United States v. Tsosie

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 1, 2008
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 07-2186
(D. of N.M.)
SHOSHAIN TSOSIE, (D.C. No. CR-06-1444-WJ)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before LUCERO, TYMKOVICH, and GORSUCH, Circuit Judges.

ShoShain Tsosie was convicted of three counts of assault with a dangerous

weapon in Indian country and one count of assault resulting in a serious bodily

injury in Indian country. The government’s theory of liability was that Tsosie

aided and abetted his fellow gang members in assaulting the victim.

In this appeal, Tsosie challenges the district court’s admission of four

pieces of evidence: (1) cross-examination testimony by defense witnesses

regarding their gang affiliation; (2) a photograph of the victim’s head injuries; (3)

*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
the contents of a threatening statement made toward the victim; and (4) testimony

that the victim and his wife were religious and were reading the Bible

immediately before the assault. Tsosie also claims there was insufficient

evidence for the jury to convict him.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.

I. Introduction

Tsosie was convicted of three counts of assault with a dangerous weapon in

Indian country, in violation of 18 U.S.C. §§ 1153, 113(a)(3), and 2; and one count

of assault resulting in serious bodily injury in Indian country, in violation of 18

U.S.C. §§ 1153, 113(a)(6), and 2. He was acquitted of an additional count of

assault with a dangerous weapon in Indian country, and is currently serving a

sentence of 24 months in a federal prison.

The four counts stemmed from an incident near the home of the victim of

the assaults in Shiprock, New Mexico. On the night of April 30, 2006, Tsosie

smashed the windshield and passenger window of the victim’s SUV with a large

rock. After the victim heard the crashing sound and inspected his vehicle, he

went looking for the culprits. He found Tsosie, Eric Wilson, Adrian Beletso, and

a few others. Wilson had a baseball bat. When the victim realized he was

outmatched, he tried retreating and then to take the bat away from Wilson.

In the ensuing struggle, the victim received multiple injuries. The most

serious arose when Wilson smashed a large rock onto the victim’s head, causing

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him to black-out. The victim suffered a bruised skull, serious nose fracture, and

back injuries. Although the number and identities of all the assailants were never

firmly established, the victim did recognize Tsosie as one of his attackers because

of Tsosie’s distinctive spiked, braided hairstyle and his acne. The victim had

encountered Tsosie in the neighborhood on Friday and Saturday evenings

consistently for six months to one year before the attack, and had personally

reported Tsosie to the Navajo Housing Authority three or four times.

The victim’s wife also witnessed the assault. She testified four individuals

surrounded her husband, with one in front, one on each side, and another behind

him. She clearly saw Tsosie on the left side of her husband, as the area was

illuminated by a streetlight. The victim’s wife saw Eric Wilson hit her husband

with a rock and her husband stumble backwards. With the victim on his knees,

Tsosie picked up the same rock and hit her husband in the back. As Tsosie was

running from the scene, she heard him say, “We’ll kill you.”

An acquaintance of Tsosie’s, Derrick Ross, testified that on the night of the

incident Tsosie told Ross he was going to break the car window of a guy who had

reported Tsosie to the housing authority. Ross also stated that Tsosie did not

participate in the fight with the victim, but rather Eric Wilson and a few juveniles

were fighting with him.

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 II. Discussion

Tsosie challenges four evidentiary issues—three of which were raised in

the district court, and one of which was not. He also challenges the sufficiency of

the evidence used to convict him.

A. Evidentiary Issues Raised Below

We review the district court’s evidentiary rulings under the abuse of

discretion standard. United States v. Jordan, 485 F.3d 1214, 1218 (10th Cir.

2007). A district court abuses its discretion only if its decision to admit evidence

is “arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v.

Atencio, 435 F.3d 1222, 1235 (10th Cir. 2006).

Tsosie argues the district court abused its discretion by: (1) allowing the

government to cross examine three defense witnesses regarding their gang

affiliation, (2) allowing the government to show the jury a single photograph of

the victim’s injuries, and (3) allowing government witnesses to testify about a

threatening statement made to the victim. We disagree.

