FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

No. 07-10487

v.

D.C. No.  CR-06-00626-DGC

KENDERICK BEGAY, OPINION

a.k.a. Kendrick Begay,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and Submitted

March 23, 2010—San Francisco, California

Filed January 12, 2011

Before: Alex Kozinski, Chief Judge, Stephen Reinhardt,

Sidney R. Thomas, Barry G. Silverman,

M. Margaret McKeown, Kim McLane Wardlaw,

Raymond C. Fisher, Marsha S. Berzon, Richard R. Clifton,

Consuelo M. Callahan and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Clifton;

Dissent by Judge Reinhardt

669
COUNSEL

Daniel L. Kaplan, Assistant Federal Public Defender, Phoenix, Arizona, for the appellant.

John R. Lopez, Assistant United States Attorney, Phoenix,

Arizona, for the appellee. 

672 UNITED STATES v. BEGAY
OPINION

CLIFTON, Circuit Judge:

Kenderick Begay appeals his convictions on two counts of

first-degree murder in violation of 18 U.S.C. §§ 1111(a) and

1153(a), and two counts of using a firearm during a crime of

violence in violation of 18 U.S.C. § 924(c)(1)(A). Begay’s

principal argument on appeal is that the evidence introduced

at trial, even when taken in the light most favorable to the

prosecution, fails to establish that he acted with premeditation

and thus fails to support his convictions for first-degree murder. We conclude that there was sufficient evidence to establish premeditation and affirm the convictions.

I. Background1

In the early morning hours of March 28, 2002, Kenderick

Begay2 drove his truck through the Navajo Indian Reservation3

in Greasewood, Arizona, after leaving a gathering at the

“windmill,” an area in town where the youth partied. His passengers included his sister Mecheryl Begay, Loren Clark,

Emmanley Begay, and Jessica Lee. When a car passed them

traveling in the opposite direction sometime around 2:00 a.m.

1Most of the background section of this opinion is drawn directly from

the opinion of the three-judge panel that initially heard this case. See

United States v. Begay, 567 F.3d 540 (9th Cir. 2009). 

2The record reflects that “Begay” is a common surname in the Navajo

Nation and does not always reflect a familial relation between two individuals bearing that name. In this case, four relevant parties bear the surname

Begay: the defendant, his sister Mecheryl, a man named Emmanley, and

a man named Larry. The latter two bear no familial relation to the first two

or to each other. We refer to the defendant by his surname and to the other

Begays by either their first or full names. 

3Begay was charged under the federal murder statute pursuant to the

Indian Major Crimes Act, 18 U.S.C. § 1153, which extends federal criminal jurisdiction to cover specific crimes, including murder, committed by

Indians in Indian Country. 

UNITED STATES v. BEGAY 673
or 3:00 a.m., Begay turned his truck around. The other car

turned around as well. When the two vehicles passed each

other again, Begay flashed the lights of his truck, a signal that

resulted in stopping the other car. The two vehicles pulled off

the highway and onto a dirt road. Begay got out of his truck

and walked to the driver’s side of the other car. Two high

school students, J.T. and O.C.,4 were in the car; O.C. was in

the driver’s seat and J.T. was in the front passenger’s seat.

After about a minute of standing by the driver’s side of the

car, Begay walked back to his truck. He reached under the

driver’s seat, pulled out a .30 caliber rifle, and walked back

to the passenger’s side of the car. Begay shot eight or nine

times through the passenger-side front window, shattering the

glass. Six of the bullets hit J.T., while some of the shots

missed, hitting the driver’s side door. One of the bullets that

struck J.T. passed through him and hit O.C.

After firing the shots, Begay walked back to his truck and

put the gun under the back seat. Clark, who had gotten out of

the truck prior to the shooting to relieve himself, “just stood

there” before asking, “What the hell are you doing?” Begay

did not answer. His sister Mecheryl ran up to him making

“horrible cries” and yelling at him, screaming, “What did you

do?” or “Why did you do that?” Begay told her to be quiet.

Clark walked over to the car and saw J.T. gasping for air and

O.C. sitting in her seat. Clark again asked Begay why he shot

the victims, but Begay did not respond.

Begay, Mecheryl, and Clark got back into the truck and

drove away. Lee remained behind. Up until the shooting, she

had been in a comatose state in the rear of the truck as a result

of having consumed too much alcohol. The gunshots roused

her from her stupor, at which point she felt an immediate need

to vomit and exited the truck to do so. Lee did not reenter the

4Because the victims were minors, we refer to them using only their initials. See 18 U.S.C. § 3509(d). 

674 UNITED STATES v. BEGAY
vehicle following the shooting, but instead walked home from

the crime scene. As she passed O.C.’s car, she saw O.C. trying to hold J.T. upright and saw that J.T.’s shirt was bloody.

O.C. managed to drive her car to a nearby housing area,

where she sought help from Rosita Clark, Loren Clark’s

mother. By the time O.C. and J.T. arrived, J.T. was already

dead. O.C. was transported to a nearby hospital before being

transferred to a hospital in Albuquerque, New Mexico, where

she died from her wounds three days later.

FBI agents and Navajo investigators began to investigate

the crime immediately. They interviewed numerous people,

including Begay, who denied being out the night of the murders and stated that he had been with his girlfriend the entire

time. Investigators learned from other sources, however, that

Begay might have been at the party the victims attended.

Approximately two weeks after the murders, investigators

located the crime scene, where they found glass on the ground

and six .30 caliber shell casings. After this discovery, the

agents continued to investigate for several months but failed

to make any further progress.

The investigation’s first break came six months after the

shooting, in the autumn of 2002, when Jessica Lee contacted

the FBI about the murders. She eventually told the FBI, and

later testified at trial, that she had been present at the party

and left with Begay, Mecheryl, Clark, and Emmanley. Lee

admitted that alcohol impaired her memory, but stated that

she remembered leaving the party with that group, that, after

having passed out, she woke up at the sound of gunshots, and

that she saw the victims after they had been shot. She also testified that a few days after the murders, she asked Begay what

she should tell the police and that he told her to blame the

murders on two other men. Lee and Begay never spoke about

the murders again.

