United States v. Begay

FILED
United States Court of Appeals
Tenth Circuit

December 19, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 12-2202
(D.C. No. 1:11-CR-00900-BB-1)
STANTON BEGAY, (D.N.M.)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before GORSUCH and BALDOCK, Circuit Judges, and JACKSON, District
Judge. **

A jury convicted Defendant Stanton Begay of kidnapping and aggravated

sexual abuse of a child in violation of 18 U.S.C. §§ 1201(a)(2) and 2241(c). The

Court will refer to this child as “AP.” The district court sentenced Defendant to 50

years’ imprisonment for each offense, to be served concurrently. Defendant now

*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R.App. P. 34(a)(2) and 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument. Furthermore, 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order and judgment is not binding precedent except under the doctrines of law of the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.
**
Honorable R. Brooke Jackson, United States District Judge for the District
of Colorado, sitting by designation.
challenges his conviction, arguing the district court erroneously: (1) indicated to the

jury that AP was credible; (2) included an “unbalanced” jury instruction undermining

Defendant’s theory that the prosecution coached AP; and (3) allowed the prosecution

to appeal to broader societal issues and sympathies in its closing argument.

Defendant contends these errors, taken individually or cumulatively, require reversal.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court.

I.

This case concerns a late 2010 encounter between Defendant and AP, a

paraplegic girl who was 15 years old at the time. In the indictment, the grand jury

charged that Defendant, in violation of 18 U.S.C. § 1201(a)(2), “did willfully and

unlawfully kidnap, abduct, seize, confine and carry away [AP], and did hold her to

commit an aggravated sexual assault upon her.” The grand jury also charged

Defendant with violating 18 U.S.C. § 2241(c) “by using threats of serious bodily

injury or force [to] unlawfully and knowingly engage in and attempt to engage in

sexual acts with [AP] . . . who had attained the age of twelve (12) but had not then

attained the age of sixteen (16) years, and who is at least four (4) years younger than

the defendant.” The sexual acts, the grand jury charged, “consisted of contact, by

penetration, however slight, of [AP’s] vulva by the penis of the defendant and

penetration of [AP]’s mouth by the penis of the defendant.” See 18 U.S.C. § 2246(2)

(defining “sexual act”). Defendant and AP are Navajo, and the incident occurred on

the Navajo Nation in Prewitt, New Mexico. Thus, the charges were also brought

2
under the Indian Major Crimes Act, which requires federal prosecution of any Indian

who, within Indian country, kidnaps any person or assaults a minor under 16 years

of age. See 18 U.S.C. § 1153(a). At the end of a four-day trial, the jury returned

guilty verdicts on both counts. After sentencing, Defendant timely appealed.

II.

Defendant’s first argument concerns statements the district court made to AP

during her testimony at trial. While on the stand, AP answered a number of the

prosecutor’s specific questions about the encounter by saying, “I don’t remember.”

At one point, after AP did not answer a question verbally, the prosecutor told AP she

needed “to answer the question one way or the other, or let us know that you don’t

remember.” Moments later, the district court interjected:

[AP], this is probably scary for you. You’ve got a lot of strangers
looking at you, and it’s a formal setting. Why don’t you just try to tell
us what you remember? Could you do that, do you think? Tell us what
you remember about that afternoon. And if we need to ask questions,
maybe, or whatever, we’ll go back and ask some other questions. But
just tell us what you remember.

In response to a later objection that the prosecutor was leading, the court stated:

Try not to suggest it. I don’t want—just tell us what happened, [AP],
what happened that day. I know it’s difficult perhaps to describe
something that’s intimate. But just tell us what happened. And then
maybe your lawyer will go back and ask questions if she needs to.
What do you remember about that?

Defendant did not contemporaneously object to these comments or to the court’s

subsequent variations of the statement “just tell us what happened.” At a bench

3
conference prior to a break in proceedings, however, his counsel said:

Your Honor, I believe some of the comments the Court made could be
construed as to believe that my client is guilty, like you said it’s hard
to talk about something that’s intimate to [AP]. I ask that you regive
the instruction that nothing you said or do is meant to express your
opinion as to what a verdict should be, as well as you can add on the
“Don’t discuss it until the evidence is in.” I will make a motion for a
mistrial. But on the off chance the Court denies that, I would request
the instruction as the alternative, Your Honor.