1. Evidence of Gang Affiliation

Evidence of gang affiliation is admissible for proving a witness’s bias if a

proper foundation is laid and the evidence is not more prejudicial than probative.

The party seeking to introduce evidence of gang membership can lay a foundation

by demonstrating either “[1] membership on the part of the defendant and the

witness whose credibility is at issue in a common gang, or [2] that the witness’

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testimony was biased due to fear.” United States v. Elkins, 70 F.3d 81, 84 (10th

Cir. 1995); see also United States v. Keys, 899 F.2d 983, 986–87 (10th Cir. 1990).

This two-part test is disjunctive, which means the party seeking the admission of

such evidence need only lay one of the two possible foundations. Elkins, 70 F.3d

at 84; United States v. Abel, 469 U.S. 45, 52 (1984). Even if a proper foundation

is laid, the district court must also conclude the evidence is more probative than

prejudicial. Keys, 899 F.2d at 987; Fed. R. Evid. 403.

Here, the government cross examined three defense witnesses with regard

to their gang affiliation. The district court was within its discretion in allowing

that questioning. First, the government met its burden of laying a proper

foundation by showing Tsosie and the three defense witnesses (Derrick Ross,

Adrian Beletso, and Elton Beletso) were members of the same gang—viz., the

West Side Crips. See Elkins, 70 F.3d at 84; Keys, 899 F.2d at 986–87. Second,

the evidence was not more prejudicial than probative, as the questioning was

limited to showing potential bias and the court issued a limiting instruction to the

jury.

The government established common gang membership through the voir

dire examination of investigator Dale West, a former criminal investigator and

patrol officer for the Navajo Nation. According to West, Tsosie met several of

the criteria for membership in the West Side Crips, including (1) associating with

other known Crips members, (2) staying in a house with graffiti referencing

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“WS,” meaning West Side Crips, (3) wearing the gang’s colors of black and dark

blue, and (4) having a tattoo of his nickname, “Sho.” In fact, West indicated

Tsosie was identified as a leader of the gang based on eyewitness accounts of

Tsosie initiating gang-related activity in the area.

West also identified Ross and the Beletso brothers as belonging to the West

Side Crips gang. West said Tsosie was considered a leader, Ross was “[l]ower on

the totem pole,” and the Beletsos were in the “inner tier.” R., Vol. VII at 509–10.

West’s testimony was supported by Elton Beletso who admitted he was a former

member of the West Side Crips and had a “WS” tattoo. And by Adrian Beletso,

who conceded Tsosie was a member of the gang.

West’s testimony, coupled with the admissions from the witnesses

themselves, provided sufficient foundation showing Tsosie was a member of the

same gang as the defense witnesses Ross, Elton Beletso, and Adrian Beletso. Cf.

Keys, 899 F.2d at 987 (finding insufficient foundation where there was “no

evidence in the record” defendant and witnesses were members of the same gang);

Elkins, 70 F.3d at 84 (finding insufficient foundation where government did not

show defendant and witnesses belonged to the “same gang”).

Nor was the gang evidence unduly prejudicial under Rule 403. Evidence

that the defense witnesses were biased in favor of their fellow gang member was

highly probative. See Keys, 899 F.2d at 987–88; Abel, 469 U.S. at 52 (“A

witness’ and a party’s common membership in an organization . . . is certainly

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probative of bias.”); cf. United States v. DeSoto, 950 F.2d 626, 630 (10th Cir.

1991) (“Questions properly directed at revealing bias are . . . a permissible basis

of impeachment, and are relevant and admissible.”). Although gang membership

can be prejudicial, the district court mitigated this problem by giving the jury a

limiting instruction which said, “Evidence of possible gang membership may be

considered by you for the sole purpose of evaluating the credibility of witnesses

Derrick Ross, Elton Beletso, and Adrian Beletso and not for any other purpose.”