The next major development in the investigation came four

years after the shooting, in May 2006, when the FBI contacted

UNITED STATES v. BEGAY 675
Clark. Other than Lee, Clark was the only percipient witness

who testified at trial. Moreover, as Lee witnessed only the

shooting’s aftermath, Clark was the sole witness to testify as

to the events leading up to the shooting or the details of the

shooting itself.

Clark testified that when the two cars pulled over, he exited

Begay’s vehicle to relieve himself. Because he was standing

at the rear of Begay’s truck while Begay was standing alongside the victim’s car, he could only see Begay “[f]rom quite

a distance.” In fact, Clark described Begay as appearing as

simply “a black figure” in the night. Clark testified that he

saw Begay stand by the car for “just a minute or so” and then

come “walking back . . . to his truck.” Clark could not see

what Begay retrieved from the truck, but saw that he “reached

under the driver’s side . . . seat,” retrieved something, and

then returned to the victim’s car. At that point, according to

Clark, he saw Begay lift the object that he had retrieved from

the truck “up on his shoulder and just s[aw]—just s[aw]

sparks.” Along with the sparks, Clark heard gunshots, which

he recognized as coming from a rifle that Begay had used on

previous occasions when he and Clark had gone shooting

together. When the gunfire ceased, Clark asked Begay why he

had shot the victims, but received no explanation. Instead,

Begay told him to get back into the truck, which he did.

Begay dropped Clark off at his house immediately following

the murders and told him to keep quiet. The next morning,

Begay told Clark to say nothing to the FBI and “to watch himself.” At various times following the murders, Begay told

Clark to “watch his back.”

A jury convicted Begay on two counts of first-degree murder and two counts of using a firearm during a crime of violence. The district court imposed mandatory concurrent life

sentences for each murder conviction as well as consecutive

120-month and 300-month sentences, or a total of thirty-five

years, for the firearm convictions.

676 UNITED STATES v. BEGAY
A three-judge panel of our court reversed Begay’s firstdegree murder convictions, concluding that the evidence was

insufficient for the jury to find that the killings had been premeditated. See United States v. Begay, 567 F.3d 540, 550 (9th

Cir. 2009). The panel decision affirmed the convictions for

using a firearm during a crime of violence.

We granted the government’s petition for rehearing en

banc. United States v. Begay, 591 F.3d 1180 (9th Cir. 2010).

II. Sufficiency of the Evidence

[1] Begay contends that the evidence of premeditation was

insufficient to convict him of first-degree murder. Murder is

defined in the relevant statute as follows:

Murder is the unlawful killing of a human being with

malice aforethought. Every murder perpetrated by

poison, lying in wait, or any other kind of willful,

deliberate, malicious, and premeditated killing; or

committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or

sexual abuse, child abuse, burglary, or robbery; or

perpetrated as part of a pattern or practice of assault

or torture against a child or children; or perpetrated

from a premeditated design unlawfully and maliciously to effect the death of any human being other

than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree.

18 U.S.C. § 1111(a).

[2] Premeditation is not required for all forms of firstdegree murder, but it is undisputed that premeditation is a

required element of first-degree murder as charged against

Begay. Therefore, in this case, premeditation is the essential

UNITED STATES v. BEGAY 677
element that distinguishes first-degree and second-degree

murder. See United States v. Quintero, 21 F.3d 885, 890 n.3

(9th Cir. 1994). Without proof of premeditation, Begay could

not be convicted of first-degree murder. 

The jury in this case was instructed, following our circuit’s

model jury instructions, that 

Premeditation means with planning or deliberation.

The amount of time needed for premeditation of a

killing depends on the person and the circumstances.

It must be long enough, after forming the intent to

kill, for the killer to have been fully conscious of the

intent and to have considered the killing.

9th Cir. Model Crim. Jury Instr. 8.89 (2003). Begay did not

object to that instruction at trial and has not done so in this

appeal.

[3] Premeditation can be proved by circumstantial evidence. United States v. Free, 841 F.2d 321, 325 (9th Cir.

1988). Relevant circumstantial evidence includes but is not

limited to “the defendant’s prior relationship to the victim, the

defendant’s carrying of the murder weapon to the scene, and

the manner of the killing.” Id.; see also 2 Wayne R. LaFave,

Substantive Criminal Law § 14.7(a) (2d ed. 2009) (highlighting “planning activity,” “motive,” and the “nature of the killing” as probative evidence) (emphasis omitted).

Whether a defendant acted with premeditation is a factual

question for the jury to decide. And a jury’s verdict is not to

be disturbed lightly. As the Supreme Court established in

Jackson v. Virginia, a challenge to the sufficiency of the evidence to support a criminal conviction requires us to determine whether, “after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S. 307, 319 (1979).

678 UNITED STATES v. BEGAY
[4] A unanimous en banc panel of our court recently held

in United States v. Nevils, 598 F.3d 1158 (9th Cir. 2010) (en

banc), that Jackson established a two-step process:

First, a reviewing court must consider the evidence

presented at trial in the light most favorable to the

prosecution. This means that a court of appeals may

not usurp the role of the finder of fact by considering

how it would have resolved the conflicts, made the

inferences, or considered the evidence at trial.

Rather, when “faced with a record of historical facts

that supports conflicting inferences” a reviewing

court “must presume—even if it does not affirmatively appear in the record—that the trier of fact

resolved any such conflicts in favor of the prosecution, and must defer to that resolution.”

Second, after viewing the evidence in the light

most favorable to the prosecution, the reviewing

court must determine whether this evidence, so

viewed, is adequate to allow “any rational trier of

fact to find the essential elements of the crime

beyond a reasonable doubt.” This second step protects against rare occasions in which “a properly

instructed jury may convict even when it can be said

that no rational trier of fact could find guilt beyond

a reasonable doubt.” More than a “mere modicum”

of evidence is required to support a verdict. At this

second step, however, a reviewing court may not

“ask itself whether it believes that the evidence at the

trial established guilt beyond a reasonable doubt,”

only whether “any” rational trier of fact could have

made that finding.

