Check out footnote four. Judge Randy Smith writes a good opinion, and I'm not saying that it's necessarily wrong. But defendant's best argument that he's entitled to a lesser included offense instruction is based on a previous Ninth Circuit case called Arnt -- a case that's not too different from the present one, and in which the court held that a lesser included offense instruction was required. And Judge Smith confines his discussion of this central case to a single footnote.
For good reason, since his attempts to distinguish this case are fairly lame.
Judge Smith first says that "[u]nlike Arnt, the present case does not involve a killing. Therefore, the constitutional concerns arising from a capital case [which Judge Smith discussed in the previous footnote] are not present in this case." That's true. But Arnt wasn't a capital case either, and held that even without those concerns, a lesser included offense instruction was still required. Moreover, not only does a "killing versus nonkilling" distinction not exist in any lesser included offense doctrine, but such a distinction would also be manifestly silly. So this purported distinction of Arnt clearly doesn't work.
Judge Smith's only other attempt to distinguish Arnt in the footnote asserts that "the jury in this case was not forced to choose between convicting Rivera of one offense supported by the record and acquitting him of everything. The district court instructed the jury on felony assault on a federal officer using a deadly weapon and felony assault of a federal officer involving physical contact, which carried a significantly less severe sentence. Thus, the jury was not precluded from reaching a compromise verdict supported by the record by the lack of instruction on a still less serious offense not supported by the record." True again, as far as it goes.
But this again utterly fails to distinguish Arnt, since the same was true in that case as well. Here, Rivera-Alonzo's jury could have found him of X (a greater offense; here, assault with a deadly weapon) or Y (a slightly lesser offense; here, assault with physical contact), but Rivera-Alonzo wanted them to be instructed on Z, an even lesser lesser-included offense than Y. Judge Smith says that you're not entitled to be instructed on Z because the jury can already acquit you of the greater offense X and convict you on Y -- which is exactly what transpired here.
But that's exactly what transpired in Arnt too. There, Arnt was charged with murder (X, the greater offense) as well as voluntary manslaughter (Y, the lesser offense) and, as here, the jury acquitted on X but convicted on Y. But even though there were both X and Y, the Ninth Circuit still held that a lesser-included offense instruction was required on Z (involuntary manslaughter) in Arnt, for reasons that clearly belie Judge Smith's attempt to distinguish it.
That's it. That's what the footnote says. Two arguments that simply don't work.
Again, this is not to say that the present case is wrongly decided. It was indeed difficult to argue that a jury could rationally find Rivera-Alonzo guilty of simple assault but, on the facts presented at trial, acquit him of the greater offenses. But Judge Smith's purported distinctions of Arnt not only seem to me demonstrably wrong, but by relegating them to a footnote, it almost seems like Judge Smith knows they're wrong (or at least incredibly weak). And that the opinion will seem pretty clearly right as long as you respond to defendant's best argument in a part of the opinion that most people will skim over rather than respond to it directly.
This is also, I might add, how bad law gets created. By creating distinctions that make no sense (and that don't exist) in order to avoid doing the (admittedly hard) work necessary to rationalize precedent and come up with something coherent.
So the opinion sounds right. It sounds good. But there's something lurking here. Something that's not so good, that hurts more than helps, and that avoids doing the tough work which both the parties as well as precedent deserves.