First, in United States v. Fryberg, --- F.3d ---, No. 16-30013 (9th Cir. 2017), the Court held that a tribal "return of service," which the prosecutions used
to prove the defendant had been served with notice of a
hearing on a domestic violence protection order, was
admissible under the public record hearsay exception 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 because it was not testimonial.
The issue arose in a prosecution for possession of a firearm by a
prohibited person in violation of 18 U.S.C. § 922(g)(8) (person subject to certain types of domestic violence protection
orders).
At trial, the government admitted a return of service to show the defendant had been served with the protection order. However, the officer who actually served the defendant and completed the return did not testify (he died before trial).
The Court found the return was hearsay but qualified as a public record because completion of the
return was an “appropriate to the function” of the
tribal court system and thus the officer was
under a legal duty to report when he completed it. Moreover, the fact that service had been
effected was a “matter observed.”
The Court further determined the law-enforcement exception did not apply because the return merely recorded the completion
of the largely ministerial task of serving Defendant with
notice of a hearing.
Finally, the Court held the return was not testimonial for purposes of the Confrontation Clause because its primary purpose was to inform the tribal court that
Defendant had been served with notice of the hearing on the
protection order, which enabled the hearing to proceed.
Second, in United States v. Johnson, --- F.3d ---, No. 15-30350 (9th Cir. 2017), the Court clarified that, under the Mandatory Victim Restitution Act, district courts could properly order
restitution for all victims harmed by the defendant’s scheme
to defraud, including those harmed by conduct beyond the
count of conviction.
