                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          April 6, 2006
                                     TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 05-2077
          v.                                       District of New Mexico
 TEDDY P. CHIQUITO,                             (D.C. No. CR-03-892-MCA)

               Defendant-Appellant.



                            ORDER AND JUDGMENT          *




Before HARTZ , SEYMOUR , and McCONNELL , Circuit Judges.


      A jury found Teddy Chiquito guilty on three counts of a six-count

indictment related to assaults that occurred within the boundaries of a Navajo

Indian Reservation. On January 18, 2005, the district court sentenced him to 24-



      *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore 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    This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
month prison terms on counts I and II to be served concurrently, followed by a

ten-year minimum mandatory consecutive sentence on count V. Mr. Chiquito’s

counsel raises one claim: that the trial court abused its discretion in not allowing

the jury to view the scene of the shootings. Pursuant to   Anders v. California , 386

U.S. 738 (1967), Mr. Chiquito’s counsel also notes seven other claims raised by

Mr. Chiquito. Our jurisdiction arises under 28 U.S.C. § 1291, and we     AFFIRM .

                        Factual and Procedural Background

       Shortly after midnight on May 25, 2002, Mr. Chiquito became concerned

that his fourteen-year-old daughter was attending a party at his ex-wife’s home

where alcohol was present. Mr. Chiquito drove to his ex-wife’s home, where he

found the daughter intoxicated. Although Mr. Chiquito was a police officer with

the Navajo Nation Police Department, he was neither on duty nor in uniform that

night, nor was he driving a police vehicle. Mr. Chiquito did, however, carry his

Navajo Nation police-duty weapon with him into the party.

       Shortly after Mr. Chiquito dragged his daughter from the house, a

seventeen year-old, P.H., approached him. Mr. Chiquito shot P.H. in the stomach

in the altercation that followed. A second man, Jonah Toledo, approached and

Mr. Chiquito shot him in the leg. Mr. Chiquito testified that he warned Mr.

Toledo to stop and shot him when he kept charging. Mr. Toledo testified that he

was ten yards away.


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       On June 1, 2004, Mr. Chiquito filed a motion requesting that the court

transport the jurors to Torreon and Ojo Encino, both in New Mexico, to see where

the assaults happened. The government opposed the motion, and the trial court

subsequently denied it. At his jury trial, which began on June 15, 2004, Mr.

Chiquito argued self-defense. The jury convicted him of the counts that related to

the shooting of Mr. Toledo.

                                       Discussion

       Through counsel, Mr. Chiquito argues that the trial court abused its

discretion in not allowing the jury to view the scene of the shootings. Mr.

Chiquito himself raises seven additional issues: (1)   Belcher v. Stengel violations;

(2) the lack of jury instruction on the definition of serious bodily injury; (3) the

absence of medical records or medical expert testimony to support the injuries;

(4) Mr. Chiquito’s trial as an Indian rather than as a law enforcement officer; (5)

double jeopardy; (6) obstruction of justice; and (7) qualified immunity. We

consider each claim in turn.

A. Whether the trial court abused its discretion in not allowing the jury to view

the scene

       Mr. Chiquito argues that the district court abused its discretion in ruling

against his pretrial motion to take the jury to two remote areas on the Navajo

Indian Reservation. The district judge denied the motions, stating that “there are


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other avenues here that will make available to the jury all the information that

they need.” Mr. Chiquito also argues that the court abused its discretion in

making such a ruling at the pretrial stage, rather than deferring until the trial was

underway so as to rule on the motion “within the context of the trial.”

       A trial court acts within its discretion when it denies a motion for a jury

view of a crime scene so long as sufficient evidence is available to describe the

scene, such as testimony, diagrams, or photographs.        United States v. Crochiere ,

129 F.3d 233, 236 (1st Cir. 1997);      see also United States v. Culpepper   , 834 F.2d

879, 883 (10th Cir. 1987) (finding that the trial court did not abuse its discretion

where the condition of the scene had changed and photographs were admitted into

evidence). Among other things, we consider whether the jury view would confuse

jurors or be logistically difficult.   Crochiere , 129 F.3d at 236.

       In his motion for a jury view, Mr. Chiquito argued that it was necessary to

show the jury “the distances between the places involved, [and] the desolation of

the places involved” and because “no measurements were taken when evidence

was collected.” However, it was undisputed that the government had numerous

photographs of the area where the incident occurred, including aerial photographs

and a videotape with panoramic and focused shots of the surrounding area.

Additionally, nothing prevented Mr. Chiquito from obtaining his own photographs

and measurements if he found the government’s inadequate. As noted by the


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district court in denying the motion, “a daytime visit would not necessarily

portray the scene as it appeared” on the night of the shooting—thus potentially

confusing or misleading the jury. Finally, “a jury view of the requested locations,

especially during the evening, would [have been] logistically difficult and time-

consuming given their remote location and distance” [100 miles] from the

courthouse. We find that the district court acted within its discretion in denying

Mr. Chiquito’s motion for a jury view.