Nevils, 598 F.3d at 1164 (citations, omissions, and alterations

omitted) (quoting Jackson, 443 U.S. at 319-20, 326).

We turn to the evidence presented at trial in this case. The

first step under Nevils requires us to consider the evidence in

UNITED STATES v. BEGAY 679
the light most favorable to the prosecution, resolving conflicts

in favor of the government’s case. At least four pieces of evidence were relevant to whether Begay acted with planning or

deliberation in killing his victims and whether there was sufficient time for him to plan or deliberate.

[5] First, the jury could reasonably infer, from Loren

Clark’s testimony, that Begay walked back to his truck after

talking to O.C. and J.T., got a gun from under the back seat

and then returned to shoot the victims. Carrying the murder

weapon to the scene is strong evidence of premeditation. See

Free, 841 F.2d at 325; United States v. Talbert, 710 F.2d 528,

531 (9th Cir. 1983) (“If the jury determined that the killer

picked up the murder weapon and carried it back seventy-five

feet to [the victim’s] room, its finding of premeditation was

justified.”); see also Belton v. United States, 382 F.2d 150,

152 (D.C. Cir. 1967) (“[T]hat appellant entered the apartment

with a loaded gun . . . permitted an inference that appellant

arrived on the scene already possessed of a calmly planned

and calculated intent to kill.”). Leaving the scene to retrieve

a weapon is even stronger evidence of premeditation because

it suggests that Begay had formed a plan for committing the

murders and then set about carrying it out.

[6] Second, Clark testified that Begay walked both ways

between his truck and O.C.’s car. There was no evidence that

he was agitated or rushed. The jury could reasonably infer

that he had enough time to become fully conscious of his

intent to kill and to consider the killing.

[7] Third, Clark testified that when Begay returned to

O.C.’s car, he went to the passenger’s side, where J.T. was

sitting, even though he had initially spoken to O.C. and J.T.

from the driver’s side. The jury could reasonably infer that he

did so to get a clearer shot at J.T. See Jackson, 443 U.S. at

325 (“[T]he . . . shots that killed the victim were fired at close,

and thus predictably fatal, range by a person who was experienced in the use of the murder weapon.”). Like the defendant

680 UNITED STATES v. BEGAY
in Jackson, Begay fired from close range: Clark testified that

Begay was at most four feet away from the car when he fired.

[8] Finally, Clark testified that Begay did not answer

when, after the shooting, Clark asked what he had done. He

also testified that Begay’s sister, Mecheryl, yelled something

like “What did you do?” to Begay at that point, and Begay

told her to shut up and be quiet. The jury could reasonably

infer that Begay was acting with a cool mind. Cf. id. at 325

(“The petitioner’s calculated behavior both before and after

the killing demonstrated that he was fully capable of committing premeditated murder.”).

The second step under Nevils requires us to consider

whether this evidence, including the inferences drawn in the

prosecution’s favor, was adequate to permit a rational juror to

conclude that each essential element of the charge was proved

beyond a reasonable doubt. This second step allows us to fulfill “our obligation under Jackson to identify those rare occasions in which ‘a properly instructed jury may convict even

when it can be said that no rational trier of fact could find

guilt beyond a reasonable doubt.’ ” Nevils, 598 F.3d at 1167

(omissions and alterations omitted) (quoting Jackson, 443

U.S. at 317). For example, we cannot uphold a verdict where

“mere speculation, rather than reasonable inference, supports

the government’s case.” Nevils, 598 F.3d at 1167 (citing Juan

H. v. Allen, 408 F.3d 1262, 1277-79 (9th Cir. 2005)).

[9] The evidence we described in step one, viewed in the

light most favorable to the prosecution, was sufficient for a

rational juror to conclude that Begay acted with planning or

deliberation in shooting J.T. and that he had enough time to

do so.5 Each of the inferences we described is reasonable

5The evidence was sufficient to conclude that Begay premeditated killing J.T., so it was not necessary for the jury to decide separately whether

Begay also premeditated killing O.C., his other victim. See 18 U.S.C.

§ 1111(a) (“Every murder . . . perpetrated from a premeditated design

unlawfully and maliciously to effect the death of any human being other

than him who is killed . . . is murder in the first degree.”). 

UNITED STATES v. BEGAY 681
because it is “supported by a chain of logic,” which is all that

is required to distinguish reasonable inference from speculation. Juan H., 408 F.3d at 1277. In this case, therefore, step

two is simple. Nothing more was needed for a rational juror

to conclude beyond a reasonable doubt that Begay acted with

premeditation.6

Begay argues that because there was no evidence presented

at trial to establish a motive on the part of Begay to kill J.T.

or O.C. or to prove that Begay had a prior relationship with

them, it would have been irrational for a juror to conclude that

Begay premeditated the killings. But although evidence of

motive or of a past relationship often helps to establish a

given defendant’s guilt, neither motive nor a past relationship

is an element of first-degree murder. See United States v.

Brown, 880 F.2d 1012, 1014 (9th Cir. 1989); see also 18

U.S.C. § 1111(a).

[10] A rational juror could have concluded beyond a reasonable doubt from the evidence concerning Begay’s activity

and the manner of killing that Begay acted with premeditation. See Free, 841 F.2d at 325; LaFave, supra, § 14.7(a).

Begay does not contest the sufficiency of evidence as to any

other element of first-degree murder. The evidence was therefore sufficient to support the jury’s verdict and the convictions for first-degree murder.

6While we have examined several pieces of evidence to determine

whether the evidence as a whole was sufficient to support Begay’s conviction, we do not mean to imply that the evidence would have been insufficient in the absence of any of these pieces. Nor do we mean to imply that

the evidence in this case represents a minimum level of evidence for the

government to produce in other cases involving premeditation. The analysis under Jackson and Nevils must be applied to each criminal appeal in

which the sufficiency of evidence is at issue. Whether the evidence in a

given case is sufficient to prove an element of a crime always depends on

the specific evidence produced in that case. 

682 UNITED STATES v. BEGAY
III. Other Challenges

Begay raises a number of other arguments that we can

address without extended discussion. None persuades us to

reverse the conviction or to remand for any further proceedings.

