                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4299



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

           versus


JUAN MEDINA-GARCIA,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:04-cr-00111)


Argued:   March 14, 2007                      Decided:   May 17, 2007


Before NIEMEYER and WILLIAMS, Circuit Judges, and T. S. ELLIS, III,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: William Edmund Loose, Asheville, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee. ON BRIEF: Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Juan Medina-Garcia appeals his conviction for second degree

murder, a violation of 18 U.S.C.A. §§ 1111 and 1152 (West 2000 &

2006).    Medina-Garcia argues that the district court erred by

denying his Rule 29 Motion for Judgment of Acquittal on the charge

of first degree murder and the lesser included offense of second

degree murder and by instructing the jury on first degree murder.

He contends that the evidence produced at trial was insufficient to

submit a murder charge to the jury and that his conviction must

have resulted from juror confusion caused by the first degree

murder instruction.          Because the Government produced evidence

sufficient        to   support   Medina-Garcia’s        second   degree   murder

conviction, and Medina-Garcia merely speculates that his conviction

rests    on   a    basis   other   than       the   jury’s   acceptance   of   the

Government’s proof, we affirm.



                                          I.

     On November 15, 2004, a grand jury returned a two-count

indictment charging Medina-Garcia, a non-Indian, with first degree

murder of an Indian in Indian country,1 in violation of 18 U.S.C.A.

§§ 1111 and 1152 (Count 1), and using a firearm during and in


     1
      “Indian country” includes “all land within the limits of any
Indian reservation under the jurisdiction of the United States
Government.”   18 U.S.C.A. § 1151 (West 2000).      The indictment
charged Medina-Garcia with committing murder in the Eastern Band of
Cherokee Indian Reservation.

                                          2
relation to a crime of violence, causing the death of a person, in

violation of 18 U.S.C.A. §§ 924(c)(1) and (i)(1) (West Supp. 2006)

(Count 2).

     A jury trial commenced on April 18, 2005.    At trial, Medina-

Garcia stipulated that he was born in Mexico and was not an Indian

and that the victim, John David Smoker, was an enrolled member of

the Cherokee Indian Tribe.   The Government presented the testimony

of eyewitnesses, law enforcement officers, and expert witnesses.

     George Lomas, the twelve-year old son of Medina-Garcia’s long-

term girlfriend, Reva Bird, with whom Medina-Garcia had lived for

nine years, testified concerning the events that led to Smoker’s

death. Lomas described Medina-Garcia as being like a father to him

and stated that Smoker was his (Lomas’s) uncle.   He testified that

on the night of the shooting, Medina-Garcia, Smoker, and Miguel

Mendoza, his aunt’s husband, were playing cards. He fell asleep on

the couch and awoke to an argument between Medina-Garcia and Smoker

about money that was apparently missing.        Medina-Garcia asked

Smoker if he wanted to “take it outside,” and Smoker agreed.   Once

outside, Medina-Garcia threw a beer can at Smoker, hitting him in

the face.    The two men started grabbing at each other and throwing

punches.    About 30 seconds into the fight, Lomas, who was standing

in the doorway, heard gunshots and saw sparks.      Lomas could not

recall the number of shots, only that they occurred in quick

succession.     Medina-Garcia then retrieved his shirt from the


                                  3
ground, fixed his pants, asked Mendoza to come with him, ran to his

truck, and drove off by himself after Mendoza declined to accompany

him.       Lomas claimed that he never saw a gun before or after the

shooting.

       The Government questioned Lomas about testimony he had given

the grand jury, in which he had stated that he saw Medina-Garcia

put a black gun with a brown handle into his waistband as he headed

for his truck.      At trial, Lomas claimed that he had not been sure

and “couldn’t really tell.”      (J.A. at 148.)2   The Government also

questioned him about demonstrating for the grand jury the manner in

which Medina-Garcia put the gun in the waistband, but Lomas denied

remembering any such demonstration.     When asked about a statement

he gave after the shooting to Stuart Kelly, a special agent with

the FBI, Lomas acknowledged that he had told Kelly that he saw a

gun in Medina-Garcia’s hands after the shots were fired, but

claimed to have been confused by the agent’s questions.

