APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. NO. 1:09-CR-01578-LH-1)
The opinion of the court was delivered by: Tymkovich, Circuit Judge.
United States Court of Appeals Tenth Circuit
Elisabeth A. Shumaker Clerk of Court
Before BRISCOE, Chief Judge, TYMKOVICH, Circuit Judges, and FREUDENTHAL, Chief District Judge*fn1 .
Linda Diaz was convicted of knowingly leaving the scene of a car accident where she hit and killed a pedestrian. The accident occurred on the Pojoajue Pueblo Indian reservation. She was charged with committing a crime in Indian Country under 18 U.S.C. § 1152. On appeal, among other issues, Diaz contends the federal court lacked jurisdiction over the crime because the government failed to prove that the victim was not an Indian, a jurisdictional requirement under § 1152.
We conclude the government met its burden of proof. The testimony of the victim's father provided enough evidence for a jury to conclude the victim was not an Indian for purposes of the statute. We also conclude the district court did not err in its rulings on various other evidentiary and trial issues.
Having jurisdiction pursuant to 18 U.S.C. § 1291, we AFFIRM.
Diaz was a member of the Pueblo of Pojoaque and its Lieutenant Governor. Around 4:00 a.m. on April 4, 2009, her car hit Philip Espinoza, who was walking on the shoulder of Highway 285, a highway that travels through the boundaries of the Pueblo. She left the scene of the accident without stopping, contacting the police, or offering assistance. Espinoza's body was found later that day. An investigation disclosed that Diaz was the driver. She had been drinking the night of the accident at the nearby Tropicana Nightclub with family and friends. She later went to a friend's house where she may have consumed additional alcohol. A few minutes after she left her friend's house, she called her sister from her cell phone, upset and crying. She told her sister she thought she had hit "something." Diaz's sister and adult daughter came over to comfort Diaz, and on their way they searched the highway but did not find anything.
The next morning Diaz told her son that she might have hit "an animal or maybe a person." Later, she called a lieutenant with the Pojoaque Police Department and told him that she had done something "very bad" and did not want to talk about it over the phone. When the lieutenant arrived at Diaz's home, he saw and secured her car, which had a dented fender, a broken windshield and passenger side mirror.
Diaz was subsequently indicted for knowingly leaving the scene of an accident resulting in great bodily harm, and after a trial the jury convicted her. The only disputed factual questions were whether Espinoza was a non-Indian for jurisdictional purposes and whether Diaz knew that she had hit a person rather than an animal or inanimate object.
The district court sentenced her to twelve months and one day of prison, followed by a year of supervised release. Diaz filed a motion for a new trial and motion for judgment of acquittal, both of which were denied. She then appealed.
Diaz raises five issues on appeal regarding our jurisdiction and various trial rulings. First, the district court lacked jurisdiction because the government failed to prove beyond a reasonable doubt that the victim was non-Indian, as required by statute. Second, the court erred in instructing the jury. Third, the court abused its discretion when it allowed the jury to hear testimony about Diaz's alcohol consumption on the night of the offense, but disallowed evidence of the victim's drinking. Fourth, the court erred in commenting on testimony about road conditions. Finally, she is entitled to a new trial because of the prosecution's failure to disclose potential impeachment information about a prosecution witness.
We address each of these contentions in turn.
Diaz first claims that the government produced insufficient evidence for a reasonable jury to conclude the victim was not an Indian, thus negating federal ...