* This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

SEP 8 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

UNITED STATES OF AMERICA,

Plaintiff-Appellant/CrossAppellee,

v.

TIMOTHY TSOSIE,

Defendant-Appellee/CrossAppellant.

Case No. 96-2084/96-2085

(D.C. CR-95-13 MV)

(District of New Mexico)

 

ORDER AND JUDGMENT*

 

Before TACHA, HENRY, and LUCERO, Circuit Judges.

 

This appeal and cross-appeal arise from Defendant Timothy Tsosie’s conviction

under the Major Crimes Act, 18 U.S.C. § 1153, on one count each of assault with a

dangerous weapon and assault resulting in serious bodily injury. After denying Timothy

Tsosie’s motions for a new trial and for judgment of acquittal, the district court sentenced

him to a term of forty-six months--taking into account a two-level reduction in the offense

level for acceptance of responsibility under § 3E1.1 of the Sentencing Guidelines. The
2

United States appeals the district court’s award of the two-level sentence reduction. 

Timothy Tsosie cross-appeals the district court’s denial of his motions for a new trial and

for judgment of acquittal. In response, the government argues that this court lacks

jurisdiction to consider Timothy Tsosie’s cross-appeal because his notice of appeal was

not timely. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. 

BACKGROUND

On August 12, 1994, Timothy Tsosie and his brother Benjamin Tsosie set out from

their home on the Navajo Reservation to attend a parade in Farmington, New Mexico,

about six miles away. After pawning some tools at a trading post, the two hitch-hiked to

Farmington, where they purchased a half-gallon of vodka. Instead of remaining in

Farmington for the parade, the Tsosie brothers drove with the woman who had picked

them up to nearby Morgan Lake where they drank vodka and malt liquor for about an

hour. The woman then decided to leave and offered to drive the Tsosie brothers back to

Farmington. En route, the Tsosie brothers decided to return home and the woman

dropped them off at a roadside location within the reservation where they had previously

obtained rides home. 

While Benjamin attempted to hitch-hike, Timothy continued to consume the

remaining vodka. After becoming frustrated, Benjamin walked over to Timothy and said,
1 The subsections of 18 U.S.C. § 113 under which Timothy was charged and

convicted were amended in 1994. Therefore, for purposes of this appeal, we refer to

those sections as they existed in the 1988 United States Code.

3

“Let’s go”. Rec. vol. IV. at 167 (Testimony of Benjamin Tsosie dated Oct. 30, 1995). At

that point, for no apparent reason, Timothy pulled a five-inch pocketknife out of a knife

scabbard on his belt and began stabbing Benjamin. Benjamin attempted to defend

himself and told his brother to stop. Timothy did not respond but, rather, continued

stabbing Benjamin. 

When Sergeant Kee of the San Juan County Sheriff’s Office arrived sometime

later, he found Benjamin bleeding and seriously injured and Timothy sitting nearby on a

ditch bank. Timothy did not respond to Sergeant Kee’s questioning. Due to the nature of

Benjamin’s wounds, the paramedics at the scene requested a helicopter and airlifted

Benjamin to a hospital where he was treated for seven stab wounds. 

Timothy was charged on one count of assault with a dangerous weapon, 18 U.S.C.

§§ 1153, 113(c) (1988), and one count of assault resulting in serious bodily injury, 18

U.S.C. §§ 1153, 113(f) (1988),1 occurring on an Indian Reservation. At trial, Benjamin

testified to the events as described above, stating that Timothy “flips out” when he drinks

alcohol. Rec. vol. IV. at 174. Timothy, on the other hand, while agreeing with

Benjamin’s account of the events up to the drinking at Morgan Lake, maintained that he

blacked out from the drinking and only remembered waking-up in a trailer at a police

station. The government’s psychiatrist, who examined Timothy and testified to his
4

competency, acknowledged that both he and another psychiatrist concluded that Timothy

suffers from a prior brain injury and possibly suffers from a mild amnestic disorder due to

that injury and long-term alcohol abuse. The jury convicted Timothy on both counts. The

district court subsequently denied Timothy’s motions for a new trial and for judgment of

acquittal.

