                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                   September 20, 2006
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court



U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                        No. 05-2312
v.                                               (District of New M exico)
                                                (D.C. No. CR-03-2063-M V)
BRIA N KEITH TO N Y ,

          Defendant-Appellant.




                                OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This case is, therefore,

ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
I. Introduction

      Following a jury trial, Defendant-Appellant Brian Tony, an Indian, was

convicted of two counts of assault resulting in serious bodily injury and one count

of aggravated burglary in Indian Country. He was sentenced by the United States

District Court for the District of New M exico to 130 months’ imprisonment.

Tony now appeals his convictions challenging the sufficiency of the evidence and

the district court’s refusal to declare a mistrial. We assert jurisdiction pursuant to

28 U.S.C. § 1291 and affirm.

II. Background

      On M ay 2, 2000, two men entered the residence of James and M ary

W hitegoat on the N avajo Indian R eservation in N ew M exico and assaulted M r.

and M rs. W hitegoat. Tony was charged in connection with the assaults several

years later. 1 The four-count indictment charged Tony with assaulting M r.

W hitegoat with a dangerous weapon, in violation of 18 U.S.C. §§ 2, 113(a)(3),

and 1153 (Count I); assault resulting in serious bodily injury to M r. and M rs.

W hitegoat, in violation of 18 U.S.C. §§ 2, 113(a)(6), and 1153 (Counts II and III);

and aggravated burglary, in violation of 18 U.S.C. §§ 2, 13, and 1153, and N.M .

Stat. Ann. § 30-16-4 (Count IV).

          At trial, M rs. W hitegoat testified that on the day of the assaults, she and

her husband were at home when tw o men drove up in a white, four-door vehicle.

      1
          The second perpetrator has never been identified or charged.

                                             -2-
According to M rs. W hitegoat, when M r. W hitegoat opened the front door of the

residence, one of the men grabbed him and hit him with an ax. M rs. W hitegoat

testified that she walked toward the men and said, “No, my son.” M rs. W hitegoat

indicated one of the men then grabbed her, threw her under a chair, and hit her in

the head with the ax, knocking her unconscious. W hen asked in court to identify

the man w ho assaulted her and her husband, M rs. W hitegoat pointed to Tony, but

called him “Sherman.” M rs. W hitegoat indicated she had known Tony since he

was a child because Tony and his family lived in a hogan behind the W hitegoat’s

residence for a while.

      Richard W hitegoat, one of the W hitegoat’s sons, testified that after the

assaults, M r. W hitegoat drove his wife to the auto repair shop where Richard

worked. Richard indicated his parents’ faces were bloody and his mother’s face

was swollen. According to Richard, his father stated in Navajo, “W iizii Tsoh

biyaz ya’alwod.” 2 A certified court interpreter translated the statement to mean

“W iizii’s late son came into the house. Big W iiz.” Richard testified that he

understood W iizii’s late son to mean Brian Tony.

      Another W hitegoat son, James W hitegoat, also testified. James lived with

his parents and left their house a few minutes before the assaults occurred. James



      2
       M r. W hitegoat died before trial, but not from injuries sustained in the M ay
2, 2000 assault. The district court admitted M r. W hitegoat’s statement to Richard
as an excited utterance. See Fed. R. Evid. 803(2). Tony does not contest this
evidentiary ruling.

                                         -3-
testified that as he w as leaving his parents’ house, he saw a “dirtyish w hite,” four-

door car parked a short distance away. James indicated he had seen the vehicle

before and he believed it belonged to Brian Tony. James testified he had known

Tony for many years, and Tony’s father’s name w as “Sherman.”

      Tony took the stand in his own defense at trial. Tony testified he had

known the W hitegoats for thirty years. He indicated on the day of the assaults, he

had been released from a detention center for a work release program. According

to Tony, he drank alcohol throughout the day until he blacked out, and thus did

not remember if he went to the W hitegoats’ residence. Tony testified that at the

time of the assaults, he drove a four-door, cream-colored, Oldsmobile Cutlass.

      At the close of all the evidence, the jury returned a verdict finding Tony

guilty as to Counts II, III, and IV of the indictment and not guilty as to Count I.

The district court subsequently sentenced Tony to 130 months’ imprisonment

followed by three years’ supervised release.

III. Discussion

      A. Sufficiency of the Evidence

      Tony argues the evidence presented at trial to prove he was the perpetrator

of the crimes is insufficient. 3 This court reviews claims challenging the

      3
       Tony filed a motion for judgment of acquittal at the close of all the
evidence. The district court denied the motion in a M ay 26, 2005 memorandum
opinion and order. Tony challenges the district court’s order, but failed to attach
a copy of it to his appellate brief as required by the Tenth Circuit Rules. See 10th
                                                                       (continued...)

