                              UNITED STATES COURT OF APPEALS
                                          Tenth Circuit
                               Byron White United States Courthouse
                                        1823 Stout Street
                                     Denver, Colorado 80294
                                         (303) 844-3157
Patrick J. Fisher, Jr.                                                                 Elisabeth A. Shumaker
Clerk                                                                                  Chief Deputy Clerk

                                                April 7, 1997


        TO:      All recipients of the captioned opinion

        RE:      96-8000, USA v. Swallow
                 March 24, 1997


                 Please be advised of the following correction to the captioned decision:

               On page four of the opinion, in the paragraph which begins “Although there are
        minor disputes...”, the phrase in the second sentence which reads “approximately thirty-
        five miles from the camp” should read “approximately thirty-five miles from the
        reservation headquarters.”

                 Please make the appropriate correction.

                                                           Very truly yours,

                                                           Patrick Fisher, Clerk



                                                           Susie Tidwell
                                                           Deputy Clerk
                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                                       PUBLISH
                                                                              MAR 24 1997
                       UNITED STATES COURT OF APPEALS
                                                                         PATRICK FISHER
                                                                                   Clerk
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,

 v.
                                                    No. 96-8000
 STEVEN LEE SWALLOW,

        Defendant-Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF WYOMING
                          (D.C. No. 94-CR-0135-D)


Laurence P. Van Court, Assistant Federal Public Defender (Michael G. Katz, Federal
Public Defender and James H. Barrett, Assistant Federal Public Defender with him on the
briefs), Cheyenne, Wyoming for Defendant-Appellant.

James C. Anderson, Assistant United States Attorney (David D. Freudenthal, U.S.
Attorney for the District of Wyoming, Assistant U.S. Attorney with him on the briefs),
Cheyenne, Wyoming for Plaintiff-Appellee.


Before TACHA, HENRY, and BRISCOE, Circuit Judges.


HENRY, Circuit Judge.
       Appellant Steven Lee Swallow was found guilty of two counts of first-degree

murder and two counts of second-degree murder under 18 U.S.C. § 1111(a), and four

counts of carrying a firearm during the commission of a violent crime under 18 U.S.C. §

924(c). Mr. Swallow appeals his convictions for two counts of second-degree murder for

the murders of his wife, Cleo, and his brother, Ethan. Specifically, Mr. Swallow appeals

the district court’s refusal to give his proposed jury instructions regarding intervening

cause arguing: (1) that the unforeseeable gross negligence of a third party may relieve

Mr. Swallow of responsibility, and (2) that the definition of “gross negligence” in this

context includes the failure to act to avert injury to another. The district court did not

erroneously refuse to issue Mr. Swallow’s proposed instructions. We exercise

jurisdiction under 18 U.S.C. § 1153 and 28 U.S.C. § 1291, and we affirm.

                                    I. BACKGROUND

       In November 1994, Mr. Swallow, his wife Cleo, and his two children lived on the

Wind River Reservation at a location commonly known as the “ditch camp,”

approximately one-half mile from the settlement of Crowheart, Wyoming. Mr. Swallow’s

two brothers, Shawn and Ethan Swallow, resided next door.

       On November 24, 1994, sometime after 10:00 p.m., Cleo, recently beaten by Mr.

Swallow, retreated to Shawn’s and Ethan’s home. Rec. vol. VII, at 85, 202. Mr.

Swallow, apparently intoxicated, entered his brothers’ home shortly after Cleo arrived.

After fighting with his brother Ethan, id. at 86, 204, Shawn told Mr. Swallow to go home


                                              2
until he had calmed down. Id. at 94, 206. About five minutes later, Mr. Swallow kicked

in the door to his brothers’ home and entered with a gun. Id. at 108. The three brothers

started arguing. Mr. Swallow then shot his brother Shawn, and a guest, Reuben

Lajeunesse, both of whom died almost immediately. Mr. Swallow also shot his brother

Ethan, and his wife. Ethan died approximately ninety minutes later; Mr. Swallow’s wife

died several hours later.

       Four adults and Mr. Swallow’s two children were also present at the time of the

shootings. Regina Hill and Mr. Swallow’s son escaped unharmed to the residence of a

neighbor, Tom Presgrove, who was also in the house at the time of the shootings. Mr.

