United States v. Toledo

Decision Date07 January 2014
Docket NumberNo. 13–2027.,13–2027.
Citation739 F.3d 562
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Dhanzasikam R. TOLEDO, Defendant–Appellant.
CourtU.S. Court of Appeals — Tenth Circuit


Marc H. Robert, Assistant Federal Public Defender, Albuquerque, NM, for DefendantAppellant.

Niki Tapia–Brito, (Kenneth J. Gonzales, United States Attorney, and James R.W. Braun, Assistant United States Attorney, with him on the brief), Albuquerque, NM, for PlaintiffAppellee.

Before KELLY, HARTZ, and MATHESON, Circuit Judges.

KELLY, Circuit Judge.

DefendantAppellant Dhanzasikam R. Toledo appeals from his conviction of voluntary manslaughter. 18 U.S.C. §§ 1112, 1153. Although the district court instructed the jury on second degree murder and voluntary manslaughter, it denied Mr. Toledo's request for self-defense and involuntary manslaughter instructions. Our jurisdiction arises under 28 U.S.C. § 1291, and we reverse and remand for a new trial.


Mr. Toledo is an enrolled member of the Navajo Nation. In November 2011, he lived with his mother, Irma Sanders, who is Navajo, and his step-father, Hershel Sanders, who is African–American. Mr. Toledo's biological father is also African–American. The Sanders and Mr. Toledo resided on a large parcel of land in Ramah, New Mexico, within the borders of the Navajo Nation. On the same parcel of land (about 125 yards away) lived Arvin Toledo and his family. 1 A barbed-wire fence separated the two families' plots.

The two families had lived in relative harmony, but money, alcohol, and racism had strained their relations. 3 R. 94–96, 116, 366–68. Ms. Sanders and Mr. Toledo, both devout in their Navajo beliefs, noticed odd things happening to them and their land. Id. at 370–72. They held the belief that “skinwalkers” 2 would come onto and around their land. Id. at 255, 371. Mr. Toledo believed that his uncle, Arvin, was versed in the “skinwalker way.” Id. at 369.

Before November 10, 2011, Arvin had visited the Sanders' house three times to ask Mr. Toledo to pay a debt. Id. at 96–97. Arvin left each time empty handed. Around 9:00 p.m. on November 10, 2011, Ms. Sanders told Mr. Sanders and Mr. Toledo that she had “a real bad feeling” and sensed a problem going on outside. Id. at 103, 384. She told Mr. Toledo “to go out with [Mr. Sanders] and put ashes on the horses, the animals and the property.” Id. at 384. Mr. Toledo had been instructed to do this by a medicine woman as a ward against skinwalkers. Id. at 371–72.

After Mr. Sanders and Mr. Toledo finished spreading the sacramental ashes, Mr. Sanders heard Arvin calling his name. Id. at 110–11. The two met at the fence separating their land. Id. at 112. Arvin told Mr. Sanders that Mr. Sanders needed to “chain his dog,” id., and it became clear that Arvin was referring to Mr. Toledo, id. at 114–15. Mr. Sanders told Arvin that the “name calling” needed to stop, id. at 116, as Arvin had made derogatory references to Mr. Sanders and Mr. Toledo's race and skin color several times in the past, id. at 118, 367, 370. At that point, Mr. Toledo came and stood next to his step-father at the fence. Id. at 117. Mr. Toledo confronted Arvin about money that Arvin allegedly took from Ms. Sanders. Id. at 118. Arvin then began directing racial slurs at both the Sanders and Mr. Toledo. Id. Mr. Sanders turned to walk away, hoping that Mr. Toledo would follow. Id. at 119. Arvin too began to walk away. Id. at 120. However, when Mr. Toledo said, “And another thing, stop calling us names,” Arvin spun around and reapproached the fence yelling, “nigger, nigger, nigger.” Id. at 120, 147. As Mr. Sanders recalled, Arvin did this “almost [running] toward the fence and came “nose tip to nose tip” with Mr. Toledo. Id. at 123, 121. Mr. Sanders perceived Mr. Toledo to say “I'm not afraid of you” and knock Arvin to the ground. Id. at 123–24. In reality, Mr. Toledo had stabbed Arvin, fatally.

At trial, Mr. Toledo testified that he had no intention of killing his uncle and that his only intent in the moment of the stabbing was to defend himself. Id. at 403, 404, 409. At the time of his death, Arvin stood about six feet and weighed 263 pounds. Id. at 341, 339. Mr. Toledo stood only five feet seven inches and weighed 160 pounds. Id. at 181. Mr. Toledo testified that, when Arvin reapproached the fence, Arvin “had his hands up.” Id. at 400. When asked what he feared in that moment, Mr. Toledo responded, “That [Arvin] was going to grab me or choke me or just—he could have easily pulled me over the fence. I was light as a feather.” Id. at 404.

