NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

STEVEN KILTY, 

Defendant-Appellant.

No. 19-50351 

D.C. No. 

5:16-cr-00024-JGB-1 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Jesus G. Bernal, District Judge, Presiding

Argued and Submitted December 8, 2021 

Pasadena, California

Before: KELLY,** M. SMITH, and FORREST, Circuit Judges.

A jury convicted Defendant Steven Kilty of involuntary manslaughter under 

18 U.S.C. § 1112. On appeal, he raises three arguments: (1) the evidence was 

insufficient to prove that he acted with the requisite mental state, (2) the district court 

erred in admitting an autopsy photograph into evidence, and (3) the district court 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the 

U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

FILED

JAN 18 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

erred by denying his motion for a new trial based on newly discovered evidence. We 

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. Sufficiency of the Evidence. “We review de novo whether sufficient 

evidence supports a conviction . . . .” United States v. Liew, 856 F.3d 585, 596 (9th 

Cir. 2017). We first “consider the evidence presented at trial in the light most 

favorable to the prosecution” and then determine whether the record was “adequate 

to allow ‘any rational trier of fact [to find] the essential elements of the crime beyond 

a reasonable doubt.’” United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) 

(en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Reversal is 

warranted only on “rare occasions.” Id. at 1167.

Kilty argues the evidence was insufficient to convict him of involuntary

manslaughter. The only disputed element is whether he acted with the requisite

mental state. “A conviction for involuntary manslaughter requires, at a minimum, 

‘gross negligence,’ defined as a ‘wanton or reckless disregard for human life.’” 

United States v. Benally, 843 F.3d 350, 353 (9th Cir. 2016) (citation omitted). 

“[C]riminal recklessness generally requires that ‘a person disregards a risk of harm 

of which he is aware.’” United States v. Rodriguez, 880 F.3d 1151, 1159 (9th Cir. 

2018) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “Thus, the defendant 

‘must both be aware of facts from which the inference could be drawn that a 

substantial risk of serious harm exists, and he must also draw the inference.’” Id.
3 

(quoting same) (emphasis omitted). Relatedly, the jury must find that the defendant 

“had actual knowledge that his conduct was a threat to the lives of others, . . . or had 

knowledge of such circumstances as could reasonably be said to have made 

foreseeable to him the peril to which his acts might subject others.” United States v. 

Garcia, 729 F.3d 1171, 1175 (9th Cir. 2013) (citation omitted). “In other words, the 

standard requires that the defendant ‘was subjectively aware of the risk.’” Rodriguez, 

880 F.3d at 1160 (quoting Farmer, 511 U.S. at 829). A jury may rely, as it did here, 

upon “inference[s] from circumstantial evidence” of the defendant’s knowledge, 

such as the “risk’s obviousness.” Farmer, 511 U.S. at 840, 842.

Kilty––a licensed commercial truck driver with over 20 years’ experience––

parked his truck overnight, without lights or any other warning signals, in a moving 

traffic lane near an army base delivery checkpoint. There were no streetlights or 

other illumination around the checkpoint area. Around 5:00 A.M., while it was still 

very dark, a commuter bus smashed into the back of his parked truck, killing one 

passenger and injuring several others.

Kilty was trained on and aware of the hazards of parking his truck in a moving 

lane of traffic and the safety precautions required when placing his truck in a 

dangerous position. Kilty’s reason for parking overnight in the moving lane of traffic 

was to be first in line at the checkpoint the following morning so he would not have 

to wait as he had before. This shows that he knew other vehicles would be coming 
4 

up behind him. Viewed in the light most favorable to the prosecution, the evidence 

also indicated that Kilty was aware of the surrounding circumstances and considered 

taking safety precautions but chose not to do so, at least in part, because he did not 

want to drain his truck battery.

Kilty testified that he did not believe he and his truck were in an unsafe area,

and he presented other evidence disputing that he was subjectively aware of the risk. 

Ultimately the jury, properly instructed on the law, evaluated all the evidence and 

found that Kilty was “subjectively aware of the risk” he had created. Rodriguez, 880 

F.3d at 1159 (quoting Farmer, 511 U.S. at 829, 837). We conclude that this was not 

error; the evidence of record was adequate to allow a “rational trier of fact [to find] 

the essential elements of the crime beyond a reasonable doubt.’” Nevils, 598 F.3d at 

1164 (citation omitted).

