United States v. Burciaga

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 14, 2025
• Docket: 23-2663
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 14 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-2663 D.C. No. Plaintiff - Appellee, 3:20-cr-00060-MMD-CLB-1 v. MEMORANDUM* MICHAEL BURCIAGA,

Defendant - Appellant.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, District Judge, Presiding

Argued and Submitted June 4, 2025 San Francisco, California

Before: CALLAHAN, BADE, and KOH, Circuit Judges.

Following the killing of Amanda Davis (“Davis”) and her unborn child, a

jury convicted Michael Joshua Burciaga (“Burciaga”) of first-degree murder within

Indian Country (18 U.S.C. §§ 1111, 1151, 1152), causing the death of an unborn

child within Indian Country (18 U.S.C. §§ 1841(a)(1), 1111, 1151, 1152), and

domestic assault by a habitual offender within Indian Country (18 U.S.C.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. § 117(a)(1)). Burciaga appeals his conviction and sentence. We presume the

parties’ familiarity with the facts and discuss them only as necessary for context.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.

1. First, Burciaga argues that the evidence was insufficient to convict him of

first-degree murder and that the district court erred in denying his motion for

judgment of acquittal. We review the district court’s denial of a motion for

judgment of acquittal de novo. United States v. Aubrey, 800 F.3d 1115, 1124 (9th

Cir. 2015). To determine whether evidence is sufficient to support a conviction,

the court views the evidence in the light most favorable to the government and

must affirm if “any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” United States v. Nevils, 598 F.3d 1158,

1163–64 (9th Cir. 2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979) (original emphasis in Jackson)).

Burciaga first asserts that the evidence is insufficient to prove he acted with

premeditation and deliberation. Premeditation is a necessary element of first-

degree premeditated murder under 18 U.S.C. § 1111(a). See United States v.

Begay, 673 F.3d 1038, 1042 (9th Cir. 2011) (en banc). The question here is

whether there was enough time “after forming the intent to kill, for [Burciaga] to

have been fully conscious of the intent and to have considered the killing.” Model

Crim. Jury Instr. 9th Cir. 16.1 (2024); see also United States v. Reza-Ramos, 816

2 23-2663 F.3d 1110, 1123 (9th Cir. 2016). We conclude that a rational juror could find that

in the time between leaving the bedroom after stabbing Davis with a knife from

next to the bed, going to the kitchen to grab another knife, returning to the

bedroom, and breaking through the barricaded bedroom door, he became fully

conscious of his intent to kill Davis, considered it, and acted upon it when he re-

entered the room and began stabbing Davis.

Burciaga next argues that there is insufficient evidence to prove malice

aforethought. We disagree. A person acts with malice aforethought when they kill

“either deliberately and intentionally or recklessly with extreme disregard for

human life.” United States v. Houser, 130 F.3d 867, 872 (9th Cir. 1997). As this

court explained in United States v. Pineda-Doval, 614 F.3d 1019 (9th Cir. 2010),

malice aforethought requires a quantum of risk that is very high and requires that

the nature of the risk concern injury to others. Id. at 1038 (explaining that malice

aforethought requires conduct creating “a very high degree of risk of injury to

other persons” and that the defendant “be aware of that risk” (quotation marks and

alterations omitted)).

Here, a rational juror could conclude that stabbing Davis with knives created

a very high risk of injury to Davis and that Burciaga was aware of that risk.

Therefore, we conclude that there is sufficient evidence to sustain the jury’s

conclusion that Burciaga acted intentionally or recklessly and with extreme

3 23-2663 disregard for human life when he used multiple knives to stab Davis 18 times and

to inflict over 20 additional incision wounds.

2. Second, Burciaga argues that the district court erred in failing to instruct

the jury that the government had to prove beyond a reasonable doubt that Burciaga

did not act in the heat of passion or upon a sudden quarrel to convict him of first-

degree murder. The standard of review for an alleged jury instruction error “varies

based on the nature of the alleged error.” United States v. Cortes, 757 F.3d 850,

857 (9th Cir. 2014) (quoting United States v. Keyser, 704 F.3d 631, 641 (9th Cir.

