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, a.k.a. Kendrick
Begay, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding

Argued and Submitted
January 14, 2009—San Francisco, California

Filed June 1, 2009

Before: Myron H. Bright,* Procter Hug, Jr., and
Stephen Reinhardt, Circuit Judges.

Opinion by Judge Reinhardt;
Concurrence by Judge Bright

*The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.

6487
 UNITED STATES v. BEGAY 6491
COUNSEL

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

Ann Birmingham Scheel, Assistant United States Attorney,
Phoenix, Arizona, for the plaintiff-appellee.

OPINION

REINHARDT, Circuit Judge:

Defendant-appellant Kenderick Begay appeals his convic-
tions of two first-degree murders in violation of 18 U.S.C.
§§ 1153, 1111 and of 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, when taken in the light most favorable to
the government, fails to establish that he committed a “pre-
meditated killing.” 18 U.S.C. § 1111. Because we agree that
the government failed to introduce evidence sufficient to
show premeditation — an essential element of first-degree
murder — we reverse the denial of his motion for judgment
of acquittal on counts one and two and thus his first-degree
murder convictions. We affirm, however, his two convictions
for using a firearm during a crime of violence and his sen-
tence of thirty-five years’ imprisonment on those two counts.

I. BACKGROUND

In the early morning hours of March 28, 2002, Kenderick
Begay1 drove his truck through the Navajo Indian Reservation
1
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.
6492 UNITED STATES v. BEGAY
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.
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, presumably
signaling the other car to stop. 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.,2 were in the car; O.C. was in the driv-
er’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, probably exchanging words with the car’s occupants,
Begay walked back to his truck. He reached under the driver’s
seat, pulled out a .30 caliber rifle, and walked back to the pas-
senger’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, hit-
ting 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.
2
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 6493
Begay, Mecheryl, and Clark got back into the truck and
drove away. Lee remained behind. Up until the shooting, she
was 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
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-
6494 UNITED STATES v. BEGAY
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
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 in order to urinate. Because
he was standing at the rear of Begay’s truck while Begay was
standing alongside 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 testi-
fied 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 gun-
shots, 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 response.
Rather, Begay told him to get back into the truck, which he
did. Begay dropped Clark off at his house immediately fol-
lowing the murders and told him to keep quiet. The next
morning, Begay told Clark to say nothing to the FBI and “to
watch himself.” At various times following the murders,
Begay told Clark to “watch his back.”

A jury convicted Begay of two counts of first-degree mur-
der and two counts of using a firearm during a crime of vio-
 UNITED STATES v. BEGAY 6495
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.

II. PREMEDITATION

[1] Begay’s principal argument on appeal from the first-
degree murder convictions is that the government failed to
produce sufficient evidence that the murders constituted “pre-
meditated killing[s].” 18 U.S.C. § 1111(a). We review
sufficiency-of-the-evidence claims de novo. United States v.
Duran, 189 F.3d 1071, 1078 (9th Cir. 1999). A conviction is
supported by sufficient evidence if, “after viewing the evi-
dence in the light most favorable to the prosecution, any ratio-
nal trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979) (emphasis omitted). However, “mere
suspicion or speculation cannot be the basis for” a jury’s con-
clusion that an essential element has been satisfied. United
States v. Free, 841 F.2d 321, 325 (9th Cir. 1988); see also
United States v. Andrews, 75 F.3d 552, 556 (9th Cir. 1996).

