United States v. Vallo

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 23 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
vs. No. 99-2328
(D.C. No. CR-98-572-JP)
CLAUDINE ANN VALLO, (D.N.M.)

Defendant - Appellant.

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
vs. No. 00-2078
(D.C. No. CR-98-572-JP)
DAVID EDWARD CHINO, (D.N.M.)

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CR-98-572-JP)

Jonathan Gurston ( Norman C. Bay, United States Attorney, and Jason Bowles,
Assistant United States Attorney, on the briefs), Albuquerque, New Mexico, for
Plaintiff - Appellee United States of America.

Jerry Daniel Herrera, Albuquerque, New Mexico, for Defendant - Appellant
Claudine Ann Vallo.

Dawn T. (Penni) Adrian, Albuquerque, New Mexico, for Defendant - Appellant
David Edward Chino.
Before BRORBY, EBEL, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Defendants-Appellants David Chino and Claudine Vallo were jointly tried

and convicted of second-degree murder, 18 U.S.C. §§ 2, 1111(a), 1153(a), of

Zachary Vallo, age sixteen months. Mr. Chino also was convicted of multiple

counts of assault on Zachary Vallo, 18 U.S.C. §§ 113(a)(6), 1153(a). He was

sentenced to 12 months with 1 year of supervised release on the assault counts

and 210 months on the second-degree murder count with 3 years of supervised

release, all terms concurrent. Ms. Vallo was sentenced to 240 months with 3

years of supervised release.

On appeal, both Mr. Chino and Ms. Vallo contend that the evidence was

insufficient to convict them of second-degree murder. Ms. Vallo also argues that

the second-degree murder count against her should have been dismissed based

upon prosecutorial vindictiveness, and that she should have been granted a

downward adjustment for acceptance of responsibility. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and we affirm.

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 Background

In view of the challenges to the sufficiency of the evidence, we review the

pertinent trial evidence in some detail. On July 25, 1998, Valerie Chino, David’s

mother, brought Zachary into the Acoma-Laguna-Canoncito Clinic. Zachary was

not breathing, and “appeared to be having a seizure, posturing 1
and was limp,

listless, unresponsive.” Trial Tr. (“Tr.”) at 110 (Dr. Scherf). Zachary also had

contusions on his head, face, and chest. Id. at 112.

Zachary was immediately flown to the University of New Mexico Hospital

(“UNM Hospital”) in Albuquerque where he remained in critical condition. The

doctors who cared for him there testified that he continued to posture, indicating

deep, “ongoing evolution of brain injury.” Id. at 513-14 (Dr. Katz). The doctors

found that Zachary had subdural hematomas, internal bleeding on the brain, on

both the sides and the back of his brain. Tr. at 311, 515-16. At trial, doctors

testified that the extent of Zachary’s injuries could not have been caused by the

child falling from a stroller into some rocks, or falling off a wagon. E.g. , id. at

516. Several doctors testified that Zachary had been the victim of child abuse

based on the types of injuries he had received and the fact that the family had no

1
There are two types of posturing: decorticate and decerebrate. For our
purposes, however, we will not distinguish between the two types as both are
indications that there has been “serious neurologic damage to the brain.” Tr. at
356, 364-65 (Dr. Sapien).

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explanation for the injuries. Tr. at 114-15, 317-18.

As a result of his injuries, Zachary died on July 27, 1998, two days after

being brought to the hospital. The medical examiner performed an autopsy and

concluded that Zachary had died of non-accidental head wounds and that the

death was a homicide. Id. at 85-86. The autopsy confirmed that Zachary had

subdural hemorrhaging on both sides and the back of his brain. Id. at 77. There

was bleeding around the optic nerves of his eyes, specifically, “bleeding along

the retina or the back portion of the eye where the retina had actually been torn

away from the back of the eye . . . .” Id. (Dr. McFeeley). Zachary’s brain also

showed evidence of a prior brain injury, one that probably occurred several days

before Zachary’s death. Id. at 80. In addition, Zachary had thirteen bruises and

abrasions on his head and neck, three on his chest and abdomen, seven on his

arms, and seventeen on his legs. Id. at 74.

As to the timing of the fatal brain injury, the medical examiner concluded

that the fatal injury had occurred “very shortly before the child was originally

taken to the hospital,” less than forty-eight hours before his death. Id. at 80-81.

At trial, other expert medical testimony concurred with this conclusion. Id. at

520-21 (Dr. Katz), 534, 542-43 (Dr. Wilson). The medical examiner testified

that the subdural hemorrhaging could not have been caused by a simple fall out

of a stroller or wagon or from a “slight push off of a chair.” Id. at 99-100 (Dr.

