TENTH CIRCUIT NO. 10-2252 UNITED STATES OF · PDF fileUNITED STATES COURT OF APPEALS TENTH...

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NO. 10-2252

UNITED STATES OF AMERICA,

Plaintiff/Appellee,

vs.

LINDA DIAZ,

Defendant/Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEW MEXICO

DISTRICT COURT NO. CR-09-1578C. LEROY HANSEN, SENIOR UNITED STATES DISTRICT JUDGE

APPELLEE'S ANSWER BRIEF

ORAL ARGUMENT IS REQUESTED

NOTICE OF ATTACHMENTS IN SCANNED PDF FORMAT

KENNETH J. GONZALESUnited States Attorney

JACK E. BURKHEADJENNIFER M. ROZZONIAssistant United States AttorneysPost Office Box 607Albuquerque, NM 87103(505) 346-7274Attorneys for Appellee

June 2011

Appellate Case: 10-2252 Document: 01018655263 Date Filed: 06/09/2011 Page: 1

TABLE OF CONTENTS

PAGE

TABLE OF CASES AND OTHER AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF CASES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF OTHER AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

PRIOR OR RELATED APPEALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

STATEMENT OF ISSUES PRESENTED FOR REVIEW. . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. The Investigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. Diaz’s Actions on the Evening of April 3, 2009 and the Early Morning Hours of April 4, 2009.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

C. The Testimony of Linda Diaz.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

D. The Testimony Related to the Victim’s Non-Indian Status. . . . . . . . 10

SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

I. SUFFICIENT EVIDENCE SUPPORTED THE JURY’S CONCLUSION THAT THE VICTIM WAS NON-INDIAN FOR PURPOSES OF FEDERAL JURISDICTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

i


B. The Jury Reasonably Could Conclude that the Testimony of the Victim’s Father Established that the Victim was Non-Indian.. . . . . 14

II. ALTHOUGH THE COURT’S INSTRUCTIONS DID NOT INCLUDE A DEFINITION OF THE TERM “ACCIDENT,” THE PLAIN LANGUAGE OF THE NEW MEXICO STATUTE DEFINES AN ACCIDENT AS AN EVENT NOT NECESSARILY REQUIRING DEATH OR INJURY TO A PERSON. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19


B. A Definition of Accident Was Not Necessary to Accurately Apprise the Jury of the Governing Law and the Appropriate Legal Standards.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

C. The District Court Appropriately Permitted the Prosecutor to Question Diaz about the Elements of the Lesser Included Crime.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

III. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY PERMITTING THE GOVERNMENT TO ELICIT EVIDENCE REGARDING DIAZ’S PRE-ACCIDENT DRINKING AND PREVENTING DIAZ FROM ELICITING SIMILAR EVIDENCE WITH RESPECT TO THE VICTIM’S PRE-ACCIDENT DRINKING.. . . . . . . . 27


B. Discussion Regarding Evidence of Diaz’s Pre-Accident Drinking. . 27

1. The Evidence Was Introduced for a Proper Purpose.. . . . . . . 29

2. The Evidence Was Relevant to Whether Diaz Left the Scene of the Accident. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

3. The Probative Value of the Evidence Was Not Substantially Outweighed by the Danger of Unfair Prejudice.. . . . . . . . . . . 30

ii


4. Diaz Made No Request for a Limiting Instruction.. . . . . . . . . 32

C. The Court Properly Excluded Evidence of the Victim’s Pre-Accident Drinking as Irrelevant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

IV. THERE WAS NO ERROR WHERE THE DISTRICT COURT’S COMMENTS WERE LIMITED, DID NOT COMMENT ON THE GUILT OR INNOCENCE OF THE DEFENDANT, AND WERE MADE IN A PROPER EFFORT TO CONTROL THE MODE AND ORDER OF EVIDENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37


B. The Limited Comments of the Trial Judge Did Not Constitute Error... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

C. Any Error the District Judge Committed in Commenting on theRelevance of the Type of Road Did Not Affect Diaz’s SubstantialRights and Was Harmless Beyond a Reasonable Doubt... . . . . . . . . 42

V. THE DISTRICT COURT PROPERLY DENIED DIAZ’S MOTION FOR A NEW TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44


B. The United States Did Not Violate Its Brady/Giglio Obligations.. . 44

1. Evidence Related to Mr. O’Brien’s Participation in the SWAT Standoff in 1996 with Viarrial Was Not Favorable to Diaz.. . 45

2. Evidence Related to Mr. O’Brien’s Participation in the SWAT Standoff in 1996 with Viarrial Was Not Material.. . . . . . . . . 50

CONCLUSION AND STATEMENT REGARDING ORAL ARGUMENT.. . . . 54

BRIEF FORMAT CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

iii


CERTIFICATE OF SERVICE AND DIGITAL SUBMISSION. . . . . . . . . . . . . . 57

TABLE OF CASES AND OTHER AUTHORITIES

TABLE OF CASES

PAGE

Aguilar v. State, 202 S.W. 3d 833 (Tex. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Brady v. Maryland, 373 U.S. 83 (1963). . . . . . . . . . . . . . . . . . . . . . 1, 44-47, 51, 55

Giglio v. United States, 405 U.S. 150 (1972). . . . . . . . . . . . . . . . . . . . . 1, 44-47, 55

Hynes v. Energy West, Inc., 211 F.3d 1193 (10th Cir. 2000). . . . . . . . . . . . . . . . . 38

Jones v. United States, 526 U.S. 227 (1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Kyles v. Whitley, 514 U.S. 419 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 51

Pope v. Illinois, 481 U.S. 497 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Rose v. Clark, 478 U.S. 570 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Sloan v. State Farm Mut. Auto. Ins. Co.,360 F.3d 1220 (10th Cir. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

State v. Corpuz, 621 P.2d 604 (Or. Ct. App. 1980). . . . . . . . . . . . . . . . . . . . . . . . 25

State v. Fearing, 284 S.E.2d 487 (N.C. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

State v. Sidway, 431 A.2d 1237 (Vt. 1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

State v. Wall, 482 P.2d 41 (Kan. 1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Tapia v. Tansy, 926 F.2d 1554 (10th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . 14

iv


United States v. Agurs, 427 U.S. 97 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

United States v. Bagley, 473 U.S. 667 (1985).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

United States v. Baker, 638 F.2d 198 (10th Cir. 1980).. . . . . . . . . . . . . . . . . . . . . 39

United States v. Chanthadara, 230 F.3d 1237 (10th Cir. 2000). . . . . . . . . . . 39, 44

United States v. Combs, 267 F.3d 1167 (10th Cir. 2001). . . . . . . . . . . . . . . . . . . . 44

United States v. Crockett, 435 F.3d 1305 (10th Cir. 2006). . . . . . . . . . . . . . . . . . 19

United States v. Darrell, 828 F.2d 644 (10th Cir. 1987) . . . . . . . . . . . . . . . . . . . . 14

United States v. Davis, 60 F.3d 1479 (10th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . 42

United States v. Dazey, 403 F.3d 1147 (10th Cir. 2005). . . . . . . . . . . . . . . . . . . . 37

United States v. Erickson, 561 F.3d 1150 (10th Cir. 2009) .. . . . . . . . . . . . . . . . . 46

United States v. Garner, 581 F.2d 481 (5th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . 14

United States v. Gwathney, 465 F.3d 1133 (10th Cir. 2006). . . . . . . . . . . . . . . . . 44

United States v. Jenkins, 175 F.3d 1208 (10th Cir. 1999). . . . . . . . . . . . . . . . . . . 13

United States v. Johnson, 42 F.3d 1312 (10th Cir. 1994).. . . . . . . . . . . . . . . . . . . 36

United States v. Mares, 441 F.3d 1152 (10th Cir. 2006). . . . . . . . . . . . . . . . . . . . 29

United States v. Mendoza-Salgado, 964 F.2d 993 (10th Cir. 1992).. . . . . . . . . . . 34

United States v. Morris, 287 F.3d 985 (10th Cir. 2002). . . . . . . . . . . . . . . . . . . . . 27

United States v. Nicholson, 17 F.3d 1294 (10th Cir. 1994). . . . . . . . . . . . . . . . . . 27

v


United States v. Nieto, 60 F.3d 1464 (10th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . 14

United States v. Nixon, 881 F.2d 1305 (5th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . 51

United States v. Paiva, 892 F.2d 148 (1st Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . 39

United States v. Pappert, 112 F.3d 1073 (10th Cir. 1997) . . . . . . . . . . . . . . . . . . 14

United States v. Pearson, 798 F.2d 385 (10th Cir. 1986).. . . . . . . . . . . . . . . . . . . 37

United States v. Prentiss, 273 F.3d 1277 (10th Cir. 2001).. . . . . . . . . . . . . . . 15-18

United States v. Romero, 136 F.3d 1268 (10th Cir. 1998). . . . . . . . . . . . . . . . . . . 16

United States v. Segien, 114 F.3d 1014 (10th Cir. 1997). . . . . . . . . . . . . . . . . . . . 28

United States v. Sides, 944 F.2d 1554 (10th Cir. 1991). . . . . . . . . . . . . . . . . . . . . 30

United States v. Tan, 254 F.3d 1204 (10th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . 31

United States v. Torres, 569 F.3d 1277 (10th Cir. 2009). . . . . . . . . . . . . . . . . 44, 45

United States v. Velarde, 485 F.3d 553 (10th Cir. 2007). . . . . . . . . . . . . . . . . . . . 45

United States v. Wilson, 107 F.3d 774 (10th Cir. 1997) . . . . . . . . . . . . . . . . . 13, 14

United States v. Zamora, 222 F.3d 756 (10th Cir. 2000). . . . . . . . . . . . . . . . . . . . 28

TABLE OF OTHER AUTHORITIES

PAGE

18 U.S.C. § 13 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3

18 U.S.C. § 81 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

vi


18 U.S.C. § 1152. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 15, 16

Fed. R. Evid. 105. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 32

Fed. R. Evid. 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 34

Fed. R. Evid. 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 30

Fed. R. Evid. 404(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 27-30

Fed. R. Evid. 611. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

N.M. Stat. Ann. § 66-7-201.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

N.M. Stat. Ann. § 66-7-201(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-3, 21, 25

N.M. Stat. Ann. § 66-7-201(B). . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 20, 22, 23, 26

N.M. Stat. Ann. § 66-7-201(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 20-23, 25

N.M. Stat. Ann. § 66-7-203.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22, 24

PRIOR OR RELATED APPEALS

There are no prior or related appeals.

vii


STATEMENT OF ISSUES PRESENTED FOR REVIEW

I. Whether sufficient evidence supported the jury's finding that the victim was non-Indian for purposes of federal jurisdiction?