       Kelly testified regarding his interview with Lomas, stating

that Lomas had told him that he saw Medina-Garcia with a pistol in

his hand and that he had seen the pistol before and knew Medina-

Garcia had a small, black pistol that he carried inside his pants.

       Mendoza and Bird also testified about the fight, offering

similar, but different accounts of what had occurred.          Mendoza



       2
      Citations to “(J.A. at _.)” refer to the contents of the
joint appendix prepared by the parties in this appeal.

                                    4
stated that before the fight, all the adults had been drinking

beer, although Bird and Medina-Garcia had not had that much to

drink. At the beginning of the argument between Smoker and Medina-

Garcia, Smoker asked Medina-Garcia if he had a gun, and Medina-

Garcia said no.    Smoker suggested they take the argument outside,

and Medina-Garcia agreed.      From where he stood outside in the

doorway, Mendoza tried to dissuade them from fighting, but he did

not get close to them.     The two began shoving and pushing, but

neither appeared to be throwing punches.    Mendoza did not see a gun

or sparks, but he heard the shots.

     Reva Bird testified that when Medina-Garcia and Smoker had

initially exited the trailer, Smoker told Medina-Garcia to “go

ahead and pull out his gun or knife . . . if he wanted to fight.”

(J.A. at 263.)    Medina-Garcia claimed to be unarmed.   According to

Bird, “they stood there for a few minutes.”          (J.A. at 263.)

Mendoza tried to calm them down, but then they started fighting.

Bird saw “something fly” when the fight started, but she wasn’t

sure what it was.    (J.A. at 264.)   After a few minutes, she heard

a gunshot, “one, and then two more.”       (J.A. at 266.)   The shots

were in quick succession, although there was a very short pause

after the first one.   Bird testified that while Smoker and Medina-

Garcia were fighting, Smoker was trying to choke Medina-Garcia and

threatened to kill him, but she did not know how long before the

shots were fired that she heard the threat.


                                  5
     Ted Lambert, a paramedic who was called to respond to the

shooting, testified that there was a wound on the back of Smoker’s

head that suggested he had been hit with a blunt object.              This

observation   was   consistent   with   the   testimony   of   Christopher

Gulledge, the forensic pathologist who conducted the autopsy on

Smoker’s body.

     Gulledge testified that the cause of death was a gunshot wound

to the chest.    Soot present in the chest wound indicated that the

gun was fired at very close range; it was either touching the

victim when it was discharged or it was within a quarter to an

eighth of an inch away. Gulledge described this as “near contact.”

Smoker also had a gunshot wound to the abdomen, which was also a

“near-contact” wound.    This shot did not injure Smoker as severely

as it would have most people, because Smoker was morbidly obese, so

the bullet remained in his fatty tissue instead of entering his

abdominal cavity.    The third gunshot wounded Smoker’s right thigh.

This shot was not fired from as close to Smoker’s body as the other

two, and Gulledge could not determine the actual distance.             The

bullet from the thigh wound had an odd trajectory, suggesting that

Smoker’s leg was raised in some fashion or that the body was

twisted in some fashion when Smoker was shot.             There were also

wounds to the back of Smoker’s head that were caused by being

struck by a blunt object and did not appear to have been caused by

a fist.   Smoker was hit with enough force on one of the wounds that


                                   6
there was a very small chip in his skull.    Gulledge did not see

evidence of bruising on Smoker’s face or hands or evidence of the

general contusions or abrasions that he typically saw in someone

who had been engaged in a fist fight.   He therefore surmised that

“a shoving, wrestling kind of fight would be more likely.”   (J.A.

at 480.)

     Elizabeth Patel, a chemist in the trace evidence section of

the North Carolina State Bureau of Investigation Crime Laboratory,

testified as an expert in gunshot residue analysis.     She stated

that she conducted a gunshot residue analysis on Smoker.       The

results were not consistent with someone who had fired a weapon,

although the test results did not eliminate the possibility that

Smoker could have fired a gun.

