US v. Garcia, No. 11-30348 (7-19-13)(W. Fletcher with Fisher and Quist, Sr. D.J.).

This is an important jury instruction case, especially for homicide charges. The 9th holds that the model 9th Circuit instruction for involuntary manslaughter No. 8.110 is flawed because it permitted the jury to convict him without finding gross negligence. The problem comes in the first prong, requiring that the defendant commit "an unlawful act not amounting to a felony." This gives no guidance to the jury as to the necessary state of mind. Here, the shooting occurred on an Indian Reservation, and the defendant, charged with first degree murder, argued self-defense: that the victim started a fight, and he thought the victim had a weapon, having seen him with one earlier. The jury acquitted on first and second, and convicted on involuntary. The 9th also held that the court erred in precluding evidence of the defendant knowing of the victim's violent past acts, and erred in precluding impeachment of witnesses by a facebook photo showing the victim with a sawed off shotgun.

For those who practice in Indian Country, this case is key in homicide trials.

Congrats to Pete Schweda in the ED Wash for the important win.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/07/19/11-30348.pdf