United States v. Begay

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
No. 07-10487
v.
 D.C. No.
CR-06-00626-DGC
KENDERICK BEGAY, OPINION
a.k.a. Kendrick Begay,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding

Argued and Submitted
March 23, 2010—San Francisco, California

Filed January 12, 2011

Before: Alex Kozinski, Chief Judge, Stephen Reinhardt,
Sidney R. Thomas, Barry G. Silverman,
M. Margaret McKeown, Kim McLane Wardlaw,
Raymond C. Fisher, Marsha S. Berzon, Richard R. Clifton,
Consuelo M. Callahan and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Clifton;
Dissent by Judge Reinhardt

669
672 UNITED STATES v. BEGAY

COUNSEL

Daniel L. Kaplan, Assistant Federal Public Defender, Phoe-
nix, Arizona, for the appellant.

John R. Lopez, Assistant United States Attorney, Phoenix,
Arizona, for the appellee.
 UNITED STATES v. BEGAY 673
OPINION

CLIFTON, Circuit Judge:

Kenderick Begay appeals his convictions on two counts of
first-degree murder in violation of 18 U.S.C. §§ 1111(a) and
1153(a), and two counts of using a firearm during a crime of
violence in violation of 18 U.S.C. § 924(c)(1)(A). Begay’s
principal argument on appeal is that the evidence introduced
at trial, even when taken in the light most favorable to the
prosecution, fails to establish that he acted with premeditation
and thus fails to support his convictions for first-degree mur-
der. We conclude that there was sufficient evidence to estab-
lish premeditation and affirm the convictions.

I. Background1

In the early morning hours of March 28, 2002, Kenderick
Begay2 drove his truck through the Navajo Indian Reservation3
in Greasewood, Arizona, after leaving a gathering at the
“windmill,” an area in town where the youth partied. His pas-
sengers included his sister Mecheryl Begay, Loren Clark,
Emmanley Begay, and Jessica Lee. When a car passed them
traveling in the opposite direction sometime around 2:00 a.m.
1
Most of the background section of this opinion is drawn directly from
the opinion of the three-judge panel that initially heard this case. See
United States v. Begay, 567 F.3d 540 (9th Cir. 2009).
2
The record reflects that “Begay” is a common surname in the Navajo
Nation and does not always reflect a familial relation between two individ-
uals bearing that name. In this case, four relevant parties bear the surname
Begay: the defendant, his sister Mecheryl, a man named Emmanley, and
a man named Larry. The latter two bear no familial relation to the first two
or to each other. We refer to the defendant by his surname and to the other
Begays by either their first or full names.
3
Begay was charged under the federal murder statute pursuant to the
Indian Major Crimes Act, 18 U.S.C. § 1153, which extends federal crimi-
nal jurisdiction to cover specific crimes, including murder, committed by
Indians in Indian Country.
674 UNITED STATES v. BEGAY
or 3:00 a.m., Begay turned his truck around. The other car
turned around as well. When the two vehicles passed each
other again, Begay flashed the lights of his truck, a signal that
resulted in stopping the other car. The two vehicles pulled off
the highway and onto a dirt road. Begay got out of his truck
and walked to the driver’s side of the other car. Two high
school students, J.T. and O.C.,4 were in the car; O.C. was in
the driver’s seat and J.T. was in the front passenger’s seat.

After about a minute of standing by the driver’s side of the
car, Begay walked back to his truck. He reached under the
driver’s seat, pulled out a .30 caliber rifle, and walked back
to the passenger’s side of the car. Begay shot eight or nine
times through the passenger-side front window, shattering the
glass. Six of the bullets hit J.T., while some of the shots
missed, hitting the driver’s side door. One of the bullets that
struck J.T. passed through him and hit O.C.

After firing the shots, Begay walked back to his truck and
put the gun under the back seat. Clark, who had gotten out of
the truck prior to the shooting to relieve himself, “just stood
there” before asking, “What the hell are you doing?” Begay
did not answer. His sister Mecheryl ran up to him making
“horrible cries” and yelling at him, screaming, “What did you
do?” or “Why did you do that?” Begay told her to be quiet.
Clark walked over to the car and saw J.T. gasping for air and
O.C. sitting in her seat. Clark again asked Begay why he shot
the victims, but Begay did not respond.

Begay, Mecheryl, and Clark got back into the truck and
drove away. Lee remained behind. Up until the shooting, she
had been in a comatose state in the rear of the truck as a result
of having consumed too much alcohol. The gunshots roused
her from her stupor, at which point she felt an immediate need
to vomit and exited the truck to do so. Lee did not reenter the
4
Because the victims were minors, we refer to them using only their ini-
tials. See 18 U.S.C. § 3509(d).
 UNITED STATES v. BEGAY 675
vehicle following the shooting, but instead walked home from
the crime scene. As she passed O.C.’s car, she saw O.C. try-
ing to hold J.T. upright and saw that J.T.’s shirt was bloody.

O.C. managed to drive her car to a nearby housing area,
where she sought help from Rosita Clark, Loren Clark’s
mother. By the time O.C. and J.T. arrived, J.T. was already
dead. O.C. was transported to a nearby hospital before being
transferred to a hospital in Albuquerque, New Mexico, where
she died from her wounds three days later.

FBI agents and Navajo investigators began to investigate
the crime immediately. They interviewed numerous people,
including Begay, who denied being out the night of the mur-
ders and stated that he had been with his girlfriend the entire
time. Investigators learned from other sources, however, that
Begay might have been at the party the victims attended.
Approximately two weeks after the murders, investigators
located the crime scene, where they found glass on the ground
and six .30 caliber shell casings. After this discovery, the
agents continued to investigate for several months but failed
to make any further progress.

The investigation’s first break came six months after the
shooting, in the autumn of 2002, when Jessica Lee contacted
the FBI about the murders. She eventually told the FBI, and
later testified at trial, that she had been present at the party
and left with Begay, Mecheryl, Clark, and Emmanley. Lee
admitted that alcohol impaired her memory, but stated that
she remembered leaving the party with that group, that, after
having passed out, she woke up at the sound of gunshots, and
that she saw the victims after they had been shot. She also tes-
tified that a few days after the murders, she asked Begay what
she should tell the police and that he told her to blame the
murders on two other men. Lee and Begay never spoke about
the murders again.

