                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 28 2013

                                                                        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. 11-50533

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00078-GAF-2

  v.
                                                 MEMORANDUM *
CHRISTOPHER CRAMER,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-50161

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00078-GAF-1

  v.

RONNIE LEE HOUSTON, AKA
Cowboy,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                        Argued and Submitted May 7, 2013
                               Pasadena, California

Before: PAEZ and IKUTA, Circuit Judges, and EZRA, District Judge.**

      Christopher Cramer and Ronnie Lee Houston (“Defendants”) appeal their

convictions for multiple counts of assault. Defendants were convicted of three

counts related to their assault of a fellow inmate, Scotty Justice, and Houston was

convicted of two counts related to his assault of fellow inmate, Mikael Thomas.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      1. Cramer argues that he was denied a “meaningful opportunity” to

represent himself when the district court said that it would deny his motion for a

six-month continuance to prepare for trial. United States v. Farias, 618 F.3d 1049

(9th Cir. 2010). In contrast to the factual scenarios presented in Farias and Armant

v. Marquez, 772 F.2d 552 (9th Cir. 1985), in which defendants were told that they

could proceed pro se but would have less than 24-hours to prepare for trial, the

district court did not abuse its discretion in proposing to limit Cramer’s preparation

to eleven weeks. In the district court, Cramer presented no plausible argument as

to why he would require more time to prepare for trial and there was no evidence




        **
             The Honorable David A. Ezra, District Judge for the U.S. District
Court for the District of Hawaii, sitting by designation.

                                          -2-
that Cramer’s counsel would obstruct Cramer’s attempt to proceed pro se. Instead,

when the district court denied a six-month continuance, Cramer withdrew his

request to represent himself and never again raised the issue with the district court.

      2.

      a. Defendants next argue that the district court erred when it granted the

government’s in limine motion to preclude Defendants from presenting evidence to

the jury that they acted in self defense when assaulting Justice. “In order to make a

prima-facie case of self-defense, a defendant must make an offer of proof as to two

elements: (1) a reasonable belief that the use of force was necessary to defend

himself or another against the immediate use of unlawful force and (2) the use of

no more force than was reasonably necessary in the circumstances.” United States

v. Biggs, 441 F.3d 1069, 1071 (9th Cir. 2006) (citing United States v. Keiser, 57

F.3d 847, 851 (9th Cir. 1995)).

      If a defendant cannot proffer legally sufficient evidence of each element of

an affirmative defense, then he is not entitled to present evidence in support of that

defense at trial. United States v. Bailey, 444 U.S. 394, 415 (1980); see also United

States v. Shapiro, 669 F.2d 593, 596 (9th Cir. 1982).

      Here, taking Defendants’ proffered evidence as true, the district court

determined that Defendants failed to meet their burden of offering legally


                                          -3-
sufficient evidence to support a finding that they had a “reasonable belief that the

use of force was necessary to defend [themselves] or another against the immediate

use of unlawful force.” Biggs, 441 F.3d at 1071. We agree. In any event, the

proffered evidence provided no support for a finding that Defendants used “no

more force than was reasonably necessary in the circumstances.” Id. The video

recording of the event clearly shows Houston approach Justice from behind and

garrote him while Cramer repeatedly stabs Justice. Even after Justice had fallen to

the ground bleeding, Defendants continued attacking Justice until corrections

officers shot bursts of pepper spray at Defendants.

      We hold that the district court did not err when it granted the government’s

motion in limine, finding that Defendants’ proffers failed as a matter of law.

      b. Houston additionally argues that the district court erred when it limited

his trial testimony concerning his claim of self defense in the Justice assault. A

defendant’s ability to put forth evidence of an affirmative defense may properly be

tested in limine. Shapiro, 669 F.2d at 596 (“If the evidence as described in

Shapiro’s offer of proof was insufficient as a matter of law to support a duress

defense the trial court was correct in excluding that evidence.”); see Bailey, 444

U.S. at 415. Because Houston’s offer of proof regarding his claim of self defense

was insufficient as a matter of law, the trial court did not err in precluding him


                                          -4-
from testifying in support of that theory. United States v. Moreno, 102 F.3d 994,

998 (9th Cir. 1996). Therefore, the district court did not err in limiting Houston’s

testimony here.

      c. Houston also argues that the district court erred in limiting the self-

defense jury instruction to the Thomas assault (excluding the Justice assault).

Houston points to no specific evidence that was presented to the jury that went

beyond the legally insufficient offers of proof. We hold that the district court did

not err when it did not give a self-defense instruction related to the Justice assault.

See United States v. Houston, 648 F.3d 806, 816 (9th Cir. 2011) cert. denied, 132

S. Ct. 1727 (2012).

      3. Defendants next argue that the district court erred when it appointed

counsel to several potential defense witnesses (specifically Johnson, Shull, and

Wiggins), thereby denying Defendants their right to due process. There is no

evidence that the district court or prosecution acted coercively or did anything to

“‘effectively dr[i]ve th[e] witness[es] off the stand.’” United States v. Jaeger, 538

F.3d 1227, 1231 (9th Cir. 2008) (quoting Webb v. Texas, 409 U.S. 95, 98 (1972)

(per curiam) (first alteration in Jaeger) and citing United States v. Vavages, 151

F.3d 1185, 1189 (9th Cir. 1998)).




                                           -5-
      Here, the record indicates that witnesses Johnson, Shull and Wiggins all

faced the possibility of incriminating themselves were they to testify. The

government proffered, inter alia, that Johnson had assaulted Thomas in tandem

with Houston. Indeed, Thomas ultimately testified that Johnson assaulted him with

a “rock in a sock” during the incident. The government also proffered that during

the Justice assault, Wiggins and Shull appeared to hold Justice’s attention while

Houston and Cramer staged their attack. Shull had also told investigators that he

smuggled in and passed a knife to Justice prior to the assault; and Wiggins had told

investigators that his prison gang was “doing a little house cleaning.” The other

witnesses for whom counsel was appointed also ran the risk of incriminating

themselves by testifying. Therefore, the district court did not err when it appointed

counsel to these potential witnesses.

      4. Houston next argues that there was insufficient evidence to support his

convictions for assault with a dangerous weapon, 18 U.S.C. § 113(a)(3), and

assault causing serious bodily injury, id. (a)(6). Viewing the evidence in the light

most favorable to the government, the evidence was “adequate to allow ‘a[]

rational trier of fact [to find] the essential elements of the crime beyond a

reasonable doubt.’” United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010)

(en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (second


                                          -6-
alteration in Nevils). Thomas testified that Houston stabbed him multiple times

and chased him down the tier after Thomas had stumbled out of Houston’s cell

onto the ground and freed himself to run away. The video evidence corroborates

Thomas’s testimony and shows Houston stabbing Thomas while Thomas is on the

ground and chasing Thomas along the tier and down a flight of stairs.

      5. Defendants finally argue that cumulative error warrants reversal. This

argument fails because there were no errors. “There can be no cumulative error

when a defendant fails to identify more than one error.” United States v. Solorio,

669 F.3d 943, 956 (9th Cir.) cert. denied, 133 S. Ct. 109 (2012).

      AFFIRMED.




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