United States v. Pettigrew

UNITED STATES CO URT O F APPEALS

TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,

v. No. 05-2187

DAVID PETTIGREW ,

Defendant-Appellant.

Before TA CH A, Chief Circuit Judge, SEYM OUR, and BR ISC OE, Circuit
Judges.

OR DER
Filed October 12, 2006

This matter is before us on Defendant-Appellant David Pettigrew’s motion

for panel rehearing or rehearing en banc. In United States v. Pettigrew, 455 F.3d

1164 (10th Cir. 2006) we affirmed M r. Pettigrew’s conviction and sentence,

holding, in part, that a “finding of purpose, know ledge, or recklessness supports a

conviction for assault resulting in serious bodily injury,” see id. at 1175, and that

an upward departure for the defendant’s excessive recklessness in comm itting

such an assault is a permissible grounds for a departure under United States

Sentencing Guidelines M anual § 5K2.0, see id. at 1176. M r. Pettigrew seeks
rehearing of this issue arguing that it conflicts with Koon v. United States, 518

U.S. 81, 96 (1996) and United States v. Wolfe, 435 F.3d 1289, 1296–97 (10th Cir.

2006) to the extent that a Guidelines departure is only warranted when the case

falls outside the heartland that each offense Guideline carves out. W e GRANT

M r. Pettigrew’s petition for panel rehearing for the limited purpose of clarifying

our discussion of this issue. The Opinion filed on July 27, 2006 is vacated and

the attached revised opinion is substituted in its place.

Entered for the Court
ELISABETH A. SHUM AKER, Clerk

by:
Deputy Clerk

2
 F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
October 12, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,

v. No. 05-2187

DAVID PETTIGREW ,

Defendant-Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE D ISTRICT OF NEW M EXICO
(D . C t. N o. 04-C R-888-LH )

M ichael A. Keefe, Assistant Federal Public D efender, Office of the Federal Public
Defender for the District of New M exico, Albuquerque, New M exico, appearing
for Appellant.

Laura Fashing, Assistant United States Attorney (David C. Iglesias, United States
Attorney, with her on the brief), Office of the United States Attorney for the
District of New M exico, Albuquerque, New M exico, appearing for Appellee.

Before TA CH A, Chief Circuit Judge, SEYM OUR, and BR ISC OE, Circuit
Judges.

TA CH A, Chief Circuit Judge.

Following a jury trial, Defendant-Appellant David Pettigrew was convicted

of one count of involuntary manslaughter in violation of 18 U.S.C. §§ 1153 and
1112, two counts of assault resulting in serious bodily injury in violation of 18

U.S.C. §§ 1153 and 113(a)(6), and one count of assault by wounding in violation

of 18 U .S.C. §§ 1153 and 113(a)(4). He was sentenced to 126 months’

imprisonment. He now appeals both his conviction and sentence. W e take

jurisdiction under 28 U.S.C. § 1291 and AFFIRM .

I. BACKGROUND

In the morning hours of April 18, 2004, M r. Pettigrew drove his truck to a

friend’s house and picked him up to go for a ride. As they drove around the area

making various stops, the pair consumed twenty-four beers. M r. Pettigrew then

dropped his friend off at home at 4:30 in the afternoon. Although it is unclear

what M r. Pettigrew did after he dropped off this friend, at approximately 10:00

p.m. M r. Pettigrew drove to Odell Yazzie’s trailer, w here M r. Yazzie lived with

his girlfriend and parents. M r. Pettigrew asked M r. Yazzie to go with him to buy

more alcohol. M r. Yazzie agreed to go and testified that he got into the passenger

side of the truck even after noticing that M r. Pettigrew was intoxicated. Although

M r. Pettigrew maintains that M r. Yazzie drove M r. Pettigrew ’s truck, and that M r.

Pettigrew was in the passenger’s seat, the jury concluded that the evidence

supported the G overnment’s position that M r. Pettigrew was in fact the driver.

The two men headed westbound on Highway 64, a four-lane highway with

a posted speed limit of sixty miles per hour. Upon entering the highway, M r.

Pettigrew began sw erving and other drivers blared their horns to warn him to

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“drive right.” After traveling a few miles, M r. Pettigrew abruptly turned left

across the dirt median and attempted to drive across the eastbound traffic tow ard

a residence on the South side of the highway. As M r. Pettigrew crossed the

eastbound lanes, M r. Yazzie noticed a van headed toward the passenger side of

the truck. M r. Yazzie yelled at M r. Pettigrew to “step on it” but M r. Pettigrew

continued to drive slowly across the lanes. The van swerved to the right in an

effort to avoid striking the passenger side of the truck. Consequently, the truck

hit the back end of the driver’s side of the van, causing it to flip three to four

times. The van was occupied by the four members of the Beasley family— Carrie,

Jason, and the couple’s two young daughters. Carrie died in the accident and the

other three Beasleys sustained moderate to serious injuries.