The next major development in the investigation came four
years after the shooting, in May 2006, when the FBI contacted
676 UNITED STATES v. BEGAY
Clark. Other than Lee, Clark was the only percipient witness
who testified at trial. Moreover, as Lee witnessed only the
shooting’s aftermath, Clark was the sole witness to testify as
to the events leading up to the shooting or the details of the
shooting itself.

Clark testified that when the two cars pulled over, he exited
Begay’s vehicle to relieve himself. Because he was standing
at the rear of Begay’s truck while Begay was standing along-
side the victim’s car, he could only see Begay “[f]rom quite
a distance.” In fact, Clark described Begay as appearing as
simply “a black figure” in the night. Clark testified that he
saw Begay stand by the car for “just a minute or so” and then
come “walking back . . . to his truck.” Clark could not see
what Begay retrieved from the truck, but saw that he “reached
under the driver’s side . . . seat,” retrieved something, and
then returned to the victim’s car. At that point, according to
Clark, he saw Begay lift the object that he had retrieved from
the truck “up on his shoulder and just s[aw]—just s[aw]
sparks.” Along with the sparks, Clark heard gunshots, which
he recognized as coming from a rifle that Begay had used on
previous occasions when he and Clark had gone shooting
together. When the gunfire ceased, Clark asked Begay why he
had shot the victims, but received no explanation. Instead,
Begay told him to get back into the truck, which he did.
Begay dropped Clark off at his house immediately following
the murders and told him to keep quiet. The next morning,
Begay told Clark to say nothing to the FBI and “to watch him-
self.” At various times following the murders, Begay told
Clark to “watch his back.”

A jury convicted Begay on two counts of first-degree mur-
der and two counts of using a firearm during a crime of vio-
lence. The district court imposed mandatory concurrent life
sentences for each murder conviction as well as consecutive
120-month and 300-month sentences, or a total of thirty-five
years, for the firearm convictions.
 UNITED STATES v. BEGAY 677
A three-judge panel of our court reversed Begay’s first-
degree murder convictions, concluding that the evidence was
insufficient for the jury to find that the killings had been pre-
meditated. See United States v. Begay, 567 F.3d 540, 550 (9th
Cir. 2009). The panel decision affirmed the convictions for
using a firearm during a crime of violence.

We granted the government’s petition for rehearing en
banc. United States v. Begay, 591 F.3d 1180 (9th Cir. 2010).

II. Sufficiency of the Evidence

[1] Begay contends that the evidence of premeditation was
insufficient to convict him of first-degree murder. Murder is
defined in the relevant statute as follows:

Murder is the unlawful killing of a human being 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 per-
petrate, any arson, escape, murder, kidnapping, trea-
son, espionage, sabotage, aggravated sexual abuse or
sexual abuse, child abuse, burglary, or robbery; or
perpetrated as part of a pattern or practice of assault
or torture against a child or children; or perpetrated
from a premeditated design unlawfully and mali-
ciously to effect the death of any human being other
than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree.

18 U.S.C. § 1111(a).

[2] Premeditation is not required for all forms of first-
degree murder, but it is undisputed that premeditation is a
required element of first-degree murder as charged against
Begay. Therefore, in this case, premeditation is the essential
678 UNITED STATES v. BEGAY
element that distinguishes first-degree and second-degree
murder. See United States v. Quintero, 21 F.3d 885, 890 n.3
(9th Cir. 1994). Without proof of premeditation, Begay could
not be convicted of first-degree murder.

The jury in this case was instructed, following our circuit’s
model jury instructions, that

Premeditation means with planning or deliberation.
The amount of time needed for premeditation of a
killing depends on the person and the circumstances.
It must be long enough, after forming the intent to
kill, for the killer to have been fully conscious of the
intent and to have considered the killing.

9th Cir. Model Crim. Jury Instr. 8.89 (2003). Begay did not
object to that instruction at trial and has not done so in this
appeal.

[3] Premeditation can be proved by circumstantial evi-
dence. United States v. Free, 841 F.2d 321, 325 (9th Cir.
1988). Relevant circumstantial evidence includes but is not
limited to “the defendant’s prior relationship to the victim, the
defendant’s carrying of the murder weapon to the scene, and
the manner of the killing.” Id.; see also 2 Wayne R. LaFave,
Substantive Criminal Law § 14.7(a) (2d ed. 2009) (highlight-
ing “planning activity,” “motive,” and the “nature of the kill-
ing” as probative evidence) (emphasis omitted).

Whether a defendant acted with premeditation is a factual
question for the jury to decide. And a jury’s verdict is not to
be disturbed lightly. As the Supreme Court established in
Jackson v. Virginia, a challenge to the sufficiency of the evi-
dence to support a criminal conviction requires us to deter-
mine whether, “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a rea-
sonable doubt.” 443 U.S. 307, 319 (1979).
 UNITED STATES v. BEGAY 679
[4] A unanimous en banc panel of our court recently held
in United States v. Nevils, 598 F.3d 1158 (9th Cir. 2010) (en
banc), that Jackson established a two-step process:

First, a reviewing court must consider the evidence
presented at trial in the light most favorable to the
prosecution. This means that a court of appeals may
not usurp the role of the finder of fact by considering
how it would have resolved the conflicts, made the
inferences, or considered the evidence at trial.
Rather, when “faced with a record of historical facts
that supports conflicting inferences” a reviewing
court “must presume—even if it does not affirma-
tively appear in the record—that the trier of fact
resolved any such conflicts in favor of the prosecu-
tion, and must defer to that resolution.”

Second, after viewing the evidence in the light
most favorable to the prosecution, the reviewing
court must determine whether this evidence, so
viewed, is adequate to allow “any rational trier of
fact to find the essential elements of the crime
beyond a reasonable doubt.” This second step pro-
tects against rare occasions in which “a properly
instructed jury may convict even when it can be said
that no rational trier of fact could find guilt beyond
a reasonable doubt.” More than a “mere modicum”
of evidence is required to support a verdict. At this
second step, however, a reviewing court may not
“ask itself whether it believes that the evidence at the
trial established guilt beyond a reasonable doubt,”
only whether “any” rational trier of fact could have
made that finding.

