Appeal from the United States District Court for the District of Alaska. Timothy M. Burgess, District Judge, Presiding. D.C. No. 3:06-CR-00085-TMB.
The opinion of the court was delivered by: Tallman, Circuit Judge
Submitted December 9, 2009*fn1 -- Seattle, Washington.
Before: Robert R. Beezer, Ronald M. Gould, and Richard C. Tallman, Circuit Judges.
Defendant-Appellant Michael Anchrum ("Anchrum") appeals a jury conviction and sentence for one count of possession of controlled substances with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c), two counts of assault on federal officers with a deadly or dangerous weapon in violation of 18 U.S.C. §§ 111(a)(1) and (b), and one count of possession of firearms in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A)(i). Anchrum claims (1) that the jury instruction on the assault counts erroneously required the jury to find that he used a "motor vehicle" instead of a "deadly or dangerous weapon," (2) that the government's use of United States Drug Enforcement Administration ("DEA") Special Agent Kenneth Solek ("Agent Solek") as both a lay and expert witness resulted in testimony inconsistent with this court's holding in United States v. Freeman, 498 F.3d 893, 904 (9th Cir. 2007), as well as Federal Rule of Evidence ("Rule") 704(b), and (3) that the district court erred in applying a six-level official victim enhancement at sentencing under U.S. Sentencing Guidelines ("U.S.S.G.") § 3A1.2(c)(1).
We have jurisdiction pursuant to 28 U.S.C. § 1291, there was no prejudicial error, and we affirm.
On October 26, 2006, a United States postal inspector observed a suspicious parcel at the United States Post Office in Anchorage, Alaska. The package was addressed to an "M. Johnson" at an address on Old Seward Hwy in Anchorage, Alaska. The return address, "Jason Johnson, 423 Market # 21, Inglewood, CA 90302," was fictional. The inspector noticed several indices of drug trafficking, including the use of Express Mail, handwritten labels, and a lack of telephone numbers. Upon submission of the package to a drug detection canine, the dog alerted.
Following the execution of a search warrant, agents from the DEA found one-quarter kilogram of cocaine and one ounce of heroin in the package. The package was legally wired with a tracking device pursuant to a "beeper order," packed with a representative amount of cocaine and heroin, resealed, and delivered by an undercover agent posing as a postal delivery person the next day. Anchrum accepted the package at the delivery address by producing a California driver's license bearing the name "Marcus Johnson." He then left the delivery address in a Ford Focus, followed by investigators in unmarked police cars.
Anchrum soon observed the investigators following him. He then began driving erratically-cutting across several lanes of traffic and making an abrupt u-turn-in an attempt to evade his pursuers. A chase ensued. DEA Agents and Task Force Officers activated their emergency lights and sirens in an attempt to stop Anchrum. At one point during the pursuit, Agent Solek and his partner pursued Anchrum down a side street that ended in a "gravel pit area."
Agent Solek attempted to block Anchrum's exit by parking his vehicle at an angle on the side street. Anchrum turned his vehicle around, aimed it at Agent Solek, and came to a stop. Agent Solek exited his vehicle. He was wearing a black raid vest with large yellow letters reading "Police." Anchrum and Agent Solek made eye contact. Agent Solek drew his sidearm, began walking toward Anchrum's vehicle, and yelled at Anchrum to "get his hands up." While the two men were approximately twenty feet apart and still making eye contact, Anchrum gripped his steering wheel and slammed on the gas pedal, kicking up gravel and heading straight for Agent Solek. Agent Solek testified, "I was in fear that I was about to get run over."*fn2 He dove out of the way, trying to take cover behind the front of his vehicle, but was struck on his right knee as Anchrum sped away.
A message was broadcast over police radio that Anchrum had struck an officer with his vehicle. Despite being pursued by an increasing number of DEA agents and local police officers, Anchrum continued to lead authorities on the high speed chase.
Task Force Officer Gamache ("Officer Gamache") picked up the pursuit soon after Anchrum struck Agent Solek with his vehicle. Officer Gamache eventually followed Anchrum down yet another dead-end side street. Officer Gamache stopped his police car-with red and blue lights flashing and siren blaring-in Anchrum's path, trying to block his exit from the side street. Anchrum accelerated his Ford Focus and hit Officer Gamache's police car. Anchrum's vehicle was traveling with enough speed to cause his car to go into a "spinout." When Anchrum's vehicle came to a stop, he exited and fled on foot. He was apprehended after a short foot pursuit through an industrial park.
Anchrum's person and vehicle were searched. The searches produced two California driver's licenses, one bearing his true name of Michael Dion Anchrum, and one bearing the false name of Marcus Johnson. Agents found a loaded .45 caliber-semi automatic pistol on the driver's side floorboard of Anchrum's vehicle and a loaded .357 magnum revolver under the driver's seat. Agents also found a digital scale, the package containing the representative sample of the cocaine and heroin, as well as the tracking device.
At trial, Agent Solek testified as both a percipient and expert witness. The district court separated the testimony into a first "phase," consisting of Agent Solek's percipient witness testimony regarding the investigation and arrest of Anchrum, and a second "phase," consisting of Agent Solek's expert qualifications as a drug investigator and his opinions that drug dealers usually possess guns for protection, use scales to weigh drugs, and rent cars to avoid detection. A sidebar conference separated the two phases of the agent's testimony. Following the end of the percipient witness portion of testimony and the sidebar, the prosecutor transitioned into the expert phase by stating "Agent Solek, I'd like to shift gears here a little bit and talk about some of your education, professional training, and law enforcement experience."
The jury convicted Anchrum on all counts. At sentencing, the district court applied a six-level enhancement based on the fact that Agent Solek was an "Official Victim" under U.S.S.G. § 3A1.2. Anchrum timely appealed.
A jury instruction that erroneously misstates or omits an element of the offense is a non-structural constitutional error subject to harmless error review. See United States v. Smith, 561 F.3d 934, 938 (9th Cir. 2009) (en banc). "A defendant is . . . deprived of constitutional due process when the jury is not properly instructed that the government bears the burden of proving guilt beyond a reasonable doubt on each element of the crime." Id. (citing Middleton v. McNeil, 541 U.S. 433, 437 (2004)).
In relevant part, 18 U.S.C. § 111(a)(1) provides, "Whoever . . . forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties . . . shall . . . where such acts involve physical contact with the victim of that assault . . . be . . . imprisoned not more than 8 years . . . ." However, 18 U.S.C. § 111(b) provides, "Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be . . . imprisoned not more than 20 years . . . ."
 An element of assault on a federal officer with a deadly or dangerous weapon is therefore the use of a "deadly or dangerous weapon." Id. At the time of Anchrum's trial, the relevant Ninth Circuit Model Criminal Jury Instruction for Assault on a Federal Officer with a ...