Criminal – Page 125 – Turtle Talk

DOJ Issues Proposed Rule on Tribal Law and Order Act Assumption of Criminal Jurisdiction by Tribes in PL280 States

May 23, 2011Matthew L.M. Fletcher

Sixth Circuit Affirms Conviction and Restitution in Theft of Ontonagon Reservation Timber

May 23, 2011May 23, 2011Matthew L.M. Fletcher

Here is the opinion in United States v. Genschow.

The part of the opinion affirming restitution for a higher than market value of the timber is interesting:

Tribal land similarly holds unique value in that its pristine, natural condition allow tribes to partake in and to preserve tribal traditions. See Letter from Warren C. Swartz, President, KBIC, to U.S. Probation Office (July 1, 2009). Any court’s attempt to transform somehow this value into an actual market figure would most certainly be difficult and unreliable. Because we conclude the Eleventh Circuit’s analysis in Shugart was persuasive, we hereby adopt its rule and conclude that when destroyed property is unique or lacks an active market such that the actual cash value is unreliable or unavailable, using replacement value as a measure for restitution is proper under the MVRA. We therefore hold that the district court did not abuse its discretion in awarding restitution.

And the briefs:

Genschow Brief

Appellee Brief-Genschow

Genschow Reply

And, finally, the lower court opinion.

Split Wisconsin Supreme Court Affirms Life Without Parole for 14-Year-Old Member of Menominee Tribe

May 23, 2011May 22, 2011Matthew L.M. Fletcher

Here are the remarkable opinions: 0520supremecourt.

Possibly the most remarkable aspect of the majority opinion is the citation to numerous social science studies strongly advocating against prison time for juveniles, as well as a citation to an Amnesty International report criticizing American states for imposing such long sentences on children.

Another interesting aspect of the majority opinion is the lengthy quotations to the trial judge, speaking to the defendant:

I find it incredibly interesting and somewhat significant that not only am I being asked to impose a sentence in this matter, which is my obligation and my responsibility, but I’m being asked to release a soul. I have to comment on that because that’s an interesting clash of cultures, and it’s what we’re all about as a people. We have to deal with those cultures and those clashes as positively as we can.

And everything I know about you, Omer, and everything I’ve gleaned about you from your——from the information that’s been provided to me, you dealt with those things [o]ppositionally. You weren’t willing to let those cultures and those different ideas intermingle. It had to be your way or no way at all. That’s too bad. And it’s that attitude that you’re going to have to change. . . .

I would hope that you[] turn to spirituality. Native American spirituality gives you something to build on in that regard. It had better because I can tell you right now if your attitude and your ruthlessness and the perception that you have of your relationship to the community in which you are going to find yourself continues as it is, you’re in for a real tough ride.

If I read the opinion correctly, this lecture was given to a 16-year-old.

State of Washington v. Comenout Briefs

May 17, 2011May 15, 2011Matthew L.M. Fletcher3 Comments

The Washington Supreme Court soon will decide whether the state has jurisdiction over alleged cigarette trafficking crimes committed by tribal members on Quinault Reservation land. Here are the materials:

85067-4 – State v. Robert Comenout, Jr. and Robert Comenout, Sr.
Hearing Date – 06/30/2011

D.C. Circuit Affirms Convictions of David Safavian (Abramoff Associate)

May 14, 2011May 13, 2011Matthew L.M. Fletcher

Here is the opinion.

Hannahville Indian Community Amicus Brief in State v. Collins & Mason

May 13, 2011May 12, 2011Matthew L.M. Fletcher1 Comment

Here:

Hannahville Amicus Brief

Other materials are here.

Ninth Circuit Decides U.S. v. Tsosie — Vacates Restitution Order in Sentence

May 11, 2011Matthew L.M. Fletcher

Here is the opinion.

An excerpt:

Michael Tsosie entered into a plea agreement with the government and pleaded guilty to one count of abusive sexual contact in violation of 18 U.S.C. § 2244(a)(1). Pursuant to the plea agreement, the District Court sentenced Tsosie to eighteen months of imprisonment, a sentence well below the Guidelines range of 97 to 121 months. See Fed. R. Crim. P. 11(c)(1)(C). At the sentencing hearing, the victim’s counsel urged the District Court to order Tsosie to pay $31,994 in restitution to the victim’s mother to cover costs she incurred in making a series of trips between her home and the victim’s boarding school, 150 miles away. The District Court ordered the restitution.

Tsosie appeals the restitution order, arguing (1) that the mother’s travel expenses were not “incurred by the victim” and were therefore not subject to restitution under the applicable statute, and, in the alternative, (2) that the restitution award was issued in violation of the procedural and evidentiary requirements of 18 U.S.C. § 3664. We agree with the second but not the first of these arguments. We also hold that Tsosie has not waived his right to appeal the restitution order.

Judge Bea partially dissented, writing:

In Part IV, however, the majority holds the district court erred in awarding restitution based on a detailed spreadsheet from the victim’s mother to which the defendant never objected, save for a vague statement by defense counsel that “sufficient evidence ha[d] [not] been provided.” To this holding, I respectfully dissent.

Tenth Circuit Rejects Constitutional Challenge to SORNA (Underlying Major Crimes Act Conviction)

May 2, 2011Matthew L.M. Fletcher

Here is today’s opinion in United States v. Yelloweagle.

An excerpt:

Alden Yelloweagle, the appellant here, was previously convicted of a federal sex offense. When he failed to register as required, he was indicted by federal authorities under the enforcement provision. Mr. Yelloweagle moved to dismiss the indictment for various reasons. Two of the reasons he offered are relevant here. First, he contended that no provision of the Constitution authorizes Congress to require all sex offenders to register. Accordingly, Mr. Yelloweagle
argued, he could not be punished for failing to comply with the requirement. Second, even if the registration requirement was valid, Mr. Yelloweagle contended that the criminal enforcement provision also lacked a jurisdictional
basis and therefore was unconstitutional. The district court denied the motion to dismiss.

In his opening brief on appeal, Mr. Yelloweagle makes no mention of the first argument regarding the registration requirement; he focuses only on the claim that Congress lacks the power to criminalize the failure to register under the
enforcement provision. The government argues that this tactical shift dooms Mr. Yelloweagle’s appeal, for if the registration requirement is presumed to be constitutional, then the criminal provision is valid under the Necessary and Proper Clause. See U.S. Const. art. I, § 8, cl. 18. We agree.

Eighth Circuit Rejects Challenge to Federal Prosecution Based on 1868 Treaty of Fort Laramie

May 2, 2011Matthew L.M. Fletcher2 Comments

Here is the opinion in United States v. Jacobs: United States v. Jacobs CA8 Opinion.

The court’s syllabus:

Argument that the government’s failure to comply with the provisions of the Fort Laramie Treaty deprived the district court of criminal jurisdiction rejected; even if Articles I and V of the treaty could reasonably be construed as establishing a jurisdictional requirement at the time the Treaty was executed, Congress’s subsequent grant of citizenship to the Indians makes them subject to all restrictions to which any citizen is subject and is evidence of a clear indication to abrogate any contrary treaty provisions.

And the briefs are here.