UNITED STATES of America, Plaintiff-Appellee, v. James H. GALLAHER, Jr., Defendant-Appellant.
No. 00-30068.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 10, 2001. Filed Dec. 26, 2001.
275 F.3d 784
While the majority may be correct in asserting that the evidence of Garceau‘s guilt was not, as the state contends, “overwhelming,” that is not to say that the propensity inference was the key to the State‘s case on the question of Garceau‘s guilt. Indeed, as I have already explained, the key to the state‘s case was the credibility of Garceau‘s drug partners and the inference in no way affected that credibility. Accordingly, I am not persuaded that the instruction was harmful under Brecht. Cf. Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 1920, 150 L.Ed.2d 9 (2001) (concluding that any error in admitting evidence did not have a “substantial and injurious effect” on the verdict under Brecht where the evidence admitted “was by no means the key to the State‘s case“).
III
No one seriously disputes that the jury instruction given in this case violated California evidentiary law. But that alone is not enough to merit federal habeas relief. As we have explained before,
We are not a state supreme court of errors; we do not review questions of state evidence law. On federal habeas we may only consider whether the petitioner‘s conviction violated constitutional norms. . . . [F]ailure to comply with the state‘s rules of evidence is neither a necessary nor a sufficient basis for granting habeas relief. While adherence to state evidentiary rules suggests that the trial was conducted in a procedurally fair manner, it is certainly possible to have a fair trial even when state standards are violated. . . .
Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991) (emphasis added). In this case, the propensity instruction may well have violated Garceau‘s due process rights. But even that is not enough. As a federal habeas petitioner, Garceau must also show actual prejudice. This he has not done; thus, he is not entitled to habeas relief from this court. Because the majority today grants a new trial (or, alternatively, freedom) to a man who (i) was duly convicted under California law of brutally killing two innocent women, and (ii) is not being held in violation of the Constitution of the United States, I dissent.
Joseph H. Harrington, Assistant United States Attorney, Spokane, Washington, for the plaintiff-appellee.
Before: ALARCON, FERNANDEZ, TASHIMA, Circuit Judges.
Opinion by Judge TASHIMA; Partial Concurrence and Partial Dissent by Judge ALARCON.
TASHIMA, Circuit Judge:
James H. Gallaher, Jr., a Colville Indian who resides in the Nespelem district of the Colville Indian Reservation, appeals from the judgment of conviction for the crime of possession of ammunition, after being convicted of a crime punishable by imprisonment for a term exceeding one year, as proscribed by
Gallaher also seeks reversal of his sentence as violative of the same treaty. He further contends that the district court erred in concluding that his 1985 conviction of second-degree assault constitutes a predicate offense under
We affirm the judgment of conviction, but vacate the sentence and remand for resentencing.
I.
On June 21, 1999, Officer Joel Hand of the Colville Tribal Police Services responded to a report of an assault at a campground at Gold Lake in the Colville Indian Reservation. Officer Hand observed that the victim‘s ear had been “ripped apart from his head.” The victim‘s nose was also broken. David Chewea, the victim of the assault, told Officer Hand that Gallaher had bitten his ear off. He also reported that Gallaher was armed with a .280 caliber rifle.
Officer Hand left Chewea in the care of medics and drove out on Gold Lake Road in search of Gallaher. He was instructed not to confront Gallaher until additional police units arrived to assist him. Officer Hand then stopped on the side of the road.
Approximately five minutes later, Gallaher drove by in a Ford pick-up truck. Officer Hand followed the truck until Gallaher activated his right-turn signal and parked on the side of the road. By this time, other police units had arrived. Officer Hand turned on his emergency lights. Gallaher stepped out of the pick-up truck. Officer Hand ordered him to stand with his back to the officers and hold his arms up with his palms facing the officer. Instead, Gallaher continued to stand facing Officer Hand with his hands in his pockets.
After repeated commands to remove his hands from his pockets, Gallaher did so. He moved his arms in an arc. Officer Hand observed Gallaher throw brass ammunition onto the ground. In searching the area, Officer Hand found 7 mm and .280 ammunition on the ground in the area where Gallaher was taken into custody.
Gallaher was indicted for being a felon in possession of a firearm in violation of
During the sentencing proceedings, Gallaher maintained that his 1985 conviction for second-degree assault did not qualify as a violent felony because he had received the 1989 Certificate restoring his “civil rights lost by operation of law upon conviction.” The district court rejected this argument and enhanced his sentence accordingly. It found that he had been convicted of three, prior, violent felonies, including the 1985 assault conviction, and sentenced him under the Armed Career Criminal Act (“ACCA“),
Gallaher filed a timely appeal from the judgment of conviction and his sentence. We have jurisdiction under
II.
