United States v. Goldtooth

• Decision Date: 12 June 2014
• Docket Number: Nos. 12–10570,12–10571.,s. 12–10570
• Citation: 754 F.3d 763
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Corbert GOLDTOOTH, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Myron Tsosie, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

754 F.3d 763

UNITED STATES of America, Plaintiff–Appellee,

v.Corbert GOLDTOOTH, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Myron Tsosie, Defendant–Appellant.

Nos. 12–10570, 12–10571.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted March 10, 2014.

Filed June 12, 2014.

Tyrone Mitchell, Tyrone Mitchell, P.C., Phoenix, AZ, for Defendant–Appellant Corbert Goldtooth.

James S. Park, Park Law Office, PLC, Phoenix, AZ, for Defendant–Appellant Myron Tsosie.

Rachel C. Hernandez (argued) and Tracy Van Buskirk, Assistant United States Attorneys, Phoenix, AZ, for Plaintiff–Appellee.

Appeal from the United States District Court for the District of Arizona, James A. Teilborg, Senior District Judge, Presiding. D.C. No. 3:11–cr–08190–JAT–1, D.C. No. 3:11–cr–08190–JAT–3.

Before: JOHN T. NOONAN, SIDNEY R. THOMAS, and MARSHA S. BERZON, Circuit Judges.

OPINION

NOONAN, Circuit Judge:

Corbert Goldtooth and Myron Tsosie (together, “Appellants”) appeal their convictions on two counts of aiding and abetting robbery on the Navajo Nation. Because no rational juror could have convicted either man of either count, we reverse.

I

A

The facts are not in dispute. In the early morning hours of July 31, 2011, Kallen Crawford and Sheldon Davis, both in their late teens, were rolling tobacco and smoking cigarettes outside a gas station in Fort Defiance, Arizona, a small community within the Navajo Nation. At approximately two a.m., a four-door sedan driven by a woman arrived at the gas station. Three men, two of whom the police later identified as Appellants, exited the vehicle and walked over to Crawford and Davis, who were seated next to each other on the curb. As the strangers approached, Crawford and Davis noticed that each man was trying to conceal a weapon—one carried a baseball bat, another held a 12–inch knife, and the third had a pocket knife. The men surrounded Crawford and Davis: the two men with knives stood in front of them while the man with the bat stood behind.

Crawford, trying to defuse the situation, offered to roll the men some Tops brand tobacco, which he had purchased at the gas station for about three dollars. One of the men then asked Crawford and Davis if they claimed membership in any gang. They said no. After identifying themselves as members of a local gang, Appellants asked whether the teens had anything on them or in their pockets. Again, they said no. They were never asked whether they had money or a wallet.

The man with the pocket knife then quickly patted down Davis's front side, while the man with the baseball bat patted down Crawford's. Nothing was found or taken. Davis testified later that, in reality, he had been carrying a wallet in a pocket of his “skinny jeans.” He also testified that he typically kept personal property in his back pockets. Davis, however, had no money in his wallet or anywhere else on him. As for Crawford, he testified that he had had a wallet in his back pocket and a $175 smartphone in his front pocket. Crawford and Davis remained seated during the pat downs; they were never asked to stand.

As Crawford continued to roll the tobacco into cigarettes, the man to his rear “nudged” him in the head with the baseball bat to hurry him up. The man with the pocket knife took Crawford's hat and, before returning it, smacked Davis on the back of the head and urged his compatriots to get going. Crawford eventually handed the three cigarettes he had rolled to the man with the bat, who, suddenly and without permission, snatched the remaining tobacco from Crawford's lap.

The three men then walked back to the car they had arrived in and were driven away. The encounter lasted five or ten minutes. No verbal threats were ever made; Crawford and Davis were not physically harmed.

Some twenty to thirty minutes later, a police officer stopped the vehicle carrying the three men. The officer had received a call indicating that the sedan had been involved in a gas station robbery. Before the car came to rest, the officer noticed something shiny being ejected from the passenger's side of the vehicle. A backup officer arrived soon thereafter, and he discovered a long silver knife lying in the dirt by the car's rear. Appellants were arrested on the scene and transported by a third officer to a nearby jail. During booking, the police found a black pocket knife on Tsosie's person. The third man in the vehicle, Goldtooth's teenage son, was taken to the hospital to treat a badly bleeding hand. Before he left, the police removed a sheath from the young man's belt matching the long knife found in the dirt. The female driver consented to a vehicle search, which turned up a weighted, black baseball bat. No tobacco was ever found.

