U.S. v. Gallaher, No. 09-30193 (5-19-10) (Fisher with Berzon; dissent by Tashima). Is a capital crime a capital crime for statute of limitations purposes if the defendant cannot jurisdictionally get the death penalty? "Yes," holds the majority, in an Indian Major Crimes Act prosecution under 18 U.S.C. 1153. The defendant chocked the victim in 1991 after the victim had earlier urinated in the defendant's shared house. The defendant was indicted on first degree murder 14 years later, in 2005. The statute of limitations under 18 U.S.C. 3282 is five years unless otherwise explicitly stated otherwise. Under 3281, there is no statute of limitations if the offense is punishable by death. Congress enacted the federal death penalty in 1994, and delegated to Indian tribes an "opt in" provision for those eligible offenses occurring under the Major Crimes Act. The tribe in question here -- the Confederated Tribes of the Colville Reservation -- has not opted in (only one tribe has, the Sac and Fox). The defendant plead to involuntary manslaughter, but conditionally appealed the statute of limitations issue. The 9th reasoned that "capital offense" denotes the seriousness of the offense, and just because capital punishment cannot be imposed, it does not mean that the offense cannot be categorized as capital. This was the precedent for bail determinationsin so catagorized capital offenses after Furman imposed a moratorium on capital offenses. Moreover, the plain text of 18 U.S.C. 1111 states that first degree murder may be punishable by death, and so the offense should be so categorized, even if there is a jurisdictional bar. Policy matters also weigh in finding no statute of limitations, because the tribes should not be forced to decide between opting in to get the no limitations period and the death penalty, to which they are opposed. States do not have limitations periods for first degree murder, and so to put the tribes on equal footing with the states, and to harmonize criminal justice among the jurisdictions, there should be limitations period. The bottom line: although there is a jurisdictional bar to the death penalty under the Major Crimes Act here, first degree murder is still punishable by the death penalty, and so there is no limitations period. Tashima, dissenting, argues that since the possibility of the death penalty is not available jurisdictionally, the offense is not punishable by death, and hence there should be a five year statute of limitations. This is a part of the delegation responsibility.