Presgrove, Douglas Willow, Verna No Ear, and Mr. Swallow’s twelve-month-old

daughter escaped and hid behind some other buildings nearby. Eventually the three

adults, with the infant, approached Mr. Swallow, and Mr. Willow attempted to telephone

for help. Mr. Swallow then pulled the telephone cord out of the wall. When Mr. Willow

attempted to render aid to Cleo, Mr. Swallow said, “No, just leave her there.” Rec. vol.

VII, at 126. Ms. No Ear asked if they could take Ethan, and Mr. Swallow replied, “No

Verna, I don’t know what I’m going to do next. Just go.” Id. at 221-22.

       After the survivors had left the camp, Mr. Swallow telephoned 911 at 10:38 p.m.

and spoke with the 911 dispatcher at the Fremont County sheriff’s office for

approximately two hours and forty minutes. Mr. Swallow told the dispatcher he “just shot

up half the house.” Rec. vol. V, at 43.


                                            3
       During the phone call, Mr. Swallow repeatedly asked for medical personnel to

render assistance, but refused to surrender as the 911 operators requested. At one point,

Mr. Swallow stated he would not harm any medical personnel, but early in the

conversation, he threatened to kill any law enforcement personnel who entered the house.

The standard operating procedure for Fremont County emergency responders requires that

law enforcement personnel secure a crime scene before entry.

       Although there are minor disputes about the facts, the parties agree to the

following events: The dispatch center mobilized and dispatched emergency medical

personnel shortly after receiving the 911 call. A command post was established sometime

after 11:00 p.m. in the Crowheart Fire Hall, approximately thirty-five miles from the

reservation headquarters and fifty miles from the Fremont County sheriff’s office. The

first ranking law enforcement official arrived at the fire hall at approximately 11:30 p.m.

       The rescue squad encountered several delays in reaching the reservation site. The

remote area of the ditch camp presented communications problems between the squad

and the dispatcher, which impeded organization of the rescue team. The distance from

the Fremont County sheriff’s office to the site also added to the response time. The squad

cleared Mr. Presgrove’s residence and then it stopped to interview both the witnesses to

the shootings and a car-load of people seen departing from Shawn and Ethan Swallow’s

residence. After learning that Mr. Swallow was an excellent marksman, and because of

the clear moonlit night and open grazing land surrounding the camp, the squad decided to


                                             4
take a more circuitous route to approach the residence. The squad also waited for two

other groups of officers, who approached the site from different directions.

       At approximately 1:13 a.m., Mr. Swallow left his brother’s house and returned to

his house. Around 3:15 a.m., the authorities entered Mr. Swallow’s brother’s house and

found all four victims dead. The authorities then proceeded to Mr. Swallow’s residence,

where they found him asleep. The pathologist who performed autopsies upon the bodies

of Cleo and Ethan Swallow testified that both individuals bled to death as the result of

gunshot wounds.

       Prior to trial, the government filed a motion in limine to prohibit Mr. Swallow

from “arguing to the jury that [he] should be relieved from criminal responsibility in the

deaths of Cleo Swallow and Ethan Swallow as the result of the acts or omissions of law

enforcement officers and/or emergency technicians.” Rec. vol. I, doc 47, at 1. After Mr.

Swallow filed a response, the court heard argument on the government’s motion. The

court ruled that it would allow Mr. Swallow to lay the foundation for a defense based on

the acts and omissions of the officers and technicians. The court also stated that it would

allow Mr. Swallow’s attorney to “cross-examine witnesses in such a way that will allow

you to assert that there is a legitimate basis for this defense.” Rec. vol. III, at 28.

However, the court added that it would not allow Mr. Swallow’s counsel to “mention this

defense, per se.” Id.




                                                5
       During the instruction conference, the court again heard argument on the issue.

The court rejected Mr. Swallow’s proposed instructions, ruling they did not contain a

correct statement of the law on intervening cause as applied by a majority of courts.

Furthermore, the district court stated that there was insufficient evidence to justify giving

the instructions. For the reasons stated herein, we affirm the district court’s ruling.

