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United States v. Fryberg

United States Court of Appeals, Ninth Circuit

April 21, 2017

United States of America, Plaintiff-Appellee,
v.
Raymond Lee Fryberg, Jr., Defendant-Appellant.

          Argued and Submitted March 8, 2017 Seattle, Washington

         Appeal 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

          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.

         SUMMARY[*]

         Criminal Law

         Affirming 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.

         The panel rejected the defendant's other arguments in a concurrently filed memorandum disposition.

          OPINION

          GRABER, Circuit Judge:

         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]

         FACTUAL AND PROCEDURAL HISTORY

         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:

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 occurred? ...

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