II. Whether the district court abused its discretion when it excluded a definitionof accident from the jury instructions?

III. Whether the district court abused its discretion in permitting evidence of Diaz's alcohol consumption to show motive to commit the crime and excluding evidence of the victim's alcohol consumption as irrelevant?

IV. Whether the district court committed plain error when it made remarks in an effort to exercise reasonable control over the admission of evidence and did not express an opinion as to Diaz's guilt or innocence?

V. Whether the district court correctly concluded that the prosecution did not violate its Brady/Giglio obligations by failing to disclose information about1

a prosecution witness that was neither material nor exculpatory?

STATEMENT OF THE CASE

On June 10, 2009, a federal grand jury returned a one-count indictment

against defendant-appellant Linda Diaz. Aplt. App. at 18. The indictment2

charged Diaz with one count of leaving the scene of an accident resulting in great

bodily harm or death pursuant to the Assimilative Crimes Act, 18 U.S.C. §§ 1152,

13 and N.M. Stat. Ann. § 66-7-201(A). Id. On December 3, 2009, the grand jury

Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S.1

150 (1972).

Citations to “Aplt. App. at ____” are to the Appellant’s Appendix.2

1


returned a one-count superceding indictment which contained the same charge as

the original indictment, but added the requirements that Diaz “knowingly” failed

to stop and “knowingly” failed to render reasonable assistance to the victim. Aplt.

App. at 19.

In preparation for trial, and prior to filing its proposed jury instructions, the

government filed a memorandum of law in support of proposed jury instructions.

Id. at 20-28. The government requested that, in addition to the jury instruction

containing the elements of the charged crime as set forth in N.M. Stat. Ann. § 66-

7-201(A) and (C), the court additionally give an instruction regarding a lesser

included crime pursuant to N.M. Stat. Ann. § 66-7-201(A) and (B). Id. The

government proposed that the lesser included charge would eliminate the

requirement that Diaz “knew” at the time she was in the accident that great bodily

harm or death to a person resulted. Id. Diaz filed a response opposing the lesser

included charge. Id. at 29-47. The government filed a reply, and on February 4,

2010, the district court ruled that the instruction on the lesser included crime

would be submitted to the jury for its consideration. Aplee. Supp. App. at 45-56 ;3

Aplt. App. at 49-57. On February 6, 2010, Diaz filed a motion for clarification of

Citations to “Aplee. Supp. App. at ____” are to the Appellee’s3

Supplemental Appendix.

2


the February 4th order, and the government filed a response on February 10, 2010.

Aplt. App. at 58-63; Aplee. Supp. App. at 57-60. The district court filed an order

on February 11, 2010 clarifying its ruling of February 4th and specifically held

that the lesser included offense of leaving the scene of an accident, pursuant to

N.M. Stat. Ann. § 66-7-201(A) and (B), did not require the government to prove

that the accident involved a person, or that the driver knew that the accident

resulted in great bodily harm or the death of any person. Aplt. App. at 80-81.

On February 19, 2010, after a three-and-a-half-day trial, a jury found Diaz

guilty of the greater offense, that is, leaving the scene of an accident pursuant to

the Assimilative Crimes Act, 18 U.S.C. §§ 1152, 13 and N.M. Stat. Ann. § 66-7-

201(A) and (C). Aplee. Supp. App. at 65. On February 26, 2010, Diaz filed a

motion for a new trial based upon the prosecution’s alleged failure to disclose

information about one of its expert witnesses, Dennis O’Brien. Aplt. App. at 106-

32. On March 1, 2010, Diaz amended her motion and filed it again, this time with

additional attachments. Aplt. App. at 133-59. Also on March 1, 2010, Diaz filed

a motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure

29, arguing that the government failed to prove beyond a reasonable doubt that

Diaz knew that she had been in an accident involving a person, and further failed

to prove that the victim, Philip Espinoza, was non-Indian for purposes of federal

3


jurisdiction. Aplt. App. at 160-76. Diaz filed a supplement to her motion for new

trial on March 25, 2010. Aplt. App. at 177-92. The government opposed all of

Diaz’s motions. Aplee. Supp. App. at 66-99, 122-88, 202-54.

On August 17, 2010, the district court issued two memorandum opinions

and orders: the first denied Diaz’s motion for judgment of acquittal, and the

second denied both her supplemental and amended motions for new trial. Aplt.

App. at 193-212.

On November 2, 2010, the court sentenced Diaz to a term of imprisonment

of twelve months and one day followed by one year of supervised release. Aplt.

App. at 213-17. The court entered the judgment reflecting this sentence on

November 17, 2010. Id. Diaz timely filed her notice of appeal on November 22,

2010. Id. at 218.

STATEMENT OF THE FACTS

A. The Investigation

On April 4, 2009, a little before noon, the body of a man was found in a

ditch near mile marker 181 on U.S. 84/285 in north/central New Mexico. Aplee.

Supp. App. at 299-301. The location of the body was within the Pojoaque Pueblo.

Id. at 300. The body was later confirmed to be Philip Espinoza. Id. at 304.

4


On April 5, 2010, Lieutenant Governor Linda Diaz of the Pojoaque Pueblo

called Frank Rael of the Pojoaque Policeman Department at approximately 8:47

a.m. Id. at 307-10. Diaz sounded distraught and worried, and appeared to be

crying. Id. at 310. Diaz told Lieutenant Rael that she needed to speak with him,

but not over the phone. Id. She further stated that she had done something “bad”

and was “worried.” Id. Lieutenant Rael arrived at Diaz’s home at approximately

9:35 a.m. Id. at 311. When he arrived, he secured a light blue Grand Marquis

vehicle. Id. Lieutenant Rael observed a broken windshield on the passenger side

of the vehicle. Id. at 312. He observed that the passenger side view mirror was

broken, and also noticed a dent and scuff mark in the fender area. Id. He further

observed that Diaz appeared to have been crying for some time. Id. Lieutenant

Rael saw Diaz sitting in a vehicle later the same day near where the body of Philip

Espinoza had been found. Id. at 314-15.

Bureau of Indian Affairs Special Agent J.P. Montowine took over the

investigation after receiving a call from Lieutenant Rael. Id. at 377, 381. Agent

Montowine determined that the location of Philip Espinoza’s body was within the

exterior boundaries of the Pojoaque Pueblo. Id. at 397-98. Agent Montowine also

obtained surveillance video from the Buffalo Thunder Casino from the evening of

April 3, 2009. Id. at 409-15. Diaz arrived at the Casino at approximately 10:14

5


p.m. and left at approximately 10:49 p.m. Id. at 412-14. The video showed that

Diaz was drinking beer at the casino, and just before she left, she took an

approximately six-second drink of beer. Id. at 414.

A traffic accident reconstructionist, Dennis O’Brien, investigated the scene

where the body was found. Id. at 515-16. He determined that a vehicle's side-

view mirror found near the body was from Diaz’s vehicle. Id. at 520-22. Mr.

O’Brien also determined the way in which Philip Espinoza was struck by Diaz’s

car. Id. at 536-37. Specifically, Philip Espinoza was struck from behind on his

calf, his body then moved up the right front fender and struck the windshield. Id.

at 536-38. His head struck the A-pillar, the metal portion of the car that leads

from the vehicle body to the roof and that also supports the windshield. Id. at 538.

Mr. O’Brien was unable to determine the minimum speed of Diaz’s vehicle. Id. at

539. Mr. O’Brien was able to determine, however, that if the vehicle were

traveling the speed limit of forty-five miles per hour, it would have taken .09

seconds for Philip Espinoza to have slid from the front bumper to the windshield.

Id. at 542-43. If the vehicle had been traveling thirty-five miles per hour, it would

have taken .13 seconds to travel the same distance. Id. at 543.

Human hair was tape lifted from Diaz’s vehicle. Id. at 572. DNA testing on

the hair revealed that the hair belonged to Philip Espinoza. Id. at 583-88.

6


Dr. Lisa Gavin performed an autopsy on Philip Espinoza’s body. Id. at 343.

Chief Medical Investigator for the State of New Mexico, Dr. Ross Zumwalt,

supervised the autopsy. Id. at 341-43. The cause of death was multiple blunt

force injuries. Id. at 344. The primary impact area was Philip Espinoza’s legs,

followed by a secondary impact to the head. Id. at 347. The injuries were

consistent with having been hit by a car. Id. at 347-51.

B. Diaz’s Actions on the Evening of April 3, 2009 and the Early Morning Hours of April 4, 2009

Linda Diaz met a group of people at the Buffalo Thunder Casino on the

evening of April 3, 2009. Id. at 320. The group included Diaz's sister, Kathy

Fierro, as well as Matt Gutierrez, Lisa Maestas, and Kim Enriquez. Id. at 320-21.

The group wanted to play pool so they called Diaz to pick them up. Id. at 321.

When Diaz arrived, Gutierrez bought her a beer. Id. at 322. He saw Diaz take a

drink, but she didn’t finish it. Id. at 324-25. The group then left the Buffalo

Thunder Casino and traveled in two cars to the Tropicana, a night club in

Espanola, New Mexico. Id. at 325-26, 727. Diaz bought, or someone else bought

her, at least two beers at the Tropicana. Id. at 462, 465. The group stayed at the

Tropicana until 1:30 or 2:00 a.m. Id. at 464.

7


Diaz then drove the group to Fierro’s house to pick up a six-pack of beer.

