Filed: Nov. 29, 2012
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4677 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTOPHER A. DROTLEFF, Defendant - Appellant. No. 11-4744 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JUSTIN H. CANNON, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (2:10-cr-00001-RGD-FBS-2; 2:10-cr-00001-RGD- FBS-1) Argued: October 26, 2012 Decid
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4677 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTOPHER A. DROTLEFF, Defendant - Appellant. No. 11-4744 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JUSTIN H. CANNON, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (2:10-cr-00001-RGD-FBS-2; 2:10-cr-00001-RGD- FBS-1) Argued: October 26, 2012 Decide..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4677
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER A. DROTLEFF,
Defendant - Appellant.
No. 11-4744
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUSTIN H. CANNON,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:10-cr-00001-RGD-FBS-2; 2:10-cr-00001-RGD-
FBS-1)
Argued: October 26, 2012 Decided: November 29, 2012
Before NIEMEYER, MOTZ, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Trey R. Kelleter, VANDEVENTER BLACK, LLP, Norfolk,
Virginia; Larry Mark Dash, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Norfolk, Virginia, for Appellants. Alan Mark
Salsbury, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff,
Federal Public Defender, Alexandria, Virginia, Frances H. Pratt,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Norfolk, Virginia, for Appellant Cannon. Neil H.
MacBride, United States Attorney, Alexandria, Virginia, Randy
Stoker, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Norfolk, Virginia; Jay A. Bauer, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished decisions are not binding precedent in this circuit.
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PER CURIAM:
Pursuant to the Military Extraterritorial Jurisdiction Act
(“MEJA”), the Government indicted Christopher Drotleff and
Justin Cannon in the Eastern District of Virginia on crimes
arising from an incident in Afghanistan. A jury convicted them
of involuntary manslaughter. They appealed, contending that the
court lacked jurisdiction over them and erred in instructing the
jury. We affirm.
I.
Paravant, a subcontractor under a Department of Defense
contract to perform various services in Afghanistan, employed
Drotleff and Cannon as weapons instructors.
This case grows out of an automobile accident in
Afghanistan on May 5, 2009. On that date, Drotleff, Cannon, and
others traveled westbound on Jalalabad road in a convoy of two
SUVs. Drotleff and Cannon occupied the rear SUV. The lead SUV
was involved in an accident and its occupants were injured. At
trial, the Government argued that the lead SUV swerved to avoid
hitting a truck, while Drotleff and Cannon asserted that a small
car hit the lead SUV from behind.
After the crash, Drotleff and Cannon stopped and exited
their vehicle. A Toyota Corolla approached the accident scene
going eastbound. According to Drotleff and Cannon, the Corolla
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had caused the accident. They maintained that after hitting the
lead SUV the Corolla turned around and rapidly drove toward them
in a threatening manner. Drotleff and Cannon opened fire on the
Corolla, hitting its driver and passenger and a pedestrian. The
passenger and pedestrian later died from their injuries.
After the incident, Paravant and an Army investigator
conducted accident investigations and took statements from
Drotleff and Cannon. In these statements Drotleff and Cannon
claim that they acted in self-defense, trying to stop the
Corolla by firing at its lower portion and tires. Nevertheless,
the Army’s Criminal Investigation Division began a criminal
investigation of them.
Paravant fired Drotleff and Cannon and they returned to the
United States. The Government indicted them pursuant to MEJA,
which provides federal courts with jurisdiction over individuals
who commit crimes while employed by the Department of Defense
abroad. See 18 U.S.C. §§ 3261(a)(1), 3267(1) (2006). Drotleff
and Cannon unsuccessfully moved to dismiss the indictments on
the ground that Congress lacked the authority to enact MEJA and
that it was unconstitutional as applied to them. At trial, the
district court instructed the jury, over Drotleff and Cannons’
objections, on involuntary manslaughter and on false exculpatory
statements. The jury convicted both Drotleff and Cannon of a
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single count of involuntary manslaughter as to the car
passenger. They timely noted this appeal.
II.
Drotleff and Cannon continue to argue on appeal that
federal courts lack jurisdiction over them because MEJA is
unconstitutional, both facially and as-applied. In United
States v. Brehm, 691 F.3d 547 (4th Cir. 2012), we recently
upheld MEJA in the face of a constitutional challenge. Brehm
requires us to reject the very similar constitutional challenge
posed by Drotleff and Cannon here.
III.
Alternatively, Drotleff and Cannon contend that the
district court’s jury instructions suffered from three defects,
which merit reversal. We review the correctness of a jury
instruction for abuse of discretion. United States v. Ebersole,
411 F.3d 517, 526 (4th Cir. 2005).
A.
