United States v. Lashaun Nose , 636 F. App'x 431 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
FEB 16 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-30326
Plaintiff - Appellee, D.C. No. 2:11-cr-02086-EFS-2
v.
MEMORANDUM*
LASHAUN ROMAN NOSE,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, Senior District Judge, Presiding
Submitted February 2, 2016**
Seattle, Washington
Before: KOZINSKI, O’SCANNLAIN and GOULD, Circuit Judges.
1. Roman Nose signed a pretrial stipulation indicating that he was “an
Indian as that term is used in 18 United States Code 1153.” Given that Roman
Nose admitted he was an Indian as defined by the statute, a “rational trier of fact
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
page 2
could have found the [Indian status] element[] of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see 18 U.S.C. §§
113(a)(7), 1153 (charged offenses); see also United States v. Gwaltney, 790 F.2d
1378, 1386 (9th Cir. 1986) (discussing stipulations in criminal trials). Roman
Nose’s challenge to the sufficiency of the government’s evidence therefore fails.
Accordingly, so too does his jurisdictional challenge. See United States v. Ratigan,
351 F.3d 957, 963–64 (9th Cir. 2003) (explaining that “the jurisdictional element
of federal crimes does not present a pure question of the court’s subject-matter
jurisdiction” but rather one of sufficiency of the government’s evidence).
2. Roman Nose has presented no evidence that the stipulation was not freely
or voluntarily given. We reject his argument that “the stipulation itself provides a
sufficient record to establish its involuntariness.” In the absence of any facts
suggesting that his admissions were coerced or involuntary, we cannot say that the
introduction of the stipulation was erroneous. See United States v. Molina, 596
F.3d 1166, 1169 (9th Cir. 2010).
3. The district court did not abuse its discretion by admitting the coat
hangers and television wires as physical evidence. See United States v. Edwards,
235 F.3d 1173, 1178–79 (9th Cir. 2000); Chavira Gonzales v. United States, 314
page 3
F.2d 750, 752 (9th Cir. 1963). At trial, one witness testified that Roman Nose beat
the victim with hangers and wires, and another witness testified that the beatings
occurred in the back bedroom of the house. An FBI agent testified that she
discovered the hangers and wires in that bedroom. This testimony was sufficient to
lay foundation for the exhibits, establish their relevance and demonstrate their
probative value.
4. The district court did not err by declining to instruct the jury on the crime
of “Assault by Striking, Beating, or Wounding.” This lesser offense is not
included within the charged offense of “Assault Resulting in Substantial Bodily
Injury” because it contains a conduct element that is not an element of the greater
offense. See United States v. Johnson, 637 F.2d 1224, 1242 n.26 (9th Cir. 1980)
(noting that “[a]ssault by striking, beating, or wounding . . . . contemplates some
form of contact . . . which, strictly speaking, is not required of assault resulting in
serious bodily injury”), abrogated on other grounds by Schmuck v. United States,
489 U.S. 705 (1989). For this reason, Roman Nose was not entitled to his
proposed instruction on the lesser offense. See United States v. Rivera-Alonzo,
584 F.3d 829, 832–33 (9th Cir. 2009).
page 4
5. The sentence imposed by the district court was substantively reasonable.
See United States v. Valdavinos-Torres, 704 F.3d 679, 692 (9th Cir. 2012). The
fact that Perez received a lesser sentence for the same crime is of no moment.
Perez had a smaller role in the beatings and, unlike Roman Nose, she accepted
responsibility for her conduct. Moreover, the district judge paid adequate attention
to various factors that may have mitigated Roman Nose’s sentence. The district
judge expressly acknowledged that Roman Nose had experienced a difficult
childhood, but nonetheless concluded that the upward departure was justified by
his abhorrent conduct in this case.
AFFIRMED.