Gallaher first contends that the district court lacked subject matter jurisdiction because the Colville Treaty expressly bars the United States from taking away or abridging a Colville Indian‘s right to hunt and fish. In support of this contention, he points to the Colville Treaty‘s provision that “the right to hunt and fish in common with all other persons on lands not allotted to said Indians shall not be taken away or in anywise abridged.” Colville Treaty, May 9, 1891, Art. 6, reprinted in 23 Cong. Rec. 3837-40 (1892); see Antoine v. Washington, 420 U.S. 194, 198-200, 95 S.Ct. 944, 43 L.Ed.2d 129 (1975) (stating that the Colville Treaty was implicitly ratified by a series of authorizing statutes from 1892 to 1911). Gallaher contends that he is exempt from the application of
Federal courts have jurisdiction over enumerated offenses committed by Indians pursuant to the Indian Major Crimes Act,
Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, maiming, a felony under Chapter 109A, incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury ..., an assault against an individual who has not attained the age of 16 years, arson, burglary, robbery, and a felony under section 661 of this title within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.
Gallaher argues that
The Seventh Circuit rejected a similar argument in United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288 (7th Cir. 1974). In that matter, an Indian defendant contended that he was exempt from criminal liability under
[F]ederal laws of general applicability . . . have nothing to do with the regulation of any . . . Indian treaty right. Any effect on the defendant‘s right to hunt is merely incidental, and applicable only to him. The treaty rights allegedly abridged belong to the tribe as a whole and not to any one individual.
Id. The court explained further that “the government has not made the exercise of the treaty right illegal, but rather the defendant‘s own actions have limited him from participating fully in his tribe‘s hunting rights.” Id. We adopted the Seventh Circuit‘s rationale in Burns.
In Burns, the appellant was an Indian employed by the Shoshone-Bannock Tribe as a tribal game warden. 529 F.2d at 116. The appellant and another tribal game warden stopped a party of non-Indians who had trespassed onto the Fort Hall Indian Reservation for the purpose of crossing over onto public land. Id. An argument ensued. Id. The appellant brandished an automatic pistol in his possession. Id. He was convicted of being a felon in unlawful possession of a firearm, formerly codified at
On appeal, the appellant argued that “the trial court had no jurisdiction to try an alleged violation of [the felon-in-possession statute], where committed by an Indian on an Indian reservation.” Id. “[B]y treaty and tribal law,” the defendant contended, “the task of preventing trespass . . . upon the reservation was in the hands of the tribal council. The council could select whomever it wished as game wardens. . . .” Id. We disagreed and held that the appellant was subject to the felon-in-possession statute. Id. at 117. We concluded that “[t]he government [did] not infringe upon the right of the Shoshone-Bannock Tribal council to appoint game wardens and to authorize them to carry firearms. Burns is merely precluded from possessing a firearm because of his previous felony conviction.” Id.
Here, Gallaher lost his right as a Colville Indian to hunt by committing felony crimes. The effect that
III.
Gallaher contends that the district court erred in sentencing him under the ACCA. He argues that his 1985 Washington state conviction for second-degree assault cannot be considered as a predicate violent felony for purposes of enhancing his sentence under
In Herron, the defendant was convicted of the crime of second-degree burglary in a Washington state court. Herron, 45 F.3d at 340. He was sentenced to serve a year and a day. Id. After he was discharged from imprisonment, Herron received a Certificate and Order of Discharge from the State of Washington:
CERTIFICATE & ORDER OF DISCHARGE
This matter having come on regularly before the above entitled court pursuant to
RCW 9.94A.220 , the court having been notified by the Secretary of the Department of Corrections or his designee that the above named defendant has completed the requirements of his/her sentence, and there appearing to be no reason why the defendant should not be discharged, and the court having reviewed the records and file herein, and being fully advised in the premises, Now, Therefore,IT IS HEREBY CERTIFIED that the defendant has completed the requirements of the sentence imposed.
IT IS HEREBY ORDERED that the defendant be DISCHARGED from the confinement and supervision of the Secretary of the Department of Corrections.
IT IS FURTHER ORDERED that the defendant‘s civil rights lost by operation of the law upon conviction be HEREBY RESTORED.
