* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 24 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JONATHAN BENALLY, Defendant - Appellant. No. 96-2296 (D.C. No. CR-95-584-SC) (District of New Mexico)

ORDER AND JUDGMENT *

Before BRISCOE , McWILLIAMS and LUCERO , Circuit Judges.

Jonathan Benally seeks the reversal of a jury verdi ct finding him guilty of second degree murder. He asserts that the districtcourt erred in instructing the jury on voluntary manslaughter and improperly denie d his request for an instruction on involuntary manslaughter. Additiona lly, defendant argues that the district court abused its discretion by refusing to reduce his offense level for-2-

acceptance of responsibility. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
I On the night of October 3, 1995, Jonathan Benally, Arvin Benally and Rodrick Benally gathered at Arvin’s house in Shipro ck, New Mexico to talk and drink. After consuming a quart of malt liquor each , they drove to the Thriftway store in nearby Hogback to purchase three more quarts for the group. At the store they met up with Cheryl Largo and her sister, Chris tina Talk. The five decided to drive to a hill near Shiprock to talk, drink and li sten to music. Shortly thereafter, Jonathan and Arvin left to purchase a half pint of whiskey. While Jonathan and Arvin were gone, Russell John, who lived nearby, wa lked up to Rodrick, Cheryl and Christina, introduced himself and offered them some vodka. When Jonathan and Arvin returned, the four men enga ged in friendly conversation. After finishing his vodka, Russell a sked if anyone wanted to go on a beer run and stated that he had $20. He then off ered to get marijuana for the group and left. While Russell was gone, Jonathan proposed that theyshould take the $20 when he returned. Arvin agreed. When Russell retu rned, he admitted that did not have any marijuana. According to Rodrick, both Jon athan and Arvin were upset at this news. Rodrick testified at trial that Jonathan suddenly threw Russell to the-3-

ground “for no apparent reason.” R., Vol. V, at 16 4-65. Russell then threw an object at Jonathan and missed. He got back to his feet and started wrestling Jonathan. He then threw a punch, striking Arvin in the face and knocking his glasses off. Jonathan tackled Russell, sat on top of him and pro ceeded to punch him repeatedly in the face. Arvin struck and kicked Ru ssell before Rodrick restrained him. When Rodrick turned to restrain Jonathan, Arv in struck Russell again. Once again Rodrick restrained Arvin and Jonathan re newed his attack. Jonathan then proceeded to pull down Russell’s pants and kic k him in the groin. The two men then rolled Russell onto his stomach. Arvin ki cked Russell and again was restrained by Rodrick. Jonathan then made cutting and stabbing motions on Russell’s buttocks and searched through his pants. He then stood and kicked Russell some more. After the fight, they left Russell on the hill and all five met at the local junior high school. They agreed to lie as to theirwhereabouts that night. At trial, a statement made by Cheryl to the police was read t o the jury. In that statement, she recounted that at the school, Jonathan “looked at his fist and kept saying that’s what he likes to see.” R., Vol. VI, at 226. She testified at trial that his fist was bloody. Christina, in a statement read to the jury, recalled that Jonathan “kept bragging that they did killed that guy.” Id. at 261.1 Section 1153 provides for the application of select criminal laws (including

murder and manslaughter) to crimes by Native Americans in Indian country. At trial, it was stipulated that both Jonathan Benally and Russell John were enrolled members of the Navajo tribe and that the alleged offense occurred within the boundaries of the Navajo Indian Reservation in the state of New Mexico. SeeR., Vol. VI, at 288-89. -4- Arvin and Rodrick then returned to the hill to sear ch for Arvin’s glasses. According to Rodrick’s testimony, Arvin wanted to s trike Russell again, but Rodrick stopped him. Rodrick also testified he cou ld not hear Russell breathing. The next morning, Russell’s wife and her sister dis covered his body. He was lying face down with his pants around his ankle s. At trial, the forensic pathologist who examined the body testified that de ath resulted from blunt force injuries to the head and neck which produced herniation of the brain, that is, his brain swelled through the base of his neck. The sw elling was caused by bleeding in the head and neck area and from a fractured voic e box which hampered breathing, blocking oxygen flow to the brain. After a police investigation, Jonathan was charged with first degree murder in violation of 18 U.S.C. §§ 1153 1 & 1111(a), and aiding and abetting first degree murder in violation of 18 U.S.C. § 2. At the conc lusion of the jury trial, the district court instructed the jury as to first degr ee murder as well as to the lesser included offenses of second degree murder and voluntary manslaughter. The jury returned a verdict of guilty as to second degree mu rder.
II-5-