     At the close of the Government’s evidence, the defense moved

for a judgment of acquittal pursuant to Federal Rule of Criminal

Procedure 29 on the first degree murder charge.3      The district

court denied the motion, but told both counsel that the court would

submit the lesser included offenses of second degree murder and

voluntary manslaughter to the jury.




     3
      Rule 29 of the Federal Rules of Criminal Procedure provides,
in pertinent part, that “[a]fter the government closes its evidence
or after the close of all the evidence, the court on the
defendant’s motion must enter a judgment of acquittal of any
offense for which the evidence is insufficient to sustain a
conviction.” Fed. R. Crim. P. 29(a).

                                 7
     Medina-Garcia chose to testify.           He offered a description of

the fight with Smoker that contradicted the evidence presented by

the Government.      According to Medina-Garcia, Smoker instigated the

fight.    Smoker first became angry because he thought he was being

accused of stealing a twenty-dollar bill from Medina-Garcia, and

Medina-Garcia tried to calm him down, but to no avail.              As soon as

Smoker learned that Medina-Garcia was not carrying a weapon, he

knocked a beer can out of Mendina-Garcia’s hand and “came up

towards [him].” (J.A. at 517.)         They began grabbing each other and

continued to struggle for about three to four minutes.                 At one

point, Smoker put his hands around Medina-Garcia’s neck, threatened

to kill him, and drew a gun.           Although they struggled with the

weapon, Medina-Garcia never actually grabbed the gun.                  Still,

Smoker told him to “let go of the gun or I’m going to shoot your

hand.”     (J.A. at 520.)     At that moment, Medina-Garcia heard the

first shot.        They kept struggling; he heard another shot; they

struggled more; he heard a third shot; and Smoker fell to the

ground.

     At the close of all the evidence, Medina-Garcia’s counsel

reasserted his motion for a Rule 29 dismissal, and the district

court denied the motion. The district court instructed the jury on

first     degree    murder,   second       degree   murder,   and   voluntary

manslaughter and explained to the jury how to approach the lesser

included offenses in Count One. During its deliberations, the jury


                                       8
asked the district court to repeat the definitions of the terms

related to the defendant’s mental state.              The jury also asked to

see some photos and clothing that had been recovered from Smoker’s

body (all of which had previously been admitted into evidence).

     On April 21, 2005, the jury returned a verdict of guilty as to

the lesser included offense of second degree murder on Count One

and not guilty as to using a firearm during a crime of violence as

charged in Count Two.         On March 1, 2006, the district court

sentenced Medina-Garcia to 270 months’ imprisonment.

     Medina-Garcia      timely   appealed,      and    we    have   jurisdiction

pursuant to 28 U.S.C.A. § 1291 (West 2006) (providing for appellate

jurisdiction over “final decisions” of the district court).



                                    II.

     We review de novo the denial of a Rule 29 motion for judgment

of acquittal based on insufficient evidence.                  United States v.

Gallimore, 247 F.3d 134, 136 (4th Cir. 2001).                       In reviewing

challenges   to   the   sufficiency       of   the    evidence      supporting   a

conviction, our task is to determine, “viewing the evidence and the

reasonable inferences to be drawn therefrom in the light most

favorable to the Government, whether the evidence adduced at trial

could   support   any   rational   determination        of    guilty    beyond   a

reasonable doubt.”      United States v. Burgos, 94 F.3d 849, 863 (4th

Cir. 1996) (en banc) (internal quotation marks omitted).


                                      9
     We   review   for    abuse    of   discretion        the    district       court’s

decision to give, or not to give, a requested jury instruction,

reversing only for prejudicial error.               United States v. Hurwitz,

459 F.3d 463, 474 (4th Cir. 2006); United States v. Fleschner, 98

F.3d 155, 158 (4th Cir. 1996).



                                        A.

     Medina-Garcia       was    charged      with   first       degree    murder    in

violation of 18 U.S.C.A §§ 1111 and 1152, but he was ultimately

convicted of the lesser included offense of second degree murder.

