United States of America, Plaintiff-appellee, v. Norman Dean Yazzie, Defendant-appellant, 145 F.3d 1343 (9th Cir. 1998)

Norman Dean Yazzie appeals his jury conviction and sentence for first degree murder (18 U.S.C. §§ 1153 & 1111), assault with intent to commit murder (18 U.S.C. §§ 1153 & 113(a) (1)); use of firearm in a crime of violence (18 U.S.C. § 924(c)), attempted arson of a dwelling (18 U.S.C. §§ 1153 & 81), and assault of a federal officer (18 U.S.C. § 111). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Yazzie contends that the district court erred by failing to strike a potential juror from the jury pool because she was exempt from service under 28 U.S.C. § 1863(b) (6). Even if we were to assume the district court's failure to strike the potential juror was error, reversal is not warranted. The record shows that the venireperson in question did not serve as a juror in this case and Yazzie has failed to allege that any separate constitutional violation occurred. See United States v. Duque, 62 F.3d 1146, 1152 (9th Cir. 1995).

Yazzie next contends that the trial court erred by limiting the testimony of his expert witness, Dr. Hammerschlag, under Federal Rule of Evidence 704(b). Our review of the record discloses neither an abuse of discretion nor any manifest error. See United States v. Lewis, 837 F.2d 415, 418 (9th Cir. 1988).

Dr. Hammerschlag was permitted to testify that Yazzie suffered from acute dissociative disorder as well as the cultural syndrome of amok and was allowed to describe in detail the characteristics and effects of these conditions. The court, however, sustained the government's objection when the defense sought further explanation on what specific role amok played on the day of the murders and how it related to "the way Norman Yazzie was" on the day of the murders. This approach comported fully with the requirements of rule 704(b). See Fed. R. Evid. Rule 704(b); United States v. Juvenile Male, 864 F.2d 641, 647-48 (9th Cir. 1988) (court properly refused to allow question concerning defendant's state of mind); see also United States v. Webb, 115 F.3d 711, 716 (9th Cir.), cert. denied, 118 S. Ct. 429 (1997) (noting that rule 704 precludes questions regarding a defendant's intent or knowledge).¹ 

Finally, Yazzie contends that the district court's imposition of consecutive sentences pursuant to 18 U.S.C. 924(c) was improper because his conduct fell within the more specific terms of section 924(j). However, section 924(j) is a sentencing enhancement provision that extends the maximum term for a section 924(c) violation when death results; it neither alters nor modifies the requirement that the sentences be imposed consecutively. See 18 U.S.C. § 924(j).

AFFIRMED.