Unpublished Disposition, 899 F.2d 1226 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1226 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Mark Anthony WATSON, Defendant-Appellant.

No. 89-10177.

United States Court of Appeals, Ninth Circuit.

Submitted March 13, 1990.* Decided April 13, 1990.

Before FLETCHER, PREGERSON and NELSON, Circuit Judges.


MEMORANDUM** 

Mark Anthony Watson appeals his conviction and sentence on two counts of assault with a dangerous weapon with intent to do bodily harm in violation of 18 U.S.C. § 113(c). For the reasons which follow, we affirm both the conviction and the sentence.

BACKGROUND

In April 1988, appellant Mark Anthony Watson was

incarcerated in the Federal Correctional

Institution at Phoenix, Arizona.

On April 17, 1988, Watson was involved in a fight with some of his fellow inmates. At some point during this fight, Watson used a metal bar to strike and/or threaten two of the other combatants. Prison authorities ultimately broke up the fight, and an investigation ensued.

As a result of the investigation, a grand jury indictment was filed against Watson on November 9, 1988. The indictment charged him with two counts of assault with a dangerous weapon with intent to do bodily harm, in violation of 18 U.S.C. § 113(c).

Watson pleaded not guilty to both counts on November 16, 1988 and was tried before a jury beginning on January 24, 1989. At trial, he admitted involvement in the fight, but claimed to have wielded the metal bar in self-defense. The jury rejected this claim and convicted Watson on both counts on February 2, 1989.

A presentence report determined Watson's sentence range under the Sentencing Guidelines to be 46 to 57 months. On April 10, 1989, the district court sentenced him to concurrent sentences of 57 months on each count, to be followed by three years of supervised release. The entire sentence was set to run consecutive to the sentence which Watson was already serving.

On the day of sentencing, Watson filed a notice of appeal covering both his conviction and his sentence.

DISCUSSION

I. Denial of Reduction for Acceptance of Responsibility

Watson claims that the district court erred in denying him a two-level reduction in his offense level for sentencing purposes under section 3E1.1 (Acceptance of Responsibility) of the Sentencing Guidelines. The grant or denial of a reduction for acceptance of responsibility is a factual determination reviewed under the clearly erroneous standard. United States v. Gonzalez, No. 89-50131, slip op. at 2487 (9th Cir. Mar. 7, 1990).2 

Watson's theory is that since he admitted participation in the fight and use of the metal bar as a weapon, he has accepted responsibility for his actions. However, Watson has denied at every stage of these proceedings that he was responsible for the fight in the sense of having been the aggressor. He claimed at trial that he had acted in self-defense and that his actions were therefore excusable. The jury concluded otherwise. After his conviction, Watson refused to cooperate with the probation officials who were preparing his presentence report.

Mere acknowledgment of participation in a violent incident, when accompanied by an assertion that the act was legally and morally correct, does not constitute "affirmative acceptance of personal responsibility for the offense" as required by the Guidelines. Sentencing Guidelines Sec. 3E1.1(a). The commentary accompanying section 3E1.1 describes the mental state associated with acceptance of responsibility as "sincere contrition" and "sincere remorse." Sentencing Guidelines Sec. 3E1.1, Application Note 2, Background. The trial court found that Watson had instigated the prison fight, and that he was neither contrite nor remorseful.3  Nothing in the record indicates that this finding was erroneous.4 

II. Rejection of Lesser Included Offense Instruction

Watson claims that the district court erred in refusing to instruct the jury that as an alternative to convicting him as charged, it could consider convicting him of assault by striking, beating, or wounding as a "lesser included offense." See 18 U.S.C. § 113(d). This instruction is permitted under Federal Rule of Criminal Procedure 31(c) if and only if the alternative offense is "necessarily included in the offense charged." Whether one offense is "necessarily included" in another is reviewed de novo. United States v. Gregory, 891 F.2d 732, 734 (9th Cir. 1989).