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McFeeley); see also id. at 62-63, 81-82. However, throwing a child to the ground

with “substantial impact” or “a lot of force” could cause these types of injuries.

Id. at 62-63. Subdural hemorrhaging is “almost invariably . . . due to trauma,”

such as “a shaking kind of an injury, an acceleration-deceleration that would tear

those small [blood] vessels . . . , or an impact with something, or the combination

of those.” Id. at 81. The kind of force necessary to produce the type of retinal

injury found in Zachary would be “a violent kind of . . . shaking.” Id. at 91-92.

At trial, another medical expert agreed with this conclusion, stating that Zachary

died by “the infliction of violent trauma . . . in the form of some type of

acceleration forces, a combination of shaking and blunt force trauma which

scrambled his brain . . . .” Id. at 534 (Dr. Wilson).

At the time of his death and for the preceding several months, Zachary had

been living with his mother, Claudine Vallo, and her boyfriend, David Chino, on

the Acoma Pueblo in New Mexico. David Chino was not Zachary’s natural

father. Before his mother moved in with David Chino, Zachary had no medical

history of seizures and his medical checkups reflected no bruises or other signs of

abuse. Id. at 296, 303, 305-06 (Dr. Green). During the trial, Joseph and Irene

Thompson, two of Claudine Vallo’s other children, testified to witnessing

incidents of David Chino hitting, shaking, and throwing Zachary into a wall. Tr.

at 182-85, 442, 444-45. Claudine Vallo not only witnessed some of these

5
incidents of abuse, but told her other children to ignore the sounds of the abuse.

Id. at 183-85. During questioning by the FBI, David Chino admitted that he had

trouble controlling his anger and that approximately two months before Zachary’s

death, he had dropped Zachary into his crib from a height of about two and a half

feet in order to get Zachary to stop crying. Id. at 413.

Claudine Vallo testified at trial that in the late afternoon of July 25, 1998,

the day Zachary was taken to the hospital, she was home with Zachary and had

prepared something for him to eat. Id. at 666-67. Zachary was sitting next to his

mother in a chair with no arms. When Zachary did not drink his milk, Ms. Vallo

got angry and pushed him off the chair. Id. at 667-68. Zachary fell to the floor

and hit the top of his head. Id. at 668, 670. Ms. Vallo picked him up and put

him back in the chair, but Zachary still would not drink his milk. Again, Ms.

Vallo became angry and pushed Zachary out of the chair. Id. at 669. He landed

on the floor on the side of his head. Id. at 670. Zachary cried a little bit and Ms.

Vallo picked him up, told him she was sorry, and put him in his crib. Id. A little

while later, Ms. Vallo noticed that Zachary was having a series of seizures. Id. at

670-71. According to Ms. Vallo, David Chino arrived home a few minutes later.

Id. at 671.

At trial, two witnesses testified that on July 25, 1998, David Chino left

work around 4 p.m. “upset,” “enraged,” and “furious.” Tr. at 163-64 (Leland

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Robert Vallo), 402 (Brian Todd Hamrick). In an interview with the FBI, Mr.

Chino stated that on that same day, he arrived home from work around 6:15 p.m.

and saw Zachary lying on the floor motionless. Mr. Chino picked Zachary up

and shook him, but the child did not respond. Tr. 413-14. Mr. Chino took

Zachary outside and directed someone to contact his mother, Valerie Chino, to

take Zachary to the hospital.

Mr. Chino and Ms. Vallo did not accompany Zachary to the hospital on

July 25 as they were worried about child abuse questions. Id. at 414-15, 672.

They did make a short visit to Zachary on July 26, but left soon after the police

arrived. Id. at 127-29, 140. After leaving the hospital, Mr. Chino and Ms. Vallo

went to a friend’s house and “kicked back” and “drank some beer.” Id. at 457.

Neither mentioned Zachary.

After Mr. Chino and Ms. Vallo were arrested, the government held two

debriefing sessions with Ms. Vallo in an attempt to work out a plea in exchange

for her testimony against Mr. Chino. At the time of the debriefings, Ms. Vallo

was charged with assault resulting in serious bodily injury and accessory after the

fact to second-degree murder. Based on subsequent medical information and the

government’s belief that Ms. Vallo had not been completely truthful during the

debriefings, the government charged Ms. Vallo with second-degree murder.

Before doing so, the government communicated to Ms. Vallo its concerns. Ms.

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Vallo decided she was no longer interested in a plea and asserted her right to a

trial. Before the trial began, Ms. Vallo filed a motion to dismiss the homicide

count due to prosecutorial vindictiveness. I R. (99-2328), Doc. 51. The district

court held an evidentiary hearing on the motion and then denied it. I R. (99-

2328), Doc. 73.

