United States v. Fryberg
| Decision Date | 21 April 2017 |
| Docket Number | No. 16-30013,16-30013 |
| Citation | 854 F.3d 1126 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Raymond Lee FRYBERG, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John Henry Browne (argued), Law Office of John Henry Browne P.S., Seattle, Washington; Kany M. Levine, The Levine Law Firm PLLC, Seattle, Washington; for Defendant-Appellant.
Bruce Miyake (argued), Assistant United States Attorney; Annette L. Hayes, United States Attorney; United States Attorney's Office, Seattle, Washington; for Plaintiff-Appellee.
Before: Susan P. Graber, Sandra S. Ikuta, and Andrew D. Hurwitz, Circuit Judges.
Defendant Raymond Lee Fryberg, Jr., appeals his conviction for possession of a firearm by a prohibited person, in violation of 18 U.S.C. § 922(g)(8). He argues several grounds for reversal, including the allegedly erroneous admission into evidence of a return of service that the Government used to prove that Defendant had been served with notice of a hearing on a domestic violence protection order. We conclude that the admission of the return of service did not violate either the rule against hearsay or the Confrontation Clause of the Sixth Amendment, and we affirm Defendant's conviction.1
In August 2002, Jamie Gobin sought a domestic violence protection order against Defendant in a Tulalip tribal court near Marysville, Washington.2 On August 19, the court issued a temporary protection order and a notice of hearing concerning a permanent protection order. Attempts to serve Defendant with the temporary protection order and the notice of the hearing were unsuccessful, prompting the tribal court to issue a second temporary order and hearing notice on August 27, setting the hearing for September 10, 2002. The next day, Officer Jesus Echevarria—a tribal police officer and Jamie Gobin's brother-in-law—filed a completed return of service with the tribal court. The return of service reads, in relevant part, as follows: "I served Raymond Lee Fryberg Jr. with the ... Temporary Order for Protection and Notice of Hearing." The return states that service was effected on the evening of August 27 at the "[c]orner of Reuben Shelton Drive [and] Ellison James" Drive.
Defendant did not appear at the September 10 hearing. The tribal court took testimony from Jamie Gobin and her mother and entered a permanent domestic violence protection order. The order, which forbade Defendant from harassing Gobin and their son and from coming within 100 yards of Gobin's residence, was of indefinite duration. Although Tulalip law provides a mechanism by which a person subject to a protection order may seek to have the order modified or dissolved, Defendant never availed himself of that mechanism. He remained subject to the order at all times relevant to this appeal. During that time, he acquired several firearms.
In 2015, the Government filed a criminal complaint alleging that Defendant's possession of a Beretta PX4 Storm handgun violated § 922(g)(8), which prohibits persons who are subject to certain types of domestic violence protection orders from possessing firearms. A grand jury returned a one-count indictment, to which Defendant pleaded not guilty. A grand jury returned a superseding indictment, charging Defendant with six counts of violating § 922(g)(8). The new counts pertained to additional firearms—nine in all—that Defendant had obtained while under the protection order. Defendant again pleaded not guilty.
The case was tried to a jury. Because of Officer Echevarria's death just a month before trial, the Government had to rely on his 2002 return of service to prove that Defendant had been served with notice of the hearing that led to the permanent protection order—an essential element of its case. Defendant filed a pretrial motion in limine to exclude the return of service, arguing that its admission would violate both the rule against hearsay and the Confrontation Clause of the Sixth Amendment. The district court denied that motion.
At trial, Defendant's main strategy was to cast doubt on the veracity of the return of service. During his closing argument, for instance, defense counsel said the following:
That strategy failed, and the jury found Defendant guilty on all six counts of possession of a firearm by a prohibited person. Defendant timely appeals from the resulting judgment.3
In reviewing a district court's evidentiary rulings, "the selection of the applicable standard of review is contextual: The de novo standard applies when issues of law predominate in the district court's evidentiary analysis, and the abuse-of-discretion standard applies when the inquiry is essentially factual." United States v. Mateo-Mendez , 215 F.3d 1039, 1042 (9th Cir. 2000) (internal quotation marks omitted). In reviewing an "essentially factual" ruling for abuse of discretion, "[w]e review ... any underlying factual determinations for clear error." United States v. Whittemore , 776 F.3d 1074, 1077 (9th Cir. 2015).
We review de novo alleged violations of the Confrontation Clause. United States v. Brooks , 772 F.3d 1161, 1167 (9th Cir. 2014).
In order to convict Defendant of violating § 922(g)(8), the Government was required to prove beyond a reasonable doubt that he possessed firearms while "subject to a court order that was issued after a hearing of which [he] received actual notice, and at which [he] had an opportunity to participate." 18 U.S.C. § 922(g)(8)(A). We have described the notice requirement of § 922(g)(8) as a "sub-element" of the offense. United States v. Sanchez , 639 F.3d 1201, 1204 (9th Cir. 2011). Defendant argues that the district court erroneously admitted the key piece of evidence4 that the Government introduced to show that Defendant received actual notice of the hearing on the protection order—the return of service of the hearing notice.5 In particular, Defendant argues that (1) the district court erred in admitting the return of service as a "public record" under Federal Rule of Evidence 803(8) and (2) the admission of the return of service violated the Confrontation Clause of the Sixth Amendment. We address those arguments in turn.
The relevant portion of the return of service amounts to an out-of-court statement by Officer Jesus Echevarria to the effect that, "I served Defendant with notice of the hearing on the protection order." Such a statement is hearsay. Fed. R. Evid. 801(c). The district court held that the return of service was admissible nonetheless under the public records exception to hearsay in Rule 803(8). Specifically, the district court admitted the return of service under Rule 803(8)(A)(ii), which provides that "[a] record or statement of a public office [is admissible] if ... it sets out a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel." Defendant argues that the return of service does not "set[ ] out a matter observed while under a legal duty to report" and that, even if it did, the law enforcement exception should have barred its admission. Those issues are essentially legal in nature, so we review them de novo. Mateo-Mendez , 215 F.3d at 1042. Defendant also argues that he "show[ed] that the source of information or other circumstances" surrounding the return of service "indicate[d] a lack of trustworthiness," such that the return of service should thus have been excluded under Rule 803(8)(B). That issue is essentially factual in nature, and we review the district court's ruling for abuse of discretion. Id.
We have held that a "legal duty to report" within the meaning of Rule 803(8)(A)(ii) may exist even in the absence of "a statute or regulation [that] expressly imposes duties to observe, report, and keep records." United States v. Lopez , 762 F.3d 852, 862 (9th Cir. 2014). The pertinent question is whether the creation and maintenance of the record at issue is "appropriate to the function of the" relevant government office, given "the nature of the responsibilities assigned to" that office. Id. For instance, a "verification of removal"—a document "designed to record the physical removal of [an] alien across the border," id. at 856 —is the type of record that the Department of Homeland Security ("DHS") would be expected to create and maintain in the course of carrying out its duties. Accordingly, a DHS official is "under a legal duty to report" within the meaning of Rule 803(8)(A)(ii) when preparing such a document. Id. at 862.
Here, the tribal court required that Defendant be served with notice of the hearing on the protection order. The return of service was intended to notify the tribal court that service had taken place and, thus, that the hearing on the protection order could proceed. We conclude that the completion of the return of service was "appropriate to the function" of the tribal court system and that, therefore, Officer Echevarria was under a legal duty to report when he completed the return of...
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