Nevils, 598 F.3d at 1164 (citations, omissions, and alterations
omitted) (quoting Jackson, 443 U.S. at 319-20, 326).

We turn to the evidence presented at trial in this case. The
first step under Nevils requires us to consider the evidence in
680 UNITED STATES v. BEGAY
the light most favorable to the prosecution, resolving conflicts
in favor of the government’s case. At least four pieces of evi-
dence were relevant to whether Begay acted with planning or
deliberation in killing his victims and whether there was suffi-
cient time for him to plan or deliberate.

[5] First, the jury could reasonably infer, from Loren
Clark’s testimony, that Begay walked back to his truck after
talking to O.C. and J.T., got a gun from under the back seat
and then returned to shoot the victims. Carrying the murder
weapon to the scene is strong evidence of premeditation. See
Free, 841 F.2d at 325; United States v. Talbert, 710 F.2d 528,
531 (9th Cir. 1983) (“If the jury determined that the killer
picked up the murder weapon and carried it back seventy-five
feet to [the victim’s] room, its finding of premeditation was
justified.”); see also Belton v. United States, 382 F.2d 150,
152 (D.C. Cir. 1967) (“[T]hat appellant entered the apartment
with a loaded gun . . . permitted an inference that appellant
arrived on the scene already possessed of a calmly planned
and calculated intent to kill.”). Leaving the scene to retrieve
a weapon is even stronger evidence of premeditation because
it suggests that Begay had formed a plan for committing the
murders and then set about carrying it out.

[6] Second, Clark testified that Begay walked both ways
between his truck and O.C.’s car. There was no evidence that
he was agitated or rushed. The jury could reasonably infer
that he had enough time to become fully conscious of his
intent to kill and to consider the killing.

[7] Third, Clark testified that when Begay returned to
O.C.’s car, he went to the passenger’s side, where J.T. was
sitting, even though he had initially spoken to O.C. and J.T.
from the driver’s side. The jury could reasonably infer that he
did so to get a clearer shot at J.T. See Jackson, 443 U.S. at
325 (“[T]he . . . shots that killed the victim were fired at close,
and thus predictably fatal, range by a person who was experi-
enced in the use of the murder weapon.”). Like the defendant
 UNITED STATES v. BEGAY 681
in Jackson, Begay fired from close range: Clark testified that
Begay was at most four feet away from the car when he fired.

[8] Finally, Clark testified that Begay did not answer
when, after the shooting, Clark asked what he had done. He
also testified that Begay’s sister, Mecheryl, yelled something
like “What did you do?” to Begay at that point, and Begay
told her to shut up and be quiet. The jury could reasonably
infer that Begay was acting with a cool mind. Cf. id. at 325
(“The petitioner’s calculated behavior both before and after
the killing demonstrated that he was fully capable of commit-
ting premeditated murder.”).

The second step under Nevils requires us to consider
whether this evidence, including the inferences drawn in the
prosecution’s favor, was adequate to permit a rational juror to
conclude that each essential element of the charge was proved
beyond a reasonable doubt. This second step allows us to ful-
fill “our obligation under Jackson to identify those rare occa-
sions in which ‘a properly instructed jury may convict even
when it can be said that no rational trier of fact could find
guilt beyond a reasonable doubt.’ ” Nevils, 598 F.3d at 1167
(omissions and alterations omitted) (quoting Jackson, 443
U.S. at 317). For example, we cannot uphold a verdict where
“mere speculation, rather than reasonable inference, supports
the government’s case.” Nevils, 598 F.3d at 1167 (citing Juan
H. v. Allen, 408 F.3d 1262, 1277-79 (9th Cir. 2005)).

[9] The evidence we described in step one, viewed in the
light most favorable to the prosecution, was sufficient for a
rational juror to conclude that Begay acted with planning or
deliberation in shooting J.T. and that he had enough time to
do so.5 Each of the inferences we described is reasonable
5
The evidence was sufficient to conclude that Begay premeditated kill-
ing J.T., so it was not necessary for the jury to decide separately whether
Begay also premeditated killing O.C., his other victim. See 18 U.S.C.
§ 1111(a) (“Every murder . . . perpetrated from a premeditated design
unlawfully and maliciously to effect the death of any human being other
than him who is killed . . . is murder in the first degree.”).
682 UNITED STATES v. BEGAY
because it is “supported by a chain of logic,” which is all that
is required to distinguish reasonable inference from specula-
tion. Juan H., 408 F.3d at 1277. In this case, therefore, step
two is simple. Nothing more was needed for a rational juror
to conclude beyond a reasonable doubt that Begay acted with
premeditation.6

Begay argues that because there was no evidence presented
at trial to establish a motive on the part of Begay to kill J.T.
or O.C. or to prove that Begay had a prior relationship with
them, it would have been irrational for a juror to conclude that
Begay premeditated the killings. But although evidence of
motive or of a past relationship often helps to establish a
given defendant’s guilt, neither motive nor a past relationship
is an element of first-degree murder. See United States v.
Brown, 880 F.2d 1012, 1014 (9th Cir. 1989); see also 18
U.S.C. § 1111(a).

[10] A rational juror could have concluded beyond a rea-
sonable doubt from the evidence concerning Begay’s activity
and the manner of killing that Begay acted with premedita-
tion. See Free, 841 F.2d at 325; LaFave, supra, § 14.7(a).
Begay does not contest the sufficiency of evidence as to any
other element of first-degree murder. The evidence was there-
fore sufficient to support the jury’s verdict and the convic-
tions for first-degree murder.
6
While we have examined several pieces of evidence to determine
whether the evidence as a whole was sufficient to support Begay’s convic-
tion, we do not mean to imply that the evidence would have been insuffi-
cient in the absence of any of these pieces. Nor do we mean to imply that
the evidence in this case represents a minimum level of evidence for the
government to produce in other cases involving premeditation. The analy-
sis under Jackson and Nevils must be applied to each criminal appeal in
which the sufficiency of evidence is at issue. Whether the evidence in a
given case is sufficient to prove an element of a crime always depends on
the specific evidence produced in that case.
 UNITED STATES v. BEGAY 683
III. Other Challenges

Begay raises a number of other arguments that we can
address without extended discussion. None persuades us to
reverse the conviction or to remand for any further proceed-
ings.