[2] The government agrees with Begay that the central
issue in this case is whether it produced sufficient evidence
that the murders of O.C. and J.T. were premeditated. Premedi-
tation is the essential element that distinguishes first-degree
from second-degree murder.3 18 U.S.C. § 1111(a), United
States v. Quintero, 21 F.3d 885, 890 n.3 (9th Cir. 1994). Both
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. Premeditation is not required for all forms of
first-degree murder under the federal murder statute, as § 1111(a) also
defines as first-degree murder certain forms of felony murder that do not
require premeditation as an element. It is undisputed, however, that pre-
meditation is a required element of first-degree murder as charged in this
case.
6496 UNITED STATES v. BEGAY
courts and commentators have noted the lack of clarity in the
precise legal definition of premeditation. See United States v.
Shaw, 701 F.2d 367, 393 (5th Cir. 1983); 2 WAYNE R.
LAFAVE, SUBSTANTIVE CRIMINAL LAW § 14.7(a) at 477 (2d. ed.
2003) (“It is not easy to give a meaningful definition of the
word[ ] ‘premeditate’ . . . as . . . used in connection with first
degree murder.”); BENJAMIN N. CARDOZO, What Medicine Can
Do For Law, in LAW AND LITERATURE 97-100 (1931) (“[The
phrase] deliberate and premeditated . . . . is so obscure that no
jury hearing it for the first time can fairly be expected to
assimilate and understand it,” and “is much too vague to be
continued in our law.”). Federal courts, however, have “look-
[ed] to the common law to find the definition” of the statutory
terms contained in the federal murder statute, United States v.
Pearson, 203 F.3d 1243, 1271 (10th Cir. 2000), and in so
doing have concluded, consistent with many state courts, that
the element of premeditation essentially requires a showing
that the defendant acted with “a ‘cool mind’ that is capable of
reflection, and . . . did, in fact, reflect, at least for a short
period of time before his act of killing.” Shaw, 701 F.2d at
393; see LAFAVE § 14.7(a) at 477-78; see also Austin v.
United States, 382 F.2d 129, 137 (D.C. Cir. 1967) (premedita-
tion requires that “there was a further thought, and a turning
over in the mind — and not a mere persistence of the initial
impulse”), overruled on other grounds by United States v.
Foster, 783 F.2d 1082, 1085 (D.C. Cir. 1986). In short, pre-
meditation, at minimum, requires that at some point after the
defendant forms the intent to kill the victim, he has the time
to reflect on the decision to commit murder, that he in fact
does reflect on that decision, and that he commits the murder
with a “cool-mind” after having engaged in such reflection.4
Cf. 9th Cir. Model Crim. Jury Instr. 8.89 (2003).
4
The distinction between “premeditation” and “deliberation” in the fed-
eral murder statute is now largely academic. The statute’s full definition
of first-degree murder is as follows: a “willful, deliberate, malicious, and
premeditated killing.” 18 U.S.C. § 1111(a). “[T]he word ‘wilful’ in the
criminal context [refers to] a specific[, as opposed to a general,] intent to
do an act forbidden by law,” United States v. Drew, 722 F.2d 551, 553
(9th Cir. 1983), and the word “malicious” refers to the element of “malice
 UNITED STATES v. BEGAY 6497
[3] Because premeditation necessarily describes a subjec-
tive state of mind about which the defendant rarely provides
any direct testimony or evidence, it is almost always an ele-
ment that must be proved by reference to “the defendant’s
conduct . . . in the light of the surrounding circumstances.”
LAFAVE § 14.7(a) at 480; see also Free, 841 F.2d at 325
(“Premeditation may . . . be established circumstantially.”). In
general, the element is typically established through proof that
falls into at least one of “[t]hree categories of evidence”:

