United States v. James Garcia ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 23 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30030
Plaintiff-Appellee, D.C. No. 4:19-cr-00007-BMM-1
v.
JAMES MICHAEL GARCIA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted November 17, 2020**
Seattle, Washington
Before: GOULD and FRIEDLAND, Circuit Judges, and BOUGH,*** District
Judge.
James Michael Garcia appeals from the district court’s order denying his
motion to dismiss a count of assault resulting in serious bodily injury in Indian
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
Country, in violation of 18 U.S.C. §§ 113(a)(6), 1153, after he pleaded guilty to
felony child abuse, in violation of 18 U.S.C. § 1153(a) and Mont. Code Ann. § 45-
5-212(1). We have jurisdiction under 28 U.S.C. § 1291. We review de novo, see
United States v. Ziskin, 360 F.3d 934, 943 (9th Cir. 2003), and we affirm.
Garcia was charged in a two-count superseding indictment with abusing his
daughter within the Fort Peck Indian Reservation after the girl’s mother reported
that she heard, over the telephone, Garcia strike their child. Garcia contends that
because he pleaded guilty to Count 2 of the superseding indictment, felony child
abuse, the government’s continued prosecution against him under Count 1, assault
resulting in serious bodily injury, violates the Double Jeopardy Clause of the Fifth
Amendment. The Double Jeopardy Clause protects defendants against multiple
trials and cumulative punishments. See Ohio v. Johnson, 467 U.S. 493, 499
(1984). However, the same act can constitute multiple offenses and be tried and
punished accordingly if each statute requires proof of an additional element that
the other does not. See Blockburger v. United States, 284 U.S. 299, 304 (1932).
Because the Major Crimes Act, 18 U.S.C. § 1153, enables prosecution of
felony child abuse in Indian country, but does not point to a federal definition of
the crime, the government may use the state law of where the offense occurred to
define the elements and punishments. See United States v. Other Medicine, 596
F.3d 677, 681 (9th Cir. 2010). Garcia concedes that felony child abuse in Montana
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has an age requirement and that assault resulting in serious bodily injury does not,
but contends that this is the only difference between the two offenses. However, a
conviction for assault resulting in serious bodily injury requires proof of “serious
bodily injury,” 18 U.S.C. § 113(a)(6), while felony child abuse requires proof of
only “bodily injury,” Mont. Code. Ann. § 45-5-212(1) (referring to Mont. Code.
Ann. § 45-5-201). Garcia acknowledges that, in the context of felony child abuse
here, bodily injury is defined as “physical pain, illness, or an impairment of
physical condition and includes mental illness or impairment.” Mont. Code Ann.
§ 45-2-101(5). Serious bodily injury, however, requires proof of greater harm; it
refers to bodily injury that involves: “a substantial risk of death,” “extreme
physical pain,” “protracted and obvious disfigurement,” or “protracted loss or
impairment of the function of a bodily member, organ, or mental faculty.” 18
U.S.C. § 1365(h)(3).
Garcia concedes that felony child abuse has an age requirement that assault
resulting in serious bodily injury does not. Assault resulting in serious bodily
injury requires proof of greater harm than felony child abuse. Therefore, each
offense requires proof of an element that the other does not, and the district court
properly determined that the Double Jeopardy Clause does not preclude Garcia’s
prosecution for assault resulting in serious bodily injury after he pleaded guilty to
felony child abuse.
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To the extent Garcia argues that the evidence the government would use to
prove serious bodily injury is the same he stipulated to in his guilty plea, the
government does not need to demonstrate separate conduct to avoid violating the
Double Jeopardy Clause. See United States v. Wright, 79 F.3d 112, 114 (9th Cir.
1996).
AFFIRMED.
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