The district court sua sponte instructed the jury on
involuntary manslaughter, a lesser-included offense of second-
degree murder, for which the Government had charged Drotleff and
Cannon. To justify a jury instruction on a lesser-included
offense, “the proof of the element that differentiates the two
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offenses must be sufficiently in dispute that the jury could
rationally find the defendant guilty of the lesser offense but
not guilty of the greater offense.” United States v. Wright,
131 F.3d 1111, 1112 (4th Cir. 1997). Drotleff and Cannon
maintain that the court erred in giving an involuntary
manslaughter instruction because the facts cannot support a
conviction for that offense. Specifically, they argue that
since they intentionally applied deadly force they could not
have committed involuntary manslaughter.
A defendant, who intentionally uses deadly force in an
effort to defend himself but does not meet the requirements for
self-defense, may commit voluntary, but not involuntary,
manslaughter. See, e.g., United States v. Manuel, 706 F.2d 908,
915 (9th Cir. 1983). A defendant, who is entitled to use self-
defense and intends to use non-deadly force but through failure
to exercise due caution and circumspection causes the death of
another, may commit involuntary manslaughter.
Id. Drotleff and
Cannon maintain that firing on an occupied vehicle necessarily
involves the use of deadly force.
Their own argument in the district court forecloses that
contention, for they themselves argued that they fired at the
tires and lower portion of the Corolla in order to disable it
and did not intend to kill or injure anyone. The jury
reasonably could have found, as they maintained, that Drotleff
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and Cannon did not intend to use deadly force. Accordingly, the
district court did not err in giving an instruction on
involuntary manslaughter.
B.
Drotleff and Cannon next challenge the content of the
involuntary manslaughter instruction. First, they take issue
with the court’s statement that to convict a defendant of
involuntary manslaughter the jury had to find that “the death
charged occurred while the defendant was committing a lawful act
-- that is, self-defense -- in an unlawful manner by failing to
exercise due caution and circumspection in firing their
weapons.” Drotleff and Cannon note that justifiable self-
defense is a complete defense that bars conviction. They argue
that the instruction allowed the jury to find that they acted in
self-defense but still convict them, while a finding of self-
defense should have ended the inquiry. Further, they maintain
that the instruction impermissibly grafts the requirements of
“due caution and circumspection” onto the definition of self-
defense.
These arguments fail. In evaluating the adequacy of jury
instructions, a particular instruction “may not be judged in
artificial isolation, but must be viewed in the context of the
overall charge.” Cupp v. Naughten, 414 U.S. 141, 147 (1973).
Drotleff and Cannon ignore other language in the instructions
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that clearly articulates the relationship between self-defense
and involuntary manslaughter, relieving any concern that the
jury might have been guided by their strained interpretation.
Additionally, Drotleff and Cannon argue that the
involuntary manslaughter instruction impermissibly shifted to
them the burden of proving self-defense. This argument also
fails; the court had already given a separate instruction on
self-defense in which it made clear that the Government always
bears the burden of proving that a defendant did not act in
justifiable self-defense.
C.
Finally, Drotleff and Cannon assert that the district court
erred in giving the following instruction on false exculpatory
statements:
Statements knowingly and voluntarily made by a
defendant upon being informed of an investigation may
be considered by the jury. When a defendant
voluntarily offers an explanation or voluntarily makes
some statement tending to show his innocence and it is
later shown that the defendant knew that this
statement was false, the jury may consider this as
showing a consciousness of guilt . . . .
Drotleff and Cannon made the statements at issue here in
connection with investigations by Paravant and the Army, before
being informed that a criminal investigation was underway. In
those statements, Drotleff and Cannon indicate that the Corolla
caused the accident and drove in a threatening manner and thus
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suggest that they acted in self-defense. At trial, the
Government presented evidence contradicting the statements.
Drotleff and Cannon argue that an instruction on false
exculpatory statements is appropriate only when a defendant
makes an allegedly false statement to a law enforcement officer
after being arrested or informed of a criminal investigation,
and was thus improper here.
We need not address this argument because any error was
harmless. There is no dispute that the allegedly false
statements were admissible, and the Government would have been
free to argue that they reflect consciousness of guilt in the
absence of the court’s instruction. Moreover, as the Government
pointed out at oral argument, in finding Drotleff and Cannon
guilty only of involuntary manslaughter, the jury appears to
have credited their account that they shot at the Corolla in an
attempt to disable it, rendering this instruction irrelevant.
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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