After the collision, M r. Pettigrew ’s truck spun out and came to a stop for a

few moments. Shortly thereafter, M r. Pettigrew righted the vehicle and headed

east along Highway 64. M r. Yazzie tried to convince M r. Pettigrew to stop the

truck, but M r. Pettigrew refused. M r. Yazzie then grabbed the steering wheel,

shifted the car into neutral, pushed on the brakes, and jumped out the passenger

side window because the door would not open. M r. Yazzie started walking back

home and M r. Pettigrew took off again.

Law enforcement officers were dispatched to the scene of the accident.

They found M r. Pettigrew’s abandoned truck in a field next to the highway a mile

and a half from the crash site. Deputy Anthony Ashcroft, an officer with the San

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Juan County Sheriff’s Department, noticed that the driver’s side door was open

and saw a set of footprints leading away from that door. He followed the

footprints and eventually found M r. Pettigrew crouching under a bush.

Because they were in Indian country, Deputy Ashcroft did not have

jurisdiction to formally arrest M r. Pettigrew, so the deputy detained him by

placing him in handcuffs. W hen he did so he asked whether M r. Pettigrew knew

what he had done, to which M r. Pettigrew responded, “Yeah, I fucked up my ride,

now I got to get a new one.” Deputy Ashcroft then told M r. Pettigrew that he

might have killed someone in the accident. M r. Pettigrew responded by saying, “I

still got to get a new ride” (hereinafter “first statement”). Deputy Ashcroft then

escorted M r. Pettigrew , who had a difficult time w alking, back to the field w here

M r. Pettigrew left his truck, and handed him over to Navajo Police Officer Ron

W illiams.

Officer W illiams transported M r. Pettigrew to the Shiprock detention

center, w here M r. Pettigrew voluntarily submitted to a breath-alcohol test.

During this time, an unidentified officer asked M r. Pettigrew whether he had been

drinking that night, to which M r. Pettigrew responded, “yes, I was drinking”

(hereinafter “second statement”). Then, while taking the blood-alcohol test, M r.

Pettigrew asked Officer W illiams why he was arrested and what the charges

against him were. Officer W illiams informed M r. Pettigrew that he had been

arrested for driving while intoxicated and that he might have been involved in an

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accident in w hich people were hurt. M r. Pettigrew stated, “I saw it at the last

minute. I hit it and took off” (hereinafter “third statement”). M r. Pettigrew made

all these statements prior to receiving M iranda warnings. 1

The following day, Navajo Tribal Criminal Investigator Sammy Ahkeah

attempted to interview M r. Pettigrew about his involvement in the accident.

Investigator Ahkeah informed M r. Pettigrew of the charges he was facing and

explained to him his M iranda rights. Thereafter, M r. Pettigrew refused to provide

a statement and invoked his right to counsel.

M r. Pettigrew filed a pretrial motion to suppress all his statements made

prior to receiving M iranda warnings. He argued that the first two statements

were custodial interrogations that must be suppressed under M iranda v. Arizona,

384 U.S. 436 (1966). He argued that the third statement was either a custodial

interrogation or, in the alternative, was fruit of the poisonous tree— the poisonous

tree being the first two statements obtained in violation of M iranda— and

therefore must also be suppressed. The District Court granted the motion as to

the first statement since it was the product of a custodial interrogation. The court

did not rule on the admissibility of the second statement based on the

1
M r. Pettigrew also made incriminating statements to his cellmate, W ayne
Benally, but he does not contend that they were obtained in violation of M iranda
as M r. Benally was not a law enforcement officer.

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Government’s assertion that it did not intend to use the admission at trial. 2

Finally, the court held that the third statement was admissible because M r.

Pettigrew failed to show either that the statement was made in response to

“express questioning or its functional equivalent,” Rhode Island v. Innis, 446 U.S.

291, 300–01 (1980), or that it w as tainted by the original unlawful interrogation.

At trial, the Government sought to admit into evidence a photograph

depicting all four members of the Beasley family, including Carrie Beasley while

she was living. M r. Pettigrew objected, arguing that it was not offered for any

proper purpose and that it would be unduly prejudicial. The District Court stated

that it would allow the photo to be admitted for the purpose of identification of

the victims. Despite this ruling, the Government did not actually move the photo

into evidence. Instead, the Government merely displayed the photo during its

opening statement, used it to establish M s. Beasley’s identity through the

testimony of M r. Beasley, and displayed it again during its closing arguments.

The jury convicted M r. Pettigrew on all counts.

Subsequently, the probation office prepared a presentence report (“PSR”).

It calculated the adjusted offense level for M r. Pettigrew ’s involuntary

manslaughter conviction as 22. See U.S. Sentencing Guidelines M anual

(“U.S.S.G.” or “Guidelines”) § 2A1.4(a)(2)(B). The PSR also determined the

2
In fact, M r. Pettigrew elicited this statement on cross-examination of
Officer W illiams.

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adjusted offense level for each of the two assaults resulting in serious bodily

injury as 21. See U.S.S.G. § 2A2.2. The assault by wounding conviction, which

is a Class B misdemeanor, is not governed by the Guidelines. See U.S.S.G.

