United States District Court, D. New Mexico
Charles E. Knoblauch, Catherine Begaye Attorneys for Mr. Tony
Michael Spindle, Nicholas James Marshall Attorneys for the
MEMORANDUM ORDER AND OPINION
VAZQUEZ UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant Brian Tony's
Motion for Judgement of Acquittal. [Doc. 117]. The government
timely filed a response in opposition. [Doc. 118]. For the
reasons set forth below, Mr. Tony's Motion is denied.
Brian Tony was charged in a three-count Superseding
Indictment with one count of First Degree Murder, in
violation of 18 U.S.C. §§ 1153 and 1111, and two
counts of Witness Tampering, in violation of 18 U.S.C.
§§ 1512(b)(1) and (b)(3). [Doc. 56]. The Court
conducted a jury trial from September 25, 2017 to September
29, 2017, and on September 30, 2017, the jury returned a
verdict of guilty on all counts against Mr. Tony. [Doc. 114].
Mr. Tony orally moved for a judgement of acquittal at the
close of the government's case on September 27, 2017, and
the Court denied that motion. Thereafter, on October 12,
2017, Mr. Tony filed the instant Motion with respect to the
First Degree Murder conviction only.
defendant's motion, the Court “must enter a
judgement of acquittal of any offense for which the evidence
is insufficient to sustain a conviction.” Fed. R. Crim.
P. 29(a). In deciding whether to grant a judgement of
acquittal, the Court “must view the evidence, both
direct and circumstantial, in the light most favorable to the
government, and without weighing conflicting evidence or
considering the credibility of witnesses, determine whether
that evidence, if believed, would establish each element of
the crime.” United States v. Brown, 50 F.
App'x 970, 976 (10th Cir. 2002). A district court is
permitted “to enter a judgment of acquittal only if the
evidence that defendant committed the crime is nonexistent or
so meager that no reasonable jury could find guilt beyond a
reasonable doubt.” Id.
convict Mr. Tony of First Degree Murder under 18 U.S.C.
§ 1111, the government was required to prove beyond a
reasonable doubt that (1) Mr. Tony caused the death of John
Doe; (2) Mr. Tony killed John Doe with malice aforethought;
(3) the killing was premeditated; (4) the incident occurred
in Indian Country; (5) Mr. Tony is an Indian; and (6) Mr.
Tony did not act in self-defense. See Doc. 111,
Instruction No. 18. Mr. Tony concedes that the government
proved beyond a reasonable doubt the first, fourth, and fifth
elements of First Degree Murder. Accordingly, the Court need
only address whether the second, third, and sixth elements
have been satisfied.
Mr. Tony killed John Doe with malice aforethought.
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 States v. Soundingsides, 820 F.2d 1232, 1237
(10th Cir. 1987). Malice aforethought may also be established
by a defendant's “callous and wanton
disregard” for the life of the victim. United
States v. Joe, 8 F.3d 1488, 1500 (10th Cir. 1993). The
Tenth Circuit Pattern Jury Instructions provide that
“[t]o find malice aforethought, [the jury] need not be
convinced that the defendant hated the person killed, or felt
ill will toward the victim at the time.” Tenth Circuit
Pattern Jury Instruction 2.52. “In determining whether
the killing was with malice aforethought, [the jury] may
consider the use of a weapon or instrument, and the manner in
which the death was caused.” Id.
government presented ample evidence that Mr. Tony acted with
a callous and wanton disregard for John Doe's life.
Specifically, the jury heard evidence that Mr. Tony stabbed
John Doe approximately 23 times in the head and neck and
threw a large rock at his head.
Karen Cline Parhamovich, a forensic pathologist with the
office of the medical investigator, testified about her
findings from her forensic examination of John Doe's
body. Dr. Parhamovich testified that she found “[a]t
least 23 stab or incised wounds of the head and the neck, and
then . . . some blunt force injuries as well.”
Transcript of Trial, September 26, 2017, 191:14-18.
Additionally, many of the wounds described were on the
“back of the head.” Transcript of Trial,
September 26, 2017, 196:16. A reasonable jury could