Watson's argument lacks merit because assault by striking, beating, or wounding involves an element which is not necessarily part of the charged offense.5  In Schmuck v. United States, 109 S. Ct. 1443 (1989), the Supreme Court held that no instruction may be given under Rule 31(c) "unless the elements of the lesser offense are a subset of the elements of the charged offense." Id. at 1450. In so holding, the Court expressly rejected the "inherent relationship" approach to Rule 31(c), under which this circuit had previously permitted Rule 31(c) instructions for offenses with elements which did not completely overlap, provided that the offenses were closely related. Following the clear command of Schmuck, the Ninth Circuit now applies the strict "elements test" for rule 31(c) instructions and consistently denies instructions for offenses with elements beyond those of the charged offense. Gregory, 891 F.2d at 734; United States v. Lopez, 885 F.2d 1428, 1436 (9th Cir. 1989); United States v. Komisaruk, 885 F.2d 490, 497-98 (9th Cir. 1989). We do the same here.6 

Watson's final argument is that the district court erred by not declaring a mistrial after the prosecution cross-examined him in a way that allegedly violated a pretrial stipulation. Denial of a motion for mistrial is reviewed for abuse of discretion. United States v. Segal, 852 F.2d 1152, 1155 (9th Cir. 1988).

Before Watson's trial, there was controversy over the admissibility of evidence regarding prior bad acts. The dispute was resolved by a stipulation which provided that the jury would only be told that Watson had "been convicted of felony offenses involving serious assaultive behavior."

During cross-examination, the prosecutor asked Watson several questions which Watson's attorney took as allusions to a history of physical and sexual aggression against other prisoners. The defense objected to the questions; the judge sustained the objections, ended the line of questioning, and told the jury to disregard the questions. Defense counsel then moved for a mistrial. The judge determined that his cautionary instruction to the jury had been sufficient to cure any violation of the pretrial stipulation, and he denied the motion.

"Declaring a mistrial is appropriate only where a cautionary instruction is unlikely to cure the prejudicial effect of an error." United States v. Charmley, 764 F.2d 675, 677 (9th Cir. 1985) (citing United States v. Gann, 732 F.2d 714, 725 (9th Cir.), cert. denied, 469 U.S. 1034 (1984)). The district court did not abuse its discretion by determining that any prejudicial effect of the prosecutor's questions had been dispelled by the instruction.

The judgment of the district court is AFFIRMED.

 1

 *

The panel unanimously finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

Watson was serving a sentence of 20 years to life for the murder of a police officer in Washington, D.C

 2

Application Note 5 to Sec. 3E1.1 says that " [t]he sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation."

 3

At Watson's sentencing hearing, the trial court explained its decision to deny the reduction as follows:

[Watson] initiated the invasion of [an inmate's] cell, provoked the fight and seriously assaulted [two inmates]. He has refused to talk to the probation officer or acknowledge his responsibility to anyone. That he maintains [his view that he acted in self-defense] is certainly his right, but it doesn't constitute an acceptance of responsibility.

 4

Watson argued that the burden was on the government to prove that he had not accepted responsibility. This is not the case; this court recently held that defendants bear the burden of proving that they are entitled to reductions under the Guidelines. United States v. Howard, No. 89-30093, slip op. at 833-34 (9th Cir. Jan. 25, 1990). Watson has not met his burden

 5

Assault by striking, beating, or wounding requires actual physical contact. United States v. Johnson, 637 F.2d 1224, 1242 n. 26 (9th Cir. 1980); United States v. Stewart, 568 F.2d 501, 504-05 (6th Cir. 1978). Physical contact is not an element of assault with a dangerous weapon with intent to do bodily harm. United States v. Dupree, 544 F.2d 1050, 1052 (9th Cir. 1976)

 6

Watson claims that this court should use the inherent relationship approach to Rule 31(c) in this case, since it was the law of the circuit at the time of trial. He is incorrect. Generally, we apply the law as it exists at the time of an appeal, not at the time of trial. Bradley v. Richmond School Bd., 416 U.S. 696, 711 (1970)

This general rule is sometimes limited in criminal cases by the ex post facto clause of the Constitution. U.S. CONST. art. I, Sec. 9, cl. 3. This clause does not of its own force apply to the judicial branch, however, and the retroactive application of judicial decisions is unconstitutional only if it deprives defendants of "fair warning" that their actions were unlawful when committed. Marks v. United States, 430 U.S. 188, 191 (1976); Forman v. Wolff, 590 F.2d 283, 284 (9th Cir. 1978). The elements approach does not deprive Watson of fair warning that assault with a dangerous weapon was unlawful in 1988.

See generally Gregory, Lopez, Komisaruk (applying elements test in cases tried prior to Schmuck) .