                                     II. DISCUSSION

       A defendant is entitled to an instruction on his theory of the case if the instruction

is a correct statement of the law and the theory is supported by sufficient evidence for the

jury to find in his favor. United States v. Grissom, 44 F.3d 1507, 1512 (10th Cir.), cert.

denied, 115 S. Ct. 1720 (1995). We review de novo the instructions as a whole. United

States v. Voss, 82 F.3d 1521, 1529 (10th Cir.), cert. denied, 117 S. Ct. 216 (1996). We

review the district court’s refusal to give a particular jury instruction requested by the

defendant for an abuse of discretion. Id.

                          A. Murder under the Major Crimes Act

       Under the Major Crimes Act, any Indian who commits murder within Indian

country is subject to the same “law and any penalties as all other persons committing”

murder, within the exclusive jurisdiction of the United States. 18 U.S.C. § 1153(b); see

also 18 U.S.C. § 3242 (providing that Indians prosecuted under the Major Crimes Act

“shall be tried in the same courts and in the same manner as are all other persons

committing such offense within the exclusive jurisdiction of the United States”).


                                              6
“Murder is the unlawful killing of a human being with malice aforethought.” 18 U.S.C. §

1111(a). First-degree murder includes any kind of “willful, deliberate, malicious, and

premeditated killing.” Id. Any other murder is second-degree murder. Id. Although Mr.

Swallow was charged with four counts of first-degree murder, the jury found Mr.

Swallow guilty of second-degree murder for the deaths of Cleo and Ethan Swallow.

                              B. Instructions given by the court

       Mr. Swallow first argues that the instructions as a whole incorrectly stated the

applicable law. The district court did not give the jury any instructions specifically on

the issue of proximate cause or the defense of intervening cause. Rather, the court

instructed the jury that to find Mr. Swallow guilty of first-degree murder, it must find

beyond a reasonable doubt that Mr. Swallow committed the “unlawful killing of a human

being with malice aforethought” that was “perpetrated by any kind of willful, deliberate,

malicious and premeditated design unlawfully and maliciously to effect the death of any

human being . . . .” Rec. vol. XIII, at 14. The court defined second-degree murder as the

unlawful killing of a human being with malice aforethought, “but without the

premeditated intent willfully to take a human life . . . .” Id. at 20-21.

       Proximate cause of death is an essential component of both first- and

second-degree murder. See e.g., Rollin M. Perkins & Ronald N. Boyce, Criminal Law

774-821 (3d ed. 1982); State v. Bennis, 457 N.W.2d 843, 846 (S.D. 1990). Although the

trial court did not expressly instruct that the government had the burden to prove that Mr.


                                               7
Swallow’s conduct was the proximate cause of the decedents’ deaths, the court did

instruct that the jury that, in order to find Mr. Swallow guilty of first or second-degree

murder, it had to find that Mr. Swallow “kill[ed]” the decedents. See Rec. vol. XIII, at

16, 21; see also 2 Leonard B. Sand et al., Modern Federal Jury Instructions ¶ 41.01, at 41-

7 (1996) (providing definition of “kill”). The record indicates that there was undisputed

expert testimony that the decedents died from blood loss that resulted from the gunshot

wounds. Rec. vol. XII, at 21.

       The court also gave carefully phrased pattern instructions defining the key terms of

each element. See Rec. vol. XIII, at 15, 20-21, 23-24. After carefully reviewing the

record and examining the jury instructions as a whole, we believe that the instructions

properly informed the jury that it could only find Mr. Swallow guilty of murder on each

count if it concluded that he proximately caused the victim’s death.

                          C. Mr. Swallow’s proposed instructions

       Mr. Swallow further argues that the district court abused its discretion in refusing

to give two proposed instructions. The first proposed instruction characterizes an

independent intervening cause as the unforeseeable gross negligence of a third party that

relieves the defendant of responsibility for the death of the victim. Rec. Supp. vol. I,

Proposed Jury Instruction A (citing People v. Gentry, 738 P.2d 1188 (Colo. 1987); United

States v. Guillette, 547 F.2d 743 (2d Cir. 1976)). The second proposed instruction

defines gross negligence as “knowledge of a situation requiring the exercise of ordinary


                                              8
care and diligence to avert injury to another, the ability to avoid the resulting harm by

ordinary care and diligence . . . and the omission to use such care and diligence to avert

the threat and danger when . . . it must be apparent that the result is likely to prove

disastrous to another.” Rec. Supp. vol. I, Proposed Jury Instruction B (citing People v.

