United States of America, Plaintiff-appellee, v. Joseph E. Coe, Defendant-appellant, 69 F.3d 549 (10th Cir. 1995)

ORDER AND JUDGMENT¹ 

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

A jury convicted Joseph E. Coe of one count of assault on a correctional officer in violation of 18 U.S.C. 111(a) (1) and 1114, and the district court sentenced him to thirty-six months imprisonment, the statutory maximum. The record shows that while he was serving a sentence for bank robbery at the United States Penitentiary in Leavenworth, Kansas, Mr. Coe got into an argument with Waldo Martinez, a case manager at the prison, over Mr. Martinez' decision to forward a disciplinary report against Mr. Coe to the prison's disciplinary hearing officer. The argument escalated until Mr. Coe struck Mr. Martinez in the right eye, causing a wound that required seven stitches to close, and then continued to strike him until other correctional officers arrived and subdued him. Mr. Coe now challenges his conviction and sentence. We affirm.

Mr. Coe first contends the district court abused its discretion when it denied his motion to subpoena Lt. Savitch, the officer in charge of the disciplinary unit at Leavenworth. See Fed. R. Crim. P. 17(b). Mr. Coe's attorney made an oral proffer at the hearing on the motion, in which he stated he expected Lt. Savitch to testify: (1) Mr. Coe had been in the disciplinary segregation unit for three weeks before the incident with Mr. Martinez; (2) neither Lt. Savitch nor Mr. Coe knew why Mr. Coe had been placed in the segregation unit; and (3) no charges had been brought against Mr. Coe that would warrant disciplinary segregation. Mr. Coe's attorney admitted, however, he had never talked to Lt. Savitch and all of the information in the proffer was "from my client."

Mr. Coe's attorney explained the relevance of Lt. Savitch's testimony as follows:

Now, [Mr. Coe's] testimony will be that based upon the unusual and irregular activities that occurred earlier with him being locked up for three weeks for no particular reason that he could find out, that when he felt the hand of [another case manager] on his back, ... he thought he was under attack. It shows that there is some reason for him to believe that he was the object of more than normal interest by the authorities. That's why he made the mistake to thinking he was under attack, when it appears he really was not. That's the relevance of Lt. Savitch.

The district court denied the motion because there was "a substantial question" whether Lt. Savitch would actually testify to the facts stated in the proffer and because his testimony was not "necessary to an adequate defense" within the meaning of Fed. R. Crim. P. 17(b). See United States v. Hernandez-Urista, 9 F.3d 82, 84 (10th Cir. 1993) (to be "necessary to the defense," testimony must be relevant, material, and useful in exculpating defendant). We agree with the district court's assessment of the proffer and find no abuse of discretion.

Next, Mr. Coe contends the district court erred when it refused to submit the following instruction to the jury:

It is the theory of the defense that Mr. Coe was mistaken as to the intent of the correctional officer, as he incorrectly thought they were attacking him with excessive force. If a person reasonably believes facts to be other than they were and his actions would have been innocent had his belief been correct, then that mistake of fact constitutes a defense to the charge of assault. Should you so find, then you must find the accused not guilty.

"A defendant is entitled to jury instructions on his theory of defense if it is supported by sufficient evidence." United States v. Migliaccio, 34 F.3d 1517, 1523 (10th Cir. 1994). The defense theory was that Mr. Coe assaulted Mr. Martinez in self-defense because of his mistaken belief Mr. Martinez was attacking him. Mr. Coe testified he was leaving Mr. Martinez' office when Mr. Martinez said something "personal" that caused Mr. Coe to turn and go back in. When Mr. Coe came back into the office, he "felt someone grab [him] on the shoulder" from behind. When he saw Mr. Martinez in front of him and felt a hand touch his shoulder from behind, "it just kind of ignited something in [him]" and he attacked Mr. Martinez. The district court rejected the instruction because: "The evidence here utterly fails to establish a self-defense theory." We agree. Mr. Martinez was in front of Mr. Coe. The hand came from behind Mr. Coe. It is difficult to imagine Mr. Coe would attempt to defend himself from an individual standing behind him by moving forward and attacking a person standing in front of him.

Third, Mr. Coe contends it was clear error for the district court to deny his request for a two-point decrease in offense level for acceptance of responsibility. USSG 3E1.1(a). He asserts the decrease was appropriate because (1) he "did not simply go to trial and deny involvement in the offense," but instead "admitted substantial involvement in the offense"; (2) he admitted he struck Mr. Martinez; (3) he never said anyone had struck him; and (4) he "testified repeatedly that the impetus for the punching of Mr. Martinez was the general tone of the meeting, the history of tension and unexplained disciplinary conduct he had been subject to, followed by the grabbing or pushing on his back." According to Mr. Coe's brief on appeal, this means "in effect Mr. Coe's testimony became a confession."

The defendant bears the burden of proving a decrease for acceptance of responsibility is warranted. United States v. Whitehead, 912 F.2d 448, 450 (10th Cir. 1990).

Th [e] adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct).

USSG 3E1.1, comment. (n.2). The district court found this case was by no means one of the "rare situations" in which the defendant has put the government to its burden of proof but is nevertheless entitled to a reduction in his offense level for acceptance of responsibility. We agree.

Finally, Mr. Coe contends the district court erred by increasing his offense level two points for obstruction of justice because he perjured himself at trial, as recommended in his presentence report. USSG 3C1.1. The government contends any error was harmless. We agree. Mr. Coe's base offense level was 6. USSG 2A2.4. After adding a three-point increase because the offense involved physical contact, USSG 2A2.4(b) (1), and the two-point increase for obstruction of justice, his total offense level was 11. However, because Mr. Coe was a career offender, his minimum offense level was 12. USSG 4B1.1(G).²  Thus, the increase in his offense level had no effect on his total offense level or sentence. Indeed, the district court itself recognized this during the sentencing hearing. It stated:

The court further notes that the overall offense level is not greatly affected by [the increase for obstruction of justice]. Based on the career offender provisions of USSG section 4(b)1.1 [sic], the base offense level cannot be lower than 12 in this matter. Even if the court were to grant [the objection to the two-point increase], the base offense level would only temporarily be lowered; however, once the chapter 4 enhancements are made, the offense level would once again become 12.

For the reasons stated, the judgment and sentence is AFFIRMED.