F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FEB 25 1999 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 97-2270 v. (D.C. No. CR-95-432-JP) (D. New Mexico) NORMAN L. BISHOP,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before MURPHY, HOLLOWAY and MAGILL,** Circuit Judges.
Norman L. Bishop was convicted after trial before a jury of the one charge against
him, assault with a dangerous weapon with intent to do bodily harm in violation of 18 U.S.C.
§ 113(a)(3). He was sentenced to 41 months’ imprisonment, to be followed by a three year
period of supervised release. Mr. Bishop now brings this appeal from his conviction. We
have jurisdiction under 28 U.S.C. § 1291. The district court had jurisdiction under 18 U.S.C.
§§ 113 and 3231 because the traffic incident on which the indictment was based occurred on
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This 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. ** The Honorable Frank J. Magill, United States Senior Circuit Judge for the Eighth Circuit, sitting by designation. federal premises, Kirtland Air Force Base, Albuquerque, New Mexico (within “the special
maritime and territorial jurisdiction of the United States”). The indictment charged that
Bishop committed an assault on April 8, 1994, by intentionally driving his vehicle into that
of another.
I
A
Ms. Theresa McCarthy-Brow, the victim, testified that she was employed as a
materials engineer at the Phillips Laboratory on Kirtland Air Force Base. 1 V R. at 19. In
December 1993, defendant Bishop came to work in the same building where she worked.
Bishop was a student and a part-time clerical employee. He worked in close proximity to
McCarthy-Brow, his desk being only some ten feet from the door to her office. Id. at 20. On
March 14, 1994, McCarthy-Brow received a note from Bishop. Id. at 21. The contents of
the note were not revealed to the jury. Ms. McCarthy-Brow took the note home and showed
it to her husband. She also gave a copy of the note, and of her written reply to her supervisor,
Major Paul Chernek, telling him he needed it for his information and that it was rather odd
to receive. Id. at 22. Ms. McCarthy-Brow also gave the original note, with her reply on the
back, to Bishop. Id. at 21.
Major Chernek testified that he had worked at Kirtland at the time of the traffic
1 The government established the fact that the location of the collision was on the base and within the federal property and thus within “the special maritime and territorial jurisdiction of the United States.” V R. at 71-73.
-2- incident involving Bishop and Ms. McCarthy-Brow. He was a supervisor for both of them.
V R. at 44-45. On March 15, 1994, he received the letter or note from Ms. McCarthy-Brow.
He read it and then requested that Bishop come to see him to discuss the letter, which had
a note on it from Ms. McCarthy-Brow responding to Bishop. Id. at 45.
Chernek testified that he met with Bishop on March 15, 1994, after receiving the letter
from Bishop to McCarthy-Brow. Chernek told Bishop that his complaints “were
overreacting to normal everyday office interaction.” Id. at 52. Chernek said to civilian
personnel that he thought Bishop’s action was odd but not threatening. Id. at 52. Mr.
Valenzuela, an Equal Employment Opportunity specialist at Kirtland, said that Bishop filed
an EEO complaint which led to a March 17, 1994, discussion by Valenzuela with Bishop.
VI R. at 82-83. The specifics of Bishop’s complaint against McCarthy-Brow were not
described in the record, but McCarthy-Brow testified that Bishop had asked her if she was
aware he had filed a “sexual harassment complaint” against her. V R. at 25.
McCarthy-Brow testified that she received a second note from Bishop telling her that
he had filed the EEO complaint, and she again gave a copy of the note to Major Chernek.
McCarthy-Brow told Chernek that Bishop “really scared” her because he was not rational.
Then, on March 24, McCarthy-Brow was in the office of a co-worker when Bishop came in
and asked her if she was aware of the EEO complaint. McCarthy-Brow described Bishop
as being very angry at that time, so angry that he was red in the face.
After McCarthy-Brow showed Chernek Bishop’s second note, regarding Bishop’s
-3- having filed an EEO complaint against McCarthy-Brow, Chernek asked one of his top
sergeants to take a look at the problem because Chernek felt that issues had “escalated.” Id.
at 46-47. Then, when Chernek was told of Bishop’s March 24 outburst in the presence of
McCarthy-Brow and another worker, he decided to physically separate Bishop and
McCarthy-Brow into separate buildings. Id. at 47. He asked his second in command to
move Bishop into another building which was about two football fields in distance away.
