United States v. Wilbert Tsosie

FILED
NOT FOR PUBLICATION JUN 27 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10229
Plaintiff - Appellee, D.C. No. 3:10-cr-08204-NVW-1
v.
MEMORANDUM*
WILBERT TSOSIE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted May 15, 2013
San Francisco, California
Before: CLIFTON and BEA, Circuit Judges, and KORMAN, District Judge.**
Wilbert Tsosie appeals his jury conviction for murdering his girlfriend,
Lorena Martin, at their home on the Navajo Indian Reservation. We have
jurisdiction under 28 U.S.C. § 1291 and affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Edward R. Korman, District Judge for the Eastern
District of New York, sitting by designation.
1. Motion for a Continuance
The district court did not abuse its discretion when it denied Tsosie’s motion
for a continuance. See United States v. Rivera-Guerrero, 426 F.3d 1130, 1138 (9th
Cir. 2005) (“A district court’s denial of a continuance is reviewed for an abuse of
discretion.”). In reviewing the denial of a continuance we weigh four factors: (1)
“the extent of appellant’s diligence in his efforts to ready his defense prior to the
date set for hearing”; (2) “how likely it is that the need for a continuance could
have been met if the continuance had been granted”; (3) “the extent to which
granting the continuance would have inconvenienced the court and the opposing
party, including its witnesses”; and (4) “the extent to which the appellant might
have suffered harm as a result of the district court’s denial.” Id. at 1138-39(quoting United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir. 1985)).
Three factors weigh against Tsosie. First, the need for a continuance was a
direct result of his lack of diligence, as he waited until weeks before the firm trial
date to view the Government’s evidence. Second, the continuance would have
significantly inconvenienced the district court. Third, it is unclear whether Tsosie
actually suffered any prejudice. The record did not indicate that a DNA analysis of
blood, hair, and fibers on Martin’s jacket would have provided any probative
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evidence, and any potential prejudice was at least partly mitigated at trial when
Tsosie admitted photos of the jacket and elicited testimony about the jacket.
The denial of the continuance also did not deprive Tsosie of his
constitutional right to present a complete defense. Although criminal defendants
have a constitutional right to “a meaningful opportunity to present a complete
defense,” United States v. Stever, 603 F.3d 747, 755 (9th Cir. 2010) (citation
omitted), that right is “subject to reasonable restrictions, such as evidentiary and
procedural rules,” Moses v. Payne, 555 F.3d 742, 757 (9th Cir. 2009) (internal
quotation marks and citation omitted). The denial of the continuance was a
permissible exercise of the district court’s discretion to manage its docket.
Moreover, the DNA analysis Tsosie sought was not necessarily crucial to his
defense. Cf. United States v. Lopez-Alvarez, 970 F.2d 583, 588 (9th Cir. 1992)
(stating that the exclusion of evidence based on a valid application of hearsay rules
may nonetheless amount to a constitutional violation if the “evidence [was]
sufficiently reliable and crucial to the defense”). The probative value of the DNA
analysis was unknown, and Tsosie argued about the jacket at trial.
2. Exclusion of Barkman’s Testimony as a Discovery Sanction
The district court erred when it excluded Weaver Barkman’s testimony
regarding the WB1 blood sample as a discovery sanction. Although Rule
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16(d)(2)(C) of the Federal Rules of Criminal Procedure states that a district court
may “prohibit [a party who fails to comply with Rule 16] from introducing the
undisclosed evidence,” under United States v. Finley, 301 F.3d, 1000, 1018 (9th
Cir. 2002), “[e]xclusion is an appropriate remedy for a discovery rule violation
only where the omission was willful and motivated by a desire to obtain a tactical
advantage.” (internal quotation marks, citation, and emphasis omitted). The record
did not demonstrate that Tsosie’s discovery rule violation was willful and
motivated by a desire to obtain a tactical advantage.
The exclusion is not reversible error, however, because it was harmless
beyond a reasonable doubt, if that is the applicable standard. See United States v.
Boulware, 384 F.3d 794, 808 (9th Cir. 2004). The Government’s case against
Tsosie was strong. Particularly significant was the testimony of Tsosie’s neighbor
that Tsosie changed his shoes after being accused of causing Martin’s injuries. The
shoes Tsosie allegedly had been wearing were found, with blood on at least one
shoe, outside the house the next day. Other evidence also supported the
Government’s case.
Tsosie, on the other hand, lacked evidence in support of his defense, and
Barkman’s testimony about the WB1 sample would not have tipped the scales in
his favor. Even accepting Barkman’s opinion that the second person’s DNA was
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not Tsosie’s (which the DNA analysis report did not itself say), all that Barkman’s
testimony would have conclusively established was the presence of someone else
in Tsosie and Martin’s home sometime before the WB1 sample was collected,
more than a year after Martin was killed. But there was no dispute that other
people had been in the home before and after the crime, including the George
brothers, law enforcement, and people who cleaned the house after Martin’s death.
There was no indication that the second person’s DNA came from blood as
opposed to cellular material such as skin. That the second person’s DNA was
detected at the same place as the blood sample was not shown to be significant.
Because we conclude that the error was harmless beyond a reasonable doubt,
even if we assume that the error amounted to a violation of Tsosie’s constitutional
right to present a complete defense, the conviction should be affirmed. See Stever,
603 F.3d at 757 (“A violation of the right to present a defense requires reversal of a
guilty verdict unless the Government convinces us that the error was harmless
beyond a reasonable doubt.”).
AFFIRMED.
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