A. Voluntary Manslaughter Instruction

[11] Begay argues that the district court erred by declining

to instruct the jury on the lesser crime of voluntary manslaughter. See 18 U.S.C. § 1112(a); United States v. Paul, 37

F.3d 496, 499 (9th Cir. 1994). We review the refusal to

instruct on a lesser included offense for abuse of discretion.

See United States v. Naghani, 361 F.3d 1255, 1262 (9th Cir.

2004). A murder defendant is not automatically entitled to a

voluntary manslaughter instruction. The defendant must produce evidence “that the defendant was acting out of passion

rather than malice” before the burden shifts to the government

to “prove beyond a reasonable doubt the absence of sudden

quarrel or heat of passion.” Quintero, 21 F.3d at 890 (citing

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

Begay relies on United States v. Hernandez, 476 F.3d 791

(9th Cir. 2007), but that case is inapposite. In Hernandez, the

evidence at trial was sufficient to allow a rational jury to find

the defendant guilty of a lesser included offense, so the defendant had no obligation to introduce additional evidence. See

id. at 801. Here, Begay’s trial counsel conceded that there was

no evidence of provocation. Begay failed to meet his burden

of production, so the district court did not abuse its discretion

by refusing to give the requested instruction. See United

States v. Wagner, 834 F.2d 1474, 1487 (9th Cir. 1987).

B. Evidence of Witness Intimidation

[12] Begay argues that evidence showing that he sought to

intimidate the witnesses against him was inadmissible under

Federal Rules of Evidence 403 and 404(b). Specifically,

UNITED STATES v. BEGAY 683
Begay challenges the admission of Clark’s testimony that he

was afraid to talk to investigators after Begay told him to keep

quiet and to watch himself. He also challenges Jessica Lee’s

testimony that Begay told her to blame the murders on other

people. Because Begay did not object to this evidence at trial,

we review for plain error. See United States v. Banks, 514

F.3d 959, 975-76 (9th Cir. 2008). There was no error. First,

the evidence in question was admissible to show Begay’s consciousness of guilt. See Ortiz-Sandoval v. Gomez, 81 F.3d

891, 897 (9th Cir. 1996). Second, its probative value outweighed any danger of unfair prejudice because the evidence

also tended to explain why Clark and Lee delayed coming forward to investigators until they each had moved away from

Greasewood.

[13] Begay also contends that he was not given reasonable

notice by the government that it would introduce this evidence of his other wrongful acts. The government was not

required to provide such notice unless Begay requested it. See

Fed. R. Evid. 404(b) (duty triggered “upon request by the

accused”); United States v. Vega, 188 F.3d 1150, 1154 (9th

Cir. 1999). Begay cites no request for notice, and our review

of the record has not revealed one. Even if Begay did request

notice and the government failed to provide it, the decision to

admit the evidence does not require reversal. We recognize

plain errors only if they seriously undermine “the fairness,

integrity, or public reputation of judicial proceedings.” United

States v. Cruz-Perez, 567 F.3d 1142, 1146 n.1 (9th Cir. 2009).

That did not happen here: The government disclosed the evidence itself and said specifically in its opening statement that

some of it would be introduced. The defense had an opportunity to cross-examine the government’s witnesses about the

evidence. And the district court had no reason to suspect a

notice problem absent an objection.

C. Prosecutorial Misconduct

Begay argues that the prosecutor committed misconduct by

misstating the elements of first-degree murder during closing

684 UNITED STATES v. BEGAY
argument. We review the prosecutor’s statement for plain

error because no objection was raised at trial. See United

States v. Romero-Avila, 210 F.3d 1017, 1021-22 (9th Cir.

2000).

The prosecutor made the following statement, which Begay

insists is a justification for a new trial:

He knew exactly what he was doing. He intended

to kill the occupants of the vehicle. That’s premeditation. He intended it. He was conscious of it. That’s

first degree murder.

[14] The prosecutor did make a mistake in saying “that’s

premeditation” right after she said “he intended to kill the

occupants of the vehicle.” Intent is not the same thing as premeditation. But we consider the misstatement in context. The

court properly instructed the jury on the correct definition,

and an instruction carries more weight than an argument.

Boyde v. California, 494 U.S. 370, 384-85 (1990); see also

Weeks v. Angelone, 528 U.S. 225, 234 (2000) (holding that a

jury is presumed to follow a judge’s instructions). Plus, the

prosecutor correctly stated the law shortly before the misstatement, explaining that “ ‘[p]remeditation’ means planning or

deliberation. The amount of time needed . . . must be long

enough after forming the intent to kill for the killer to have

been fully conscious of the intent and to have considered the

killing.” The misstatement did not prejudice Begay, so there

was no plain error. See United States v. Medina-Casteneda,

511 F.3d 1246, 1249-50 (9th Cir. 2008).

D. Cumulative Error

Begay argues that the cumulative effect of the issues he

raises deprived him of a fair trial. We have not recognized any

error below, so there is no cumulative prejudicial effect to

analyze. See, e.g., United States v. Jeremiah, 493 F.3d 1042,

1047 (9th Cir. 2007).

UNITED STATES v. BEGAY 685
IV. Conclusion

The evidence, viewed in the light most favorable to the

prosecution, was sufficient for a rational juror to conclude that

Kenderick Begay acted with premeditation in killing his victims. His other arguments also lack merit.

AFFIRMED.

REINHARDT, Circuit Judge, with whom Judges THOMAS

and BERZON join, dissenting:

This is a case in which there is no conflict among circuits,

no intra-circuit conflict, and no issue of national importance.

The court went en banc not over any legal issue, but only to

decide whether a few specific facts identified in the majority

opinion were sufficient to warrant a finding of premeditation.

A similar combination of facts is not likely to occur again in

a future case, especially as there are few federal murder cases

—this one happened on an Indian reservation—and even

fewer in which the question whether the murder was first- or

second-degree hinges exclusively on whether there is sufficient circumstantial evidence to prove premeditation. Nevertheless, a majority of this court decided that it was worthy of

en banc review when the three-judge panel found that the

prosecution had failed to prove murder in the first as opposed

to second degree. Because I disagree with the majority that

the minimal facts that it sets forth in its opinion are sufficient

to establish premeditation beyond a reasonable doubt, whatever reasonable inferences may be drawn, I dissent.

