United States v. 2010-09-20 | 09-30373 | USA V. RICHARD MORSETTE | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 09-30373
Plaintiff-Appellee, D.C. No.
v. 4:09-cr-00038-  SEH-1RICHARD CHARLES MORSETTE,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
July 13, 2010—Seattle, Washington
Filed September 20, 2010
Before: Stephen Reinhardt, Susan P. Graber, and
Richard A. Paez, Circuit Judges.
Per Curiam Opinion
15971

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COUNSEL
Jeffry M. Foster, Smith, Walsh, Clarke & Gregoire, PLLP,
Great Falls, Montana, for the defendant-appellant.
Kurt G. Alme, Assistant United States Attorney, Billings,
Montana, and Rebekah J. French, Assistant United States
Attorney, Great Falls, Montana, for the plaintiff-appellee.
OPINION
PER CURIAM:
A jury convicted Defendant Richard Charles Morsette of
assault for attacking two people in his home, which is located
on Rocky Boy’s Indian Reservation in Montana. At trial,
Defendant claimed that he acted in self-defense. The district
court gave a standard jury instruction on self-defense but
declined to give Defendant’s additional requested instruction:
“In the home, the need for self-defense and property defense
is most acute.” The sole question on appeal is whether the
Supreme Court’s recent decisions in District of Columbia v.
Heller, 128 S. Ct. 2783 (2008), and McDonald v. City of Chi-
cago, 130 S. Ct. 3020 (2010), required the court to give the
requested additional instruction.1 We answer that question
“no.”
1Defendant did not request, and the district court did not give, an
instruction containing the general principle that a person has no duty to
retreat within the person’s own home. See, e.g., 2 Wayne R. LaFave, Sub-
stantive Criminal Law § 10.4(f) (2d ed. 2003) (stating principle); Beard v.
United States, 158 U.S. 550, 563-64 (1895); United States v. Peterson,
483 F.2d 1222, 1236 (D.C. Cir. 1973). Nor does Defendant argue on
appeal that the court should have given such an instruction. Accordingly,
the potential application of that principle to the present facts is not before
us.
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One night in late 2008, Dana Ontiveros and Stephen Hobbs
visited Defendant’s home. Both men are related to Defendant
by marriage and all three had known each other for many
years. All three had been drinking earlier in the evening.
Defendant met Ontiveros and Hobbs at the front door and
invited them in. The three sat in the living room, drinking
whiskey and talking. Soon Defendant and Ontiveros began to
argue heatedly. Defendant left the living room, went back to
his bedroom, and returned with a telescopic retractable baton,
which he used to strike each of his visitors on the head.
Defendant’s wife telephoned the police. At trial, the parties
disputed the factual circumstances leading to the attacks;
Defendant claimed that the other two threatened him repeat-
edly, but they testified that they were making their way out of
the house when Defendant retrieved the baton and that he
attacked them before they could reach the exit.
Defendant submitted two proposed jury instructions that
are relevant to this appeal. He drew the first from the Ninth
Circuit’s model criminal jury instruction on self-defense:
The defendant has offered evidence of having
acted in self-defense. Use of force is justified when
a person reasonably believes that it is necessary for
the defense of oneself or another against the immedi-
ate use of unlawful force. However, a person must
use no more force than appears reasonably necessary
under the circumstances.
Force likely to cause death or great bodily harm is
justified in self-defense only if a person reasonably
believes that such force is necessary to prevent death
or great bodily harm.
The Government must prove beyond a reasonable
doubt that the Defendant did not act in reasonable
self-defense.
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9th Cir. Model Crim. Jury Instr. 6.7. The court gave that
instruction.
Defendant sought a second instruction that read: “In the
home, the need for self-defense and property defense is most
acute.” As support for the request he cited Heller and, on
appeal, supplements that citation by pointing to the post-trial
publication of McDonald. In explaining its decision not to
give the second proposed instruction, the district court
declared that it was “an unnecessary add-on” and that the
standard instructions adequately covered the issue that Defen-
dant sought to emphasize in his defense.
Although Defendant was charged with assaulting both vic-
tims with a dangerous weapon, in violation of 18 U.S.C.
§ 113(a)(3), the jury found him guilty only of the lesser
included offense of simple assault as to each victim. The court
sentenced Defendant to two consecutive six-month sentences,
one for the assault on Ontiveros and the other for the assault
on Hobbs. Defendant then brought this timely appeal.
As noted, the only issue that Defendant raises is whether
recent Supreme Court precedent required the district court to
give his requested instruction. “We review whether a trial
court’s instructions adequately covered a defendant’s prof-
fered defense de novo, and review a district court’s formula-
tion of jury instructions for an abuse of discretion.” United
States v. Chastain, 84 F.3d 321, 323 (9th Cir. 1996) (citations
omitted).
[1] We agree with the trial court that the model jury
instruction given already covered Defendant’s theory of self-
defense in his home. The instruction required the jury to
assess the reasonableness of the use of force “under the cir-
cumstances.” The circumstances here included the fact that
the incident took place in Defendant’s home, and he was free
to argue—and in fact did argue—that he had a right to defend
his home and a right to defend himself in his own home.
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[2] Nothing in the Supreme Court’s recent Second Amend-
ment jurisprudence changes the analysis. Heller and McDon-
ald concern the right to possess a firearm in one’s home for
self-defense. But neither case purports to change, or even to
comment on, the law as to the definition of self-defense in a
criminal case. Indeed, neither case concerned the use of a
weapon, as distinct from mere possession, so the Court had no
occasion even to consider the issue now before us. The model
jury instruction remains a correct and, in this case, sufficient
statement of the law governing self-defense.
AFFIRMED.
15976 UNITED STATES v. MORSETTE

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