B. Claims Raised By Mr. Chiquito

1. Belcher v. Stengel violations

       Mr. Chiquito cites Belcher v. Stengel , 429 U.S. 118 (1976), presumably to

argue that he could claim qualified immunity because he used a weapon that he

was required to carry while off-duty.    Belcher considered whether an off-duty

officer using his police weapon acted under color of law within the meaning of 42

U.S.C. § 1983. This civil rights statute provides that an individual who deprives

another of his constitutional rights under color of state law “shall be liable to the

party injured in an action at law, suit in equity, or other proper proceeding for

redress.” This case, however, involves a criminal conviction unrelated to 42

U.S.C. § 1983; qualified immunity applies only in a civil action for damages.       See

Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). Additionally, although the

Supreme Court had granted     certiorari to determine whether   an off-duty officer’s


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use of a weapon is an act “under color of law” within the meaning of 42 U.S.C. §

1983, in Belcher the Court later dismissed the writ as improvidently granted.       Id.

at 119–20. Consequently, it is impossible to establish such a thing as a “      Belcher

v. Stengel violation,” let alone find one here.

2. The court failed to instruct the jury on the definition of serious bodily injury

       Mr. Chiquito argues that the district court failed to instruct the jury

properly as to the definition of serious bodily injury. The court instructed the jury

that serious bodily injury is “bodily injury which involves (a) a substantial risk of

death, (b) extreme physical pain, (c) protracted and obvious disfigurement, or (d)

protracted loss or impairment of the function of a bodily member, organ, or

mental faculty.” That definition of serious bodily injury is identical to the one

found in 18 U.S.C. § 1365(h)(3). We find that the court’s instruction on this

point was adequate.

3. No medical record or expert testimony was introduced into evidence

       Mr. Chiquito argues that no medical record or expert medical testimony

was introduced at trial to substantiate the injuries sustained by Mr. Toledo.

However, the parties stipulated to the testimony of the doctor who treated Mr.

Toledo’s injuries and described their severity. Consequently, Mr. Chiquito’s

contention that no such testimony was received is without merit.

4. Chiquito was tried as an Indian rather than as a law enforcement officer


                                            -6-
      Mr. Chiquito argues that he should have been tried as a law enforcement

officer—presumably meaning that he should have been entitled to qualified

immunity. However, as noted above, qualified immunity provides immunity to

law enforcement officers in a   civil action, whereas this is a criminal appeal.   See

Harlow , 457 U.S. at 818. Consequently, qualified immunity is not applicable.

5. Double Jeopardy

      Mr. Chiquito raises a double jeopardy claim that he was tried in federal

court “as Indian and law enforcement officer.”      The double jeopardy clause

protects “against a second prosecution for the same offense after acquittal, against

a second prosecution for the same offense after conviction, and against multiple

punishments for the same offense.” Justices of Boston Municipal Court v. Lydon,

466 U.S. 294, 306–07 (1984). Because Mr. Chiquito presents no argument that

any of those three scenarios exist in his case, we find that double jeopardy does

not apply.

6. Obstruction of Justice

      Mr. Chiquito argues that his rights to due process were violated and alleges

“obstruction of justice” because the other individuals involved in the underlying

altercation—including Mr. Toledo—were not charged in the Tribal Criminal

Justice System. It appears that Mr. Chiquito is alleging selective prosecution.

However, in order to prevail on a selective prosecution claim, a defendant must


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show not only that he was singled out for prosecution unlike others similarly

situated, but also “‘that the government’s selection of him for prosecution was

invidious or in bad faith, and was based on impermissible considerations such as

race, religion, or the desire to prevent the exercise of constitutional rights.’”

United States v. Davis, 339 F.3d 1223, 1228 n. 3 (10th Cir. 2003) (quoting United

States v. Salazar, 720 F.2d 1482, 1487 (10th Cir. 1983)). Here, however, the

other individuals involved in the altercation were not similarly situated; only Mr.

Chiquito discharged a firearm. Additionally, no evidence suggests that the

government’s decision to prosecute him was invidious or in bad faith.

7. Qualified Immunity

      Mr. Chiquito cites a Sixth Circuit case, Sample v. Bailey, 409 F.3d 689 (6th

Cir. 2005), in arguing that a district court’s summary judgment order regarding a

denial of qualified immunity may be immediately appealable. As previously

discussed in this order, however, a qualified immunity argument is misplaced

because this is a criminal appeal.

      The judgment of the United States District Court for the District of New

Mexico is AFFIRMED .

                                                 Entered for the Court,

                                                 Michael W. McConnell
                                                 Circuit Judge



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