A. Voluntary Manslaughter Instruction

[11] Begay argues that the district court erred by declining
to instruct the jury on the lesser crime of voluntary man-
slaughter. See 18 U.S.C. § 1112(a); United States v. Paul, 37
F.3d 496, 499 (9th Cir. 1994). We review the refusal to
instruct on a lesser included offense for abuse of discretion.
See United States v. Naghani, 361 F.3d 1255, 1262 (9th Cir.
2004). A murder defendant is not automatically entitled to a
voluntary manslaughter instruction. The defendant must pro-
duce evidence “that the defendant was acting out of passion
rather than malice” before the burden shifts to the government
to “prove beyond a reasonable doubt the absence of sudden
quarrel or heat of passion.” Quintero, 21 F.3d at 890 (citing
United States v. Lesina, 833 F.2d 156, 160 (9th Cir. 1987)).
Begay relies on United States v. Hernandez, 476 F.3d 791
(9th Cir. 2007), but that case is inapposite. In Hernandez, the
evidence at trial was sufficient to allow a rational jury to find
the defendant guilty of a lesser included offense, so the defen-
dant had no obligation to introduce additional evidence. See
id. at 801. Here, Begay’s trial counsel conceded that there was
no evidence of provocation. Begay failed to meet his burden
of production, so the district court did not abuse its discretion
by refusing to give the requested instruction. See United
States v. Wagner, 834 F.2d 1474, 1487 (9th Cir. 1987).

B. Evidence of Witness Intimidation

[12] Begay argues that evidence showing that he sought to
intimidate the witnesses against him was inadmissible under
Federal Rules of Evidence 403 and 404(b). Specifically,
684 UNITED STATES v. BEGAY
Begay challenges the admission of Clark’s testimony that he
was afraid to talk to investigators after Begay told him to keep
quiet and to watch himself. He also challenges Jessica Lee’s
testimony that Begay told her to blame the murders on other
people. Because Begay did not object to this evidence at trial,
we review for plain error. See United States v. Banks, 514
F.3d 959, 975-76 (9th Cir. 2008). There was no error. First,
the evidence in question was admissible to show Begay’s con-
sciousness of guilt. See Ortiz-Sandoval v. Gomez, 81 F.3d
891, 897 (9th Cir. 1996). Second, its probative value out-
weighed any danger of unfair prejudice because the evidence
also tended to explain why Clark and Lee delayed coming for-
ward to investigators until they each had moved away from
Greasewood.

[13] Begay also contends that he was not given reasonable
notice by the government that it would introduce this evi-
dence of his other wrongful acts. The government was not
required to provide such notice unless Begay requested it. See
Fed. R. Evid. 404(b) (duty triggered “upon request by the
accused”); United States v. Vega, 188 F.3d 1150, 1154 (9th
Cir. 1999). Begay cites no request for notice, and our review
of the record has not revealed one. Even if Begay did request
notice and the government failed to provide it, the decision to
admit the evidence does not require reversal. We recognize
plain errors only if they seriously undermine “the fairness,
integrity, or public reputation of judicial proceedings.” United
States v. Cruz-Perez, 567 F.3d 1142, 1146 n.1 (9th Cir. 2009).
That did not happen here: The government disclosed the evi-
dence itself and said specifically in its opening statement that
some of it would be introduced. The defense had an opportu-
nity to cross-examine the government’s witnesses about the
evidence. And the district court had no reason to suspect a
notice problem absent an objection.

C. Prosecutorial Misconduct

Begay argues that the prosecutor committed misconduct by
misstating the elements of first-degree murder during closing
 UNITED STATES v. BEGAY 685
argument. We review the prosecutor’s statement for plain
error because no objection was raised at trial. See United
States v. Romero-Avila, 210 F.3d 1017, 1021-22 (9th Cir.
2000).

The prosecutor made the following statement, which Begay
insists is a justification for a new trial:

He knew exactly what he was doing. He intended
to kill the occupants of the vehicle. That’s premedi-
tation. He intended it. He was conscious of it. That’s
first degree murder.

[14] The prosecutor did make a mistake in saying “that’s
premeditation” right after she said “he intended to kill the
occupants of the vehicle.” Intent is not the same thing as pre-
meditation. But we consider the misstatement in context. The
court properly instructed the jury on the correct definition,
and an instruction carries more weight than an argument.
Boyde v. California, 494 U.S. 370, 384-85 (1990); see also
Weeks v. Angelone, 528 U.S. 225, 234 (2000) (holding that a
jury is presumed to follow a judge’s instructions). Plus, the
prosecutor correctly stated the law shortly before the misstate-
ment, explaining that “ ‘[p]remeditation’ means planning or
deliberation. The amount of time needed . . . must be long
enough after forming the intent to kill for the killer to have
been fully conscious of the intent and to have considered the
killing.” The misstatement did not prejudice Begay, so there
was no plain error. See United States v. Medina-Casteneda,
511 F.3d 1246, 1249-50 (9th Cir. 2008).

D. Cumulative Error

Begay argues that the cumulative effect of the issues he
raises deprived him of a fair trial. We have not recognized any
error below, so there is no cumulative prejudicial effect to
analyze. See, e.g., United States v. Jeremiah, 493 F.3d 1042,
1047 (9th Cir. 2007).
686 UNITED STATES v. BEGAY
IV. Conclusion

The evidence, viewed in the light most favorable to the
prosecution, was sufficient for a rational juror to conclude that
Kenderick Begay acted with premeditation in killing his vic-
tims. His other arguments also lack merit.

AFFIRMED.

REINHARDT, Circuit Judge, with whom Judges THOMAS
and BERZON join, dissenting:

This is a case in which there is no conflict among circuits,
no intra-circuit conflict, and no issue of national importance.
The court went en banc not over any legal issue, but only to
decide whether a few specific facts identified in the majority
opinion were sufficient to warrant a finding of premeditation.
A similar combination of facts is not likely to occur again in
a future case, especially as there are few federal murder cases
—this one happened on an Indian reservation—and even
fewer in which the question whether the murder was first- or
second-degree hinges exclusively on whether there is suffi-
cient circumstantial evidence to prove premeditation. Never-
theless, a majority of this court decided that it was worthy of
en banc review when the three-judge panel found that the
prosecution had failed to prove murder in the first as opposed
to second degree. Because I disagree with the majority that
the minimal facts that it sets forth in its opinion are sufficient
to establish premeditation beyond a reasonable doubt, what-
ever reasonable inferences may be drawn, I dissent.

