United States v. Steven Kilty ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50351
Plaintiff-Appellee, D.C. No.
5:16-cr-00024-JGB-1
v.
STEVEN KILTY, MEMORANDUM*
Defendant-Appellant.
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.
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.
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(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
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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
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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)].”
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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.6
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.
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