Id. at 330, 470. They then drove to Gutierrez’s house. Id. at 330, 471. After they

arrived, the group heard some noises on the roof of the house. Id. at 472-73. They

were scared. Id. at 473. Fierro and Diaz left Gutierrez’s house a little after 4:00

a.m. Id. at 477. Diaz dropped Fierro at her home. Id. at 479. Fierro next heard

from her sister a few minutes later. Id. Diaz was upset and crying because she

thought she had hit “something.” Id. at 480. Fierro and her daughter, Karla

Fierro, drove to Diaz’s home. Id. On the way, Karla Fierro looked to see if she

could discern what had been hit. Id. at 699, 705. The only other time Karla Fierro

had seen Diaz that upset was when Diaz’s sister died. Id. at 708. They stayed for

awhile at Diaz’s home and calmed her down. Id. at 485. They then left and went

home. Id.

Diaz did not mention to Gutierrez the damage to her vehicle when she spoke

with him the following morning around 9:30 or 10:00 a.m. Id. at 333. She did,

however, tell her son, Jose Sarmiento, that she might have hit an animal or maybe

a person. Id. at 679. On Saturday evening, April 4, 2009, Kathy Fierro learned

that someone had been killed on the nearby highway. Id. at 486-87. Diaz’s son

also learned on Saturday, April 4, 2009, that someone had been killed on the

highway. Id. at 680, 688-89. Lisa Maestas knew something had happened when

8


they passed by the area where Philip Espinoza’s body was found on April 4, 2009.

Id. at 660-61.

C. The Testimony of Linda Diaz

In her own testimony, Diaz admitted to drinking at least a portion of three

different beers on the night of April 3, 2009. Id. at 726-27, 729. She also

admitted to having a shot of tequila. Id. at 785. She admitted to driving on U.S.

84/285, and that something black hit her windshield. Id. at 738. She also admitted

that she had her headlights on and could see clearly out of her windshield as she

drove home that night. Id. at 789. She admitted to having been awake for

approximately twenty-two hours by the time she struck “something black.” Id. at

790. Diaz opined that someone had thrown something at her car. Id. at 738-39.

She further admitted to being in hysterics after she returned to her home, and that

she asked her sister and niece to check the road where she had been. Id. at 800,

802. Diaz did not dispute that she was driving the car that hit Philip Espinoza on

April 4, 2009. Id. at 810-11. She also did not dispute that she failed to remain at

the scene. Id. According to Diaz, she did not stop because she was scared and

thought there was something from Matt Gutierrez’s house “that might have

followed” her. Id. at 820.

9


D. The Testimony Related to the Victim’s Non-Indian Status

Ezequial Espinoza (“Ezequial”) is the father of Philip Espinoza. Id. at 590-

91. Philip was 31 years old when he died. Id. at 591. Philip was the fifth of six

children borne to Ezequial and his wife, Mary Eunice. Id. at 591-92. Mary

Eunice’s maiden name was Baca. Id. at 592. Ezequial had the opportunity to do

research on his heritage when he was a student at Highlands University in New

Mexico. His professors in college were interested in his name. Id. at 592-93.

Ezequial had previously learned from a cousin that they were Sephardic Jews. Id.

at 593.

Ezequial’s mother’s name was Francesca Edwarda, Martinez and his

father’s name was Miguel Espinoza. Id. They were both Sephardic Jews and had

no Native American or Indian background. Id. at 593-94. Ezequial also did

research regarding his wife’s genealogy. Id. at 594. Ezequial’s father-in-law’s

surname was Baca and his mother-in-law’s surnames were Gomez and Trujillo.

Id. His mother-in-law was also of Sephardic Jewish origin. Id. Neither of

Ezequial’s in-laws had any Native American or Indian background. Id. Ezequial

further testified that, beyond blood lines, Philip Espinoza had not associated

himself with any Native American tribe or pueblo until he obtained a job with a

10


casino in Española, New Mexico. Id. at 595. Philip was not an enrolled member

of any tribe or pueblo. Id.

SUMMARY OF ARGUMENT

Diaz makes five separate arguments on appeal. Each claim fails. Diaz first

asserts that the government failed to present sufficient evidence for the jury to

determine that the victim, Philip Espinoza, was not an Indian or Native American.

The unrefuted testimony of the victim's father, however, made clear that Philip had

no Indian blood and was not an enrolled member of any tribe or pueblo. Thus,

there was sufficient evidence for the jury to determine that Philip was a non-Indian

for purposes of federal jurisdiction.

Diaz next claims that the word “accident” should have been defined in the

court’s jury instructions. Specifically, Diaz requested a definition that “[a]n

accident is an event that involves a person who is injured or killed.” The

requested definition is, however, contrary to New Mexico law because an

accident, as defined by the leaving the scene of an accident statute, does not

require a collision with a person. In addition, the district court appropriately

denied Diaz’s request because her tendered definition of “accident” was contrary

to the elements of the lesser-included offense instruction that the district court

gave. The court’s jury instructions correctly stated the law. Regardless, this

11


argument is moot because, in finding Diaz guilty of the greater offense, the jury

necessarily determined that Diaz knew she had been in an accident involving great

bodily injury or death of a person.

Diaz’s third claim alleges that the district court abused its discretion in

permitting evidence of Diaz’s alcohol consumption on the night in question, but

excluding the alcohol consumption of the victim. Again, Diaz is wrong. The

district court properly permitted evidence of Diaz’s alcohol consumption pursuant

to Federal Rule of Evidence 404(b) because it showed her motive to commit the

crime of leaving the scene of the accident. On the other hand, the district court

properly excluded any evidence of Philip Espinoza’s consumption of alcohol as it

was wholly irrelevant to the issues before the jury. Diaz provides no support for

her contention that the victim’s alcohol consumption was probative of any issue.

The trial court properly excluded any evidence of the victim’s alcohol

consumption.

Fourth, Diaz claims that the district court abused its discretion by making

three statements regarding the relevance of whether a lane of the highway was a

shoulder or a turn lane. Because Diaz failed to adequately object to the district

court’s comments, the Court reviews them for plain error only. By any measure,

the district court’s comments did not constitute error because the court did not

12


comment on Diaz’s guilt or innocence, nor did it comment on the credibility of

any witness. Instead, the district court merely exercised its inherent power to

control the mode and order of evidence and witnesses. The court’s comments

were not error, much less plain error.

Diaz’s final argument is that the government’s failure to disclose certain

information about its traffic accident reconstructionist required a new trial. The

information Diaz claims the government should have disclosed was neither

favorable nor material to Diaz’s defense, nor should it undermine this Court’s

confidence in the jury’s verdict. The Court should affirm Diaz's conviction.

ARGUMENT

I. SUFFICIENT EVIDENCE SUPPORTED THE JURY’S CONCLUSION THAT THE VICTIM WAS NON-INDIAN FOR PURPOSES OF FEDERAL JURISDICTION

A. Standard of Review

This Court reviews de novo claims that evidence was insufficient to support

a verdict. United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997). It views

the evidence in the light most favorable to the prosecution. United States v.

Jenkins, 175 F.3d 1208, 1215 (10th Cir. 1999). Evidence is sufficient to support a

verdict when, viewed in this light, the evidence and reasonable inferences to be

13


drawn from it would permit a reasonable jury to find the defendant guilty beyond a

reasonable doubt. Wilson, 107 F.3d at 778.

In reviewing a claim that the evidence underpinning a criminal conviction is

legally insufficient to support the verdict, this Court “may neither weigh

conflicting evidence nor consider the credibility of witnesses.” United States v.

Pappert, 112 F.3d 1073, 1077 (10th Cir. 1997) (quoting United States v. Darrell,

828 F.2d 644, 647 (10th Cir. 1987)). The function of the jury is to resolve

conflicting testimony, weigh the evidence, and draw permissible inferences from

it. United States v. Nieto, 60 F.3d 1464, 1469 (10th Cir. 1995). This Court is

permitted to conclude testimony is incredible only if it includes “‘. . . facts that

[the witness] physically could not have possibly observed or events that could not

have occurred under the laws of nature.’” Tapia v. Tansy, 926 F.2d 1554, 1562

(10th Cir. 1991) (quoting United States v. Garner, 581 F.2d 481, 485 (5th Cir.

1978)). Under this standard, there is no legal basis to disturb Diaz’s conviction.

B. The Jury Reasonably Could Conclude that the Testimony of the Victim’s Father Established that the Victim was Non-Indian.

To prove Diaz guilty of knowingly leaving the scene of an accident

resulting in great bodily harm or death, the government was required to prove

eight separate elements, one of which was that the victim, Philip Espinoza, was a

14


non-Indian. Aplt. App. at 88. In her brief, Diaz takes issue with the unrefuted

evidence presented to the jury indicating that the victim, Philip Espinoza, was not

an Indian. The Court should reject Diaz’s argument.

Relying on United States v. Prentiss, 273 F.3d 1277 (10th Cir. 2001), Diaz

claims that the government failed to adduce sufficient evidence at trial to establish

that Philip Espinoza was not an Indian. In Prentiss, the government charged the

defendant with arson in Indian Country pursuant to 18 U.S.C. §§ 81 and 1152. Id.

at 1278. The government failed to include in the indictment what were later

determined to be two essential elements of the crime, that being the Indian or non-

Indian status of the victims and the defendant. Id. After an en banc hearing in

which the majority of this Court agreed that the statuses of the victims and that of

the defendant were essential elements of the crime, the Court remanded the case to

the panel to determine whether the failure to allege the elements was harmless

error. Thus, the question before the court in Prentiss was “whether the omitted

elements were ‘uncontested and supported by overwhelming evidence.’” Id.

The Prentiss court re-affirmed a two-part test to determine whether a person

is Indian for purposes of establishing federal jurisdiction over crimes in Indian

country. Id. at 1280. Under the test, a person is an Indian if he or she “(1) has

some Indian blood and (2) is recognized as an Indian by a tribe or by the federal

15


government.” Id. The Prentiss Court then evaluated the evidence related to the

statuses of the victims as Indians and the defendant as non-Indian. As to the

victims, the government presented testimony that both victims were members of

the Tesuque Pueblo, and there was a stipulation that one of the victims was a

member. Id. at 1283. However, absent evidence that Indian blood was a

requirement for Tesuque Pueblo membership, the Tenth Circuit held that the

government’s evidence failed to establish that the victims were Indian. Id.

