US v. Christopher Drotleff, No. 11-4677 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4677 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTOPHER A. DROTLEFF, Defendant - Appellant. No. 11-4744 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JUSTIN H. CANNON, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (2:10-cr-00001-RGD-FBS-2; 2:10-cr-00001-RGDFBS-1) Argued: October 26, 2012 Decided: November 29, 2012 Before NIEMEYER, MOTZ, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Trey R. Kelleter, VANDEVENTER BLACK, LLP, Norfolk, Virginia; Larry Mark Dash, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for Appellants. Alan Mark Salsbury, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Alexandria, Virginia, Frances H. Pratt, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for Appellant Cannon. Neil H. MacBride, United States Attorney, Alexandria, Virginia, Randy Stoker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia; Jay A. Bauer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Unpublished decisions are not binding precedent in this circuit. 2 PER CURIAM: Pursuant to the Military Extraterritorial Jurisdiction Act ( MEJA ), Justin the Cannon Government in the indicted Eastern Christopher District of arising from an incident in Afghanistan. of involuntary manslaughter. Drotleff Virginia on and crimes A jury convicted them They appealed, contending that the court lacked jurisdiction over them and erred in instructing the jury. We affirm. I. Paravant, a subcontractor under a Department of Defense contract to perform various services in Afghanistan, employed Drotleff and Cannon as weapons instructors. This case grows out Afghanistan on May 5, 2009. of an automobile accident in On that date, Drotleff, Cannon, and others traveled westbound on Jalalabad road in a convoy of two SUVs. Drotleff and Cannon occupied the rear SUV. The lead SUV was involved in an accident and its occupants were injured. At trial, the Government argued that the lead SUV swerved to avoid hitting a truck, while Drotleff and Cannon asserted that a small car hit the lead SUV from behind. After the crash, Drotleff and Cannon stopped and exited their vehicle. going eastbound. A Toyota Corolla approached the accident scene According to Drotleff and Cannon, the Corolla 3 had caused the accident. They maintained that after hitting the lead SUV the Corolla turned around and rapidly drove toward them in a threatening manner. Drotleff and Cannon opened fire on the Corolla, hitting its driver and passenger and a pedestrian. The passenger and pedestrian later died from their injuries. After conducted the incident, accident investigations Drotleff and Cannon. claim that they Paravant and an and took Army statements Army s acted Criminal from In these statements Drotleff and Cannon in self-defense, trying Corolla by firing at its lower portion and tires. the investigator Investigation Division to stop the Nevertheless, began a criminal investigation of them. Paravant fired Drotleff and Cannon and they returned to the United States. The Government indicted them pursuant to MEJA, which provides federal courts with jurisdiction over individuals who commit crimes while employed by the Department of Defense abroad. See 18 U.S.C. ยงยง 3261(a)(1), 3267(1) (2006). Drotleff and Cannon unsuccessfully moved to dismiss the indictments on the ground that Congress lacked the authority to enact MEJA and that it was unconstitutional as applied to them. At trial, the district court instructed the jury, over Drotleff and Cannons objections, on involuntary manslaughter and on false exculpatory statements. The jury convicted both Drotleff and Cannon of a 4 single count passenger. of involuntary manslaughter as to the car They timely noted this appeal. II. Drotleff federal and courts Cannon lack both States 691 Brehm, facially F.3d 547 to argue over jurisdiction unconstitutional, v. continue them and (4th on appeal because as-applied. Cir. MEJA In 2012), that we is United recently upheld MEJA in the face of a constitutional challenge. Brehm requires us to reject the very similar constitutional challenge posed by Drotleff and Cannon here. III. Alternatively, Drotleff and Cannon contend that the district court s jury instructions suffered from three defects, which merit reversal. We review the instruction for abuse of discretion. correctness of a jury United States v. Ebersole, 411 F.3d 517, 526 (4th Cir. 2005). A. The district court sua sponte instructed the jury on involuntary manslaughter, a lesser-included offense of seconddegree murder, for which the Government had charged Drotleff and Cannon. To justify a jury instruction on a lesser-included offense, the proof of the element that differentiates the two 5 offenses must be sufficiently in dispute that the jury could rationally find the defendant guilty of the lesser offense but not guilty of the greater offense. 