Section 1111(a) defines murder as “the unlawful killing of a human

being with malice aforethought.”             18 U.S.C.A. § 1111.         Pursuant to

§ 1111(a), a murder that meets specific criteria enumerated in the

statute, as well as any killing that is “willful, deliberate,

malicious, and premeditated . . . is murder in the first degree,”

and “any other murder is murder in the second degree.”                             Id.

Section 1152 extends the coverage of federal criminal law to Indian

country, but with certain exceptions, including an exception for

“offenses committed by one Indian against . . . another Indian.”

18 U.S.C.A. § 1152.            Accordingly, to convict Medina-Garcia of

second degree murder, the jury was required to find that Medina-

Garcia,   a   non-Indian,      killed     Smoker,    an    Indian,       with    malice

aforethought and within Indian country.              To convict Medina-Garcia

of first degree murder, the jury needed to find an additional


                                        10
element        --     that     Medina-Garcia       acted      with     willfulness,

deliberateness, maliciousness and premeditation.

     Medina-Garcia contends that because the Government presented

insufficient          evidence      to   prove    premeditation        and     malice

aforethought, the district court erred by (1) denying his Rule 29

motion    for       judgment   of   acquittal    of   first   degree    murder      and

instructing the jury on first degree murder, and (2) denying his

Rule 29 motion as to the lesser included offense of second degree

murder.



                                          B.

     We address Medina-Garcia’s second argument first. The statute

of conviction does not define “malice aforethought.” See 18 U.S.C.

§ 1111(a).          The district court, without objection from Medina-

Garcia, defined malice aforethought as “either to kill another

person deliberately and intentionally or to act with callous and

wanton disregard for human life.”                 (J.A. at 626-27.)          We have

previously explained that to prove malice aforethought within the

meaning of § 1111(a), the Government need not show a specific

intent    to    kill     or    injure,   as     malice   aforethought        “may   be

established by evidence of conduct which is reckless and wanton and

a gross deviation from a reasonable standard of care, of such a

nature that a jury is warranted in inferring that the defendant was

aware of a serious risk of death or serious bodily harm.” United


                                          11
States v. Williams, 342 F.3d 350, 356 (4th Cir. 2003) (internal

quotation marks omitted).

       In support of his contention that the Government provided

insufficient evidence of malice aforethought, Medina-Garcia asserts

that “[t]here was no evidence of any statements by [Medina-Garcia]

showing any type of malice aforethought.”              (Appellant’s Br. 22.)

Malice aforethought, however, can be proven by circumstantial

evidence.         There is no requirement that the evidence include

statements made by the defendant.              See Williams, 342 F.3d at 356

(“Whether malice is present in a given case must be inferred by the

jury       from   the   whole   facts   and   circumstances   surrounding   the

killing.” (internal quotation marks omitted)).

       The Government presented evidence that Lomas, an eyewitness to

the fight between Medina-Garcia and Smoker, told an investigating

officer and a grand jury that he saw Medina-Garcia put a black gun

with a brown handle into his waistband as he ran to his truck after

Smoker had been shot.4          This version of events was consistent with

the expert testimony provided by the Government, which revealed

that the results of a gun-shot residue analysis on Smoker were not

consistent with someone who had fired a weapon, and that Smoker had

been struck in the back of the head with a blunt object.            Moreover,


       4
      The Government also presented evidence that after the fight,
Lomas told Special Agent Kelly that in the past he had seen Medina-
Garcia with the same gun that he saw on the night of the shooting.
Lomas also told Kelly that he knew Garcia had a small, black pistol
that he carried inside his pants.

                                         12
Gulledge testified that when the shots were fired into Smoker’s

chest and stomach, the shooter was holding the gun less than a

quarter inch from Smoker’s body.       From this evidence, a reasonable

jury could conclude that Medina-Garcia fired three shots at Smoker.