Defendant argues that the district court improperlyinstructed the jury on voluntary manslaughter. The jury was instructed th at, [V]oluntary manslaughter is the unlawful killing of a human being without malice upon a sudden quarrel or a heat of p assion. . . . The difference between second-degree murder and volunta ry manslaughter is sufficient provocation. . . . Suff icient provocation reduces second-degree murder to voluntary manslaughter. Sufficient provocation can be any action, conduct, or circumst ance which arouse[s] anger, rage, fear, sudden resentment, ter ror, or other extreme emotions. The provocation must be such as would affect the ability to reason and to cause a temporary loss of self control in an ordinary person of average disposition. R., Vol. VII, at 388-89. Defense counsel objected to the court’s definition of provocation: “I’m concerned that the real standard is — the real standard regarding the matter of provocation that you’ve [in structed] is for a reasonable person in the same or similar circumstances.” Id. at 421. Because the district court is granted substantial l atitude and discretion in tailoring and formulating jury instructions, we uph old its exercise of discretion as long as the instructions as a whole are correct statements of the law and fairly cover the issues presented. See United States v. Bryant , 892 F.2d 1466, 1468 (10th Cir. 1989). In reviewing defendant’s claim, we must decide not whether the instruction was faultless, but whether the jury was misled in any way and whether it had an understanding of the issues. United Stat es v. Voss , 82 F.3d 1521, 1529 (10th Cir.), cert. denied , 117 S. Ct. 226 (1996). Under this standard of re view, we cannot conclude that the instruction given by th e district court was confusing-6-

or legally incorrect. Cf. United States v. Collins , 690 F.2d 431, 437 (5th Cir. 1982) (“the provocation must be such as would arous e a reasonable and ordinary person to kill someone”) (citing United States v. C hapman , 615 F.2d 1294 (10th Cir. 1980)); United States v. Eagle Elk , 658 F.2d 644, 649 (8th Cir. 1981) (sufficient provocation is that which “would cause the ordinary reasonable person to act rashly and without deliberation and reflecti on”) (citing 2 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 41.14 (1977)). Defendant’s claim is essentially a dispute over word choice, an d it is well-established that a defendant is not entitled to any specific wording o f instructions. United States v. Hoffner , 777 F.2d 1423, 1426 (10th Cir. 1985). The distri ct court’s instructions, taken as a whole, properly informed the jury of the law and were not misleading. Defendant raises for the first time on appeal a sec ond claim related to this instruction. Because he failed to object to the in struction on this basis at trial, we review only for plain error. See United States v. Mason , 85 F.3d 471, 472 (10th Cir. 1996). He claims that the district court erre d when it stated that, “the difference between second degree murder and volunta ry manslaughter is sufficient provocation.” R., Vol. VII, at 388. De fendant contends that “the most critical and defining characteristic of voluntary m anslaughter is . . . intent without malice,” not “sufficient provocation.” Appellant’s Br. at 13. Sufficient provocation and malice are, however, closely relate d: sufficient provocation-7-

negates malice. See United States v. Scafe , 822 F.2d 928, 932 (10th Cir. 1987) (“Malice is negated by the heat of passion.”); see also United States v. Browner , 889 F.2d 549, 552 (5th Cir. 1989) (“The malice thatwould otherwise attach is negated by the fact that the intentional killing oc curred in the heat of passion in response to a sufficient provocation.”) (citing Sca fe , 822 F.2d at 932). Thus, we cannot conclude that the instruction was an erroneo us statement of law, much less plainly erroneous.
III At the close of trial, defendant requested that the jury be instructed on the lesser included offense of involuntary manslaughter , which is defined as the “unlawful killing of a human being without malice . . . [i]n the commission of an unlawful act not amounting to a felony, or in the c ommission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.” 18 U.S.C. § 1112(a). Defendant te ndered a proposed instruction and objected to the district court’s refusal to so instruct the jury. See R., Vol. VII, at 421. On appeal, he claims that by not inst ructing on involuntary manslaughter, the district court abused its discret ion. A lesser included offense instruction is to be give n when “[1] there is a proper request for one; [2] the lesser included off ense consists of some, but not all, the elements of the offense charged; [3] proof of the element or elements-8-

differentiating the lesser and greater offenses is a matter in dispute; and [4] a jury could rationally convict on the lesser offense and acquit on the greater offense.” United States v. Abeyta , 27 F.3d 470, 473 (10th Cir. 1994). “On appeal fr om a trial court’s application of the proper test, we re view for abuse of discretion ‘[t]he decision of whether there is enough evidence to jus tify a lesser included offense charge. . . .’” Id. (quoting Chapman , 615 F.2d at 1298.) It is undisputed that defendant properly requested an involuntary manslaughter instruction, see R., Vol. VII, at 421, and that involuntary manslaughter is a lesser included offense of the of fense charged, see United States v. Quintero , 21 F.3d 885, 890-91 (9th Cir. 1994). Defendant c laims that the closely-related third and fourth prongs of the Abeytatest are satisfied because sufficient evidence was presented at trial to suppo rt a jury finding that either he killed the victim in the commission of a misdemeano r or, alternatively, that the killing was the result of self-defense. Defendant’s first argument is that an instruction o n involuntary manslaughter was required because the death of Russ ell John occurred during the commission of aggravated battery, a misdemeanor und er New Mexico law. See N.M. Stat. Ann. § 30-3-5(B) (Michie 1978) (defining misdemeanor aggravated battery as infliction of an injury not likely to ca use death or great bodily harm, but which does cause painful temporary disfigurement ortemporary loss of the-9-