Immediately after the bench conference, the court instructed the jury not to “reach

any conclusions until you’ve heard all of the evidence,” and that “nothing that I may

say or do during the course of the trial is intended by me to indicate, or should be

taken by you to indicate, what your verdict should be.” Defendant renewed his

motion for a mistrial after the break; the court denied it.

Defendant argues the district court should have granted a mistrial because the

court conveyed to the jury belief in AP’s credibility. “We review a district court’s

refusal to grant a mistrial for abuse of discretion.” United States v. Martinez, 455

F.3d 1127, 1129 (10th Cir. 2006) (quoting United States v. Stiger, 413 F.3d 1185,

1194 (10th Cir. 2005)). We review a court’s comments on the evidence for an abuse

of discretion, as well. See Massey v. United States, 358 F.2d 782, 787 (10th Cir.

1966). Defendant separates this argument into four subparts.

First, Defendant asserts, the court put itself “squarely in the government’s

camp” by urging AP to testify when she was having “great difficulty” talking about

the incident. We disagree. AP’s testimony fills up nearly fifty pages of the record

4
before the court’s first disputed intervention, indicating she was not reluctant to

testify, generally speaking. She did, however, have difficulty answering very

specific questions about the encounter at the core of the case. After AP answered “I

don’t remember” to several pinpoint queries, the court intervened. The transcript

considered as a whole indicates the court was not so much concerned with getting

AP to testify—again, she gave no indication she was not a willing witness—as it was

with finding the most efficient way for her to do so. The court made this plain

during a short recess before it intervened when it told the prosecution, “And you

might—just as a suggestion, just ask her what she remembers about that day. Things

might go a little more quickly. She doesn’t seem to be able to focus in on the

questions.” (emphasis added). In other words, the court thought asking AP open-

ended questions about the encounter would be more efficient than asking hyper-

specific questions. When the prosecution continued to ask specific questions,

producing the same results, the court stepped in. The court acted well within its

discretion. As we have stated, under the Canons of Judicial Ethics federal judges

have an “obligation to be industrious, prompt, and efficient” in the dispatch of their

business. United States v. Baer, 575 F.2d 1295, 1301 (10th Cir. 1978).

Furthermore, the court’s decision to intervene for efficiency did not

improperly convey to the jury the court was “in the government’s camp.” For all the

court and the jury knew at the time, AP might have proceeded to exonerate

Defendant. Finally, even if the court’s statements could be interpreted as “urging”

5
or “encouraging” AP to testify, Defendant provides no case law mandating reversal.

And for good reason. The Supreme Court has stated that the “policy of the law must

be to encourage testimony.” Yates v. United States, 355 U.S. 66, 73 (1957).

On a similar note, Defendant contends the district court’s repeated exhorting

of AP to “tell us what happened” or “tell us what you remember” improperly

informed the jury the court thought AP was telling the truth and undermined

Defendant’s argument that AP was lying. We again disagree. The presiding judge

at a trial may comment on, analyze, and dissect evidence. United States v. Nickl,

427 F.3d 1286, 1293 (10th Cir. 2005). The judge may not, however, distort or add

to the evidence, nor is he allowed to “assume the role of a witness” or “comment

directly on the ultimate factual issue to be decided by the jury” Id. (citations

omitted). A trial judge “should not become an advocate and argue the case for either

side.” United States v. Chanthadara, 230 F.3d 1237, 1249 (10th Cir. 2000) (citation

omitted). Here, the district court did not become an advocate for the prosecution by

merely asking AP to “tell us what you remember” or “what happened,” as these

phrases are merely different ways of saying “tell us the truth.” In no way could

anyone construe the court as commenting directly on the underlying veracity of her

testimony, much less the ultimate factual issue in the case. After all, if AP

proceeded to lie, she most certainly was not testifying to “what happened” or “what

she remembered,” as the district court requested. Indeed, in his very own brief

Defendant uses a nearly identical phrase as a synonym for telling the truth. See

6
Def’s Op. Br. at 29 (“[AP] was having a hard time [testifying] because she was

trying to remember the story she told to the forensic interviewer, not what really

happened.” (emphasis added)).

