Unpublished Disposition, 904 F.2d 41 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 904 F.2d 41 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Harry BILEEN, Jr., Defendant-Appellant.

No. 89-10329.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 17, 1990.Decided June 1, 1990.

Appeal from the United States District Court for the District of Arizona; Charles L. Hardy, District Judge, Presiding.

D. Ariz.

AFFIRMED.

Before TANG, WILLIAM A. NORRIS and FERNANDEZ, Circuit Judges.


MEMORANDUM* 

Harry Bileen, Jr. ("Bileen") appeals his conviction for second degree murder under 18 U.S.C. §§ 1111, 1153. Bileen argues that there was insufficient evidence to support the conviction and that the district court erred when it refused to give several jury instructions requested by Bileen.

We affirm Bileen's conviction.

BACKGROUND FACTS

On the morning of July 13, 1986, Bileen struck Elmer Clah ("Clah") with Bileen's half-ton pick-up truck. Three days later, Clah died from the injuries he suffered in that incident. The incident began earlier on July 13th when Bileen and his common law wife, Jeanette Charli ("Charli"), returned home from a night of drinking. Bileen and his wife had been fighting throughout the night. At some point in the early morning Charli cut her wrist and her wrist was bleeding when the couple returned home.

The couple lived with some relatives in a small compound of homes. Bileen and Charli shared one house with Bileen's mother, Alice. There were several other relatives who lived in the compound including Bileen's cousin Sherilene Begay and Bileen's uncle, Elmer Clah. When Bileen and Charli arrived at the compound, Charli got out of the truck and ran over to Alice's house. Alice and Clah and one of Bileen's brothers were standing under the carport and talking. Charli ran behind Clah and told the group that Bileen had made her wrist bleed. Bileen then entered the carport and Clah told him that he should not mistreat his wife. Bileen and Clah got into an argument and Bileen offered to fight Clah. Clah said that he was going to get a gun and shoot Bileen. Clah left the carport and walked over to another house in the compound.

Bileen then left the carport and got into his truck. Bileen first drove the truck forward and hit a brick hogan where Clah's family was sleeping. He then backed up the truck so that it was facing Alice's house. By that time Clah was walking back towards Alice's house. Bileen drove the truck forward at about fifteen to thirty miles per hour and ran it into Clah. Bileen immediately put the truck into reverse and drove out of the compound.

Bileen was indicted for second degree murder and was brought to trial on May 2, 1989. After the close of all of the evidence, the district court instructed the jury on both second degree murder and on involuntary manslaughter. The jury returned a guilty verdict on the charge of second degree murder.

JURISDICTION AND STANDARDS OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review the sufficiency of the evidence "by looking at it in the light most favorable to the government." United States v. Pisello, 877 F.2d 762, 764 (9th Cir. 1989). The appellate court must determine whether any rational trier of fact could have found beyond a reasonable doubt that the government had established all of the essential elements of the crime. Id.

This circuit has not clearly established what standard of review it uses to determine whether a district court properly denied a party's request for a jury instruction. United States v. Whitehead, 896 F.2d 432, 434 (9th Cir. 1990). At times we have applied an abuse of discretion standard and at other times we have reviewed the district court's decision de novo. Id. We need not become entangled in this apparent conflict as the district court did not err under either standard.

On appeal, we must consider the jury instructions as a whole to determine whether they were misleading or inadequate to guide the jury in its deliberations. United States v. Marsh, 894 F.2d 1035, 1040 (9th Cir. 1989), cert. denied, --- U.S. ----, 110 S. Ct. 1143, 107 L. Ed. 2d 1048 (1990). A district court must instruct the jury on each party's theories of the case as long as the particular theory is supported by some evidence. United States v. Sotelo-Murillo, 887 F.2d 176, 178-79 (9th Cir. 1989). However, that does not mean that either party is entitled to the particular language he had requested in a proposed jury instruction. United States v. Soulard, 730 F.2d 1292, 1303 (9th Cir. 1984); United States v. Gering, 716 F.2d 615, 622 (9th Cir. 1983).

