and Submitted March 8, 2017 Seattle, Washington
from the United States District Court for the Western
District of Washington, D.C. No. 2:15-cr-00109-JLR-1 James L.
Robart, District Judge, Presiding
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.
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.
a conviction for possession of a firearm by a prohibited
person in violation of 18 U.S.C. § 922(g)(8), the panel
held that a return of service that the Government used to
prove that the defendant had been served with notice of a
hearing on a domestic violence protection order was
admissible under the public record exception to hearsay in
Fed.R.Evid. 803(8)(A)(ii), and that admission of the return
of service did not violate the defendant's rights under
the Confrontation Clause of the Sixth Amendment.
panel rejected the defendant's other arguments in a
concurrently filed memorandum disposition.
GRABER, Circuit Judge:
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
AND PROCEDURAL HISTORY
August 2002, Jamie Gobin sought a domestic violence
protection order against Defendant in a Tulalip tribal court
near Marysville, Washington. 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.
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.
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.
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.
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:
You heard Heather Gobin[, who is Jamie Gobin's sister and
was Jesus Echevarria's wife in 2002, ] testify that she
told Jesus [that serving Defendant] was the most important
thing to her in her life right now. So would that bring
questions to your mind as to whether the government has
proven beyond a reasonable doubt that that service actually