Furthermore, Defendant provides no case law indicating such innocuous

language from a judge is improper, much less error deserving of a mistrial. To the

contrary, our decision in United States v. Jackson, 482 F.2d 1167 (10th Cir. 1973),

counsels the opposite. In Jackson the district court actually stated the witness was

“apparently . . . trying to tell the truth.” Id. at 1175. Despite this open declaration

of credibility, we concluded if “any unfairness resulted from the comment, such

unfairness was sufficiently removed by the trial court’s” immediate and unequivocal

instruction to “the jury that they were the sole judges of the witnesses’ credibility

and thus they were not bound by the court’s comment.” Id. at 1175–76. If the

statement in Jackson did not merit a new trial, the statements here most certainly do

not, especially since the court issued a similar cautionary instruction to the jury at

Defendant’s request. 1

1
While he does not mention Jackson, Defendant does cite a number of cases
in support of his argument for a mistrial. These cases are distinguishable. See, e.g.,
Chanthadara, 230 F.3d at 1251–54 (trial court made a “sweeping denunciation of Mr.
Chanthadara’s defense”); United States v. Blanchard, 542 F.3d 1133, 1144–54 (7th
Cir. 2008) (trial court allowed prosecution to introduce the court’s own prior
“judicial testimony” denouncing witness as “deceptive” and “less than credible”);
United States v. Filani, 74 F.3d 378, 385–87 (2d Cir. 1996) (trial court
“inappropriately intruded as an advocate during trial” by substantively challenging
defendant’s testimony over a dozen times and by interfering “repeatedly with the
(continued...)

7
 Defendant next asserts the district court mentioned in open court a number of

explanations for AP’s reluctance to testify, all of which communicated to the jury the

court’s belief in AP and conflicted with Defendant’s theory that AP was lying—e.g.

“this is probably scary”; “a lot of strangers [are] looking at you”; “it’s a formal

setting”; “it’s difficult perhaps to describe something that’s intimate.” Yet again,

we disagree, for the same reasons discussed above. That is, AP did not show a

general reluctance to testify, and none of the court’s statements conveyed a belief in

AP’s credibility. For example, testifying in court can be a difficult and scary

experience regardless of whether one is telling the truth. Indeed, a strong argument

can be made that taking the stand intending to fabricate an entire story is much more

difficult and scary. As to the district court’s insinuation that something “intimate”

occurred, an expert testified at trial that sperm found on the t-shirt worn by AP

during the encounter matched Defendant’s DNA. The probability that the sperm

came from someone other than Defendant, the expert testified, was 1 in 1.2 trillion.

Defendant also told the FBI he had touched AP’s pubic hair, a confession played in

court. As such, any argument that nothing intimate at all had occurred is absurd, and

the court was well within its discretion to use this term. 2 Moreover, the district

1
(...continued)
defense counsel’s cross-examination of witnesses”).
2
At trial, defense counsel argued the court’s use of “intimate” was not
appropriate because the jury did not have to accept Defendant’s FBI admission as
true, given the questionable circumstances of the interrogation. Even so, this in no
(continued...)

8
court’s use of the term in no way invalidated Defendant’s primary defense, which

was that he used no force and issued no threats.

Finally, Defendant argues the district court’s ameliorating instruction to the

jury did not alleviate the prejudice because the court’s earlier interventions were just

“too powerful.” The district court, Defendant contends, pronounced “on the

credibility of a key government witness,” placing a “very heavy fist [] on the scales

of justice, tipping the balance firmly in the government’s favor.” Def’s Op. Br. at

38 (quoting United States v. Blanchard, 542 F.3d 1133, 1151–52 (7th Cir. 2008)).

As we stated above, the court’s contested statements did no such thing; indeed, they

were not errors at all. Defendant’s first argument fails in its entirety.

