United States v. Joan Gividen
Opinion
Opinion
MEMORANDUM
Joan Gividen appeals from a jury conviction and sentence on two counts of assaulting a federal officer with a deadly or dan gerous weapon in violation of 18 U.S.C. §§ 111 (a)(1) and (b). She contends that the district court abused its discretion in denying her request for an instruction on the offense of simple assault as a lessor included offense in the crime of committing an assault with a deadly or dangerous weapon on an agent of a branch of the United States who is engaged in his or her official duties. We affirm because we conclude that the evidence was insufficient to permit a rational jury to find the defendant guilty of simple assault based on the evidence presented at trial. We have jurisdiction under 28 U.S.C. § 1291 .
I
The Government presented the following evidence at trial to meet its duty to demonstrate that Gividen was guilty of an assault with a deadly or dangerous weapon on an agent of the United States. As border patrol agents drove past Gividen’s residence on Beki Lane, in response to a report that illegal aliens had been observed in the roadway ahead, she yelled at them, “[G]et the hell out of here, you sons of bitches.”