Herron, 45 F.3d at 341 n. 1. While the certificate stated that the rights lost by reason of Herron‘s conviction were restored, it made no reference to the possession of firearms. Id. at 341.2
Subsequent to the date Herron received his certificate, he was indicted for being a felon in possession of a firearm, in violation of
We affirmed in Herron, concluding that the appellant‘s prior state conviction could not be considered as an element of the crime proscribed by
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
Adopting a “plain, literal interpretation” of this statutory language, id. at 343, we looked simply to whether the document restoring Herron‘s civil rights expressly provided for firearms restrictions. Since it
The government argued in Herron that “the certificate will not protect [Herron] from the federal conviction, if other provisions in state law limit the felon‘s right to possess firearms.” Id. at 342. The government noted that Herron was barred from possessing a pistol under Washington law because he had been previously convicted of a “crime of violence.” Id.; see
In rejecting the government‘s argument that we should look to the whole of state law for limitations on the restoration of civil rights, we relied on the following dicta from the Seventh Circuit‘s decision in United States v. Erwin, 902 F.2d 510 (7th Cir. 1990):
The second sentence of § 921(a)(20) is an anti-mousetrapping rule. If the state sends the felon a piece of paper implying that he is no longer “convicted” and that all civil rights have been restored, a reservation in a corner of the state‘s penal code can not be the basis of a federal prosecution. A state must tell the felon point blank that weapons are not kosher.
Herron, 45 F.3d at 343 (quoting Erwin, 902 F.2d at 512-13) (emphasis in the original). We concluded in Herron that it would raise due process concerns if “we should look to the whole of state law for limitations on the restoration of civil rights, even where an unqualified certificate purports to restore them fully.” Id. at 342.
It is quite clear, however, that even though this court adopted the anti-mousetrapping rationale in Herron, that decision plainly turned on a textual interpretation of
[T]he federal statute makes these state statutory qualifications irrelevant as a matter of law. The federal statute tells us what to read to look for qualifications on a felon‘s restoration of civil rights. Congress has told us to read “such restoration.” Herron‘s restoration is his certificate. The certificate does not contain the gun restriction denoted in the federal statute, or any other qualifications which would make the restoration less than substantial.
Id. Application of
Our recent decision in United States v. Laskie, 258 F.3d 1047 (9th Cir. 2001), decided after this case was submitted, also confirms this textual reading of
IT IS THEREFORE ORDERED that the previous finding of Guilty be changed to that of Not Guilty, and the Information herein dismissed.
IT IS FURTHER ORDERED that said Defendant be, and is hereby discharged from supervision and released from all penalties and disabilities resulting from the crime of which he has been convicted.
The defendant was subsequently indicted for being a felon in possession of a firearm, in violation of
We explained that where a felon has had his civil rights restored “by a certificate or other written document, then the express reservation [prohibiting the possession of firearms] must be contained in the document itself” in order to support a prosecution under
Under our decisions in Laskie and Herron, a criminal defendant cannot be charged with a federal crime after receiving a certificate restoring his civil rights that contains no express warning that he cannot possess firearms in spite of the restoration of his civil rights or that his state conviction may constitute an element of a crime if he is found in possession of a weapon.4 This plain reading of the statute applies with
Because the State of Washington provided Gallaher with the identical discharge certificate that it had provided Herron, the same statutory analysis that we applied in Herron applies here. Section 921(a)(20) instructs that a discharged offense is not a “conviction” under the firearm provisions of Chapter 44 when the discharge certificate does not “expressly provide that the person may not ship, transport, possess, or receive firearms.” Since Gallaher‘s 1989 Certificate contains no such express prohibition, his 1985 assault conviction cannot be treated as a “conviction” for purposes of Chapter 44, which includes the ACCA. Therefore, it was error to enhance his sentence under
IV.
Finally, Gallaher contends that the district court abused its discretion in imposing condition 17 as condition of his supervised release. Condition 17 provides that, “the defendant shall not possess any firearms or other dangerous weapons, including but not limited to any bows and arrows or crossbows.” Gallaher asserts that this condition is not reasonably related to the nature and circumstances of the offense for which he was convicted. He notes that his conviction for being a felon in possession of ammunition did not involve the use of a bow, arrow, or a crossbow. Gallaher also contends that condition 17 is unrelated to his personal history or characteristics. He contends that there is no evidence on the record that he has ever used a bow and arrow to harm another human being. He argues that condition 17 “involves greater deprivation of liberty than is reasonably necessary for the purposes set forth in [the] sentencing guideline factors and thus is prohibited by
We review a district court‘s decision to impose a special condition of supervised release for an abuse of discretion. United States v. Pinjuv, 218 F.3d 1125, 1129 (9th Cir.), cert. denied, 531 U.S. 1025, 121 S.Ct. 597, 148 L.Ed.2d 511 (2000). A district court has discretion to order special conditions of supervised release pursuant to
Gallaher was convicted of committing a violent assault, which included ripping the victim‘s ear from his head and breaking his nose. The presentence report disclosed that Gallaher had previously been convicted of second-degree assault while armed with a deadly weapon, fourth-degree assault and resisting arrest, simple assault, second degree robbery, and abusive sexual contact with a minor under the age of twelve.