III.

Defendant’s second argument concerns a jury instruction the district court

gave in relation to AP’s testimony. At trial, defense counsel attempted to

demonstrate that the prosecution coached AP. While AP admitted on cross-

examination to meeting with the prosecution four or five times, the only thing she

testified to being told was that it was okay to cry if she felt like crying. On re-direct,

she testified no one told her specifically what to say or what to emphasize, other than

2
(...continued)
way addresses the compelling DNA evidence, which Defendant himself
acknowledges “strongly supports the notion that [AP] and Mr. Begay engaged in
sexual conduct.” Def’s Op. Br. at 33; see also id. at 46 (“[T]he DNA evidence
strongly indicated [AP] and Mr. Begay engaged in sexual conduct.”).

9
that she needed “[t]o tell the truth.” In its closing argument, defense counsel

provided roughly three bases for the assertion that AP had been coached: first, AP

could not have on her own come up with several phrases she used—for example,

“That was the day that changed my life”; second, AP’s numerous pre-trial meetings

with the prosecution indicated she “knew what the questions were going to be”;

third, the prosecutor’s leading questions and refreshing of AP’s memory were just

an extension of prior coaching.

Prior to closing arguments, the district court gave the jury the following

instruction, which the prosecution had proposed: “An attorney has the right to

interview a witness for the purpose of learning what testimony the witness will give.

The fact that the witness has talked to an attorney does not reflect adversely on the

truth of such testimony.” Defense counsel objected in writing that this instruction

was ambiguous and an “incorrect statement of law” because “talking to or refusing

to talk to an attorney can show the bias of a witness.” He later added at a bench

conference that the instruction was not a pattern Tenth Circuit instruction, it was an

incomplete statement of the law, and the gist of the instruction was contained in the

other instructions.

“We review de novo whether a district court’s jury instructions correctly stated

the governing law.” Pratt v. Petelin, 733 F.3d 1006, 1009 (10th Cir. 2013). On

appeal, however, Defendant does not argue the instruction was an incorrect statement

of law. Rather, he contends the instruction was not “balanced”; that is, it embraced

10
the prosecution’s narrative over the defense theory that the prosecution coached AP.

We review this type of argument—that which contests “a district court’s decision to

give a particular jury instruction”—for abuse of discretion. Ryan Dev. Co. v. Ind.

Lumbermens Mut. Ins. Co., 711 F.3d 1165, 1171 (10th Cir. 2013) (citation omitted).

When a party fails to object to an instruction, however, or when it objects on a

different basis than argued on appeal, we review for plain error only. See Fed. R.

Crim. P. 30(d); United States v. Knight, 659 F.3d 1285, 1287 (10th Cir. 2011).

Here, the Government argues for plain error review because Defendant did not

object at trial to the instruction’s lack of balance. In reply, Defendant contends his

trial objections center around the same argument he is making now, which is that the

instruction improperly “eviscerated his contention that the coaching of [AP] called

[her] credibility into question.” This is a thorny question. On the one hand, the

Government is correct that Defendant never mentioned a lack of balance before the

district court. Neither did Defendant propose an additional instruction or language

to add any balance. On the other hand, Defendant did argue that the instruction was

an “incomplete statement of law,” which in this context seems to convey roughly the

same idea as unbalanced—that is, the instruction did not sufficiently explain the area

of law, disfavoring one side in particular. Regardless, we need not decide this issue

because, giving Defendant the benefit of the doubt, the district court’s inclusion of

the instruction was not even an abuse of discretion.

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

11
capricious, whimsical, or manifestly unreasonable.’” United States v. Combs, 267

F.3d 1167, 1176 (10th Cir. 2001) (citation omitted). Defendant in essence asks us

to find the inclusion of a correct statement of law to be arbitrary, capricious,

whimsical, or manifestly unreasonable. Such a request leaves Defendant with quite

a hill to climb. In an attempt to summit this lofty peak, however, Defendant cites

only one case explicitly dealing with “unbalanced” jury instructions. 3 See United

States v. Dove, 916 F.2d 41 (2d Cir. 1990). As Dove does not come from the Tenth

Circuit or the Supreme Court, the district court probably cannot have abused its

discretion by not following it. Regardless, Dove is easily distinguishable.

