                           NOT FOR PUBLICATION                           FILED
                     UNITED STATES COURT OF APPEALS                      DEC 16 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                       No.    15-10512

                  Plaintiff-Appellee,            D.C. No.
                                                 3:14-cr-08073-DGC-1
   v.

 CORBERT GOLDTOOTH,                              MEMORANDUM*

                  Defendant-Appellant.

                    Appeal from the United States District Court
                             for the District of Arizona
                    David G. Campbell, District Judge, Presiding

                          Submitted December 14, 2016**
                             San Francisco, California

Before: O’SCANNLAIN, GOULD, and M. SMITH, Circuit Judges.

        Corbert Goldtooth appeals his second-degree murder conviction and prison

sentence. He challenges the sufficiency of the evidence, the denial of his motion to

suppress his confession, and the denial of his requested downward departures at



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
sentencing. We affirm the district court.

      The Government was required to prove beyond a reasonable doubt that

Goldtooth killed Virgil Teller, with malice aforethought, not acting in reasonable

self-defense, in the Navajo Indian Reservation in the District of Arizona, and that

Goldtooth was an Indian. 18 U.S.C. §§ 1111(a), 1153. Goldtooth contests the

sufficiency of the evidence on malice aforethought and self-defense. “Evidence is

sufficient to support a conviction unless, viewing the evidence in the light most

favorable to sustaining the verdict, no rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” United States v.

Green, 592 F.3d 1057, 1065 (9th Cir. 2010).

      To establish malice aforethought, “the government must prove that the

defendant killed intentionally or recklessly with extreme disregard for human life.”

Kleeman v. U.S. Parole Comm’n, 125 F.3d 725, 731 (9th Cir. 1997) (internal

quotation marks omitted). The absence of malice may be shown by evidence that

“some extreme provocation, beyond what a reasonable person could be expected to

withstand, severely impaired [the defendant’s] capacity for self-control in

committing the killing.” United States v. Quintero, 21 F.3d 885, 890 (9th Cir.

1994).

      Goldtooth argues that he acted in the heat of passion after Teller attacked

Goldtooth’s adult son, Gage Goldtooth. Viewing the evidence in the light most


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favorable to the prosecution, we cannot say that no rational jury could have found

that Goldtooth killed with malice aforethought. Goldtooth went to Teller’s house

at night with weapons and other gang members in order to confront Teller about a

gang conflict, then stabbed Teller sixteen times and left him to die. Goldtooth

made no effort to get Teller assistance, abandoned the murder weapon, destroyed

evidence, and lied to the police about the murder. His calculated behavior shows

that he was capable of committing murder with malice aforethought.

      “Use of force is justified when a person reasonably believes that it is

necessary for the defense of oneself or another against the immediate use of

unlawful force. . . . Force likely to cause death or great bodily harm is justified in

self-defense only if a person reasonably believes that such force is necessary to

prevent death or great bodily harm.” United States v. Keiser, 57 F.3d 847, 851 (9th

Cir. 1995) (quoting model jury instructions); see also id. (affirming that the model

jury instructions accurately state the elements of self-defense in this circuit).

      Goldtooth argues that he stabbed Teller in reasonable self-defense to protect

Gage and himself from death or great bodily harm. Viewing the evidence in the

light most favorable to the prosecution, we cannot say that no rational jury would

have found that Goldtooth was not acting in reasonable self-defense. Gage’s injury

was not life threatening, but Goldtooth responded with deadly force. The jury

could have reasonably concluded that Goldtooth responded with more force than


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reasonably necessary under the circumstances, or that Goldtooth’s account of

Teller’s alleged provocation was not credible.

      Admission of a defendant’s involuntary statement violates due process, and

a statement may be involuntary due to psychological coercion. United States v.

Miller, 984 F.2d 1028, 1030 (9th Cir. 1993). “[I]n extreme cases, appealing to a

defendant’s moral obligation to his or her family as leverage to coerce [a

confession] is unconstitutional,” Ortiz v. Uribe, 671 F.3d 863, 872 (9th Cir. 2011),

such as when a defendant’s ability to see his children is conditioned on cooperation

with questioning in a coercive environment. See, e.g., Lynumn v. Illinois, 372 U.S.

528, 534 (1963); Brown v. Horell, 644 F.3d 969, 980–81 (9th Cir. 2011); United

States v. Tingle, 658 F.2d 1332, 1336 (9th Cir. 1981). However, it is permissible

to make psychological appeals to a defendant’s conscience, including to his moral

obligations to his children, which do not rise to the level of coercion. Ortiz, 671

F.3d at 872.

      Goldtooth argues that his confession was involuntary because he confessed

only after the FBI agent mentioned his son Gage. Goldtooth consented to the

interview, waived his Miranda rights, and was experienced in the criminal justice

system. Although the agent implied that Gage was a suspect, and appealed to

Goldtooth’s desire to protect his son, the questioning was well within the

permissible psychological techniques we recognized in Ortiz. Id. Questioning a


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suspect about an adult and fellow gang member who is a legitimate suspect is

materially different than mentioning a defendant’s child for coercive purposes

when the child has nothing to do with the suspected crime. See, e.g., Tingle, 658

F.2d at 1336.

       Goldtooth argues that his sentence is substantively unreasonable because the

district court denied two requests for downward departures: acceptance of

responsibility and victim conduct. “[W]e review . . . the district court’s application

of the Guidelines to the facts of the case for abuse of discretion. . . . If the district

court correctly calculated the Guidelines range, we then review the sentence for

reasonableness.” United States v. Dallman, 533 F.3d 755, 760 (9th Cir. 2008).

       United States Sentencing Guidelines § 3E1.1 allows for a downward

departure of two levels when “the defendant clearly demonstrates acceptance of

responsibility for his offense.” Goldtooth argues that he accepted responsibility

because he admitted to the crime and testified truthfully at trial. However, it was

reasonable for the district court to deny this departure, given that Goldtooth went

to trial to challenge his responsibility for the killing, destroyed evidence, disposed

of the weapon, and lied to investigators before admitting the truth.

       United States Sentencing Guidelines § 5K2.10 provides for downward

departure when “the victim’s wrongful conduct contributed significantly to

provoking the offense behavior.” Goldtooth argues that Teller’s conduct should


                                             5
have justified a downward departure because Teller swung a machete at Goldtooth

and Gage. Although Goldtooth’s account of the events implicated Teller for

provoking the attack, the district court did not find Goldtooth’s version of events

credible. We “give[] special deference to the district court’s credibility

determinations,” United States v. Nelson, 137 F.3d 1094, 1110 (9th Cir. 1998), and

conclude that it was reasonable for the district court to reject Goldtooth’s account

of Teller’s behavior. Overall, the district court’s in-Guidelines sentence of 360

months was reasonable given the circumstances of the crime and Goldtooth’s

criminal history.

      We AFFIRM the district court.




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