aforethought” common to both first-degree and second-degree murder, 18
U.S.C. § 1111(a). Neither specific intent nor malice aforethought is at
issue in this case.
This leaves the elements of deliberation and premeditation. Some state
courts have required the two terms to be treated as clearly independent ele-
ments. See, e.g., Byford v. State, 994 P.2d 700, 712-15 (Nev. 2000); see
also Polk v. Sandoval, 503 F.3d 903, 910 (9th Cir. 2007). Federal courts,
however, have generally applied the phrase “deliberate and premeditated”
or “deliberate premeditation” to refer to an integrated concept that is
essentially synonymous with the term “premeditation” as we have defined
it here. E.g., Shaw, 701 F.2d at 392-93 (describing “deliberation and pre-
meditation” as one “element”); Free, 841 F.2d at 325 (listing only “pre-
meditation” and not “deliberation” as a necessary element of first-degree
murder); Quintero, 21 F.3d at 890 n.3 (same); see also Allen v. United
States, 164 U.S. 492, 495 (1896); Austin, 382 F.2d at 138-40. Some courts
have striven to give each element independent meaning by referring to
“deliberation” as the opportunity to reflect and “premeditation” as actual
reflection. See Shaw, 701 F.2d at 393 (quoting LAFAVE § 14.7(a) at
477-78). This somewhat artificial distinction appears to arise more from
a desire to give each statutory term its own meaning than from any actual
or inherent distinction between the two words. Cf. Duncan v. Walker, 533
U.S. 167, 174 (2001). In practice, however, such a theoretical distinction
is of little consequence. The definition of “premeditation” we provide in
the text emphasizes both the opportunity to reflect and the requirement
that the defendant in fact engage in such cool-minded reflection. For pur-
poses of this opinion, therefore, we see no need to parse the definition fur-
ther by attaching certain aspects of it to the concept of “deliberation” and
others to the concept of “premeditation.” Thus, we use the term “premedi-
tation” herein as a general shorthand for the phrase “deliberate and pre-
meditated.”
6498 UNITED STATES v. BEGAY
(1) facts about how and what the defendant did prior
to the actual killing which show he was engaged in
. . . planning activity; (2) facts about the defendant’s
prior relationship and conduct with the victim from
which motive may be inferred; and (3) facts about
the nature of the killing from which it may be
inferred that the manner of killing was so particular
and exacting that the defendant must have intention-
ally killed [the victim] according to a preconceived
design.

LAFAVE § 14.7(a) at 480; see also Free, 841 F.2d at 325
(“Relevant circumstantial evidence includes, inter alia, 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.”). We do not suggest that these three methods
of proving premeditation constitute a rigid or exclusive list.
Rather, we simply observe that evidence of planning activity,
motive, or the cool or methodical nature of the killing is evi-
dence that will tend to support a finding of premeditation,
although motive standing alone is the least probative of the
three.

[4] In Begay’s case, there is no evidence sufficiently sup-
porting any of these factors, nor is there any evidence that,
viewed in context, otherwise supports the inference that the
murders were premeditated killings. As an initial matter, we
emphasize that, as the government expressly concedes, there
is no evidence of any motive in this case, nor is there any evi-
dence that Begay had a prior relationship with the victims.
The United States explicitly stated at oral argument that “the
government doesn’t know what that reason [for the crimes] is
and that’s why no motive was presented at trial.” Indeed, the
record contains no hint of information from which any person
could determine why these murders occurred; any purported
motive for the crimes would be based on “mere speculation.”
Andrews, 75 F.3d at 556. Curiously, the government claimed
at oral argument that the “lack of motive supports [its] pre-
 UNITED STATES v. BEGAY 6499
meditation theory: because there was no motive it appears that
there was a cold-blooded killing.” This argument, however, is
completely backward: “Motive directly impacts the question
of premeditation and the defendant’s state of mind,” House v.
Bell, 311 F.3d 767, 775 (6th Cir. 2002), rev’d on other
grounds, 547 U.S. 518 (2006), such that “evidence of motive
clearly supports [a] finding of premeditation,” United States
v. Downs, 56 F.3d 973, 977 (8th Cir. 1995) (emphasis added).
See also Hemphill v. United States, 402 F.2d 187, 191 (D.C.
Cir. 1968) (invalidating first-degree murder conviction where
“[t]he attack was without warning or apparent reason”). Simi-
larly, the government acknowledged that “there was no evi-
dence of any prior connection between the defendant and the
victims,” but again claimed that this supported a finding of
premeditation because evidence of “past history lends itself
[more] to voluntary manslaughter” than first-degree murder.
This argument too is completely backward: This court has
directly held that “the defendant’s prior relationship to the
victim” is evidence that “support[s] [a] guilty verdict on [a]
first degree murder charge.” Free, 841 F.2d at 325 (emphasis
added). In short, while evidence of motive or a prior relation-
ship between the defendant and the victim may not be neces-
sary to show premeditation, the lack of such evidence
certainly does not support a finding that premeditation exists
as the government contends.