The Court next examined the evidence related to the non-Indian status of

the defendant. Id. The only evidence in this regard was testimony from a tribal

law enforcement officer who merely testified that the defendant was not a member

of the Tesuque Pueblo. Id. The Court held that this did not establish that the

defendant was not an Indian pursuant to 18 U.S.C. § 1152. Id. The Court also re-

affirmed the Tenth Circuit’s conclusions in United States v. Romero, 136 F.3d

1268, 1274 (10th Cir. 1998), which held that a person’s name, appearance, and

speech, along with testimony that an individual did not grow up on a particular

pueblo, did not establish a person as non-Indian. Id.

Diaz, without citing to any authority, argues that the government was

obliged to elicit testimony from an “expert” or an “objective” witness that the

victim in this case was not an Indian. She is wrong on both counts. Diaz reads

16


Prentiss to require not only that the government present sufficient evidence of the

non-Indian status of the victim, but also to require a specific form of evidence.

Diaz says the government’s evidence was deficient because it “did not bring in one

expert or an objective witness to testify that Philip Espinoza was not a member of

the Pojoaque Pueblo or any tribe in the state of New Mexico.” BIC at 37. 4

Notably, Diaz fails to identify the type of expert who could offer the opinion she

would require. She does not, in the government’s view, because no such expert

exists. She suggests further that the government should have tested the victim’s

blood, though she does not specify how a blood test could have determined that

the victim had no Indian blood. Despite Diaz’s creativity, there is no language in

Prentiss that remotely suggests what form the evidence should take, only that it be

sufficient to prove the element. Thus, Diaz’s invitation to this Court to require

“expert” testimony or testimony from an “objective” witness finds no support in

the law.

With that background, there hardly could have been more compelling

evidence than what was presented at trial to establish that the victim was non-

Indian. The victim’s father, Ezequial Espinoza, testified that, as a college student,

he conducted genealogical research on his family’s history dating back several

Citations to “BIC at ____” are to the Appellant’s Brief in Chief.4

17


hundred years. Aplee. Supp. App. at 592-95. The history included both his family

and the family of his wife, the mother of the victim. Id. His research did not

reveal any Indian blood in the Espinoza family. Id. Instead, he described his

family’s heritage as “Hispanic Jews” and “Sephardic Jews.” Id. Although Diaz

clings to the fact that the government did not use the exact phrase “Indian blood”

in its questioning of Ezequial Espinoza, it is difficult to imagine what else one

could be asking about when talking about “background” and “heritage.” Further,

when the prosecutor turned to the subject of whether the victim was an enrolled

member of any tribe or pueblo, she specifically noted that she was changing topics

beyond “blood lines.” Id. Moreover, Ezequial Espinoza testified that, prior to

Philip’s employment at an Indian Casino in Espanola, New Mexico, Philip never

had associated himself with any tribes or pueblos. Id. Finally, Ezequial Espinoza

testified that his son was not an enrolled member of any tribe or pueblo. Id.

Using the guidance from Prentiss and viewing the evidence in the light

most favorable to the prosecution, the evidence and reasonable inferences to be

drawn from it would have permitted a reasonable jury to find beyond a reasonable

doubt that Philip Espinoza was non-Indian. The unrefuted testimony of a victim’s

biological parent regarding blood lines and heritage, as well as the victim’s lack of

18


tribal enrollment, is sufficient to prove the non-Indian status of an individual for

purposes of federal jurisdiction. The Court should affirm Diaz’s conviction.

II. ALTHOUGH THE COURT’S INSTRUCTIONS DID NOT INCLUDE A DEFINITION OF THE TERM “ACCIDENT,” THE PLAIN LANGUAGE OF THE NEW MEXICO STATUTE DEFINES AN ACCIDENT AS AN EVENT NOT NECESSARILY REQUIRING DEATH OR INJURY TO A PERSON.


The Court reviews the refusal to give a requested jury instruction for abuse

of discretion. United States v. Crockett, 435 F.3d 1305, 1314 (10th Cir. 2006)

(internal citations omitted). In assessing whether the district exercised its

discretion properly, the Court reviews “the jury instructions de novo to determine

whether, as a whole, they accurately state the governing law and provide the jury

with an accurate understanding of the relevant legal standards and factual issues in

the case.” Id. If a reviewing court concludes that a rational juror, properly

instructed, still would have found the defendant guilty of each element of the

offense, the court should affirm the judgment. Pope v. Illinois, 481 U.S. 497, 503

(1987); see also Rose v. Clark, 478 U.S. 570, 579 (1986).

19


B. A Definition of “Accident” Was Not Necessary to Accurately Apprise the Jury of the Governing Law and the Appropriate Legal Standards.

Diaz argues that the district court should have included a definition of

“accident” in its instructions to the jury to accurately apprise the jury of the law.

The specific definition proposed by Diaz was: “An accident is an event that

involves a person who is injured or killed.” Aplt. App. at 66. This, however, is

not an accurate statement of the law. Consequently, the court did not abuse its

discretion in refusing to give it.

Based upon a plain reading of the statute and the district court’s ruling that

§ 66-7-201(B) is a lesser included offense of § 66-7-201(C) — a ruling that Diaz

does not challenge on appeal — Diaz’s requested instruction is an inaccurate

statement of the law because not every accident necessarily involves a person who

is injured or killed. In pertinent part, the New Mexico statute that prohibits

leaving the scene of an accident provides as follows:

A. The driver of any vehicle involved in an accident resulting in injuryto or death of any person shall immediately stop the vehicle at thescene of the accident or as close thereto as possible, but shall thenimmediately return to and in every event shall remain at the scene ofthe accident until he has fulfilled the requirements of Section

20


66-7-203 NMSA 1978. Every such stop shall be made without5

obstructing traffic more than is necessary.

B. Any person failing to stop or to comply with the requirements ofSection 66-7-203 NMSA 1978 where the accident results in greatbodily harm or death is guilty of a fourth degree felony and shall besentenced pursuant to the provisions of Section 31-18-15 NMSA1978.

C. Any person who knowingly fails to stop or to comply with therequirements of Section 66-7-203 NMSA 1978 where the accidentresults in great bodily harm or death is guilty of a third degree felonyand shall be sentenced pursuant to the provisions of Section 31-18-15NMSA 1978.

N.M. Stat. Ann. § 66-7-201 (A)-(C) (emphasis added).

Subsection (A) of the statute imposes a duty on drivers to stop a vehicle at

the scene of an accident and fulfill the requirements of § 66-7-203 which, in this

case, would have required Diaz to make arrangements for medical care for the

Section 66-7-203, captioned “Duty to Give Information and Render Aid,”5

provides as follows:

The driver of any vehicle involved in an accident resulting in injury to ordeath of any person or damage to any vehicle which is driven or attended byany person shall give his name, address and the registration number of thevehicle he is driving and shall upon request exhibit his driver’s license tothe person struck or the driver or occupant of or person attending anyvehicle collided with and shall render to any person injured in such accidentreasonable assistance, including the carrying, or the making of arrangementsfor the carrying, of such person to a physician, surgeon or hospital formedical or surgical treatment if it is apparent that such treatment isnecessary or if such carrying is requested by the injured person.

21


victim, Philip Espinoza. Subsections (B) and (C) then define graduated penalties

for the crime. Any driver who knowingly fails to remain at the scene, contrary to

subsection (C), is guilty of a third-degree felony under New Mexico law. In

contrast, under subsection (B), which contains no explicit mens rea requirement,

any person failing to stop or to comply with the requirements of Section 66-7-203

is guilty of a fourth-degree felony under New Mexico law.

The district court properly determined that § 66-7-201(B) is a lesser

included offense of § 66-7-201(C). Aplt. App. at 49-57. The district court further

ruled that subsection (B) is not a strict liability crime, but rather requires

knowledge that an “accident” occurred. The parties sought clarification of the

district court’s ruling, and the district court issued a second order clarifying that,

for guilt to be imposed pursuant to subsection (B), the government did not need to

prove that the driver knew the accident involved a person or that the driver knew

that the accident resulted in great bodily harm or death of any person. Id. at 80-81.

However, for guilt to be imposed pursuant to subsection (C), the government

would be required to prove that the driver knew that the accident resulted in great

bodily harm or death of a person.

22


With respect to subsection (C), the court instructed the jury that to convict it

must find that the government proved beyond a reasonable doubt the following

eight elements:

First: the defendant was the driver of a vehicle that was involved in an accident resulting in injury or death to a person;

Second: the defendant knew at the time of the accident that an accident occurred;

Third: the defendant knew that the accident resulted in great bodily harm or death of a person;

Fourth: the defendant knowingly failed to remain at the scene and render reasonable assistance to the victim, Philip Espinoza, including the carrying or the making of arrangements for the carrying of Philip Espinoza to a physician, surgeon, or hospital for medical treatment;

Fifth: the defendant is an Indian;

Sixth: the victim, Philip Espinoza, was a non-Indian;

Seventh: the accident took place in Indian country; and

Eighth: the accident took place within the state and district of New Mexico on or about April 4, 2009.

Aplt. App. at 88.

The instruction for subsection (B) tracked this instruction word for word,

except it omitted the third element that set forth the mens rea requirement. Id. at

89.

23


A fair reading of the statute, and the jury instructions that flowed from them,

demonstrate that the court did not abuse its discretion by excluding the definition

of “accident” Diaz requested. Under New Mexico law, criminal liability attaches

when two distinct events occur: (1) an accident; and (2) a specific result, namely

death or great bodily harm. Under Diaz’s proposed definition, an “accident” is an

event that necessarily requires an injury or death. Diaz argues that a collision and

the resulting injury are both required before an event can be deemed an “accident.”

It naturally follows from her proposed definition that any collision that does not

result in injury or death is not an “accident” under the New Mexico statute. If this

were all true, then the New Mexico statute would not have to require, before

criminal liability attached, both an “accident” and the specific result of death or

great bodily harm. It would be redundant to require the result of great bodily harm

because that element would already be part and parcel of the term “accident.” The

statute, however, by its clear terms, applies only to that subset of “accidents” that

result in death or great bodily harm. Thus, by implication, the New Mexico statute

defines an “accident” as a collision not necessarily requiring a person who is

injured or killed. See N.M. Stat. Ann. § 66-7-203 (referring to accidents “resulting

in injury to or death of any person or damage to any vehicle.” (emphasis added)).