It is an elementary principle of our criminal justice system
that in a criminal prosecution the government bears the bur-
den of providing proof that establishes the defendant’s guilt
beyond a reasonable doubt, including the degree of the
offense charged. The rule applies to each element of a crimi-
 UNITED STATES v. BEGAY 687
nal offense. It “gives concrete substance to the presumption
of innocence, [ensures] against unjust convictions, and
[reduces] the risk of factual error in a criminal proceeding.”
Jackson v. Virginia, 443 U.S. 307, 314 (1979) (quoting In re
Winship, 397 U.S. 358, 363 (1970)). The prosecution’s affir-
mative obligation to produce sufficient evidence of guilt
enforces this rule, by guaranteeing the accused that the gov-
ernment will not convict him by appealing to a jury’s preju-
dices, or on the basis of its speculations or arbitrary whims.
It is in this light that we examine a conviction to determine
whether any “rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt” Id. at
319. In this case, the majority’s opinion renders without sub-
stance this fundamental protection against arbitrary convic-
tions or convictions based upon mere speculation.

The government charged Kenderick Begay with first-
degree murder for two simultaneous killings that he carried
out in the early morning of March 28, 2002. In order to con-
vict Begay of first-degree murder the government was
required to prove beyond a reasonable doubt not only that he
intended to kill one of the victims, J.T., and killed him delib-
erately, or with malice aforethought,1 but that Begay had pre-
meditated or planned that murder by reflecting on it for some
period of time with a cool mind.2 2 Wayne R. LaFave, Sub-
1
Malice aforethought, a concept distinct from premeditation, is an ele-
ment of both first- and second-degree murder under the federal murder
statute. See 18 U.S.C. § 1111(a).
2
The record strongly suggests that Begay intended to kill only J.T., who
was struck by six bullets, and not his second victim, O.C., who was killed
by a bullet that struck her only after passing through J.T. Under the federal
murder statute, any murder that results from a premeditated plan to kill is
first-degree murder, regardless of whether the victim was the intended tar-
get of the killer’s premeditated plan. 18 U.S.C. § 1111(a). Thus, though
Begay was convicted of two counts of first-degree murder, the relevant
question is whether he intended and premeditated J.T.’s death. See Maj.
Op. at 681 n.5.
688 UNITED STATES v. BEGAY
stantive Criminal Law § 14.7(a) (2d ed. 2009). It is undis-
puted that the prosecution presented none of the evidence
traditionally offered to prove premeditation. It presented no
evidence that Begay had planned J.T.’s killing,3 no evidence
that Begay had a motive to kill J.T., no evidence that Begay
had any prior relationship with the victim, no evidence
regarding Begay’s demeanor during the time of the killing,
and no evidence that the manner in which the killing was
committed was particularly calculated or methodical.4 See,
e.g., LaFave, supra, § 14.7(a) (listing “planning activity,”
“motive,” and “nature of the killing” as important types of cir-
cumstantial evidence for proving premeditation). Instead of
pointing to such traditional sources of proof of premeditation,
the majority relies on four items of evidence that it asserts
supported an inference of premeditation that could have estab-
lished that element beyond a reasonable doubt in the mind of
a rational finder of fact: (1) after whatever occurred between
Begay and J.T. during their first encounter at the window of
the car in which J.T. was sitting, Begay returned to his adjoin-
ing truck and retrieved his rifle; (2) Begay walked between

There is no dispute in this case that the government’s evidence was suf-
ficient to convict the defendant of second-degree murder, the essential ele-
ments of which are an unlawful killing, malice aforethought, and intent.
See United States v. Quintero, 21 F. 3d 885, 890 n.3 (9th Cir. 1994); 18
U.S.C. § 1111(a). The only question is whether the government presented
sufficient evidence to establish premeditation, which is the essential ele-
ment that distinguishes first- and second-degree murder. See Quintero, 21
F. 3d at 890 n.3.
3
If Begay’s retrieval of his rifle from his truck which was parked nearby
to O.C.’s car and his decision to approach the passenger’s side window
prior to shooting constitute “planning activity,” then it is difficult to imag-
ine any actions in an intentional and deliberate murder (second degree) to
which the term premeditated would not also apply.
4
To the contrary, the record reflects that, despite his practice and experi-
ence with the weapon used during the shooting, and despite the fact that
he was only three to four feet away from the victim when firing, Begay
missed a number of times. This suggests, if anything, agitation, excite-
ment, or frenzy, not the “cool mind” of premeditation.
 UNITED STATES v. BEGAY 689
his truck and the victims’ car; (3) Begay returned to the pas-
senger’s side of the victims’ car, presumably to get a clear
shot at J.T.; and (4) Begay told his sister to shut up after the
shooting and did not answer when another passenger asked
him what he had done.