At the close of the government’s case, both Mr. Chino and Ms. Vallo

moved for judgments of acquittal on the second-degree murder counts, which the

district court denied. Tr. at 565, 571. The motions were renewed at the

conclusion of the evidence and renewed in writing following the trial pursuant to

Fed. R. Crim. P. 29(c). I R. (00-2078), Doc. 126; I R. (99-2328), Doc. 128.

Again, the court denied the motions. I R. (00-2078), Doc. 136.

Discussion

A. Mr. Chino’s and Ms. Vallo’s Insufficient Evidence Claims

Both Mr. Chino and Ms. Vallo argue that there is insufficient evidence to

support their convictions for second-degree murder. We review the record de

novo when reviewing both the sufficiency of the evidence to support a conviction

and the denial of a motion for judgment of acquittal. United States v. Wood , 207

F.3d 1222, 1228 (10th Cir. 2000). We must determine whether “viewing the

evidence in the light most favorable to the government, any rational trier of fact

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could have found the defendant guilty of the crime beyond a reasonable doubt.”

Id. ; accord Jackson v. Virginia , 443 U.S. 307, 319 (1979). We must not weigh

conflicting evidence or consider the credibility of the witnesses, but simply

“determine whether [the] evidence, if believed, would establish each element of

the crime.” United States v. Evans , 42 F.3d 586, 589 (10th Cir. 1994) (quoting

United States v. White , 673 F.2d 299, 301-02 (10th Cir. 1982)); see also Jackson ,

443 U.S. at 319 (“This familiar standard gives full play to the responsibility of

the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence,

and to draw reasonable inferences from basic facts to ultimate facts.”). If the

government has met this standard, we must defer to the jury’s verdict. Evans , 42

F.3d at 589.

Second-degree murder is the “unlawful killing of a human being with

malice aforethought.” 18 U.S.C. § 1111(a); see also Wood , 207 F.3d at 1228.

Second-degree murder’s malice aforethought requirement can be satisfied by:

“(1) intent-to-kill without the added ingredients of premeditation and

deliberation; (2) intent-to-do-serious-bodily-injury; (3) depraved-heart; or (4)

commission of [certain felonies].” Wood , 207 F.3d at 1228 (alteration in

original) (internal quotations and citations omitted). The existence of a

“depraved heart” may be established “by evidence of conduct which is reckless

and wanton, and a gross deviation from a reasonable standard of care, of such a

9
nature that a jury is warranted in inferring that defendant was aware of a serious

risk of death or serious bodily harm.” Id. (internal quotations and citations

omitted).

The following evidence in the government’s case-in-chief supports Mr.

Chino’s conviction: (1) he had assaulted Zachary in the past -- hitting him,

shaking him, and throwing him into the wall; (2) he was “enraged” when he left

work at 4 p.m. on July 25, 1998; (3) he arrived at home around 6:15 p.m. on July

25 and found Zachary lying on the floor; (4) he admitted that he shook Zachary at

that time; 2 (5) expert medical testimony established that the bleeding around

Zachary’s retinas could only have been caused by a “violent kind of a shaking”

that occurred no more than forty-eight hours prior to his death on July 27, 1998;

and (6) the cause of death was “a combination of shaking and blunt force

trauma.” This evidence is sufficient. We are sensitive to the fact that a

conviction must not be obtained simply “by piling inference upon inference.”

United States v. Rahseparian , 231 F.3d 1257, 1262 (10th Cir. 2000) (quoting

United States v. Fox , 902 F.2d 1508, 1513 (10th Cir. 1990) (internal quotations

2
Roger Black, the FBI agent who interviewed Mr. Chino, testified that Mr.
Chino admitted that he shook Zachary when he arrived home on the evening of
July 25th. After Mr. Chino read Mr. Black’s written statement about the contents
of that interview, Mr. Chino wanted the word “gently” inserted in the sentence
that said he had shaken Zachary. Tr. at 422. Whether or not Mr. Chino “gently
shook” Zachary clearly is an issue for the jury and outside our standard of review.
Evans, 42 F.3d at 589.

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and citations omitted)). Here, however, we find that a rational jury, drawing

reasonable inferences from basic facts to ultimate facts, could have found Mr.

Chino guilty of the unlawful killing of Zachary Vallo with malice aforethought

by evidence of conduct that was reckless and wanton, and a gross deviation from

a reasonable standard of care.

Ms. Vallo was convicted of aiding and abetting the murder. Because Ms.

