United States v. Raymond Fryberg, Jr.
689 F. App'x 546
| 9th Cir. | 2017Background
- Raymond Lee Fryberg, Jr. was convicted of possession of a firearm by a prohibited person under 18 U.S.C. § 922(g)(8).
- He was subject to an indefinite-duration domestic violence protection order, which formed the basis for the § 922(g)(8) prohibition.
- Fryberg raised multiple challenges on appeal including an as-applied Second Amendment challenge, claims of prejudicial pretrial publicity, cumulative evidentiary error, jury-instruction errors (including a requested entrapment-by-estoppel instruction), and prosecutorial misconduct/Fifth Amendment concerns from closing argument.
- Fryberg did not raise the Second Amendment as-applied argument in the district court, so the appellate court reviewed it for plain error.
- The district court denied motions for change of venue and for a mistrial; it gave curative instructions after the challenged prosecutor remark.
- The Ninth Circuit affirmed the conviction in a non-precedential disposition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. As-applied Second Amendment challenge to § 922(g)(8) | Government: statute validly prohibits firearm possession by persons subject to qualifying protection orders | Fryberg: indefinite protection order functionally imposed a lifetime firearm ban, violating his Second Amendment rights | Reviewed for plain error; no plain or obvious error because law was highly unsettled; affirmed |
| 2. Change of venue for prejudicial publicity | Government: publicity did not create presumed prejudice | Fryberg: adverse publicity prevented a fair trial; requested change of venue | District court did not abuse discretion; not an "extreme situation" and Fryberg abandoned actual-prejudice argument on appeal; affirmed |
| 3. Cumulative evidentiary errors | Government: evidentiary rulings were within discretion and harmless cumulatively | Fryberg: multiple evidentiary rulings together deprived him of a fair trial | Most rulings within discretion; any abuse had no effect on verdict even cumulatively; affirmed |
| 4. Jury instructions and entrapment-by-estoppel | Government: instructions adequately guided jury; no factual basis for entrapment-by-estoppel | Fryberg: combined instructions confused jury and court erred by refusing entrapment-by-estoppel instruction | Instructions as a whole adequate; no factual foundation for entrapment-by-estoppel; affirmed |
| 5. Prosecutorial misconduct and Fifth Amendment | Government: closing remark did not comment on defendant's silence and any error was cured by instruction | Fryberg: prosecutor's remark infringed Fifth Amendment and warranted mistrial | De novo review: remark did not call attention to defendant's silence; abuse-of-discretion review: court did not abuse discretion—curative instruction sufficed and remark unlikely to affect verdict; affirmed |
Key Cases Cited
- United States v. Kilbride, 584 F.3d 1240 (9th Cir. 2009) (no plain error where law on issue was highly unsettled)
- United States v. Croft, 124 F.3d 1109 (9th Cir. 1997) (standard for presumed prejudice from pretrial publicity)
- United States v. Loya, 807 F.2d 1483 (9th Cir. 1987) (failure to develop argument on appeal constitutes abandonment)
- United States v. Morales, 108 F.3d 1031 (9th Cir. 1997) (standard for cumulative-error review)
- Stoker v. United States, 587 F.2d 438 (9th Cir. 1978) (instructions judged as a whole)
- United States v. Gomez-Osorio, 957 F.2d 636 (9th Cir. 1992) (entrapment-by-estoppel requires factual foundation)
- United States v. Mares, 940 F.2d 455 (9th Cir. 1991) (Fifth Amendment review for comments on defendant's silence)
- United States v. Pineda-Doval, 614 F.3d 1019 (9th Cir. 2010) (standard for reviewing alleged prosecutorial misconduct)
- United States v. Sarkisian, 197 F.3d 966 (9th Cir. 1999) (defendant must show misconduct probably affected verdict)
- United States v. Cardenas-Mendoza, 579 F.3d 1024 (9th Cir. 2009) (curative instruction may obviate impact of improper statements)