United States of America, Plaintiff-appellee, v. Russell Lupe, Jr., Defendant-appellant, 8 F.3d 32 (9th Cir. 1993)

MEMORANDUM^** 

The judgment of the district court is affirmed for the following reasons:

1. Gender neutral reasons were given by the prosecutor for all preemptory strikes of male veniremen. The transcript shows only "an independent entry" as the prosecutor's reason for striking Mr. Ewing. The word "entry" may be an error of the reporter, but a person too independent to follow the evidence and the court's instruction would not be an acceptable juror.

2. The court did not commit an abuse of discretion in refusing to excuse Mr. Hastings for cause. Although his wife had been attacked about the same time and on the same reservation, Mr. Hastings convinced the judge that he would be a fair and impartial juror.

3. The court did not abuse its discretion in preventing cross-examination of the victim about a completely unrelated false police report.

4. This court has examined the statements of the victim and her mother withheld from the defense. The statements would not have aided the defense.

5. There was no error in refusing an instruction on assault. Under the precedent of this circuit a lesser included offense must have elements that are a subset of the elements of the charged offense. United States v. Sneezer, 900 F.2d 177, 179 (9th Cir. 1990). The elements of assault and aggravated sexual abuse are different.

6. The instruction on intoxication may have been error, although there was evidence that Lupe had been drinking. In any event, the instruction was clearly harmless.

AFFIRMED.