U.S. v. Quintero

• Decision Date: 07 April 1994
• Docket Number: No. 93-10217,93-10217
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lopez QUINTERO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 885

21 F.3d 885

UNITED STATES of America, Plaintiff-Appellee, v. Lopez QUINTERO, Defendant-Appellant.

No. 93-10217.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 14, 1993.

Decided April 7, 1994.

Fredric F. Kay, Federal Public Defender, Tucson, AZ, for defendant-appellant.

Charles L. Jenkins, Asst. U.S. Atty., Tucson, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: LAY, ^* HALL and THOMPSON, Circuit Judges.

LAY, Senior Circuit Judge:

Lopez Quintero ("Quintero") was indicted for first degree murder of his two-year-old daughter, A.B.Q., on an Indian reservation in Arizona, under 18 U.S.C. Secs. 1111, 1153 (1988). The trial court directed a verdict for Quintero on the first degree murder charge and instructed the jury regarding the lesser offenses of second degree murder, voluntary manslaughter, and involuntary manslaughter. The jury found Quintero guilty of voluntary manslaughter in violation of 18 U.S.C. Secs. 1112, 1153 (1988). Due to the defendant's conduct following the victim's death, the court upwardly departed from the sentence recommended by the Sentencing Guidelines and sentenced Quintero to 108 months in prison, plus 36 months of supervised release, a $2000 fine and $1300 in restitution. Quintero appeals the conviction and the upward departure. We affirm in part, vacate in part, and remand.

I. BACKGROUND

Two days after A.B.Q. was born, her parents, Lopez Quintero and his wife, Gina Quintero, gave her to her maternal aunt and uncle for adoption. Before the adoption was completed, however, the aunt and uncle were involved in a serious automobile accident, leaving the uncle hospitalized for a one-month period. During this time, A.B.Q., then two years old, was returned to her natural parents. The Quinteros had three other children.

Testimony at trial indicated that on the morning of A.B.Q.'s death, Quintero and his four-year-old son, L.M.Q., were outside with A.B.Q. Quintero maintains that as he was pumping air into a tire of his pickup truck, A.B.Q. fell from the truck bed, where she had been playing with L.M.Q., and hit her head. The government contends that Quintero chased A.B.Q. and struck multiple blows to her head and body with his hand. ¹ L.M.Q. was the sole witness.

Quintero carried A.B.Q., who was dazed but still breathing, inside and asked his wife to look after her. A short while later, Gina called out to Quintero that A.B.Q. had stopped breathing. Quintero revived her with mouth-to-mouth resuscitation and went back outside to work on the truck. A.B.Q. soon stopped breathing again and could not be revived.

Quintero refused to take his daughter to a hospital for fear that he and Gina would be accused of child neglect and that their son would be taken from them. Instead, Quintero put A.B.Q.'s body, wrapped in a blanket, into the truck, and he, along with Gina and L.M.Q., drove out to find a place to bury her. Finding the ground too hard to dig, Quintero built a fire and burned A.B.Q.'s body. To avoid identification of the remains, he removed the head with a shovel and left it at a different location several miles away.

Authorities soon began an investigation into the whereabouts of the child. Eventually, Gina confessed and received a grant of immunity from prosecution in exchange for her willingness to testify against Quintero at trial. Quintero was indicted for first degree murder. L.M.Q. was allowed to testify at trial via closed-circuit television.

At the close of the evidence, the district court granted Quintero's motion for judgment of acquittal as to the charge of first degree murder. The court then submitted the case to the jury with instructions regarding second degree murder and, at defendant's request, voluntary and involuntary manslaughter. The jury found Quintero not guilty of second degree murder and guilty of voluntary manslaughter. At sentencing, the court departed from the Sentencing Guideline range calculated for Quintero of 70 to 87 months and sentenced Quintero to 108 months in prison, based upon Quintero's treatment of A.B.Q.'s body after her death. This appeal followed.

II. DISCUSSION

A. Voluntary Manslaughter

Quintero first argues that the evidence was insufficient to support a conviction for voluntary manslaughter. Quintero contends that there was no evidence of any heat of passion or provocation, and that therefore, since the jury determined that Quintero was not guilty of murder, the only crime he could be guilty of is involuntary manslaughter. We disagree.