Vallo testified in her own defense, we may consider the entire record when

determining the sufficiency of the evidence. United States v. Lazcano-

Villalobos , 175 F.3d 838, 844 n.3 (10th Cir. 1999). Rule 29 of the Federal Rules

of Criminal Procedure was amended in 1994 to state that “[i]f the court reserves

decision [on a motion for judgment of acquittal], it must decide the motion on the

basis of the evidence at the time the ruling was reserved.” Fed. R. Crim. P. 29(b).

In Mr. Chino’s and Ms. Vallo’s cases, however, the district court did not reserve,

but denied their motions for acquittal at the close of the government’s case. In

accordance with Rule 29(c), these motions were then renewed in writing within

seven days after the jury returned its guilty verdicts.

Prior to the 1994 amendments, a defendant whose motion for judgment of

acquittal was denied at the close of the case-in-chief faced the dilemma of resting

without putting on evidence and risking conviction in order to preserve the issue

for appeal, or putting on a defense and risking filling in the gaps of the

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government’s case. In most jurisdictions, putting on a defense after a motion for

judgment of acquittal was considered a waiver of the right to appeal the denial of

the motion made before such defense. Both the district and appellate courts could

consider the entire record when determining the sufficiency of the evidence,

rather than just the case-in-chief. James W. Moore et al., 26 M OORE ’ S F EDERAL

P RACTICE § 629.03[4] (3d ed. 1997). The effect of the 1994 amendments on this

waiver doctrine is unclear. Compare 26 M OORE ’ S F EDERAL P RACTICE § 629.03[4]

(indicating that the 1994 amendments do not affect the doctrine of waiver and that

if the court denies the motion for judgment of acquittal at the close of evidence

and the defense puts on a case, the courts may consider the entire record when

considering the sufficiency of the evidence), with Charles Alan Wright, 2A

F EDERAL P RACTICE AND P ROCEDURE § 463, at 289 (3d ed. 2000) (stating that the

1994 amendments “put an end to the waiver doctrine”).

In this circuit, we are bound by our decision in United States v. Lazcano-

Villalobos, 175 F.3d 838, 844 n.3 (10th Cir. 1999). In support of the proposition

that when a defendant testifies on his own behalf, the court may consider the

entire record in ruling on a renewed motion for acquittal at the close of all the

evidence, Lazcano-Villalobos cites to United States v. Alejandro, 118 F.3d 1518,

1521 (11th Cir. 1997). In Alejandro, the court noted that when a defendant offers

any rebuttal evidence to the government’s case-in-chief, not just his own

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testimony, that the defendant has waived any objections to the court’s denial of

his Rule 29 motion. 118 F.3d at 1521. However, Alejandro only cites to pre-

1994 amendment cases to support this proposition and does not explicitly discuss

the 1994 amendments to Rule 29. Whether Alejandro takes into account the 1994

amendments to Rule 29 is unclear.

Regardless, we apply Lazcano-Villalobos. A panel must follow earlier

precedent. Thus, we consider the entire record when determining the sufficiency

of the evidence in Ms. Vallo’s case as she testified in her own defense. 3

18 U.S.C. § 2 states that “[w]hoever commits an offense against the United

States or aids, abets, counsels, commands, induces or procures its commission, is

punishable as a principal.” To be guilty of aiding and abetting, “the defendant

must willfully associate [her]self with the criminal venture and seek to make the

venture succeed through some action of [her] own.” United States v. Whitney ,

229 F.3d 1296, 1303 (10th Cir. 2000) (quoting United States v. Anderson , 189

F.3d 1201, 1207 (10th Cir. 1999)).

The following evidence supports Ms. Vallo’s conviction: (1) she was

aware of Mr. Chino’s abuse of her young son and did nothing to stop it; (2) she

witnessed an incident of Mr. Chino abusing Zachary and told her son Joseph to

3
In Mr. Chino’s case, this issue is moot as we found sufficient evidence in
the government’s case-in-chief to sustain Mr. Chino’s conviction for second-
degree murder.

13
ignore the sounds of the abuse; (3) on the day Zachary was taken to the hospital,

she admitted she pushed Zachary out of a chair twice, both times resulting in

Zachary landing on his head; and (4) expert medical testimony at trial established

that Zachary died from “a combination of shaking and blunt force trauma.” This

evidence is sufficient. Not only did Ms. Vallo do nothing to stop Mr. Chino’s

abuse of her son, but she actively participated in the abuse that resulted in her

son’s death.