At the sentencing hearing, Timothy made two statements relevant to his acceptance

of responsibility. Upon introduction to the court, Timothy said: “I just want to say that I

take responsibility for what I’ve done, even though I don’t remember it.” Rec. vol. VI at

17-18 (Sentencing Hearing dated Jan. 23, 1996). When asked by the court whether he

wished to say anything additional, Timothy responded: “I’d like to say, like I said before,

I was--I blacked out, just woke up with the side of the head with a bump on me inside a

trailer. And I’m sorry what--for what happened. I didn’t find out until later that it

happened.” Rec. vol. VII at 8-9 (Sentencing Hearing dated March 1, 1996). Based upon

these statements and review of other statements and evidence in the record, the court

determined that Timothy met the criteria for acceptance of responsibility under

Sentencing Guidelines § 3E1.1, granting him a two-level reduction in the offense level. 

Timothy was sentenced to two concurrent terms of forty-six months’ imprisonment.

DISCUSSION
5

I. The Government’s Appeal

The government appeals the district court’s offense level reduction based on the

court’s finding that Timothy Tsosie accepted responsibility for his crime under

Sentencing Guidelines § 3E1.1. The government argues that the district court erred in

finding facts sufficient to support a determination that Timothy had accepted

responsibility for his crime. Specifically, it argues that Timothy continually denied that

he had done anything wrong and never made an effort to accept responsibility or to

express remorse for his criminal acts.

The district court’s determination of acceptance of responsibility is a question of

fact that is reviewed under the clearly erroneous standard. See United States v. Janus

Industries, 48 F.3d 1548, 1559-60 (10th Cir. 1995). Under this standard, the district court

“has broad discretion to determine whether to award the reduction, and we will not

disturb the court’s decision absent clearly erroneous findings.” United States v.

Gassaway, 81 F.3d 920, 922 (10th Cir. 1996). As explained in the commentary to §

3E1.1, “[t]he sentencing judge is in a unique position to evaluate a defendant’s

acceptance of responsibility. For this reason, the determination of the sentencing judge is

entitled to great deference on review.” U.S. Sentencing Guidelines Manual § 3E1.1,

commentary n.5. 

Section 3E1.1 allows a decrease of two offense levels for a defendant who “clearly

demonstrates acceptance of responsibility for his offense.” U.S. Sentencing Guidelines
6

Manual § 3E1.1(a). In determining whether a defendant has clearly demonstrated

acceptance of responsibility under § 3E1.1, the court must consider, among other things,

whether the defendant has “truthfully admitt[ed] the conduct comprising the offense(s) of

conviction.” See id. at commentary n.1(a). Accordingly, we have held that to receive a

reduction in his sentence, the defendant must show “‘recognition and affirmative

acceptance of personal responsibility for his criminal conduct.’” United States v.

McAlpine, 32 F.3d 484, 489 (10th Cir. 1994) (quoting U.S. Sentencing Guidelines

Manual § 3E1.1(a) (1987 version)). 

The commentary to § 3E1.1 provides that a downward “adjustment is not intended

to apply to a defendant who puts the government to its burden of proof at trial by denying

the essential factual elements of guilt, is convicted, and only then admits guilt and

expresses remorse.” U.S. Sentencing Guidelines Manual § 3E1.1, commentary n.2. 

However, “[i]n rare situations a defendant may clearly demonstrate an acceptance of

responsibility for his criminal conduct even though he exercises his constitutional right to

a trial.” Id. 

Applying this standard, we conclude that the district court’s two-level reduction in

Timothy’s offense level was not clearly erroneous. The court based its reduction in the

offense level on Timothy’s statements that, although he did not remember the events

which had occurred, he accepted responsibility for the assault on his brother. We also
7

acknowledge that the court had the benefit of personally observing defendant’s conduct

throughout the trial and to weigh the sincerity of his statements. 