Even this brief recitation makes clear that none of these
items of evidence on which the prosecution relies supports a
reasonable inference that Begay planned or premeditated
J.T.’s murder—that Begay not only had the opportunity to
deliberate the killing with a cool mind, but that he actually did
so. The evidence presented by the prosecution allows only for
speculation as to that crucial question. If, as the majority’s
opinion suggests, first-degree murder can be established
whenever a defendant simply has enough time to premeditate
or when he seeks a “clearer shot” at a victim or reacts angrily
or ignores a question after the shooting, then the difference
between first- and second-degree murder has effectively
ceased to exist. So, too, if premeditation can be shown by the
defendant’s retrieving from a few feet away a weapon that is
legitimately present at the site of the murder.5 It is difficult to
conceive of any intentional, deliberate murder with malice
aforethought that, based upon the majority’s opinion, would
5
The majority does not contend that any inference of premeditation may
be drawn from the fact that on the morning of the murder Begay had under
the front seat of his truck a rifle that he ordinarily used for peaceful pur-
poses. Loren Clark, the government’s only witness to the actual shooting,
testified that he recognized the weapon that was being fired “[b]ecause
[he] used to go shooting with [the defendant] and [they] shot this [particu-
lar] rifle a couple of times [before].” The mere fact that an individual has
in his possession a weapon does not support premeditation if the weapon
is one that he routinely carries for use in a legal or nonviolent fashion.
“That [the defendant] used a knife to accomplish the murder is not proba-
tive of premeditation and deliberation because he did not procure it specif-
ically for that purpose but rather carried it about with him as a matter of
course.” Austin v. United States, 382 F.2d 129, 139 (D.C. Cir. 1967), over-
ruled on other grounds by United States v. Foster, 783 F.2d 1082, 1085
(D.C. Cir. 1986). Nor, in the state of Montana, is possession in a vehicle
of a rifle that is used for shooting as a form of outdoor activity.
690 UNITED STATES v. BEGAY
not present one or more of the majority’s hallmarks of pre-
meditation. If the distinction between first- and second-degree
murder is to retain any substance, as it must given the sen-
tencing consequences that flow from it, it is incumbent on the
government not only to prove that the defendant may have
premeditated, but to establish that the defendant actually did
so, and to establish the element of premeditation beyond a
reasonable doubt. See LaFave, supra, § 14.7(a) (“There is no
presumption that the murder is first degree murder; for the
higher degree there must be some affirmative evidence to sup-
port a finding that the defendant in fact did premeditate and
deliberate.”); see also Austin, 382 F.2d at 133-36 (providing
historical review of the distinction between first- and second-
degree murder and emphasizing the need for “careful atten-
tion to the requirement of premeditation and deliberation”).
While the prosecution may present circumstantial evidence
that would allow a rational finder of fact to draw an inference
that a defendant actually premeditated a murder, no such evi-
dence has been presented by the prosecution in this case, as
a close examination of the four items of evidence relied on by
the majority clearly reveals.

The first item is that Begay retrieved his rifle from his
truck, which was parked besides or behind the car in which
J.T. was sitting, immediately after an interaction of some sort
between the two young men at the site of the killing. That evi-
dence does not warrant the inference that Begay planned or
otherwise reflected with a cool mind upon the commission of
the murder. The majority does not contend that premeditation
is shown by the fact that Begay was driving with his rifle in
the truck when he arrived at the location where the two vehi-
cles parked near each other—only by the fact that he retrieved
it from his truck after his initial encounter with J.T. The
majority asserts that Begay’s retrieving of the rifle evidenced
premeditation because premeditation can be proven by a
defendant’s “carrying the murder weapon to the scene.” Maj.
Op. at 680. But the notion that Begay’s truck constituted a
separate “scene” from which Begay obtained the weapon after
 UNITED STATES v. BEGAY 691
the interaction at the window of the car is wholly contrary to
the record. What little testimony there was on the location of
the two vehicles suggests that they were parked immediately
adjacent to one another: one prosecution witness testified that
the vehicles were parked “side by side” and answered affir-
matively when asked whether the “cars were parked relatively
close together”; another testified that Begay had parked his
truck “behind the [victims’] car.” Carrying a weapon to a
murder scene may in some circumstances support an infer-
ence of premeditation because it suggests that the defendant
“arrived on the scene already possessed of a calmly planned
and calculated intent to kill.” See Belton v. United States, 382
F.2d 150, 152 (D.C. Cir. 1967). But the logic supporting that
inference does not hold where, as here, the murder occurs at
a place directly adjacent to the location from which the defen-
dant retrieved the weapon. Obtaining the gun from a vehicle
already at the scene does not bear the hallmarks of calculation
and planning.

It is, of course, possible that, as the majority asserts, Begay
“formed a plan for committing the murders and then set about
carrying it out,” Maj. Op. at 680, and that he did so after
deliberating with a cool mind, while walking from one vehicle
to the other and back. Admittedly, he had the time to do so,
but without knowing what occurred between Begay and J.T.
in their encounter before Begay retrieved his rifle, and with-
out any evidence as to his demeanor, or how he appeared to
be acting when he obtained the weapon and returned to the
victims’ car, there is simply no basis other than speculation
for any rational trier of fact to so conclude beyond a reason-
able doubt. Begay may have had a “cool mind” and deliber-
ated on his actions as he walked to his truck to retrieve his
rifle and immediately returned to O.C.’s car, or he may have
been unable to reflect upon his actions in a calm state due to
anger or some other highly emotional reaction to some per-
ceived provocation, or he may, as the government’s chief eye-
witness testified, simply have been “pretty drunk” at the time
he retrieved the rifle from his truck. In short, the record is
692 UNITED STATES v. BEGAY
silent on the matter of whether Begay deliberated with a cool
mind before forming the intent to kill J.T. The mere fact that
Begay retrieved a weapon from a vehicle parked “side by
side” with the victims’ car allowed the jury only to speculate
impermissibly as to premeditation, and was without question
not evidence that would allow any reasonable juror to infer
premeditation beyond a reasonable doubt.

The majority next argues that premeditation can be inferred
from Loren Clark’s testimony that Begay walked between his
truck and O.C.’s car. This walking is significant, the majority
asserts, for two reasons. The first is that “there was no evi-
dence that [Begay] was agitated or rushed.” Maj. Op. at 680.
The majority’s belief that a conviction for premeditated mur-
der can be obtained whenever a defendant walks from one
point to another during a killing unless he presents evidence
that he was walking in an “agitated or rushed” manner could
be dismissed as unworthy of consideration were it not so
insidious: it is the prosecution, not the defense, that bears the
burden of proof in a criminal trial. If the government wished
to use Begay’s demeanor as a basis for convicting him of
first-degree murder, it was its burden to present evidence that
Begay was not agitated or disturbed when he walked from one
vehicle to another. At trial, the government did not avail itself
of its opportunity to ask its own witness, Clark, whether
Begay appeared “agitated or rushed,” nor did it present any
other evidence regarding Begay’s demeanor when he walked
from one vehicle to the other. The majority absolves the gov-
ernment of its burden of presenting such evidence, instead
inferring premeditation from the absence of evidence regard-
ing Begay’s demeanor. That there is “no evidence that Begay
was agitated or rushed,” Maj. Op. at 680, is exactly what it
sounds like—no evidence—no evidence that he was agitated
or that he exhibited a cool manner. The majority’s contrary
conclusion contradicts centuries-old principles of American
 UNITED STATES v. BEGAY 693
criminal justice, imposing upon murder defendants the burden
of proving they were not calm while committing a murder.6