24


Although there was and is no New Mexico case law directly on point, there

are a number of other jurisdictions with similar statutes that require a driver to at

least know that a collision has occurred, even when a specific mens rea is absent

from the statute. See Aguilar v. State, 202 S.W. 3d 833, 839 (Tex. 2006); State v.

Fearing, 284 S.E.2d 487, 491 (N.C. 1981); State v. Sidway, 431 A.2d 1237, 1239-

40 (Vt. 1981); State v. Corpuz, 621 P.2d 604, 609 (1980); State v. Wall, 482 P.2d

41, 45 (Kan. 1971).

Not only is the requested instruction an inaccurate statement of law, but

the issue is moot unless the Court finds merit to any of Diaz’s claims that would

result in a new trial. Because the jury convicted Diaz of the greater offense in this

case, the jury had to find, beyond a reasonable doubt, that she “knew at the time of

the accident that an accident occurred” and “knew that the accident resulted in

great bodily harm or death of a person.” Aplt. App. at 88; see also N.M. Stat.

Ann. § 66-7-201(A) and (C). Diaz does not dispute that these were the elements

of the offense of conviction. The guilty verdict in this case affirms the jury’s

finding that Diaz “knew” she hit a person in the early morning hours of April 4,

2009. Thus, whether or not the jury was given a definition of the term “accident”

that included that the “accident” involved a “person,” the guilty verdict eliminates

this issue entirely as the jury necessarily found that Diaz knew she had been in an

25


accident and that she knew that the accident resulted in great bodily harm or death

of a person. Id.

The jury instructions, as a whole, accurately instructed the jury on the law.

In contrast, Diaz’s proposed instruction inaccurately defined the term.

Consequently, the district court acted within its sound discretion in excluding

Diaz’s requested definition of “accident.”

C. The District Court Appropriately Permitted the Prosecutor to Question Diaz about the Elements of the Lesser Included Crime.

Without citing to any authority, Diaz’s final argument on this topic appears

to be based upon the assumption that the prosecutor should not have been

permitted to ask Diaz questions related to the elements of subsection (B), the

lesser included crime, because there was no definition of “accident” in the jury

instructions. As explained above, however, the jury instruction setting forth the

elements of subsection (B) was an accurate statement of the law. Consequently, it

was well within the court’s discretion to permit the prosecutor to question Diaz

regarding the elements of the lesser included offense. The Court should affirm

Diaz’s conviction.

26


III. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY PERMITTING THE GOVERNMENT TO ELICIT EVIDENCE REGARDING DIAZ’S PRE-ACCIDENT DRINKING AND PREVENTING DIAZ FROM ELICITING SIMILAR EVIDENCE WITH RESPECT TO THE VICTIM’S PRE-ACCIDENT DRINKING.


This Court reviews a district court’s admission of evidence pursuant to Rule

404(b) for abuse of discretion. United States v. Morris, 287 F.3d 985, 989-90

(10th Cir. 2002). “This Court will not reverse for an abuse of discretion unless [it

finds] that the district court made a clear error of judgment or exceeded the bounds

of permissible choice in the circumstances.” United States v. Nicholson, 17 F.3d

1294, 1298 (10th Cir. 1994) (internal quotation marks omitted).

B. Discussion Regarding Evidence of Diaz’s Pre-Accident Drinking

At trial, the district court permitted the United States to introduce evidence

pursuant to Rule 404(b) concerning Diaz’s consumption of alcohol prior to the

accident that killed Phillip Espinoza. Aplee. Supp. App. at 38-44. During the

government’s case-in-chief, the jury heard evidence that Diaz had consumed parts

of several beers at different points during the evening. Diaz, during her own

testimony, admitted also to drinking one shot of tequila prior to the accident.

Aplee. Supp. App. at 785. This evidence was introduced for a singular purpose:

to show Diaz’s motive for fleeing the scene of the accident.

27


In her opening brief, Diaz pays scant attention to the factors this Court must

weigh in determining the admissibility of Rule 404(b) evidence. Instead, Diaz

appears to argue that she was prejudiced, not simply because the government was

permitted to introduce the drinking evidence, but also because it was “patently

unfair” for the district court not to likewise permit her to introduce evidence

concerning the victim’s consumption of alcohol. BIC at 47. Diaz’s argument

conflates the legal analysis used to determine the admissibility of evidence

concerning her own consumption of alcohol as opposed to that of the victim.

First, in determining the admissibility of evidence under Rule 404(b) of

Diaz’s drinking, this Court applies a four-factor test. The test requires that

(1) the evidence must be offered for a proper purpose; (2) theevidence must be relevant; (3) the trial court must make a Rule403 determination of whether the probative value of the similaracts is substantially outweighed by its potential for unfairprejudice; and (4) pursuant to Fed. R. Evid. 105, the trial courtshall, upon request, instruct the jury that evidence of similar acts isto be considered only for the proper purpose for which it wasadmitted.

United States v. Zamora, 222 F.3d 756, 762 (10th Cir. 2000) (citation omitted).

Rule 404(b) is a rule of inclusion, not of exclusion. See United States v. Segien,

114 F.3d 1014, 1022 (10th Cir. 1997) (overruled in part on other grounds, Jones v.

United States, 526 U.S. 227 (1999). Here, each of these factors was satisfied and

28


the district court’s decision to admit this evidence was an appropriate exercise of

its discretion.

1. The Evidence Was Introduced for a Proper Purpose.

Evidence is admitted for a proper purpose if allowed for one or more of the

enumerated purposes in Rule 404(b). United States v. Mares, 441 F.3d 1152,

1156 (10th Cir. 2006). Evidence of Diaz’s drinking was offered for a proper

purpose, namely to show Diaz’s motive to flee the scene of the accident. In fact,

that was the sole and exclusive purpose for which the government introduced the

drinking evidence.

2. The Evidence Was Relevant to Whether Diaz Left the Scene of the Accident.

Second, the 404(b) evidence was relevant and probative on the issue of

Diaz’s motive to flee the scene. Evidence is relevant under Federal Rule of

Evidence 401 if it tends “to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable that it would be

without the evidence.” Common sense teaches that it is more probable that a

driver who has alcohol on her breath — or, for that matter, thinks she has alcohol

on her breath — will leave the scene of a fatal accident than a driver who

abstained. Indeed, it is no great leap of logic to suggest that any driver, after

29


consuming parts of several beers and one shot of tequila prior to hitting and killing

a pedestrian at 4:30 a.m., would have ample reason to flee rather than stay and risk

speaking to law enforcement. Not only did Diaz’s drinking provide her the motive

to leave the scene, it provided her with the quintessential motive to do so.

3. The Probative Value of the Evidence Was Not Substantially Outweighed by the Danger of Unfair Prejudice.

Diaz implies that the danger of unfair prejudice from the 404(b) evidence

substantially outweighed its probative value such that its admission constituted an

abuse of discretion. BIC at 46. As an initial matter, the government recognizes

that the evidence related to Diaz’s drinking, like virtually all evidence introduced

during the course of a criminal case, was prejudicial. But the hurdle Diaz must

clear is much higher than simply establishing that the evidence was prejudicial:

under Rule 403, exclusion of relevant evidence is only warranted when the

probative value is substantially outweighed by the danger of unfair prejudice.

United States v. Sides, 944 F.2d 1554, 1563 (10th Cir. 1991). The district court

did not abuse its discretion in finding that the probative value of the Rule 404(b)

evidence was not substantially outweighed by the danger of unfair prejudice.

In undertaking this balancing test, the district court first found that the

evidence related to Diaz’s drinking had “significant probative value on the issue of

30


motive to leave the scene.” Aplee. Supp. App. at 43. As discussed above, drinking

and driving provides a driver with the classic motive to leave the scene of an

accident. Indeed, the probative value of the “drinking” evidence and the motive it

provided took a back seat to no other evidence introduced at trial; it struck at the

very heart of the government’s case.

After finding the evidence probative, the district court continued the

balancing test by addressing the relative prejudice of the evidence. While

recognizing the “inflammatory nature of the evidence,” the district court

concluded that evidence of Diaz’s alcohol consumption was “no more sensational

or disturbing than the charged crime of leaving the scene of an accident.” Id. at 44.

(citing United States v. Tan, 254 F.3d 1204, 1212 n.6 (10th Cir. 2001)).

Moreover, the district court took the additional step to ameliorate whatever

prejudice may have attached to the drinking evidence by limiting the government’s

evidence to what witnesses actually observed with respect to Diaz’s drinking in

the hours before the accident. Aplee. Supp. App. at 43. Thus, the government did

not tender evidence concerning alcohol use on occasions other than the night Diaz

struck and killed the victim.

31


4. Diaz Made No Request for a Limiting Instruction.

Upon the introduction of the drinking evidence, Diaz was entitled to ask for

and receive a limiting instruction pursuant to Federal Rule of Evidence 105.

Indeed, the very purpose of Rule 105 is to mitigate the prejudice of which Diaz

now complains. For reasons known only to Diaz, she elected to forego the6

remedy by not requesting a limiting instruction at any point in trial. She should7

not now be heard to complain about “prejudice” when, at trial, she turned her back

on the remedy specifically designed to ameliorate it.

C. The Court Properly Excluded Evidence of the Victim’s Pre-Accident Drinking as Irrelevant

At trial, Diaz sought to introduce evidence that the victim had been

consuming alcohol prior to the accident. In a pre-trial ruling, the district court

The commentary to Rule 105 notes that many evidentiary rules are6

“purpose specific” and that “exclusion depends upon the purpose for which theevidence is offered.” With that in mind, Rule 105 strikes the balance whenevidence is admissible for one purpose but inadmissible for another by providingprotection with a limiting instruction for the benefit of the non-offering party whomay suffer prejudice.

Diaz apparently made the decision not to seek a limiting instruction long7

before trial. On October 28, 2009, approximately four months before trial, Diazfiled her first motion in limine in which she stated that a limiting instructionrelated to the drinking evidence would only serve to “prejudice Ms. Diaz.” Aplee.Supp. App. at 31. No matter the reason, Diaz’s conscious decision to forego alimiting instruction was made at her own peril.

