United States v. Nakai ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 03-10485
Plaintiff-Appellee,
v.  D.C. No.
CR-01-01072-FJM
GREGORY NAKAI,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Argued and Submitted
May 9, 2005—San Francisco, California
Filed June 27, 2005
Before: Stephen Reinhardt, John T. Noonan, and
Ferdinand F. Fernandez, Circuit Judges.
Opinion by Judge Noonan
7673
UNITED STATES v. NAKAI 7675
COUNSEL
John R. Hannah, Phoenix, Arizona, for the defendant-
appellant.
Vincent Q. Kirby, Assistant United States Attorney, Phoenix,
Arizona, for the plaintiff-appellee.
OPINION
NOONAN, Circuit Judge:
Gregory Nakai appeals his conviction of a set of serious
federal crimes committed on an Indian reservation: premedi-
tated first degree murder; robbery; felony murder-kidnaping;
carjacking resulting in death; felony murder-robbery and use
of a firearm during the commission of crimes of violence. We
affirm the convictions.
7676 UNITED STATES v. NAKAI
FACTS
At trial, the government established that on August 17,
2001, the defendant Gregory Nakai (hereafter Gregory) and
his brothers, Jimmy and Jakegory, all members of the Navajo
tribe, had been drinking. They went to Round Rock Lake to
sell bottles of Budweiser beer and were joined by Johnny Ors-
inger, Teddy Orsinger, and Dennie Leal. They sold several 40
ounce bottles to Jesbert Sam and David Begay. At some point,
Gregory said, “Let’s jack up these guys.” Jimmy understood
his brother to mean that they should beat Begay and Sam and
take their car. When Begay tried to buy another bottle, the
group jumped on him and hit him. Gregory knocked him
down with blows to his head. Jakegory and Leal kicked him
as he lay on the ground.
Leal approached Sam as Sam sat in his own car and
knocked him from his seat to the ground. Leal and Johnny
Orsinger hog-tied Sam and Begay with electrical cords. The
two victims were dumped in the back of Sam’s car. Jimmy
took the driver’s seat and drove off accompanied by Johnny
Orsinger. Jimmy had with him Gregory’s handgun, which
Jimmy gave to Johnny, who pistol-whipped Sam about ten
times as they drove.
Gregory, Jakegory, Teddy Orsinger, and Dennis Leal fol-
lowed Jimmy in Gregory’s car, which he was too drunk to
drive and which was driven by Teddy, who accidentally
flipped it. Gregory joined Jimmy and Johnny in Sam’s car,
which Jimmy drove into the woods and stopped. Johnny took
Begay, who was still conscious out of the back and laid him
on the ground. Gregory did the same with Sam, who wasn’t
moving. A little later Jimmy heard a shot and turned to see
that Begay had been shot in the head and that Johnny was
standing next to him with a gun in his hand. Gregory said,
“Give me the gun.” Johnny gave it to him. Gregory shot Sam
five times in the chest and/or head. Jimmy believed both
UNITED STATES v. NAKAI 7677
Begay and Sam were now dead. Gregory covered the bodies
with a blanket.
Gregory, Jimmy, and Johnny rejoined Leal, Teddy Ors-
inger, and Jakegory. The group decided to burn the bodies of
the victims and made a fire for this purpose. They cleaned
Sam’s car of broken glass. Gregory took Sam’s drill and
traded it for a pair of tires that he put on his own car. The next
day, Gregory, Jimmy and Leal retrieved some of the remains
of one victim, put them in a bag and burned them in a hole.
PROCEEDINGS
In November 2001, Jimmy provided an FBI agent with
information about the murders. Gregory was arrested and
advised of his rights. The agent read him notes of what Jimmy
had told him. Gregory said that he had “the story right” and
that he, Gregory, had shot the driver five times. Gregory later
drew sketches of the bodies of the two victims and stated that
the bodies had been burned.
On November 27, 2001, Gregory was indicted together
with his brother Jimmy, Dennis Leal, and Johnny and Teddy
Orsinger. On motion from the government, the trial was trans-
ferred from Prescott, Arizona to larger facilities in Phoenix;
the jury was drawn from Prescott. Shortly before trial, Leal,
Teddy Orsinger, and Jimmy pled guilty. Trial began Decem-
ber 3, 2002. After ten trial days, the jury, properly instructed
on the defense of voluntary intoxication, began deliberations.
Both defendants were convicted. Gregory was sentenced to
life imprisonment. He now appeals.
ANALYSIS
The transfer of the trial to Phoenix. Gregory Nakai argues
that the transfer from the Prescott Division of the District
Court for the District of Arizona to the Phoenix Division
deprived him of a fair representation of the community. A fair
7678 UNITED STATES v. NAKAI
cross-section of the Prescott community was 16.7 percent
Native American, but only 6.1 percent of the jurors who
reported for jury duty were Native American. This result,
Nakai contends, resulted in a violation of the Sixth Amend-
ment. Duren v. Missouri, 439 U.S. 357, 363-67 (1979).
[1] We accept for purposes of this appeal the argument that
Native Americans in Arizona constitute a distinctive group,
although our cases suggest that Hopi and Navajo are far from
being a unitary ethnic block. We cannot accept Nakai’s con-
tention that Native Americans were systematically excluded
from the jury pool. The venire as drawn consisted of 199 per-
sons, 14.1 percent of whom were Native Americans. The jury
commissioner telephoned those in the pool to direct them to
Phoenix. She failed to reach 34 because the telephone was not
answered or was disconnected or not working, or because
there was no telephone. Of the 34 not contacted, 14 were
Native American. Nakai contends that their exclusion was
systematic because it was asserted by his counsel that “phones
are somewhat scarce on the reservation.” Counsel added, “I
have no statistical evidence or proof of this [but speak] from
my own knowledge.” The personal knowledge of counsel
does not constitute proof of the number of telephone users on
the reservation. Nakai’s post-trial efforts to provide evidence
came too late. Even if we were to accept Nakai’s belated evi-
dence of telephones on the reservation, “occasional discre-
panc[ies]” occurring for “the sake of expediency” do not
constitute a prima facie violation of the Sixth Amendment.