§ 1B1.9. Under the grouping rules in § 3D1.4, the total adjusted offense level for

the three felonies was 25. The PSR calculated M r. Pettigrew ’s criminal history

category as III, based upon a prior conviction for second-degree murder and

because he committed the instant offenses less than two years after his release

from custody and while still on supervised release. See U.S.S.G. § 4A1.1(a), (d),

(e). Accordingly, the PSR determined that the applicable guidelines range was

70–87 months’ imprisonment. 3 The PSR also noted possible bases existed for an

upward departure: M r. Pettigrew’s excessively reckless behavior, see U.S.S.G.

§ 5K2.0, and M r. Pettigrew ’s criminal history category substantially under-

represents the seriousness of his criminal history and the likelihood that he will

commit future crimes, see U.S.S.G. § 4A1.3(a)(1).

At the sentencing hearing, the District Court adopted the PSR’s factual

findings, including the adjusted offense level of 25 and criminal history category

III. The court then departed upward two offense levels based on M r. Pettigrew ’s

excessive recklessness, and departed upward one criminal history category on the

ground that M r. Pettigrew ’s criminal history category substantially under-

3
The involuntary manslaughter conviction carries a statutory maximum
sentence of 72 months’ imprisonment. 18 U.S.C. § 1112.

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represents the seriousness of his criminal history. This resulted in a guidelines

range of 100–125 months’ imprisonment. The court imposed the statutory

maximum sentence for each of the two assaults, 120 months’ imprisonment, to

run concurrently with his sentence for involuntary manslaughter, 72 months’

imprisonment. The court also imposed six months’ imprisonment for the

misdemeanor assault, to run consecutively with the other convictions. This

resulted in a total sentence of 126 months.

M r. Pettigrew raises four claims on appeal: (1) the District Court erred in

denying his motion to suppress the third statement; (2) the District Court abused

its discretion in admitting the photographic evidence at trial; (3) there was

insufficient evidence to support the assault convictions; and (4) his sentence is

unlawful. W e address each argument in turn.

II. THE CONVICTIONS

A. The Confession

W hen a party challenges a district court’s ruling on a motion to suppress a

confession, we review its conclusions of law de novo and its factual findings for

clear error. United States v. Guerrero-Hernandez, 95 F.3d 983, 986 (10th Cir.

1996). W e consider the evidence in the light most favorable to the district court’s

determination. United States v. Lopez, 437 F.3d 1059, 1062 (10th Cir. 2006).

Our de novo review includes “the ultimate issue of whether a statement was

voluntary, taking into account the totality of the circumstances surrounding the

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confession.” Id. Finally, it is the Government’s burden to show, by a

preponderance of the evidence, that a confession was voluntary. Id. at 1063.

A s an initial matter, M r. Pettigrew does not contest that his first two

statements were voluntary, albeit made in violation of M iranda. Further, he no

longer argues that his third statement was the product of a custodial interrogation.

Accordingly, it is undisputed that if M r. Pettigrew’s third statement was the only

statement he made, it would be admissible because it was volunteered and not

made in response to any question posed by Officer W illiams. See Miranda, 384

U.S. at 478 (explaining that “[t]he fundamental import of the privilege [against

compelled self-incrimination] while an individual is in custody is not whether he

is allowed to talk to the police without the benefit of warnings and counsel, but

whether he can be interrogated”); see also United States v. Abdulla, 294 F.3d 830,

835 (7th Cir. 2002) (volunteered statements made while in custody but not in

response to questions posed by the police are not subject to the M iranda

exclusionary rule); M edeiros v. Shimoda, 889 F.2d 819, 823–25 (9th Cir. 1989)

(same). The essence of his argument is that his first two statements somehow

rendered his third statement inadmissible either as “fruit of the poisonous tree”

or, relatedly, because his first two statements rendered it involuntary. This

issue— that is, whether a pre-warning confession, not itself a violation of

M iranda, but obtained subsequent to two violations of M iranda, must be

suppressed— is one of first impression for this Circuit.

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 1. Fruit of the Poisonous Tree

The “fruit of the poisonous tree” doctrine is most often associated with

violations of the Fourth Amendment’s prohibition of unreasonable searches and

seizures. See Wong Sun v. United States, 371 U.S. 471 (1963). It prohibits at

trial the use of evidence obtained directly or indirectly through an unlawful search

or seizure. Id. at 484. In that context, the exclusionary rule is necessary to

“make effective the fundamental constitutional guarantees of sanctity of the home

and inviolability of the person.” Id. Stated another way, “[t]he rule is calculated

to prevent, not to repair. Its purpose is to deter— to compel respect for the

constitutional guaranty in the only effectively available way— by removing the

incentive to disregard it.” Brown v. Illinois, 422 U.S. 590, 599–600 (1975).