32


ordered that evidence regarding the victim’s consumption of alcohol prior to the

accident and his level of intoxication when he died would not be presented to the

jury. Aplee. Supp. App. at 33-37. For the following reasons, that order was not an

abuse of the district court’s discretion.

Woven throughout Diaz’s argument is a suggestion that evidence related to

the victim’s drinking was admissible based on some nebulous and ill-defined

notion of fairness. Diaz complains that it was “patently unfair” that she was not

permitted to delve into evidence related to the victim’s drinking when the district

court allowed similar evidence related to Diaz to “come in throughout trial.” BIC

at 47. This good-for-the-goose-good-for-the-gander argument ignores a

fundamental tenet of criminal trials: the admissibility of evidence — all evidence

— is governed by the Rules of Evidence, not by vague, amorphous, and self-

serving principles of fairness defined by Diaz. In this case, the district court did

nothing more radical than properly apply the Rules of Evidence in determining

that the victim’s drinking was not relevant.

In barring the evidence, the district court first found that evidence of the

victim’s drinking was not relevant in a prosecution for leaving the scene of an

accident. Aplee. Supp. App. at 36. As the district court noted, it is no defense that

the victim had been drinking or was legally intoxicated at the time of his death

33


because it does not change the obligation of a motorist who was involved in an

accident causing death to stop and render aid. Id. at 36. For purposes of

comparison, if this were a civil action, where concepts of comparative negligence

would potentially be before the jury, a much more persuasive case could be made

that evidence related to the victim’s drinking and/or intoxication prior to the

accident was relevant. Here, however, such evidence was wholly irrelevant.

Indeed, if the victim passed out in the middle of a New Mexico interstate at rush

hour, a motorist who struck and killed him would still be required, under N.M.

Stat. Ann. § 66-7-201, to stop at the scene and render reasonable assistance. Thus,

evidence that the victim had been drinking or was intoxicated made it neither more

or less probable that Diaz violated the statute. See Fed. R. of Evid. 401; United

States v. Mendoza-Salgado, 964 F.2d 993, 1006-07 (10th Cir. 1992). Because the

evidence was not relevant, the court properly excluded it.

A review of the elements of the crime of conviction also lends no support to

Diaz’s argument. In convicting Diaz, the jury found beyond a reasonable doubt

that:

First: the defendant was the driver of a vehicle that was involved in an accident resulting in injury or death to a person;

Second: the defendant knew at the time of the accident that the accident occurred;

34


Third: the defendant knew that the accident resulted in great bodily harm or death of a person;

Fourth: the defendant knowingly failed to remain at the scene and render reasonable assistance to the victim, Philip Espinoza, including the carrying or making of arrangements for the carrying of Philip Espinoza to a physician, surgeon, or hospital for medical or surgical treatment;

Fifth: the defendant is an Indian;

Sixth: the victim, Philip Espinoza, was a non-Indian;

Seventh: the accident took place in Indian Country; and

Eighth: the accident took place within the state and district of New Mexico on or about April 4, 2009.

Aplt. App. at 88.

Certainly, evidence of the victim’s drinking or intoxication sheds no light

on elements four through eight. With respect to element one, only in the most

extreme fact patterns, those in which the victim dies from alcohol poisoning as

opposed to injuries suffered in the accident, will evidence of the victim’s drinking

be relevant. Finally, elements two and three are directed at what Diaz knew: did

she know she was in an accident and did she know someone suffered great bodily

harm or death as a result? Again, the victim’s drinking sheds no light on those

elements. Consequently, the district court did not abuse its discretion in barring

such evidence from trial.

35


Diaz complains that “the United States argued the introduction of Mr.

Espinoza’s level of intoxication would be prejudicial, but in the same vein argued

that the introduction of Ms. Diaz’s acts would not be prejudicial.” BIC at 48.

This strawman argument misapprehends the government’s position. The United

States does not claim that introduction of Diaz’s drinking was not, on some level,

prejudicial to her. Instead, the United States argued that the probative value of the

evidence, which was significant, was not substantially outweighed by the danger

of unfair prejudice. In contrast, the evidence relating to the victim’s consumption

of alcohol had no probative value at all.

Finally, Diaz argues that evidence of the victim’s drinking was admissible

because it was inextricably intertwined with the charged offense. The district

court did not abuse its discretion in finding otherwise. As the district court

correctly noted, “drinking alcohol by or intoxication of the victim does not form

an ‘integral and natural part of the witness’s [sic] account of the circumstances

surrounding the offense for which the defendant was indicted.’” Aplee. Supp.

App. at 36 (citing United States v. Johnson, 42 F.3d 1312, 1316 (10th Cir. 1994)).

In response to that finding, Diaz argues that evidence relating to the victim’s

drinking would have shown the “context” of the charged crime. BIC at 47. Diaz

is wrong. Diaz fails to articulate, even once, what facts elicited at trial needed the

36


contextual backdrop of the victim’s drinking. It is worth noting that the jury heard

no significant or detailed evidence relating to where the victim was or what he was

doing prior to the accident. The jury simply knew that the victim was walking

along the highway prior to being struck by Diaz’s car. Nothing about the evidence

the jury heard, or what they knew about the victim, required the gratuitous and

irrelevant backdrop of evidence relating to the victim’s drinking. Thus, evidence

of his drinking would have put nothing in “context” as Diaz claims. The district

court did not abuse its discretion in permitting the jury to hear evidence related to

Diaz’s drinking and preventing them from hearing similar testimony regarding the

victim’s consumption of alcohol.

IV. THERE WAS NO ERROR WHERE THE DISTRICT COURT’S COMMENTS WERE LIMITED, DID NOT COMMENT ON THE GUILT OR INNOCENCE OF THE DEFENDANT, AND WERE MADE IN A PROPER EFFORT TO CONTROL THE MODE AND ORDER OF EVIDENCE


In the absence of a proper objection, this Court reviews Diaz’s objection for

plain error. United States v. Pearson, 798 F.2d 385, 387 (10th Cir. 1986). Plain

error requires the defendant to “demonstrate that the district court (1) committed

error, (2) that the error was plain, and (3) that the plain error affected [the

defendants’] substantial rights.” United States v. Dazey, 403 F.3d 1147, 1174

37


(10th Cir. 2005). If all of these conditions are met, a court reviewing the error

may exercise its discretion to correct it only if the error seriously affects the

fairness, integrity, or public reputation of the judicial proceeding. Id.

Diaz’s attorney did not adequately or contemporaneously object to the

district court’s alleged improper comments. There was no objection when the

comments were made. Aplee. Supp. App. at 549. Defense counsel did briefly

touch on the issue after the close of the government’s case. Id. at 604-05.

Specifically, prior to moving for a judgment of acquittal, defense counsel noted

that the court “might have committed error” in relation to the district court’s

comment about the relevance of testimony related to the right hand lane or

shoulder of the highway where the victim was struck and killed. Id. Counsel

again mentioned the alleged error at the close of the defense case. Id. at 829. In

neither instance, however, did defense counsel ever articulate what the potential

error was, thereby depriving the district court of the opportunity to cure any error.

Id. at 604-05, 829. Nevertheless, should this Court find that Diaz’s attorney did

properly preserve his objection, the Court reviews the alleged error only for abuse

of discretion. Hynes v. Energy West, Inc., 211 F.3d 1193, 1201-02 (10th Cir.

2000).

38


B. The Limited Comments of the Trial Judge Did Not Constitute Error.

The comments of the trial judge fail to rise to the level of plain error or even

abuse of discretion, as Diaz asserts. A trial court has the broad discretion “to

comment reasonably upon the evidence, being careful not to become an advocate

for any of the parties.” United States v. Baker, 638 F.2d 198, 203 (10th Cir.

1980). “The point should never be reached where it appears to the jury that the

judge believes the accused is guilty.” United States v. Chanthadara, 230 F.3d

1237, 1254 (10th Cir. 2000). It is improper also for a judge to comment directly

on the ultimate factual issue to be decided by the jury. Sloan v. State Farm Mut.

Auto. Ins. Co., 360 F.3d 1220, 1226 (10th Cir. 2004). “If a judge exceeds the

limitations on his power to comment and to question, such action may constitute

prejudicial error and require reversal.” United States v. Paiva, 892 F.2d 148, 159

(1st Cir. 1989).

Diaz points to five comments from the trial judge to support her claim,

namely: (1) “I am having trouble understanding the relevance of whether or not

that was a designated traffic lane or not. I can’t see the relevance”; (2) when

defense counsel continued with his cross-examination on the same issue, the court

commented, “I can’t still see the relevance of that”; (3) in referring to the

questioning about the roadway, the court commented, “This is far afield from the

39


issues in the case”; (4) in speaking with defense counsel during his first motion for

a judgment of acquittal, the court stated, “The question is not whether he was

walking on a highway or out in the country without a road. The question is

whether she violated the statute by failing to stop and render aid. That’s the only

question”; and (5) “I will not accept any more testimony about the road. We’ve

heard enough about the road. We’ve heard plenty of testimony about whether it’s

three lanes or two lanes or a sidewalk or goat path. It doesn’t make any difference

where it happened. The statute does not differentiate between locations. It’s not

relevant. No more testimony about it.” BIC at 49-50. Only the first three of these

comments were made in front of the jury. Whether in front of the jury or not,

these comments were not error on the part of the district judge, plain or otherwise.

Further, even if Diaz properly preserved her objection, the district court did not

abuse its discretion in commenting on and limiting the evidence.

The trial judge’s comments were an appropriate exercise of the court’s

implicit power to control the mode and order of interrogating witnesses and

presenting evidence pursuant to Federal Rule of Evidence 611. Notably, the trial

judge did not express an opinion about whether Diaz was guilty or innocent. Nor

did he comment on the credibility of Diaz or any other witness. The court’s

comments in front of the jury were limited to controlling the defense attorney’s

40


laborious, cumulative, and irrelevant questioning regarding whether the area

where the victim had been walking was a third lane of traffic or a shoulder. Aplee.

