                                                                            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                           NOT FOR PUBLICATION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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