United States of America v. Robert Darryl War Club

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable David C. Bury, United States District Judge for the
District of Arizona, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT DARRYL WAR CLUB,
Defendant - Appellant.
No. 10-30005
D.C. No. 4:08-cr-00126-SEH-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted November 1, 2010
Portland, Oregon
Before: W. FLETCHER and FISHER, Circuit Judges, and BURY,
District Judge. **
Robert War Club appeals his conviction, after a four-day jury trial, for the
first-degree murder of Richard Green in violation of 18 U.S.C. §§ 1111(a), 1151,
FILED
NOV 18 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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and 1153(a). We have jurisdiction under 28 U.S.C. § 1291. We conclude that by
limiting cross-examination of Green’s brother, the district court precluded War
Club from developing evidence that Green’s brother had a motive to commit the
murder. The court thereby deprived War Club of the “meaningful opportunity to
present a complete defense” guaranteed by the Constitution. Holmes v. South
Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690
(1986)). Because we cannot say that the error was “harmless beyond a reasonable
doubt,” United States v. Boulware, 384 F.3d 794, 808 (9th Cir. 2004) (quoting
Chapman v. California, 386 U.S. 18, 24 (1967)), we vacate the conviction and
remand for a new trial.
At trial, War Club presented the theory that Richard Comes Last committed
the murder at the direction of Green’s brother. To support this defense theory, War
Club established that Comes Last was at the scene on the morning of the murder
because Green had asked him for help inflating a car tire; that Green’s body was
found adjacent to a portable air tank and on top of a hose connected to an air
compressor; and that Comes Last knew the location of a remote control that could
have been used to close the door to the garage where Green was killed. War Club
also established that Comes Last did odd jobs for Green’s brother, whom Comes
Last regarded as his “father.”

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During his opening statement, War Club’s counsel promised to complete the
picture by showing that Green’s brother possessed a motive for the killing:
revenge. Based on a statement given by Green’s brother to a law enforcement
officer, War Club proposed to prove that thirty years before the murder, Green
raped his brother’s girlfriend; that Green’s brother confronted Green with a gun
about the incident; that although Green’s brother subsequently married his
girlfriend, the rape was a source of tension during the marriage; and finally, that
two years before the murder, the marriage ended in divorce due to residual
resentment over the rape. War Club tried to elicit this information during his cross-
examination of Green’s brother, but the district court sustained the government’s
objection to this line of questioning on the grounds of relevance and prejudice.
This was error. As an evidentiary matter, “[f]undamental standards of
relevancy . . . require the admission of testimony which tends to prove that a
person other than the defendant committed the crime that is charged.” United
States v. Crosby, 75 F.3d 1343, 1347 (9th Cir. 1996) (quoting United States v.
Armstrong, 621 F.2d 951, 953 (9th Cir. 1980) (Kennedy, J.)). This is so “[e]ven if
the defense theory is purely speculative,” because “it is the role of the jury to
consider the evidence and determine whether it presents ‘all kinds of fantasy
possibilities’ . . . or whether it presents legitimate alternative theories for how the

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crime occurred.” United States v. Vallejo, 237 F.3d 1008, 1023 (9th Cir. 2001). In
this context, our cases have relied on Wigmore’s admonition that if evidence of
third-party culpability “is in truth calculated to cause the jury to doubt, the court
should not attempt to decide for the jury that this doubt is purely speculative and
fantastic, but should afford the accused every opportunity to create that doubt.” Id.
(quoting 1A J OHN HENRY W IGMORE , EVIDENCE IN TRIALS AT COMMON LAW § 139
(Tillers rev. ed. 1983)); Crosby, 75 F.3d at 1349 (same).
The district court erred by deeming the evidence War Club sought to
develop irrelevant and prejudicial. Although the rape occurred thirty years before
the murder, the court failed to appreciate that the divorce occurred two years before
the murder, and so was neither too distant nor too attenuated to form the basis for a
valid alternative theory of motive. The danger of unfair prejudice was small,
relative to the probative value of the proffered evidence – which was the only
evidence adduced of Green’s brother’s motive. See Crosby, 75 F.3d at 1348 n.5.
As a constitutional matter, a defendant’s right to present a defense – whether
grounded in the Fifth Amendment’s Due Process Clause or the Sixth Amendment’s
Compulsory Process Clause – “includes, ‘at a minimum, . . . the right to put before
a jury evidence that might influence the determination of guilt.’” United States v.
Stever, 603 F.3d 747, 755 (9th Cir. 2010) (quoting Pennsylvania v. Ritchie, 480