Id. at 47-48.
Mr. Valenzuela was called by the prosecution and testified that he was employed at
Kirtland Air Force Base. At the time of trial in December 1996, he had been an affirmative
employment specialist there for some nine months. VI R. at 81-82. Previously, he had been
an EEO specialist at Kirtland for about three years. Valenzuela was assigned the EEO
complaint which Bishop filed against McCarthy-Brow, and about March 17, 1994,
Valenzuela had contact with Bishop about the complaint. Valenzuela determined that for
him to evaluate Bishop’s complaint, he needed to talk to Major Chernek, supervisor of the
unit; to Marlee Mulnix, who was administratively assigned to supervise Bishop; and to
Ms. McCarthy-Brow. From his interviews with these persons, Valenzuela could find no
confirmation of any allegations made in Bishop’s complaint against Ms. McCarthy-Brow.
Id. at 83.
On April 8, 1994 (the day of the auto collision), Valenzuela scheduled a meeting in
his office with Bishop at 1:30 p.m. Valenzuela explained to Bishop the results of his
-4- interviews with the three individuals and that they did not seem to indicate any truth to
Bishop’s allegations. Id. at 84-85. At this point, Valenzuela was looking down at his notes
and heard a loud bang. Evidently Bishop had hit the table with his fist. Valenzuela looked
up and Bishop was standing “by the side of the table, breathing real hard, and his face was
real red, and obviously [he was] very angry.” Id. at 85. He still had his hand clinched and
he kept saying “they are lying, they are lying.” Id. Valenzuela’s supervisor, whose office
was next door, opened the door and Valenzuela told her everything was all right. Valenzuela
continued the interview with Bishop, and then told Bishop he had “not achieved remedy.”
Id. at 86.
Valenzuela told his supervisor that because of what had happened in his office, he was
concerned that there was a possibility that Bishop “might hurt somebody.” Id. at 86-87.
Valenzuela called Major Chernek and advised him that Valenzuela thought Chernek “might
take some precautions.” He also called the employee labor relations specialist and explained
the situation to her. Valenzuela cautioned Major Chernek that he was concerned, based on
what he saw Bishop do in his office, “that he was quite capable of hurting somebody.” Id.
at 87. Valenzuela also said that Bishop had requested a reassignment, a transfer out of the
Phillips Laboratory. Major Chernek told Valenzuela he could reassign Bishop within the lab
to a different location. During his cross-examination, Valenzuela said that Bishop had not
calmed down when Valenzuela’s supervisor came to the door, but he wasn’t threatening and
was “totally compliant . . . .” Id. at 95-96. Bishop peaceably left Valenzuela’s office.
-5- Valenzuela also said he had never seen anyone as angry as Bishop was. Id. at 99.
In response to the concerns that Valenzuela had expressed, Chernek asked McCarthy-
Brow to leave early, apparently out of concern that Bishop might try to confront her while
he was still upset about the outcome of the EEO matter. As McCarthy-Brow was leaving the
base to avoid Bishop, he saw her and collided with her.
McCarthy-Brow testified that as she was driving north on Carlisle Avenue towards
the exit of the base she saw Bishop coming toward her from the opposite direction in his red
pickup truck. The street was an undivided four-lane roadway. Both Bishop and McCarthy-
Brow were in the outside lane of their respective sides of the street. McCarthy-Brow testified
that Bishop suddenly swerved across the two vacant lanes and directly into the side of her
car. The impact forced her car onto the curb. Shaken up and afraid of what Bishop might
do next, McCarthy-Brow drove forward to the “guard shack” at the base gate rather than
remaining at the scene of the collision. (Our record does not disclose how far from the gate
the collision occurred; we do know from the testimony that the gate was within sight from
that point.) McCarthy-Brow was taken to a local hospital but had no serious injuries.
The prosecution called Colonel Douglas Smith, who was assigned to the Albuquerque
base at the time of the incident. At approximately 2:30 p.m. on April 8, 1994, he was leaving
the Phillips Lab to cross the street to another building and was crossing Carlisle at that time.