The majority also asserts that Begay’s walking helps prove
premeditation because it shows “he had enough time to
become fully conscious of his intent to kill and to consider the
killing.” Maj. Op. at 680. But while “enough time” is a neces-
sary condition for establishing premeditation, it is not a suffi-
cient one. If “enough time” to premeditate were all that need
be shown to sustain a first-degree murder conviction, the gov-
ernment could meet the burden of establishing first-degree
murder in almost every murder case, and there would be little
reason to establish two categories of offenses, first- and
second-degree murder, other than to allow the prosecution to
decide as a matter of its own whim or bias which defendants
should be punished for “first-degree” murder and which for
“second-degree,” and in some instances which should be exe-
cuted and which should be imprisoned. In a country of laws,
6
That the government was aware that it had an obligation to establish
the manner in which Begay walked between the two vehicles is evident
from its opening brief on appeal, in which it falsely asserted that Clark tes-
tified that he “watched as [the] defendant calmly returned to his truck” to
retrieve the gun and “methodically retrieved the rifle.” Indeed, the govern-
ment asserted seven times in its brief that the record contains evidence that
Begay’s demeanor was “calm” and asserted seven times that the record
shows Begay was “methodical”; the government also asserted that the
record shows Begay behaved “casually” and “thoughtfully.” However, as
the government finally conceded under persistent questioning at oral argu-
ment during the three-judge panel, the record contains no support at all for
any of these characterizations. That the government felt it necessary to
rely on such unfounded assertions in order to attempt to demonstrate the
sufficiency of its premeditation “evidence” demonstrates that it was well
aware that the record did not contain sufficient evidence that Begay acted
coolly and deliberately to sustain a conviction for first-degree murder. Per-
haps the government would not have felt compelled to provide these false
characterizations of Begay’s behavior had it known that the majority
would fail to uphold the principle that the government bears the burden of
proof in a criminal trial, and would instead permit an inference that Begay
acted calmly and methodically wherever he failed to affirmatively prove
the opposite.
694 UNITED STATES v. BEGAY
however, the prosecution must do more than show in a case
such as this that some span of time transpired before a fatal
act occurred. The government must also introduce evidence,
circumstantial or otherwise, supporting the conclusion that the
defendant “did, in fact, reflect” upon the decision to commit
murder and then committed that act with a cool mind. United
States v. Shaw, 701 F.2d 367, 393 (5th Cir. 1983); see also
LaFave, supra, § 14.7(a) (“It is not enough that the defendant
is shown to have had time to premeditate and deliberate. One
must actually premeditate and deliberate . . . .”). That Begay
walked the short distance from his truck to O.C.’s car, and
back, and thus had time to premeditate, cannot establish that
he did premeditate. It therefore cannot logically serve as “suf-
ficient evidence” for a finding of premeditation. See, e.g.,
Hemphill v. United States, 402 F.2d 187, 189 (D.C. Cir. 1968)
(“But the jury may not find premeditation solely from the fact
that defendant had time to premeditate.”); State v. Garcia, 837
P.2d 862, 868 (N.M. 1992) (“We do not dispute the State’s
contention that Garcia had sufficient time to form a deliberate
intention to kill. . . . Garcia certainly could have formed a
deliberate intent during the ten to fifteen minutes while going
from the back yard to the front yard, but nothing in the evi-
dence enabled the jury to infer that this is when he formed the
requisite deliberate intent, or that he ever formed such an
intent.”); see also United States v. Catalan-Roman, 585 F.3d
453, 467 (1st Cir. 2009) (“With respect to premeditation, ‘it
is the fact of deliberation, of second thought[,] that is impor-
tant.’ ”) (citation omitted).

The third item of evidence that the majority contends sup-
ports a finding of premeditation is Clark’s testimony that
Begay “went to the passenger’s side, where [his intended vic-
tim] J.T. was sitting” prior to shooting him. This, according
to the majority, supports an inference “that [Begay] did so to
get a clearer shot at J.T.” Indeed it may, but the fact that
Begay wanted a clear shot at J.T. simply establishes that
Begay intended to kill J.T and that he did so deliberately; not
that he had reflected or premeditated upon the killing with a
 UNITED STATES v. BEGAY 695
cool mind. Intent and premeditation are, as the majority
acknowledges, separate and distinct elements of first-degree
murder. Both are required. Intent alone will not suffice.7 See
United States v. Quintero, 21 F.3d 885, 890 n.3 (9th Cir.
1994); United States v. Free, 841 F.2d 321, 325 (9th Cir.
1988) (distinguishing between “malice aforethought” and pre-
meditation as essential elements of first-degree murder); see
also LaFave, supra, § 14.7(a) (“[T]he defendant must not only
intend to kill but in addition he must premeditate the killing
and deliberate about it.”). While premeditation may be
inferred when “the manner of killing was so particular and
exacting that the defendant must have intentionally killed
according to a preconceived design,” LaFave, supra,
§ 14.7(a), the majority does not contend (nor could it) that this
crime was notably particular or exact. Nor is it otherwise evi-
dent how one could reasonably conclude that Begay had pre-
meditated this murder from the mere fact that he sought a
clear shot at his victim. That Begay sought a clear line of
sight of J.T. demonstrates that he intended to kill J.T. But if
there is any “chain of logic,” Maj. Op. at 682, that connects
this evidence of intent to an inference of premeditation, it is
neither discernible from the facts of this case nor from the
majority’s opinion. Nor, of course, is any such “chain of
logic” discernible with respect to any of the other three items
that the majority contends a reasonable fact-finder could con-
clude would support a finding of premeditation beyond a rea-
sonable doubt. Here, the “chain of logic” is simply a legal
phrase that the majority employs to justify a conclusion that
it has reached, without any explanation of what it means or
why it is applicable to the present case.8
7
Indeed, confusing premeditation with intent is exactly the mistake that
the majority acknowledges the prosecutor made in his closing statement.
See Maj. Op. at 685 (“Intent is not the same thing as premeditation.”).
That “mistake,” however, was far more important than the majority
acknowledges. It may well have caused the jury to return a verdict of first-
degree instead of second-degree murder.
8
The majority’s is not an unusual method of decision making or opinion
writing. There are, in fact, many such legal phrases that judges simply
696 UNITED STATES v. BEGAY
Fourth, the majority argues that the jury could have permis-
sibly inferred that Begay acted with a cool mind from two
related facts: first, that “Begay did not answer when, after the
shooting, Clark asked what he had done,” and second, that
Begay told his sister to shut up after she asked him “What did
you do?” Maj. Op. at 674. This argument starkly illustrates
the insidiousness of the majority’s cavalier willingness to find
an “inference” of premeditation lurking behind every fact per-
taining to this crime. Begay can be convicted of premeditated
murder if, when asked what he has done, he responds force-
fully; so, too, can he be convicted if he remains silent. Under
this logic, any action Begay took subsequent to the murders
could support a finding of premeditation: if he showed fear,
an inference could be drawn; so too, if he demonstrated a lack
of emotion. This approach not only beggars reason, but it
once again shifts the burden of proof: there is no evidence
regarding Begay’s demeanor when, moments apart, he told
his sister to shut up and failed to respond to Clark; Begay may
have been acting coolly, been in a state of shock, or lost his
composure; the record provides absolutely no indication one
way or the other. The majority interprets the record’s absence
of information as to Begay’s reaction to the shooting as damn-
ing to Begay, rather than to the government, which, it once
again appears to forget, bears the burden of presenting evi-
dence that affirmatively proves premeditation. Given the
absence of such evidence, only through pure speculation
could the jury have found Begay to have been “cool” and
deliberative after the murder, rather than impulsive, or in a
state of shock, or an individual who had lost control over his
emotions; and certainly no rational trier of fact could have
looked at the flimsy facts relating to his responses and non-
responses and found that they, along with the other dubious
items of evidence, established beyond a reasonable doubt that
Begay premeditated J.T.’s killing.