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U.S. 39, 56 (1987)). We have identified violations of this right where, for example,
a district court has “declared a range of defense theories off-limits, without
considering in any detail the available evidence it was excluding,” id. at 757;
excluded “key corroborative evidence” for a “central” defense claim contesting the
government’s theory of prosecution, Boulware, 384 F.3d at 808-09; and excluded
evidence refuting the government’s theory of motive, United States v. Whitman,
771 F.2d 1348, 1351 (9th Cir. 1985). Where, as here, a district court excludes
evidence material to the defense on the basis of an erroneous evidentiary ruling,
“due process concerns are still greater because the exclusion is unsupported by any
legitimate state justification.” United States v. Lopez-Alvarez, 970 F.2d 583, 588
(9th Cir. 1992).
The due process violation is not limited to the exclusion of the potentially
exculpatory evidence of the rape and the divorce; the court’s ruling hampered other
aspects of War Club’s defense. For example, War Club cross-examined Comes
Last about whom he phoned first after he learned that Green’s body had been
discovered, 911 or Green’s brother. Comes Last testified at trial that he phoned 911
first, but he had previously told a law enforcement officer the opposite. War Club
sought to argue that a call to Green’s brother before a call to 911 was a warning
from one co-conspirator to another. Without evidence of Green’s brother’s motive,

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however, the jury was not equipped to grasp the significance of the order of the
calls or of Comes Last’s inconsistent statements. See Lunbery v. Hornbeak, 605
F.3d 754, 761-62 (9th Cir. 2009) (had erroneously excluded statement been
admitted, “the remaining pieces of the puzzle would have become more relevant”).
Having found constitutional error, we must reverse unless we are convinced
that the error is harmless beyond a reasonable doubt. The government’s case
against War Club was circumstantial but strong – certainly strong enough to
withstand a challenge to the sufficiency of the evidence. The government presented
testimony that War Club was at Green’s home on the morning of the murder; that
War Club had unusually large amounts of cash in the days immediately after the
murder; and that War Club owned the murder weapon, a red-handled butterfly
knife found next to Green’s body. But “[e]rror cannot be harmless where it
prevents the defendant from providing an evidentiary basis for his defense,” United
States v. Saenz, 179 F.3d 686, 689 (9th Cir. 1999), or where a ruling results in the
exclusion of “crucial” information that “directly contradict[s] the government’s
theory of the case.” Boulware, 384 F.3d at 808. Our cases have likewise refused to
hold similar error harmless in circumstantial cases. See, e.g., Stever, 603 F.3d at
757; Vallejo, 237 F.3d at 1024; Crosby, 75 F.3d at 1347.

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1 Because the issue may arise at a new trial, we note that we find no error in
the district court’s rulings excluding the testimony and the letters of Klaus Richter,
War Club’s graduation photo, and War Club’s door plaque.
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Moreover, in conducting our harmless error analysis, we consider only
properly admitted evidence. Therefore, we do not consider hearsay statements
made by Green to his wife and his brother – improperly introduced by the
government over War Club’s objection, as the government now concedes – in
which Green expressed anxiety about War Club’s repeated attempts to borrow
money. War Club was incorrectly barred from developing evidence of a third
party’s motive while the government was incorrectly permitted to enhance its own
theory of motive.
Comparing the trial that War Club actually had with the trial he should have
had, we conclude that the constitutional error was not harmless beyond a
reasonable doubt. See United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir.
1996) (where “there are a number of errors at trial, ‘a balkanized, issue-by-issue
harmless error review’ is far less effective than analyzing the overall effect of all
the errors in the context of the evidence introduced at trial”). 1
REVERSED AND REMANDED.

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