Supp. App. at 546-49. The court was understandably frustrated with the multitude

of questions on the topic, as a finding of guilt or innocence did not hinge on where

the victim was walking at the time he was killed. Aplt. App. at 88. In other

words, nothing in the New Mexico statute at issue in this case relates to whether

the accident was on a roadway, on the shoulder, in the median, or elsewhere.

Despite the district court’s frustration, it allowed defense counsel to ask at least

three other witnesses about whether there was a third lane of traffic or a shoulder

where the victim was hit. Aplee. Supp. App. at 616-17, 637, 656-57. Finally,

after permitting a significant amount of testimony on the issue, and in an effort to

avoid needless consumption of time, the district court appropriately cautioned both

parties, outside the presence of the jury, that there had been “plenty of testimony

about whether [the road was] three lanes or two lanes or a sidewalk or a goat

path,” and he was not going to permit further testimony on the subject. Id. at 670-

71. There was no plain error or abuse of discretion on the part of the district court

in its comments in front of, or away from, the jury.

41


C. Any Error the District Judge Committed in Commenting on theRelevance of the Type of Road Did Not Affect Diaz’s SubstantialRights and Was Harmless Beyond a Reasonable Doubt.

Assuming for the purpose of argument that the trial judge’s statements were,

in fact, inappropriate comments on the evidence or opinions regarding Diaz’s

guilt, the statements did not affect Diaz’s substantial rights and were harmless

beyond a reasonable doubt. If the Court determines that the plain error standard of

review applies, Diaz bears the burden of showing that the error affected her

substantial rights. If, however, Diaz adequately preserved this issue with

contemporaneous and particular objection, any error is harmless if the government

can establish there was overwhelming evidence of the defendant’s guilt. United

States v. Davis, 60 F.3d 1479, 1484-85 (10th Cir.1995) (“[T]he most common

means of demonstrating the harmlessness of an extraneous contact is to show the

existence of ‘overwhelming evidence of [the] defendant’s guilt.’”).

Part of Diaz’s defense, as explained in her opening brief, was that she had

no knowledge that she had hit a person. BIC at 51. She further states that her

specific defense was that she did not have any “knowledge that a person would be

walking on the right-hand turning lane.” Id. The problem with this “defense” is

that it isn’t a defense at all. The third element of the crime of conviction required

that “the defendant knew that the accident resulted in great bodily harm or death of

42


a person.” Aplt. App. at 88. Therefore, it is not relevant, under the law, whether

the defendant would have expected a person to be on, off, or near the roadway.

What was important was Diaz’s knowledge at the time of the accident. In

reaching its guilty verdict, the jury necessarily found that Diaz knew at the time of

the accident that an accident had occurred, and that the accident resulted in great

bodily harm or death of a person. Id.; Aplee. Supp. App. at 65. The jury was no

doubt able to reach this conclusion based on the overwhelming evidence before it,

including: the severe damage to Diaz’s vehicle; her distraught emotional state just

after the accident; her dispatching her sister and niece to the scene immediately

after the accident to see if they could see anything; her discussion with her son

about potentially hitting a human being; her alleged claim that she did not learn

until April 5, 2009 about a body having been found on April 4, 2009, despite the

fact that she was the Pojoaque Lieutenant Governor at the time of the crime; and

finally, the fact that when she ultimately called authorities, she said that she had

done something “bad.” Aplee Supp. App. at 310, 333, 486-87, 660-61, 679-80,

688-89, 800-04. The evidence regarding the roadway where the victim was

walking was not relevant to the issue of guilt or a legitimate defense. Further, the

jury was specifically instructed that the court’s comments and questions were not

evidence. Aplt’s App at 94. Thus, any arguable error in the trial judge’s

43


comments did not affect Diaz’s substantial rights and was harmless beyond a

reasonable doubt. See United States v. Chanthadara, 230 F.3d 1237, 1254 (10th

Cir. 2000).

V. THE DISTRICT COURT PROPERLY DENIED DIAZ’S MOTION FOR A NEW TRIAL


This Court reviews “a Brady claim asserted in the context of a Rule 33

motion for a new trial . . . de novo,” and it reviews any factual findings for clear

error. United States v. Torres, 569 F.3d 1277, 1281 (10th Cir. 2009). Otherwise,

the Court reviews the district court’s denial of a motion for new trial for abuse of

discretion. United States v. Gwathney, 465 F.3d 1133, 1144 (10th Cir. 2006). A

district court’s decision is “an abuse of discretion only if it is arbitrary, capricious,

whimsical, or manifestly unreasonable.” United States v. Combs, 267 F.3d 1167,

1176 (10th Cir. 2001) (internal quotation marks omitted).

B. The United States Did Not Violate Its Brady/Giglio Obligations.

Diaz argues that the government violated its Brady/Giglio obligations by

failing to learn that Mr. O’Brien, who testified as both a fact and expert witness at

trial, had been involved in a SWAT standoff in 1996 during which a man named8

At the time of the accident, Mr. O’Brien was employed as a sworn deputy8

with the Santa Fe County Sheriff’s Office. After the accident, but prior to trial,

44


Gerald Viarrial, who Diaz claims to be her cousin, shot and killed a police officer.

See BIC at 55-56; Aplt. App. at 189-90. The Court should reject Diaz’s argument

because nothing about the SWAT standoff was exculpatory, nor could it be used to

impeach Mr. O’Brien at trial. The district court correctly concluded that the

government did not violate its Brady/Giglio obligations.

To establish a Brady violation, Diaz must show that “(1) the prosecution

suppressed evidence, (2) the evidence was favorable to the defendant, and (3) the

evidence was material.” Torres, 569 F.3d at 1281 (quoting United States v.

Velarde, 485 F.3d 553, 558 (10th Cir. 2007)). Although the prosecution did not

learn about the 1996 SWAT standoff until after trial, the Court may assume for the

purposes of this appeal that Diaz can satisfy the first prong of a Brady violation.

Diaz’s claim fails, however, because she cannot establish that evidence relating to

the Viarrial shooting, or Mr. O’Brien’s role in it, was favorable to her or was

material in any meaningful way.

1. Evidence Related to Mr. O’Brien’s Participation in the SWAT Standoff in 1996 with Viarrial Was Not Favorable to Diaz.

The government is required to disclose “evidence favorable to an accused

upon request . . . where the evidence is material either to guilt or to punishment,

Mr. O’Brien retired and began work as a private accident reconstruction expert.

45


irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at

87. Diaz argues that the information would have been favorable to her because it

could have been used to impeach Mr. O’Brien. BIC at 55. Implicit in this

argument is a suggestion that Mr. O’Brien’s testimony was so damning to her that

a successful impeachment using the Viarrial shooting incident, if it were allowed,

would have resulted in different outcome.

Diaz has done nothing, however, to show how the alleged Brady/Giglio

material is favorable to her. Did Mr. O’Brien know Diaz? Did he know that Diaz

and Viarrial were allegedly related? Did he know any of the other defense

witnesses? Did he know that Stephanie Crosby is allegedly the sister of Viarrial?

Was Mr. O’Brien, after sixteen years, able to connect the tenuous dots between his

work on this case and the Viarrial incident? The record simply does not answer

these questions and, more importantly, neither does Diaz in her argument. The

best Diaz can muster is (1) “Mr. O’Brien may have known that Ms. Diaz is the

cousin of Mr. Viarrial” and (2) “Ms. Stephanie Crosby was one [sic] an important

defense witness, and is the sister of Mr. Viarrial.” BIC at 56. Diaz’s naked

assertions of what Mr. O’Brien may have known are a far cry from establishing a

legitimate Brady claim. See United States v. Erickson, 561 F.3d 1150, 1163 (10th

46


Cir. 2009) (“A Brady claim fails if the existence of favorable evidence is merely

suspected.”).

Moreover, this most assuredly was not a case that “depended almost entirely

on [Mr. O’Brien’s] testimony[,] without [which] there could have been no

indictment and no evidence to carry the case to the jury.” Giglio, 405 U.S. at 154.

No doubt, Mr. O’Brien was a helpful witness for the prosecution, but the

testimony he provided was aimed at merely establishing that an accident in fact

occurred that resulted in the death of the victim. Diaz has never contested those

two facts. To the contrary, Diaz herself, during her testimony, admitted that she

was the driver of the vehicle and conceded that she knew that she was involved in

an accident. Aplee. Supp. App. at 810.

The real issue at trial was mens rea. Did Diaz know that she had hit a

person? On that point, Mr. O’Brien offered no opinion. In fact, the government,

during its closing argument, did not rely upon or reference Mr. O’Brien’s

testimony in any way to make its “knowledge” case. Instead, the government

relied upon the following to establish that Diaz knew she had hit a human being:

• Moments after striking and killing Philip Espinoza at 4:30 a.m., Diaz sent her sister and teenage niece to the accident scene. She would nothave done so if she believed supernatural forces were involved in the accident (that would have been placing them in the same danger she feared) or if she merely believed she hit an animal (no reasonable

47


person would look for an injured wild animal at 4:30 a.m.). The only logical explanation for her doing so would be if she believed she had hit a human being. Aplee. Supp. App. at 801-04.

• Diaz’s son stated, during direct examination by defense counsel, that on Saturday Diaz mentioned that she may have hit a human being. Id.at 679.

• Her hysterical reaction after returning home is best explained by her hitting a human being. Id. at 800, 802.

• She did not mention the accident to Matt Gutierrez when she spoke on the phone with him approximately six and one-half hours after the accident, a fact best explained by somebody who had hit a human being and was still putting her story together. Id. at 333.

• Diaz’s story about not learning that she struck a human being until Sunday was not believable. All other witnesses who testified indicated that they had learned on Saturday that a person had been hit and killed. As the Lt. Governor of the Pueblo, Diaz could offer no explanation as to why she did not similarly know. This supported the government’s theory that she knew immediately that she had hit a person, but could not alert authorities because she had been drinking. The following day was spent assembling a believable story to explain the delay in reporting the accident. Id. at 486-87, 680, 688-89, 660-61.

• Diaz’s own admission to law enforcement that she had done something “bad” implies that she knew she had hit a human being. Id. at 310.

