UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4299
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JUAN MEDINA-GARCIA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:04-cr-00111)
Argued: March 14, 2007 Decided: May 17, 2007
Before NIEMEYER and WILLIAMS, Circuit Judges, and T. S. ELLIS, III,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: William Edmund Loose, Asheville, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee. ON BRIEF: Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juan Medina-Garcia appeals his conviction for second degree
murder, a violation of 18 U.S.C.A. §§ 1111 and 1152 (West 2000 &
2006). Medina-Garcia argues that the district court erred by
denying his Rule 29 Motion for Judgment of Acquittal on the charge
of first degree murder and the lesser included offense of second
degree murder and by instructing the jury on first degree murder.
He contends that the evidence produced at trial was insufficient to
submit a murder charge to the jury and that his conviction must
have resulted from juror confusion caused by the first degree
murder instruction. Because the Government produced evidence
sufficient to support Medina-Garcia’s second degree murder
conviction, and Medina-Garcia merely speculates that his conviction
rests on a basis other than the jury’s acceptance of the
Government’s proof, we affirm.
I.
On November 15, 2004, a grand jury returned a two-count
indictment charging Medina-Garcia, a non-Indian, with first degree
murder of an Indian in Indian country,1 in violation of 18 U.S.C.A.
§§ 1111 and 1152 (Count 1), and using a firearm during and in
1
“Indian country” includes “all land within the limits of any
Indian reservation under the jurisdiction of the United States
Government.” 18 U.S.C.A. § 1151 (West 2000). The indictment
charged Medina-Garcia with committing murder in the Eastern Band of
Cherokee Indian Reservation.
2
relation to a crime of violence, causing the death of a person, in
violation of 18 U.S.C.A. §§ 924(c)(1) and (i)(1) (West Supp. 2006)
(Count 2).
A jury trial commenced on April 18, 2005. At trial, Medina-
Garcia stipulated that he was born in Mexico and was not an Indian
and that the victim, John David Smoker, was an enrolled member of
the Cherokee Indian Tribe. The Government presented the testimony
of eyewitnesses, law enforcement officers, and expert witnesses.
George Lomas, the twelve-year old son of Medina-Garcia’s long-
term girlfriend, Reva Bird, with whom Medina-Garcia had lived for
nine years, testified concerning the events that led to Smoker’s
death. Lomas described Medina-Garcia as being like a father to him
and stated that Smoker was his (Lomas’s) uncle. He testified that
on the night of the shooting, Medina-Garcia, Smoker, and Miguel
Mendoza, his aunt’s husband, were playing cards. He fell asleep on
the couch and awoke to an argument between Medina-Garcia and Smoker
about money that was apparently missing. Medina-Garcia asked
Smoker if he wanted to “take it outside,” and Smoker agreed. Once
outside, Medina-Garcia threw a beer can at Smoker, hitting him in
the face. The two men started grabbing at each other and throwing
punches. About 30 seconds into the fight, Lomas, who was standing
in the doorway, heard gunshots and saw sparks. Lomas could not
recall the number of shots, only that they occurred in quick
succession. Medina-Garcia then retrieved his shirt from the
3
ground, fixed his pants, asked Mendoza to come with him, ran to his
truck, and drove off by himself after Mendoza declined to accompany
him. Lomas claimed that he never saw a gun before or after the
shooting.
The Government questioned Lomas about testimony he had given
the grand jury, in which he had stated that he saw Medina-Garcia
put a black gun with a brown handle into his waistband as he headed
for his truck. At trial, Lomas claimed that he had not been sure
and “couldn’t really tell.” (J.A. at 148.)2 The Government also
questioned him about demonstrating for the grand jury the manner in
which Medina-Garcia put the gun in the waistband, but Lomas denied
remembering any such demonstration. When asked about a statement
he gave after the shooting to Stuart Kelly, a special agent with
the FBI, Lomas acknowledged that he had told Kelly that he saw a
gun in Medina-Garcia’s hands after the shots were fired, but
claimed to have been confused by the agent’s questions.
Kelly testified regarding his interview with Lomas, stating
that Lomas had told him that he saw Medina-Garcia with a pistol in
his hand and that he had seen the pistol before and knew Medina-
Garcia had a small, black pistol that he carried inside his pants.
Mendoza and Bird also testified about the fight, offering
similar, but different accounts of what had occurred. Mendoza
2
Citations to “(J.A. at _.)” refer to the contents of the
joint appendix prepared by the parties in this appeal.
4
stated that before the fight, all the adults had been drinking
beer, although Bird and Medina-Garcia had not had that much to
drink. At the beginning of the argument between Smoker and Medina-
Garcia, Smoker asked Medina-Garcia if he had a gun, and Medina-
Garcia said no. Smoker suggested they take the argument outside,
and Medina-Garcia agreed. From where he stood outside in the
doorway, Mendoza tried to dissuade them from fighting, but he did
not get close to them. The two began shoving and pushing, but
neither appeared to be throwing punches. Mendoza did not see a gun
or sparks, but he heard the shots.