2012)). Because Burciaga challenges the district court’s legal determination not to

give a defense instruction, we review the alleged error de novo. United States v.

Mincoff, 574 F.3d 1186, 1192 (9th Cir. 2009) (citation omitted).

“A defendant is entitled to an instruction upon his theory of the case if the

record contains evidentiary support for the theory and the theory is supported by

law.” United States v. Lesina, 833 F.2d 156, 160 (9th Cir. 1987). Burciaga

presented only three statements by Davis that he alleges constitute sufficient

evidence of provocation to warrant a provocation jury instruction. Words alone,

however, generally do not make for adequate provocation. See Allen v. United

States, 164 U.S. 492, 497 (1896); see also United States v. Roston, 986 F.2d 1287,

1291 (9th Cir. 1993); United States v. Wagner, 834 F.2d 1474, 1487 (9th Cir.

1987). Therefore, we find that the statements in this case are insufficient evidence

4 23-2663 of provocation to warrant a defense theory instruction on heat of passion.

3. Third, Burciaga argues the evidence was insufficient to convict him of

causing the death of an unborn child within Indian country. To determine whether

evidence is sufficient to support a conviction, the court views the evidence in the

light most favorable to the government and must affirm if “any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.”

Nevils, 598 F.3d at 1163–64 (quoting Jackson, 443 U.S. at 319 (original emphasis

in Jackson)).

Here, the jury was presented with evidence that the fetus died due to lack of

blood flow through the placenta after Davis’s death, and importantly, with

evidence that there was fetal movement the night prior to Davis’s death. Burciaga

presented the jury with alleged inconsistencies, contradictions, and challenges to

this evidence, but the jury nonetheless convicted. Viewing the evidence in the

light most favorable to the government, we find that the evidence was sufficient for

a rational trier of fact to find Burciaga guilty of causing the death of an unborn

child within Indian country.

4. Fourth, Burciaga argues that the district court constructively amended

Count Two in violation of his Fifth Amendment right. We review whether the

district court constructively amended an indictment de novo. United States v. Tuan

Ngoc Luong, 965 F.3d 973, 984 (9th Cir. 2020). Here, despite the indictment

5 23-2663 specifically alleging first-degree murder as the predicate offense to Count Two

causing the death of an unborn child within Indian Country, the district court

instructed the jury that either the crime of murder or manslaughter can be the

predicate offense. This, Burciaga says, was error because it expanded the mens

rea. We disagree.

Because the mens rea for both murder and voluntary manslaughter is the

same, the district court did not expand or modify the mens rea requirement by

instructing that voluntary manslaughter could form the predicate offense for Count

Two. See United States v. Draper, 84 F.4th 797, 803 (9th Cir. 2023).

Additionally, because involuntary manslaughter is a lesser-included offense to

murder, the district court did not err by instructing that involuntary manslaughter

could form the predicate offense for Count Two. See United States v. Hansen-

Sturm, 44 F.3d 793, 794 (9th Cir. 1995); see also United States v. Carlson, 533 F.

App’x 743, 744 (9th Cir. 2013).

5. Fifth, Burciaga argues the district court abused its discretion by shackling

him during trial. The district court’s decision to shackle a defendant is reviewed

for abuse of discretion, United States v. Cazares, 788 F.3d 956, 963 (9th Cir.

2015), and underlying factual findings for clear error, Spain v. Rushen, 883 F.2d

712, 717 (9th Cir. 1989). Shackling orders are governed by the following test: “(1)

the court must be persuaded by compelling circumstances that some measure was

6 23-2663 needed to maintain the security of the courtroom; and (2) the court must pursue

less restrictive alternatives before imposing physical restraints.” Cazares, 788 F.3d

at 963 (citation and quotations omitted).