VI R. at 101-02. While at the intersection, he saw an accident involving a small, red Chevy
truck and a gray car. Smith said he noticed the red vehicle coming southbound. A peculiar
-6- thing was that it veered from its direction, making one specific move and veering three lanes
over and into the gray car. Id. at 103. Immediately after the collision, the gray car sped off
to the guard gate. The occupant of the red vehicle got out and walked over and sat on the
curb. Id. at 103. It seemed peculiar about the car leaving the accident, but he saw that the
car stopped at the guard gate.
When the person in the red truck got out, Smith ran over because he thought that
person was injured. Smith asked the driver if he was “okay,” and he mumbled that he was.
Smith observed that “[h]e was mad, he was angry, dejected, despondent, all those things
characterized together.” Id. at 104. The driver of the Chevy did not tell Smith that he had
lost control of his car or blacked out.
On cross-examination, Colonel Smith conceded that when he was asked by an
insurance company representative whether the driver of the Chevy might have lost control,
Smith replied: “He might have, I don’t know.” Id. at 108. Smith also said he told the
insurance company representative that the driver might have frozen at the wheel. Id. It was
“peculiar because it was one definite move,” which Smith said he knew for a fact. Id. Smith
said that the driver of the red pickup did not jump up and down and kick (as McCarthy-Brow
had testified); Bishop just got out and sat down on the curb. Id. at 109. Smith also said that
the pickup driver was angry or mad but he did not know whether that driver was upset
because his vehicle was damaged. Id. at 114-15.
The prosecution called Mr. Andrew Linegar. He was stationed at Kirtland as a law
-7- enforcement specialist earlier, at the time of this collision. His duties were similar to those
of a civilian police officer and included automobile accident investigations. He had training
for this work at Lackland Air Force Base in Texas in January and February 1994. Linegar
was called concerning an automobile collision and immediately responded that afternoon to
the scene. He saw the defendant’s vehicle and also Ms. McCarthy-Brow’s vehicle down at
the Carlisle gate. VI R. at 155. Linegar’s report was basically what he saw, the lack of skid
marks by either vehicle and the “yaw marks” which he said are caused by a vehicle sliding
or being forced in a lateral direction. Linegar made no speed computations because the lack
of skid marks kept him from doing that. He conducted a tire examination by looking for slits,
cracks, bubbles, punctures, tears or any abnormality in the tires that would have indicated that
the left front tire of the pickup had burst or exploded before impact. He found no such
abnormalities. Id. at 158. From his visual inspection Linegar did not detect any internal
damage to the tire, but it was not removed from the vehicle or separated from the rim for
examination. Such an examination costs money and funds weren’t available because of tight
budget constraints, Linegar explained. Id. at 159. Nevertheless, from his observations
Linegar did not believe there was any internal damage that would cause the tire to go flat.
He found no such conditions. Id. at 159-60.
Linegar said several witnesses were interviewed at the scene as well as
Ms. McCarthy-Brow. The investigating officers checked the “operational factors,” which
were the driver’s preparation, strategy or method of operating the vehicle, and any evasive
-8- action taken by the driver of the pickup. This would include swerving, veering, or slamming
on the brakes, but there was no evidence of such evasive action. Id. at 161. Linegar also said
there was no indication that Ms. McCarthy-Brow’s actions contributed to the accident. She
was not under the influence of anything.
“Conditional factors” were also considered by Linegar, which include the operator of
the vehicle, conditions of the roadway, and conditions of the vehicle operated by a driver.
The Chevy truck was not mechanically inspected due to lack of funding. Id. at 162.
Photographs that had been taken at the time of the accident had been destroyed according to
procedure for keeping such things for two years. Id. at 163. Linegar said there was debris
after the collision which he saw – headlight and turn signal glass scattered in about an 8'x8'
square area in front of the wheels of Bishop’s vehicle. Linegar also saw a bent and twisted
left front bumper and a scraped left front quarter panel that runs directly above the tire. Id.
at 166. Exhibits showed that the McCarthy-Brow vehicle had a dented and scraped left front
quarter panel, complete with red paint transfers. Id. at 166.
