U.S. v. Sarracino, No. 01-2308.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtHolloway
Citation340 F.3d 1148
Docket NumberNo. 01-2308.,No. 01-2310.,No. 01-2312.
Decision Date19 August 2003
PartiesUNITED STATES of America, Plaintiff-Appellee, v. David SARRACINO, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Brandon Cherosposy, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Robert Manuelito, Defendant-Appellant.
340 F.3d 1148
UNITED STATES of America, Plaintiff-Appellee,
v.
David SARRACINO, Defendant-Appellant.
United States of America, Plaintiff-Appellee,
v.
Brandon Cherosposy, Defendant-Appellant.
United States of America, Plaintiff-Appellee,
v.
Robert Manuelito, Defendant-Appellant.
No. 01-2308.
No. 01-2310.
No. 01-2312.
United States Court of Appeals, Tenth Circuit.
August 19, 2003.

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John F. Moon Samore, Albuquerque, NM, for Defendant-Appellant David Saracino.

Laura Fashing, Assistant United States Attorney, (David C. Iglesias, United States Attorney, with her on the brief), Albuquerque, NM, for Plaintiff-Appellee United States of America.

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Submitted on the briefs: Michael G. Katz, Federal Public Defender, James P. Moran, Assistant Federal Public Defender, Denver, CO, for Defendant-Appellant Brandon Cherosposy.

Michael A. Keefe, Assistant Federal Public Defender, Albuquerque, NM, for Defendant-Appellant Robert Manuelito.

Before EBEL, ALDISERT,* and HOLLOWAY Circuit Judges.

HOLLOWAY, Senior Circuit Judge.


Defendants/appellants Robert Manuelito, Brandon Cherosposy, and David Sarracino were jointly indicted, tried, and convicted on a single charge of second degree murder in violation of 18 U.S.C. §§ 2, 1111(b) & 1153.1 Each now appeals. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We will decide all three appeals in this single opinion.

I
The background facts

The victim of the homicide was Raynard Martinez, who died from multiple injuries which were admittedly inflicted by the defendants. Other than one neighbor who heard some voices and dimly saw some figures, whom he could not identify, rolling on the ground, the defendants were the only surviving witnesses to the fight that resulted in the death. All three had voluntarily given statements to officials within hours of the beating. These recorded statements were heard by the jury, and transcripts of these statements were also admitted in evidence.

Manuelito and Cherosposy testified at trial as well, while Sarracino did not. The following description of the fracas is condensed from these several versions of the event. It should be noted that this summary will gloss over some discrepancies in the evidence. More importantly, it should be noted that the jury verdict leaves us with no way of knowing how much of the defendants' versions of events the jury credited. Nevertheless, a summary of the defendants' descriptions of the events should be useful to provide context for the legal arguments.

The assault occurred around three o'clock on the morning of October 30, 1999, within the Laguna Pueblo Indian Reservation in New Mexico, in a portion of the pueblo identified as Encinal Village or the Encinal subdivision. All three of the defendants lived in Encinal and were members of the Laguna Pueblo tribe. Manuelito and Cherosposy were nineteen years old at the time; Sarracino was eighteen. Cherosposy and Manuelito had been together since early on the evening of Friday, October 29. They had attended a high school football game with some other friends, and after the game had drunk some beer with those friends. The two of them returned to Encinal around midnight. Sarracino soon joined them outside Sarracino's house, which was next door to Cherosposy's house, and the three young men were just talking and smoking cigarettes until Martinez arrived about 3:00 a.m.

At first the three defendants noticed a car drive very slowly through the subdivision and then begin to circle through again. The car pulled into the driveway close to where the three were standing, and Martinez emerged. Martinez and

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Cherosposy were cousins, but the other two young men did not know Martinez.

