United States of America v. Gene Austin

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GENE AUSTIN,
Defendant - Appellant.
No. 09-50082
D.C. No. 5:07-cr-00146-SGL-1
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Argued and Submitted February 5, 2010
Pasadena, California
Before: B. FLETCHER, PREGERSON, and GRABER, Circuit Judges.
Gene Austin appeals his conviction for assaulting a United States Bureau of
Prisons officer in violation of 18 U.S.C. § 111(a)(1), (b). Austin argues that the
trial court erred because it failed to provide the jury with a sufficiently precise
instruction that the jury must agree on the particular conduct that violated the
FILED
FEB 19 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

2
statute. We disagree. Even assuming that Austin was entitled to a “specific
unanimity” instruction, see, e.g., Schad v. Arizona, 501 U.S. 624, 631-32 (1991);
United States v. Gavin, 959 F.2d 788, 792 (9th Cir. 1992), the district court
instructed the jury that they must agree on the “particular act that amounted to
assaulting, resisting, opposing, impeding, intimidating, or interfering” with the
officer. This instruction was adequate.
AFFIRMED.

-- 2 of 2 --