Accordingly, the exclusionary rule as it applies to the Fourth Amendment is broad

and witnesses and evidence (including confessions), no matter how probative,

discovered only as a result of a Fourth Amendment violation, must be excluded

from evidence. Wong Sun, 371 U.S. at 485–86; Oregon v. Elstad, 470 U.S. 298,

306 (1985). 4

On the other hand, M iranda’s exclusionary rule serves the Fifth

4
That said, suppression of a confession following a Fourth Amendment
violation is not absolute. Even under the “broad” application of the “fruits”
doctrine applied in Fourth Amendment cases, a confession may be properly
admitted into evidence if it is voluntarily made (assuming no M iranda violation)
and there is a “sufficient break in events to undermine the influence that the
confession was caused by the Fourth Amendment violation.” Elstad, 470 U.S. at
306; Wong Sun, 371 U.S. at 491.

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Amendment. Elstad, 470 U.S. at 305–06. The Fifth Amendment’s Self-

Incrimination Clause bars the prosecution from using compelled testimony in its

case-in-chief and is therefore primarily concerned with conduct at trial. Id. at

306–07. Prior to M iranda, the admissibility of a suspect’s in-custody statements

“was judged solely by whether they were ‘voluntary’ within the meaning of the

Due Process Clause.” Id. at 304 (citing Haynes v. Washington, 373 U.S. 503

(1963); Chambers v. Florida, 309 U.S. 227 (1940)). The rule in M iranda arose

out of a concern that the “possibility of coercion inherent in custodial

interrogations unacceptably raises the risk that a suspect’s privilege against

self-incrimination might be violated.” United States v. Patane, 542 U.S. 630, 639

(2004) (citing Dickerson v. United States, 530 U.S. 428, 434–35 (2000) and

M iranda, 384 U.S. at 467). As such, a police officer’s failure to administer

M iranda warnings prior to a custodial interrogation “creates a presumption of

compulsion,” Elstad, 470 U.S. at 307, and the confession is inadmissible with no

need for the “time-consuming and difficult enquiry into voluntariness,” Patane,

542 U.S. at 646 (Souter, J., dissenting).

Unlike evidence obtained through a Fourth Amendment violation, however,

the M iranda presumption does not require that the “fruits [of unlawfully obtained

confessions] be discarded as inherently tainted.” Elstad, 470 U.S. at 307. Indeed,

the Supreme Court has rejected automatic application of the “fruits” doctrine to

violations of the M iranda rule on several occasions. See M issouri v. Seibert, 542

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U.S. 600, 619 (2004) (Kennedy, J., concurring) (stating that “the scope of the

M iranda suppression remedy depends on a consideration” of whether the central

concerns of M iranda are implicated as well as the objectives of the criminal

justice system). For example, the prosecution is still permitted to use statements

taken in violation of M iranda for impeachment purposes on cross-examination,

see Harris v. New York, 401 U.S. 222 (1971); the prosecution may still introduce

testimony of a third party whose whereabouts w ere determined through statements

obtained in violation of M iranda, see Michigan v. Tucker, 417 U.S. 433 (1974);

and the prosecution may still introduce physical evidence seized as a result of a

M iranda violation, see Patane, 542 U .S. 630. Notably, the Court has also

declined to apply the “fruits” doctrine to analyze the admissibility of a subsequent

warned confession that followed an earlier violation of M iranda. See Elstad, 470

U.S. 298.

All the aforementioned cases recognize that in determining “how sweeping

the judicially imposed consequences of a failure to administer M iranda warnings

should be,” consideration must be given to the dual goals of M iranda: the

“general goal of deterring improper police conduct” and “the Fifth Amendment

goal of assuring trustworthy evidence.” Id. at 308 (internal citations and

quotations omitted). The unwarned confession taken in violation of M iranda

must be suppressed, but it does not necessarily follow that every subsequent

voluntary statement made by a suspect must be suppressed as well. M iranda

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itself recognized that “[a]ny statement given freely and voluntarily without any

compelling influences is, of course, admissible in evidence.” 384 U.S. at 478.

Indeed, Elstad recognized that custodial statements made prior to the

delivery of M iranda warnings do not necessitate exclusion of any subsequent

confession. There, the suspect made his first incriminating statement voluntarily,

albeit without first being given M iranda warnings. He was later advised of his

rights, which he waived, and executed a written confession. The Court held that

“a suspect who has once responded to unwarned yet uncoercive questioning is not

thereby disabled from waiving his rights and confessing after he has been given

the requisite M iranda warnings.” Elstad, 470 U.S. at 318.

W e acknowledge that the facts upon which Elstad is based differ from

those at issue here because unlike the petitioner in Elstad, M r. Pettigrew was not

warned prior to making the challenged confession. Nevertheless, we think that

Elstad’s underpinnnings control this case. Indeed, two of our sister circuits have

held that statements made without M iranda warnings but not in response to police

interrogation are admissible even though they followed an earlier voluntary

statement made in violation of M iranda. See Abdulla, 294 F.3d at 835; M edeiros,

889 F.2d at 823–25. Both courts relied on Elstad’s conclusion that:

It is an unwarranted extension of M iranda to hold that a simple
failure to administer the warnings, unaccompanied by any actual
coercion or other circumstances calculated to undermine the
suspect’s ability to exercise his free will, so taints the investigatory
process that a subsequent voluntary and informed waiver is

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 ineffective for some indeterminate period. . . . [T]he admissibility of
any subsequent statement should turn in these circumstances solely
on whether it is knowingly and voluntarily made.