Martinez was normally sober and easy going, but according to a co-worker, Martinez was very upset that evening. He and his wife had separated, and he apparently knew that she was having an affair. Martinez also apparently knew, or suspected, that his wife was staying at Encinal in the home of Wendy Cheromiah. Martinez had visited a bar and had at least two beers after leaving work at around 11:00 p.m. on the evening of October 29, a few hours before the events at issue.

When Martinez encountered the three defendants, he asked where Ms. Cheromiah's house was. After the house had been pointed out to him, according to most versions Martinez walked the short distance to that house and very soon returned to his car. While he was gone, Manuelito opened the door of the car, purportedly to see if anyone else was inside. As Martinez was returning, he seemed to have seen Manuelito closing the car door. He soon began accusing the three of stealing things from his car and became enraged. After some verbal exchanges, Martinez opened the trunk of his car and got out his rifle, which he then loaded. He continued to demand that the defendants return his property while pointing the rifle at them. Then, as the defendants tried to explain that they had not stolen anything, Martinez hit Manuelito with the stock of the rifle, breaking a tooth. He then hit Cherosposy with the rifle. Manuelito and Sarracino then began to try to wrest the gun away from Martinez.

As they wrestled, Manuelito tripped Martinez and the two of them, and perhaps Sarracino also, fell to the ground. Eventually, Sarracino succeeded in getting the gun away from Martinez. Sarracino ran around behind the house and hid the rifle in an old refrigerator. Manuelito and Sarracino had hit and kicked Martinez a number of times during the melee, and Manuelito continued kicking him after Sarracino removed the rifle from Martinez's grasp. Then, Cherosposy, who had not been part of the fighting, came up and kicked Martinez in the body once or twice.

With Martinez completely subdued, according to the defendants' out of court statements and testimony at trial, the defendants helped Martinez to his feet and agreed to take him home. According to the trial testimony, Martinez was conscious, talking with the defendants, and able to get into the back of his car with little or no assistance. Manuelito and Cherosposy got into the front of the car, with Manuelito driving. Cherosposy said that Martinez lived in Acoma (or Acomita), about eight miles away. After they had driven a short way, Manuelito and Cherosposy realized that they would have no way to get home themselves if they drove Martinez to his home and left his car with him. At that point, Martinez reportedly told the two to just leave him where they were. Manuelito and Cherosposy, however, thought it would be better to get off the road they were on so that Martinez could "sleep it off" without being found by the police and getting arrested. They turned onto a road that led to a site that had formerly been a trash dump but had since been covered over. The two stopped the car there and returned to Encinal on foot. Cherosposy walked with his shoes off for part of the way. He testified that he did this because he was picking burrs out of his shoes.

A resident of Encinal noticed the car at the old dumping grounds when it got light the next morning. The resident looked out occasionally and eventually called the police when the car had remained there for some time. Officers responding to the call found Martinez's body in the back seat of the small car. He was lying face down

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and his legs were folded up behind him to fit in the confined space. As more officers gathered to investigate, two sets of footprints, Manuelito's and Cherosposy's, were followed to the Encinal subdivision. Manuelito and Sarracino had been playing basketball that afternoon. When they returned to Manuelito's house, they saw that the area in front of Sarracino's home where the struggle took place had been marked off with yellow crime scene tape. Manuelito called Cherosposy, who was at his girlfriend's house in Casa Blanca, ten or fifteen miles away. Manuelito told Cherosposy to come to Encinal so the three of them could "see what's up." X R. 694.

Cherosposy returned to Encinal and met the other two defendants at Manuelito's house. The three of them then walked together toward Sarracino's house. They encountered an officer on the way and told him that they had something to say. The three defendants were then separated. Each consented to be interviewed and for a portion of the interview to be recorded on audio tape. Each also agreed to provide the clothes he had been wearing during the fight, although Manuelito had previously washed blood from his shoes. The defendants were arrested following the interviews.

