                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 11-4677


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

CHRISTOPHER A. DROTLEFF,

                Defendant - Appellant.



                             No. 11-4744


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JUSTIN H. CANNON,

                Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk.     Robert G. Doumar, Senior
District Judge.    (2:10-cr-00001-RGD-FBS-2; 2:10-cr-00001-RGD-
FBS-1)


Argued:   October 26, 2012              Decided:   November 29, 2012


Before NIEMEYER, MOTZ, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.


ARGUED: Trey R. Kelleter, VANDEVENTER BLACK, LLP, Norfolk,
Virginia; Larry Mark Dash, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Norfolk, Virginia, for Appellants.           Alan Mark
Salsbury, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia, for Appellee.      ON BRIEF: Michael S. Nachmanoff,
Federal Public Defender, Alexandria, Virginia, Frances H. Pratt,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Norfolk, Virginia, for Appellant Cannon.        Neil H.
MacBride, United States Attorney, Alexandria, Virginia, Randy
Stoker, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Norfolk, Virginia; Jay A. Bauer, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.


Unpublished decisions are not binding precedent in this circuit.




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PER CURIAM:

        Pursuant to the Military Extraterritorial Jurisdiction Act

(“MEJA”),      the    Government         indicted        Christopher     Drotleff      and

Justin    Cannon     in    the    Eastern    District         of   Virginia    on   crimes

arising from an incident in Afghanistan.                       A jury convicted them

of involuntary manslaughter.              They appealed, contending that the

court lacked jurisdiction over them and erred in instructing the

jury.     We affirm.



                                            I.

        Paravant,     a    subcontractor         under    a   Department      of    Defense

contract to perform various services in Afghanistan, employed

Drotleff and Cannon as weapons instructors.

        This   case       grows    out      of     an     automobile     accident       in

Afghanistan on May 5, 2009.               On that date, Drotleff, Cannon, and

others traveled westbound on Jalalabad road in a convoy of two

SUVs.     Drotleff and Cannon occupied the rear SUV.                       The lead SUV

was involved in an accident and its occupants were injured.                              At

trial, the Government argued that the lead SUV swerved to avoid

hitting a truck, while Drotleff and Cannon asserted that a small

car hit the lead SUV from behind.

     After the crash, Drotleff and Cannon stopped and exited

their vehicle.            A Toyota Corolla approached the accident scene

going eastbound.           According to Drotleff and Cannon, the Corolla

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had caused the accident.            They maintained that after hitting the

lead SUV the Corolla turned around and rapidly drove toward them

in a threatening manner.            Drotleff and Cannon opened fire on the

Corolla, hitting its driver and passenger and a pedestrian.                         The

passenger and pedestrian later died from their injuries.

      After     the     incident,      Paravant   and   an     Army    investigator

conducted       accident    investigations        and   took    statements         from

Drotleff and Cannon.             In these statements Drotleff and Cannon

claim    that    they    acted    in    self-defense,    trying       to    stop    the

Corolla by firing at its lower portion and tires.                     Nevertheless,

the   Army’s     Criminal    Investigation        Division     began    a   criminal

investigation of them.

        Paravant fired Drotleff and Cannon and they returned to the

United States.          The Government indicted them pursuant to MEJA,

which provides federal courts with jurisdiction over individuals

who commit crimes while employed by the Department of Defense

abroad.     See 18 U.S.C. §§ 3261(a)(1), 3267(1) (2006).                    Drotleff

and Cannon unsuccessfully moved to dismiss the indictments on

the ground that Congress lacked the authority to enact MEJA and

that it was unconstitutional as applied to them.                      At trial, the

district court instructed the jury, over Drotleff and Cannons’

objections, on involuntary manslaughter and on false exculpatory

statements.       The jury convicted both Drotleff and Cannon of a



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single     count      of    involuntary             manslaughter         as       to        the    car

passenger.       They timely noted this appeal.



                                               II.

     Drotleff        and   Cannon           continue       to    argue       on   appeal           that

federal    courts      lack      jurisdiction          over       them    because           MEJA     is

unconstitutional,          both       facially       and     as-applied.               In     United

States    v.    Brehm,     691       F.3d    547     (4th    Cir.    2012),        we       recently

upheld MEJA in the face of a constitutional challenge.                                            Brehm

requires us to reject the very similar constitutional challenge

posed by Drotleff and Cannon here.



                                              III.

     Alternatively,           Drotleff         and      Cannon          contend         that        the

district court’s jury instructions suffered from three defects,

which    merit      reversal.          We    review     the      correctness           of    a     jury

instruction for abuse of discretion.                        United States v. Ebersole,

411 F.3d 517, 526 (4th Cir. 2005).

                                               A.