[5] Turning to the other two forms of evidence that typi-
cally support a finding of premeditation — planning activity
and the cool or methodical nature of the killing — the record
does not contain sufficient evidence with respect to either. As
to planning activity, the only evidence that could possibly be
said to support an inference that the murders here were
planned is the fact that Begay had a gun in his truck. How-
ever, Loren Clark, the government’s only witness to the actual
shooting,5 testified that he recognized the specific gunshots
5
The government attempts to characterize the testimony of Jessica Lee
as evidence that “corroborated the eyewitness testimony” provided by
6500 UNITED STATES v. BEGAY
being fired “[b]ecause [he] used to go shooting with [the
defendant] and [they] shot this [particular] 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 uses for lawful, nonviolent
purposes. As the District of Columbia Circuit has held: “That
[the defendant] used a knife to accomplish the murder is not
probative of premeditation and deliberation because he did
not procure it specifically for that purpose but rather carried
it about with him as a matter of course.” Austin, 382 F.2d at
139. The same is true here: that Begay had in his truck a gun
that the record reflects he regularly used for recreation cannot,
without more, support premeditation. There is no other evi-
dence in the record suggesting that Begay engaged in any
“planning activity” prior to the murder.6

[6] Nor does the record contain any evidence that the man-
ner of the killing was cool and methodical. To the contrary,
the record reflects that, despite his practice and experience
with the weapon used during the shooting, and despite the fact

Clark. However, there is no dispute that Lee was completely unconscious
until she was awakened by the gunshots. Thus, Lee could not provide any
evidence that had any bearing on Begay’s state of mind leading up to or
during the shooting. See LAFAVE § 14.7(a) at 481-82 (“Conduct by the
defendant after the killing . . . is obviously not relevant for purposes of
showing premeditation and deliberation, as it only goes to show the defen-
dant’s state of mind at the time and not before or during the killing.” (cit-
ing Austin, 382 F.2d 129)).
6
The government also argues that the record contains evidence of plan-
ning activity because Begay and his companions drove around for some
time after the party instead of going directly home. The contention that
this somehow demonstrates premeditation, however, is purely speculative
and of no probative force. There is absolutely nothing in the record to sug-
gest that Begay was driving about in search of his victims, as opposed to
in search of another party, something to eat, or simply to enjoy the night
air. Moreover, when Begay first approached O.C. and J.T. in their vehicle,
he did not carry with him the gun that was in his truck. That he left the
weapon behind suggests that he did not plan to kill his victims at the time
he first walked over to their car.
 UNITED STATES v. BEGAY 6501
that he was only three to four feet away from the victim when
firing, Begay missed a number of times. This suggests agita-
tion, excitement, or frenzy, not the “cool mind” of premedita-
tion. Moreover, given the lack of any evidence shedding light
on the circumstances giving rise to the shooting, the sheer
number of shots is just as likely to cut against a finding of
premeditation as it is to cut in favor of such a finding. “The
violence and multiple wounds, while more than ample to
show an intent to kill, cannot standing alone support an infer-
ence of a calmly calculated plan to kill requisite for premedi-
tation and deliberation,” as contrasted with an outburst of rage
or a crime otherwise committed in the heat of passion. Austin,
382 F.2d at 139; see also LAFAVE § 14.7(a) at 481. We further
note that Clark testified that Begay was “pretty drunk” at the
time of the shooting. This fact alone strongly suggests an
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 premeditation, [or] as a result of an impulse[,] or because
of 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). At best, any determination as to premeditation
would necessarily be speculative in nature.