The prosecution's medical witness, Dr. Patricia Aronica-Pollak, testified that the victim had died from blunt trauma to the head, neck, chest and abdomen. There were a number of external injuries, cuts and bruises, which could have been caused by punching or kicking. Internally, the victim suffered a subdural hemorrhage. Blood surrounded the brain, which was swollen and bruised. This caused the brain to press on the vital areas at the base of the skull, which could stop breathing and the heartbeat. Two ribs were broken but not displaced. The doctor said that it was possible that the victim could have remained conscious immediately after receiving such a beating. The first stages of brain swelling could have caused him to mumble, lose coordination, and feel sleepy, effects similar to intoxication.

The expert said that all of the traumatic injuries to the head, neck, chest and abdomen contributed to Martinez's death. The bleeding and swelling in the brain was a very serious, lethal factor and would not have been visible or apparent to the defendants. The expert said that the victim would have had at least some chance to survive if he had received immediate...

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91 practice notes
  • U.S. v. Vega Molina, No. 03-1625.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 19, 2005
    ...the Bruton rule. Normally, appellate review of a trial court's application of Bruton would be de novo. See United States v. Sarracino, 340 F.3d 1148, 1158-59 (10th Cir.2003); see also Blake v. Pellegrino, 329 F.3d 43, 46 (1st Cir.2003) (explaining that questions of law associated with evide......
  • United States v. Williams, No. 12–3029
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 2, 2016
    ...is strong evidence of murder, particularly if the defendant's aim is to conceal the beating. See, e.g. , United States v. Sarracino , 340 F.3d 1148, 1162–64 (10th Cir. 2003) (violation of Confrontation Clause was harmless beyond reasonable doubt in second-degree murder prosecution where evi......
  • United States v. Con-Ui, No. 3:13-CR-123
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • March 1, 2017
    ...have been handicapped in its ability to convey the nature and extent of the beating to the jurors." United States v. Sarracino, 340 F.3d 1148, 1169 (10th Cir.2003). Therefore, I find that the danger of unfairPage 15 prejudice does not outweigh the photograph's high probative value. See......
  • United States v. Zar, Nos. 13–1111
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • June 23, 2015
    ...a legal question subject to de novo review. United States v. Clark, 717 F.3d 790, 813 (10th Cir.2013) ; United States v. Sarracino, 340 F.3d 1148, 1158–59 (10th Cir.2003). But the parties agree that plain-error review applies here because Susanne Zar neither objected to the admission of Der......
  • Request a trial to view additional results
91 cases
  • U.S. v. Vega Molina, No. 03-1625.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 19, 2005
    ...the Bruton rule. Normally, appellate review of a trial court's application of Bruton would be de novo. See United States v. Sarracino, 340 F.3d 1148, 1158-59 (10th Cir.2003); see also Blake v. Pellegrino, 329 F.3d 43, 46 (1st Cir.2003) (explaining that questions of law associated with evide......
  • United States v. Williams, No. 12–3029
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 2, 2016
    ...is strong evidence of murder, particularly if the defendant's aim is to conceal the beating. See, e.g. , United States v. Sarracino , 340 F.3d 1148, 1162–64 (10th Cir. 2003) (violation of Confrontation Clause was harmless beyond reasonable doubt in second-degree murder prosecution where evi......
  • United States v. Con-Ui, No. 3:13-CR-123
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • March 1, 2017
    ...have been handicapped in its ability to convey the nature and extent of the beating to the jurors." United States v. Sarracino, 340 F.3d 1148, 1169 (10th Cir.2003). Therefore, I find that the danger of unfairPage 15 prejudice does not outweigh the photograph's high probative value. See......
  • United States v. Zar, Nos. 13–1111
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • June 23, 2015
    ...a legal question subject to de novo review. United States v. Clark, 717 F.3d 790, 813 (10th Cir.2013) ; United States v. Sarracino, 340 F.3d 1148, 1158–59 (10th Cir.2003). But the parties agree that plain-error review applies here because Susanne Zar neither objected to the admission of Der......
  • Request a trial to view additional results

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