append to the statement of the facts before them in order to “explain” their
decisions. This technique is not infrequently employed when judges pur-
port to be evaluating what effect the evidence that a jury did not hear
might have had upon its members had they heard that evidence.
 UNITED STATES v. BEGAY 697
This case ultimately comes down to the simple question of
whether Begay’s retrieving a gun from his truck is sufficient
evidence to establish beyond a reasonable doubt that he pre-
meditated J.T.’s killing. That he walked a brief distance from
vehicle to vehicle for this purpose might show that he had suf-
ficient time to deliberate coolly on the subject, but without
any evidence regarding demeanor or manner, it cannot show
that he in fact did so. The evidence that he tried to get a clean
shot at J.T. rather than a poor one and his answer or lack of
answer to a question about what he had just done have no
arguable evidentiary value, circumstantial or otherwise, what-
soever. Nor, in the end, does the fact that Begay retrieved the
gun from his truck. What the evidence about retrieving the
gun could demonstrate to any rational trier of fact is at most
that Begay might or might not have premeditated J.T.’s mur-
der. It could not show that he deliberated with a cool mind or
that he used the opportunity to develop a plan. Certainly there
is nothing that would allow a juror to infer that he premedi-
tated beyond a reasonable doubt.

The four items of evidence, whether viewed individually or
collectively, are manifestly insufficient to support a convic-
tion of murder in the first degree and would be insufficient
even were there no countervailing evidence in the record. But
there is indeed countervailing evidence that is far more rele-
vant to the question of premeditation than whether, for exam-
ple, Begay walked the short distance between the car and the
truck or told his sister to shut up after the shooting or failed
to answer Clark’s question. The majority does not even con-
sider the fact that the government’s principal witness, who
provided the bulk of the eyewitness testimony upon which the
prosecution relied, and whom the jury obviously deemed
credible, also testified that Begay was “pretty drunk” at the
time of the shooting, a fact that strongly suggests the absence
of premeditation. See in re Ellis, 356 F.3d 1198, 1219 (9th
Cir. 2004) (en banc) (noting distinction between “whether
defendant committed the murder with deliberation and pre-
meditation, [or] as a result of an impulse[,] or because of
698 UNITED STATES v. BEGAY
alcohol- or drug-induced diminished capacity”); Kane v.
United States, 399 F.2d 730, 736 (9th Cir. 1968) (observing
that intoxication can be “exculpatory” in a first-degree murder
prosecution). By the same token, the government’s witnesses,
who spent the night in question with Begay, reported that they
reacted with shock after he fired into the victims’ vehicle,
suggesting that neither Begay’s demeanor nor his words or
conduct on that night were those of an individual who had
been planning or otherwise premeditating a murder.

The fundamental question here is whether based on the four
items of evidence on which the majority relies, “any rational
trier of facts [could] find guilt beyond a reasonable doubt.”
Jackson, 443 U.S. at 313. Whether any inference drawn from
the evidence is a legitimate inference, or rather simple specu-
lation, must be examined with attention to this fundamental
principle of our criminal justice system. The items relied on
by the majority are all, of course, consistent with the possibil-
ity that Begay premeditated J.T.’s murder, or, at the least,
they are not inconsistent with that possibility. However, nei-
ther individually nor collectively do these items justify the
inference that the element of premeditation has been
established—that Begay actually planned or premeditated
J.T.’s killing—let alone established that inference beyond a
reasonable doubt.

The absence of evidence of premeditation is especially
troubling in this case because, as the majority acknowledges,
the government provided the jury with an erroneous statement
of the law of premeditation during its closing argument, tell-
ing it that “[Begay] intended to kill the occupants of the vehi-
cle. That’s premeditation.” Maj. Op. at 685. In light of this
wholly erroneous statement of the law on the critical issue
before the jury, and other similar erroneous statements the
prosecution made during its closing argument, the jury may
perhaps be excused for convicting Begay of first-degree mur-
der despite wholly insufficient evidence as to premeditation.
The majority, however, cannot be similarly excused for unrea-
 UNITED STATES v. BEGAY 699
sonably identifying as warranting an “inference” of premedi-
tation the four items of the government’s sparse factual
showing, on which it relies. In sum, there is simply no evi-
dence that Begay reflected upon, planned, or otherwise pre-
meditated J.T.’s killing, and certainly no evidence from which
a rational fact-finder could infer the necessary element of
first-degree murder beyond a reasonable doubt. Surely a con-
viction for second-degree murder—murder with malice
aforethought—should have been enough.

For all the above reasons, and more, I dissent.