United States v. Visinaiz

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
November 16, 2005
UNITED STATES COURT OF APPEALS
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 04-4277
vs.

CRUZ JOAQUIN VISINAIZ,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 03-CR-701-DAK)

Carlos A. Esqueda, Assistant United States Attorney (and Paul M. Warner, United
States Attorney, on the brief), Salt Lake City, Utah, for Plaintiff - Appellee.

Theodore R. Weckel, Salt Lake City, Utah, for Defendant - Appellant.

Before SEYMOUR, EBEL, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Defendant-Appellant Cruz Joaquin Visinaiz (“Visinaiz”) appeals from his
conviction and sentence for violation of 18 U.S.C. §§ 1111(a) 1 and 1153(a), 2 for

second degree murder by an Indian in Indian Country. He was convicted by a jury

and sentenced to 262 months imprisonment and ordered to pay restitution of

$107,000. On appeal, Mr. Visinaiz contends that: (1) the evidence was

insufficient for second degree murder, (2) the district court’s instructions were

plain error, (3) the prosecutor’s comments during closing argument denied him a

fair trial and constituted plain error, (4) the district court’s jury selection

procedure constituted plain or structural error because it impaired his right to

peremptory challenges, (5) the district court abused its discretion on several

evidentiary issues, (6) the district court erred in allowing a victim-witness to

remain in the courtroom following his testimony; and (7) the district court’s

determination of facts at sentencing violated United States v. Booker, 125 S. Ct.

738 (2005). Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a), and we affirm.

1
18 U.S.C. § 1111(a) provides, in pertinent part: “Murder is the unlawful
killing of a human with malice aforethought. Every murder perpetrated by
poison, lying in wait, or any other kind of willful, deliberate, malicious, and
premeditated killing; or committed in the perpetration of, or attempt to perpetrate
[a dangerous felony] is murder in the first degree. Any other murder is murder in
the second degree.”
2
18 U.S.C. § 1153(a) provides, in pertinent part: “Any Indian who commits
against the person or property of another Indian . . . murder, manslaughter . . .
within the Indian country, shall be subject to the same law and penalties as all
other persons committing any of the above offenses, within the exclusive
jurisdiction of the United States.”

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 Background

On April 15, 2003, the decedent Clara Jenkins (“Jenkins”), was reported

missing by her family members. Mr. Visinaiz, her friend, had informed her family

members that he was concerned about her well-being as he had not seen her or

spoken with her since April 12, 2003, in his home. VII R. Tr. at 446-47. Mr.

Visinaiz asked his neighbor Mr. Nephi, Ms. Jenkins’ relative, to contact Ms.

Jenkins’ other relatives, and they filed a missing person report.

Two officers from the Bureau of Indian Affairs (“BIA”), Officer Mountain

Lion and Officer Pike-Cuch, arrived at Mr. Visinaiz’s residence that same day.

Mr. Visinaiz told the officers that he and Ms. Jenkins had been drinking hard

alcohol and beer since early on in the day of April 12. Mr. Visinaiz told the

officers that he had last seen her around 1:00 the following morning, at which time

she had left his residence as a result of an argument over money. VI R. Tr. at 293.

The officers were told that Ms. Jenkins had taken a red blanket with her and

walked to one of Mr. Visinaiz’s neighbors’ homes.

Later on the evening of April 15, Mr. Visinaiz was visited by two other law

enforcement agents. He told them that he had fought with Ms. Jenkins that night

because he would not allow her to drive her vehicle while under the influence.

See V R. Tr. at 135-37. One of these officers, Federal Bureau of Investigation

(“FBI”) Special Agent Wright, found a note on Ms. Jenkins’ fence post written by

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Mr. Visinaiz, suggesting that Ms. Jenkins had left his house of her own accord.

The following day, agents and officers searched the area to the southeast of Mr.

Visinaiz’s property, recovering a blue air mattress, a faded carpet, and a black

plastic tarp below some logs. V R. Tr. at 154-55. Blood was recovered from each

item, which was later determined to belong to Ms. Jenkins, and hair strands were

found inside the air mattress, which were later determined to belong to Mr.

Visinaiz. V R. Tr. at 155-63; VI R. Tr. at 346-48.

On April 17, 2003, a search warrant was executed at Mr. Visinaiz’s home;

blood and tissue were found on the wall and floor. VI R. Tr. at 317-20. After

DNA analysis, these materials were determined to belong to Ms. Jenkins. Id. at

321. On May 4, 2003, Ms. Jenkins’ body was discovered in the White River near

Mr. Visinaiz’s home, weighted down by cinder blocks tied together at Ms. Jenkins’

hands and ankles. VI R. Tr. at 324-27. After an autopsy, the medical examiner

determined that Ms. Jenkins died from at least four blunt force traumas to the

head, causing three skull fractures. Id. at 205-09, 212-13. Ms. Jenkins was

approximately 68 years old, had two surgically repaired knees, was approximately

5 feet tall and weighed around 200 pounds, and often used a walker. See VI R. Tr.

at 229-30, 356-67.

Mr. Visinaiz filed a stipulation of facts before trial in the form of two

affidavits, the second affidavit and stipulation amended the first in a material way.

