F I L E D

United States Court of Appeals

Tenth Circuit
UNITED STATES CO URT O F APPEALS
TENTH CIRCUIT

September 20, 2006

Elisabeth A. Shumaker
Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,
No. 05-2312
(District of New M exico)
(D.C. No. CR-03-2063-M V)

v.
BRIA N KEITH TO N Y ,
Defendant-Appellant.

OR D ER AND JUDGM ENT *

Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This case is, therefore,
ordered 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This order and judgment is not binding precedent, except under the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.

I. Introduction
Following a jury trial, Defendant-Appellant Brian Tony, an Indian, was
convicted of two counts of assault resulting in serious bodily injury and one count
of aggravated burglary in Indian Country. He was sentenced by the United States
District Court for the District of New M exico to 130 months imprisonment.
Tony now appeals his convictions challenging the sufficiency of the evidence and
the district courts refusal to declare a mistrial. We assert jurisdiction pursuant to
28 U.S.C. 1291 and affirm.
II. Background
On M ay 2, 2000, two men entered the residence of James and M ary
W hitegoat on the N avajo Indian R eservation in N ew M exico and assaulted M r.
and M rs. W hitegoat. Tony was charged in connection with the assaults several
years later. 1 The four-count indictment charged Tony with assaulting M r.
W hitegoat with a dangerous weapon, in violation of 18 U.S.C. 2, 113(a)(3),
and 1153 (Count I); assault resulting in serious bodily injury to M r. and M rs.
W hitegoat, in violation of 18 U.S.C. 2, 113(a)(6), and 1153 (Counts II and III);
and aggravated burglary, in violation of 18 U.S.C. 2, 13, and 1153, and N.M .
Stat. Ann. 30-16-4 (Count IV).
At trial, M rs. W hitegoat testified that on the day of the assaults, she and
her husband were at home when tw o men drove up in a white, four-door vehicle.
1

The second perpetrator has never been identified or charged.

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According to M rs. W hitegoat, when M r. W hitegoat opened the front door of the
residence, one of the men grabbed him and hit him with an ax. M rs. W hitegoat
testified that she walked toward the men and said, No, my son. M rs. W hitegoat
indicated one of the men then grabbed her, threw her under a chair, and hit her in
the head with the ax, knocking her unconscious. W hen asked in court to identify
the man w ho assaulted her and her husband, M rs. W hitegoat pointed to Tony, but
called him Sherman. M rs. W hitegoat indicated she had known Tony since he
was a child because Tony and his family lived in a hogan behind the W hitegoats
residence for a while.
Richard W hitegoat, one of the W hitegoats sons, testified that after the
assaults, M r. W hitegoat drove his wife to the auto repair shop where Richard
worked. Richard indicated his parents faces were bloody and his mothers face
was swollen. According to Richard, his father stated in Navajo, W iizii Tsoh
biyaz yaalwod. 2 A certified court interpreter translated the statement to mean
W iiziis late son came into the house. Big W iiz. Richard testified that he
understood W iiziis late son to mean Brian Tony.
Another W hitegoat son, James W hitegoat, also testified. James lived with
his parents and left their house a few minutes before the assaults occurred. James

M r. W hitegoat died before trial, but not from injuries sustained in the M ay
2, 2000 assault. The district court admitted M r. W hitegoats statement to Richard
as an excited utterance. See Fed. R. Evid. 803(2). Tony does not contest this
evidentiary ruling.
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testified that as he w as leaving his parents house, he saw a dirtyish w hite, fourdoor car parked a short distance away. James indicated he had seen the vehicle
before and he believed it belonged to Brian Tony. James testified he had known
Tony for many years, and Tonys fathers name w as Sherman.
Tony took the stand in his own defense at trial. Tony testified he had
known the W hitegoats for thirty years. He indicated on the day of the assaults, he
had been released from a detention center for a work release program. According
to Tony, he drank alcohol throughout the day until he blacked out, and thus did
not remember if he went to the W hitegoats residence. Tony testified that at the
time of the assaults, he drove a four-door, cream-colored, Oldsmobile Cutlass.
At the close of all the evidence, the jury returned a verdict finding Tony
guilty as to Counts II, III, and IV of the indictment and not guilty as to Count I.
The district court subsequently sentenced Tony to 130 months imprisonment
followed by three years supervised release.
III. Discussion
A. Sufficiency of the Evidence
Tony argues the evidence presented at trial to prove he was the perpetrator
of the crimes is insufficient. 3 This court reviews claims challenging the
3