B. Ms. Vallo’s Prosecutorial Vindictiveness Claim

Next, we address Ms. Vallo’s claim that the district court should have

dismissed the second-degree murder count based upon prosecutorial

vindictiveness. We review the district court’s factual findings for clear error and

the “legal principles which guide the court de novo.” United States v. Lampley ,

127 F.3d 1231, 1245 (10th Cir. 1997) (citing United States v. Raymer , 941 F.2d

1031, 1039 (10th Cir. 1991)).

To establish a claim of prosecutorial vindictiveness, Ms. Vallo must prove

either “(1) actual vindictiveness, or (2) a realistic likelihood of vindictiveness

which will give rise to a presumption of vindictiveness.” Lampley , 127 F.3d at

1245 (citing United States v. Goodwin , 457 U.S. 368, 376, 380-81, 384 & n.19

(1982)). If the defendant is successful in meeting this burden, the prosecution

must “justify its decision with legitimate, articulable, objective reasons.”

14
Raymer , 941 F.2d at 1040 (citations omitted).

In this case, Ms. Vallo has brought forth no evidence of actual

vindictiveness, but argues that there was a realistic likelihood of vindictiveness

in the actions of the government. Aplt. Br. (99-2328) at 17-18. Ms. Vallo’s

basic argument is that because she did not tell the government what it wanted to

hear during the two debriefing sessions, the government retaliated by charging

her with second-degree murder. Id. at 14, 17; see also IX (99-2238) at 18 (Feb.

3, 1999 Hr’g Tr.) (“[S]he’s being punished because she chose not to follow

through with the plea offer, because she didn’t give them what they wanted to

hear on Mr. Chino. I’m submitting to the Court the government is singling her

out and punishing her because she’s not taking a plea bargain.”).

The Supreme Court has “generally rejected the presumption of

prosecutorial vindictiveness in the pretrial context.” Lampley , 127 F.3d at 1245

(citing Goodwin , 457 U.S. at 381-84). “[I]n the ‘give-and-take’ of plea

bargaining, there is no . . . element of punishment or retaliation so long as the

accused is free to accept or reject the prosecution’s offer.” Bordenkircher v.

Hayes , 434 U.S. 357, 363 (1978). “[S]o long as the prosecutor has probable

cause to believe that the accused committed an offense defined by statute, the

decision whether or not to prosecute, and what charge to file or bring before a

grand jury, generally rests entirely in [the prosecutor’s] discretion.” Id. at 364.

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 The record does not support Ms. Vallo’s claim. She and the government

entered into plea negotiations. Before beginning a debriefing, Ms. Vallo, her

attorney, and the government signed a debriefing agreement which stated that

“the Government will not offer in evidence on its case-in-chief, or in connection

with any sentencing proceeding . . . , any statements made by [Ms. Vallo] at the

meeting . . . .” Aplee. Br. (99-2328) at 40 (debriefing agreement). The

government complied with this promise. IX R. at 13 (Feb. 3, 1999 H’rg Tr.). At

the evidentiary hearing on the motion, the government proffered that it received

new expert medical testimony that indicated Ms. Vallo’s actions had helped cause

Zachary’s death. Id. at 6-7. In addition, it argued that it had doubts as to Ms.

Vallo’s veracity during the debriefing sessions. Id. at 11. Based on these

plausible factors, the government explained its charging decision and the district

court did not err in rejecting the prosecutorial vindictiveness claim.

C. Ms. Vallo’s Sentencing Claim

Finally, Ms. Vallo argues that the district court erred in not granting her a

downward adjustment in her sentence for acceptance of responsibility under

U.S.S.G. § 3E1.1 (1998). We review the district court’s application of the

Sentencing Guidelines de novo and the district court’s factual determinations for

clear error, “giving due deference to the district court’s application of the

guidelines to the facts.” United States v. Patron-Montano , 223 F.3d 1184, 1188

16
(10th Cir. 2000). “A district court’s factual finding is clearly erroneous only if it

is without factual support in the record or if [this] court, after reviewing all the

evidence, is left with a definite and firm conviction that a mistake has been

made.” Id. at 1188 (internal quotations and citation omitted).

Ms. Vallo argues that she made a “timely, complete, and inculpatory

confession admitting that she had pushed her child off a chair” and that she “has

never tried to minimize” her actions. Aplt. Br. (99-2328) at 26. However, the

district court found otherwise, stating “[s]he did admit to generally tapping his

crib or chair and pushing him over but I don’t think that constitutes acceptance of

responsibility for what happened to him, or for the conduct that resulted in his

death. Sent. Tr. (99-2328) at 7 (Nov. 3, 1999). The district court did not clearly

err in denying Ms. Vallo a downward adjustment for acceptance of responsibility.

AFFIRMED.

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