It is an elementary principle of our criminal justice system

that in a criminal prosecution the government bears the burden of providing proof that establishes the defendant’s guilt

beyond a reasonable doubt, including the degree of the

offense charged. The rule applies to each element of a crimi686 UNITED STATES v. BEGAY
nal offense. It “gives concrete substance to the presumption

of innocence, [ensures] against unjust convictions, and

[reduces] the risk of factual error in a criminal proceeding.”

Jackson v. Virginia, 443 U.S. 307, 314 (1979) (quoting In re

Winship, 397 U.S. 358, 363 (1970)). The prosecution’s affirmative obligation to produce sufficient evidence of guilt

enforces this rule, by guaranteeing the accused that the government will not convict him by appealing to a jury’s prejudices, or on the basis of its speculations or arbitrary whims.

It is in this light that we examine a conviction to determine

whether any “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” Id. at

319. In this case, the majority’s opinion renders without substance this fundamental protection against arbitrary convictions or convictions based upon mere speculation. 

The government charged Kenderick Begay with firstdegree murder for two simultaneous killings that he carried

out in the early morning of March 28, 2002. In order to convict Begay of first-degree murder the government was

required to prove beyond a reasonable doubt not only that he

intended to kill one of the victims, J.T., and killed him deliberately, or with malice aforethought,1

 but that Begay had premeditated or planned that murder by reflecting on it for some

period of time with a cool mind.2 2 Wayne R. LaFave, Sub1Malice aforethought, a concept distinct from premeditation, is an element of both first- and second-degree murder under the federal murder

statute. See 18 U.S.C. § 1111(a). 

2The record strongly suggests that Begay intended to kill only J.T., who

was struck by six bullets, and not his second victim, O.C., who was killed

by a bullet that struck her only after passing through J.T. Under the federal

murder statute, any murder that results from a premeditated plan to kill is

first-degree murder, regardless of whether the victim was the intended target of the killer’s premeditated plan. 18 U.S.C. § 1111(a). Thus, though

Begay was convicted of two counts of first-degree murder, the relevant

question is whether he intended and premeditated J.T.’s death. See Maj.

Op. at 681 n.5. 

UNITED STATES v. BEGAY 687
stantive Criminal Law § 14.7(a) (2d ed. 2009). It is undisputed that the prosecution presented none of the evidence

traditionally offered to prove premeditation. It presented no

evidence that Begay had planned J.T.’s killing,3 no evidence

that Begay had a motive to kill J.T., no evidence that Begay

had any prior relationship with the victim, no evidence

regarding Begay’s demeanor during the time of the killing,

and no evidence that the manner in which the killing was

committed was particularly calculated or methodical.4See,

e.g., LaFave, supra, § 14.7(a) (listing “planning activity,”

“motive,” and “nature of the killing” as important types of circumstantial evidence for proving premeditation). Instead of

pointing to such traditional sources of proof of premeditation,

the majority relies on four items of evidence that it asserts

supported an inference of premeditation that could have established that element beyond a reasonable doubt in the mind of

a rational finder of fact: (1) after whatever occurred between

Begay and J.T. during their first encounter at the window of

the car in which J.T. was sitting, Begay returned to his adjoining truck and retrieved his rifle; (2) Begay walked between

There is no dispute in this case that the government’s evidence was sufficient to convict the defendant of second-degree murder, the essential elements of which are an unlawful killing, malice aforethought, and intent.

See United States v. Quintero, 21 F. 3d 885, 890 n.3 (9th Cir. 1994); 18

U.S.C. § 1111(a). The only question is whether the government presented

sufficient evidence to establish premeditation, which is the essential element that distinguishes first- and second-degree murder. See Quintero, 21

F. 3d at 890 n.3. 

3

If Begay’s retrieval of his rifle from his truck which was parked nearby

to O.C.’s car and his decision to approach the passenger’s side window

prior to shooting constitute “planning activity,” then it is difficult to imagine any actions in an intentional and deliberate murder (second degree) to

which the term premeditated would not also apply. 

4To the contrary, the record reflects that, despite his practice and experience with the weapon used during the shooting, and despite the fact that

he was only three to four feet away from the victim when firing, Begay

missed a number of times. This suggests, if anything, agitation, excitement, or frenzy, not the “cool mind” of premeditation. 

688 UNITED STATES v. BEGAY
his truck and the victims’ car; (3) Begay returned to the passenger’s side of the victims’ car, presumably to get a clear

shot at J.T.; and (4) Begay told his sister to shut up after the

shooting and did not answer when another passenger asked

him what he had done. 

Even this brief recitation makes clear that none of these

items of evidence on which the prosecution relies supports a

reasonable inference that Begay planned or premeditated

J.T.’s murder—that Begay not only had the opportunity to

deliberate the killing with a cool mind, but that he actually did

so. The evidence presented by the prosecution allows only for

speculation as to that crucial question. If, as the majority’s

opinion suggests, first-degree murder can be established

whenever a defendant simply has enough time to premeditate

or when he seeks a “clearer shot” at a victim or reacts angrily

or ignores a question after the shooting, then the difference

between first- and second-degree murder has effectively

ceased to exist. So, too, if premeditation can be shown by the

defendant’s retrieving from a few feet away a weapon that is

legitimately present at the site of the murder.5 It is difficult to

conceive of any intentional, deliberate murder with malice

aforethought that, based upon the majority’s opinion, would

5The majority does not contend that any inference of premeditation may

be drawn from the fact that on the morning of the murder Begay had under

the front seat of his truck a rifle that he ordinarily used for peaceful purposes. Loren Clark, the government’s only witness to the actual shooting,

testified that he recognized the weapon that was being fired “[b]ecause

[he] used to go shooting with [the defendant] and [they] shot this [particular] rifle a couple of times [before].” The mere fact that an individual has

in his possession a weapon does not support premeditation if the weapon

is one that he routinely carries for use in a legal or nonviolent fashion.

