USA v. Gallaher

• Decision Date: 26 October 2010
• Docket Number: No. 09-30193.,09-30193.
• Citation: 624 F.3d 934
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James H. GALLAHER, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

624 F.3d 934

UNITED STATES of America, Plaintiff-Appellee,

v.James H. GALLAHER, Jr., Defendant-Appellant.

No. 09-30193.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted March 5, 2010.

Filed June 2, 2010.

Amended Oct. 26, 2010.

James A. McDevitt, United States Attorney, and Joseph H. Harrington (argued), Assistant United States Attorney, Spokane, WA, for the plaintiff-appellee.

Stephen R. Hormel, Hormel Law Office, L.L.C., Spokane Valley, WA, for the defendant-appellant.

Appeal from the United States District Court for the Eastern District of Washington, Lonny R. Suko, Chief District Judge, Presiding. D.C. No. 2:05-cr-00224-LRS-1.

Before: A. WALLACE TASHIMA, RAYMOND C. FISHER and MARSHA S. BERZON, Circuit Judges.

Opinion by Judge FISHER; Dissent by Judge TASHIMA.

ORDER

The opinion filed June 2, 2010, slip op. 7809, and appearing at 608 F.3d 1109 (9th Cir.2008), is amended as follows:

At slip op. 7820, line 4, the first full paragraph; 608 F.3d at 1114-15, the carryover paragraph, DELETE the following paragraph:

A requirement that tribes opt in to the death penalty-and the unavailability of the death penalty in this particular case-does not reflect a legislative assessment that murder in Indian country is a less serious offense than other murders in federal enclaves. See supra, Section II. Regardless of the nexus to federal jurisdiction, “[i]n a very literal sense, the offense defined [in § 1111(b) ] is still a ‘capital crime’; the statute still authorizes the imposition of the death penalty and Congress has not repealed it.” Manning, 56 F.3d at 1196 (internal quotation marks and citation omitted) (alterations in original). The plain text of § 1111(b) mandates that we continue to categorize first degree murder as a crime punishable by death.

and REPLACE it with the following paragraph:

A requirement that tribes opt in to the death penalty-and the unavailability of the death penalty in this particular case-does not reflect a legislative assessment that murder in Indian country is a less serious offense than other murders in federal enclaves. See supra, Section II. Rather, “punishable by death” is a calibration of the seriousness of the crime as viewed by Congress, not of the punishment that could actually be imposed on the defendant in an individual case. Regardless of the nexus to federal jurisdiction, “[i]n a very literal sense, the offense defined [in § 1111(b) ] is still a ‘capital crime’; the statute still authorizes the imposition of the death penalty and Congress has not repealed it.” Manning, 56 F.3d at 1196 (internal quotation marks and citation omitted) (alterations in original). The plain text of § 1111(b) mandates that we continue to categorize first degree murder as a crime punishable by death.

With this amendment, Judges Fisher and Berzon have voted to deny Gallaher's petition for panel rehearing and petition for rehearing en banc. Judge Tashima has voted to grant the petition for panel rehearing and recommended rehearing en banc.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc, filed June 24, 2010, are DENIED.

No further petitions for rehearing will be permitted.

FISHER, Circuit Judge:

OPINION

The Federal Death Penalty Act of 1994 conditionally eliminated the death penalty for Native American defendants prosecuted under the Major Crimes Act or the General Crimes Act, subject to the penalty being reinstated by a tribe's governing body. See 18 U.S.C. § 3598. In 2005, a federal grand jury indicted defendant-appellant James H. Gallaher, Jr., for first degree murder, more than 14 years after he killed Edwin Pooler on the Colville Indian Reservation in eastern Washington. Because the Confederated Tribes of the Colville Reservation have not reinstated the death penalty, Gallaher argues that he is not subject to the death penalty and thus the five year federal statute of limitations for noncapital crimes applies to his offense. See id. §§ 3281-82. We disagree and hold that first degree murder remains a capital offense, regardless of whether capital punishment can be imposed in a particular case.

I.

In April 1991, Gallaher lived on the Colville Indian Reservation with Jennifer Clark, their baby daughter, W.L., and Edwin Pooler. One day in mid-April, Pooler arrived home in a drunken stupor and urinated on the floor of their shared home. Urine splattered on W.L., and Clark later reported the incident to Gallaher. Gallaher tracked down Pooler at a bar, and the two men quarreled. Pooler returned home, and Gallaher told Pooler's friend L.J. that he was going home “to take care of the problem.” When Gallaher got home, he told Clark to leave. After a brief absence, she returned and saw that Gallaher had Pooler in a “neck hold” and that Pooler had blood around his mouth. Gallaher ordered her out of the house again.

A short time later, Gallaher went to the neighboring home where Clark had been waiting and demanded to borrow her car. L.J. was there as well; Gallaher told him that he had killed Pooler by breaking his neck. Gallaher told L.J. that he had to help him dispose of the body or “he'd be next.” The two men left the body in a nearby woods, and Gallaher and Clark moved to another town that night. Gallaher moved the body by himself a few additional times.

Fourteen years later, in December 2005, a federal grand jury indicted Gallaher for Pooler's murder in violation of §§ 1111(a), 1151 and 1153 of Title 18 of the United States Code. Gallaher soon moved for dismissal based on expiration of the statute of limitations. He argued that the five-year federal statute of limitations for noncapital crimes applied to his first degree murder indictment because he was not eligible for the death penalty under the Federal Death Penalty Act. The Act eliminates capital punishment for certain “person[s] subject to the criminal jurisdiction of an Indian tribal government ... unless the governing body of the tribe has elected” otherwise. 18 U.S.C. § 3598. The district court denied the motion, concluding that first degree murder broadly remains “punishable by death.” Gallaher unsuccessfully petitioned for mandamus and thereafter for certiorari. See Gallaher v. U.S. Dist. Court, No. 06-73909 (9th Cir. Dec. 6, 2006), cert. denied, 549 U.S. 1298, 127 S.Ct. 1869, 167 L.Ed.2d 351 (2007). Eventually he conditionally pled to involuntary manslaughter and timely appealed. We have jurisdiction under 28 U.S.C. § 1291 and review de novo the denial of Gallaher's motion to dismiss. See United States v. Fuller, 531 F.3d 1020, 1024 (9th Cir.2008).

II.

The history of federal criminal jurisdiction over Native American crimes in Indian country is a story of expanding authority over America's “domestic dependent nations,” Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 10, 8 L.Ed. 25 (1831). See Robert N. Clinton, Development of Criminal Jurisdiction over Indian Lands: The Historical Perspective, 17 Ariz. L.Rev. 951, 962 (1975); see also William C. Canby, Jr., American Indian Law in a Nutshell 148-52 (5th ed. 2009). In Ex Parte Crow Dog, the Supreme Court held that federal criminal statutes did not provide jurisdiction over crimes committed “in the Indian country by one Indian against the person or property of another Indian.” 109 U.S. 556, 570-71, 3 S.Ct. 396, 27 L.Ed. 1030 (1883). The Court noted that exercise of federal jurisdiction would “impose upon them the restraints of an external and unknown code” and would try Native Americans “not by their peers, nor by the customs of their people, nor the law of their land....” Id. at 571, 3 S.Ct. 396; see also Johnson & Graham's Lessee v. M'Intosh, 21 U.S. (8 Wheat.) 543, 589, 5 L.Ed. 681 (1823) (noting the distinct “character and habits of the people whose rights have been wrested from them”). Despite these concerns, Congress soon thereafter passed the Major Crimes Act, which placed seven crimes committed by Indians in Indian country under federal jurisdiction. See Act of Mar. 3, 1885, § 9, 23 Stat. 362, 385 (codified as amended at 18 U.S.C. § 1153); see also United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886) (upholding the Major Crimes Act against constitutional attack). “Congress has added other crimes over time,” and in 2006 the number of enumerated offenses reached 15, ranging from murder to “ ‘felony child abuse or neglect.’ ” United States v. Other Medicine, 596 F.3d 677, 680 (9th Cir.2010) (quoting 18 U.S.C. § 1153(a)); see also Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973) (permitting conviction under the Major Crimes Act for lesser included offenses of the enumerated offenses). Federal prosecution of these crimes demonstrates a marked distinction between sovereignty retained by Native American tribes and police power retained by the states. Outside of Indian country, federal enclaves and federal maritime jurisdiction, none of these crimes is subject to federal prosecution, absent an additional nexus to interstate commerce or other federal authority.

In contrast to the expansive reach of criminal jurisdiction, federal law in other contexts has increasingly recognized the sovereignty of native tribes. Most broadly, the Supreme Court has established canons favoring native tribes in both statutory and treaty interpretation. See County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 247, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985). The Court now requires that “[a]mbiguities in federal law [be] construed generously in order to comport with these traditional notions of sovereignty and with the federal policy of encouraging tribal independence.” White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143-44, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980). Similarly, the tribes are increasingly encouraged to play an active role in policing...