In reviewing the sufficiency of the evidence supporting Quintero's conviction, our role is limited. We must determine only whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of voluntary manslaughter beyond a reasonable doubt. Dallas v. Arave, 984 F.2d 292, 295 (9th Cir.1993); see Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Voluntary manslaughter is defined as "the unlawful killing of a human being without malice.... [u]pon a sudden quarrel or heat of passion." 18 U.S.C. Sec. 1112(a) (1988). Quintero contends that the government must prove "sudden quarrel or heat of passion" as an essential element of the crime before a defendant can be convicted of voluntary manslaughter and that it failed to do so. ²

Quintero's argument fails to recognize the government's contention that Quintero was guilty of murder, and not a lesser included offense. Voluntary manslaughter is a lesser included offense within the crimes of first and second degree murder. United States v. Roston, 986 F.2d 1287, 1290 (9th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 206, 126 L.Ed.2d 163 (1993); United States v. Celestine, 510 F.2d 457, 460 (9th Cir.1975). Under Federal Rule of Criminal Procedure 31(c), a defendant may be found guilty of an offense with which he was not charged only if it is "necessarily included" within the charged offense. To be "necessarily included," the elements of the lesser offense, voluntary manslaughter, must be a subset of the elements of the greater offense, murder. See Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct. 1443, 1450, 103 L.Ed.2d 734 (1989); United States v. Garcia, 7 F.3d 885, 890 (9th Cir.1993). Manslaughter is thus distinguished from murder, which the law defines as "the unlawful killing of a human being with malice aforethought," 18 U.S.C. Sec. 1111(a) (1988), by the absence of malice, one of murder's essential elements. United States v. Wagner, 834 F.2d 1474, 1487 (9th Cir.1987), cert. denied, --- U.S. ----, 114 S.Ct. 1110, 127 L.Ed.2d 420 (1994).

When a defendant charged with murder introduces evidence of sudden quarrel or heat of passion, the evidence acts in the nature of a defense to the murder charge. See id.; United States v. Alexander, 471 F.2d 923, 943 (D.C.Cir.1973). The defendant attempts to negate the malice element by claiming, in essence, that she was not acting maliciously because some extreme provocation, beyond what a reasonable person could be expected to withstand, severely impaired her capacity for self-control in committing the killing. See Wagner, 834 F.2d at 1487. Once such evidence is raised, the burden is on the government to prove beyond a reasonable doubt the absence of sudden quarrel or heat of passion before a conviction for murder can be sustained. United States v. Lesina, 833 F.2d 156, 160 (9th Cir.1987); see Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881, 1892, 44 L.Ed.2d 508 (1975).

It is not, however, the burden of the government to also prove the presence of sudden quarrel or heat of passion before a conviction for voluntary manslaughter can stand in a murder trial. See Alexander, 471 F.2d at 942-43. When a defendant is charged with murder, a conviction for the lesser included offense of voluntary manslaughter means that the government failed to prove all of murder's essential elements. See Beck v. Alabama, 447 U.S. 625, 633, 100 S.Ct. 2382, 2387, 65 L.Ed.2d 392 (1980) (stating that conviction for lesser included offense occurs "in cases in which the proof failed to establish some element of the crime charged"). To require the government to prove sudden quarrel or heat of passion in such circumstances would impermissibly add to the "subset" of elements that makes up the lesser included offense. See Schmuck, 489 U.S. at 716, 109 S.Ct. at 1450. It could also lead to "the ludicrous result that a jury which finds the evidence in balance on the question of provocation can convict the defendant neither of second degree murder nor of manslaughter." Alexander, 471 F.2d at 942. This the law does not require. Id. at 942-47.

To convict a defendant charged with murder of voluntary manslaughter, the government must prove that (1) the defendant intentionally inflicted an injury upon another from which the other died; and (2) the homicide was committed without justification or excuse. Id. at 947; accord United States v. Holmes, 632 F.2d 167, 170 (1st Cir.1980) (per curiam). Intent without malice, not the heat of passion, is the defining characteristic of voluntary manslaughter. See Alexander, 471 F.2d at 947 n. 56; see also 2 Charles E. Torcia, Whorton's Criminal Law Sec. 153 (14th ed. 1979) (observing that voluntary manslaughter is "an intentional killing" where the heat of passion takes the place of malice). If malice is proven, the crime becomes second degree murder, Wagner, 834 F.2d at 1487; if intent is not proven, the crime becomes involuntary manslaughter, ³ Alexander, 471 F.2d at 947 n. 56; see United States v. Skinner, 667 F.2d 1306, 1309-10 & n. 1. (9th Cir.1982) (recognizing that involuntary manslaughter is a lesser included offense of murder and voluntary manslaughter, and stating that "[i]nvoluntary manslaughter is an unintentional homicide"), cert. denied, 463 U.S. 1229, 103 S.Ct. 3569, 77 L.Ed.2d 1410 (1983)...