145 F3d 1342 United States of America v. Gl

145 F.3d 1342

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
G.L., Defendant-Appellant.

No. 97-30228.
D.C. No. CR 96-127-BLG-JDS.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 7, 1998.
Decided May 12, 1998.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

Appeal from the United States District Court for the District of Montana Jack D. Shanstrom, District Judge, Presiding.

2

Before HUG, Chief Judge, REINHARDT, Circuit Judge, and REED,** District Judge.

3

MEMORANDUM*

4

G.L. (hereinafter, "Defendant"), a juvenile and an enrolled member of the Northern Cheyenne tribe, appeals his conviction for involuntary manslaughter, and further appeals his sentence for involuntary manslaughter and three counts of auto theft. We affirm his conviction. We vacate his sentence in a separate published opinion.

BACKGROUND

5

During the early morning of July 20, 1996, Defendant stole three motor vehicles from residences on the Northern Cheyenne Reservation near Lame Deer, Montana. As he was driving off with one automobile, he struck and killed Chase Yellowrobe. The government charged him under the Juvenile Delinquency Act, 18 U.S.C. § 5032, with three counts of theft in violation of 18 U.S.C. § 661, and one count of involuntary manslaughter in violation of 18 U.S.C. § 1112. After a two-day bench trial, the district court on June 5, 1997 held that Defendant would have been found guilty on all counts if charged as an adult, and therefore adjudged him delinquent. Defendant timely appealed his conviction. We have jurisdiction under 28 U.S.C. § 1291, and the district court had jurisdiction under 18 U.S.C. § 1153(a).

DISCUSSION

I. Standard of Review

6

In reviewing a finding of juvenile delinquency, this court must view the evidence against the defendant in a light most favorable to the government to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. U.S. v. Eric B., 86 F.3d 869, 876 (9th Cir.1996).

II. Application

7

Defendant argues that his collision with Mr. Yellowrobe was not reasonably foreseeable and that the government therefore offered insufficient evidence to convict him of involuntary manslaughter. Under existing Ninth Circuit authority, and viewing the evidence in a light most favorable to the government, this argument lacks merit.

8

The accident investigator for the Montana highway patrol testified that at the time Mr. Yellowrobe was struck it was daytime, the weather was clear, and the road was dry, and that Defendant may have been travelling as fast as 94 miles per hour. He also testified that based on the nature of his injuries Mr. Yellowrobe, though not standing at the moment of impact, may have been sitting or kneeling in the road. The government's forensic scientist testified that Defendant's blood alcohol level was 0.10, that 0.10 is the statutory threshold for a presumption of impairment in Montana, and that in the scientist's opinion a 0.08 blood alcohol level makes a driver too impaired to safely operate a car. In short, viewing the evidence in a light most favorable to the government, Defendant was speeding and drunk and hit Mr. Yellowrobe on a clear, dry day while Mr. Yellowrobe was sitting or kneeling in the road.

9

This court has held that reasonable foreseeability is an element of involuntary manslaughter, and that in cases involving automobile accidents the victim's death must have been a "reasonably probable consequence of the defendant's speed or condition or manner of driving." U.S. v. Main, 113 F.3d 1046, 1050 (9th Cir.1997). More importantly for present purposes, the Main court noted that "[d]eath is foreseeably within the risk created" by excessive speed or drunk driving because such conduct creates " 'a reasonable probability' of causing death." Id. at 1049 (quoting Kyles v. Whitley, 514 U.S. 419, 434-35, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). Although Mr. Yellowrobe was not standing in the middle of the road, he was positioned in such a way that a sober person driving at the speed limit could have seen him in time to avoid hitting him. The circumstances were therefore not so unusual that "it is no longer fair to hold the defendant liable." Main, 113 F.3d at 1049. A reasonable trier of fact could find that Mr. Yellowrobe's death fell foreseeably within the risk created by Defendant's conduct.

10

CONVICTION AFFIRMED.

**

Honorable Edward C. Reed, Jr., Senior United States District Judge, District of Nevada, sitting by designation

*

This disposition is not intended for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3