Linegar was asked what he concluded had happened to cause the incident, based on
his training and experience. He said it was “very unusual.” There was no physical evidence
to indicate what happened there on the scene and there were no skid marks to indicate a
vehicle had skidded or that control had been lost. Linegar’s conclusion, based on facts
learned from interviewing the victim and learning the past history, was that this was an
intentional act and that the defendant intentionally drove his car across “all of those lanes of
-9- traffic and intentionally crashed or rammed his vehicle into the victim.” Id. at 168-69.
Linegar conceded on cross-examination that in his report he said it could not be
determined if the mechanical condition of Bishop’s vehicle contributed to the accident
because the vehicle was not examined by a mechanic. Linegar’s report said no speed
computations were made due to lack of skid marks and he was not going to base such
estimates on someone else’s visual assessment on speed. Id. at 173-74. If he was going to
make speed estimates, they were going to be based on physical evidence and mathematical
formulas. Id. at 175. Linegar said speed was not a factor here because from his initial
review of the scene, he had no reason to believe or suspect there was any speeding involved
by either driver. Linegar also said he could not determine whether Bishop took any evasive
action because he was not able to talk to Bishop.
Another law enforcement specialist, Blevins, was called by the prosecution. He had
investigated at least 100 traffic accidents. VI R. at 119. He had training for this work. He
was dispatched to this accident at Aberdeen and Carlisle on April 8, 1994. A red Chevy
pickup was there and the second vehicle had been driven to the Carlisle gate. Blevins called
for Linegar’s assistance because of his good vehicle accident training. Id. at 121.
From a diagram he had made, Blevins testified that as Bishop approached
Ms. McCarthy-Brow’s car, Bishop veered across the double lane of traffic and struck
McCarthy-Brow’s car while she was “up against the right-hand lane.” VI R. at 122. Bishop
struck her vehicle with “enough force to force her car up onto the curb and gouge out a gash
- 10 - into the concrete roadway with her, I believe it was her front right tire.” Id. Blevins said
from his tire examination of both vehicles, he didn’t observe any damage or a blowout or
puncture on any vehicle. Blevins got into the cab of the truck, grabbed the steering wheel
and depressed the brake pedal but everything “appeared normal.” Id. Based on his
investigation, Blevins concluded the accident was “somewhat confusing, [he] couldn’t quite
understand what had caused the vehicle . . . to come over and strike her vehicle when she was
on the far side of the roadway. After taking everything into consideration [Blevins] was
leaning towards the possibility of a vehicular assault or something of that nature.” Id. at 125.
On cross, Blevins said he never arranged for anyone with expertise to inspect the
Chevy for any kind of steering damage or problems. Id. at 126. He said its left front tire
“was flat from the impact.” Id. at 129. From the drawings, Blevins said Bishop struck
McCarthy-Brow in the side. Id. at 131.
As we explain below, our review of the sufficiency of the evidence to support the
conviction is limited to the evidence presented in the prosecution’s case-in-chief.2 However,
in order to provide a more complete background we will review the most significant
testimony presented in the defense case and the government’s rebuttal. Bishop did not
testify. Among the defense witnesses called was Sgt. Thomas Johnson, a witness to the
collision. Johnson had been driving on Carlisle Avenue at the time, and his car was behind
Bishop’s pickup. VII R. at 249. Johnson testified that he was driving about 25 miles
2 See part III, infra.
- 11 - per hour and that Bishop’s speed must have been about the same. He said that Bishop
appeared to accelerate as his car veered across the road just before the impact with another
vehicle. He did not see Bishop do anything to avoid colliding with the other vehicle. Id. at
258-59. Johnson approached Bishop immediately after the accident to see if he needed
assistance. Johnson testified that Bishop asked him what had happened. at 254. Johnson Id.
admitted that he had written in his statement that Bishop did not seem to be speeding. Id. at
254.
