Opinion
21-30229
10-06-2022
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSEPH SAM, AKA William Earlystar Clark, Defendant-Appellant.
NOT FOR PUBLICATION
Submitted October 3, 2022 [**] Seattle, Washington
Appeal from the United States District Court for the Western District of Washington, D.C. No. 2:19-cr-00115-JCC-2 John C. Coughenour, District Judge, Presiding
Before: W. FLETCHER, BENNETT, and SUNG, Circuit Judges.
Partial Concurrence by Judge SUNG.
MEMORANDUM [*]
Defendant Joseph Sam appeals his conviction for assault resulting in serious bodily injury under 18 U.S.C. §§ 113(a)(6), 1153. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
Sam was convicted of conspiracy to commit robbery, robbery, and assault resulting in serious bodily injury. The victim was lured to a house in the Tulalip Indian Reservation. When the victim arrived, Sam approached from behind, wearing a face covering and carrying a loaded gun. Sam shot the victim in the back, leaving the victim paralyzed. Sam and his co-conspirators fled after robbing the victim. Before his arrest, Sam sent Facebook messages stating that he was "wanted on the [T]ulalip [Indian Reservation] for a shooting."
When Sam's trial occurred in 2021, this Circuit's model jury instruction for assault resulting in serious bodily injury under 18 U.S.C. § 113(a)(6) instructed that to convict, the jury had to find that the "defendant assaulted [the victim] by intentionally" striking or wounding the victim. 9th Cir. Model Crim. Jury Instr. 8.9 (2010). The 2022 revision made only a non-material change to the instruction and did not change this particular language. 9th Cir. Model Crim. Jury Instr. 8.8 (2022). The jury instructions used in this case mirrored the language in the model instructions.
During deliberations, the jury sent a note to the district court: "If we believe the defendant committed an assault, but it was not intentional, does that meet the criteria for the first element of the statute? What is the definition of 'intentionally,' according to the statute?" When the court asked the parties for their preferences on a response, the prosecutor stated: "Our proposal, Your Honor, would be to simply redirect them to the instruction. I think if we want to say something more, we could tell them that the word 'intentionally' has its ordinary and common usage, . . . but I don't know that it makes sense to say anything beyond that." When the court asked Sam's counsel for his view, he said: "The former alternative would be my preference." The district judge stated that "[his] inclination would be to tell [the jury], 'You must rely upon the instructions as delivered.'" Sam made no objection to this proposed course of action. The district judge orally answered the jury's question by stating: "You must rely upon the instructions as delivered to you by the Court." Sam again made no objection. The jury later returned its guilty verdicts.
Sam waived any challenge to the district court's answer to the jury question that forms the basis of his appeal. When the prosecutor proposed that the court "simply redirect" the jury to the previously given instruction, Sam's counsel stated that this proposal "would be [his] preference." "If the defendant has both invited the error, and relinquished a known right, then the error is waived and therefore unreviewable." United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc). In United States v. Guthrie, the jury asked a question about the elements of the crime. 931 F.2d 564, 567 (9th Cir. 1991). The trial court "offered to instruct the jury on the elements of constructive possession. Guthrie objected to this proposal . . . and requested . . . that the court reread its earlier instruction that the jury had to find he knowingly possessed the silencers. The court did so." Id. Citing the invited error doctrine, we held that because "[t]he [trial] court complied with Guthrie's request, . . . he cannot now complain of what he received." Id.
Nor did the district court err, much less plainly err. Sam argues that the district court reversibly erred by not answering explicit questions from the jury with concrete accuracy. To prevail on plain-error review, Sam must show "that (1) there is an 'error'; (2) the error is 'clear or obvious, rather than subject to reasonable dispute'; (3) the error 'affected the appellant's substantial rights, which in the ordinary case means' it 'affected the outcome of the district court proceedings'; and (4) 'the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" United States v. Marcus, 560 U.S. 258, 262 (2010) (alteration in original). "Meeting all four prongs is difficult, 'as it should be.'" Puckett v. United States, 556 U.S. 129, 135 (2009).
Sam's claim fails because the court did answer the jury's question and the answer was not erroneous. The jury asked: "If we believe the defendant committed an assault, but it was not intentional, does that meet the criteria for the first element of the statute? What is the definition of 'intentionally,' according to the statute?" The relevant instruction stated that, to convict Sam, the government had to prove that Sam assaulted the victim "by intentionally striking or wounding him." Thus, the district court answered the first half of the two-part question by redirecting the jury to the instructions already given. As the original instructions were correct, this answer was accurate, and any error in giving it was certainly not "clear or obvious." Marcus, 560 U.S. at 262.
As to the definition of "intentionally" according to the statute, the district court also did not plainly err. Sam claims that "[t]he district court also had to tell the jury what 'intentionally' meant, either by defining the term or telling the jury that 'intentionally' had its ordinary meaning." But Sam was offered this option when the government proposed that "we could tell [the jury] that the word 'intentionally' has its ordinary and common usage." Both Sam's counsel and the government preferred the option to redirect the jury to the previous instruction. Thus, again, any error in the district court's choosing this option was not "clear or obvious." Marcus, 560 U.S. at 262. But even if Sam's counsel hadn't picked that option, "[g]enerally, trial courts need not define terms to the jury that are obvious, in common use, or 'have plain and ordinary meanings within the statute.'" United States v. Lopez, 4 F.4th 706, 730 (9th Cir. 2021).
Sam also does not, and cannot, argue that the original instruction was erroneous. "Under federal law, assault resulting in serious bodily injury is a general intent crime which does not require proof of specific intent .... The general intent requirement is satisfied by proof that a defendant committed a volitional act that he or she knew or reasonably should have known was wrongful. A defendant is presumed to have intended the natural and probable consequences of his or her acts." United States v. McInnis, 976 F.2d 1226, 1233-34 (9th Cir. 1992) (citations omitted).
Sam also claims in his Reply Brief that the answer the district court gave was different from the one proposed by the government. Because that argument is raised for the first time in the Reply Brief, it is waived. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) ("[O]n appeal, arguments not raised by a party in its opening brief are deemed waived."). Even were it not waived, the argument is meritless.
AFFIRMED.
SUNG, Circuit Judge, concurring in part:
I concur with the conclusion that Sam waived any challenge to the district court's response to the jury question at issue, but I do not join the majority's unnecessary plain error discussion.
Because we conclude that Sam waived any challenge to the district court's response to the jury question, that issue is unreviewable. And because that issue is unreviewable, we have no reason to discuss whether the district court's response was plain error. We would need to discuss plain error only if we had concluded that Sam had forfeited, not waived, his claim. The majority discusses plain error even though it is not necessary to do so.
Reaching out to discuss the plain error issue is inconsistent with the "cardinal principle of judicial restraint": "if it is not necessary to decide more, it is necessary not to decide more." Morse v. Frederick, 551 U.S. 393, 431 (2007) (Breyer, J., concurring in judgment in part and dissenting in part) (quotation marks omitted) (quoting PDK Labs., Inc. v. Drug Enforcement Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in judgment)). Further, the majority's plain error discussion is dictum. See NLRB v. Int'l Bhd. of Elec. Workers, Local 340, 481 U.S. 573, 591 n.15 (1987) (statement was dictum because it "was unnecessary to the disposition"). For these reasons, I decline to join it.
[*] 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).