Tony filed a motion for judgment of acquittal at the close of all the
evidence. The district court denied the motion in a M ay 26, 2005 memorandum
opinion and order. Tony challenges the district courts order, but failed to attach
a copy of it to his appellate brief as required by the Tenth Circuit Rules. See 10th
(continued...)
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sufficiency of the evidence de novo. United States v. Rockey, 449 F.3d 1099,
1102 (10th Cir. 2006). Evidence is sufficient to support a conviction if, viewing
the evidence in the light most favorable to the government, a reasonable jury
could have found the defendant guilty beyond a reasonable doubt. Id. at 1103
(quotation omitted). In reviewing the evidence, we consider both direct and
circum stantial evidence, together with the reasonable inferences to be drawn
therefrom. United States v. Zunie, 444 F.3d 1230, 1233 (10th Cir. 2006). W e do
not, however, w eigh conflicting evidence or consider the credibility of witnesses.
United States v. M cKissick, 204 F.3d 1282, 1289 (10th Cir. 2000).
M rs. W hitegoat identified Tony as the perpetrator of the assaults at trial by
pointing to him. She testified she had known Tony since he w as a child. Richard
W hitegoat testified that when he saw his parents shortly after the assaults, his
father stated W iiziis late son came into the house. Big W iiz. Richard
indicated he understood this statement to mean Brian Tony was the assailant.
Finally, James W hitegoat told the jury he saw what he believed to be Tonys car
parked near his parents house a few minutes before the assaults.

(...continued)
Cir. R. 28.2(A)(1) (stating appellants brief must include a copy of all pertinent
district court opinions and orders even though they are also included in the
appendix). Because Tony failed to include the district courts memorandum
opinion and order, the government was required to attach a copy to its appellate
brief. See 10th Cir. R. 28.2(B). The government neglected its duty as well.
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Tony contested the credibility of this testimony at trial. Specifically, Tony

asserted M rs. W hitegoats identification was unreliable because she called Tony
by his fathers name, Sherman, and her eyesight was poor. Tony also argued M r.
W hitegoats alleged statement that W iiziis late son came into the house could
refer to any of Brian Tonys four brothers. Tony also pointed out there was no
physical evidence linking him to the crime scene. In particular, footprints and
tire tracks found at the W hitegoats residence were never matched to Tony or his
vehicle. In his defense, Tony testified he had been drinking alcohol on the day of
the assaults and blacked out.
Our role as an appellate court is not to judge the credibility of witnesses.
M cKissick, 204 F.3d at 128990. Instead, we ask only whether the evidence, if
believed, would establish each element of the crime. United States v. DelgadoUribe, 363 F.3d 1077, 1081 (10th Cir. 2004) (quotation and alteration omitted).
Under this narrow standard of review, M rs. W hitegoats identification of Tony as
the assailant and Richards testimony that he understood his fathers statement as
identifying Brian Tony as the assailant are sufficient to permit a reasonable jury
to find Tony guilty beyond a reasonable doubt.
B. M otions for M istrial
During the trial, Tony moved for a mistrial on two occasions. The district
court denied both requests, and Tony appeals. In determining whether to grant a
mistrial, a district judge must first determine whether an error has occurred and, if
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so, whether that error impaired the defendants right to a fair and impartial trial.
United States v. M artinez, 455 F.3d 1127, 1129 (10th Cir. 2006) (quotations
omitted). W e review a district courts refusal to declare a mistrial for an abuse of
discretion. Id. W e will not disturb the district courts determination absent a
showing it was based on a clearly erroneous finding of fact, an erroneous
conclusion of law, or manifests a clear error of judgment. Id.
Tony first moved for a mistrial during the testimony of police officer
Anderson Six, a government witness. Before trial, Tony filed a motion in limine
requesting a court order prohibiting the prosecutor and government witnesses
from referring to the W hitegoats as victims in the presence of the jury. The
district court granted the motion. At trial, Officer Six testified to receiving a
dispatch call regarding two assault victims who had been transported to the
Gallup Indian M edical Center. After gathering information about M r. and M rs.
W hitegoat from Richard W hitegoat at the medical center, Officer Six went to the
W hitegoats residence. Officer Sixs testimony described the condition of the
residence w hen he arrived, including the location of several pools of blood. He
also provided a foundation for several photographs he took of the crime scene that
were admitted into evidence. During his testimony, Officer Six referred to M r.
and M rs. W hitegoat as victims on multiple occasions. The prosecutor also used
the term victim on one occasion when advocating for the admissibility of an
exhibit. Tony objected and then, after Officer Six used the term victim a few
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more times, moved for a mistrial. The district court summarily denied the
request. On appeal, Tony argues the district courts failure to grant a mistrial was
error because the references to the W hitegoats as victims, combined w ith M rs.
W hitegoats frail appearance at trial, likely resulted in a jury verdict motivated by
sympathy.
Tonys defense strategy focused on discrediting witness identifications of
Tony as the assailant. He did not contend that the W hitegoats were not assaulted.
In fact, during closing argument, Tonys defense counsel conceded M rs.
W hitegoat had been assaulted. Defense counsel stated [M rs. W hitegoat] was hit,
by someone. . . . Something really frightening happened to M rs. W hitegoat. She
is obviously still affected by it. She was injured, and shes afraid to be in her
home by herself. W e do not contest that at all. Because Tony did not argue M r.
and M rs. W hitegoat were not the victims of a crime, Tonys right to a fair and
impartial trial was not impaired by Officer Sixs references to the W hitegoats as
victims. The district court therefore did not abuse its discretion in refusing to
grant a mistrial on this ground.
Tony moved for a mistrial a second time at the conclusion of Richard
W hitegoats testimony, claiming several government witnesses discussed the
substance of their testimony outside the courtroom. The district court held an
evidentiary hearing on the motion. Angela Tony, Brian Tonys wife, testified that
she saw Officer Six, Richard W hitegoat, and an unidentified woman talking in the
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hallway outside the courtroom. M rs. Tony indicated they spoke in English
initially, but switched to Navajo when they saw that she was present. According
to M rs. Tony, Officer Six told the others he was asked to testify as to the date and
location of the assaults. M rs. Tony also indicated when James W hitegoat exited
the courtroom after testifying, he approached the group and stated he was asked
how many brothers Tony had and where Tony lived. M rs. Tony was not sure
whether James was talking to Richard or the unidentified lady. Additionally,
according to M rs. Tony, Richard entered the courtroom to testify almost
immediately after James exited. The district court also heard testimony from
Richard W hitegoat. Richard stated he did not discuss the substance of any
testimony with Officer Six or James. Upon further questioning by the district
court, Richard indicated Officer Six opened his case investigation file and began
talking to Richard, but Richard walked away and did not listen.
After considering M rs. Tonys and Richard W hitegoats testimony, the
district court denied Tonys second motion for a mistrial. The district court
observed Tony had not requested sequestration of witnesses pursuant to Rule 615
of the Federal Rules of Evidence. M oreover, although the district court indicated
it was troubled by Officer Sixs conduct, it concluded the issues discussed by the
government witnesses were not in dispute and were not central to a determination
of Tonys guilt or innocence.