                                          -4-
sufficiency of the evidence de novo. United States v. Rockey, 449 F.3d 1099,

1102 (10th Cir. 2006). “Evidence is sufficient to support a conviction if, viewing

the evidence in the light most favorable to the government, a reasonable jury

could have found the defendant guilty beyond a reasonable doubt.” Id. at 1103

(quotation omitted). In reviewing the evidence, we consider both direct and

circum stantial evidence, together with the reasonable inferences to be drawn

therefrom. United States v. Zunie, 444 F.3d 1230, 1233 (10th Cir. 2006). W e do

not, however, w eigh conflicting evidence or consider the credibility of witnesses.

United States v. M cKissick, 204 F.3d 1282, 1289 (10th Cir. 2000).

      M rs. W hitegoat identified Tony as the perpetrator of the assaults at trial by

pointing to him. She testified she had known Tony since he w as a child. Richard

W hitegoat testified that when he saw his parents shortly after the assaults, his

father stated “W iizii’s late son came into the house. Big W iiz.” Richard

indicated he understood this statement to mean Brian Tony was the assailant.

Finally, James W hitegoat told the jury he saw what he believed to be Tony’s car

parked near his parents’ house a few minutes before the assaults.




      3
        (...continued)
Cir. R. 28.2(A)(1) (stating appellant’s brief must include a copy of all pertinent
district court opinions and orders even though they are also included in the
appendix). Because Tony failed to include the district court’s memorandum
opinion and order, the government was required to attach a copy to its appellate
brief. See 10th Cir. R. 28.2(B). The government neglected its duty as well.

                                          -5-
      Tony contested the credibility of this testimony at trial. Specifically, Tony

asserted M rs. W hitegoat’s identification was unreliable because she called Tony

by his father’s name, Sherman, and her eyesight was poor. Tony also argued M r.

W hitegoat’s alleged statement that “W iizii’s late son came into the house” could

refer to any of Brian Tony’s four brothers. Tony also pointed out there was no

physical evidence linking him to the crime scene. In particular, footprints and

tire tracks found at the W hitegoat’s residence were never matched to Tony or his

vehicle. In his defense, Tony testified he had been drinking alcohol on the day of

the assaults and blacked out.

      Our role as an appellate court is not to judge the credibility of witnesses.

M cKissick, 204 F.3d at 1289–90. Instead, we ask only “whether the evidence, if

believed, would establish each element of the crime.” United States v. Delgado-

Uribe, 363 F.3d 1077, 1081 (10th Cir. 2004) (quotation and alteration omitted).

Under this narrow standard of review, M rs. W hitegoat’s identification of Tony as

the assailant and Richard’s testimony that he understood his father’s statement as

identifying Brian Tony as the assailant are sufficient to permit a reasonable jury

to find Tony guilty beyond a reasonable doubt.

      B. M otions for M istrial

      During the trial, Tony moved for a mistrial on two occasions. The district

court denied both requests, and Tony appeals. “In determining whether to grant a

mistrial, a district judge must first determine whether an error has occurred and, if

                                         -6-
so, whether that error impaired the defendant’s right to a fair and impartial trial.”

United States v. M artinez, 455 F.3d 1127, 1129 (10th Cir. 2006) (quotations

omitted). W e review a district court’s refusal to declare a mistrial for an abuse of

discretion. Id. W e will not disturb the district court’s determination absent a

showing it was based on a clearly erroneous finding of fact, an erroneous

conclusion of law, or manifests a clear error of judgment. Id.

      Tony first moved for a mistrial during the testimony of police officer

Anderson Six, a government witness. Before trial, Tony filed a motion in limine

requesting a court order prohibiting the prosecutor and government witnesses

from referring to the W hitegoats as “victims” in the presence of the jury. The

district court granted the motion. At trial, Officer Six testified to receiving a

dispatch call regarding two assault victims who had been transported to the

Gallup Indian M edical Center. After gathering information about M r. and M rs.

W hitegoat from Richard W hitegoat at the medical center, Officer Six went to the

W hitegoat’s residence. Officer Six’s testimony described the condition of the

residence w hen he arrived, including the location of several pools of blood. He

also provided a foundation for several photographs he took of the crime scene that

were admitted into evidence. During his testimony, Officer Six referred to M r.

and M rs. W hitegoat as “victims” on multiple occasions. The prosecutor also used

the term “victim” on one occasion when advocating for the admissibility of an

exhibit. Tony objected and then, after Officer Six used the term “victim” a few

                                          -7-
more times, moved for a mistrial. The district court summarily denied the

request. On appeal, Tony argues the district court’s failure to grant a mistrial was

error because the references to the W hitegoat’s as victims, combined w ith M rs.

W hitegoat’s frail appearance at trial, likely resulted in a jury verdict motivated by

sympathy.