“That [the defendant] used a knife to accomplish the murder is not probative of premeditation and deliberation because he did not procure it specifically for that purpose but rather carried it about with him as a matter of

course.” Austin v. United States, 382 F.2d 129, 139 (D.C. Cir. 1967), overruled on other grounds by United States v. Foster, 783 F.2d 1082, 1085

(D.C. Cir. 1986). Nor, in the state of Montana, is possession in a vehicle

of a rifle that is used for shooting as a form of outdoor activity. 

UNITED STATES v. BEGAY 689
not present one or more of the majority’s hallmarks of premeditation. If the distinction between first- and second-degree

murder is to retain any substance, as it must given the sentencing consequences that flow from it, it is incumbent on the

government not only to prove that the defendant may have

premeditated, but to establish that the defendant actually did

so, and to establish the element of premeditation beyond a

reasonable doubt. See LaFave, supra, § 14.7(a) (“There is no

presumption that the murder is first degree murder; for the

higher degree there must be some affirmative evidence to support a finding that the defendant in fact did premeditate and

deliberate.”); see also Austin, 382 F.2d at 133-36 (providing

historical review of the distinction between first- and seconddegree murder and emphasizing the need for “careful attention to the requirement of premeditation and deliberation”).

While the prosecution may present circumstantial evidence

that would allow a rational finder of fact to draw an inference

that a defendant actually premeditated a murder, no such evidence has been presented by the prosecution in this case, as

a close examination of the four items of evidence relied on by

the majority clearly reveals. 

The first item is that Begay retrieved his rifle from his

truck, which was parked besides or behind the car in which

J.T. was sitting, immediately after an interaction of some sort

between the two young men at the site of the killing. That evidence does not warrant the inference that Begay planned or

otherwise reflected with a cool mind upon the commission of

the murder. The majority does not contend that premeditation

is shown by the fact that Begay was driving with his rifle in

the truck when he arrived at the location where the two vehicles parked near each other—only by the fact that he retrieved

it from his truck after his initial encounter with J.T. The

majority asserts that Begay’s retrieving of the rifle evidenced

premeditation because premeditation can be proven by a

defendant’s “carrying the murder weapon to the scene.” Maj.

Op. at 680. But the notion that Begay’s truck constituted a

separate “scene” from which Begay obtained the weapon after

690 UNITED STATES v. BEGAY
the interaction at the window of the car is wholly contrary to

the record. What little testimony there was on the location of

the two vehicles suggests that they were parked immediately

adjacent to one another: one prosecution witness testified that

the vehicles were parked “side by side” and answered affirmatively when asked whether the “cars were parked relatively

close together”; another testified that Begay had parked his

truck “behind the [victims’] car.” Carrying a weapon to a

murder scene may in some circumstances support an inference of premeditation because it suggests that the defendant

“arrived on the scene already possessed of a calmly planned

and calculated intent to kill.” See Belton v. United States, 382

F.2d 150, 152 (D.C. Cir. 1967). But the logic supporting that

inference does not hold where, as here, the murder occurs at

a place directly adjacent to the location from which the defendant retrieved the weapon. Obtaining the gun from a vehicle

already at the scene does not bear the hallmarks of calculation

and planning. 

It is, of course, possible that, as the majority asserts, Begay

“formed a plan for committing the murders and then set about

carrying it out,” Maj. Op. at 680, and that he did so after

deliberating with a cool mind, while walking from one vehicle

to the other and back. Admittedly, he had the time to do so,

but without knowing what occurred between Begay and J.T.

in their encounter before Begay retrieved his rifle, and without any evidence as to his demeanor, or how he appeared to

be acting when he obtained the weapon and returned to the

victims’ car, there is simply no basis other than speculation

for any rational trier of fact to so conclude beyond a reasonable doubt. Begay may have had a “cool mind” and deliberated on his actions as he walked to his truck to retrieve his

rifle and immediately returned to O.C.’s car, or he may have

been unable to reflect upon his actions in a calm state due to

anger or some other highly emotional reaction to some perceived provocation, or he may, as the government’s chief eyewitness testified, simply have been “pretty drunk” at the time

he retrieved the rifle from his truck. In short, the record is

UNITED STATES v. BEGAY 691
silent on the matter of whether Begay deliberated with a cool

mind before forming the intent to kill J.T. The mere fact that

Begay retrieved a weapon from a vehicle parked “side by

side” with the victims’ car allowed the jury only to speculate

impermissibly as to premeditation, and was without question

not evidence that would allow any reasonable juror to infer

premeditation beyond a reasonable doubt.

The majority next argues that premeditation can be inferred

from Loren Clark’s testimony that Begay walked between his

truck and O.C.’s car. This walking is significant, the majority

asserts, for two reasons. The first is that “there was no evidence that [Begay] was agitated or rushed.” Maj. Op. at 680.

The majority’s belief that a conviction for premeditated murder can be obtained whenever a defendant walks from one

point to another during a killing unless he presents evidence

that he was walking in an “agitated or rushed” manner could

be dismissed as unworthy of consideration were it not so

insidious: it is the prosecution, not the defense, that bears the

burden of proof in a criminal trial. If the government wished

to use Begay’s demeanor as a basis for convicting him of

first-degree murder, it was its burden to present evidence that

Begay was not agitated or disturbed when he walked from one

vehicle to another. At trial, the government did not avail itself

of its opportunity to ask its own witness, Clark, whether

Begay appeared “agitated or rushed,” nor did it present any

other evidence regarding Begay’s demeanor when he walked

from one vehicle to the other. The majority absolves the government of its burden of presenting such evidence, instead

inferring premeditation from the absence of evidence regarding Begay’s demeanor. That there is “no evidence that Begay

was agitated or rushed,” Maj. Op. at 680, is exactly what it

sounds like—no evidence—no evidence that he was agitated

or that he exhibited a cool manner. The majority’s contrary

conclusion contradicts centuries-old principles of American

692 UNITED STATES v. BEGAY
criminal justice, imposing upon murder defendants the burden

of proving they were not calm while committing a murder.6

The majority also asserts that Begay’s walking helps prove

premeditation because it shows “he had enough time to

become fully conscious of his intent to kill and to consider the

killing.” Maj. Op. at 680. But while “enough time” is a necessary condition for establishing premeditation, it is not a sufficient one. If “enough time” to premeditate were all that need

be shown to sustain a first-degree murder conviction, the government could meet the burden of establishing first-degree

murder in almost every murder case, and there would be little

reason to establish two categories of offenses, first- and

second-degree murder, other than to allow the prosecution to

decide as a matter of its own whim or bias which defendants

should be punished for “first-degree” murder and which for

“second-degree,” and in some instances which should be executed and which should be imprisoned. In a country of laws,