In short, the government produced no evidence supporting
premeditation in this case. The dearth of evidence with
respect to that element is illustrated by the nature of the gov-
ernment’s arguments in favor of premeditation made to us
and, more important, to the jury. In its opening brief on
appeal, the government seeks to mislead the court, asserting
falsely that the record contains sufficient evidence of premed-
itation because Clark testified that he “watched as [the] defen-
dant calmly returned to his truck” to retrieve the gun,
“methodically retrieved the rifle,” “methodically held the gun
up to his shoulder,” fired nine shots, and then “calmly
returned to the truck.” Indeed, the government asserts seven
times in its brief that the record contains evidence that
6502 UNITED STATES v. BEGAY
Begay’s demeanor was “calm” and asserts seven times that
the record shows Begay was “methodical”; the government
also asserts that the record shows Begay behaved “casually”
and “thoughtfully.” However, as the government finally con-
ceded under persistent questioning at oral argument, the
record contains no support at all for any of these characteriza-
tions. Clark was the only witness at trial who saw Begay prior
to and during the shooting, and nothing in Clark’s testimony
so much as suggests that Begay behaved in a calm, casual,
thoughtful, or methodical fashion. That the government felt it
necessary to rely on such unfounded assertions in order to
demonstrate the sufficiency of its premeditation “evidence” is
telling. Equally important, the government’s numerous mis-
representations to the court, designed to persuade us to affirm
a conviction that necessitates reversal, raise serious questions
as to the propriety of the prosecution’s conduct that requires
further inquiry by the court.

The misrepresentations that the prosecution made to the
jury may have had an even more serious consequence. The
government’s erroneous statement at closing argument may
well have resulted in Begay’s convictions for first-degree
rather than second-degree murder. In a clearly incorrect state-
ment of the law, the trial prosecutor told the jury, “[Begay]
intended to kill the occupants of the vehicle. That’s premedi-
tation.” The prosecutor later reiterated, “when you fire multi-
ple rounds with a rifle into a vehicle . . . , that establishes an
intent to kill, that establishes his premeditation.” Of course, it
is elementary that intent to commit murder does not establish
premeditation. To the contrary, whereas intent is a necessary
element of both first-degree and second-degree murder, pre-
meditation is what distinguishes first-degree murder from
second-degree murder. Quintero, 21 F.3d at 890 n.3. We need
not determine whether the prosecutor’s erroneous statements
in and of themselves constituted reversible error, but we
believe that the statements explain how the jury, having been
misled as to the law of premeditation, could have convicted
Begay of first-degree murder despite wholly insufficient evi-
 UNITED STATES v. BEGAY 6503
dence with respect to that essential element. Cf. United States
v. Rubio-Villareal, 967 F.2d 294, 297 (9th Cir. 1992) (noting
that a jury that is misinstructed on the law might well “convict
without finding all the elements of a crime beyond a reason-
able doubt”).

[7] In sum, the testimony of the government’s sole eyewit-
ness, taken in the light most favorable to the government,
shows nothing more than that Begay flashed his lights at the
victims’ car, walked over to the car from his truck, stood by
the passenger’s side of the car for approximately a minute in
a position from which he could talk with its occupants,
returned to his truck, retrieved his rifle, walked back to the
car, and fired eight or nine shots at the victims. There is no
evidence whatsoever as to what brought about the murders or
as to the defendant’s demeanor or state of mind prior to or
during the shooting — save for the testimony that he was
“pretty drunk.” Based on the evidence adduced at trial, it is
equally likely that the defendant committed the murders in a
fit of rage or otherwise in the heat of passion caused by his
exchange with the victims immediately prior to the shooting
as it is that he committed the murders with a “cool mind” after
reflection. The evidence simply does not permit a rational
observer to reach the latter conclusion beyond a reasonable
doubt; rather, any determination that Begay did in fact com-
mit the murders with a cool mind after reflection would be
pure speculation. We therefore conclude that these facts are
insufficient to establish premeditation, the essential element
of the crime of first-degree murder.

III. REVERSAL OF MURDER CONVICTIONS

Our conclusion that the evidence of premeditation was
insufficient to support convictions for first-degree murder
necessarily dictates the remedy we must provide: “Where, as
here, the evidence is insufficient as a matter of law to support
a conviction on the statutory offense upon which judgment
was entered, we are required to vacate that judgment and to
6504 UNITED STATES v. BEGAY
enter a judgment of acquittal on that charge.” United States v.
Vasquez-Chan, 978 F.2d 546, 554 n.4 (9th Cir. 1992). Rever-
sal on the ground of insufficiency of the evidence ordinarily
requires the automatic vacatur of the challenged conviction
and the concomitant bar to punishment or further prosecution
on the charge.