     The       district    court        sua    sponte           instructed        the       jury     on

involuntary manslaughter, a lesser-included offense of second-

degree murder, for which the Government had charged Drotleff and

Cannon.        To   justify      a    jury     instruction         on    a    lesser-included

offense, “the proof of the element that differentiates the two

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offenses must be sufficiently in dispute that the jury could

rationally find the defendant guilty of the lesser offense but

not guilty of the greater offense.”                     United States v. Wright,

131   F.3d   1111,    1112      (4th   Cir.      1997).        Drotleff     and   Cannon

maintain     that    the      court    erred       in     giving     an     involuntary

manslaughter       instruction       because     the     facts     cannot    support      a

conviction    for    that     offense.          Specifically,       they    argue    that

since they intentionally applied deadly force they could not

have committed involuntary manslaughter.

      A   defendant,      who    intentionally          uses   deadly     force     in   an

effort to defend himself but does not meet the requirements for

self-defense,       may      commit    voluntary,          but     not     involuntary,

manslaughter.       See, e.g., United States v. Manuel, 706 F.2d 908,

915 (9th Cir. 1983).            A defendant, who is entitled to use self-

defense and intends to use non-deadly force but through failure

to exercise due caution and circumspection causes the death of

another, may commit involuntary manslaughter.                      Id.     Drotleff and

Cannon maintain that firing on an occupied vehicle necessarily

involves the use of deadly force.

      Their own argument in the district court forecloses that

contention, for they themselves argued that they fired at the

tires and lower portion of the Corolla in order to disable it

and   did    not    intend      to   kill   or     injure      anyone.        The    jury

reasonably could have found, as they maintained, that Drotleff

                                            6
and Cannon did not intend to use deadly force.                       Accordingly, the

district     court    did   not   err        in    giving       an    instruction        on

involuntary manslaughter.

                                        B.

       Drotleff    and   Cannon   next       challenge       the      content      of   the

involuntary manslaughter instruction.                    First, they take issue

with   the   court’s     statement    that         to    convict      a   defendant      of

involuntary manslaughter the jury had to find that “the death

charged occurred while the defendant was committing a lawful act

-- that is, self-defense -- in an unlawful manner by failing to

exercise     due     caution   and    circumspection             in       firing    their

weapons.”      Drotleff     and   Cannon          note   that    justifiable        self-

defense is a complete defense that bars conviction.                          They argue

that the instruction allowed the jury to find that they acted in

self-defense but still convict them, while a finding of self-

defense should have ended the inquiry.                     Further, they maintain

that the instruction impermissibly grafts the requirements of

“due caution and circumspection” onto the definition of self-

defense.

       These arguments fail.         In evaluating the adequacy of jury

instructions, a particular instruction “may not be judged in

artificial isolation, but must be viewed in the context of the

overall charge.”         Cupp v. Naughten, 414 U.S. 141, 147 (1973).

Drotleff and Cannon ignore other language in the instructions

                                         7
that clearly articulates the relationship between self-defense

and   involuntary   manslaughter,   relieving   any    concern    that   the

jury might have been guided by their strained interpretation.

      Additionally,    Drotleff     and    Cannon      argue     that    the

involuntary   manslaughter   instruction    impermissibly      shifted   to

them the burden of proving self-defense.              This argument also

fails; the court had already given a separate instruction on

self-defense in which it made clear that the Government always

bears the burden of proving that a defendant did not act in

justifiable self-defense.

                                    C.

      Finally, Drotleff and Cannon assert that the district court

erred in giving the following instruction on false exculpatory

statements:

      Statements   knowingly  and   voluntarily made   by  a
      defendant upon being informed of an investigation may
      be considered by the jury.           When a defendant
      voluntarily offers an explanation or voluntarily makes
      some statement tending to show his innocence and it is
      later shown that the defendant knew that this
      statement was false, the jury may consider this as
      showing a consciousness of guilt . . . .

      Drotleff and Cannon made the statements at issue here in

connection with investigations by Paravant and the Army, before

being informed that a criminal investigation was underway.                In

those statements, Drotleff and Cannon indicate that the Corolla

caused the accident and drove in a threatening manner and thus


                                    8
suggest     that     they   acted      in    self-defense.          At   trial,     the

Government     presented         evidence       contradicting      the   statements.

Drotleff     and     Cannon      argue      that    an     instruction       on   false

exculpatory    statements         is   appropriate       only     when   a   defendant

makes an allegedly false statement to a law enforcement officer

after being arrested or informed of a criminal investigation,

and was thus improper here.

     We need not address this argument because any error was

harmless.          There    is    no   dispute      that    the    allegedly      false

statements were admissible, and the Government would have been

free to argue that they reflect consciousness of guilt in the

absence of the court’s instruction.                 Moreover, as the Government

pointed out at oral argument, in finding Drotleff and Cannon

guilty only of involuntary manslaughter, the jury appears to

have credited their account that they shot at the Corolla in an

attempt to disable it, rendering this instruction irrelevant.



                                            IV.

     For the foregoing reasons, the judgment of the district

court is

                                                                             AFFIRMED.




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