FILED

NOT FOR PUBLICATION AUG 09 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-30215

Plaintiff - Appellee, D.C. No. 3:10-po-00120-MHW-1

v.

MEMORANDUM *

RICARDO DANIEL RODRIGUEZ,

Defendant - Appellant.

Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding

Submitted August 6, 2012 ** Seattle, Washington

Before: NOONAN, GRABER, and RAWLINSON, Circuit Judges.

Appellant Ricardo Daniel Rodriguez challenges his conviction for

misdemeanor assault in Indian country. We have jurisdiction pursuant to 28

U.S.C. § 1291, and affirm the district court.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Rodriguez argues that his counsel was ineffective for failing to request a jury

instruction covering self-defense and defense of others. We disagree. We reach

this issue on direct appeal despite the general rule precluding such review because

the record is sufficiently developed to determine that Rodriguez’s counsel was not

ineffective. See United States v. Benford, 574 F.3d 1228, 1231 (9th Cir. 2009).

Rodriguez’s action of charging Talbott after Talbott backed away negates

any claim of self-defense or defense of others. See Ninth Circuit Model Criminal

Jury Instructions, 6.8, Self-Defense; see also Williams v. Woodford, 384 F.3d 567,

610-11 (9th Cir. 2004), as amended (holding that counsel need not put on a

defense that is unsupported by credible evidence).

Rodriguez also contends that the Magistrate Judge abused his discretion by

admitting evidence concerning the shooting of the defendant and his companion.

However, the fact that Talbott used his firearm and that the assault ended only after

he used it, was relevant evidence of the seriousness of the assault. ” See Fed R.

Evid. 401; see also United States v. Alvarez, 358 F.3d 1194, 1205 (9th Cir. 2004)

(“Trial judges have wide discretion in determining whether evidence is relevant. . .

.”) (citation and internal quotation marks omitted).

Rodriguez argues further that there was not sufficient evidence to support

the Magistrate Judge’s denial of the motion for acquittal or to support the jury’s

2 verdict. This argument also fails because a reasonable jury could draw the

inference that Talbott’s injuries resulted from wounds he sustained when

Rodriguez tackled, choked, and wrestled Talbott. See United States v. Rosales,

516 F.3d 749, 752 (9th Cir. 2008) (“Viewing the evidence in the light most

favorable to the prosecution requires us to presume that the trier of fact resolved

any conflicting inferences in favor of the prosecution.”) (citation, alterations, and

internal quotation marks omitted).

AFFIRMED.

3

FILED

United States v. Rodriguez, No. 11-30215 AUG 09 2012

MOLLY C. DWYER, CLERK

GRABER, Circuit Judge, concurring in part and dissenting in part: U .S. C O U R T OF APPE ALS

I concur in part and dissent in part.

With respect to the claim of ineffective assistance of counsel, I would follow

our general rule, which is not to decide such a claim on direct review. United

States v. Rahman, 642 F.3d 1257, 1259–60 (9th Cir. 2011). Rodriguez could bring

this claim through a petition for a writ of error coram nobis. Holloway v. United

States, 393 F.2d 731, 732 (9th Cir. 1968). In my view, it is not entirely clear,

without the presentation of additional evidence, that counsel’s performance could

not have been deficient.

In all other respects, I concur fully.