In Dove, the Second Circuit reversed a district court because it issued two

unbalanced instructions in a bank robbery trial. The first instruction involved

identifying the defendant. At trial, two witnesses to the robbery testified the robber

was not in the courtroom, even though they had both tentatively identified the

defendant in a photo lineup. 4 The court then instructed the jury as follows:

The government has the burden of proving [the defendant’s] identity as
the perpetrator beyond a reasonable doubt. In this connection, it is not
essential that a witness be able to identify a defendant in open Court or
be free from doubt as to the correctness of her identification of the

3
Defendant cites several other cases, but none of them explicitly discuss
unbalanced instructions or are otherwise on point. For example, the Fifth Circuit in
United States v. McCracken, 488 F.2d 406, 414 (5th Cir. 1974), dealt with
“repetitious” instructions, not unbalanced ones. Moreover, the Fifth Circuit
eventually upheld the disputed instructions, which does not help Defendant here.
4
Interestingly, one witness even “pointed to a member of the jury as the
individual who looked most like the robber.” Id. at 43.

12
 defendant by other means. However, if you are not convinced beyond
a reasonable doubt that the defendant was the person who committed
the crime, you must find him not guilty.

Id. at 44. The Second Circuit held this instruction “was unbalanced because it

instructed the jury as to how the witnesses’ inability to identify the defendant in the

courtroom might bear on guilt without indicating how this rather significant evidence

might bear on innocence.” Id. at 45. The second instruction involved direct and

circumstantial evidence. The court erred in explaining the difference between the

two, the Second Circuit held, by using a hypothetical that assumed guilt and “merely

instructed how to look for evidence of that guilt.” Id. at 46.

Dove is first distinguishable because the defendant in Dove asked for (and was

denied) additional language that would balance the first disputed instruction, id. at

44, whereas Defendant Begay did not propose any additional language. Second, and

most significantly, the Second Circuit in Dove emphasized multiple times its holding

was based on the “unusual” facts of the case—facts that are not present here. For

example, the Second Circuit noted that “[v]irtually all of the circumstantial evidence

pointed towards the possibility of innocence.” Id. at 46. And a “criminal

defendant,” the Second Circuit held, “is entitled to instructions relating to his theory

of defense, for which there is some foundation in the proof . . . .” Id. at 47 (emphasis

added); see also Pratt, 733 F.3d at 1009 (“[A] party is entitled to an instruction on

his theory of the case if it is supported by competent evidence.”). Here, Defendant

provided only speculation to support his assertion that the prosecution coached AP.

13
AP, on the other hand, testified the prosecution never told her anything specific to

say in court; rather, she was instructed again and again to “tell the truth.” Thus, the

court would not have been required to balance this instruction, even under Dove.5

The instruction was undisputedly a correct statement of law and the court’s decision

to include it was not arbitrary, capricious, whimsical, or manifestly unreasonable.

IV.

Defendant’s third argument on appeal concerns statements a prosecutor made

during the rebuttal portion of closing arguments. The Assistant United States

Attorney (AUSA) began her opening statement by saying, “They walk among us,

people like Stanton Begay, people who take. They take from the vulnerable; they

take from the weak. . . . They take without remorse.” Defense counsel objected that

this was not a factual opening statement, and the court sustained the objection,

instructing the AUSA to limit comments to the evidence. Despite this, the same

AUSA began her closing rebuttal by saying, “When we began this trial, I told you

this case was about people who walk among us, who take from others, who take from

the vulnerable, who take from the weak, and who take without remorse.” Defense

counsel again objected, arguing this was “a play to sympathy and prejudice . . . to

5
Furthermore, we note the instruction did not foreclose Defendant from
arguing that AP was coached. All the instruction said was that the “fact that the
witness has talked to an attorney does not reflect adversely on the truth of such
testimony.” (emphasis added). Nothing prohibited Defendant from asserting in
closing that AP had done more than merely “talk” to the prosecution and that the
instruction did not require the jury to find no coaching had occurred.