[8] There is, however, a narrow exception to the general
rule. Under that exception, in addition to vacating a convic-
tion on the charge on which the jury returned a verdict, the
court may in some circumstances enter a judgment of convic-
tion on a lesser included offense. Here, that lesser-included
offense would be second-degree murder. A judgment on the
lesser-included offense may be entered in cases in which the
evidence is insufficient with respect to the charge of convic-
tion but sufficient with respect to the lesser-included offense.
Following the approach adopted in other circuits, this court
has held that an appellate court “may direct a lower court to
enter a judgment of conviction on a lesser offense after find-
ing a jury’s verdict insufficient to support its guilty verdict on
a greater offense” only “in some instances.” Vasquez-Chan,
978 F.2d at 553-54 (emphasis added); see also United States
v. Dinkane, 17 F.3d 1192, 1198 (9th Cir. 1994) (same); cf.
United States v. Jose, 425 F.3d 1237, 1247 (9th Cir. 2005).
Specifically, we have held that:

[T]he conditions necessary to the entry of such a
judgment are as follows: (1) the lesser offense must
be a lesser-included offense — a “subset” of the
greater one; (2) the jury must have been explicitly
instructed that it could find the defendant guilty of
the lesser-included offense and must have been prop-
erly instructed on the elements of that offense; and
(3) the government must request on appeal that judg-
ment be entered against the defendant on the lesser
offense.
 UNITED STATES v. BEGAY 6505
Vasquez-Chan, 978 F.2d at 554 (emphasis added) (footnotes
omitted). We would add the obvious qualification that the ele-
ment as to which sufficient evidence was missing with respect
to the greater offense must not be a requisite element of the
lesser offense as well. See Dinkane, 17 F.3d at 1198.7