While Timothy could not remember the events surrounding his assault on his

brother, he admitted that the injury resulted from his conduct. Contrary to the

government’s argument, we find this situation to be distinguishable from the defendant’s

statement in United States v. Jaramillo, 98 F.3d 521 (10th Cir.), cert. denied, 117 S. Ct.

499 (1996), which we held insufficient to award an offense level reduction under § 3E1.1. 

In Jaramillo, after a recess granted by the judge to modify an earlier statement to a

probation officer, the defendant stated: “The jury has found me guilty and I accept the

jury’s findings and therefore I am remorseful and I will accept responsibility.” Id. at 526. 

In the present case, Timothy’s statements were not perfunctorily based on the result of the

jury’s findings, but rather, on the recognition of his responsibility for the result of his

actions which he could not directly recall or attest to at trial. 

This case presents the unique situation where a defendant maintains a defense

based on his diminished capacity to form the requisite intent for the crime and then seeks

to accept responsibility for criminal conduct which he cannot recall. Although the jury

chose not to accept Timothy’s defense--a finding which we decline to overrule infra on

Timothy’s cross-appeal--we do not believe that the district court’s grant of the acceptance

of responsibility reduction based upon the facts of this case is inconsistent with the jury’s

conclusion. That a defendant may have had the specific intent to commit a crime at the
8

time of the act itself does not necessarily mean that that defendant, who suffers from

some form of amnestic disorder, may not be able to remember what happened after the

fact and fully take responsibility for those actions. 

The very uniqueness of this situation underscores the reason for our deference to

the district court; the credibility of this defendant’s acceptance of responsibility can best

be evaluated by the trial judge who personally observed the trial and defendant’s

statements and demeanor at trial and sentencing. Based on the record before us, we

conclude that the district court’s grant of a two-level reduction for acceptance of

responsibility under § 3E1.1 was not clearly erroneous. 

II. Timothy Tsosie’s Cross-Appeal

In response to the government’s appeal, Timothy filed a cross-appeal challenging

the district court’s denial of his motions for a new trial and for judgment of acquittal. 

Prior to addressing the merits of Timothy’s cross-appeal, however, we must address the

government’s contention that this court does not have jurisdiction over the cross-appeal

because Timothy’s notice of appeal was untimely. 

The timing of the notice of the cross-appeal in this case is governed by Fed. R.

App. P. 4(b), which provides that “[i]n a criminal case, a defendant shall file the notice of

appeal in the district court within 10 days after the entry either of the judgment or order

appealed from, or of a notice of appeal by the Government.” The government filed the
9

first appeal in this case on April 9, 1996. The government’s appeal was timely because it

was filed within thirty days of the entry of the underlying judgment on March 11, 1996. 

Timothy filed his notice of appeal on April 12, 1996. Therefore, Timothy’s cross-appeal

was timely because it was filed within 10 days of the government’s notice of appeal as

required under Fed. R. App. P. 4(b).

Timothy argues on cross-appeal that the district court erred in denying his motion

for a new trial and for judgment of acquittal. Timothy’s arguments supporting the

motions are the same on appeal as they were before the district court. First, he argues that

his conviction for assault with a dangerous weapon was invalid because the government

failed to prove the element of specific intent. Timothy claims he lacked the necessary

specific intent because he “was so drunk at the time of the assault that he had blacked

out.” Aple’s Br. at 28. Second, Timothy argues that his conviction for assault resulting

in serious bodily injury was invalid because the government failed to prove that Benjamin

suffered serious bodily injury. 

We review the denial of a motion for judgment of acquittal using the same

standard as the district court. United States v. Fleming, 19 F.3d 1325, 1328 (10th Cir.

1994). In order to determine whether the evidence was sufficient to support the jury’s

verdict, we ask only whether a reasonable jury could find the defendant guilty beyond a

reasonable doubt. United States v. Ivy, 83 F.3d 1266, 1284 (10th Cir.), cert. denied, 117

S. Ct. 253 (1996). To conclude that the evidence was insufficient, we must find that no
10

reasonable juror could have reached the disputed verdict. Id. We view all the evidence

and the reasonable inferences therefrom in the light most favorable to the prosecution. 