Bishop’s father, Roger Bishop, testified for the defense. He was retired from the Air
Force and had been a professional mechanic. VI R. at 214. He was called by his son the day
of the accident and came to Albuquerque. He put a tow bar and a spare tire on his son’s
truck and towed it back to Clovis, New Mexico. Id. at 213. He evaluated what he would
have to buy and what parts needed replacement and determined he could straighten out the
bumper but would have to buy a fender, a light, and a parking light. Id. at 216. He replaced
the fender. He found the upper control arm bushings were bad on the right side of the
vehicle. They control alignment of the wheels and had effect on the steering. Id. at 219.
Roger replaced the tire on the left front and then replaced the other front one to make
a matched set. Id. at 220. He said there was some internal failure with one of the tires, and
agreed, on cross-examination, that the tire was flattened as a result of the collision and that
there was no blow out of that tire. Id. at 223. He also said there were no problems with the
brakes. During cross-examination, he opined that one reason for the collision was the
- 12 - defective right upper arm bushing in conjunction with the left front tire. Id. at 225. On
cross-examination Roger later said it was true the tire was flattened as a result of the
collision. However, he added that it was the internal problem with the left front tire and right
arm bushing that caused the collision, which was his layman’s opinion. Id. at 226. During
redirect, he said that since the upper control arm bushing was missing and apparently the left
tire had some internal wheel problems, that would affect the ability to steer the vehicle. Id.
at 229.
In rebuttal the government called George Saylor, a manager at the Clovis Big O Tires
store of Clovis. VII R. at 287. Clovis is 240 miles from Albuquerque. Saylor had worked
for 25 years in the automotive business and had worked in different Albuquerque garages.
He worked on cars that came in by attending to all problems -- engines, ignitions, seats, etc.
Id. at 288. He had had schools, classes and seminars on automotive problems. He does have
knowledge of brake suspension and front end difficulties. Id. at 290.
According to the Big O invoice, they replaced the upper control arm bushings on the
right side of the Bishop vehicle, put on two tires, and did a wheel alignment. When the right
upper control arm bushings are worn, it does not have a large impact on the ability to steer
the vehicle. Id. at 295. The vehicle could develop some handling problem, but one would
still be able to steer the vehicle. Those difficulties would not have an effect on one’s ability
to operate the brakes, and you are still able to steer to the right or left. Id. at 295-96. Most
drivers compensate for such a bushing problem by slightly steering right or left. If a right
- 13 - upper control bushing were missing, it was not likely that the vehicle would suddenly veer
to the left or right. Id. at 297. If missing or badly worn upper control arm bushings are
allowed to continue for a prolonged period of time, there could be a catastrophic failure, such
as the tire falling over or off the vehicle. Id. at 297.
The speed of a vehicle can impact the amount of such a catastrophic failure. Id. at
299. If there were a combination of an upper control arm bushing being missing, and there
being sidewall separation in one or more tires, it was possible there could be a significant
effect on the steering of the vehicle and this could possibly cause an accident. Id. at 304.
Saylor said that if there is sidewall damage to a tire, that could be caused by colliding with
another car. Id. at 304. Such sidewall damage would not impact one’s ability to operate their
brakes, and the vehicle could still be stopped. Id. at 304-05. Saylor said that towing a
vehicle in the manner shown on a photo exhibit requires that the vehicle suspension system
be operating normally, and in order to tow a car 240 miles (the distance to Clovis), the
suspension would have to be operating normally. Id. at 306. Saylor said he had, however,
never examined the pickup. Saylor testified that a slight problem with a suspension system
could prohibit the vehicle from being towed, one that caused it to pull hard to one direction
or the other. If the vehicle was experiencing such problems of pulling in one direction or the
other, it would be difficult to tow it in the manner used to go to Clovis. Id. at 311.
B
One of the officers who investigated the incident issued a citation to Bishop for failure
- 14 - to drive on the right side of the road. The citation charged a violation of section 66-7-308A
of the New Mexico Statutes, as applicable on the grounds of Kirtland Air Force Base by the
provisions of 18 U.S.C. § 13, the Assimilative Crimes Statute. Some ten months after the
April 8, 1994, collision involved here, Bishop entered a plea of no contest to the improper
driving citation before a United States Magistrate Judge and was fined fifteen dollars for the
violation, plus a special assessment of five dollars.
