New Mexico to talk and

drink. After consuming a quart of malt liquor each, they drove to the Thriftway

store in nearby Hogback to purchase three more quarts for the group. At the store

they met up with Cheryl Largo and her sister, Christina Talk. The five decided to

drive to a hill near Shiprock to talk, drink and listen to music. Shortly thereafter,

Jonathan and Arvin left to purchase a half pint of whiskey. While Jonathan and

Arvin were gone, Russell John, who lived nearby, walked up to Rodrick, Cheryl

and Christina, introduced himself and offered them some vodka.

      When Jonathan and Arvin returned, the four men engaged in friendly

conversation. After finishing his vodka, Russell asked if anyone wanted to go on

a beer run and stated that he had $20. He then offered to get marijuana for the

group and left.

      While Russell was gone, Jonathan proposed that they should take the $20

when he returned. Arvin agreed. When Russell returned, he admitted that did not

have any marijuana. According to Rodrick, both Jonathan and Arvin were upset

at this news. Rodrick testified at trial that Jonathan suddenly threw Russell to the


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ground “for no apparent reason.” R., Vol. V, at 164-65. Russell then threw an

object at Jonathan and missed. He got back to his feet and started wrestling

Jonathan. He then threw a punch, striking Arvin in the face and knocking his

glasses off.

      Jonathan tackled Russell, sat on top of him and proceeded to punch him

repeatedly in the face. Arvin struck and kicked Russell before Rodrick restrained

him. When Rodrick turned to restrain Jonathan, Arvin struck Russell again.

Once again Rodrick restrained Arvin and Jonathan renewed his attack. Jonathan

then proceeded to pull down Russell’s pants and kick him in the groin. The two

men then rolled Russell onto his stomach. Arvin kicked Russell and again was

restrained by Rodrick. Jonathan then made cutting and stabbing motions on

Russell’s buttocks and searched through his pants. He then stood and kicked

Russell some more.

      After the fight, they left Russell on the hill and all five met at the local

junior high school. They agreed to lie as to their whereabouts that night. At trial,

a statement made by Cheryl to the police was read to the jury. In that statement,

she recounted that at the school, Jonathan “looked at his fist and kept saying

that’s what he likes to see.” R., Vol. VI, at 226. She testified at trial that his fist

was bloody. Christina, in a statement read to the jury, recalled that Jonathan

“kept bragging that they did killed that guy.” Id. at 261.


                                           -3-
      Arvin and Rodrick then returned to the hill to search for Arvin’s glasses.

According to Rodrick’s testimony, Arvin wanted to strike Russell again, but

Rodrick stopped him. Rodrick also testified he could not hear Russell breathing.

      The next morning, Russell’s wife and her sister discovered his body. He

was lying face down with his pants around his ankles. At trial, the forensic

pathologist who examined the body testified that death resulted from blunt force

injuries to the head and neck which produced herniation of the brain, that is, his

brain swelled through the base of his neck. The swelling was caused by bleeding

in the head and neck area and from a fractured voice box which hampered

breathing, blocking oxygen flow to the brain.

      After a police investigation, Jonathan was charged with first degree murder

in violation of 18 U.S.C. §§ 1153 1 & 1111(a), and aiding and abetting first degree

murder in violation of 18 U.S.C. § 2. At the conclusion of the jury trial, the

district court instructed the jury as to first degree murder as well as to the lesser

included offenses of second degree murder and voluntary manslaughter. The jury

returned a verdict of guilty as to second degree murder.

                                          II


      1
        Section 1153 provides for the application of select criminal laws (including
murder and manslaughter) to crimes by Native Americans in Indian country. At trial, it
was stipulated that both Jonathan Benally and Russell John were enrolled members of the
Navajo tribe and that the alleged offense occurred within the boundaries of the Navajo
Indian Reservation in the state of New Mexico. See R., Vol. VI, at 288-89.

                                          -4-
      Defendant argues that the district court improperly instructed the jury on

voluntary manslaughter. The jury was instructed that,

      [V]oluntary manslaughter is the unlawful killing of a human being
      without malice upon a sudden quarrel or a heat of passion. . . . The
      difference between second-degree murder and voluntary
      manslaughter is sufficient provocation. . . . Sufficient provocation
      reduces second-degree murder to voluntary manslaughter. Sufficient
      provocation can be any action, conduct, or circumstance which
      arouse[s] anger, rage, fear, sudden resentment, terror, or other
      extreme emotions. The provocation must be such as would affect the
      ability to reason and to cause a temporary loss of self control in an
      ordinary person of average disposition.

R., Vol. VII, at 388-89. Defense counsel objected to the court’s definition of

provocation: “I’m concerned that the real standard is — the real standard

regarding the matter of provocation that you’ve [instructed] is for a reasonable

person in the same or similar circumstances.” Id. at 421.

      Because the district court is granted substantial latitude and discretion in

tailoring and formulating jury instructions, we uphold its exercise of discretion as

long as the instructions as a whole are correct statements of the law and fairly

cover the issues presented. See United States v. Bryant, 892 F.2d 1466, 1468

(10th Cir. 1989). In reviewing defendant’s claim, we must decide not whether the

instruction was faultless, but whether the jury was misled in any way and whether

it had an understanding of the issues. United States v. Voss, 82 F.3d 1521, 1529

(10th Cir.), cert. denied, 117 S. Ct. 226 (1996). Under this standard of review,

we cannot conclude that the instruction given by the district court was confusing

                                         -5-
or legally incorrect. Cf. United States v. Collins, 690 F.2d 431, 437 (5th Cir.

1982) (“the provocation must be such as would arouse a reasonable and ordinary

person to kill someone”) (citing United States v. Chapman, 615 F.2d 1294 (10th

Cir. 1980)); United States v. Eagle Elk, 658 F.2d 644, 649 (8th Cir. 1981)

(sufficient provocation is that which “would cause the ordinary reasonable person

to act rashly and without deliberation and reflection”) (citing 2 E. Devitt & C.

Blackmar, Federal Jury Practice and Instructions § 41.14 (1977)). Defendant’s

claim is essentially a dispute over word choice, and it is well-established that a

defendant is not entitled to any specific wording of instructions. United States v.

Hoffner, 777 F.2d 1423, 1426 (10th Cir. 1985). The district court’s instructions,

taken as a whole, properly informed the jury of the law and were not misleading.

      Defendant raises for the first time on appeal a second claim related to this

instruction. Because he failed to object to the instruction on this basis at trial, we

review only for plain error. See United States v. Mason, 85 F.3d 471, 472 (10th

Cir. 1996). He claims that the district court erred when it stated that, “the

difference between second degree murder and voluntary manslaughter is

sufficient provocation.” R., Vol. VII, at 388. Defendant contends that “the most

critical and defining characteristic of voluntary manslaughter is . . . intent without

malice,” not “sufficient provocation.” Appellant’s Br. at 13. Sufficient

provocation and malice are, however, closely related: sufficient provocation


                                          -6-
negates malice. See United States v. Scafe, 822 F.2d 928, 932 (10th Cir. 1987)

(“Malice is negated by the heat of passion.”); see also United States v. Browner,

889 F.2d 549, 552 (5th Cir. 1989) (“The malice that would otherwise attach is

negated by the fact that the intentional killing occurred in the heat of passion in

response to a sufficient provocation.”) (citing Scafe, 822 F.2d at 932). Thus, we

cannot conclude that the instruction was an erroneous statement of law, much less

plainly erroneous.

                                          III

      At the close of trial, defendant requested that the jury be instructed on the

lesser included offense of involuntary manslaughter, which is defined as the

“unlawful killing of a human being without malice . . . [i]n 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). Defendant tendered a proposed instruction

and objected to the district court’s refusal to so instruct the jury. See R., Vol.

VII, at 421. On appeal, he claims that by not instructing on involuntary

manslaughter, the district court abused its discretion.

      A lesser included offense instruction is to be given when “[1] there is a

proper request for one; [2] the lesser included offense consists of some, but not

all, the elements of the offense charged; [3] proof of the element or elements


                                          -7-
differentiating the lesser and greater offenses is a matter in dispute; and [4] a jury

could rationally convict on the lesser offense and acquit on the greater offense.”

United States v. Abeyta, 27 F.3d 470, 473 (10th Cir. 1994). “On appeal from a

trial court’s application of the proper test, we review for abuse of discretion ‘[t]he

decision of whether there is enough evidence to justify a lesser included offense

charge. . . .’” Id. (quoting Chapman, 615 F.2d at 1298.)

      It is undisputed that defendant properly requested an involuntary

manslaughter instruction, see R., Vol. VII, at 421, and that involuntary

manslaughter is a lesser included offense of the offense charged, see United

States v. Quintero, 21 F.3d 885, 890-91 (9th Cir. 1994). Defendant claims that

the closely-related third and fourth prongs of the Abeyta test are satisfied because

sufficient evidence was presented at trial to support a jury finding that either he

killed the victim in the commission of a misdemeanor or, alternatively, that the

killing was the result of self-defense.

      Defendant’s first argument is that an instruction on involuntary

manslaughter was required because the death of Russell John occurred during the

commission of aggravated battery, a misdemeanor under New Mexico law. See

N.M. Stat. Ann. § 30-3-5(B) (Michie 1978) (defining misdemeanor aggravated

battery as infliction of an injury not likely to cause death or great bodily harm, but

which does cause painful temporary disfigurement or temporary loss of the


                                          -8-
functions of an organ or member). Defendant’s rationale is that the Indian Major

Crimes Act provides that if a crime made applicable under the Act is “not defined

and punished by Federal law in force,” the offense “shall be defined and punished

in accordance with the laws of the State in which such offense was committed . . .

