United States v. James Matheny , 523 F. App'x 996 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4839
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES A. MATHENY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
District Judge. (2:12-cr-00068-1)
Submitted: April 19, 2013 Decided: May 2, 2013
Before NIEMEYER, AGEE, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark McMillian, MARK MCMILLIAN - ATTORNEY AT LAW, L.C.,
Charleston, West Virginia, for Appellant. R. Booth Goodwin, II,
United States Attorney, Thomas C. Ryan, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James A. Matheny appeals from his convictions for
assaulting a federal officer with a deadly weapon and
brandishing a firearm during and in relation to a crime of
violence. The evidence showed that, in response to questioning
outside of his home regarding an ongoing investigation, Matheny
aimed a pistol at a federal officer and a state investigator
assisting that officer and threatened to kill them. Matheny
asserts on appeal that the evidence was insufficient to show
that he did not act in self-defense and that he “used” the
firearm. We affirm.
When an appellant challenges the sufficiency of the
evidence, the “jury verdict must be sustained if there is
substantial evidence, taking the view most favorable to the
Government, to support it.” United States v. Burgos, 94 F.3d
849, 862 (4th Cir. 1996) (en banc) (emphasis and internal
quotation marks omitted). “Substantial evidence is evidence
that a reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” United States v. Green, 599 F.3d 360, 367
(4th Cir. 2010) (internal quotation marks and citation omitted).
In determining whether substantial evidence supports the
verdict, we “must consider circumstantial as well as direct
evidence, and allow the government the benefit of all reasonable
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inferences from the facts proven to those sought to be
established.” United States v. Cameron, 573 F.3d 179, 183 (4th
Cir. 2009) (internal quotation marks and citations omitted).
“Appellate reversal on grounds of insufficient evidence . . .
will be confined to cases where the prosecution’s failure is
clear.” Green, 599 F.3d at 367 (internal quotation marks and
citation omitted). Matheny’s counsel objected to the
sufficiency of the evidence at trial, but the district court
found sufficient evidence to submit the matter to the jury.
Thus, we review the sufficiency of the evidence de novo. Id.Matheny first argues that he was unaware of the status
of the law enforcement victims, and thus, he acted in
proportional self-defense to a situation where two men, larger
than he was, trespassed on his land and confronted him.
Accordingly, he contends that the Government failed to prove,
beyond a reasonable doubt, that he did not act in self defense.
To sustain a conviction for assaulting a federal
officer with a dangerous weapon in violation of 18 U.S.C. § 111(2006), the Government must prove that Matheny used a dangerous
weapon to forcibly assault, resist, oppose, impede, intimidate,
or interfere with any designated federal officer while that
officer was performing official duties. We have held that § 111
“does not proscribe reasonable force employed in a justifiable
belief that it is exerted in self-defense.” United States v.
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Wallace, 368 F.2d 537, 538 (4th Cir. 1966). We have explained
that “the quantum of force which one may use in self-defense is
proportional to the threat which he reasonably apprehends.”
United States v. Black, 692 F.2d 314, 318 (4th Cir. 1982).
In short, then, where a defendant charged
with violating § 111 claims that he was
unaware that the victim was a federal
officer, the question becomes: would the
defendant have been justified, because of
the agent’s actions, in using force against
the agent had the latter, in fact, been a
“civilian.”
United States v. Hillsman, 522 F.2d 454, 460 (7th Cir. 1975).
In the present case, it is conceded that Matheny did
not know the victims included a federal officer. Nonetheless,
there was more than sufficient evidence to establish that
Matheny used force against the victims that was disproportionate
to any reasonably apprehended potential threat. There was no
evidence that either victim took any action that would have
given Matheny any reasonable belief that he was in physical
danger. Prior to Matheny pulling his weapon, neither victim
threatened Matheny, made an aggressive movement, took an
aggressive posture, or attacked him. Instead, the evidence
supported the conclusion that, in response to a ten-to-fifteen
second conversation, Matheny pulled a gun, aimed it at the
waists of both victims, threatened to kill them, and trained the
gun on them until they left. Because there was sufficient
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evidence to support the jury’s finding that Matheny did not act
in self defense, * the district court did not err in denying his
motion for judgment of acquittal.
Next, Matheny contends that there was insufficient
evidence that he “used” the firearm within the meaning of the
statute. Without a citation to any case law, Matheny avers
that, when referring to a firearm, “uses” in § 111(b) requires
that the defendant “discharge the weapon or attempt to discharge
the weapon.”
We find that Matheny’s definition is without support.
In a § 111(b) prosecution, a court “must apply the ‘ordinary or
natural’ meaning of the word ‘use,’ variously defined as ‘[t]o
convert to one's service,’ ‘to employ,’ ‘to avail oneself of,’
and ‘to carry out a purpose or action by means of.’” U.S. v.
Williams, 520 F.3d 414, 421 (5th Cir. 2008) (holding that
swinging and brandishing a shank constituted “use” under
§ 111(b)). Moreover, in a similar context, interpreting “use”
under 18 U.S.C. § 924(c) (2006), the Supreme Court has found
“use” of a firearm to include brandishing or displaying the
*
In fact, Katrina Thacker, Matheny’s daughter, testified
that Matheny told her he pulled the gun on Wise and Berry not
because he was afraid of them, but rather because they called
him a liar. Further, Matheny himself did not testify that he
was frightened prior to displaying his weapon; instead, he
testified that he became scared after he had already pulled out
the gun when one of the victims tried to get behind him.
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weapon. Bailey v. United States, 516 U.S. 137, 148-49 (1995);
see also United States v. Hayden, 85 F.3d 153, 161 (4th Cir.
1996) (noting that brandishing constitutes “use” of a firearm).
In addition, Matheny’s assertions that he made no actual contact
with the victims and that the firearm did not have a round
chambered are equally unavailing. See United States v. Hamrick,
43 F.3d 877, 880-83 (4th Cir. 1995) (affirming § 111(b)
conviction where defendant mailed a dysfunctional bomb to the
victim). Given the substantial evidence that Matheny brandished
a firearm while threatening the victims, we conclude there was
sufficient evidence to show “use” under the statute.
Accordingly, we affirm Matheny’s convictions. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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