functions of an organ or member). Defendant’s rati onale is that the Indian Major Crimes Act provides that if a crime made applicable under the Act is “not defined and punished by Federal law in force,” the offense “shall be defined and punished in accordance with the laws of the State in which s uch offense was committed . . . .” 18 U.S.C. § 1153(b). This argument ignores the fact that both manslaughter and assault are defined and punished by federal law . See 18 U.S.C. §§ 1112 (manslaughter) & 113 (assaults). The assault that resulted in the death of Russell John is a felony under federal law. See 18 U.S.C. §§ 113(a)(6) (assault resulting in serious bodily injury) & 1365(g)(3) (defining “s erious bodily injury” as involving substantial risk of death or extreme phys ical pain); see also United States v. Hatatley , 130 F.3d 1399, 1404 (10th Cir. 1997). We note th at defendant does not contend that the assault which resulted in the death of Russell John could be characterized as a misdemeanor under federal law

. Alternatively, defendant contends that the lesser i ncluded offense instruction was required because the evidence suppo rted a jury verdict that he killed Russell John in the commission of a lawful a ct in an unlawful manner — an “imperfect or equivocal assertion of self defense.” Appellant’s Br. at 15. However, no evidence whatsoever was presented at tr ial that defendant acted in self defense. Defendant testified on his own behal f, and on direct examination he was asked to describe how the fight began. He repl ied,-10- It — it all started when Mr. John kept asking me to make him a [beer] run, and I — but I kept telling him that it wasn’t my truck, that I wasn’t driving, and that it was well past closing time. So he kept asking me, and asking me to make him a r un, and once in a while he would leave. He’d walk off from me, . . . but he’d come back and ask me again, and I’d tell him the sa me thing. But after a [] while he started to get closer where — which he would come up to my face or he’d be so close to my face that he’d be spitting on me and to try to tell me to make him a run. So I — I warned him. I told him, [d]on’t do that, because that is something I don’t like people doing. So I sligh tly pushed him away with my forearm the first time, and he kept — he kept doing that. He kept doing the same thing. So I pushed h im away several times, and upon which I believe the last — the lastpush I gave him, he tripped over his feet, he fell over, and he got back up, and he started to fight — or he punched Arvin, and Arvin p unched back, I guess, putting him in a daze. R., Vol. VI, at 350. Defendant admitted punching Russell hard in the face and kicking him. Id. at 351-52. He also testified that Russell did nothurt him while resisting his blows. Id. at 353. On cross-examination, the prosecutor aske d defendant if Russell was punching back when defendant was kicking him. Id. at 369. Defendant answered no, and admitted that Russ ell was a “steady target.” Id. We find no abuse of discretion in the district court’s decision that there was no evidence to support a rational jury finding that de fendant was acting in selfdefense, even if imperfectly or unlawfully.-11- IV Defendant claims that the district court erred by r efusing to grant him an offense level reduction for acceptance of responsib ility pursuant to U.S.S.G. § 3E1.1. We review the district court’s decision notto grant a reduction for acceptance of responsibility for clear error. Unit ed States v. McMahon , 91 F.3d 1394, 1396 (10th Cir.) cert. denied , 117 S. Ct. 533 (1996). Defendant must prove by a preponderance of the evidence that he is entit led to the offense level reduction. Id. at 1396-97. Section 3E1.1 of the Sentencing Guidelines provides for a two level decrease “[i]f the defendant clearly demonstrates a cceptance of responsibility for his offense.” The commentary to this section state s, “[t]his adjustment is not intended to apply to a defendant who puts the gover nment to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1, application note 2. The commentary also notes that “[i]n rare situation s a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. . . . In each such instance, however, a determination that a defendant has accepted respo nsibility will be based primarily upon pre-trial statements and conduct.” Id.-12-

Defendant contends that a reduction of his offense level is merited because he cooperated with the homicide investigation and t estified at trial, admitting that he was an alcoholic and that he had punched and kic ked the victim. Admission of wrongdoing, however, is insufficient to entitle the defendant to an adjustment for acceptance of responsibility. See McMahon , 91 F.3d at 1397. Defendant, at trial, contested the factual elements of his guilt. The defense’s theory of the case was that the victim’s death was caused, not by defendant’s actions, but by those of Arvin Benally or one of the other individuals present the evening of the homicide. See R., Vol. VI, at 339. Defendant, when he testified, also denied that he had the requisite intent to commit murder. Id. at 361. This is not the rare situation in which a dow nward adjustment is merited even though defendant exercised his right to a tria l. Defendant has failed to meet his burden of showing entitlement to the adjustmentand we conclude that the district court acted properly. For the foregoing reasons, the district court’s jud gment is AFFIRMED.
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge