Federal Defender Positioning United States v. Drapeau to Force Circuit Split over Use of Prior Uncounseled Tribal Court Convictions in Federal Sentencing Enhancement

Here are the briefs in United States v. Drapeau:

Drapeau Opening Brief

US Appellee Brief

Drapeau Reply

An excerpt:

Santana Drapeau was convicted of two counts of domestic assault by an habitual offender. In support of those charges the United States offered evidence of Drapeau’s three prior domestic abuse convictions in Crow Creek Tribal Court. In each instance Drapeau entered a no contest plea; in two of the three he did so without a lawyer. Over Drapeau’s objection under Federal Rules of Evidence 402, 403, and 404, the District Court admitted testimony about the underlying facts giving rise to those convictions. The District Court admitted that evidence based on a flawed understanding of whether the court or the jury decided what was a qualifying predicate offense under 18 U.S.C. § 117.
The District Court denied Drapeau’s motion for judgment of acquittal based on the use of no contest pleas obtained without counsel as qualifying predicate offenses. Drapeau acknowledges that this issue is controlled by United States v. Cavanaugh, 643 F.3d 592 (8th Cir. 2011), but presents it here in order to preserve it for review by this Court en banc and through petition for writ of certiorari.

We’ve commented on this issue extensively here and here. Right now, there is no circuit split as both the Eighth and Tenth Circuits have allowed use of the tribal court convictions under 18 U.S.C. § 117, a habitual offender statute. The cases are Cavanaugh and ShavanauxThere’s a Ninth Circuit case from the 1980s — United States v. Ant (882_F.2d_1389) — that is in disagreement with these cases but in a different context (confessions).

Ah, there is a clean split that I forgot about! United States v. Bryant in the CA9.

A case worthy of watching.

I wrote a short paper about these issues more generally a while back: Sovereign Comity