.” 18 U.S.C. § 1153(b). This argument ignores the fact that both manslaughter

and assault are defined and punished by federal law. See 18 U.S.C. §§ 1112

(manslaughter) & 113 (assaults). The assault that resulted in the death of Russell

John is a felony under federal law. See 18 U.S.C. §§ 113(a)(6) (assault resulting

in serious bodily injury) & 1365(g)(3) (defining “serious bodily injury” as

involving substantial risk of death or extreme physical pain); see also United

States v. Hatatley, 130 F.3d 1399, 1404 (10th Cir. 1997). We note that defendant

does not contend that the assault which resulted in the death of Russell John could

be characterized as a misdemeanor under federal law.

      Alternatively, defendant contends that the lesser included offense

instruction was required because the evidence supported a jury verdict that he

killed Russell John in the commission of a lawful act in an unlawful manner — an

“imperfect or equivocal assertion of self defense.” Appellant’s Br. at 15.

However, no evidence whatsoever was presented at trial that defendant acted in

self defense. Defendant testified on his own behalf, and on direct examination he

was asked to describe how the fight began. He replied,


                                         -9-
             It — it all started when Mr. John kept asking me to make him a
      [beer] run, and I — but I kept telling him that it wasn’t my truck, that
      I wasn’t driving, and that it was well past closing time.

            So he kept asking me, and asking me to make him a run, and
      once in a while he would leave. He’d walk off from me, . . . but he’d
      come back and ask me again, and I’d tell him the same thing.

             But after a [] while he started to get closer where — which he
      would come up to my face or he’d be so close to my face that he’d be
      spitting on me and to try to tell me to make him a run.

             So I — I warned him. I told him, [d]on’t do that, because that
      is something I don’t like people doing. So I slightly pushed him
      away with my forearm the first time, and he kept — he kept doing
      that. He kept doing the same thing. So I pushed him away several
      times, and upon which I believe the last — the last push I gave him,
      he tripped over his feet, he fell over, and he got back up, and he
      started to fight — or he punched Arvin, and Arvin punched back, I
      guess, putting him in a daze.

R., Vol. VI, at 350. Defendant admitted punching Russell hard in the face and

kicking him. Id. at 351-52. He also testified that Russell did not hurt him while

resisting his blows. Id. at 353. On cross-examination, the prosecutor asked

defendant if Russell was punching back when defendant was kicking him. Id. at

369. Defendant answered no, and admitted that Russell was a “steady target.” Id.

We find no abuse of discretion in the district court’s decision that there was no

evidence to support a rational jury finding that defendant was acting in self-

defense, even if imperfectly or unlawfully.




                                         -10-
                                          IV

      Defendant claims that the district court erred by refusing to grant him an

offense level reduction for acceptance of responsibility pursuant to U.S.S.G. §

3E1.1. We review the district court’s decision not to grant a reduction for

acceptance of responsibility for clear error. United States v. McMahon, 91 F.3d

1394, 1396 (10th Cir.) cert. denied, 117 S. Ct. 533 (1996). Defendant must prove

by a preponderance of the evidence that he is entitled to the offense level

reduction. Id. at 1396-97.

      Section 3E1.1 of the Sentencing Guidelines provides for a two level

decrease “[i]f the defendant clearly demonstrates acceptance of responsibility for

his offense.” The commentary to this section states, “[t]his adjustment is not

intended to apply to a defendant who puts the government to its burden of proof

at trial by denying the essential factual elements of guilt, is convicted, and only

then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1, application note 2.

The commentary also notes that “[i]n rare situations a defendant may clearly

demonstrate an acceptance of responsibility for his criminal conduct even though

he exercises his constitutional right to a trial. . . . In each such instance, however,

a determination that a defendant has accepted responsibility will be based

primarily upon pre-trial statements and conduct.” Id.




                                          -11-
      Defendant contends that a reduction of his offense level is merited because

he cooperated with the homicide investigation and testified at trial, admitting that

he was an alcoholic and that he had punched and kicked the victim. Admission of

wrongdoing, however, is insufficient to entitle the defendant to an adjustment for

acceptance of responsibility. See McMahon, 91 F.3d at 1397.

      Defendant, at trial, contested the factual elements of his guilt. The

defense’s theory of the case was that the victim’s death was caused, not by

defendant’s actions, but by those of Arvin Benally or one of the other individuals

present the evening of the homicide. See R., Vol. VI, at 339. Defendant, when

he testified, also denied that he had the requisite intent to commit murder. Id. at

361. This is not the rare situation in which a downward adjustment is merited

even though defendant exercised his right to a trial. Defendant has failed to meet

his burden of showing entitlement to the adjustment and we conclude that the

district court acted properly.

      For the foregoing reasons, the district court’s judgment is AFFIRMED.

                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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