United States of America, Plaintiff-appellee, v. Anthony Wolfname, Sr., Defendant-appellant, 951 F.2d 365 (9th Cir. 1991)

MEMORANDUM^* 

Anthony Wolfname appeals his conviction under 18 U.S.C. § 111 for assaulting a Bureau of Indian Affairs (BIA) police officer who sought to arrest him for public disturbance and intoxication. Wolfname argues that he had a legal right of self-defense against unjustified use of excessive force by the officer, whether or not the force was used in the performance of official duties. He therefore contends it was error for the district court to refuse to instruct the jury on self-defense. We affirm.

Even assuming that self-defense is a viable affirmative defense under § 111, an instruction on that theory is only warranted if there is sufficient evidence in the record to support it. Wolfname's theory was that he did not use any force on the officer. While several defense witnesses testified that Wolfname pushed his hands away from the officer, Wolfname testified himself and denied that he used any force against the officer. In light of Wolfname's testimony, we cannot say that there was evidence "upon which the jury could rationally sustain the defense." United States v. Jackson, 726 F.2d 1466, 1468 (9th Cir. 1984). Accordingly, the district court will not be reversed for failing to instruct on self-defense.

AFFIRMED.