Reva Bird testified that when Medina-Garcia and Smoker had
initially exited the trailer, Smoker told Medina-Garcia to “go
ahead and pull out his gun or knife . . . if he wanted to fight.”
(J.A. at 263.) Medina-Garcia claimed to be unarmed. According to
Bird, “they stood there for a few minutes.” (J.A. at 263.)
Mendoza tried to calm them down, but then they started fighting.
Bird saw “something fly” when the fight started, but she wasn’t
sure what it was. (J.A. at 264.) After a few minutes, she heard
a gunshot, “one, and then two more.” (J.A. at 266.) The shots
were in quick succession, although there was a very short pause
after the first one. Bird testified that while Smoker and Medina-
Garcia were fighting, Smoker was trying to choke Medina-Garcia and
threatened to kill him, but she did not know how long before the
shots were fired that she heard the threat.
5
Ted Lambert, a paramedic who was called to respond to the
shooting, testified that there was a wound on the back of Smoker’s
head that suggested he had been hit with a blunt object. This
observation was consistent with the testimony of Christopher
Gulledge, the forensic pathologist who conducted the autopsy on
Smoker’s body.
Gulledge testified that the cause of death was a gunshot wound
to the chest. Soot present in the chest wound indicated that the
gun was fired at very close range; it was either touching the
victim when it was discharged or it was within a quarter to an
eighth of an inch away. Gulledge described this as “near contact.”
Smoker also had a gunshot wound to the abdomen, which was also a
“near-contact” wound. This shot did not injure Smoker as severely
as it would have most people, because Smoker was morbidly obese, so
the bullet remained in his fatty tissue instead of entering his
abdominal cavity. The third gunshot wounded Smoker’s right thigh.
This shot was not fired from as close to Smoker’s body as the other
two, and Gulledge could not determine the actual distance. The
bullet from the thigh wound had an odd trajectory, suggesting that
Smoker’s leg was raised in some fashion or that the body was
twisted in some fashion when Smoker was shot. There were also
wounds to the back of Smoker’s head that were caused by being
struck by a blunt object and did not appear to have been caused by
a fist. Smoker was hit with enough force on one of the wounds that
6
there was a very small chip in his skull. Gulledge did not see
evidence of bruising on Smoker’s face or hands or evidence of the
general contusions or abrasions that he typically saw in someone
who had been engaged in a fist fight. He therefore surmised that
“a shoving, wrestling kind of fight would be more likely.” (J.A.
at 480.)
Elizabeth Patel, a chemist in the trace evidence section of
the North Carolina State Bureau of Investigation Crime Laboratory,
testified as an expert in gunshot residue analysis. She stated
that she conducted a gunshot residue analysis on Smoker. The
results were not consistent with someone who had fired a weapon,
although the test results did not eliminate the possibility that
Smoker could have fired a gun.
At the close of the Government’s evidence, the defense moved
for a judgment of acquittal pursuant to Federal Rule of Criminal
Procedure 29 on the first degree murder charge.3 The district
court denied the motion, but told both counsel that the court would
submit the lesser included offenses of second degree murder and
voluntary manslaughter to the jury.
3
Rule 29 of the Federal Rules of Criminal Procedure provides,
in pertinent part, that “[a]fter the government closes its evidence
or after the close of all the evidence, the court on the
defendant’s motion must enter a judgment of acquittal of any
offense for which the evidence is insufficient to sustain a
conviction.” Fed. R. Crim. P. 29(a).
7
Medina-Garcia chose to testify. He offered a description of
the fight with Smoker that contradicted the evidence presented by
the Government. According to Medina-Garcia, Smoker instigated the
fight. Smoker first became angry because he thought he was being
accused of stealing a twenty-dollar bill from Medina-Garcia, and
Medina-Garcia tried to calm him down, but to no avail. As soon as
Smoker learned that Medina-Garcia was not carrying a weapon, he
knocked a beer can out of Mendina-Garcia’s hand and “came up
towards [him].” (J.A. at 517.) They began grabbing each other and
continued to struggle for about three to four minutes. At one
point, Smoker put his hands around Medina-Garcia’s neck, threatened
to kill him, and drew a gun. Although they struggled with the
weapon, Medina-Garcia never actually grabbed the gun. Still,
Smoker told him to “let go of the gun or I’m going to shoot your
hand.” (J.A. at 520.) At that moment, Medina-Garcia heard the
first shot. They kept struggling; he heard another shot; they
struggled more; he heard a third shot; and Smoker fell to the
ground.