On August 13, 2011, Special Agent Matthew Shelley, a federal investigator, interviewed Goldtooth about the events of July 31. During the interview, Goldtooth admitted to asking Crawford and Davis for cigarettes, and that he may have done so “in a threatening way.” Goldtooth also admitted to “flying” his gang colors that night and to throwing the knife out of the vehicle. He never mentioned money or a wallet.

On September 27, 2011, Appellants were each charged with two counts of aiding and abetting robbery on an Indian reservation, in violation of 18 U.S.C. §§ 2111, 1153, and 2. Count 1 alleged that Appellants had robbed or attempted to rob Crawford of “a package of Tops brand tobacco.” Count 2 alleged that Appellants had robbed or attempted to rob Davis of his “money and wallet.” Appellants pleaded not guilty to both counts.

B

Beginning April 11, 2012, Appellants were tried jointly by a jury of their peers. In its case in chief, the government called as witnesses Davis, Crawford, the female driver, and various law enforcement personnel involved with the case.

At the close of evidence, Appellants orally moved for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure. In denying the motion, the district court stated that it did not want to “minimize the appeal” of Appellants' arguments with respect to count 2 of the indictment—the alleged robbery or attempted robbery of Davis's money and wallet—so it invited “further briefing” on the matter should they be convicted on that count.

On April 20, 2012, after roughly five hours of deliberation, the jury found Appellants guilty on both counts.

Four months later, on August 31, 2012, Goldtooth filed a written motion again requesting that the district court issue a judgment of acquittal, or, in the alternative, grant a new trial. Tsosie joined the motion. The district court denied the Rule 29 motion with respect to count 1 on October 1, 2012, but withheld its ruling as to count 2. Concerned that count 2 alleged that Appellants had robbed or attempted to rob Davis of his “money and wallet” even though “there was no money” on him, the lower court asked for “more briefing.”

On October 31, 2012, the district court denied Appellants' Rule 29 motion in its entirety, noting only that it was “satisfied” with the government's supplemental briefing. That same day, the district court sentenced Goldtooth to 115 months in prison—the high end of his Sentencing Guidelines range—followed by three years of supervised release. Tsosie was sentenced to 78 months in prison—the low end of his Guidelines range—and three years of supervised release.

This appeal followed.

II

Appellants challenge the sufficiency of the evidence against them. ¹ Our review is de novo. See United States v. LaBuff, 658 F.3d 873, 876 (9th Cir.2011). We reverse.²

A

Our inquiry proceeds in two parts. See United States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir.2010) (en banc). First, we “consider the evidence presented at trial in the light most favorable to the prosecution.” Id. at 1164. In so doing, we presume that the jury resolved any evidentiary conflicts in the government's favor. See id. Second, we determine whether the evidence, so viewed, is sufficient “to allow any rational trier of fact [to find] the essential elements of the crime beyond a reasonable doubt.” Id. (alteration in original) (internal quotation marks omitted). Step two, we have explained, protects against those “rare occasions” when a jury convicts someone even though “no rational trier of fact” could have found guilt beyond a reasonable doubt. Id. That said, we have an “obligation” to identify such rare occasions, including where “the evidence construed in favor of the government may be insufficient to establish every element of the crime” or “where mere speculation, rather than reasonable inference, supports the government's case.” Id. at 1167; see also United States v. Bennett, 621 F.3d 1131, 1139 (9th Cir.2010).

The jury here convicted Appellants on two counts of aiding and abetting robbery on an Indian reservation, in violation of 18 U.S.C. §§ 2111, 1153, and 2. To convict either man on count 1, the government had to prove four elements beyond a reasonable doubt: (1) that the defendant took or attempted to take a package of Tops brand tobacco from Crawford; (2) that the defendant used force, violence, or intimidation in doing so; (3) that the alleged robbery took place on the Navajo Nation in the District of Arizona; and (4) that the defendant is an Indian. To convict either man on count 2, the government had to prove the same four elements beyond a reasonable doubt, except that the first element instead required proof that the defendant took or attempted to take money or a wallet from Davis.

The government could also satisfy its burden by proving that Appellants had aided and abetted a robbery. See United States v. Garcia, 400 F.3d 816, 820 (9th Cir.2005) (“[A]iding and abetting is embedded in every federal indictment for a substantive crime.”). To convict either man under such a theory, the government had to prove beyond a reasonable doubt: (1) that a robbery was committed by someone; (2) that the defendant knowingly and intentionally aided, counseled,...