Here, the district court did not abuse its discretion in placing nonvisible leg-

restraints on Burciaga. As Burciaga concedes, the district court ordered him

shackled based on the U.S. Marshal’s conclusion that he presented as a risk in

court and as an escape risk. Based on this compelling circumstance, the district

court imposed a less restrictive form of shackling—leg shackles—to secure the

courtroom. This was not error.

Additionally, there is no evidence that any of the jurors saw the leg shackles.

Indeed, Burciaga cites no evidence that any juror saw or was even aware of the leg

shackles. Therefore, even if the district did err in shackling Burciaga, it was

harmless. See Rhoden v. Rowland, 172 F.3d 633, 636 (9th Cir. 1999) (“[W]hen the

defendant’s shackling was not actually seen by the jury during the trial, we have

held that the shackling was harmless error.”).

6. Sixth, Burciaga argues the government engaged in prosecutorial

misconduct by failing to meet its disclosure obligations. We review claims of

prosecutorial misconduct for harmless error. United States v. Alcantara-Castillo,

788 F.3d 1186, 1190 (9th Cir. 2015). Error is harmless unless “it is more probable

than not that the prosecutor’s conduct materially affected the fairness of the trial.”

7 23-2663 United States v. Hermanek, 289 F.3d 1076, 1102 (9th Cir. 2002). Burciaga argues

that the government engaged in prosecutorial misconduct by failing to disclose an

unrecorded and undocumented statement by Davis’s mother that she felt fetal

movement the night before Davis’s death.

The district court noted that the “prosecutors’ decision to intentionally not

take note of this material evidence is concerning, particularly when viewed in the

context of this case.” United States v. Burciaga, No. 20-CR-60-MMD-CLB-1,

2023 WL 6197335, at *2 (D. Nev. Sept. 22, 2023). We share this concern.

However, we ultimately agree that the government did not commit prosecutorial

misconduct in this instance. We also agree with the district court that neither the

Jencks Act nor Federal Rule of Criminal Procedure 16 required the disclosure of

this statement. See 18 U.S.C. § 3500; Fed. R. Crim. P. 16(E).

7. Seventh, Burciaga argues that the district court erred by denying his

motion for a mistrial based on an outburst by the victim’s son during trial. We

review the district court’s denial of a motion for a mistrial for abuse of discretion.

United States v. Ubaldo, 859 F.3d 690, 700 (9th Cir. 2017). A “mistrial is

appropriate only where there has been so much prejudice that an instruction is

unlikely to cure it.” United States v. Escalante, 637 F.2d 1197, 1203 (9th Cir.

1980).

Burciaga argues that the district court abused its discretion in denying his

8 23-2663 motion for a mistrial following a spontaneous outburst from Davis’s son after

Davis’s son’s testimony. We disagree. Here, there was not such overwhelming

prejudice that the district court’s instruction could not cure the outburst. We

presume that the jury followed the district court’s curative instruction “to disregard

inadmissible evidence inadvertently presented to it,” and we further find that there

is no indication that the prejudice here was so great to be “devastating” to

Burciaga. Greer v. Miller, 483 U.S. 756, 766 n.8 (1987). Accordingly, the district

court did not err in denying the motion.

8. Eighth, Burciaga argues that the district court abused its discretion by

denying him an evidentiary hearing for his motion to suppress evidence. We

review the district court’s denial of an evidentiary hearing on a motion to suppress

for abuse of discretion. United States v. Cook, 808 F.3d 1195, 1201 (9th Cir.

2015).

Burciaga argues that the district court erred in denying him an evidentiary

hearing on his motion to suppress because there was a question of fact as to

whether the combination of Dilaudid, alcohol, methamphetamine, and severe pain

influenced his Miranda waiver. To determine the validity of a Miranda waiver, a

court looks to the totality of the circumstances surrounding the interrogation. See

Moran v. Burbine, 475 U.S. 412, 421 (1986). Here, the district court engaged in

this totality analysis without the need for an evidentiary hearing. A review of the

9 23-2663 record demonstrates that the district court had complete evidence of the

circumstances surrounding the Miranda waiver, including multiple recordings of

Burciaga. The district court accepted certain facts regarding substances and

medication consumed by Burciaga and folded those facts into its waiver analysis.

