                                                                            FILED
                           NOT FOR PUBLICATION                               MAY 07 2012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. 11-10033

                       Plaintiff – Appellee,       D.C. No. 2:10-cr-268-HDM-
                                                   PAL-1
   v.

 MARIO LATREVIOUS JOHNSON, AKA                     MEMORANDUM*
 Mario Latrevious Johnston

                       Defendant – Appellant


                 Appeal from the United States District Court
                          for the District of Nevada
              Howard D. McKibben, Senior 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.
                                       2
      Mario Latrevious Johnson (“Johnson”) appeals from the district court’s

judgment of conviction on a single count of assault on a federal officer in violation

of 18 U.S.C. § 111(a). He contends that the district court erroneously denied his

request for a “self-defense” instruction. We have jurisdiction pursuant to 28 U.S.C.

§ 1291.

      On May 24, 2010, two FBI agents, Lawrence Wenko and T. Scott Hendricks,

dressed in plainclothes, went to an apartment complex to serve a search warrant

authorizing the seizure of a DNA sample from Johnson. When the two agents

encountered Johnson, Agent Wenko displayed his FBI badge and stated “Mario,

we’re with the FBI. We have a Search Warrant for DNA for you.” Agent Wenko,

although dressed in plainclothes, was visibly carrying his service weapon, extra

magazines, handcuffs, and a handheld radio that was emitting audible police traffic.

Johnson stopped and asked, “What’s this about?” Agent Wenko told Johnson why

the agents were there and handed him a copy of the warrant. Johnson appeared to

become agitated, used an expletive, and said that he would not comply with the

warrant. Agent Hendricks then reached to grab Johnson. Johnson, in response, used

his right hand to push the warrant into Agent Hendricks’s face and struck Agent

Hendricks on the right side of the face with his left fist.


      This Court has recognized a defense to assaulting a federal agent where the
                                           3
defendant fails to recognize that the agent was authorized to act in the manner

which allegedly provoked the purported self-defense. United States v. Morton, 999

F.2d 435, 437 & n.1 (9th Cir. 1993). “The defense consists of (1) a mistake or lack

of knowledge as to authority, (2) a reasonable belief that force was necessary to

defend against an immediate use of unlawful force, and (3) the use of no more

force than appeared reasonably necessary.” Id. at 437-38.

        “As a general proposition a defendant is entitled to an instruction as to any

recognized defense for which there exists evidence sufficient for a reasonable jury

to find in his favor.” Mathews v. United States, 485 U.S. 58, 63 (U.S. 1988). A

“mere scintilla” of such evidence is not sufficient to warrant a defense instruction,

but the defendant is entitled to his proposed instruction even if the evidence “is

weak, insufficient, inconsistent, or of doubtful credibility.” United States v.

Thomas, 612 F.3d 1107, 1121 (9th Cir. 2010) (internal quotation marks omitted).

      At trial, Johnson requested a “self-defense” instruction, contending that there

was evidence upon which the jury could rationally conclude that Johnson honestly

mistook the FBI agent for an unauthorized assailant or otherwise did not know the

agent was authorized to effect the search warrant, thus sustaining the defense of

self-defense. See United States v. Jackson, 726 F.2d 1466, 1468 (9th Cir. 1984);

United States v. Brandon, 633 F.2d 773, 778 (9th Cir. 1980). In particular, Johnson
                                          4
sought to rely on the evidence that Agent Hendricks was in plainclothes and, unlike

Agent Wenko, was not visibly carrying anything indicating his official status and

had not personally identified himself as an agent.

      The district court found that there was insufficient evidence to support the

requested instruction, “even with the broad standard that the Court applies in

granting a self-defense instruction.” The judge noted the uncontroverted evidence

showing that Johnson must have understood that the two men were law

enforcement agents present for an official purpose. The record includes evidence

that the FBI agents arrived together, that Agent Wenko identified both men 1 as FBI

agents there to serve the warrant, and that Johnson took the warrant, appeared to

read the warrant, and declared that he was not going to comply with the warrant

before he struck the agent.

      We review for abuse of discretion the district court’s determination that a

defendant failed to establish a factual foundation to support a jury instruction on

self-defense. United States v. Urena, 659 F.3d 903, 906 (9th Cir. 2011). On the

trial record, there was no more than a mere scintilla of evidence, if any at all, to

support the theory that Johnson honestly mistook Hendricks for an unauthorized




1
      Agent Wenko said: “We’re with the FBI. We have a Search Warrant for
DNA for you.” (Emphasis added).
                                            5
assailant or otherwise did not know Hendricks was authorized to effect the search

warrant. Accordingly, we hold that the district court did not abuse its discretion in

denying a jury instruction on self-defense.

      AFFIRMED.
