U.S. v. Houser
| Decision Date | 09 December 1997 |
| Docket Number | No. 96-30083,96-30083 |
| Citation | 130 F.3d 867 |
| Parties | 97 Cal. Daily Op. Serv. 9188, 97 Daily Journal D.A.R. 14,827 UNITED STATES of America, Plaintiff-Appellee, v. Donald HOUSER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stephen R. Hormel, Assistant Federal Public Defender, Spokane, WA, for defendant-appellant.
James M. Peters, Assistant United States Attorney, Boise, ID, for plaintiff-appellee.
Appeal from the United States District Court for the District of Idaho; Edward J. Lodge, District Judge, Presiding. D.C. No. CR-95-00053-01-EJL.
Before: CANBY and TASHIMA, Circuit Judges, and SILVER, * District Judge.
Donald Leonard Houser was convicted by a jury of murder in the second degree, in violation of 18 U.S.C. § 1111, and use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). Houser is a non-Indian; his victim was an Indian. The crime occurred within the Coeur d'Alene Indian Reservation in Idaho.
Houser challenges his conviction on four grounds. He contends that: (1) the district court erred in instructing the jury that it could infer malice aforethought from his use of a deadly weapon; (2) the district court erred in instructing the jury that it could convict him of second-degree murder if it found that he had killed "with extreme disregard for human life"; (3) the district court erred in failing to instruct the jury that, to convict, it must find that Houser acted "willfully"; and (4) Congress lacks the power under the Indian Commerce Clause to proscribe crimes by non-Indians. We reject all of Houser's contentions, and affirm the judgment of the district court.
The facts as shown by the prosecution's evidence were as follows. Houser and the victim, Angela Rae LaSarte, had dated off and on for about two years prior to her death. Houser was frequently violent toward LaSarte, often after bouts of heavy drinking. On the night in question, Houser had been drinking at Bobbi's Bar in Plummer, Idaho, for almost five hours. Houser left the bar briefly about 10:00 p.m. but then returned to have one last drink with his friend, Chris Biles. Houser saw LaSarte sitting in the bar with a friend, Nick Parker. An argument ensued between Houser and Parker, during which Houser attempted to strike Parker with a beer bottle.
Biles then physically removed Houser from the bar, but Houser returned shortly thereafter and became involved in a dispute with Biles. Houser became angry, went outside, and began kicking and punching Biles' truck. Biles came out to stop him. While Biles and Houser were arguing, LaSarte and Parker--as well as most of the bar's patrons--left the bar to observe the argument.
Eventually, Houser walked back to the cab of his truck and most of the patrons re-entered the bar. LaSarte, however, remained outside and watched Houser. Houser took a handgun from his truck, pumped a cartridge into the chamber of the gun, held the gun behind his back, and began walking towards the bar.
LaSarte then began walking toward Houser. They met in the middle of the street for a few seconds; neither spoke to or struggled with the other. After four or five seconds Houser brought his right arm to the left side of LaSarte's neck and shot her. Houser then knelt to the ground beside LaSarte. A spectator, Kim DeLorme, rushed to help LaSarte, and Houser pointed his gun at her. Houser then ran into the bar, but bar patrons subdued and restrained him. LaSarte died later that evening from the gunshot wound.
Houser's view of events at the bar differed in crucial ways from that of the prosecution's witnesses. Houser testified that he got his gun out of the truck so he could scare the patrons that had gathered outside. He stated that he knew the gun was loaded, but did not know that a round was in the firing chamber. He also stated that he did not know the safety was off. He testified that, when he and LaSarte met in the parking lot, she attempted to wrest the gun from him and, in doing so, caused the accidental discharge of the weapon. After she fell and he knelt beside her, he got up and ran into the bar to call 911, but was subdued before he could do so.
Houser was subsequently convicted by a jury of murder in the second degree, in violation of 18 U.S.C. § 1111, and use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). This appeal followed.
We address first the most troublesome issue raised by Houser. The district court gave the following instruction to the jury: 1
If it is shown that the defendant used a deadly weapon in the commission of a homicide, then you may infer, from the use of such weapon, in the absence of mitigating circumstances, the existence of malice aforethought, which is an essential element of the offense.