Bishop was indicted on the instant assault charge on August 2, 1995. While in
custody awaiting trial, Bishop filed a pro se habeas corpus petition contending that his
indictment on the assault charge violated the Double Jeopardy Clause of the Fifth
Amendment. The habeas petition was assigned to a magistrate judge for a report and
recommendation. The magistrate judge concluded that the assault prosecution did not violate
the Double Jeopardy Clause and recommended that the petition be dismissed. The district
judge, who was the same judge to whom the instant prosecution had been assigned, adopted
the magistrate judge’s recommendation and dismissed the habeas petition. Subsequently, the
judge permitted the filings in the habeas proceeding to be admitted into the record in this
assault proceeding and heard some additional argument by counsel on the double jeopardy
issue. The judge again concluded that the instant prosecution did not constitute double
jeopardy in violation of the Fifth Amendment.
II
We consider first Bishop’s argument that this prosecution violated his rights under the
- 15 - Double Jeopardy Clause of the Fifth Amendment. We turn our analysis on this issue to
Blockburger v. United States, 284 U.S. 299 (1932), which the Supreme Court reaffirmed in
United States v. Dixon, 509 U.S. 688, 696 (1993). Under the Blockburger analysis, we ask
“whether each offense contains an element not contained in the other; if not, they are the
‘same offence’ and double jeopardy bars additional punishment and successive prosecution.”
Dixon, 509 U.S. at 696.
As did the district judge, we agree with the analysis of the magistrate judge who first
considered this issue in making his recommendation to dismiss Bishop’s pro se habeas
petition. The magistrate judge determined that the elements of the traffic offense of failing
to drive on the right side of the road under New Mexico law are simply that the roadway was
of sufficient width for the driver to stay entirely on its right half and that the driver failed to
do so (absent any of the statutory exceptions under which it is permissible to drive on the left
side). On the other hand, the federal assault charge has three elements: an assault, with a
dangerous weapon, and with the intent to do bodily harm to another. It is apparent that each
offense requires proof of an element that the other offense does not. Accordingly, under the
Blockburger test the instant prosecution was not barred by the former conviction.
Defendant’s efforts to avoid this analysis are not persuasive. In the briefs counsel
seems to argue that this prosecution should have been barred because the first offense is a
- 16 - lesser included offense of the second.3 At oral argument, however, counsel conceded that
Bishop’s traffic infraction is not a lesser included offense of the present charge in the
“traditional” sense of Blockburger. Suffice it to say that we agree that failing to drive on the
right side of the road is not a lesser included offense of the crime of assault with a dangerous
weapon with intent to do bodily harm.
Counsel nevertheless repeatedly referred at argument to the fact that in the particular
circumstances of this case, the government did in fact seek to prove that the assault was
committed by driving the vehicle on the wrong side of the road, the “same conduct” for
which Bishop had already been convicted. Bishop relies primarily on two cases, United
States v. 9844 S. Titan Court, 75 F.3d 1470 (10th Cir. 1996), and Illinois v. Vitale, 447 U.S.
410 (1980). For purposes of double jeopardy analysis the underlying facts of this case and
those of Vitale are very similar, even though the facts of the latter were much more tragic.
In Vitale, the defendant was the driver of a car which struck and killed two children. At the
scene, Vitale was given a citation for failure to reduce speed to avoid an accident. After he
had been convicted of that charge, the state initiated proceedings to charge him with
3 When one of two prosecutions being analyzed under Blockburger is a lesser included offense of the other, double jeopardy protections apply. In such a situation, the greater offense will require proof of an additional element, but the lesser offense by definition does not require any element not necessary to establish the greater. As a result, former conviction of the lesser crime will bar prosecution of the greater crime; separate prosecutions are not permissible under Blockburger because it is not the case that each crime contains an element not contained in the other. See Brown v. Ohio, 432 U.S. 161 (1977).
- 17 - involuntary manslaughter.4 The Illinois Supreme Court held that the second prosecution
would violate the Double Jeopardy Clause of the federal constitution, as applicable to the
state through the Fourteenth Amendment.