With respect to two of the shots, a jury could reasonably find that

Medina-Garcia placed the gun within a quarter inch of Smoker’s

chest and abdomen and pulled the trigger. Such conduct represents,

at a minimum, reckless conduct of “such a nature that a jury is

warranted in inferring that the defendant was aware of a serious

risk of death or serious bodily harm.”         Williams, 342 F.3d at 356

(internal quotation marks omitted) (holding that the evidence

adduced at trial was sufficient for the jury to find malice

aforethought where the defendant accompanied others to rob a known

drug dealer, even though the other robbers had made him aware that

“robbing    [the   victim]   might   also   entail   killing     him”).    We

therefore    conclude   that   the   Government      presented    sufficient

evidence for a reasonable jury to find malice aforethought.               The

district court did not err in denying Medina-Garcia’s Rule 29

motion for a judgment of acquittal of second degree murder.



                                     C.

     Although Medina-Garcia was not convicted of first degree

murder, he nevertheless contests the district court’s submission of

the first degree murder charge to the jury.            He argues that the


                                     13
district court erred by denying his Rule 29 motion and instructing

the jury on first degree murder, a contention that reflects Medina-

Garcia’s belief that he would not have been convicted of second

degree murder had the court not instructed the jury on first degree

murder.   Medina-Garcia assumes that the jury, faced with a choice

between four options -- first degree murder, second degree murder,

voluntary manslaughter, and acquittal -- became hopelessly confused

and ultimately reached a compromise verdict on Count One.      For

support, he points to the jury’s request that the district court

repeat the definitions of the terms related to the defendant’s

mental state.   He also relies on the jury’s failure to convict him

of Count Two, the firearm charge, arguing that in a case in which

the victim clearly died from a gunshot wound, it “makes no sense

that the defendant could be convicted of murder of any sort and not

be convicted of the [firearm] charge.”   (Appellant’s Br. at 23.)

     Because Medina-Garcia has offered no basis on which we can

conclude that he was prejudiced by the submission of the first

degree murder charge to the jury, we need not delve into the

sufficiency of the evidence to support that charge.   Medina-Garcia

merely speculates that the jury’s request that the district court

repeat portions of its instructions demonstrates juror confusion,

when the request could just as easily reflect the jury’s careful

attention to the crucial issue in the case.    Moreover, we cannot

infer prejudice from Medina-Garcia’s acquittal on Count Two for two


                                 14
reasons.       First,      we    lack    any    basis       for     concluding      that   the

inconsistency in the verdict resulted from juror confusion, rather

than a deliberate decision to exercise lenity.                         See United States

v. Powell, 469 U.S. 57, 66 (1984) (rejecting, “as imprudent and

unworkable,     a    rule       that    would       allow    criminal        defendants     to

challenge inconsistent verdicts on the ground that in their case

the verdict was not the product of lenity, but of some error that

worked against them,” because “[s]uch an individualized assessment

of the reason for the inconsistency would be based either on pure

speculation,        or   would         require       inquiries        into     the    jury’s

deliberations that courts generally will not undertake”).                            Second,

even if we assumed that the acquittal on the firearm charge was the

result of confusion, there is no evidence that any such confusion

was   caused   by    the    instructions            on   Count      One,   rather    than    a

misunderstanding of the instructions concerning Count Two.

      As   discussed        above,      the     Government          produced     sufficient

evidence for a reasonable jury to convict Medina-Garcia of second

degree murder.       We are unwilling to speculate that Medina-Garcia’s

conviction     resulted         from     something          other     than    the    juror’s

acceptance of the Government’s proof.                       Accordingly, we conclude

that, even if the district court erred in denying Medina-Garcia’s

Rule 29 motion and instructing the jury on first degree murder (and

we do not suggest that it did), any such error was harmless.




                                               15
                                   III.

     In sum, we conclude that the district court did not err in

denying Medina-Garcia’s Rule 29 motion for judgment of acquittal on

the lesser included offense of second degree murder.               Even if we

were to assume that the district court erred in submitting the

first   degree   murder   charge   to   the   jury,   any   such   error   was

harmless.   We therefore affirm Medina-Garcia’s conviction.



                                                                     AFFIRMED




                                    16