Sealey, 356 N.W.2d 614 (Mich. Ct. App. 1984)).

       First, after careful examination of the record, we agree with the district court that

there simply was no evidence of gross negligence by the rescue squad. As the district

court stated, there was no “evidence presented by the defense on their defense that the

conduct of the officers was so deficient as to raise their conduct to a level of gross

negligence.” Rec. vol. XII, at 18-19.

       Moreover, the requested instruction provided that the defendant would be relieved

of responsibility for the deaths only if he did not participate in the intervening cause. The

record established that the defendant participated in the intervening cause. By refusing to

surrender, he was a cause of the rescue squad’s delay in reaching the victims. Mr.

Swallow was not entitled to the requested instruction.

       Additionally, although the district court allowed him to present evidence in support

of his theory of intervening cause, Mr. Swallow presented no evidence to rebut the

government expert’s findings that Cleo and Ethan bled to death as a result of the gunshot

wounds. An instruction as to intervening cause is not proper absent evidence to sustain it.

See State v. Cole, 154 S.E.2d 506, 511 (N.C. 1967) (citing 26 Am. Jur. Homicide § 533


                                               9
(1940)); see also Carlston v. United States, 671 F. Supp. 1324, 1326 (D.N.M. 1987)

(holding in a civil context, “[w]hen reasonable minds cannot differ on the issue of

intervening cause, the matter can be decided as one of law”). Mr. Swallow introduced no

expert testimony that indicated the wounds were not dangerous or calculated to produce

death. See Baylor v. United States, 407 A.2d 664, 669 (D.C. 1979) (stating “[o]rdinarily

expert medical testimony will be required to show that the wound was not dangerous or

calculated to produce death”). Thus, the court correctly found that defendant’s evidence

failed to support a submission of any instruction regarding intervening cause to the jury.

See State v. Soucy, 653 A.2d 561, 563-64 (N.H. 1995) (stating “if some evidence is

offered, . . . which is reasonably calculated to provide a reasonable doubt on the issue of

causation, it must be admitted and the element of causation, with the supported defense,

must be submitted to the jury”).

       Finally, even if we were to accept Mr. Swallow’s invitation to analogize to tort

law, he would not prevail, because we are here concerned with a negative act. See Aplt.’s

Br. at 14-15. Professors Perkins and Boyce insightfully note that “[i]t has seemed

important to recognize the possibility of a negative act being superseding in a civil case,

but even there this applies only in very exceptional situations which seem to have no

counterpart in criminal cases.” Perkins & Boyce, supra at 819-20 (presenting the

following illustration: Automobile negligently driven by A strikes B, leaving B

unconscious on the highway, bleeding to death. C, a passing motorist, stops and surveys


                                             10
the situation, and drives on without rendering aid to B. B bleeds to death. “Regardless of

whether C is under any duty to B to render such aid, his failure to do so is not a

superseding cause which will relieve A of liability for [B’s death].”) (emphasis in

original) (citations omitted). The Restatement of Torts similarly indicates that the mere

existence of an unperformed duty does not rise to a superseding cause that can break the

causal chain. See Restatement (Second) of Torts § 452, cmt. c, illus. 4 (1965).

Furthermore, “[i]n cases involving death from injuries inflicted in an assault, courts have

uniformly held that the person who inflicted the injury will be liable for the death despite

the failure of third persons to save the victim.” Kusmider v. State, 688 P.2d 957, 959

(Alaska Ct. App. 1984) (citing Wright v. State, 374 A.2d 824, 829 (Del. 1977); Pettigrew

v. State, 554 P.2d 1186, 1193 (Okla. Ct. Crim. App. 1976); People v. McGee, 187 P.2d

706, 714-15 (Cal. 1947)). Thus, Mr. Swallow’s analogy to tort law itself collapses.

       In conclusion, the record does not support the issuance of Mr. Swallow’s proposed

instructions. Therefore, the district court did not err in refusing to give Mr. Swallow’s

proposed instructions on intervening cause and gross negligence. Mr. Swallow’s

convictions for second-degree murder are affirmed.




                                             11