[9] In this case, the first and second Vasquez-Chan condi-
tions are satisfied, as the evidence is sufficient to support a
conviction for second-degree murder, a lesser-included
offense of first-degree murder, and the district court properly
instructed the jury that it could convict on that lesser charge.
So, too, is the additional qualification we have noted. How-
ever, the third “necessary” condition set forth in Vasquez-
Chan is not satisfied: the government at no point met the
requirement that it “must request on appeal that judgment be
entered against the defendant on the lesser offense.” Id. at 554
(emphasis added). As we have previously held, courts “apply
th[e waiver] rule with some vigor against criminal defendants;
we should be no less vigorous in applying it against the gov-
ernment.” Moore v. Czerniak, 534 F.3d 1128, 1152 (9th Cir.
2008). As Vasquez-Chan makes abundantly clear, it is the
government’s obligation to request that an appellate court
convert a defendant’s judgment of conviction from one predi-
7
In Rutledge v. United States, 517 U.S. 292, 306 (1996), a case decided
four years after Vasquez-Chan, the Supreme Court noted favorably that
“federal appellate courts appear to have uniformly concluded that they
may direct the entry of judgment for a lesser included offense when a con-
viction for a greater offense is reversed on grounds that affect only the
greater offense.” Id. (emphasis added). Rutledge, however, said nothing
whatever about how, when, or under what circumstances the various cir-
cuit courts should or could engage in that practice. Id. Rather, the Court
simply observed that the various circuits had already adopted rules gov-
erning the question. See id. at 305-06 & n. 15. As our concurring col-
league from the Eighth Circuit observes, the Eighth Circuit had adopted
one set of conditions, while the Ninth Circuit had adopted those same con-
ditions plus one more. Compare DeMarrias v. United States, 453 F.2d
211, 215 (8th Cir. 1972), with Vasquez-Chan, 978 F.2d at 554. See also
Rutledge, 517 U.S. at 305 n.15 (citing Allison v. United States, 409 F.2d
445 (D.C. Cir. 1969)).
6506 UNITED STATES v. BEGAY
cated on a charge as to which the evidence was legally insuf-
ficient to one predicated on a charge on which the defendant
was not actually convicted by a jury of his peers.8 Imposing
the burden on the government in such cases helps protect
courts against making errors that are more likely to occur
when courts raise issues sua sponte and act without the bene-
fit of briefing and argument by counsel. Such a request should
be made in the government’s initial brief, see Vasquez-Chan,
978 F.2d at 554 n.6, so that the defendant may have a full and
fair opportunity to oppose it. Because in this case the govern-
ment has not requested that we enter a judgment of conviction
on a lesser-included offense, we vacate Begay’s convictions
and sentences on the charges of first-degree murder without
8
We note that the law treats differently the situation in which “a jury
convicts on both the greater and lesser included offenses.” Jose, 425 F.3d
at 1247 (emphasis added). In such cases, the district court is required to
“enter a final judgment of conviction on the greater offense and vacate the
conviction on the lesser offense. However, if the greater offense is later
reversed on appeal [for insufficient evidence], the appellate court should
reinstate the previously vacated convictions on the lesser included
offenses.” Id. (internal citation omitted) (citing Rutledge, 517 U.S. 292).
While this distinction may, at first blush, seem overly formalistic, it in fact
reflects an important distinction between two different sets of facts. A
jury’s deliberations are secret and its rationale for reaching a particular
decision is usually unknown — and may not always follow strictly legal
or logical parameters. Cf. FED. R. EVID. 606(b); United States v. Dou-
gherty, 473 F.2d 1113, 1137 (D.C. Cir. 1972) (“The jury system provides
flexibility for the consideration of interests . . . outside the formal rules of
law.”). Accordingly, the conversion of a judgment from a conviction for
one offense into a conviction for a different offense as to which the jury
has remained silent necessarily involves some degree of speculation on
the part of the court as to the jury’s intent — speculation that is not
required when the jury enters a conviction on both counts. While courts
in some instances interpret a jury’s silence to constitute an implicit acquit-
tal, see Green v. United States, 355 U.S. 184, 190 (1957), a higher degree
of caution is required when a court considers entering a judgment of
implied conviction. The requirements set forth in Vasquez-Chan ensure
that imposition of such an implicit judgment of conviction is warranted
and thereby properly protects a defendant’s right to liberty and due pro-
cess of law.
 UNITED STATES v. BEGAY 6507
entering convictions on the offense of second-degree murder
or any other lesser-included offense.

IV. AFFIRMANCE OF FIREARM CONVICTIONS

[10] Our holding with respect to the insufficiency of the
evidence of premeditation does not affect Begay’s two con-
victions for using a firearm “in relation to any crime of vio-
lence.” 18 U.S.C. § 924(c)(1)(A). Nor does it affect the
sentence of thirty-five years in prison that attached to these
convictions. Both first- and second-degree murder constitute
crimes of violence. See 18 U.S.C. § 924(c)(3). Begay’s jury
was instructed that it could convict him of violating § 924(c)
if “the government proved” that he “committed the crime of
murder, in either the first or second degree.” As we have
stated, see supra Part III, the evidence in this case is sufficient
to support convictions of murder in the second-degree.
Accordingly, it is sufficient to support the relevant element of
§ 924(c). We therefore affirm the two firearm convictions.
See United States v. Bracy, 67 F.3d 1421, 1430 (9th Cir.
1995); see also infra Part V.

V. WITNESS INTIMIDATION

[11] Our holding with respect to the insufficiency of the
evidence of premeditation renders moot all of Begay’s other
challenges on appeal, save one. That challenge might, if
upheld, affect his convictions for using a firearm during the
commission of a crime of violence. Begay argues that the dis-
trict court improperly admitted evidence that he intimidated
Clark and Lee, two of the witnesses to the crime. Begay
claims that the evidence constituted improper character evi-
dence under Federal Rule of Evidence 404(b) and was unduly
prejudicial under Federal Rule of Evidence 403; however, he
acknowledges that no objection to the evidence was raised at
trial and that its admission is therefore reviewed for plain
error. See id. at 1432. Here, there was no error at all, as a
defendant’s threats against a witness are admissible to show
6508 UNITED STATES v. BEGAY
consciousness of guilt. Ortiz-Sandoval v. Gomez, 81 F.3d 891,
897 (9th Cir. 1996). Moreover, the district court did not err in
concluding that the probative value of Begay’s threats out-
weighed any unfair prejudice.