Arvin was known to be a heavy drinker. Id. at 149, 365–68. Before the stabbing, Mr. Sanders was close enough to smell alcohol on Arvin's breath, id. at 114, and at the time of his death, Arvin's blood alcohol content was 0.123, id. at 316. Mr. Toledo had not been drinking. Id. Mr. Sanders testified that it was difficult to generalize Arvin's demeanor “because at one minute it was pleasant, and the next minute it could be a raging bull.” Id. at 113. Mr. Sanders testified that Arvin “could become very violent” when he drank. Id. at 149.

In addition to Arvin's physique and temperament, Mr. Toledo testified that he had a very real appreciation—and fear—of his uncle's supernatural abilities. According to Mr. Toledo, he was aware that Arvin “was a Satanist,” id. at 368, and would notice “witchcraft activity” whenever he was around, id. at 369. Mr. Toledo believed that Arvin had “tried to harm [him] with the witchcraft” in the past and that this posed an additional danger in the moment his uncle “lunged at” him. Id. at 405, 452.

Mr. Toledo recognized that a fence separated him from his uncle and that he could have simply “backed away.” Id. at 403. The fence was 41.5 inches high and made up of five strands of barbed wire.3Id. at 218–19. After the slaying, FBI Agent John Fortunato examined the fence. He testified that the barbed wire at the site “seemed tight,” and when he “tried to climb over to see how much give it would have,” he was unable to do so at that point.4Id. at 219. Mr. Sanders, in contrast, thought the fence posed a less substantial barrier: “I want to make one point clear—that fence is like a rubber band. Arvin weighs what, 210, 220. And if he's against the fence ... he would have been able to reach over to [Mr. Toledo].” Id. at 123.

Mr. Toledo also recognized he was not entirely defenseless against his uncle. Concealed in his left sleeve, Mr. Toledo carried a twelve inch marine combat knife strapped to his inner arm. Id. at 236, 435. It had been a gift some years back from his step-father, Mr. Sanders, id. at 444, and Mr. Toledo carried the knife with him at all times, id. at 439. In fact, constant wear had molded the knife's sheath to the crook of Mr. Toledo's elbow. Id. at 436. Through self-training, Mr. Toledo had mastered the technique of “unbuckl [ing] [the knife] in the process of pulling it out.” Id. at 436, 439. It was through this rapid movement, which Mr. Toledo called a “natural reaction,” id. at 441, that he “blocked [Arvin's] hands and then ... stabbed him,” id. at 437. Mr. Toledo had also studied martial arts. Id. at 438–39.

A federal grand jury indicted Mr. Toledo for second degree murder. 18 U.S.C. §§ 1111, 1153; 1 R. 15. Prior to trial, Mr. Toledo offered proposed jury instructions, including instructions on self-defense and the lesser included offenses of voluntary manslaughter and involuntary manslaughter. Id. at 21–25. After the close of evidence, the district court indicated its skepticism as to whether the evidence supported the defense's theories of self-defense and involuntary manslaughter. 3 R. 467, 471. The matter was close, and the court struggled with “second thoughts about [a] self-defense” instruction. Id. at 473. However, after thinking about it overnight, the court decided not to instruct the jury on either self-defense or involuntary manslaughter. Id. at 491. The court reasoned that, “other than what [Mr. Toledo] testified to in the courtroom,” no evidence showed that he was in fear of serious bodily injury or death. Id. at 484. According to the court, no reasonable threat existed given Mr. Toledo's alternatives, notwithstanding counsel's argument that Mr. Toledo was confronted with a much larger person reaching across the fence and lunging at him on a dark winter night. Id. at 467–68. The court instructed the jury on only second degree murder and voluntary manslaughter. 1 R. 79–82. The jury acquitted Mr. Toledo of second degree murder and convicted him of voluntary manslaughter. Id. at 88. The court then sentenced Mr. Toledo to 76 months' imprisonment followed by a three-year term of supervised release. Id. at 91–92.


Mr. Toledo requested jury instructions on the recognized defense of self-defense and the lesser included offense of involuntary manslaughter. 1 R. 21, 24–25. On appeal, he argues that the district court erred in finding the evidence insufficient to warrant either of these instructions. We take each instruction in turn.

A. Self–Defense

We review the district court's decision to give a particular jury instruction for abuse of discretion; however, we review the instructions as a whole de novo to determine whether they accurately informed the jury of the governing law. United States v. Platte, 401 F.3d 1176, 1183 (10th Cir.2005). Specifically, a defendant is entitled to an instruction on any recognized defense for which there is evidence sufficient for a reasonable jury to find in his favor. United States v. Harris, 695 F.3d 1125, 1136 (10th Cir.2012). For the purposes of determining the sufficiency of the evidence, we accept the testimony most favorable to the defendant. Id.

A person may resort to self-defense if he reasonably believes that he is in imminent danger of death or great bodily harm, thus necessitating an in-kind response. See United States v. Visinaiz, 428 F.3d 1300, 1311 (10th Cir.2005); United States v. Greschner, 802 F.2d 373, 384 (10th Cir.1986); cf....

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