R., Vol. VIII at 664 (Instr. No. 20A). This limiting instruction diminished any

prejudicial effect of the evidence. See, e.g., Abel, 469 U.S. at 55 (noting court’s

offer to give limiting instruction “ensure[d] that the admission of this highly

probative evidence did not unduly prejudice” defendant).

In sum, the district court did not abuse its discretion by allowing the

government to cross examine three defense witnesses on their gang affiliation.

2. Photograph of Victim’s Injuries

The district court has wide discretion in deciding whether to admit

photographs of a victim’s injuries. The trial court’s “discretion in balancing the

prejudicial effect and probative value of photographic evidence of this type is

rarely disturbed.” United States v. Sides, 944 F.2d 1554, 1562 (10th Cir. 1991)

(quoting United States v. Soundingsides, 820 F.2d 1232, 1242–43 (10th Cir.

1987)). In a criminal trial, a jury is “entrusted with the weighty obligation to find

the facts” and it is “incompatible with that degree of trust to attempt to ‘protect’

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them from the evidence” of the crime. United States v. Naranjo, 710 F.2d 1465,

1468–69 (10th Cir. 1983).

Tsosie argues the parties had stipulated to the element of serious bodily

injury, and that the photograph of the victim’s injuries was therefore cumulative

and unduly prejudicial. As the government correctly points out, however, there

was no such stipulation. The parties stipulated to the opinion a medical expert,

Dr. Bishara, would have offered regarding the seriousness of the victim’s injuries.

The stipulation said that if Dr. Bishara were called to the stand he would testify

the victim’s injuries, in his opinion, rose to the level of “serious bodily injury.”

R., Vol. V at 112–13. The photograph was offered in conjunction with the

stipulation regarding Dr. Bishara’s medical opinion to prove this element of the

count charged. 1

The district court did not abuse its discretion by admitting into evidence the

single photograph of the victim’s facial injuries. The district court correctly

noted the photograph was probative of the issue of serious bodily injury for which

the government had the burden of proof and was not unduly prejudicial. The

government’s photograph was taken after the victim had been treated for his

1
Serious bodily injury was an element of the count charging assault
resulting in serious bodily injury in Indian Country. See 18 U.S.C. § 1153(a)
(“Any Indian who commits against the person or property of another Indian or
other person . . . assault resulting in serious bodily injury (as defined in section
1365 of this title) . . . 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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injuries, his facial wound had been washed, and he had put on a clean shirt.

There is little chance the photograph would have inflamed the passions of the

jury; rather, the picture simply afforded the jury an opportunity to evaluate the

seriousness of the victim’s injury. The photograph was not unduly prejudicial

under our well-established case law, and the district court was within its

discretion in allowing the photograph. See Sides, 944 F.2d at 1562;

Soundingsides, 820 F.2d at 1243; Naranjo, 710 F.2d at 1468.

3. Threatening Statement

Tsosie objects to the district court’s admission into evidence of a

threatening statement, made by one of the victim’s attackers, which was laced

with profanity and insult toward the victim. The statement discussed the use of a

shank to inflict injury upon the victim. See R., Vol. VI at 262 (“Shank that fat

f***er. Shank him. He’s – he’s nothing. He’s nothing.”); see also id. at 259,

261. Tsosie argues that because no one was able to identify him as the declarant,

the statement was irrelevant and unduly prejudicial. Tsosie offers no legal basis

for his argument, however, besides a single citation to Rule 402 of the Federal

Rules of Evidence. See Fed. R. Evid. 402 (“Evidence which is not relevant is not

admissible.”).

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 The statement was relevant, and therefore admissible under Rule 402. 2

“‘Relevant evidence’ means evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Fed. R. Evid.

401. The threatening statement made more probable the crucial facts that the

victim had been attacked intentionally, with a dangerous weapon, and with a

desire to do bodily harm. All of these facts needed to be proved by the

government. See 18 U.S.C. §§ 1153, 113(a)(3) and (a)(6); see also United States

v. Bruce, 458 F.3d 1157, 1165 n.4 (10th Cir. 2006) (“The elements differentiating

assault with a dangerous weapon from simple assault are the use of a deadly

weapon and the intent to commit bodily harm.”). Although no shank, or knife,

was recovered from the scene, and the count alleging assault with a knife was

dropped from the indictment, the statement remained relevant to the three charged

counts of assault with a dangerous weapon and assault resulting in serious bodily

injury. The attackers were expressing their intent to commit bodily harm, and to

do so with a dangerous weapon.