VI. CONCLUSION

The record did not contain sufficient evidence that Begay
committed “premeditated killings” and therefore the govern-
ment failed to prove its charges of first-degree murder.
Accordingly, we REVERSE Begay’s convictions for first-
degree murder and the life sentences attached to those counts.
We AFFIRM Begay’s two firearms convictions and the
thirty-five year sentence imposed on those counts.

AFFIRMED in part; REVERSED in part.

BRIGHT, Circuit Judge, concurring:

I concur in this court’s opinion, but write separately regard-
ing Part III, which deals with the reversal of Begay’s murder
convictions. If I were writing on a clean slate in the Ninth Cir-
cuit, I would direct the district court in this case to enter a
judgment of conviction on the lesser-included offense of
second-degree murder. However, I am bound by United States
v. Vasquez-Chan, 978 F.2d 546 (9th Cir. 1992), which man-
dates a procedure that when, as in this case, the conviction for
the greater offense is in issue and may be reversed, the gov-
ernment must request such possible relief in its opening brief.

This requirement is not the rule in similar cases in other cir-
cuits. In DeMarrias v. United States, 453 F.2d 211, 215 (8th
Cir. 1972), for example, the court determined that implicit in
a jury’s finding of guilt on a second-degree murder charge
was a finding of guilt on the lesser-included charge of man-
slaughter. Therefore, when the court set aside the second-
 UNITED STATES v. BEGAY 6509
degree murder conviction for insufficient evidence, it directed
“a remand for resentencing on the voluntary manslaughter
charge as an appropriate means to accomplish substantial jus-
tice.” DeMarrias, 453 F.2d at 215;1 see also United States v.
Cobb, 558 F.2d 486, 489 (8th Cir. 1977).

Additionally, the Supreme Court has stated concerning this
issue:

Consistent with the views expressed by the Dis-
trict of Columbia Circuit, federal appellate courts
appear to have uniformly concluded that they may
direct the entry of judgment for a lesser included
offense when a conviction for a greater offense is
reversed on grounds that affect only the greater
offense. This Court has noted the use of such a prac-
tice with approval.

Rutledge v. United States, 517 U.S. 292, 306 (1996) (citations
omitted). Both Rutledge and DeMarrias cite with approval the
views of the D.C. Circuit in Austin v. United States, 382 F.2d
129, 140-43 (D.C. Cir. 1967), overruled on other grounds,
United States v. Foster, 783 F.2d 1082, 1085 (D.C. Cir. 1986)
(en banc).

As a visiting judge in the Ninth Circuit, I am bound by
Vasquez-Chan, which obligates the government, in a case
such as this one, to request on appeal a lesser-included
offense before the court may enter such judgment. The
Vasquez-Chan rule has been on the books for seventeen years,
and other Ninth Circuit cases have availed themselves of this
rule. See United States v. Jose, 425 F.3d 1237, 1247 (9th Cir.
2005); United States v. Dinkane, 17 F.3d 1192, 1198 (9th Cir.
1994). I do observe that this requirement may be a salutary
one because it provides notice to the defendant that while a
1
DeMarrias, in which I was the author of the opinion, is the reason for
this separate concurrence.
6510 UNITED STATES v. BEGAY
court might not sustain the greater offense, it might sustain a
lesser-included offense. However, such a requirement is not
present in some other jurisdictions.

Accordingly, I concur in Part III of the opinion because I
am bound by the Vasquez-Chan requirements relating to the
entry of judgment for a lesser-included offense in appropriate
cases. As the opinion of the court has observed, these require-
ments were not fully met by the government.