6That the government was aware that it had an obligation to establish

the manner in which Begay walked between the two vehicles is evident

from its opening brief on appeal, in which it falsely asserted that Clark testified that he “watched as [the] defendant calmly returned to his truck” to

retrieve the gun and “methodically retrieved the rifle.” Indeed, the government asserted seven times in its brief that the record contains evidence that

Begay’s demeanor was “calm” and asserted seven times that the record

shows Begay was “methodical”; the government also asserted that the

record shows Begay behaved “casually” and “thoughtfully.” However, as

the government finally conceded under persistent questioning at oral argument during the three-judge panel, the record contains no support at all for

any of these characterizations. That the government felt it necessary to

rely on such unfounded assertions in order to attempt to demonstrate the

sufficiency of its premeditation “evidence” demonstrates that it was well

aware that the record did not contain sufficient evidence that Begay acted

coolly and deliberately to sustain a conviction for first-degree murder. Perhaps the government would not have felt compelled to provide these false

characterizations of Begay’s behavior had it known that the majority

would fail to uphold the principle that the government bears the burden of

proof in a criminal trial, and would instead permit an inference that Begay

acted calmly and methodically wherever he failed to affirmatively prove

the opposite. 

UNITED STATES v. BEGAY 693
however, the prosecution must do more than show in a case

such as this that some span of time transpired before a fatal

act occurred. The government must also introduce evidence,

circumstantial or otherwise, supporting the conclusion that the

defendant “did, in fact, reflect” upon the decision to commit

murder and then committed that act with a cool mind. United

States v. Shaw, 701 F.2d 367, 393 (5th Cir. 1983); see also

LaFave, supra, § 14.7(a) (“It is not enough that the defendant

is shown to have had time to premeditate and deliberate. One

must actually premeditate and deliberate . . . .”). That Begay

walked the short distance from his truck to O.C.’s car, and

back, and thus had time to premeditate, cannot establish that

he did premeditate. It therefore cannot logically serve as “sufficient evidence” for a finding of premeditation. See, e.g.,

Hemphill v. United States, 402 F.2d 187, 189 (D.C. Cir. 1968)

(“But the jury may not find premeditation solely from the fact

that defendant had time to premeditate.”); State v. Garcia, 837

P.2d 862, 868 (N.M. 1992) (“We do not dispute the State’s

contention that Garcia had sufficient time to form a deliberate

intention to kill. . . . Garcia certainly could have formed a

deliberate intent during the ten to fifteen minutes while going

from the back yard to the front yard, but nothing in the evidence enabled the jury to infer that this is when he formed the

requisite deliberate intent, or that he ever formed such an

intent.”); see also United States v. Catalan-Roman, 585 F.3d

453, 467 (1st Cir. 2009) (“With respect to premeditation, ‘it

is the fact of deliberation, of second thought[,] that is important.’ ”) (citation omitted).

The third item of evidence that the majority contends supports a finding of premeditation is Clark’s testimony that

Begay “went to the passenger’s side, where [his intended victim] J.T. was sitting” prior to shooting him. This, according

to the majority, supports an inference “that [Begay] did so to

get a clearer shot at J.T.” Indeed it may, but the fact that

Begay wanted a clear shot at J.T. simply establishes that

Begay intended to kill J.T and that he did so deliberately; not

that he had reflected or premeditated upon the killing with a

694 UNITED STATES v. BEGAY
cool mind. Intent and premeditation are, as the majority

acknowledges, separate and distinct elements of first-degree

murder. Both are required. Intent alone will not suffice.7See

United States v. Quintero, 21 F.3d 885, 890 n.3 (9th Cir.

1994); United States v. Free, 841 F.2d 321, 325 (9th Cir.

1988) (distinguishing between “malice aforethought” and premeditation as essential elements of first-degree murder); see

also LaFave, supra, § 14.7(a) (“[T]he defendant must not only

intend to kill but in addition he must premeditate the killing

and deliberate about it.”). While premeditation may be

inferred when “the manner of killing was so particular and

exacting that the defendant must have intentionally killed

according to a preconceived design,” LaFave, supra,

§ 14.7(a), the majority does not contend (nor could it) that this

crime was notably particular or exact. Nor is it otherwise evident how one could reasonably conclude that Begay had premeditated this murder from the mere fact that he sought a

clear shot at his victim. That Begay sought a clear line of

sight of J.T. demonstrates that he intended to kill J.T. But if

there is any “chain of logic,” Maj. Op. at 682, that connects

this evidence of intent to an inference of premeditation, it is

neither discernible from the facts of this case nor from the

majority’s opinion. Nor, of course, is any such “chain of

logic” discernible with respect to any of the other three items

that the majority contends a reasonable fact-finder could conclude would support a finding of premeditation beyond a reasonable doubt. Here, the “chain of logic” is simply a legal

phrase that the majority employs to justify a conclusion that

it has reached, without any explanation of what it means or

why it is applicable to the present case.8

7

Indeed, confusing premeditation with intent is exactly the mistake that

the majority acknowledges the prosecutor made in his closing statement.

See Maj. Op. at 685 (“Intent is not the same thing as premeditation.”).

That “mistake,” however, was far more important than the majority

acknowledges. It may well have caused the jury to return a verdict of firstdegree instead of second-degree murder. 