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XI R. Exs. D-6 & D-7. In the first, filed November 4, 2003, Mr. Visinaiz stated

that after an afternoon and evening of drinking in his home, he and Ms. Jenkins

began to argue, whereupon she threw an empty 40 ounce bottle of beer at him,

striking him in the head. Upon being struck, Mr. Visinaiz stated that he became

momentarily dazed, and threw a log from the nearby wood burning stove at a lamp

directly behind Ms. Jenkins, in an attempt to scare her. According to the first

stipulation and affidavit, though, the log accidentally struck Ms. Jenkins in the

head, and she fell to the floor, where she struck her head again and died. In the

second stipulation and affidavit, filed July 14, 2004, Mr. Visinaiz stated that after

being struck by the empty 40 ounce bottle, he saw Ms. Jenkins cock her arm as if

to throw a 12 ounce glass at him, and he approached her and repeatedly struck her

head with a log. She thereafter fell to the floor, apparently dead.

Mr. Visinaiz testified that he became afraid and upset, and started worrying

about reprisal from the decedent’s family because he had run-ins with the

decedent’s relatives and based on his life experience, reservations “could be fairly

dangerous places.” VII R. Tr. at 526-27. He stored the dead body of his former

friend in a crawl space underneath his home. He then attempted to clean the

house, in order to remove evidence. He awoke the next morning, Saturday, and

penned the note to Ms. Jenkins, placed it on the fence post, where it was later

discovered by Agent Wright. After awaking on Sunday, with the dead body still in

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his crawl space, Mr. Visinaiz wrapped Ms. Jenkins’ body in the air mattress and

tarp, attached the cement blocks to her wrists and ankles, placed her in her van,

and drove her body to the White River. He removed the coverings and dumped her

body in the water. He later admitted to hiding the coverings under some wood.

VII R. Tr. at 622-23.

Discussion

A. Sufficiency of the Evidence

Mr. Visinaiz argues on appeal that the government did not prove beyond a

reasonable doubt that he was guilty of second degree murder. Mr. Visinaiz moved

for a judgment of acquittal after the guilty verdict which the district court rejected

based upon the manner of the victim’s death, specifically multiple blows to the

head, and the affirmative steps that Mr. Visinaiz took to cover up his crime,

including weighting the victim’s body with cement blocks and sinking her in a

nearby river. II R. Doc. 255 at 1-2; Fed. R. Crim. P. 29(c).

We review the record for sufficiency of the evidence de novo. United States

v. Hamilton, 413 F.3d 1138, 1143 (10th Cir. 2005). In so doing, “we view the

evidence in the light most favorable to the government, and determine whether a

reasonable jury could have found the defendant guilty of the crime beyond a

reasonable doubt.” Id. (internal citations and quotations omitted).

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 In order to convict Mr. Visinaiz of second degree murder in Indian Country

under 18 U.S.C. §§ 1111(a), 1153(a), the government is required to prove that he:

(1) killed Ms. Jenkins, (2) acted unlawfully, (3) acted with malice, (4) is an Indian,

and (5) committed the crime within Indian Country. See 18 U.S.C. §§ 1111(a),

1153(a). 3

With regard to the first element, we find that the evidence is surely

sufficient to support the jury’s finding that Mr. Visinaiz killed Ms. Jenkins.

Indeed, Mr. Visinaiz himself admitted several times to killing her, as well as to

striking her on the head repeatedly. VII R. Tr. at 491, 520-21; V R. Tr. at 143,

147, 149.

With regard to the second element, that Mr. Visinaiz acted unlawfully in

killing Ms. Jenkins, the evidence is again sufficient to support the jury’s finding

that the killing was unlawful; i.e., without excuse or justification. Viewing the

evidence in the light most favorable to the government, a jury could find that the

government proved that Mr. Visinaiz did not act in self-defense, because he either

did not believe, or could not reasonably believe, that he was in imminent danger of

death or serious bodily injury, such that it was necessary for him to use force

likely to cause the death or serious bodily injury of the victim. The jury could

The parties have stipulated that the fourth and fifth elements are met, and
3

Mr. Visinaiz does not appeal either element. See VI Aplt. App. at 348-49.

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consider that Ms. Jenkins was 68 years old, was approximately five feet tall and

weighed around 200 pounds, had two surgically repaired knees, and often used a

walker. See VI R. Tr. at 229-30, 356-57. Ms. Jenkins was severely intoxicated,

and had been ingesting prescription sedative medication. Id. at 226-28. Mr.

Visinaiz, on the other hand, was 46 years old at the time, is five foot ten inches,

and weighed approximately 175 pounds. VI R. Tr. at 261-62. Even assuming Mr.

Visinaiz was hit by an empty 40 ounce bottle and suffered a laceration, he struck

Ms. Jenkins at least four times in the head with a log. See VII R. Tr. at 491, 520-

21.

With regard to the malice element, the evidence is sufficient to support the

jury’s finding that the killing was committed with the required mens rea. Malice,

as defined for purposes of second degree murder, requires either: (1) general intent

to kill, or (2) intent to do serious bodily injury; (3) depraved heart recklessness, or

(4) a killing in the commission of a felony that is not among those specifically

listed in the first degree murder statute. United States v. Serawop, 410 F.3d 656,

663 (10th Cir. 2005) (citing United States v. Pearson, 203 F.3d 1243, 1271 (10th

Cir. 2000)).