This inference is not conclusive, but may be considered by you along with all the evidence in the case, or lack of evidence, in determining whether or not the killing charged, if done by the defendant, was done with malice aforethought.
The government points out that this instruction was approved in United States v. Vallez, 653 F.2d 403, 406 (9th Cir.1981), and United States v. Washington, 819 F.2d 221, 226 (9th Cir.1987). Subsequent to the decision of those cases, however, we convened an en banc court to consider the issue of permissive inferences in United States v. Rubio-Villareal, 967 F.2d 294 (9th Cir.1992) (en banc). There we found error in an instruction that permitted the jury to infer knowledge from the facts that cocaine was found in a vehicle and the defendant was the driver. Our en banc opinion set forth the prevailing criticisms of permissive inference instructions: they isolate a single fact in a way that permits the jury to avoid consideration of all of the other evidence in the case bearing on the element in issue. Id. at 298-99. We explained:
[T]he instruction constituted an intrusion on the jury's deliberative process because it effectively told the jury in this case that the judge thought there was sufficient evidence to convict the defendant.
It was undisputed that Rubio-Villareal was the driver and that there was cocaine concealed in the body of the vehicle. The only real issue in the case was whether Rubio-Villareal knew that the vehicle contained cocaine. Thus, the instruction was the equivalent of telling the jury that the judge had denied a defense motion for a directed verdict and explaining why. The instruction implies that the court has "prejudge[d] a conclusion which the jury should reach of its own volition." Morissette [v. United States], 342 U.S. [246,] 275, 72 S.Ct. 240, 255, 96 L.Ed. 288 [1952].
Houser argues with considerable force that the deficiencies in the court's permissive inference instruction in Rubio-Villareal are present in his case. The primary issue in Houser's trial was whether the shooting was accompanied by malice aforethought-either because it was intentional or because it was the result of recklessness with extreme disregard for life. Houser's defense was that the shooting was wholly accidental; that he did not intend to use the gun but that LaSarte grabbed it and tried to wrest it from him, causing an accidental discharge. Houser argues that the instruction prejudicially charted a path to his conviction, as in Rubio-Villareal.
Our court has spoken on the subject since Rubio-Villareal, however. In United States v. Warren, 25 F.3d 890 (9th Cir.1994), we were presented with a permissive inference instruction virtually identical to the one given in Houser's case. After a "fact-intensive review," id. at 899, of the instruction in the light of Rubio-Villareal, we upheld the instruction. We explained that the trial court's statement that the jury was not obligated to make the inference did not save the instruction, but that other, additional instructions did:
[t]he court further stated that the jury "must not read into these instructions ... any suggestion as to what verdict you should return, that is a matter entirely up to you," and emphasized that the jury must consider all evidence relevant to the issue of malice. While giving the inference instruction, the court explained that "explanatory or mitigating circumstances" could negate the inference and reiterated the government's burden as proof beyond a reasonable doubt.
The district court in Houser's case included equivalent admonitions in the course of its instructions. The court informed the jury that it was the sole judge of the facts. It advised the jury no less than three times that it "should not take anything the court may say or do during the trial as indicating what the court thinks of the evidence or what your verdict should be." It told the jury that the choice of a verdict was "a matter entirely up to you." It informed the jury of the government's burden to prove guilt of each of the elements of the crime, including malice, beyond a reasonable doubt. The court also told the jury, both in the permissive inference instruction and elsewhere, that it must consider all of the evidence.
Finally, as in Warren (but not in Rubio-Villareal ), the permissive inference instruction informed the jury that it could infer malice from the use of a deadly weapon "in the absence of mitigating circumstances." Thus the jury was warned that the inference would be inappropriate under certain states of fact. This qualification was given meaning by the instruction that the court gave immediately after the permissive inference instruction. It told the jury that "[a]n accidental killing may be second-degree murder, manslaughter, or no crime at all" and then reiterated the government's burden of proving each element beyond a reasonable doubt.
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