855 F2d 863 United States v. Dodd

855 F.2d 863

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Harry Lee DODD, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Richard T. FIFER, Defendant-Appellant.

No. 87-1044.

United States Court of Appeals, Ninth Circuit.

Submitted July 11, 1988; July 14, 1988.*
Decided July 28, 1988.

Before JAMES R. BROWNING, HUG and BEEZER, Circuit Judges.

1

MEMORANDUM**

2

Harvey Lee Dodd and Richard T. Fifer1 appeal their convictions on two counts of assaulting federal correctional officers, in violation of 18 U.S.C. Secs. 111, 1114. They contend the district court improperly instructed the jury on self defense and that their due process rights were violated because they were tried in prison clothing.

3

We affirm. The district court did not err in instructing the jury on self defense. The instructions, viewed as a whole, fairly and adequately covered the issues presented. See United States v. Alcantar, 832 F.2d 1175, 1178 (9th Cir.1987). The district court properly instructed the jury that an inmate may not resist a direct order of a correction officer and that an inmate's proper means of opposing an order by a corrections officer is through filing an administrative complaint. See 28 C.F.R. Pt 541, Subpart B, Table 3, Code 307 (1987); 28 C.F.R. Pt. 542, Secs. 542.10-542.16. Fifer's and Dodd's due process rights were not violated by their appearance before the jury in prison clothing since they did not object to the clothing at trial, see Estelle v. Williams, 425 U.S. 501, 512-13 (1976); United States v. Rogers, 769 F.2d 1418, 1423 (9th Cir.1985). Moreover, in the circumstances of this case, if there was error it was harmless. See United States ex. rel. Stahl v. Henderson, 472 F.2d 556, 557 (5th Cir.1973).

4

AFFIRMED.

*

On July 18, 1988, the two cases were consolidated after submission upon motion of this court. The panel finds this case appropriate for submission without argument pursuant to Cir.R. 34-4 and Fed.R.App.P. 34(a)

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Cir.R. 36-3

1

Citing Anders v. California, 386 U.S. 738 (1967), Fifer's attorney filed a brief wherein she set forth Fifer's arguments but offered her conclusion that the arguments are frivolous. This court granted the attorney's motion to withdraw and allowed Fifer until July 1, 1988 to file an opening brief on his own behalf. That deadline has passed and we have not received Fifer's brief. We determine that Fifer's appeal raises nothing of arguable merit, and proceed to a decision on the merits without the appointment of counsel. Id. at 744. We also note that the opening brief filed by Dodd's attorney sufficiently advocates both appellants' contentions