470 U.S. at 309. Today we join the Seventh and Ninth Circuits in holding that the

admissibility of an unsolicited inculpatory statement, following a voluntary

statement made in violation of M iranda, turns on whether the inculpatory

statement w as knowingly and voluntarily made. Id. at 309. In the absence of

coercion or improper tactics, a broader rule would “undercut[] the twin rationales

[of M iranda’s exclusionary rule]— trustworthiness and deterrence.” Id. at 308.

M r. Pettigrew suggests, however, that the Supreme Court’s recent decisions

in Patane and Siebert, which discuss the “fruits” doctrine as it applies to M iranda

violations, require a contrary holding. To this end, M r. Pettigrew suggests that

the four dissenters in Patane who believed that the “fruits” doctrine may extend

to physical evidence obtained from a confession made in violation of M iranda,

combined with Justice Kennedy’s concurrence in Siebert— which provided the

crucial fifth vote needed to find that M iranda warnings given mid-interrogation,

in an effort to deliberately undermine M iranda itself, failed to render the

subsequent confession voluntary— combine to favor application of the “fruits”

doctrine to this case. To the contrary, we are convinced that these decisions

support, rather than undermine, our holding today.

Importantly, the Court in Seibert recognized that the touchstone of a

confession’s admissibility is whether it is voluntarily given. 542 U.S. at 612 n.4.

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As in Elstad, it explicitly declined to apply the “fruits” doctrine for confessions

obtained after M iranda warnings were given. Id. Further, in his concurrence,

Justice Kennedy notes that not every M iranda violation requires suppression of

the evidence obtained thereafter. Rather, “[e]vidence is admissible when the

central concerns of M iranda are not likely to be implicated and when other

objectives of the criminal justice system are best served by its introduction.” Id.

at 618–19 (Kennedy, J., concurring). As noted above, admission of M r.

Pettigrew’s third statement would not likely implicate M iranda’s central

concern— introduction into evidence of a criminal defendant’s compelled

testimony— and the truth-finding mission of the criminal justice system is best

served by its introduction.

2. Voluntariness

Having concluded that the “fruits” doctrine does not warrant automatic

exclusion of M r. Pettigrew’s third statement, we must still determine whether it

was voluntarily made.

Here, the only possible source of coercion that would have rendered M r.

Pettigrew’s third statement involuntary is “the psychological impact of having let

the cat out of the bag” with the prior statements. M edeiros, 889 F.2d at 823.

This “cat out of the bag” theory was first recognized by the Supreme Court in

United States v. Bayer, 331 U.S. 532 (1947). There, the Court explained:

[A]fter an accused has once let the cat out of the bag by confessing,

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 no matter what the inducement, he is never thereafter free of the
psychological and practical disadvantages of having confessed. He
can never get the cat back in the bag. The secret is out for good. In
such a sense, a later confession always may be looked upon as fruit
of the first. But this Court has never gone so far as to hold that
making a confession under circumstances which preclude its use,
perpetually disables the confessor from making a usable one after
those conditions have been removed.

Id. at 540–41.

M r. Pettigrew appears to argue that statements made after a M iranda

violation and before M iranda warnings must generally be excluded as inherently

coerced. But “endowing the psychological effects of voluntary unwarned

admissions with constitutional implications” would, practically speaking,

immunize a suspect from the consequences of any subsequent spontaneous

remarks “even when the official coercion proscribed by the Fifth Amendment

played no part in either . . . confession[].” See Elstad, 470 U.S. at 311. Such

immunity would come at “at a high cost to legitimate law enforcement activity,

while adding little desirable protection to the individual’s interest in not being

compelled to testify against himself.” Id. at 312. Accordingly, a presumption of

compulsion stemming from M r. Pettigrew’s prior admissions is not warranted.

Instead, we consider whether M r. Pettigrew’s third admission was

voluntary based on a totality of the circumstances. See Lopez, 437 F.3d at 1063;

United States v. Perdue, 8 F.3d 1455, 1467 (10th Cir. 1993) (admissibility of a

subsequent confession depends on w hether the “coercion surrounding the first

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statement had been sufficiently dissipated so as to make the second statement

voluntary”). The question we must resolve “is whether the confession is the

product of an essentially free and unconstrained choice by its maker.” Lopez, 437

F.3d at 1063 (quotations and alterations omitted). If so, it may be used against

him. Id. If instead “his will has been overborne and his capacity for

self-determination critically impaired, the use of his confession offends due

process.” Id. To answer this question, we “examine the surrounding

circumstances and the entire course of police conduct.” Elstad, 470 U.S. at 318.

W e conclude that M r. Pettigrew’s third statement was voluntary. He admits

that his first two statements were voluntary. W ith regard to M r. Pettigrew’s first

statement, Deputy Ashcroft merely asked him if he knew what he had done.