In this case, Mr. Visinaiz admitted to killing Ms. Jenkins by striking her

repeatedly on the head with a log until she died. VII R. Tr. at 491, 520-21; V R.

Tr. at 143, 147, 149. The medical examiner’s evidence indicated that the

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numerous blows to the head struck in a downward direction, and at least one was

from behind. VI R. Tr. at 219-20. There was no indication of any defensive

wounds on Ms. Jenkins’ body. Id. at 221.

Mr. Visinaiz argues that Ms. Jenkins had assaulted him numerous times

before, and thus this was simply another instance where he was forced to defend

himself, or in the alternative, his justified reaction to adequate provocation while

in the heat of passion. But Mr. Visinaiz himself admits that there was evidence

“which could have supported a finding of second degree murder.” Aplt. Br. at 37.

He admitted that he killed the victim, and that he buried her body. VII R. Tr. at

491, 520-21; Aplt. Br. at 37. He further admitted to lying numerous times to the

police, and the jury did have evidence of the victim’s blood on his walls. Aplt. Br.

at 37-38. He further concedes, as he must, that the jury could have discounted his

testimony. Id. at 38.

Taking into account the object used, the amount of force used, and the

disparity of mobility, age, and strength between Mr. Visinaiz and Ms. Jenkins, the

jury had sufficient evidence to find that Mr. Visinaiz acted with the requisite mens

rea – malice – to satisfy this element of second degree murder. We also note that a

reasonable jury could conclude beyond a reasonable doubt that the government

proved the absence of heat of passion, based upon the circumstances of the killing,

Mr. Visinaiz’s admissions of culpability including concealment, and the calm of

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his initial denial. Mr. Visinaiz argues that certain facts other than his testimony

render the evidence insufficient including (1) the basis for his fear of reprisal, (2)

the circumstances surrounding his change in accounts, and (3) the decedent’s

propensity for drunkeness and violence. Aplt. Br. at 38-42. None of these items

alone or in combination on this record render the evidence insufficient when the

evidence is viewed in the light most favorable to the verdict.

B. Jury Instructions

Mr. Visinaiz argues on appeal that the various aspects of the district court’s

jury instructions, viewed collectively, constituted plain error. Criminal defendants

are entitled to jury instructions upon their theory of defense provided there is

evidentiary and legal support. United States v. Lofton, 776 F.2d 918, 919-20 (10th

Cir. 1985). Upon the failure to so instruct, we will find reversible error. Id.; see

also Bird v. United States, 180 U.S. 356, 362 (1901). Jury instructions are

reviewed “to determine whether, as a whole, the instructions correctly state the

governing law and provide the jury with an ample understanding of the issues and

the applicable standards.” United States v. Smith, 413 F.3d 1253, 1273 (10th Cir.

2005) (internal citation and quotations omitted).

Mr. Visinaiz argues that the district court erred in formatting the

instructions for second degree murder and the lesser included offenses of

voluntary and involuntary manslaughter. Aplt. Br. at 44-45. Mr. Visinaiz also

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argues that the district court erred in failing to allow the jury to consider the facts

associated with an involuntary manslaughter conviction unless it first determined

that he was not guilty of murder or voluntary manslaughter. Id.

Mr. Visinaiz failed to object to these instructions at trial, and with good

reason. As we discuss below, the contentions on appeal are patently meritless.

When no objection to a jury instruction was made at trial, the adequacy of the

instruction is reviewed de novo for plain error. United States v. Marshall, 307

F.3d 1267, 1270 (10th Cir. 2002); Fed. R. Crim. P. 30(d) & 52(b). Thus, Mr.

Visinaiz must demonstrate that the jury instruction contains (1) error, (2) that is

plain, and (3) that the error affects substantial rights. Smith, 413 F.3d at 1274. If

this is shown, we may exercise discretion to correct the error only if it “seriously

affects the fairness, integrity, or public reputation of judicial proceedings. Id.

(internal quotations omitted); see also United States v. Lott, 310 F.3d 1231, 1241-

42 (10th Cir. 2002).

1. Heat of Passion

The clarity of the jury instructions “is essential in a murder case.” Lofton,

776 F.2d at 920. This is especially true where the defendant has raised a heat of

passion defense. Id. As is well known, the prosecution in a criminal case is

required to prove every element of the crime charged beyond a reasonable doubt.

See In re Winship, 397 U.S. 358, 364 (1970). To obtain a murder conviction, the

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prosecution must show that the defendant acted with malice aforethought. Lofton,

776 F.2d at 920; see also 18 U.S.C. § 1111(a).

The distinction between malice and heat of passion led the Supreme Court to

hold that in order to obtain a murder conviction, the prosecution must prove

beyond a reasonable doubt the “absence of the heat of passion on sudden

provocation when the issue is properly presented.” See Mullaney v. Wilbur, 421

U.S. 684, 704 (1975); see also Lofton, 776 F.2d at 920. Indeed, the heat of

passion defense is directly in opposition to malice, that is, it “serve[s] to negative”

malice. Patterson v. New York, 432 U.S. 197, 207 (1977); see also Serawop, 410

F.3d at 663-64.