14
societal woes, not to the evidence of this case.” Without explanation, the court

overruled the objection. Defendant did not move for a mistrial.

Defendant argues the “people who walk among us” rebuttal remarks

constituted prosecutorial misconduct. When a defendant objects to a prosecutor’s

remark but does not move for a mistrial, and when the district court overrules the

objection—as occurred here—our standard of review for prosecutorial misconduct

is de novo. See United States v. Taylor, 514 F.3d 1092, 1095–97 (10th Cir. 2008)

(citing United States v. Pulido-Jacobo, 377 F.3d 1124, 1134 (10th Cir. 2004)). De

novo review in this context consists of a two-step process. Pulido-Jacobo, 377 F.3d

at 1134. First, we determine whether the prosecutor acted improperly; second, we

determine whether the error was “harmless beyond a reasonable doubt.” Id. (citation

omitted); see also United States v. Ramirez, 63 F.3d 937, 944 (10th Cir. 1995).

We assume without deciding that the AUSA’s rebuttal statements were

improper. We hold, however, that they were harmless beyond a reasonable doubt.

In United States v. Rogers, 556 F.3d 1130 (10th Cir. 2009), a prosecutor commented

during closing argument on the “overall damage to the community inflicted by the

drugs and prostitution at the hotel” where police apprehended the defendant. Id. at

1143. Prosecutors, we stated, “are not permitted to incite the passions of the jury by

suggesting they can act as the ‘community conscience’ to society’s problems.” Id.

Assuming the prosecutor’s narrative was improper, however, we found the error was

harmless beyond a reasonable doubt for the following reasons:

15
 First, as we have already discussed, the Government presented a very
strong case against Defendant. Second, the large majority of the
prosecutor’s closing argument is supported in the record . . . . Third,
the jury was properly instructed that closing arguments are not
evidence. Finally, the prosecutor’s narrative was a small piece of a
lengthy closing argument, and was simply not egregious enough ‘to
influence the jury to convict on grounds other than the evidence
presented.’

Id. (internal citations omitted).

Rogers controls here. First, the prosecution “presented a very strong case

against Defendant.” AP testified Defendant trapped her and forced himself on her

sexually. Sperm matching Defendant’s DNA was found on AP’s shirt. A subsequent

medical exam revealed bruises on AP’s left jaw and right neck. Three out of four

vaginal swabs from AP tested positive for blood. Defendant initially lied to the FBI

about sexual contact with AP; he later admitted he had touched AP’s pubic hair.

Theresa Vigil, a nurse, testified that AP called her the night of the incident, upset,

scared, and crying, and told Vigil that Defendant “made me suck his dick.” The

Court could go on. 6 Second, Defendant objects to nothing else in the closing

argument, nor does anything appear objectionable. And while the district court

inexplicably did not sustain Defendant’s only objection, the AUSA still immediately

moved on and stuck to the facts of the case for the remainder of her rebuttal. She

6
This is not to say Defendant’s defense was weak. Rather, Defendant
vociferously argued, among other things, that AP was not credible and that a forcible
rape occurring in a small trailer home without alerting multiple persons present was
implausible. This does not change, however, the compelling nature of the evidence
the prosecution put forth.

16
said no more about the “people who walk among us” or anything remotely similar,

nor did the prosecution discuss broader societal issues in its primary closing

argument. Finally, the district court properly instructed the jury beforehand “that

closing arguments are not evidence.” We will not overturn a jury’s verdict based on

this error, which was harmless beyond a reasonable doubt. 7

AFFIRMED.
Entered for the Court,

Bobby R. Baldock
United States Circuit Judge

7
Defendant also argues we should reverse his conviction because of
cumulative error. For cumulative error, we ask whether the “cumulative effect of
two or more individually harmless errors has the potential to prejudice a defendant
to the same extent as a single reversible error.” United States v. Rosario Fuentez,
231 F.3d 700, 709 (10th Cir. 2000) (citation omitted). Here, the district court
committed only one error, at most. Thus, cumulative error is an impossibility.

17