There were no factual disputes remaining that would require the district court to

hold an evidentiary hearing. See United States v. Pedroni, 958 F.2d 262, 267 (9th

Cir. 1992). Accordingly, the district court did not abuse its discretion in denying

Burciaga an evidentiary hearing on his motion to suppress.

9. Ninth, Burciaga argues that the district court committed five evidentiary

errors resulting in prejudice and warranting a new trial. We review the district

court’s decision to admit or exclude evidence for abuse of discretion. United

States v. Alvirez, 831 F.3d 1115, 1120 (9th Cir. 2016). Evidentiary rulings will be

reversed for abuse of discretion only if the error more likely than not affected the

verdict. United States v. Reyes, 660 F.3d 454, 463 (9th Cir. 2011).

Burciaga argues the district court erred in (a) admitting five prior acts of

domestic violence, (b) admitting statements made by Davis’s children that the

district court concluded were excited utterances, (c) admitting Burciaga’s

statement to the investigating FBI Agent without the accompanying transcript, (d)

declining to admit statements Burciaga made to his psychiatrist, and (e) declining

to admit jail medical and psychiatric records.

10 23-2663 The district court properly relied on United States v. Berckmann, 971 F.3d

999 (9th Cir. 2020) to find that these instances of domestic violence are “textbook

examples of evidence admissible under 404(b)” and thus did not err in admitting

them. Id. at 1002. The district court did not abuse its discretion in determining

that statements made by Davis’s two children, who were ages six and seven at the

time, were made while they were still under the stress of this violent and exciting

event. See United States v. Rivera, 43 F.3d 1291, 1296 (9th Cir. 1995). And the

district court did not abuse its discretion by declining to admit the certified

transcript of Burciaga’s conversation with the investigating FBI Agent because

although a district court may admit certified transcripts into the record, it is not

required to do so. See United States v. Tisor, 96 F.3d 370, 377 (9th Cir. 1996).

Further, the district court did not err in declining to admit the statements

Burciaga made to his psychiatrist because the statements were made almost two

months prior to the killing and they lacked a nexus to Burciaga’s state of mind at

the time of the killing. And finally, the district court did not err in excluding

portions of Burciaga’s medical and psychiatric records while he was in jail after

the killing of Davis occurred. The district court was within its discretion to

evaluate these jail records, assess the relevance, and make a determination on that

basis, and Burciaga cites no authority to the contrary.

Because the district court did not err in any of the evidentiary rulings

11 23-2663 discussed above, there was no cumulative error. See United States v. Preston, 873

F.3d 829, 835 (9th Cir. 2017).

10. Lastly, Burciaga argues the written judgment does not comport with the

district court’s oral pronouncement. We review discrepancies between the oral

sentencing pronouncement and the written judgment de novo. United States v.

Montoya, 82 F.4th 640, 646 (9th Cir. 2023) (en banc). “When there is a

discrepancy between an unambiguous oral pronouncement of a sentence and the

written judgment, the oral pronouncement controls.” United States v. Hernandez,

795 F.3d 1159, 1169 (9th Cir. 2015) (citation omitted).

Here, Burciaga correctly points out that the written judgment and the oral

pronouncement do not match. The government agrees but argues that the written

judgment resolved an ambiguity from the oral pronouncement. We agree with

Burciaga. Here, the oral pronouncement and the written judgment say two

different things, and the latter does not work to clarify the ambiguity of the former.

Therefore, we “remand so that the district court can make the written judgment

consistent with the oral pronouncement.” Id.

AFFIRMED and REMANDED for the district court to make the written

judgment consistent with the oral pronouncement.

12 23-2663