Mr. Visinaiz argues that under Lofton, the district court’s instructions in this

case did not allow him to present his theories of defense. We find this argument

less than colorable, for even assuming that Mr. Visinaiz presented evidence for a

heat of passion defense, Jury Instruction 23 quite plainly reads:

The third element the government must prove beyond a reasonable
doubt is that the defendant acted with malice aforethought. . . The
defendant has raised the defense that he acted in the heat of passion
and not with malice. Heat of passion includes rage, resentment,
anger, terror and fear. Heat of passion may be produced by fear as
well as by rage. In order to satisfy this element, the government must
prove the absence of heat of passion beyond a reasonable doubt,
before you may find that the defendant acted with malice.

II R. Doc. 252, J. Instr. 23 (emphasis supplied). As such, the district court’s

instruction clearly required that a jury finding of second degree murder mandated

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that the government prove the absence of heat of passion beyond a reasonable

doubt.

Mr. Visinaiz also takes issue with the definition of the “heat of passion”

instruction contained in the voluntary manslaughter instructions. See II R. Doc.

252, J. Instr. 29. He contends that the instruction should have contained “‘cool

down’ language to distinguish the heat of passion felt by initial provocation, from

post-provocation, renewed, angry and aggressive thought.” Aplt. Br. at 57.

According to Mr. Visinaiz, the absence of the “cool down” language precluded

jury consideration of the evidence suggesting heat of passion. This must be

rejected – the instruction adequately defined heat of passion as “such a state of

passion, or hot blood, or rage, anger, resentment, terror or fear as to indicate the

absence of deliberate design to kill or as to cause one to act on impulse without

reflection.” II R. Doc. 252, J. Instr. 29. Suffice it to say, there is no error in

Instructions 23 or 29, plain or otherwise.

Mr. Visinaiz also argues that the district court’s instructions and verdict

form constituted structural error because they precluded the jury from considering

lesser included offenses until the greater offense of second degree murder was

considered. This reads too much into Lofton. The problem in Lofton was that the

jury was not adequately instructed that the government had to prove the absence of

heat of passion in the murder instruction. Lofton, 776 F.2d at 921. Given proper

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instructions, it was entirely proper to have the jury consider the second degree

murder charge first.

2. Involuntary Manslaughter

Mr. Visinaiz argues that the district court erred in failing to adequately

instruct the jury on the distinction between the malice present in second degree

murder and the malice present in involuntary manslaughter. Once again, we

review for plain error. Smith, 413 F.3d at 1273.

There is a similarity between second degree murder and involuntary

manslaughter, insofar as they both involve the unlawful killing of a human being.

See Brown, 287 F.3d at 974; see also United States v. Wood, 207 F.3d 1222, 1228

(10th Cir. 2000). The difference between these two crimes lies in their respective

required mental states for culpability. See Serawop, 410 F.3d at 666; Brown, 287

F.3d at 974; Wood, 207 F.3d 1222, 1228-29. Second degree murder requires a

showing of malice, whereas involuntary manslaughter requires a showing of gross

negligence. That is to say, both involve unlawful acts, but while second degree

murder is that of a “depraved heart and reckless and wanton” or “a gross deviation

from a reasonable standard of care,” involuntary manslaughter amounts to “gross

negligence” or a “wanton or reckless disregard for human life.” Brown, 287 F.3d

at 974-75 (internal quotations omitted); see also Wood 207 F.3d at 1228; United

States v. Soundingsides, 820 F.2d 1232, 1237 (10th Cir. 1987). We have

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repeatedly held that the “substantive distinction [between these two crimes] is the

severity of the reckless and wanton behavior.” Brown, 287 F.3d at 975 (emphasis

supplied).

In this case, after extensive consultation with counsel, the district court

responded as follows to a jury question regarding the meaning of intent to kill.

[S]econd degree murder is a general intent crime requiring malice
aforethought, an element that may be established, among other ways,
by evidence of conduct which is reckless and wanton, and a gross
deviation from a reasonable standard of care, of such a nature that the
jury is warranted in inferring that the defendant was aware of the
serious risk of death or serious bodily harm.

[I]nvoluntary manslaughter is the unlawful killing of a human being
without malice in the commission in an unlawful manner, or without
due caution and circumspection of a lawful act which might produce
death. The defendant’s acts must amount to gross negligence, defined
as wanton or reckless disregard for human life, and he must have had
either actual knowledge or reason to know that his conduct was a
threat to the lives of others.

The substantive distinction is the severity of the reckless and wanton
behavior . . . [second] degree murder involves reckless and wanton
disregard for human life that is extreme in nature, while involuntary
manslaughter involves reckless and wanton disregard that is not
extreme in nature.

Of course, you need to look at all of the instructions in this case in
reaching a verdict.

VIII R. at 759-60 (emphasis supplied). The jury instructions that dealt with

involuntary manslaughter, Instructions 33-35, clearly comport with what is

required in order “to correctly state the governing law and provide the jury with an

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ample understanding of the issues and the applicable standards.” Smith, 413 F.3d

at 1273 (internal citation and quotations omitted). The court’s response was not in

error, plain or otherwise. What is particularly troubling about the complaint on

appeal about this instruction is that counsel, who made his concerns known to the

court and approved this instruction after the court incorporated modifications, now

contends that this instruction is “particularly egregious” in light of his comments,

“undecipherable,” vague, violative of due process, and structural error. Such an

approach reminds us that all too often items claimed as “plain error” on appeal

take on a significance and characterization they never had below. It is also

apparent that this is a particularly egregious case of invited error. For while it is

clear that Mr. Visinaiz objected to Instruction 36’s predecessor, see VII R. at 653,

the district court then adopted Mr. Visinaiz’s proffered instruction on imperfect

self-defense. If there is any error here, a challenge thereto is precluded as invited

error. See United States v. Burson, 952 F.2d 1196, 1203 (10th Cir. 1991). But we

see no error in the imperfect self-defense instruction and its relationship to

involuntary manslaughter. II R. Doc. 252, J. Instr. 36.