2. Autopsy Photo. Though Kilty argues otherwise, we review a district 

court’s admission of evidence and Federal Rule of Evidence 403 determination for 

an abuse of discretion when the district court engages in explicit balancing, as we 

conclude it did here. United States v. Curtin, 489 F.3d 935, 943 (9th Cir. 2007) (en 

banc); see also United States v. Boulware, 384 F.3d 794, 808 n.6 (9th Cir. 2004).

Relevant evidence may be excluded if its “probative value is substantially 

outweighed by [the] danger of . . . unfair prejudice.” Fed. R. Evid. 403. Evidence is 

unfairly prejudicial if it “provokes an emotional response in the jury or otherwise 
5 

tends to affect adversely the jury’s attitude toward the defendant wholly apart from 

its judgment as to his guilt or innocence of the crime charged.” United States v. 

Pineda-Doval, 614 F.3d 1019, 1035 (9th Cir. 2010) (citation omitted).

Kilty argues admission of the challenged autopsy photo was unnecessary

because he offered to stipulate that the accident caused the victim’s death and other 

admitted photos and testimony proved the cause of death. We conclude that the 

district court did not abuse its discretion. Death of the victim was an essential 

element of the offense. The government limited any prejudice by showing the 

challenged photo only briefly during its case-in-chief. Further, “a defendant’s Rule 

403 objection offering to concede a point generally cannot prevail over the 

Government’s choice to offer evidence,” Old Chief v. United States, 519 U.S. 172, 

183 (1997), and does not prevent the government from “prov[ing] its case by 

evidence of its own choice.” Id. at 186, 189. 

3. Motion for New Trial. We review the denial of a motion for a new trial 

based on newly discovered evidence for abuse of discretion. United States v. 

Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009) (en banc). However, we review “de 

novo the denial of a motion for a new trial arising from the government’s duty to 

produce exculpatory evidence pursuant to Brady [v. Maryland, 373 U.S. 83 (1963)].” 
6 

United States v. Bruce, 984 F.3d 884, 890 (9th Cir. 2021).1 A new trial may be 

granted “if the interest of justice so requires.” Fed. R. Crim. P. 33(a). This standard

is met where the defendant shows, among other requirements, that “the evidence was 

not cumulative or merely impeaching,” and that “a new trial, if granted, would 

probably result in an acquittal.” United States v. George, 420 F.3d 991, 1000 (9th 

Cir. 2005). If a defendant argues that the newly discovered evidence constitutes a 

Brady violation, then the defendant must prove prejudice, which occurs “if there is 

a reasonable probability that, had the evidence been disclosed to the defense, the 

result of the proceeding would have been different.” Ochoa v. Davis, 16 F.4th 1314, 

1334 (9th Cir. 2021) (citation omitted); see also Bruce, 984 F.3d at 894–95. 

Kilty argues that he is entitled to a new trial under both standards. The 

evidence he seeks to introduce––emails from the army base’s chief engineer who 

started working at the base after the accident at issue––relates to a different collision 

that occurred years after the accident at issue and the engineer’s comments about the 

safety of the checkpoint area. It is questionable whether these emails could have 

been admitted given that they relate to a different, later-occurring event. See United 

States v. Sarno, 73 F.3d 1470, 1505 (9th Cir. 1995) (holding inadmissible evidence 

1

“[T]here is some tension in our case law concerning the correct standard of 

review for these appeals.” Bruce, 984 F.3d at 890 n.1 (citing United States v. 

Endicott, 803 F.2d 506, 514 (9th Cir. 1986)). However, just as in Bruce, the court 

need not decide this issue because “[t]he outcome here does not depend on the 

standard of review.” Id. 
7 

was not Brady material). The authoring engineer’s statements about safety at the 

checkpoint were also speculative and cumulative of evidence that was presented.

United States v. Waggoner, 339 F.3d 915, 919 n.5 (9th Cir. 2003) (quoting Sarno, 

73 F.3d at 1506). Thus, either as Brady or non-Brady evidence, Kilty cannot show 

that the district court erred by denying his motion for a new trial.

AFFIRMED.