At the close of all the evidence, Medina-Garcia’s counsel
reasserted his motion for a Rule 29 dismissal, and the district
court denied the motion. The district court instructed the jury on
first degree murder, second degree murder, and voluntary
manslaughter and explained to the jury how to approach the lesser
included offenses in Count One. During its deliberations, the jury
8
asked the district court to repeat the definitions of the terms
related to the defendant’s mental state. The jury also asked to
see some photos and clothing that had been recovered from Smoker’s
body (all of which had previously been admitted into evidence).
On April 21, 2005, the jury returned a verdict of guilty as to
the lesser included offense of second degree murder on Count One
and not guilty as to using a firearm during a crime of violence as
charged in Count Two. On March 1, 2006, the district court
sentenced Medina-Garcia to 270 months’ imprisonment.
Medina-Garcia timely appealed, and we have jurisdiction
pursuant to 28 U.S.C.A. § 1291 (West 2006) (providing for appellate
jurisdiction over “final decisions” of the district court).
II.
We review de novo the denial of a Rule 29 motion for judgment
of acquittal based on insufficient evidence. United States v.
Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). In reviewing
challenges to the sufficiency of the evidence supporting a
conviction, our task is to determine, “viewing the evidence and the
reasonable inferences to be drawn therefrom in the light most
favorable to the Government, whether the evidence adduced at trial
could support any rational determination of guilty beyond a
reasonable doubt.” United States v. Burgos, 94 F.3d 849, 863 (4th
Cir. 1996) (en banc) (internal quotation marks omitted).
9
We review for abuse of discretion the district court’s
decision to give, or not to give, a requested jury instruction,
reversing only for prejudicial error. United States v. Hurwitz,
459 F.3d 463, 474 (4th Cir. 2006); United States v. Fleschner, 98
F.3d 155, 158 (4th Cir. 1996).
A.
Medina-Garcia was charged with first degree murder in
violation of 18 U.S.C.A §§ 1111 and 1152, but he was ultimately
convicted of the lesser included offense of second degree murder.
Section 1111(a) defines murder as “the unlawful killing of a human
being with malice aforethought.” 18 U.S.C.A. § 1111. Pursuant to
§ 1111(a), a murder that meets specific criteria enumerated in the
statute, as well as any killing that is “willful, deliberate,
malicious, and premeditated . . . is murder in the first degree,”
and “any other murder is murder in the second degree.” Id.
Section 1152 extends the coverage of federal criminal law to Indian
country, but with certain exceptions, including an exception for
“offenses committed by one Indian against . . . another Indian.”
18 U.S.C.A. § 1152. Accordingly, to convict Medina-Garcia of
second degree murder, the jury was required to find that Medina-
Garcia, a non-Indian, killed Smoker, an Indian, with malice
aforethought and within Indian country. To convict Medina-Garcia
of first degree murder, the jury needed to find an additional
10
element -- that Medina-Garcia acted with willfulness,
deliberateness, maliciousness and premeditation.
Medina-Garcia contends that because the Government presented
insufficient evidence to prove premeditation and malice
aforethought, the district court erred by (1) denying his Rule 29
motion for judgment of acquittal of first degree murder and
instructing the jury on first degree murder, and (2) denying his
Rule 29 motion as to the lesser included offense of second degree
murder.
B.
We address Medina-Garcia’s second argument first. The statute
of conviction does not define “malice aforethought.” See 18 U.S.C.
§ 1111(a). The district court, without objection from Medina-
Garcia, defined malice aforethought as “either to kill another
person deliberately and intentionally or to act with callous and
wanton disregard for human life.” (J.A. at 626-27.) We have
previously explained that to prove malice aforethought within the
meaning of § 1111(a), the Government need not show a specific
intent to kill or injure, as malice aforethought “may be
established by evidence of conduct which is reckless and wanton and
a gross deviation from a reasonable standard of care, of such a
nature that a jury is warranted in inferring that the defendant was
aware of a serious risk of death or serious bodily harm.” United
11
States v. Williams, 342 F.3d 350, 356 (4th Cir. 2003) (internal
quotation marks omitted).
In support of his contention that the Government provided
insufficient evidence of malice aforethought, Medina-Garcia asserts
that “[t]here was no evidence of any statements by [Medina-Garcia]
showing any type of malice aforethought.” (Appellant’s Br. 22.)
Malice aforethought, however, can be proven by circumstantial
evidence. There is no requirement that the evidence include
statements made by the defendant. See Williams, 342 F.3d at 356
(“Whether malice is present in a given case must be inferred by the
jury from the whole facts and circumstances surrounding the
killing.” (internal quotation marks omitted)).