3. Self-Defense

Mr. Visinaiz also argues that the district court did not place his defense

theories “squarely before the jury.” Aplt. Br. at 48. This argument is also without

merit. First, Instruction 36 clearly states that Mr. Visinaiz “has been charged with

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second degree murder and has raised the defense of self-defense. If you find that

the government has disproved the theory of self-defense beyond a reasonable

doubt, you should continue to consider the alternative defense of imperfect self-

defense.” II R. Doc. 252, J. Instr. 36. The jury was also instructed adequately as

to the requirements of the law of self-defense: “[I]t is not required that the

defendant be in actual danger or great bodily injury. If he honestly and reasonably

believes that he is in apparent imminent danger, that his life . . . is about to be

taken or that there is a danger of serious bodily harm, that is sufficient.” II R. at

252, J. Instr. 31.

The district court further instructed: “You are reminded that the burden of

proof remains at all times on the government . . . [t]hus, before you may convict,

you must find beyond a reasonable doubt that the government has satisfied its

burden that the defendant did not act in self-defense.” Id. Finally, in the event

that even more indicia of the instruction’s validity are required, we note that the

court instructed: “Therefore, if you have a reasonable doubt whether or not the

defendant acted in self-defense, your verdict as to murder and the lesser included

offenses of voluntary and involuntary manslaughter must be not guilty.” Id. We

reject the contention that the jury was inadequately presented with Mr. Visinaiz’s

theories of defense. Further, we strongly suggest that counsel carefully consider

the merits of an argument before including it in his brief.

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C. Prosecutor’s Comments

Mr. Visinaiz next claims that the prosecutor engaged in misconduct during

his closing argument by allegedly (1) advising the jury that the government only

needed to prove the defendant’s gross negligence, (2) misstating the law for

involuntary manslaughter, (3) implying that because Mr. Visinaiz claimed self-

defense, imperfect self-defense and voluntary manslaughter were not legal

possibilities, and (4) misstating that Mr. Visinaiz’s lack of motive was irrelevant

to the malice determination. Aplt. Br. at 61-66.

As Mr. Visinaiz did not object at trial, we review this claim only for plain

error. See United States v. Hernandez-Muniz, 170 F.3d 1007, 1011 (10th Cir.

1999). Plain error must be so “egregious” as to result in a “miscarriage of

justice.” See United States v. Russell, 109 F.3d 1503, 1514 (10th Cir. 1997)

(quoting United States v. Young, 470 U.S. 1, 15 (1985)). We review the

prosecutor’s comments within the context of the entire case. Hernandez-Muniz,

170 F.3d at 1011.

The first remark that Mr. Visinaiz argues is reversible error was that the

government needed only to prove Mr. Visinaiz’s gross negligence for a conviction.

Here, the portion of the closing argument apparently relied upon by Mr. Visinaiz is

less than persuasive. The prosecutor did say that gross negligence must be shown

for involuntary manslaughter. Further, he did so in arguing why the jury should

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find that Mr. Visinaiz’s acted with malice, and that the jury should therefore find

him guilty of second degree murder, and not the lesser included offense of

involuntary manslaughter. See VIII Tr. at 706-09; 713. As such, there is simply

no error with regard to this prosecutorial statement.

Second, Mr. Visinaiz argues that the prosecutor misstated the applicable law

of involuntary manslaughter, constituting reversible error. Aplt. Br. at 62. This

argument is too without merit. Insofar as the prosecutor can be said to have been

“stating the law” at all, his argument that Mr. Visinaiz’s actions on the night of the

murder do not amount to imperfect self-defense, because there was no threat in the

first place, is nowhere near reversible plain error. See VIII Tr. at 714-15.

Mr. Visinaiz next asserts that the prosecutor’s argument that the defendant

either acted in self-defense or in the heat of passion, and not both, constituted

reversible plain error. Aplt. Br. at 62. Of course, the arguments of the prosecutor

are simply that, arguments, and not evidence, and the jury was so instructed. II R.

252 J. Instr. 6. Here, the “prosecutor did nothing more than argue to the jury that,

on the basis of the government’s evidence, the jury should find” that Mr. Visinaiz

is only entitled to either the heat of passion defense or self-defense, and not both.

See United States v. Gauvin, 173 F.3d 798, 804 (10th Cir. 1999). Therefore, we

find no error with regard to the prosecutor’s argument here.

Mr. Visinaiz’s final argument of misconduct focuses on his allegation that

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the prosecutor misled the jury by misstating the law in implying at “closing

argument that Mr. Visinaiz’s lack of motive was irrelevant to the jury’s

determination of malice.” Aplt. Br. at 64. But the prosecutor never told the jury

that motive was irrelevant. On the contrary, he argued that it was the

government’s evidence of Mr. Visinaiz’s lack of motive that indicated malice.