United States v. Madrigal, 43 F.3d 1367, 1369 (10th Cir. 1994).

Timothy’s first argument is that there was insufficient evidence to support his

conviction for assault with a dangerous weapon pursuant to 18 U.S.C. § 113(c) because

he lacked the specific intent for the crime due to his intoxicated state. As the jury was

instructed, in order to prove specific intent, the government must establish that the

defendant knowingly assaulted his brother with a dangerous weapon. Although

intoxication or drunkenness alone will never provide a legal excuse for the commission of

a crime, the fact that a person may have been intoxicated at the time of the commission of

a crime may negate the existence of specific intent. See United States v. Sands, 968 F.2d

1058, 1064 (10th Cir. 1992). 

The evidence in this case was sufficient to support the jury’s conclusion that

Timothy knowingly assaulted his brother. The altercation began when Timothy removed

a folding knife from the scabbard on his belt, opened it, and locked the blade into place.

Timothy stabbed Benjamin seven times. Benjamin tried to defend himself and repeatedly

told his brother to stop. Benjamin testified that while Timothy was stabbing him,

Timothy stated: “You goddam fucking brother, how come you’re trying to do this to me

again?” Rec. vol. IV at 169. One reasonable inference to draw from this evidence is that

Timothy drew his knife with the intention of stabbing his brother and deliberately used
11

the weapon for that purpose. Even if Timothy may have blacked out after the incident,

this does not necessitate a finding that Timothy did not have the requisite intent at the

time the assault was committed. Therefore, we conclude there was sufficient evidence for

a jury to conclude beyond a reasonable doubt that Timothy knowingly and intentionally

assaulted his brother. 

The second argument raised by Timothy is that his conviction for assault resulting

in serious bodily injury pursuant to 18 U.S.C. § 113(f) was insufficient because the

government failed to prove that Benjamin suffered a serious bodily injury. Timothy

points to the testimony of the treating physician on cross-examination who testified that

none of Benjamin’s injuries were life-threatening. Aple’s Answer Br. at 25. Because

Benjamin’s wounds were not life-threatening, Timothy argues that the government did

not prove the necessary elements of the offense.

The district court instructed the jury that “serious bodily injury” is defined as

“bodily injury that involves substantial risk of death, unconsciousness, extreme physical

pain, protracted and obvious disfigurement or protracted loss or impairment of the

function of a bodily member, or mental faculty.” Rec. vol. V. at 274 (Jury Instructions

dated Oct. 31, 1995); see United States v. Dennison, 937 F.2d 559, 562 (10th Cir. 1991)

(applying substantially the same definition of “serious bodily injury”). Under this

definition, there was ample evidence for the jury to find that Timothy’s actions resulted in

“serious bodily injury.” At trial, in answering the question of how he felt when he was
12

being stabbed, Benjamin answered: “I didn’t feel a thing except pain. I couldn’t feel

anything else.” Rec. vol. IV at 171. Benjamin also testified that he “blacked out” after

the assault, id. at 170--thereby meeting the “unconsciousness” criterion--and that he

suffered from continued numbness in his leg where he was stabbed--indicating that he

suffers from “protracted . . . impairment of the function of a bodily member.” Vol. V. at

274 (Jury Instructions dated Oct. 31, 1995). Based on this evidence, we conclude that a

jury could find beyond a reasonable doubt that Timothy’s actions resulted in “serious

bodily injury”--which is not limited to a finding that the injury was “life-threatening.” 

CONCLUSION

For the reasons stated above, we conclude that the district court did not err in its

decision to reduce Timothy’s offense level for acceptance of responsibility under

Sentencing Guidelines § 3E1.1, and that there was sufficient evidence to convict Timothy

for violating 18 U.S.C. §§ 113(c) & (f). Accordingly, we AFFIRM the judgment of the

district court. The mandate shall issue forthwith.

Entered for the Court,

Robert H. Henry

Circuit Judge