The Government presented evidence that Lomas, an eyewitness to
the fight between Medina-Garcia and Smoker, told an investigating
officer and a grand jury that he saw Medina-Garcia put a black gun
with a brown handle into his waistband as he ran to his truck after
Smoker had been shot.4 This version of events was consistent with
the expert testimony provided by the Government, which revealed
that the results of a gun-shot residue analysis on Smoker were not
consistent with someone who had fired a weapon, and that Smoker had
been struck in the back of the head with a blunt object. Moreover,
4
The Government also presented evidence that after the fight,
Lomas told Special Agent Kelly that in the past he had seen Medina-
Garcia with the same gun that he saw on the night of the shooting.
Lomas also told Kelly that he knew Garcia had a small, black pistol
that he carried inside his pants.
12
Gulledge testified that when the shots were fired into Smoker’s
chest and stomach, the shooter was holding the gun less than a
quarter inch from Smoker’s body. From this evidence, a reasonable
jury could conclude that Medina-Garcia fired three shots at Smoker.
With respect to two of the shots, a jury could reasonably find that
Medina-Garcia placed the gun within a quarter inch of Smoker’s
chest and abdomen and pulled the trigger. Such conduct represents,
at a minimum, reckless conduct of “such a nature that a jury is
warranted in inferring that the defendant was aware of a serious
risk of death or serious bodily harm.” Williams, 342 F.3d at 356
(internal quotation marks omitted) (holding that the evidence
adduced at trial was sufficient for the jury to find malice
aforethought where the defendant accompanied others to rob a known
drug dealer, even though the other robbers had made him aware that
“robbing [the victim] might also entail killing him”). We
therefore conclude that the Government presented sufficient
evidence for a reasonable jury to find malice aforethought. The
district court did not err in denying Medina-Garcia’s Rule 29
motion for a judgment of acquittal of second degree murder.
C.
Although Medina-Garcia was not convicted of first degree
murder, he nevertheless contests the district court’s submission of
the first degree murder charge to the jury. He argues that the
13
district court erred by denying his Rule 29 motion and instructing
the jury on first degree murder, a contention that reflects Medina-
Garcia’s belief that he would not have been convicted of second
degree murder had the court not instructed the jury on first degree
murder. Medina-Garcia assumes that the jury, faced with a choice
between four options -- first degree murder, second degree murder,
voluntary manslaughter, and acquittal -- became hopelessly confused
and ultimately reached a compromise verdict on Count One. For
support, he points to the jury’s request that the district court
repeat the definitions of the terms related to the defendant’s
mental state. He also relies on the jury’s failure to convict him
of Count Two, the firearm charge, arguing that in a case in which
the victim clearly died from a gunshot wound, it “makes no sense
that the defendant could be convicted of murder of any sort and not
be convicted of the [firearm] charge.” (Appellant’s Br. at 23.)
Because Medina-Garcia has offered no basis on which we can
conclude that he was prejudiced by the submission of the first
degree murder charge to the jury, we need not delve into the
sufficiency of the evidence to support that charge. Medina-Garcia
merely speculates that the jury’s request that the district court
repeat portions of its instructions demonstrates juror confusion,
when the request could just as easily reflect the jury’s careful
attention to the crucial issue in the case. Moreover, we cannot
infer prejudice from Medina-Garcia’s acquittal on Count Two for two
14
reasons. First, we lack any basis for concluding that the
inconsistency in the verdict resulted from juror confusion, rather
than a deliberate decision to exercise lenity. See United States
v. Powell, 469 U.S. 57, 66 (1984) (rejecting, “as imprudent and
unworkable, a rule that would allow criminal defendants to
challenge inconsistent verdicts on the ground that in their case
the verdict was not the product of lenity, but of some error that
worked against them,” because “[s]uch an individualized assessment
of the reason for the inconsistency would be based either on pure
speculation, or would require inquiries into the jury’s
deliberations that courts generally will not undertake”). Second,
even if we assumed that the acquittal on the firearm charge was the
result of confusion, there is no evidence that any such confusion
was caused by the instructions on Count One, rather than a
misunderstanding of the instructions concerning Count Two.
As discussed above, the Government produced sufficient
evidence for a reasonable jury to convict Medina-Garcia of second
degree murder. We are unwilling to speculate that Medina-Garcia’s
conviction resulted from something other than the juror’s
acceptance of the Government’s proof. Accordingly, we conclude
that, even if the district court erred in denying Medina-Garcia’s
Rule 29 motion and instructing the jury on first degree murder (and
we do not suggest that it did), any such error was harmless.
15
III.
In sum, we conclude that the district court did not err in
denying Medina-Garcia’s Rule 29 motion for judgment of acquittal on
the lesser included offense of second degree murder. Even if we
were to assume that the district court erred in submitting the
first degree murder charge to the jury, any such error was
harmless. We therefore affirm Medina-Garcia’s conviction.
AFFIRMED
16