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The district court did not abuse its discretion in refusing to declare a
mistrial. Under Federal Rule of Evidence 615, a party may request that witnesses
be excluded from the courtroom so they cannot hear the testimony of other
witnesses. W hen a party invokes the rule, the district court must also instruct
witnesses that they are not to discuss events in the courtroom with other witnesses
who are to testify. United States v. Buchanan, 787 F.2d 477, 48485 (10th Cir.
1986). Such an instruction is only required, however, w hen the rule is invoked.
See Fed. R. Evid. 615. In the present case, neither party invoked Rule 615. Thus,
the district court did not err in failing to instruct the witnesses not to discuss their
testimony, and the conduct of the government witnesses did not violate any court
order.
Even if an error occurred, Tony has not demonstrated the government
witnesses discussion of their testimony impaired his right to a fair and impartial
trial. See M artinez, 455 F.3d at 1129. According to M rs. Tony, the government
witnesses discussed their testimony regarding (1) the date and location of the
assaults, (2) the place of Tonys residence, and (3) the number of brothers Tony
had. The first issue was not in dispute, and the second issue was not relevant to a
determination of Tonys guilt or innocence. The third issue w as relevant. In
particular, Tony claimed he had four brothers, and thus, M r. W hitegoats statement
that W iiziis late son came into the house could have referred to at least five
individuals. Although the number of brothers Tony had was relevant, James
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alleged discussion of this issue did not have any effect on Richards testimony.
See Buchanan, 787 F.2d at 485 (concluding witness discussion of testimony was
not prejudicial in part because it did not affect other witnesses testimony). W hen
asked on cross-examination about Tonys brothers, Richard indicated he did not
know how many brothers Tony had. M oreover, in closing argument, defense
counsel was permitted to argue that Tony had multiple brothers and that M r.
W hitegoats alleged identification could have referred to any one of them. 4
Because the government witnesses discussion of testimony was not prejudicial,
the district court did not abuse its discretion in refusing to grant a m istrial on this
ground.
IV. Conclusion
For the foregoing reasons, we AFFIRM Tonys convictions.
ENTERED FOR THE COURT

M ichael R. M urphy
Circuit Judge

Tony did not attempt to call M rs. Tony as a witness to impeach the
testimony of James W hitegoat, Richard W hitegoat, or O fficer Six.
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