W hen M r. Pettigrew responded that he wrecked his car, Deputy Ashcroft told him

that he may have hurt someone in the process. M r. Pettigrew’s second statement,

though also taken in violation of M iranda, did not implicate him as the driver of

the vehicle. He merely told an unidentified officer that he had been drinking that

night, which w as shortly confirmed by the breath-alcohol test. He made his third

statement a half an hour after his first statement, in a different location, and to a

different officer. Although he was in custody at the time, he was not handcuffed,

and his statement was spontaneous and not in response to any questioning by

Officer W illiams. In fact, Officer W illiams never interrogated M r. Pettigrew and

there is nothing to indicate that the police were attempting to use M r. Pettigrew ’s

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first two statements to obtain another incriminating statement. Even considering

some lingering psychological effect of his first two statements, based on the

totality of the circumstances, we conclude that the third statement was “an

essentially free and unconstrained choice by its maker.” Lopez, 437 F.3d at 1063;

see also Elstad, 470 U.S. at 304–05 (stating that the Fifth Amendment is not

“concerned with moral and psychological pressures to confess emanating from

sources other than official coercion”); Abdulla, 294 F.3d at 836–37 (reaching

same conclusion on similar facts); M edeiros, 889 F.2d at 824–25 (same).

As to M r. Pettigrew’s contention that the District Court abused its

discretion in failing to hold an evidentiary hearing on his motion to suppress, see

United States v. Glass, 128 F.3d 1398, 1408–09 (10th Cir. 1997), we conclude

that there was no such abuse. An evidentiary hearing may be appropriate when

there are material facts in dispute relevant to the motion to suppress, see id., but

here, the Government conceded the facts as related by M r. Pettigrew.

B. Photographic Evidence

M r. Pettigrew next challenges the display of the family photograph at trial.

He argues that the District Court’s admission of the photo was unfairly prejudicial

and warrants a new trial. Fed. R. Evid. 403. The admission of photographs into

evidence is reviewed for an abuse of discretion. United States v. Treas-Wilson, 3

F.3d 1406, 1410 (10th Cir. 1993). “[T]he district judge must balance the

prejudicial effect of the photographs against their probative value, an exercise of

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discretion that is rarely disturbed.” Id.

A photograph of a victim while living is admissible to prove the identity of

the victim. See United States v. Joe, 8 F.3d 1488, 1499 (10th Cir. 1993). The

District Court acknowledged that a photo of the victim could stir up sympathy and

emotions in the jurors, but concluded that any prejudice did not substantially

outweigh its probative value since the Government had the burden to establish the

identity of the victim. The court also cautioned the jury to “base your verdict

solely upon the evidence without prejudice or sympathy,” a sentiment echoed by

the prosecutor during his closing argument.

W e cannot say that the District Court abused its discretion in permitting the

jury to see the photo during several phases of the trial. W e are troubled by the

Government’s decision to display a photo of Carrie Beasley with the rest of her

family and refer to it while saying that she did not make it home that night. But

all four of the individuals depicted in the photo were victims in the crime. Three

of them— including Carrie Beasley— did not appear in court. “Relevant evidence

is inherently prejudicial; but it is only unfair prejudice, substantially outweighing

probative value, which permits exclusion of relevant matter . . . .” United States v.

Sides, 944 F.2d 1554, 1563 (10th Cir. 1991) (quotation omitted). Accordingly,

w e w ill not disturb the D istrict C ourt’s balancing of these factors. That said, w e

must admonish the Government— the proffering of a photograph of the deceased

victim, while living and posed with her family, as opposed to a photo depicting

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only the decedent, “needlessly pushes the prosecutorial envelope, and could, if

coupled with errors not present here, jeopardize a conviction.” United States v.

Jones, 24 Fed. App’x. 968, 975 (10th Cir. 2001).

C. Sufficiency of the Evidence

Next, M r. Pettigrew argues that the Government failed to present sufficient

evidence of his intent to assault. W e review claims of insufficient evidence de

novo. United States v. LaVallee, 439 F.3d 670, 697 (10th Cir. 2006). “Evidence

is sufficient to support a conviction if, viewing the evidence in the light most

favorable to the government, a reasonable jury could have found the defendant

guilty beyond a reasonable doubt.” Id. (quoting United States v. Hien Van Tieu,

279 F.3d 917, 921 (10th Cir. 2002)).

Assault is a general intent crime, and we recently held that “a finding of

purpose, knowledge, or recklessness supports a conviction for assault resulting in

serious bodily injury, in violation of 18 U.S.C. § 113(a)(6).” 5 United States v.

Zunie, 444 F.3d 1230, 1235 (10th Cir. 2006) (citing M odel Penal Code §

211.1(2)(a)). Stated another w ay, “[a] person is guilty of assault if he . . .

purposely, knowingly or recklessly causes bodily injury to another.” M odel Penal

Code § 211.1(2)(a).

