                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 07 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30230

              Plaintiff - Appellee,              D.C. No. 1:11-cr-00097-RFC-1

  v.
                                                 MEMORANDUM*
MICHAEL AARON STUKER,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-30231

              Plaintiff - Appellee,              D.C. No. 1:11-cr-00096-RFC-2

  v.

MICHAEL AARON STUKER,

              Defendant - Appellant.


                   Appeal from the United States District Court
                           for the District of Montana
                Richard F. Cebull, Senior District Judge, Presiding


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

                                          1
                      Argued and Submitted October 10, 2013
                                Portland, Oregon

Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.

      Defendant-Appellant Michael Aaron Stuker appeals his separate convictions

for witness tampering under 18 U.S.C. § 1512(a)(2)(A) and assault on a federal

officer under 18 U.S.C. § 111. In the witness tampering case, he argues that a

twelve year-old child’s identification should have been suppressed because law

enforcement’s photo lineup was unduly suggestive and the court abused its

discretion by refusing to allow the jury to view the premises so as to understand the

child’s vantage point. In the assault case, he argues that there was insufficient

evidence to convict him where he only caused minimal damage and no injuries

when he backed into a deputy Marshal’s vehicle. He also claims that the district

court erred in rejecting his proposed jury instruction and applying the sentencing

base offense level for “Aggravated Assault.” We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.1

                                          I

      A witness identification should be suppressed only where it has been tainted

by law enforcement procedures that were “suggestive and unnecessary” so as to

      1
        Because the parties are familiar with the history of the case, we repeat only
those facts necessary to explain our decision.

                                          2
render it unreliable. See Perry v. New Hampshire, 132 S. Ct. 716, 724-25 (2012).

Regardless of whether the procedure here was unnecessarily suggestive, it was

sufficiently reliable given that the witness had a sufficient opportunity to observe

Stuker, had a sufficient view of Stuker to identify him, and expressed no hesitancy

when he identified Stuker. See United States v. Montgomery, 150 F.3d 983, 993

(9th Cir. 1998).

      Moreover, even if the identification was unreliable, its admission was

harmless given the other evidence against Stuker. In addition to the child, the

witness tampering victim also identified Stuker and indicated that he knew Stuker.

Furthermore, much of Stuker’s own conduct and statements were incriminating as

he: (a) fled from law enforcement; (b) initially denied knowing the victim before

admitting that he did know him; (c) appeared to know that he was wanted for

witness tampering; (d) admitted that he was friends with and would “help” out the

defendant in the upcoming trial; and (e) admitted that he previously pulled a gun

on the victim. Although Stuker’s fiancee testified that he was with her on the day

in question, Stuker initially told law enforcement that he was unsure where he was

on that day, and the evidence indicated that he was “running around getting high”

for a two day period around that same time. On these facts, the child’s

identification did not have a “substantial and injurious effect or influence in

                                          3
determining the verdict.” Williams v. Stewart, 441 F.3d 1030, 1039 (9th Cir.

2006).

                                          II

      Stuker argues that the district court abused its discretion when it denied his

motion for the jury to view the doorway where the child witnessed the incident. A

district court acts within its discretion in denying a motion for a jury viewing

where the conditions of the premises are adequately shown by other evidence. See

Hametner v. Villena, 361 F.2d 445,445-46 (9th Cir. 1966) (concluding that the trial

court could properly deny a jury viewing where the evidence included photographs

and a surveyor’s diagram of the scene and it would likely cause delay and

inconvenience). Here, both sides introduced testimony, photographs, and drawings

relating to the child’s view. Consequently, the district court acted within its

discretion in denying Stuker’s motion for a jury viewing.

                                          III

      Stuker argues that there was insufficient evidence to support the assault

conviction because he used his vehicle “solely as a means to flee” rather than as a

deadly weapon. We review the sufficiency of the evidence to support a conviction

“to determine whether ‘after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

                                          4
crime beyond a reasonable doubt.’” United States v. Nevils, 598 F.3d 1158, 1163-

64 (9th Cir. 2010) (en banc).

      There was evidence indicating that Stuker began backing up his vehicle,

then paused, and then rapidly accelerated 10 to 30 feet backwards into the deputy

Marshal’s vehicle. Although there was minimal damage to the vehicle and the

deputy was not injured, the deputy testified that he was in reasonable apprehension

of immediate bodily injury. Under our precedent, this evidence was sufficient to

support the conviction. See United States v. Anchrum, 590 F.3d 795, 799-803 (9th

Cir. 2009).

                                          IV

      Stuker further asserts that the district court erred by rejecting his proposed

jury instruction that using “a car purely for flight would not satisfy the requirement

of using the car as a deadly weapon.” Stuker’s theory was adequately covered by

the district court’s instructions, which indicated that the jury had to find that Stuker

used the vehicle “in a way that is capable of causing death or serious bodily injury”

in order to convict. See United States v. Romm, 455 F.3d 990, 1002 (9th Cir.

2006).

                                           V




                                           5
      The district court applied the base offense level of 14 for “Aggravated

Assault” under Sentencing Guideline § 2A2.2. Stuker argues that the court should

have applied § 2A2.4 (relating to “Obstructing or Impeding Officers”), which has a

base offense level of 10, because it was more appropriate and there was “no

evidence” that Stuker intended to cause bodily injury. The district court’s finding

that Stuker intentionally used his vehicle as a weapon by accelerating backwards

into the deputy’s vehicle was adequately supported by evidence that Stuker paused

before accelerating. Additionally, as Stuker was charged with and found guilty of

assault with a dangerous weapon, the “Aggravated Assault” base offense level was

appropriate.

      AFFIRMED.




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