The Supreme Court vacated the judgment of the state high court and remanded for
further proceedings. The Court stated that the decision was certainly correct “[i]f, as a matter
of Illinois law, a careless failure to slow is always a necessary element of manslaughter by
automobile . . . .” 447 U.S. 419. The Court further observed, in the passage relied on here
by Bishop, that:
In any event, it may be that to sustain its manslaughter case the State may find it necessary to prove a failure to slow or to rely on conduct necessarily involving such a failure; it may concede as much prior to trial. In that case, because Vitale has already been convicted for conduct that is a necessary element of the more serious crime for which he has been charged, his claim of double jeopardy would be substantial under Brown [v. Ohio, 432 U.S. 161 (1977)] and our later decision in Harris v. Oklahoma, 433 U.S. 682 (1977).
Id. at 420. Bishop now argues that his prosecution for assault is barred under the theory
expressed in this portion of Vitale.
Bishop’s reliance on Vitale is misplaced, however. Whatever the Court might have
intended to convey in the language about Vitale’s claim being “substantial” if based on the
same conduct as the infraction of failure to reduce speed, we think it clear that this portion
of the opinion was abrogated by United States v. Dixon, 509 U.S. 688 (1993). In Dixon, the
4 Because he was a juvenile, the form of the proceedings under state law was a petition for adjudication of wardship, but the Court noted that the Double Jeopardy Clause applied to the juvenile proceedings Vitale faced. 447 U.S. at 415.
- 18 - Court expressly overruled the “same conduct” test of Grady v. Corbin, 495 U.S. 508 (1990).
In Grady the Court had gone beyond the above quoted statement from Vitale. Where in
Vitale the Court had merely stated that a second prosecution in which the government relied
on the same conduct as that proven in establishing a prior conviction would raise a
substantial issue, in Grady the Court held that such a second prosecution would indeed
violate the Double Jeopardy Clause. That rule was short lived, however, and in Dixon the
Court expressly rejected it and reaffirmed the Blockburger test as the controlling standard.
This development in the Supreme Court’s double jeopardy jurisprudence is fatal to Bishop’s
contention here. The focus of theBlockburger test is not, as defendant would have it, on the
evidence the prosecution relies on to prove the elements of the offenses but on the elements
themselves.
As to Titan Court,5 Bishop relies mainly on this court’s statement, 78 F.3d at 1489,
that
[w]hen only one offense contains an ‘extra’ element not found in the other, the latter is a lesser included offense of the former, and a defendant may not be charged with both in separate proceedings. See Illinois v. Vitale, 447 U.S. 410, 421 . . . .
Appellant’s Brief-in-Chief at 8. We are convinced, however, that Dixon’s reaffirmation of
the Blockburger test after Vitale suffices to show that Bishop’s position here on the double
5 We note that the ultimate holding of Titan Court – that forfeitures of some of the properties at issue there violated the double jeopardy rights of the owner – was effectively abrogated by United States v. Ursery, 518 U.S. 267 (1996), which held that in rem civil forfeitures generally are not punishments for purposes of the Double Jeopardy Clause.
- 19 - jeopardy issue is untenable.
III
Bishop’s second major contention is that the evidence that he intentionally assaulted
Ms. McCarthy-Brow was insufficient as a matter of law to support the conviction. (As
Bishop notes, this was essentially the only contested factual issue at trial.) Our standard of
review for claims of insufficiency of the evidence is well established and is the same
standard the district court is to apply in ruling on a motion for acquittal in the first instance.
United States v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10 th Cir. 1998). The test is
whether, viewing the evidence and all reasonable inferences therefrom in the light most
favorable to the government, there is substantial evidence from which a reasonable jury
might find the accused guilty beyond a reasonable doubt. Id. However, inferences must be
reasonable. “‘An inference is reasonable only if the conclusion flows from logical and
probabilistic reasoning.’” Id. (quoting United States v. Jones , 44 F.3d 860, 865 (10 th Cir.
1995)). Finally, because the defense moved for a judgment of acquittal at the close of the
prosecution’s case, and the trial judge deferred ruling on the motion until after the verdict,
we must consider only the evidence presented in the government’s case-in-chief. Fed. R.
Crim. P. 29(b).6
6 See advisory committee notes to the 1994 amendment to Rule 29. The concluding sentence of Rule 29(b) now provides: “If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved.” The final sentence of the advisory committee notes states: “And in reviewing a trial court’s ruling, the appellate court would be similarly limited.”