DISCUSSION

Bileen argues that the government did not present sufficient evidence from which the jury could have concluded that he committed second degree murder. A person is guilty of second degree murder if he kills a person with malice aforethought. 18 U.S.C. § 1111; United States v. Lesina, 833 F.2d 156, 158-59 (9th Cir. 1987). A jury may find malice aforethought if a defendant either intentionally or deliberately killed a person or if the defendant acted with extreme recklessness and complete disregard for human life. Lesina, 833 F.2d at 158-59. Furthermore, a jury may infer malice aforethought if a defendant killed his victim with a deadly weapon or some other type of instrument. Id. at 159.

In this case, the jury heard testimony from an eyewitness to the incident, Sherilene Begay. Begay stated that Bileen drove the car directly at Clah even though Bileen's brother yelled out for Bileen to stop. Begay also testified that Bileen did not apply the brakes until he had hit Clah. The jury also heard testimony that Bileen was travelling at least fifteen miles per hour and may have been travelling up to thirty miles per hour at the time he hit Clah. Even Bileen admitted that he drove the truck quite fast. The jury also knew that Bileen drove his truck into the hogan where Clah's family was sleeping. The jury had a diagram of the compound so they knew the relative distance between various points in the compound. Finally, the jury heard testimony that Bileen and Clah had argued and that Clah stated he was coming back to the house with a gun.

From the evidence, the jury could have reasonably concluded that Bileen acted with extreme recklessness when he drove his truck directly at Clah at a high speed in a confined area. The jury was entitled to believe the testimony of Begay and other witnesses rather than Bileen's own testimony that he did not see Clah and that he hit Clah by accident. The jury's verdict was not in error.

Bileen requested that the district court give the jury several instructions on the level of culpability required for second degree murder and involuntary manslaughter. The court did not give Bileen's requested instructions but instead used the Model Ninth Circuit instructions for second degree murder and involuntary manslaughter. See Ninth Circuit Model Jury Instruction 8.24B and 8.24D (1989). Bileen claims that the district court's instructions did not clearly indicate to the jury that the government had the burden of proving the requisite mens rea for second degree murder and manslaughter. Bileen also claims that the district court did not adequately explain to the jury the concept of "beyond a reasonable doubt." Bileen's arguments are without merit.

In essence, Bileen disputes the way in which the district court phrased the mens rea requirements for second degree murder and involuntary manslaughter. Bileen's instructions used the term "gross negligence," whereas the district court used the phrases "recklessly with extreme disregard for life" and "dangerous to human life or done with reckless disregard." As noted earlier, a party is not entitled to particular language in a jury instruction. Soulard, 730 F.2d at 1303. All that a district court is required to do is fairly and adequately cover the legal issues. Marsh, 894 F.2d at 1040.

Here, the district court correctly defined the mens rea required for second degree murder and the mens rea required for involuntary manslaughter and differentiated between the two. Lesina, 833 F.2d at 158-59; see also United States v. Keith, 605 F.2d 462, 463 (9th Cir. 1979). The district court told the jury that the government had to establish beyond a reasonable doubt that Bileen had acted recklessly and with extreme disregard for human life before the jury could find Bileen guilty of murder. The court also instructed the jury that Bileen could only be guilty of involuntary manslaughter if the government established that Bileen had acted recklessly but with mere disregard for human life. The court's instructions set out the important difference in the mens rea required for second degree murder and the mens rea required for involuntary manslaughter. See Lesina, 833 F.2d at 159. The court's instructions were plain, understandable and adequately instructed the jury on the relevant legal concepts. The district court did not err when it refused to give Bileen's instructions on the mens rea required for second degree murder and involuntary manslaughter.

Bileen also argues that the district court erred when it used the 1989 version of the Ninth Circuit Model Jury Instructions to guide the jury in understanding the concept of "beyond a reasonable doubt." The Model Jury Instruction adequately explained the concept of "beyond a reasonable doubt" to the jury. See Ninth Circuit Model Jury Instruction 3.03 (1989). The court did not err when it gave that instruction.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3