VIII R. Tr. 737 (“What makes this such a brutal killing is the fact there is no

motive, it’s chilling. That’s what makes it malice, that’s what makes it second-

degree murder.”). As such, there is no error in this prosecutorial statement.

Mr. Visinaiz argues that taken cumulatively, these prosecutorial comments

and arguments constitute plain error. See Aplt. Br. at 65. On the contrary, we

need not conduct a cumulative error analysis as suggested by Mr. Visinaiz. A

cumulative error analysis merely aggregates the individual errors found harmless,

and therefore not reversible, and it “analyzes whether their cumulative effect on

the outcome of the trial is such that collectively they can no longer be determined

to be harmless.” Gauvin, 173 F.3d at 804; see also United States v. Rivera, 900

F.2d 1462, 1470 (10th Cir. 1990) (en banc). We have not found any individual

error at all, and thus there is simply nothing to aggregate.

D. Jury Selection

Mr. Visinaiz argues that the district court impaired his right to peremptory

challenges by imposing a specific amount of time for striking jurors, by talking

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with the potential jury members while the attorneys were conducting the selection

process, and for organizing the venire members in a such a way that Mr. Visinaiz

and his counsel’s ability to view them was obstructed. Aplt. Br. at 68.

It is well settled that a defendant in a criminal trial enjoys the right to an

impartial jury. See Morgan v. Illinois, 504 U.S. 719, 729 (1992). That right

includes an adequate voir dire to identify unqualified jurors. Sallahdin v. Gibson,

275 F.3d 1211, 1222 (10th Cir. 2002). The trial court, however, retains latitude in

conducting voir dire, Mu’Min v. Virginia, 500 U.S. 415, 424 (1991), and there is

no constitutional requirement that there be an additional opportunity to make a

searching inquiry. Sallahdin, 275 F.3d at 1223.

Before voir dire, the court provided the parties with juror questionnaires

that provided specific information on each prospective juror. V R. Tr. at 33, 37.

The court conducted voir dire exclusively. V R. Tr. at 28-85. Apparently, while

counsel and court personnel determined the peremptory challenges, the district

judge decided to “take advantage of the captive audience” for the ten minutes he

expected the process to take. Id. at 86. He then discussed federal jurisdiction, the

nature and size of his caseload, Utah federal court personnel, his teaching

activities, a new federal courthouse and a lawsuit that might involve historic

preservation, civil case management and other matters with the jury, all the while

asking counsel – at least four times – about their progress. V R. Tr. 85-99. While

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we might question the wisdom of not excusing the “captive audience” during this

process and the unusual practice of having court staff handle the peremptory

challenges, see V R. Tr. at 85, we cannot say that the district court procedure

prejudiced Mr. Visinaiz’s rights. 4 While there may have been several extraneous

comments, the court did not make “snide comments.” Indeed, the court noted that

it was a very serious case, and therefore important that the lawyers and the court

conduct the voir dire process in the best manner possible, albeit rapidly. Id. at 95.

Due to the number of potential jurors (50) and the relatively small space in the

courtroom, Mr. Visinaiz’s counsel asked certain jurors to stand, and the court

accommodated. We find no reversible error here.

E. Evidentiary Issues

Mr. Visinaiz argues that the district court erred with respect to five specific

areas of evidentiary rulings. First, Mr. Visinaiz argues that the court should not

have allowed evidence of his previous assault on Ms. Jenkins. Aplt. Br. at 71.

Second, he argues that evidence regarding Ms. Jenkins’ previous DUI arrests and

convictions should have be allowed. Id. at 73. Third, he argues that the district

4
We do note that reliance on law clerks or other court personnel to handle
the peremptory challenges with the attorneys is generally considered improper.
See Glenn v. Cessna Aircraft Co., 32 F.3d 1462, 1464 (10th Cir. 1994) (stating
that the district court’s reliance on its law clerks to resolve objections to jury
instructions was improper); see also Fed R. Crim. P. 24(b) (outlining the
procedure required of the district court in empaneling a jury).

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court erred in excluding the medical record showing Ms. Jenkins’ blood alcohol

content (“BAC”) on the night she was involved in an automobile accident. Id. at

75-76. Fourth, Mr. Visinaiz argues that the court erred in excluding the expert

report of a doctor. Id. at 77-78. Fifth, Mr. Visinaiz argues that the court erred in

failing to take judicial notice of another doctor’s expert report. Id. at 78-79. We

address these arguments in turn.

We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. United States v. Thomas, 410 F.3d 1235, 1244 (10th Cir. 2005). We

will not overturn an evidentiary ruling “absent a distinct showing that it was based

on a clearly erroneous finding of fact or an erroneous conclusion of law or

manifests a clear error of judgment.” United States v. Jenkins, 313 F.3d 549, 559

(10th Cir. 2002).

The district court did not abuse its discretion in allowing the questioning of

Mr. Visinaiz regarding the previous assault on Ms. Jenkins. Although the court

ruled this evidence admissible on other grounds, the government did not use this

evidence in its case in chief. Instead, Mr. Visinaiz opened the door to this issue

when he testified that he had never harmed Ms. Jenkins. VII R. Tr. at 643. The

government, on cross-examination, sought to impeach his testimony.