The record also shows that Gallaher had killed a 500- pound bear by using a 75-pound adjustable Fast Flight graphite bow, and had killed five cougars using his crossbow. This evidence of Gallaher‘s violent present and past behavior and his ability to kill large animals with deadly proficiency is sufficient to demonstrate that he poses a threat to others and that there is a need to protect the public from further crimes involving his use of a dangerous weapon. Moreover, condition 17 is in accord with the Sentencing Guidelines’ recommended special condition of supervised release in cases of this kind “prohibiting the defendant from possessing a firearm or other dangerous weapon.”
CONCLUSION
We conclude that the Colville Treaty did not deprive the district court of subject matter jurisdiction and thus affirm the conviction. We hold, however, that the district court erred in using the 1985 conviction to enhance Gallaher‘s sentence under the ACCA, and therefore vacate the sentence and remand for resentencing. We further hold that the district court‘s imposition of condition 17 as a condition of supervised release was not an abuse of discretion.
Conviction AFFIRMED, sentence VACATED and REMANDED for resentencing.
ALARCON, Circuit Judge, concurring and dissenting:
I concur in Parts I, II, and IV of the opinion.
I respectfully dissent from Part III of the opinion.
We did not consider in Herron or Laskie the discrete question presented in this appeal: Whether Gallaher‘s sentence for being a felon in possession of a firearm can be enhanced based on his 1985 state conviction for second-degree assault in view of the fact that the 1989 Certificate did not expressly state that his prior record could be used to enhance his sentence for later offenses?
The 1989 Certificate that Gallaher received expressly stated that it was being issued “pursuant to
Except as [otherwise] provided in . . . this section, the discharge shall have the effect of restoring all civil rights lost by operation of law upon conviction, and the certificate of discharge shall so state. Nothing in this section prohibits the use of an offender‘s prior record for purposes of determining sentences for later offenses as provided in this chapter. . . . A certificate of discharge is not based on a finding of rehabilitation.
Section 9.94A.220 expressly provides that a certificate and order of discharge does not “prohibit[ ] the use of an offender‘s prior record for purposes of determining sentences for later offenses.”
Gallaher offers no support for the view that incorporation of a prohibition to possess weapons in the 1989 Certificate by reference does not satisfy the “fair notice” requirement of
It is quite true that the 1989 Certificate did not quote the text of
Gallaher argues that this case is controlled by United States v. Palmer, 183 F.3d 1014 (9th Cir. 1999). This court‘s decision in Palmer is readily distinguishable, both factually and legally.
The defendant in Palmer was convicted in 1989 of possession with intent to distribute marijuana. Id. at 1015. In Palmer, federal agents subsequently executed a search warrant on the defendant‘s home. Id. at 1016. Inside, agents discovered a .38 caliber pistol. Id. In a mobile home located on the defendant‘s land, agents also found four handguns, one of which had been stolen, and twelve marijuana plants. Id. The defendant pled guilty to one count of possession of a firearm by a felon in violation of
In calculating the defendant‘s base offense level, the district court in Palmer relied in part on Application Note 10 to
A number of jurisdictions have various procedures pursuant to which previous
convictions may be set aside or the defendant may be pardoned for reasons unrelated to innocence or errors of law, e.g., in order to restore civil rights or to remove the stigma associated with a criminal conviction. Sentences resulting from such convictions are to be counted. However, expunged convictions are not counted. § 4A1.2(j).
Id. (emphasis in original) (quoting
We concluded in Palmer that Application Note 10 was in conflict with the rule contained in
We did not indicate in Palmer the manner in which the state of Washington restored the defendant‘s civil rights, nor did we set forth the text of the words used in the certificate, order, or pardon. Thus, one cannot discern from reading Palmer whether the restoration of civil rights was unqualified. In reciting the pertinent factual and procedural background, we merely stated that “the state of Washington had restored his civil rights for that conviction.” Id. at 1015. Furthermore, in Palmer, we did not cite Herron, decided four years earlier, nor did we discuss the effect of a restoration of civil rights by means of a certificate and order of discharge issued by a Washington court, and the continuing limitation on a defendant‘s civil rights contained in
I would affirm the district court‘s decision. It did not err in using the 1985 conviction to enhance Gallaher‘s sentence under the ACCA.
v.
WARDS COVE PACKING COMPANY, INC., a foreign corporation; Bumble Bee Seafoods, Inc., a domestic corporation; Columbia Wards Fisheries, Defendants-Appellees.
Nos. 99-35950, 99-36212.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Aug. 7, 2000 Filed Dec. 26, 2001
Notes
Factors to be considered in imposing a sentence.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant. . . .