It is irrelevant whether Tsosie or one of his cohorts made the statement.

The government prosecuted Tsosie under an aiding-and-abetting theory of

2
See Fed. R. Evid. 402 (“All relevant evidence is admissible, except as
otherwise provided by the Constitution of the United States, by Act of Congress,
by these rules, or by other rules prescribed by the Supreme Court pursuant to
statutory authority. Evidence which is not relevant is not admissible.”).

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liability, in which it needed only to prove Tsosie helped or aided, in some way,

someone else commit the charged crime. See 18 U.S.C. § 2(a) (“Whoever

commits an offense against the United States or aids, abets, counsels, commands,

induces or procures its commission, is punishable as a principal.”). The statement

reveals the intent to inflict bodily harm by the group, which was acting in concert

and of which Tsosie was a member. The district court acted within its discretion

in overruling the defense’s objection to the statement.

B. Evidentiary Issue Not Raised Below

The standard of review for issues not raised and argued before the district

court is plain error. United States v. Martinez, 76 F.3d 1145, 1150 (10th Cir.

1996). Under plain error review, we reverse a decision of the district court only

if there is (1) error, (2) that is plain, which (3) affects defendant’s substantial

rights, and (4) seriously affects the fairness, integrity, or public reputation of

judicial proceedings. United States v. Tindall, 519 F.3d 1057, 1064 (10th Cir.

2008); United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007).

Tsosie argues the district court plainly erred in allowing the victim and his

wife to testify (1) they were involved with their church; and (2) they were reading

Bible verses just before the assault. We disagree.

Tsosie first argues it was improper for the prosecutor to elicit testimony

concerning the religiosity of the victim and his wife on direct examination by, for

example, having the victim testify he was a deacon at his church and his wife was

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a Sunday school teacher. He also alleges it was improper for the victim’s wife to

testify they often read the Bible together.

This testimony, pertaining to religion and elicited on direct examination,

might be construed as an attempt by the prosecutor to improperly introduce

evidence of the good character of the victim and his wife. See United States v.

Sloan, 811 F.2d 1359, 1364 (10th Cir. 1987) (concluding testimony by employer

that victim was “completely trustworthy” and “very honest” were “improper

evidence of good character”); Fed. R. Evid. 610 (“Evidence of the beliefs or

opinions of a witness on matters of religion is not admissible for the purpose of

showing that by reason of their nature the witness’ credibility is impaired or

enhanced.”); Fed. R. Evid. 608(a)(2) (“[E]vidence of truthful character is

admissible only after the character of the witness for truthfulness has been

attacked by opinion or reputation evidence or otherwise.”).

Rule 610 of the Federal Rules of Evidence specifically prohibits the

introduction of evidence of a witness’s religious beliefs to bolster that witness’s

credibility. See Fed. R. Evid. 610. “Evidence is excluded under that provision

because it is presumed to threaten unfair prejudice. This prejudice can be either

supportive or corrosive of credibility.” 28 Charles Alan Wright, Arthur R. Miller

& Victor James Gold, Federal Practice and Procedure § 6153 (2008).

Even assuming this testimony was improperly admitted, however, we

conclude the court nevertheless did not commit plain error because the evidence

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did not “affect[] the defendant’s substantial rights.” Tindall, 519 F.3d at 1064.

Given that the references to the couple’s religiosity were so brief, and the

evidence of Tsosie’s culpability so strong, we have no problem concluding the

error did not affect the outcome of Tsosie’s trial. See United States v. Lamy, 521

F.3d 1257, 1265 (10th Cir. 2008) (“For an error to have affected substantial

rights, the error must have been prejudicial: It must have affected the outcome of

the district court proceedings.” (quotation omitted)).