      Tony’s defense strategy focused on discrediting witness identifications of

Tony as the assailant. He did not contend that the W hitegoats were not assaulted.

In fact, during closing argument, Tony’s defense counsel conceded M rs.

W hitegoat had been assaulted. Defense counsel stated “[M rs. W hitegoat] was hit,

by someone. . . . Something really frightening happened to M rs. W hitegoat. She

is obviously still affected by it. She was injured, and she’s afraid to be in her

home by herself. W e do not contest that at all.” Because Tony did not argue M r.

and M rs. W hitegoat were not the victims of a crime, Tony’s right to a fair and

impartial trial was not impaired by Officer Six’s references to the W hitegoats as

victims. The district court therefore did not abuse its discretion in refusing to

grant a mistrial on this ground.

      Tony moved for a mistrial a second time at the conclusion of Richard

W hitegoat’s testimony, claiming several government witnesses discussed the

substance of their testimony outside the courtroom. The district court held an

evidentiary hearing on the motion. Angela Tony, Brian Tony’s wife, testified that

she saw Officer Six, Richard W hitegoat, and an unidentified woman talking in the

                                          -8-
hallway outside the courtroom. M rs. Tony indicated they spoke in English

initially, but switched to Navajo when they saw that she was present. According

to M rs. Tony, Officer Six told the others he was asked to testify as to the date and

location of the assaults. M rs. Tony also indicated when James W hitegoat exited

the courtroom after testifying, he approached the group and stated he was asked

how many brothers Tony had and where Tony lived. M rs. Tony was not sure

whether James was talking to Richard or the unidentified lady. Additionally,

according to M rs. Tony, Richard entered the courtroom to testify almost

immediately after James exited. The district court also heard testimony from

Richard W hitegoat. Richard stated he did not discuss the substance of any

testimony with Officer Six or James. Upon further questioning by the district

court, Richard indicated Officer Six opened his case investigation file and began

talking to Richard, but Richard walked away and did not listen.

      After considering M rs. Tony’s and Richard W hitegoat’s testimony, the

district court denied Tony’s second motion for a mistrial. The district court

observed Tony had not requested sequestration of witnesses pursuant to Rule 615

of the Federal Rules of Evidence. M oreover, although the district court indicated

it was troubled by Officer Six’s conduct, it concluded the issues discussed by the

government witnesses were not in dispute and were not central to a determination

of Tony’s guilt or innocence.




                                          -9-
         The district court did not abuse its discretion in refusing to declare a

mistrial. Under Federal Rule of Evidence 615, a party may request that witnesses

be excluded from the courtroom so they cannot hear the testimony of other

witnesses. W hen a party invokes the rule, the district court must also instruct

witnesses that they are not to discuss events in the courtroom with other witnesses

who are to testify. United States v. Buchanan, 787 F.2d 477, 484–85 (10th Cir.

1986). Such an instruction is only required, however, w hen the rule is invoked.

See Fed. R. Evid. 615. In the present case, neither party invoked Rule 615. Thus,

the district court did not err in failing to instruct the witnesses not to discuss their

testimony, and the conduct of the government witnesses did not violate any court

order.

         Even if an error occurred, Tony has not demonstrated the government

witnesses’ discussion of their testimony impaired his right to a fair and impartial

trial. See M artinez, 455 F.3d at 1129. According to M rs. Tony, the government

witnesses discussed their testimony regarding (1) the date and location of the

assaults, (2) the place of Tony’s residence, and (3) the number of brothers Tony

had. The first issue was not in dispute, and the second issue was not relevant to a

determination of Tony’s guilt or innocence. The third issue w as relevant. In

particular, Tony claimed he had four brothers, and thus, M r. W hitegoats statement

that “W iizii’s late son came into the house” could have referred to at least five

individuals. Although the number of brothers Tony had was relevant, James’

                                            -10-
alleged discussion of this issue did not have any effect on Richard’s testimony.

See Buchanan, 787 F.2d at 485 (concluding witness’ discussion of testimony was

not prejudicial in part because it did not affect other witnesses’ testimony). W hen

asked on cross-examination about Tony’s brothers, Richard indicated he did not

know how many brothers Tony had. M oreover, in closing argument, defense

counsel was permitted to argue that Tony had multiple brothers and that M r.

W hitegoat’s alleged identification could have referred to any one of them. 4

Because the government witnesses’ discussion of testimony was not prejudicial,

the district court did not abuse its discretion in refusing to grant a m istrial on this

ground.

IV. Conclusion

      For the foregoing reasons, we AFFIRM Tony’s convictions.

                                         ENTERED FOR THE COURT



                                         M ichael R. M urphy
                                         Circuit Judge




      4
       Tony did not attempt to call M rs. Tony as a witness to impeach the
testimony of James W hitegoat, Richard W hitegoat, or O fficer Six.

                                          -11-
