Appeals from the United States District Court for the District of Arizona. D.C. No. CR-94-00243-RCB. Robert C. Broomfield, District Judge, Presiding.
Before: Herbert Y.c. Choy, William C. Canby, Jr., and Ferdinand F. Fernandez, Circuit Judges. Opinion by Judge Canby.
Defendants-Appellants Larry and Joe Sayetsitty were convicted in separate jury trials of second-degree murder in violation of 18 U.S.C. §§ 1153 (Major Crimes Act), 1111 (murder), and 2 (aiding and abetting). Larry Sayetsitty appeals both his conviction and his sentence; finding no error in either, we affirm. Joe Sayetsitty appeals only his conviction; we reverse because we conclude that the district court erred in failing to instruct on voluntary intoxication as a defense to the crime of aiding and abetting second-degree murder.*fn1
Larry and Joe Sayetsitty are brothers and members of the Navajo Nation. They spent the night of June 24, 1996, drinking and socializing in various locations. At approximately 4 a.m. on June 25, they drove in Larry's truck to a party at Diversion Dam, a site within the Navajo Indian reservation near Kayenta, Arizona. While at Diversion Dam, Larry became involved in an argument with the decedent, Jerry Lee Stanley. Joe joined the argument, and a brief fight ensued before it was broken up by others.
Stanley then left Diversion Dam. Larry and Joe followed in Larry's truck. While following Stanley, Larry told Joe that he was in a land dispute with the Stanleys and that he and Stanley had fought three times before.
At approximately 5:20 a.m., Stanley stopped at the residence of a friend, Kent Parrish, who lived on the reservation. Larry pulled up behind Stanley's truck and told Joe, "the guy parked in front of us, when he comes by here, throw him down." As instructed, Joe grabbed Stanley by the shoulders as he came by and threw him to the ground. Both Larry and Joe then kicked Stanley. One witness saw Joe kick Stanley in the head, and another saw Larry kick him in the head eight to ten times, with the motion and strength one might use in kicking a football field goal. Finally, Stanley's friend came outside and broke up the encounter. Joe and Larry then left the Parrish residence in Larry's truck and drove to Larry's residence. Stanley's friend drove Stanley to the hospital, where he was pronounced dead. He was later determined to have died of head injuries.
When Larry and Joe reached Larry's residence, the two separated. Larry stayed home and went immediately to sleep; he was later awakened and arrested by tribal police officers. Joe, however, left Larry's home in his own truck. As Joe approached the highway he saw a police car approaching and turned back toward Larry's house. The police officer called for assistance but did not follow Joe at that time. Joe's truck became stuck in a wash, and he fled the truck. When a Navajo police officer discovered him shortly thereafter, he was passed out underneath a tree. According to the officer, Joe smelled of alcohol and appeared intoxicated. The officer arrested Joe for public intoxication and took him to the tribal detention center to sober up, the normal Navajo police procedure for dealing with intoxicated individuals. Several hours later, after being read his Miranda rights, Joe confessed to F.B.I. special agents concerning his role in the assault on Stanley.
Larry and Joe were indicted for the premeditated murder of Jerry Lee Stanley. The district court granted their motion to sever. Joe was tried first; the jury convicted him of second-degree murder, and he was sentenced to 145 months in prison followed by 48 months of supervised release. Larry was then tried and also convicted of second-degree murder; he was sentenced to 225 months in prison followed by 48 months of supervised release. Both defendants appealed.
LARRY SAYETSITTY'S APPEAL
Larry raises three issues on appeal, one relating to his conviction and two to his sentence. Larry argues that the district court erred in: (1) denying his motion for new trial on the ground of prosecutorial misconduct; (2) increasing his base offense level by two levels for obstruction of Justice; and (3) denying him a three-level reduction in his base offense level for acceptance of responsibility.
A. Prosecutorial Misconduct.
Larry asserts that the prosecution engaged in four kinds of misconduct necessitating a new trial: (1) it used inflammatory language throughout the trial; (2) it improperly elicited evidence that Joe was also charged with Stanley's murder; (3) it improperly suggested to the jury that Larry was signalling Joe during Joe's testimony; and (4) it made improper arguments during closing argument. We review for abuse of discretion the district court's denial of Larry's motion for new trial based on allegations of prosecutorial misconduct. United States v. Meling, 47 F.3d 1546, 1556 (9th Cir.), cert. denied, 133 L. Ed. 2d 79, 116 S. Ct. 130 (1995). We conclude that the district court did not abuse its discretion.
1. Inflammatory language.
Larry first contends that the prosecution attempted to inflame the passion and prejudice of the jury by using "abrasive characterizations" and improper "descriptive words" during trial. He complains of the prosecution's references to the "attack," "assault," "killing," "brutal kicking," and "animal-like attack." He also complains of the prosecution's comment that Stanley "died in his friend's arms," its question to a witness asking whether Larry's kicks were like "a person kicking a ball," and its comment that "a drunk man has just as much right to live and get up in the morning with a hangover as a sober man deserves to live through the night."
We agree with the district court that nearly all of these characterizations were consistent with the evidence presented at trial. The argumentative characterizations were made during argument; the prosecution is allowed to argue reasonable inferences based on the evidence. United States v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991). In addition, Larry did not object at trial to many of the references that he now challenges. To the extent that any of these comments went beyond the evidence, they did not, when "considered in the context of the entire trial, . . . affect[ ] the jury's ability to Judge the evidence fairly." United States v. McKoy, 771 F.2d 1207, 1212 (9th Cir. 1985).
2. Joe's criminal charges.
Larry also contends that the prosecution violated one of the district court's pre-trial orders by improperly eliciting testimony that his brother Joe had been charged with murdering Stanley. That allegation, however, misconstrues the district court's order, which only instructed the prosecution to avoid testimony indicating either that Joe had previously been tried for Stanley's murder or that Joe was ...