Tsosie also argues it was plain error for the district court to allow evidence

that the victim and his wife were reading the Bible immediately before the

assault. Although Tsosie again argues the testimony constituted improper

evidence of the victim’s good character, in context the testimony more accurately

served as a narrative of the events as they happened on the night of the assault.

As the government walked the victim and his wife through the night’s events, it

was relevant and appropriate for them to testify as to their actions immediately

before they heard the crash and went outside to discover its cause. The

background testimony helped establish the reliability of both witnesses’ memory.

Nor was it plain error for the victim to testify as to the fact and content of

the specific Bible verse he was reading on re-direct examination. On re-direct,

the victim recalled he and his wife were reading Philippians 3:14, which said

something to the effect, “I do all things in my God’s — in God’s strength.” R.,

Vol. VI at 330. This testimony served to rehabilitate the victim after defense

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counsel had attacked his recollection of the night’s events. In a statement given

before trial, the victim had said he was awakened by a loud crash. But then at

trial, he testified he had already been awake at the time of the crash, as he and his

wife were reading the Bible. 3 Thus, the exact sequence of events was relevant to

3
The colloquy between defense counsel and the victim reads as follows:

Q. Now, you have testified that, on April 30th of 2006, about 2 a.m., you
and your wife [] were reading the Bible, reading some scriptures?
A. Yes.
Q. And do you recall being interviewed on May 1st, 2006, by a Criminal
Investigator Dale West? Do you recall that?
A. Yes.
***
Q. And do you recall at the time that he interviewed you that you told him
that you were awakened by a loud crash at 2 a.m. on April 30th?
A. I don’t—
Q. You don’t recall telling him that?
A. No, ma’am.
Q. If I show you your interview that you gave to Mr. West, will that
refresh your recollection?
A. Yes.
***
Q. Sir, does that refresh your recollection about what you told Criminal
Investigator Dale West?
A. I was awake, ma’am.
Q. According to this report, it says that you were awakened by a loud
crash; isn’t that correct?
A. I was awake, ma’am.
Q. So if Mr. West reported in here that you told him you were awakened
by a loud crash, he would have been incorrect in that test — in that
information that he put there?
A. I don’t know, but I was awake.
Q. And you did not tell him anything about reading the Bible and [sic]
when this loud noise occurred?
A. I remembered him telling — him I heard — we heard the loud noise.
Q. And you did not tell him anything about reading the Bible?
(continued...)

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the victim’s credibility and the extent of his memory of the night’s events.

Recalling the specific verse number and content helped establish the victim’s

accurate and precise recollection of details from that night.

In sum, because the victim’s and his wife’s credibility and memory were

important elements supporting the government’s prosecution and the defense

counsel invited the discussion of the Bible verse by her cross-examination, the

court did not plainly err in allowing any of the testimony pertaining to religion.

C. Sufficiency of the Evidence

Finally, Tsosie argues there was insufficient evidence to convict him of the

assault charges. We review a claim of insufficient evidence to support a verdict

de novo. United States v. Hernandez, 509 F.3d 1290, 1295 (10th Cir. 2007). In

conducting our review, “we consider the record in the light most favorable to the

government,” and “may reverse only if no rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Id. (quotation

omitted). “In evaluating the evidence under this standard, the court will not

3
(...continued)
A. Nothing about reading the Bible.
Q. And in fact, what you told him was that you were awakened by a loud
crash at 2 a.m.?
A. I was — we were awake.
Q. Okay. So this information that he has here must be inaccurate
information?
A. I don’t know.

R., Vol. VI at 294–96.

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question the jury’s credibility determinations or its conclusions about the weight

of the evidence.” United States v. Lazcano-Villalobos, 175 F.3d 838, 843 (10th

Cir. 1999).