The jury instructions provided as an essential element of all three assault

5
W e see no meaningful reason to treat assault under 18 U.S.C. § 113(a)(4),
which is also a general intent crime, any differently.

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charges that the jury had to find that M r. Pettigrew acted “intentionally” in

striking or in wounding the Beasleys. The instructions further explained that the

intent element “may not ordinarily be proved directly because there is no way of

directly scrutinizing the workings of the human mind.” Therefore, the jury was

told that they “may infer . . . that a person intends the natural and probable

consequences of acts knowingly done or knowingly omitted.” This inference

could be based on “all of the surrounding circumstances, such as the manner in

which the defendant acts, the means used, the conduct, and any statements made

by the defendant.” Finally, “[t]he word ‘knowingly’ as that term has been used . .

. in these instructions, means that the act was done voluntarily and intentionally,

and not because of mistake or accident.”

The jury in this case could reasonably infer that by driving while

voluntarily intoxicated, M r. Pettigrew “intended” the resulting “natural and

probable consequences” of that action. Cf. Zunie, 444 F.3d at 1236 (10th Cir.

2006) (affirming conviction under 18 U.S.C. § 113(a)(6) where drunk-driving

defendant injured child in crash); United States v. Ashley, 255 F.3d 907 (8th

Cir.2001) (same); United States v. Loera, 923 F.2d 725, 730 (9th Cir. 1991)

(same). Evidence at trial demonstrated that M r. Pettigrew drove to M r. Yazzie’s

house and asked if he w ould accompany him to buy more alcohol; that M r.

Pettigrew got in the driver’s seat and drove to Highway 64; that he drove in a

manner that caused other drivers to honk at him, warning him of the danger he

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posed; that he crossed the dirt median and the eastbound lanes of Highway 64;

and that he continued to cross the lanes slowly despite M r. Yazzie’s w arning to

“speed it up.” Taking this evidence in the light most favorable to the

Government, there was sufficient evidence to support the convictions.

III. THE SENTENCE

M r. Pettigrew argues that the District Court misapplied the Guidelines in

departing upwards. “Even after Booker, ‘when reviewing a district court's

application of the Sentencing Guidelines, we review legal questions de novo and

we review any factual findings for clear error, giving due deference to the district

court’s application of the guidelines to the facts.’” United States v. Wolfe, 435

F.3d 1289, 1295 (10th Cir. 2006) (quoting United States v. M artinez, 418 F.3d

1130, 1133 (10th Cir. 2005)). W e review a D istrict Court’s upward departure

under a “unitary abuse of discretion standard,” which “involves

review to determine that the district court’s discretion was not guided by

erroneous legal conclusions.” Id. (alteration and quotation omitted). Finally, w e

review the ultimate sentence imposed for reasonableness. United States v. M ares,

441 F.3d 1152, 1159 (10th Cir. 2006).

M r. Pettigrew argues that the District Court erred in departing

upward on the grounds that M r. Pettigrew’s conduct was excessively reckless and

because his criminal history category was substantially underrepresented by his

criminal history score. As to M r. Pettigrew’s first contention, the Guidelines

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permit departure under § 5K2.0 based on circumstances present to a degree not

adequately taken into account elsewhere in the Guidelines. M r. Pettigrew

contends, however, that a departure for excessive recklessness is not permitted in

this instance because acting with excessive recklessness constitutes a lesser

degree of culpability than that required to comm it an assault. 6 To the contrary, as

noted above assault is a general intent crime and “a finding of purpose,

knowledge, or recklessness supports a conviction for assault resulting in serious

bodily injury.” Zunie, 444 F.3d at 1235.

M r. Pettigrew argues, however, that because § 2A2.2, the Guideline

relevant to his assault conviction, necessarily takes into consideration intentional

conduct (a more culpable mental state than recklessness), a defendant’s

“excessive recklessness” can never be outside the heartland of assault cases. See

Koon v. United States, 518 U.S. 81, 96 (1996) (departures are warranted when

circumstances exist that “take the case outside of the G uideline’s heartland”);

United States v. Wolfe, 435 F.3d 1289, 1296–97 (10th Cir. 2006) (same).

“[W]hether the facts of a particular case are sufficient to take this case outside the

guidelines’ heartland of similar cases, is a factual inquiry which this court

reviews for an abuse of discretion.” Wolfe, 435 F.3d at 1298.

6
M r. Pettigrew correctly notes that the upward departure could not be
applied to the involuntary manslaughter conviction because the applicable
sentencing range for that count, prior to any departure, was 70–72 months, and
the applicable statutory maximum was 72 months.

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 The typical assault case covered by § 2A2.2 involves a single victim.

United States v. M oore, 997 F.2d 30, 36–37 (5th Cir. 1993). Even an intentional

assault with respect to the victim may be committed in an excessively reckless

manner with regard to others. Indeed, courts have acknowledged that

endangering third parties is a valid basis for departure in similar circumstances.