United States v. Erickson, 75 F.3d 470, 477 (9th Cir. 1996).
Nakai attempts to link his objection to the notification by
telephone to his objection to the move of the trial from Pres-
cott, attacking the government’s reason as specious. But when
in August, 2002, the judge granted the motion to move, there
was the difficulty of housing five defendants. Guilty pleas
reduced the defendants to two only the day before trial. The
district court did not have a discriminatory intent nor abuse its
discretion when it set the trial for Phoenix.
UNITED STATES v. NAKAI 7679
Nakai’s exculpatory statements. After the government
introduced Nakai’s admission to the FBI agent, the defense
attempted through cross-examination of the agent to introduce
Nakai’s statement to the agent that he “started drinking more”
after Teddy Orsinger flipped his car; the statement would
have gone to disproving the existence of specific intent in cer-
tain of the crimes charged. The statement, however, was inad-
missible hearsay. Williamson v. United States, 512 U.S. 594,
598-601 (1994). Nakai also sought to introduce by cross-
examination a statement he made to a tribal investigator that
he thought that they were going to lock the victims in a cabin.
Again, this statement would have constituted inadmissible
hearsay. In neither instance was the unadmitted hearsay nec-
essary to place the admitted statement in context. Ortega v.
United States, 203 F.3d 675, 682 (9th Cir. 2000).
[2] Instruction on conspiracy. The jury was given a stan-
dard instruction on aiding and abetting and also on conspir-
acy. The conspiracy the jury was instructed that it could find
was an agreement “to commit carjacking, robbery, kidnaping,
or murder, and use of a firearm during and in relation to a
crime of violence as charged in the indictment.” The last five
words were apparently intended to modify only the firearm
count, as no conspiracy had been charged in the indictment.
Pursuant to Pinkerton v. United States, 328 U.S. 640 (1945),
the conspiracy instruction informed the jury that each defen-
dant was “responsible for what the other conspirators said or
did to carry out the conspiracy, even if the defendant did not
know what they said or did.”
[3] Nakai objected to the conspiracy instruction orally and
in writing at the trial and continues to object now that it
denied his “Fifth Amendment rights to notice of the accusa-
tion against him, presentment to the grand jury, and convic-
tion only upon proof beyond a reasonable doubt of each
element of the charged offense.” There is no doubt that if in
fact Nakai had been convicted of conspiracy, we would be
bound to reverse his conviction. Sheppard v. Rees, 909 F.2d
7680 UNITED STATES v. NAKAI
1234, 1237-38 (9th Cir. 1990). But Nakai was not convicted
of conspiracy. The instruction to the jury presented a theory
on which his criminal liability for his other acts could be
based. This use of Pinkerton where conspiracy is not charged
in the indictment has been the custom of other circuits. E.g.,
United States v. Lopez, 271 F.3d 472, 480 (3d Cir. 2001);
United States v. Chairez, 33 F.3d 823, 827 (7th Cir. 1994).
We have not ruled on such an instruction.
[4] The objection to the instruction is that it broadens a
defendant’s liability beyond the aiding and abetting charge
implicit in any indictment. The instruction also attaches to the
defendant’s conduct the consequences of his having commit-
ted a crime with which he has not been charged. It is error to
use a Pinkerton instruction in a case in which the indictment
does not allege a conspiracy.
[5] In the instant case, however, we hold that its use did not
constitute fatal error. It was not structural error, that narrow
class of error depriving a defendant of a fair trial. It was,
therefore, subject to harmless error analysis. Neder v. United
States, 527 U.S. 1, 8-9 (1999).
[6] The testimony of Jimmy Nakai was that Gregory had
called for the carjacking, had assaulted Begay, had let Jimmy
have his gun, and had later retrieved the gun and shot Sam.
Unrebutted, this evidence established each of the crimes of
which Gregory was convicted. His own admissions confirmed
Jimmy’s account. Gregory did not call for a carjacking with-
out the intention to rob and kidnap the driver and the passen-
ger. He did not shoot Sam repeatedly in vital parts without the
intent to end his life. He did not use a firearm unintentionally.
Even in the absence of the Pinkerton instruction, it is beyond
reasonable doubt that the jury convicted, or would have con-
victed Nakai as either an aider and abettor or as a principal.
See United States v. Olano, 62 F.3d 1180, 1199 (9th Cir.
1995).
UNITED STATES v. NAKAI 7681
[7] The shooting of a corpse? At oral argument, counsel
advanced a new contention, one that the government had no
obligation to refute as it had not been argued in the briefs, but
one worth exploring. It was contended that there was no evi-
dence that Sam was alive when Gregory shot him. This doubt
was one the jury could consider and reject. Gregory acknowl-
edged shooting the driver not firing into a dead man. No testi-
mony showed that the pistol-whipping of Sam was severe
enough to cause his death. The jury, briefed on Gregory’s
drunken state, could still rationally conclude that he would not
have wasted his bullets on a corpse. When Gregory was fin-
ished with Sam he draped his body with a blanket; the living
man he had shot was now, he knew, no longer alive.
AFFIRMED.