United States v. Joe Benally

FILED
NOT FOR PUBLICATION
AUG 01 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10452
Plaintiff - Appellee, D.C. No. 3:13-cr-08095-GMS-1
v.
MEMORANDUM*
JOE ARVISO BENALLY,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted April 11, 2016
San Francisco, California
Before: D.W. NELSON, NOONAN, and O’SCANNLAIN, Circuit Judges.
Joe Arviso Benally appeals two counts of conviction arising from the killing
of Carlos Harvey: (1) involuntary manslaughter under 18 U.S.C. §§ 1112 and 1153
and (2) using a firearm in connection with a “crime of violence” under 18 U.S.C.
§ 924(c). We have appellate jurisdiction under 28 U.S.C. § 1291. In a separate
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
opinion, we reverse Benally’s § 924(c) conviction because involuntary
manslaughter is not a “crime of violence.” In this memorandum disposition, we
address the balance of his claims.
1. We affirm Benally’s conviction for involuntary manslaughter. The
district court’s limitations on Benally’s cross-examination of Donovan Levi did not
violate the Confrontation Clause. The various limitations on cross-examination did
not exclude evidence relevant to Benally’s bias defense or did so in a manner that
left sufficient information for the jury to evaluate Donovan’s credibility. See
United States v. Larson, 495 F.3d 1094, 1103 (9th Cir. 2007) (en banc).
The admission of the autopsy photos of the victim’s heart and open chest
cavity did not create a danger of undue prejudice that substantially outweighed
their probative value. See Fed. R. Evid. 403. The photos were probative of how
the victim died and the level of Benally’s intent when the shot occurred. The
expert testimony on the cause of death did not make the photos duplicative because
a visual depiction may be easier to grasp than medical testimony. Similarly, a
stipulation to the cause of death does not relieve the prosecution’s burden to “prove
every element of the crime.” Estelle v. McGuire, 502 U.S. 62, 69 (1991); see Old
Chief v. United States, 519 U.S. 172, 185–89 (1997). While potentially a source of
prejudice, the photos were not so gruesome and horrifying that their probative
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value was substantially outweighed by that danger of prejudice. See United States
v. Boise, 916 F.2d 497, 504 (9th Cir. 1990) (citing United States v. Bowers, 660
F.2d 527, 529–30 (5th Cir. 1981)).
Because the district court did not commit error by limiting Benally’s cross-
examination or by admitting autopsy photos, Benally’s right to a fair trial was not
violated. See United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir. 1993).
2. We vacate the involuntary manslaughter sentence and remand to the
district court for resentencing. When determining the sentence for a predicate
offense, no weapon enhancement can be applied if the defendant is also convicted
of using a firearm in connection with a “crime of violence” under § 924(c). See
United States v. Aquino, 242 F.3d 859, 864–65 (9th Cir. 2001). Having vacated
the “crime of violence” conviction, we must remand to determine the effect, if any,
of the firearm on the sentence for the predicate offense. See United States v.
Handa, 122 F.3d 690 (9th Cir. 1997). Because the significance of the firearm is
the only factor that may change as a result of this disposition, the district court
should only consider whether the firearm’s presence justifies a change in Benally’s
sentence.
3. We vacate the district court’s post-release medication condition and
remand for reconsideration. The district court shall reconsider its decision to
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impose the condition and, if it finds such a condition is necessary, shall make the
requisite factual findings on the record. See United States v. Williams, 356 F.3d
1045, 1055–57 (9th Cir. 2004); United States v. Weber, 451 F.3d 552, 567–69 (9th
Cir. 2006).
Benally’s conviction for involuntary manslaughter is AFFIRMED.
Benally’s sentence for involuntary manslaughter is VACATED and
REMANDED. We VACATE Benally’s post-release medication condition and
REMAND for reconsideration and further factual findings.
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