The district court also did not abuse its discretion in excluding extrinsic

evidence relating to Ms. Jenkins’ DUI history or her BAC when she was involved

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in an automobile accident sometime earlier. With regard to the DUI history, Mr.

Visinaiz sought to offer this evidence to prove that Ms. Jenkins was the first

aggressor. Aplt. Br. at 73. Because this would have constituted improper

character evidence in the form of specific instances of the victim’s conduct, as

opposed to permissible reputation or opinion evidence, the district court correctly

excluded this evidence because Rule 405 precludes it on direct examination. Fed.

R. Evid. 405(a). With regard to the medical report, Mr. Visinaiz sought to

introduce this as proof that his fear of Ms. Jenkins was justified. VI R. Tr. at 423.

This also constituted specific instances evidence, and thus was likewise properly

excluded. Fed. R. Evid. 405.

Finally, the district court did not abuse its discretion in excluding the expert

report of Dr. Bonnell or in refusing to take judicial notice of the date of Dr.

Herrmann’s report. With regard to Dr. Bonnell’s report, the court essentially held

that it was hearsay because Dr. Bonnell, the author of the report, did not testify.

VIII R. Tr. at 667-68. The district court also noted that admitting an expert report

without that expert’s testimony was highly confusing and prejudicial since no

cross examination could occur. Id. With regard to Dr. Herrmann’s report, Mr.

Visinaiz attempted to convince the court to take judicial notice of the date on

which Mr. Visinaiz gave Dr. Herrmann’s report to the government – but not until

after both parties had rested. Id. at 695-96. The district court correctly denied the

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request to take judicial notice for two reasons: (1) the probative value was

“minimal to the vanishing point,” and even assuming some probative value, it was

substantially outweighed by the risk of confusion of the issues; and (2) Mr.

Visinaiz waived his right to present this information because the case was about to

be submitted to the jury. Id. at 696-97; see also Fed. R. Evid. 403. As such, the

district court did not abuse its discretion with regard to either report.

F. Victim in Courtroom

Mr. Visinaiz argues that the district court erred in allowing Ms. Jenkins’

son, Johnny Jenkins, to remain in the courtroom for the remainder of the trial after

his testimony was complete. Aplt. Br. at 80-82. He argues that the district court

should not have considered Mr. Jenkins a victim, or at least should have issued a

cautionary instruction that Mr. Jenkins was not to discuss his testimony with other

witnesses. Id. at 80-81. Finally, Mr. Visinaiz argues that these requirements are

“implicit” in Federal Rule of Evidence 615. Id. at 81.

The district court allowed Mr. Jenkins to remain in the courtroom, following

his testimony, as a victim under 18 U.S.C. § 3510. For purposes of that statute,

“[n]otwithstanding any statute, rule, or other provision of law, a United States

district court shall not order any victim of an offense excluded from the trial . . . .”

18 U.S.C. § 3510(a). A victim for purposes of this statute includes a person “that

has suffered direct physical, emotional, or pecuniary harm as a result of the

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commission of a crime . . . .” 42 U.S.C. § 10607(e)(2) (emphasis supplied); see

also 18 U.S.C. § 3510(c) (noting that the definition of “victim” under § 3510

includes all persons defined under § 503(e)(2) of the Victims’ Rights and

Restitution Act of 1990, which is codified at 42 U.S.C. § 10607(e)(2)). Thus, Mr.

Jenkins was “a person authorized by statute to be present.” Fed. R. Evid. 615(4).

Finally, there was no request for a cautionary instruction and there was absolutely

no suggestion that Mr. Jenkins discussed his testimony with others. Consequently,

there was no error and Mr. Visinaiz’ arguments are without merit.

G. Booker/Blakely – Sentencing and Restitution

1. Sentencing

Mr. Visinaiz argues that, following United States v. Booker, 125 S.Ct. 738

(2005), the district court erred in calculating his sentence. Aplt. Br. at 83. Mr.

Visinaiz has properly preserved this argument by objecting at sentencing that,

under Blakely v. Washington, 542 U.S. 296 (2004), the district court erroneously

took into account judge-found facts in applying a four-level enhancement to his

base offense level. IX R. Tr. at 24-25, 45. The district court adopted the PSR’s

recommendations for two separate two-level enhancement for obstructing justice

and a vulnerable victim. Id. at 46. Where a defendant preserves a potential

Booker error, we will remand if the error was not harmless, that is, if the error may

have affected the defendant’s substantial rights. See United States v. Labastida-

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Segura, 396 F.3d 1140, 1142-43; Fed. R. Crim. P. 52(a).

There are two types of error under Booker: non-constitutional error and

constitutional error. United States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th

Cir. 2005) (en banc). Non-constitutional error derives from the so-called remedial

portion of Booker, which severed the statutory provision requiring mandatory

application of the Sentencing Guidelines in most cases. Booker, 125 S.Ct. at 764

(severing 18 U.S.C. § 3553(b)(1)). This severance has rendered the Guidelines

mainly advisory, although sentencing courts must still consult the Guidelines and

the factors of 18 U.S.C. § 3553(a). Id. at 767. Appellate courts will reverse a

sentence if it is deemed unreasonable. Id. Constitutional Booker error, on the

other hand, occurs in the context of a mandatory sentencing regime when a judge-

found fact (other than the fact of a prior conviction) increases a defendant’s

sentence beyond the maximum authorized by a jury verdict or a guilty plea through

the court’s application of the mandatory guidelines. Id. at 756.