8The majority’s is not an unusual method of decision making or opinion

writing. There are, in fact, many such legal phrases that judges simply

UNITED STATES v. BEGAY 695
Fourth, the majority argues that the jury could have permissibly inferred that Begay acted with a cool mind from two

related facts: first, that “Begay did not answer when, after the

shooting, Clark asked what he had done,” and second, that

Begay told his sister to shut up after she asked him “What did

you do?” Maj. Op. at 674. This argument starkly illustrates

the insidiousness of the majority’s cavalier willingness to find

an “inference” of premeditation lurking behind every fact pertaining to this crime. Begay can be convicted of premeditated

murder if, when asked what he has done, he responds forcefully; so, too, can he be convicted if he remains silent. Under

this logic, any action Begay took subsequent to the murders

could support a finding of premeditation: if he showed fear,

an inference could be drawn; so too, if he demonstrated a lack

of emotion. This approach not only beggars reason, but it

once again shifts the burden of proof: there is no evidence

regarding Begay’s demeanor when, moments apart, he told

his sister to shut up and failed to respond to Clark; Begay may

have been acting coolly, been in a state of shock, or lost his

composure; the record provides absolutely no indication one

way or the other. The majority interprets the record’s absence

of information as to Begay’s reaction to the shooting as damning to Begay, rather than to the government, which, it once

again appears to forget, bears the burden of presenting evidence that affirmatively proves premeditation. Given the

absence of such evidence, only through pure speculation

could the jury have found Begay to have been “cool” and

deliberative after the murder, rather than impulsive, or in a

state of shock, or an individual who had lost control over his

emotions; and certainly no rational trier of fact could have

looked at the flimsy facts relating to his responses and nonresponses and found that they, along with the other dubious

items of evidence, established beyond a reasonable doubt that

Begay premeditated J.T.’s killing.

append to the statement of the facts before them in order to “explain” their

decisions. This technique is not infrequently employed when judges purport to be evaluating what effect the evidence that a jury did not hear

might have had upon its members had they heard that evidence. 

696 UNITED STATES v. BEGAY
This case ultimately comes down to the simple question of

whether Begay’s retrieving a gun from his truck is sufficient

evidence to establish beyond a reasonable doubt that he premeditated J.T.’s killing. That he walked a brief distance from

vehicle to vehicle for this purpose might show that he had sufficient time to deliberate coolly on the subject, but without

any evidence regarding demeanor or manner, it cannot show

that he in fact did so. The evidence that he tried to get a clean

shot at J.T. rather than a poor one and his answer or lack of

answer to a question about what he had just done have no

arguable evidentiary value, circumstantial or otherwise, whatsoever. Nor, in the end, does the fact that Begay retrieved the

gun from his truck. What the evidence about retrieving the

gun could demonstrate to any rational trier of fact is at most

that Begay might or might not have premeditated J.T.’s murder. It could not show that he deliberated with a cool mind or

that he used the opportunity to develop a plan. Certainly there

is nothing that would allow a juror to infer that he premeditated beyond a reasonable doubt.

The four items of evidence, whether viewed individually or

collectively, are manifestly insufficient to support a conviction of murder in the first degree and would be insufficient

even were there no countervailing evidence in the record. But

there is indeed countervailing evidence that is far more relevant to the question of premeditation than whether, for example, Begay walked the short distance between the car and the

truck or told his sister to shut up after the shooting or failed

to answer Clark’s question. The majority does not even consider the fact that the government’s principal witness, who

provided the bulk of the eyewitness testimony upon which the

prosecution relied, and whom the jury obviously deemed

credible, also testified that Begay was “pretty drunk” at the

time of the shooting, a fact that strongly suggests the absence

of premeditation. See in re Ellis, 356 F.3d 1198, 1219 (9th

Cir. 2004) (en banc) (noting distinction between “whether

defendant committed the murder with deliberation and premeditation, [or] as a result of an impulse[,] or because of

UNITED STATES v. BEGAY 697
alcohol- or drug-induced diminished capacity”); Kane v.

United States, 399 F.2d 730, 736 (9th Cir. 1968) (observing

that intoxication can be “exculpatory” in a first-degree murder

prosecution). By the same token, the government’s witnesses,

who spent the night in question with Begay, reported that they

reacted with shock after he fired into the victims’ vehicle,

suggesting that neither Begay’s demeanor nor his words or

conduct on that night were those of an individual who had

been planning or otherwise premeditating a murder.

The fundamental question here is whether based on the four

items of evidence on which the majority relies, “any rational

trier of facts [could] find guilt beyond a reasonable doubt.”

Jackson, 443 U.S. at 313. Whether any inference drawn from

the evidence is a legitimate inference, or rather simple speculation, must be examined with attention to this fundamental

principle of our criminal justice system. The items relied on

by the majority are all, of course, consistent with the possibility that Begay premeditated J.T.’s murder, or, at the least,

they are not inconsistent with that possibility. However, neither individually nor collectively do these items justify the

inference that the element of premeditation has been

established—that Begay actually planned or premeditated

J.T.’s killing—let alone established that inference beyond a

reasonable doubt. 

The absence of evidence of premeditation is especially

troubling in this case because, as the majority acknowledges,

the government provided the jury with an erroneous statement

of the law of premeditation during its closing argument, telling it that “[Begay] intended to kill the occupants of the vehicle. That’s premeditation.” Maj. Op. at 685. In light of this

wholly erroneous statement of the law on the critical issue

before the jury, and other similar erroneous statements the

prosecution made during its closing argument, the jury may

perhaps be excused for convicting Begay of first-degree murder despite wholly insufficient evidence as to premeditation.

The majority, however, cannot be similarly excused for unrea698 UNITED STATES v. BEGAY
sonably identifying as warranting an “inference” of premeditation the four items of the government’s sparse factual

showing, on which it relies. In sum, there is simply no evidence that Begay reflected upon, planned, or otherwise premeditated J.T.’s killing, and certainly no evidence from which

a rational fact-finder could infer the necessary element of

first-degree murder beyond a reasonable doubt. Surely a conviction for second-degree murder—murder with malice

aforethought—should have been enough. 

For all the above reasons, and more, I dissent. 

UNITED STATES v. BEGAY 699