NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 16 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10512
Plaintiff-Appellee, D.C. No.
3:14-cr-08073-DGC-1
v.
CORBERT GOLDTOOTH, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted December 14, 2016**
San Francisco, California
Before: O’SCANNLAIN, GOULD, and M. SMITH, Circuit Judges.
Corbert Goldtooth appeals his second-degree murder conviction and prison
sentence. He challenges the sufficiency of the evidence, the denial of his motion to
suppress his confession, and the denial of his requested downward departures at
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
sentencing. We affirm the district court.
The Government was required to prove beyond a reasonable doubt that
Goldtooth killed Virgil Teller, with malice aforethought, not acting in reasonable
self-defense, in the Navajo Indian Reservation in the District of Arizona, and that
Goldtooth was an Indian. 18 U.S.C. §§ 1111(a), 1153. Goldtooth contests the
sufficiency of the evidence on malice aforethought and self-defense. “Evidence is
sufficient to support a conviction unless, viewing the evidence in the light most
favorable to sustaining the verdict, no rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” United States v.
Green, 592 F.3d 1057, 1065 (9th Cir. 2010).
To establish malice aforethought, “the government must prove that the
defendant killed intentionally or recklessly with extreme disregard for human life.”
Kleeman v. U.S. Parole Comm’n, 125 F.3d 725, 731 (9th Cir. 1997) (internal
quotation marks omitted). The absence of malice may be shown by evidence that
“some extreme provocation, beyond what a reasonable person could be expected to
withstand, severely impaired [the defendant’s] capacity for self-control in
committing the killing.” United States v. Quintero, 21 F.3d 885, 890 (9th Cir.
1994).
Goldtooth argues that he acted in the heat of passion after Teller attacked
Goldtooth’s adult son, Gage Goldtooth. Viewing the evidence in the light most
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favorable to the prosecution, we cannot say that no rational jury could have found
that Goldtooth killed with malice aforethought. Goldtooth went to Teller’s house
at night with weapons and other gang members in order to confront Teller about a
gang conflict, then stabbed Teller sixteen times and left him to die. Goldtooth
made no effort to get Teller assistance, abandoned the murder weapon, destroyed
evidence, and lied to the police about the murder. His calculated behavior shows
that he was capable of committing murder with malice aforethought.
“Use of force is justified when a person reasonably believes that it is
necessary for the defense of oneself or another against the immediate use of
unlawful force. . . . Force likely to cause death or great bodily harm is justified in
self-defense only if a person reasonably believes that such force is necessary to
prevent death or great bodily harm.” United States v. Keiser, 57 F.3d 847, 851 (9th
Cir. 1995) (quoting model jury instructions); see also id. (affirming that the model
jury instructions accurately state the elements of self-defense in this circuit).
Goldtooth argues that he stabbed Teller in reasonable self-defense to protect
Gage and himself from death or great bodily harm. Viewing the evidence in the
light most favorable to the prosecution, we cannot say that no rational jury would
have found that Goldtooth was not acting in reasonable self-defense. Gage’s injury
was not life threatening, but Goldtooth responded with deadly force. The jury
could have reasonably concluded that Goldtooth responded with more force than
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reasonably necessary under the circumstances, or that Goldtooth’s account of
Teller’s alleged provocation was not credible.
Admission of a defendant’s involuntary statement violates due process, and
a statement may be involuntary due to psychological coercion. United States v.
Miller, 984 F.2d 1028, 1030 (9th Cir. 1993). “[I]n extreme cases, appealing to a
defendant’s moral obligation to his or her family as leverage to coerce [a
confession] is unconstitutional,” Ortiz v. Uribe, 671 F.3d 863, 872 (9th Cir. 2011),
such as when a defendant’s ability to see his children is conditioned on cooperation
with questioning in a coercive environment. See, e.g., Lynumn v. Illinois, 372 U.S.
528, 534 (1963); Brown v. Horell, 644 F.3d 969, 980–81 (9th Cir. 2011); United
States v. Tingle, 658 F.2d 1332, 1336 (9th Cir. 1981). However, it is permissible
to make psychological appeals to a defendant’s conscience, including to his moral
obligations to his children, which do not rise to the level of coercion. Ortiz, 671
F.3d at 872.
Goldtooth argues that his confession was involuntary because he confessed
only after the FBI agent mentioned his son Gage. Goldtooth consented to the
interview, waived his Miranda rights, and was experienced in the criminal justice
system. Although the agent implied that Gage was a suspect, and appealed to
Goldtooth’s desire to protect his son, the questioning was well within the
permissible psychological techniques we recognized in Ortiz. Id. Questioning a
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suspect about an adult and fellow gang member who is a legitimate suspect is
materially different than mentioning a defendant’s child for coercive purposes
when the child has nothing to do with the suspected crime. See, e.g., Tingle, 658
F.2d at 1336.
Goldtooth argues that his sentence is substantively unreasonable because the
district court denied two requests for downward departures: acceptance of
responsibility and victim conduct. “[W]e review . . . the district court’s application
of the Guidelines to the facts of the case for abuse of discretion. . . . If the district
court correctly calculated the Guidelines range, we then review the sentence for
reasonableness.” United States v. Dallman, 533 F.3d 755, 760 (9th Cir. 2008).
United States Sentencing Guidelines § 3E1.1 allows for a downward
departure of two levels when “the defendant clearly demonstrates acceptance of
responsibility for his offense.” Goldtooth argues that he accepted responsibility
because he admitted to the crime and testified truthfully at trial. However, it was
reasonable for the district court to deny this departure, given that Goldtooth went
to trial to challenge his responsibility for the killing, destroyed evidence, disposed
of the weapon, and lied to investigators before admitting the truth.
United States Sentencing Guidelines § 5K2.10 provides for downward
departure when “the victim’s wrongful conduct contributed significantly to
provoking the offense behavior.” Goldtooth argues that Teller’s conduct should
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have justified a downward departure because Teller swung a machete at Goldtooth
and Gage. Although Goldtooth’s account of the events implicated Teller for
provoking the attack, the district court did not find Goldtooth’s version of events
credible. We “give[] special deference to the district court’s credibility
determinations,” United States v. Nelson, 137 F.3d 1094, 1110 (9th Cir. 1998), and
conclude that it was reasonable for the district court to reject Goldtooth’s account
of Teller’s behavior. Overall, the district court’s in-Guidelines sentence of 360
months was reasonable given the circumstances of the crime and Goldtooth’s
criminal history.
We AFFIRM the district court.
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