Diaz argues that the Court should have no confidence in the outcome of the

trial because she was unable to impeach Mr. O’Brien by reference to the Viarrial

incident. She fails to admit, however, that the government relied almost

48


exclusively on other evidence, apart from the opinions offered by Mr. O’Brien, to

establish the knowledge element. For this reason, Diaz’s argument that the

opinions offered by Mr. O’Brien “have a direct impact on whether Ms. Diaz was

guilty of having knowledge that she hit a person” is without merit. BIC at 58. In

fact, nowhere in her argument does Diaz attempt to connect the dots between the

opinions offered by Mr. O’Brien and the knowledge element.

In addition, Diaz never acknowledges that a major component of her own

defense was built from the raw materials provided during Mr. O’Brien’s

testimony. Thus, a successful impeachment of Mr. O’Brien would have taken

from Diaz the only real defense she offered. It logically follows that any

impeachment of Mr. O’Brien would not have been favorable to her.

Specifically, Mr. O’Brien testified that if Diaz were traveling at 45 miles

per hour (the speed limit) when she struck Philip Espinoza, he would have been on

the hood of her car for less than one-tenth of a second. Aplee. Supp. App. at 542-

43. Latching onto this testimony, Diaz’s counsel, during the cross-examination of

Mr. O’Brien, had him concede that such a short period of time amounted to just a

“blink of an eye.” Id. at 543-44. This, as it turned out, became one of the major

themes of Diaz’s defense. In fact, during her closing argument, Diaz relied on Mr.

O’Brien’s testimony by arguing that it would have been impossible to notify

49


authorities “at the time of the accident,” as the statute requires, because the “time

of the accident” was less than one tenth of a second. Aplee. Supp. App. at 882.

As it turned out, this defense failed to carry the day. Despite that, Diaz

cannot now run away from the incontrovertible fact that, in the course of setting it

forth, she was embracing Mr. O’Brien’s testimony and implicitly asking the jury to

believe it. Thus, any evidence that would tend to impeach Mr. O’Brien cannot be

said to be “favorable” to Diaz. It would have pulled from under her the only real

defense she advanced at trial and left her with no defense at all. This Court should

remain profoundly confident in the jury’s verdict.

2. Evidence Related to Mr. O’Brien’s Participation in the SWAT Standoff in 1996 with Viarrial Was Not Material.

A new trial is only appropriate if the suppressed evidence is “material.” The

Supreme Court has explained that the “evidence is material only if there is a

reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.” United States v. Bagley, 473

U.S. 667, 682 (1985). This reasonable-probability standard is met if the

suppression is significant enough to undermine confidence in the outcome of the

trial. Kyles v. Whitley, 514 U.S. 419, 433-34 (1995).

50


“The mere possibility that an item of undisclosed information might have

helped the defense or might have affected the outcome of the trial does not

establish ‘materiality’ in the constitutional sense.” United States v. Agurs, 427

U.S. 97, 109-10 (1976). The Supreme Court explained that, “[i]n assessing the

significance of the evidence withheld, one must of course bear in mind that not

every item of the [government’s] case would have been directly undercut if the

Brady evidence had been disclosed.” Kyles, 514 U.S. at 451; see also United

States v. Nixon, 881 F.2d 1305, 1308 (5th Cir. 1989) (not every piece of

exculpatory or impeachment evidence that is withheld “automatically entitle[s] a

defendant to a new trial”).

Diaz’s entire materiality argument is premised on three opinions Mr.

O’Brien offered at trial that she claims “could have had” a direct impact on the

jury’s finding that Ms. Diaz had knowledge that she hit a person: (1) the cause of

the windshield damage; (2) his testimony that the victim was walking on the

“shoulder” of the highway when struck; and (3) his opinion regarding the relative

51


dangerousness of the victim’s conduct. BIC at 57-58. The government will9

address each.

First, with respect to Mr. O’Brien’s testimony regarding the relative

dangerousness of walking on U.S. 84/285 late at night, and the opinion concerning

whether the damage to the vehicle was of human origin, Diaz omits from her

argument that the government did not elicit this opinion from Mr. O’Brien.

Instead, it was Diaz who elicited this opinion during cross-examination. Aplee.

Supp. App. at 564-65. Diaz cannot now be heard to complain that she should have

been permitted to impeach testimony only she elicited.

More importantly, the fencing between Diaz and Mr. O’Brien concerning

whether it was “dangerous” to walk on the roadway is not even marginally

relevant. Nowhere in the jury instructions did Diaz get a pass if the victim

engaged in negligent, reckless, or “dangerous” behavior. Indeed, no amount of

impeachment of Mr. O’Brien would change the fact that not a single instruction

the district court gave the jury permitted it to factor in “dangerousness” in their

It is worth noting that Diaz’s argument has shifted slightly since she filed9

her motion before the district court. Below, Diaz argued, inter alia, that Mr.O’Brien’s opinion that the victim could not have stepped into the path of thevehicle was one which could have had a direct impact on the jury’s verdict. Aplt.App. at 186. In her argument before this Court, Diaz has discarded her reliance onthat opinion and substituted it with Mr. O’Brien’s opinion that the windshielddamage could have only been caused by a human.

52


deliberations. Thus, the jury could have wholly rejected Mr. O’Brien’s opinion

regarding dangerousness and still would have reached the same guilty verdict. For

that reason, it is folly to suggest that the lack of questioning regarding the Viarrial

incident undermines the confidence in the outcome of the trial.

Likewise, the opinion offered by Mr. O’Brien that the damage to the vehicle

was of human origin is a nonstarter for Diaz. There is no doubt, reasonable or

otherwise, that the damage inflicted to Diaz’s vehicle was caused when she struck

and killed the victim. Diaz admitted as much in her closing argument. Aplee.

Supp. App. at 882. The only issue before the jury was whether Diaz knew at the

time of the accident that she had struck a person. On that score, Mr. O’Brien

offered no opinion.

Turning to Mr. O’Brien’s testimony that the victim was walking on the

“shoulder” of the road, Diaz fails to acknowledge that this opinion was helpful to

her. Of all the places that Mr. O’Brien could have placed the victim prior to being

struck and killed, the right “shoulder” of the road was the most advantageous for

Diaz. It was the location on the roadway that was the farthest from where Ms.

Diaz was sitting behind the wheel; thus, it was the location where Diaz was least

likely to have seen him. Thus, impeaching this opinion would have served little

purpose for Diaz.

53


Evidence of Mr. O’Brien’s role in or presence at a sixteen-year old shooting

that resulted in the death of a fellow officer is immaterial to this case.

Impeachment of Mr. O’Brien, even if otherwise permissible, would have

accomplished nothing for Diaz because Mr. O’Brien did not opine on the central

issue in the case, namely what Diaz knew when she hit the victim. The three

opinions Diaz cites in her brief-in-chief were, at best, tangential to the central

issue in this case. Indeed, Diaz elicited two of these opinions during her cross-

examination of Mr. O’Brien, and the third was actually helpful to her. Any

impeachment of Mr. O’Brien concerning an unrelated sixteen-year old incident

should not undermine this Court’s confidence in the outcome of the trial.

CONCLUSION AND STATEMENT REGARDING ORAL ARGUMENT

The Court should affirm Diaz’s conviction. Ample evidence supported the

jury’s conclusion that the victim was non-Indian for purposes of federal

jurisdiction. The jury was properly instructed on the law, and the definition of

“accident” submitted by Diaz was inappropriate. The district court properly

admitted evidence of Diaz’s consumption of alcohol and properly excluded

evidence of the victim’s consumption of alcohol. The district court’s comments

regarding the subject roadway were appropriate under the circumstances. Finally,

54


the district court correctly concluded that the prosecution did not violate its

Brady/Giglio obligations.

The United States requests oral argument to address any concerns of the

panel not adequately addressed in the briefs.

Respectfully submitted,

KENNETH J. GONZALESUnited States Attorney

s\ Jack E. Burkheads\ Jennifer M. Rozzoni__________________________JACK E. BURKHEADAssistant United States AttorneyNM Bar No. [email protected] M. ROZZONIAssistant United States AttorneyNM Bar No. [email protected] Office Box 607Albuquerque, NM 87103(505) 346-7274Attorneys for Appellee

55


BRIEF FORMAT CERTIFICATION

Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), I certify that

this brief is proportionately spaced, has a typeface of 14 points or more, and

contains 12,834 words.

I relied on my word processor to obtain the count. My wordprocessor

software is Corel WordPerfect 9.0.

I certify that the information on this form is true and correct to the best of

my knowledge and belief formed after reasonable inquiry.

DATED this 9th day of June, 2011.

s\ Jennifer M. Rozzoni JENNIFER M. ROZZONIAssistant United States Attorney

56


CERTIFICATE OF SERVICE AND DIGITAL SUBMISSION

I HEREBY CERTIFY that the foregoing Answer Brief was filed with the

Clerk of the Court for the United States Court of Appeals for the Tenth Circuit by

using the appellate CM/ECF system on this 9th day of June, 2011, and the original

and seven photocopies of Appellee's Answer Brief will be sent by Federal Express

to the United States Court of Appeals for the Tenth Circuit, Office of the Clerk,

located at the Byron White United States Courthouse, 1823 Stout Street, Denver,

Colorado 80257, within two business days of the electronic filing.

I ALSO CERTIFY that Samuel Winder, attorney for Defendant-Appellant

Linda Diaz, is a registered CM/ECF user and that service will be accomplished by

the appellate CM/ECF system.

I ALSO CERTIFY that all required privacy redactions have been made, and

the copy of this document filed using the CM/ECF system is an exact copy of the

hard copies filed with the Clerk.

57


I ALSO CERTIFY that the digital submission of this document has been

scanned for viruses with scanning program Trend Micro OfficeScan Client for

Windows, 8.0 Service Pack 1, most recently updated June 6, 2011 and, according

to the program, the file is free of viruses.

s\ Jennifer M. Rozzoni JENNIFER M. ROZZONIAssistant United States AttorneyNM Bar No. 14703P.O. Box 607Albuquerque, NM 87103(505) [email protected]

58


TENTH CIRCUIT NO. 10-2252 UNITED STATES OF · PDF fileUNITED STATES COURT OF APPEALS TENTH...

Documents

Transcript of TENTH CIRCUIT NO. 10-2252 UNITED STATES OF · PDF fileUNITED STATES COURT OF APPEALS TENTH...