See, e.g., Wolfe, 435 F.3d at 1300 (observing that an upward departure for

excessive reckless may be warranted when the defendant’s conduct poses a threat

to public safety); United States v. Hardy, 99 F.3d 1242, 1249–52 (1st Cir. 1996)

(rejecting a challenge to a sentencing court’s upward departure based on the

unusual level of risk to others associated with defendant’s illegal possession of

firearms under § 5K2.0); M oore, 997 F.2d at 37 (holding that a court may depart

upward based upon a third party’s injury in an assault case). Section 2A2.2 does

not take into consideration the risks posed to third parties by a defendant’s

assaultive conduct. M oore, 997 F.2d at 37. Accordingly, a defendant’s excessive

recklessness in committing an assault may take the case outside the heartland of

assault cases.

Here, the District Court determined that M r. Pettigrew’s conduct— driving

while intoxicated with a blood-alcohol level of approximately three times the

legal limit and crossing the highway against traffic— showed “severe” disregard

for human life, especially in light of M r. Pettigrew’s history of alcohol abuse

resulting in the death of at least one other person. In other words, M r. Pettigrew

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was “on notice of his propensity to drink . . . and the dangerousness of such

conduct.” United States v. Jones, 332 F.3d 1294, 1302 (10th Cir. 2003)

(affirming five-level upward departure for excessive recklessness based on

defendant’s blood-alcohol level at twice the legal limit and his five prior

convictions for drunk driving) (quotations and alterations omitted). Based on the

foregoing, we cannot say that the District Court abused its discretion in

concluding that M r. Pettigrew acted excessively recklessly or in departing upward

tw o offense levels based on that conduct. See id. at 1303 (the district court may

use a prior conviction to calculate both criminal history level and offense level).

Next, M r. Pettigrew argues that the criminal history departure was

impermissible. A district court may depart upward “[i]f reliable information

indicates that the defendant’s criminal history category substantially

under-represents the seriousness of the defendant’s criminal history or the

likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(1).

The District Court found that a criminal history category of III substantially

under-represents M r. Pettigrew’s criminal history because one of his prior

convictions was for second-degree murder and because he had several convictions

in tribal court which were not taken into account at all.

Here, the District Court judge had uniquely reliable information that

indicated that M r. Pettigrew’s criminal history category substantially

underrepresented the seriousness of his prior crimes— he was the one who

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sentenced M r. Pettigrew in 1997 for second-degree murder. Nonetheless, M r.

Pettigrew argues that this is not a permissible basis for departure because the

conviction was already taken into account in determining his criminal history and

because it is not one of the listed bases for departure in § 4A1.3(a)(2). As an

initial matter, nothing in § 4A1.3(a)(2) suggests that the grounds listed for

departure are the only permissible bases for departure for an inadequately

represented criminal history category. See, e.g., United States v. Lawrence, 349

F.3d 724 (4th Cir. 2003) (approving of a departure not contemplated by §

4A1.3(a)(2)); United States v. Rivera, 879 F.2d 1247, 1255 (5th Cir. 1989)

overruled on other grounds by United States v. Cotton, 535 U.S. 625 (2002)

(same). M oreover, a defendant receives three criminal history points for any

conviction resulting in sentence of imprisonment of one year and one month or

longer. U.S.S.G. § 4A1.1(a). The score does not further distinguish between the

seriousness of offenses. Thus, some crimes, like murder, are underrepresented by

the inflexible three-point addition. United States v. Yahnke, 395 F.3d 823, 825

(8th Cir. 2005); Rivera, 879 F.2d at 1255. W e are further guided on this matter

by the fact that post-Booker, two of the factors that a court must take into

consideration in fashioning an appropriate sentence are “the history and

characteristics of the defendant” and the “need . . . to protect the public from

further crimes of the defendant.” 18 U.S.C. § 3553(a)(1), (2)(C). W e therefore

conclude that this was a permissible basis for departure.

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 The District Court also found that an upward departure was warranted

based upon M r. Pettigrew’s prior convictions in tribal court. The Guidelines

expressly contemplate a departure on this basis. See U.S.S.G. § 4A1.3(a)(2)(A)

(stating that a departure may be warranted based upon “[p]rior sentence(s) not

used in computing the criminal history category (e.g., sentences for foreign and

tribal offenses)”). M r. Pettigrew had several tribal convictions including

convictions for disorderly conduct, aggravated assault, endangering the welfare of

a minor, aggravated battery, and criminal damage. He correctly points out that

some of these convictions were more than ten years old, and therefore would not

be included in the criminal history calculation if they were state or federal court

convictions. See U.S.S.G. § 4A1.2(e)(2). Nevertheless, independent of the Tribal

Court convictions, his criminal record reveals an adequate basis for the one-

criminal-history-point departure. W e therefore decline to reach all the factors the

District Court considered in finding this departure warranted. See United States

v. Harlan, 368 F.3d 870, 876 (8th Cir. 2004). W e conclude that the District

Court’s departure was permissible and that the degree of departure— one criminal

history category— was reasonable.

IV . C ON CLU SIO N

For the foregoing reasons, we AFFIRM M r. Pettigrew’s convictions and

sentence.

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