In this case, because the district court did not consider the guidelines

mandatory, there was no Booker error, constitutional or non-constitutional.

Despite the fact that the court sentenced Mr. Visinaiz before Booker was decided,

the district court apparently divined that the Supreme Court would strike down the

mandatory application of the Sentencing Guidelines. IX R. Tr. at 46. At

sentencing, the district court acknowledged the Guidelines, but sentenced Mr.

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Visinaiz to a discretionary non-mandatory 262 months. Id. at 46 (“I’m going to . .

. impose a sentence in this case of 262 months . . . . [H]owever, that is not under

the Sentencing Guidelines, that’s a sentence that I’ve imposed, having looked at

all the relevant factors and made my own decision as to how [the sentence] ought

to be imposed in this case.”). Therefore, because the district court did not treat the

Sentencing Guidelines as mandatory, there can be no non-constitutional Booker

error in Mr. Visinaiz’s sentence. See United States v. Serrano-Dominguez, 406

F.3d 1221, 1222-23 (10th Cir. 2005). Similarly, although the district court did use

judge-found facts to enhance Mr. Visinaiz’s base offense level from 33 to 37, see

IX R. Tr. at 45-46, he did so under a non-mandatory paradigm.

Therefore, this case does not implicate Booker. Booker, quite clearly, does

not prohibit the district court from making factual findings and applying the

enhancements and adjustments to Mr. Visinaiz’s sentence as long as it did not

view or apply the Guidelines as mandatory. Booker, 125 S.Ct. at 750 (“If the

Guidelines as currently written could be read as merely advisory provisions that

recommended, rather than required, the selection of particular sentences in

response to differing sets of facts, their use would not implicate the Sixth

Amendment.”); United States v. Lawrence, 405 F.3d 888, 907 (10th Cir. 2005);

United States v. Rodriguez, 398 F.3d 1291, 1300-01 (11th Cir. 2005). That is, if

the district court sentences the defendant using the Guidelines as advisory, there is

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no Sixth Amendment violation. Lawrence, 405 F.3d at 907. That is precisely

what the district court did here.

Further, even assuming there was constitutional error, it was harmless. Mr.

Visinaiz received a two-level enhancement for obstruction of justice based on his

own admissions. See Aplt. Br. at 37-38; VII R. Tr. 541-42 (testimony of Mr.

Visinaiz); VII R. Tr. 588-596 (same); V R. Tr. 135-37 (testimony of Special Agent

Wright); VI R. Tr. at 321, 324-27 (testimony of Special Agent Cizeck). With

regard to the vulnerable victim enhancement, the evidence was overwhelming that

this 68 year old, overweight, physically handicapped person was incapable of

defending herself against her younger, more fit assailant. See VI R. Tr. at 229-30,

352. Therefore, we are satisfied that there was no constitutional Booker error in

either the two-level enhancement for obstruction of justice or the two-level

enhancement for a vulnerable victim.

2. Restitution

Mr. Visinaiz argues that the district court’s amended restitution award

pursuant to the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. §§

3663A, 3664, of $107,000 is “unreasonable” under Booker. Aplt. Br. at 86. We

review the legality of a restitution order de novo. United States v. Wooten, 377

F.3d 1134, 1143 (10th Cir. 2004). Blakely and Booker only apply to judicial fact-

finding that increases a criminal punishment in violation of the Sixth Amendment.

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Booker, 125 S.Ct. at 755-56; Blakely, 124 S.Ct. 2536. In the Tenth Circuit,

restitution is not criminal punishment. See United States v. Nichols, 169 F.3d

1255, 1278 (10th Cir. 1999); see also United States v. Hampshire, 95 F.3d 999,

1006 (10th Cir. 1996); United States v. Arutunoff, 1 F.3d 1112, 1121 (10th Cir.

1993). Despite Mr. Visinaiz’s argument to the contrary, to the extent that a panel

of this court may have assumed that restitution qualified as punishment, that panel

did so only in order to make the further determination that the MVRA does not

prescribe a statutory maximum, and that therefore Blakely and Booker do not

apply to restitution on that ground either. See Wooten, 377 F.3d at 1144-45. As

such, Mr. Visinaiz’s argument that the restitution award was in error is without

merit.

We are aware that this court granted Mr. Visinaiz his requested page limit

extension. Further, we certainly recognize that this is an important appeal. But

this case provides an excellent example of counsel’s need to objectively consider

points to be raised on appeal and to eliminate those points that have little or no

merit. Simply stated, this is a vital part of an advocate’s responsibility to his

client as well as to the court, see Fed. R. App. P. 38, and failure to adhere to this

responsibility can easily serve to distract attention from and undermine meritorious

arguments. See Jones v. Barnes, 463 U.S. 745, 751-53 (1984) (“A brief that raises

every colorable issue runs the risk of burying good arguments . . . in a verbal

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mound made up of strong and weak contentions.”) (internal citations and

quotations omitted).

Mr. Visinaiz’s motion to supplement the record is granted.

AFFIRMED.

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