September 27, 2009 By Wallin & Klarich

Why You Need an Experienced Criminal Defense Lawyer on Your Side

The Ninth Circuit Court of Appeals recently overturned a first degree murder conviction in US v. Begay (2009 DJDAR 7955). Begay was convicted of 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 35 years for the firearm convictions. However, the Ninth Circuit overturned the first degree murder convictions on the ground that the government failed to introduce evidence sufficient to show premeditation-an essential element of first degree murder.

The Begay court outlined premeditation as requiring a showing that the defendant had the time to reflect on the decision to commit murder, that he in fact did reflect on that decision, and that he committed the murder with a “cool mind” after having engaged in such reflection. The Begay court further explained that the element of premeditation is typically established through three categories of evidence: how and what the defendant did prior to the actual killing; the defendant’s prior relationship and conduct with the victim; and facts about the nature of the killing.

With the above three categories in mind, the court systematically spoiled the government’s trial court arguments. Citing to the record, the Begay court stated that the government “doesn’t know what that reason [for the crimes] is…” The court further stated that the record contains no hint of information from which any person could determine why theses murders occurred. Similarly, the court referenced the government’s assertion that “there was no evidence of any prior connection between the defendant and the victims” and that, while the evidence of motive or prior relationship between the defendant and the victim may not be necessary to show premeditation, the lack of such evidence certainly does not support a finding that premeditation exists.

The Begay court was especially critical of the government’s assertion that the defendant’s possession of a weapon constituted the necessary proof of premeditation. “The mere fact that an individual has in his possession a weapon does not support premeditation if the weapon is one that he routinely uses for lawful, non-violent purposes.” In this case, the record reflected that Begay routinely used the gun for recreational purposes. The court held that possession of the firearm alone is not enough to support premeditation.

Perhaps even more surprising was the Begay court’s declaration that despite the defendant being “pretty drunk” at the time of the shooting, his practice and experience with the weapon used during the shooting, and the fact that he was only three to four feet away from the victim when firing, the defendant missed a number of times-suggesting agitation, excitement, or frenzy, not the “cool mind” of premeditation. Adding more, the court stated that the violence of multiple wounds, while more than ample to show an intent to kill, cannot by itself support an inference of a calmly calculated plan to kill. The court concluded that any determination as to premeditation would necessarily be speculative in nature.

In a barrage against the government prosecutors, the Begay court scorned the government’s attempt to “mislead” the court and “falsely” stating that the defendant “calmly” and “methodically” carried out the shooting stating that it is “equally likely” that the defendant committed the murders in a “fit of rage or otherwise in the heat of passion.” The court affirmatively stated that a rational observer would not reach the premeditation conclusion beyond a reasonable doubt.

The result, you ask? The court ruled that the government failed to prove its charges of first degree murder and the consecutive life sentences attached to those counts were reversed. Since the government did not request in its initial brief on appeal that judgment be entered against the defendant on the lesser charge of second degree murder, the only convictions left standing at the end of the ruling were the two firearms convictions and the accompanying thirty-five year sentence.

It is important to have an experienced attorney in cases like these. Here, you have four convictions, by jury, with the coinciding life sentences. At the end of the day, thanks to good attorney work, the defendant was awarded the justice due to him. The attorneys at Wallin & Klarich have years of experience dealing with similar cases. Their perseverance and competence in similar actions has lead to equal due justice.

If you or a loved one are facing criminal charges, please contact the experienced California defense attorneys at Wallin & Klarich. Wallin & Klarich has over 30 years of experience handling criminal defense. Let Wallin & Klarich advise you and ensure your rights and freedom are protected under the law. Contact Wallin & Klarich for a consultation at 888-280-6839. Also, visit us online at to learn more about your case and what can be done.

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