- 20 - We conclude that the evidence was sufficient. Bishop had displayed intense anger
centered on Ms. McCarthy-Brow, and the incident Valenzuela related occurred about an hour
before the collision. Smith, a witness to the collision, described defendant’s vehicle as
having made a sudden and definite change of course into McCarthy-Brow’s car. Bishop
contends that the jury was left to speculate on the mechanical condition of his pickup.
However, although there was not an exhaustive mechanical examination of the pickup, there
was evidence that it did not malfunction. The cursory examination by one of the
investigating officers indicated no problem with the steering or the brakes, and both officers
examined the tires without finding any damage that could have caused a drastic loss of
control. We think the jury could draw a reasonable inference of intent for the assault from
the evidence that Bishop made no apparent effort to avoid the collision, such as applying his
brakes. Both investigating officers were surprised by the lack of skid marks. The officers
suggested that Bishop intentionally caused the impact.
Bishop argues that the evidence of his anger was insubstantial because there was
evidence that he calmed down after his initial outburst. We conclude that the jury could have
reasonably inferred from the evidence that the control Bishop exhibited after his outburst in
the office of Mr. Valenzuela was not disproof of his anger but of a temporary calm while he
was in a structured situation, inhibited by the presence of Valenzuela and by the supervisor’s
appearance. Bishop is critical of the prosecution’s reliance on evidence that McCarthy-Brow
was frightened by him. While this evidence was not alone sufficient to establish intent, we
- 21 - see no error in allowing the jury to consider it. The jurors were, of course, able to see and
judge for themselves the credibility of the victim and to infer, if they chose to, that her fear
was based on the hostility that Bishop had demonstrated in the past toward her.
In sum, considering the evidence as a whole, we are convinced that the jury’s
conclusion that Bishop committed an assault by intentionally causing the collision is a
permissible one.
IV
Bishop attempts to raise two new issues in his reply brief. His counsel acknowledges
our general rule that it is improper to raise an issue on appeal for the first time in the reply
brief. However, counsel for Bishop contends that these two issues, “although not directly
raised in appellant’s brief in chief, are related to the double jeopardy argument and . . .
Mr. Bishop has specifically requested that the undersigned present [them] to this Court as
grounds for having [appellant’s] conviction vacated.” Appellant’s Reply Brief at 7.
Bishop contends in one of these propositions that his prosecution should have been
barred by collateral estoppel. He posits that his plea of no contest to the traffic violation of
driving on the wrong side of the road is equivalent to an adjudication of negligence, and from
this he argues that the government should be estopped from proving that his mental state was
one of intent to assault. Defendant cites Paddock v. Schuelke, 473 P.2d 373 (N.M. Ct. App.
1970), as authority that “the scienter element of failure to keep right of center is negligence.”
Appellant’s Reply Brief at 8. We disagree with this characterization. What Paddock holds
- 22 - is that for purposes of civil liability, failure to keep right of center without excuse or
justification is negligence as a matter of law. Id. at 379.
This argument is a non sequitur. Even if we accept the premise that a plea of no
contest is somehow equivalent to an adjudication of negligence – indeed, even if there had
been an actual adjudication of negligence – we do not believe that such a finding is
necessarily also a finding of no culpability greater than negligence. The government simply
was not required to establish a more culpable state of mind – and would not have been, even
had Bishop contested the matter by pleading not guilty – in order to establish the traffic
violation. Consequently, the conviction on the traffic offense does not involve any actual
finding that defendant’s culpability was negligence but not more than negligence, which we
believe would be the necessary predicate for this argument.
The second new issue in the reply brief is that failure to bring both of these
prosecutions arising from the same incident in a single proceeding violated a “general policy”
of the federal government, a policy noted by the government in Petite v. United States, 361
U.S. 529, 530 (1960). We have previously held that any such policy confers no right on any
accused but is merely a policy for guidance of federal prosecutors. United States v.
Thompson, 579 F.2d 1184, 1189 (10th Cir. 1978)(en banc). AFFIRMED.
Entered for the Court
William J. Holloway, Jr. Circuit Judge
- 23 -