131 F.3d maintain 1111, that manslaughter conviction 1112 the (4th court instruction for that Cir. United States v. Wright, 1997). erred because offense. in Drotleff giving the facts Specifically, and an Cannon involuntary cannot they support argue a that since they intentionally applied deadly force they could not have committed involuntary manslaughter. A defendant, who intentionally uses deadly force in an effort to defend himself but does not meet the requirements for self-defense, may manslaughter. See, e.g., United States v. Manuel, 706 F.2d 908, 915 (9th Cir. 1983). commit voluntary, but not involuntary, A defendant, who is entitled to use self- defense and intends to use non-deadly force but through failure to exercise due caution and circumspection causes the death of another, may commit involuntary manslaughter. Id. Drotleff and Cannon maintain that firing on an occupied vehicle necessarily involves the use of deadly force. Their own argument in the district court forecloses that contention, for they themselves argued that they fired at the tires and lower portion of the Corolla in order to disable it and did not intend to kill or injure anyone. The jury reasonably could have found, as they maintained, that Drotleff 6 and Cannon did not intend to use deadly force. district court did not err in giving Accordingly, the an instruction on involuntary manslaughter. B. Drotleff and Cannon next challenge involuntary manslaughter instruction. with the court s statement that to the content of the First, they take issue convict a defendant of involuntary manslaughter the jury had to find that the death charged occurred while the defendant was committing a lawful act -- that is, self-defense -- in an unlawful manner by failing to exercise weapons. due caution Drotleff and and circumspection Cannon note that in firing justifiable defense is a complete defense that bars conviction. their self- They argue that the instruction allowed the jury to find that they acted in self-defense but still convict them, while a finding of selfdefense should have ended the inquiry. Further, they maintain that the instruction impermissibly grafts the requirements of due caution and circumspection onto the definition of selfdefense. These arguments fail. In evaluating the adequacy of jury instructions, a particular instruction may not be judged in artificial isolation, but must be viewed in the context of the overall charge. Cupp v. Naughten, 414 U.S. 141, 147 (1973). Drotleff and Cannon ignore other language in the instructions 7 that clearly articulates the relationship between self-defense and involuntary manslaughter, relieving any concern that the jury might have been guided by their strained interpretation. Additionally, involuntary Drotleff manslaughter and instruction Cannon argue impermissibly them the burden of proving self-defense. that shifted the to This argument also fails; the court had already given a separate instruction on self-defense in which it made clear that the Government always bears the burden of proving that a defendant did not act in justifiable self-defense. C. Finally, Drotleff and Cannon assert that the district court erred in giving the following instruction on false exculpatory statements: Statements knowingly and voluntarily made by a defendant upon being informed of an investigation may be considered by the jury. When a defendant voluntarily offers an explanation or voluntarily makes some statement tending to show his innocence and it is later shown that the defendant knew that this statement was false, the jury may consider this as showing a consciousness of guilt . . . . Drotleff and Cannon made the statements at issue here in connection with investigations by Paravant and the Army, before being informed that a criminal investigation was underway. In those statements, Drotleff and Cannon indicate that the Corolla caused the accident and drove in a threatening manner and thus 8 suggest that Government Drotleff they acted presented and exculpatory Cannon statements in self-defense. evidence argue is contradicting that an appropriate At trial, the statements. instruction only when the a on false defendant makes an allegedly false statement to a law enforcement officer after being arrested or informed of a criminal investigation, and was thus improper here. We need not address this argument because any error was harmless. There is no dispute that the allegedly false statements were admissible, and the Government would have been free to argue that they reflect consciousness of guilt in the absence of the court s instruction. Moreover, as the Government pointed out at oral argument, in finding Drotleff and Cannon guilty only of involuntary manslaughter, the jury appears to have credited their account that they shot at the Corolla in an attempt to disable it, rendering this instruction irrelevant. IV. For the foregoing reasons, the judgment of the district court is AFFIRMED. 9
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