Tsosie was convicted of three counts of assault with a dangerous weapon

and one count of assault resulting in serious bodily injury. The government

proceeded on an aiding and abetting theory, meaning it did not need to prove

Tsosie actually assaulted the victim, but rather he in some way furthered the

crime. More specifically, to obtain a conviction based upon an aiding and

abetting theory, the government had to prove “[1] the defendant willfully

associated with a criminal venture and [2] sought through some affirmative action

to make that venture succeed.” United States v. Barajas-Diaz, 313 F.3d 1242,

1249 (10th Cir. 2002) (quotation omitted); see also United States v. Isaac-Sigala,

448 F.3d 1206, 1213 (10th Cir. 2006).

Tsosie argues that although he was present, he did not intentionally take

part in the assault on the victim. Tsosie cites the testimony of defense witnesses

who testified he either did not participate in the assault at all, or did so only in a

very minor way. Tsosie fails to acknowledge, however, the considerable evidence

establishing his culpability.

After reviewing the entire record in the light most favorable to the

government, it is clear there was sufficient evidence for the jury to conclude both

elements of the aiding and abetting charge were met. Tsosie (1) “willfully

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associated” in the assaults on the victim, and (2) “sought through some

affirmative action” to make those assaults succeed. See Barajas-Diaz, 313 F.3d

at 1249.

First, the jury could easily have concluded Tsosie willfully associated

himself with the assaults. Although Derrick Ross stated Tsosie was not involved

in the fight and did not make any threatening statements toward the victim, the

jury could easily have disbelieved this testimony. Ross had a clear bias in favor

of Tsosie because he was an associate of Tsosie’s and involved in the same gang.

Ross’s testimony was also inconsistent with earlier statements he had made to

investigators in which he said he was not present during the fight, and only

learned about it later. The jury was not obligated to believe Ross’s testimony at

trial that Tsosie had nothing to do with the assault on the victim, and instead

could have believed the testimony of the victim and his wife. On appeal, we will

not question the jury’s credibility determinations. See, e.g., Lazcano-Villalobos,

175 F.3d at 843.

Both the victim and his wife testified they saw Tsosie striking the victim

with his fists. They were able to accurately identify Tsosie because the street

where the assault occurred was well-lit by several streetlamps. The victim’s wife

also testified she heard Tsosie say, “We will kill you,” to her and her husband as

Tsosie and his fellow attackers left the scene. R., Vol. VI at 382. Thus, there

was ample evidence Tsosie willfully associated himself with the assaults.

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 Second, the jury had sufficient evidence to conclude Tsosie sought, through

an affirmative action, to make the assaults succeed. The victim testified Tsosie

was one of his attackers, and that during the assault, Tsosie punched him in the

head with his fists. Moreover, the victim testified that if only Eric Wilson had

been attacking him, he could have defended himself; the presence of Tsosie and

others meant self-defense against the assault was more difficult. The victim’s

wife also testified she saw Tsosie hit her husband with his fists and with the same

rock Eric Wilson had used to strike her husband moments earlier. Again, there

was ample evidence to support the jury’s conclusion Tsosie “took some act to

facilitate” the assault. See Isaac-Sigala, 448 F.3d at 1213.

Given this overwhelming evidence, we cannot conclude “no reasonable

juror could have reached the disputed verdict.” See United States v. Carver, 130

F.3d 1432, 1439 (10th Cir. 1997). The evidence was sufficient to show Tsosie

had a motive to attack the victim because he had reported Tsosie to the housing

authority on three or four occasions, and Tsosie told Ross he would get the victim

back for this. The evidence was also sufficient to establish Tsosie participated in

the assaults upon the victim to a much more substantial degree than our aiding-

and-abetting cases require. See Isaac-Sigala, 448 F.3d at 1213; Barajas-Diaz,

313 F.3d at 1249; United States v. McKneely, 69 F.3d 1067, 1072 (10th Cir.

1995); United States v. Esparsen, 930 F.2d 1461, 1470–71 (10th Cir. 1991).

Accordingly, we reject Tsosie’s insufficiency argument.

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 III. Conclusion

For the reasons set forth above, we AFFIRM.

Entered for the Court,

Timothy M. Tymkovich
Circuit Judge

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