Criminal

Eighth Circuit Affirms Major Crimes Act Conviction; Judge Bright Dissents on Race Discrepancy in Sentencing Issue

Matthew L.M. Fletcher

Here is the opinion in United States v. Lasley.

Briefs:

Lasley Brief

US Brief

An excerpt from Judge Bright’s dissent:

I write to protest the sentencing disparity in this case and the heavy disparity in sentences for other similarly-situated individuals based purely on their race and residence. Appellant-defendant Gordon Lasley (Lasley), an Indian and twenty-six-years old at the time of sentencing, will spend the rest of his life in prison for a conviction of two counts of second-degree murder, but a sentence imposed as though the conviction was for two counts of first-degree murder. This result comes about because our precedent: (1) purports to allow the imposition of the federal sentencing regime to cases under the Major Crimes Act, 18 U.S.C. § 1153 without consideration of sentences imposed and actual time served for similar state-law crimes; and (2) authorizes federal district courts to find a defendant committed a greater offense for the purpose of sentencing when a jury expressly convicts a defendant of the lesser-included offense. The consequence of both precedents is a high probability Lasley will serve a longer sentence than a white citizen because Lasley is an Indian who committed a crime in Indian Country. This disparity resting on Lasley’s status as an Indian is unjust, unfair, and improper for the reasons set forth herein. Thus, Lasley’s sentence should be reversed and remanded.

Eighth Circuit Affirms Indian Country Criminal Conviction

Matthew L.M. Fletcher

Here is the opinion in United States v. Running Shield.

Ninth Circuit Affirms Indian Country Conviction for Strangulation (VAWA)

Matthew L.M. Fletcher

Here is the opinion in United States v. Lamott.

Briefs:

Opening Brief

Reply Brief

US Brief

An excerpt:

In 2013, Congress added the offense of assault by strangulation to the federal assault statute, 18 U.S.C. § 113. The following year a jury convicted Jordan Lamott under this provision for nonfatally strangling his girlfriend. We must decide whether the jury was properly instructed to disregard Lamott’s voluntary intoxication, which requires us to determine whether § 113(a)(8) is a general or specific intent crime. We also must decide whether the court’s instruction to the jury on assault by strangulation violated Lamott’s due process rights. We hold that assault by strangulation under § 113(a)(8) is a general intent crime, and Lamott’s intoxication was therefore irrelevant. We find no plain error in the court’s instruction on the elements of the offense. Accordingly, we affirm Lamott’s conviction.

A lengthier excerpt:

Violence against Native American women in Indian Country has reached alarming rates in the past few decades. See United States v. Bryant, 136 S. Ct. 1954, 1959 (2016). Recent studies suggest that Native American women experience certain violent crimes at two and a half times the national average. Id. (citing Dept. of Justice, Attorney General’s Advisory Committee on American Indian and Alaska Native Children Exposed to Violence, Ending Violence So Children Can Thrive 38 (Nov. 2014)). Particularly pervasive among violent crime is nonfatal strangulation by domestic partners. See Nancy Glass et al., Non-Fatal Strangulation Is an Important Risk Factor for Homicide of Women, 35 J. Emergency Med. 329, 333 (2008).

Nearly half of domestic violence victims report being choked. Id. at 330, 333. Recent studies show that although nonfatal strangulation often leaves few visible signs of injury, it can cause severe physical, neurological, and psychological complications and often forebodes future domestic homicide. See Donald J. Smith, Jr. et al., Frequency and Relationship of Reported Symptomology in Victims of Intimate Partner Violence: The Effect of Multiple Strangulation Attacks, 21 J. Emergency Med. 323, 327–28 (2001); see also Glass, supra, at 329–33 (concluding that women who have been nonfatally strangled are over seven times more likely to become a victim of homicide with the same partner). The recent increased focus on the dangers of nonfatal strangulation confirms what “[s]urvivors of non-fatal strangulation have known for years”: “Many domestic violence offenders and rapists do not strangle their partners to kill them; they strangle them to let them know they can kill them—any time they wish.” Casey Gwinn, Strangulation and the Law, in The Investigation and Prosecution of Strangulation Cases 5, 5 (2013).

These concerns helped motivate the reauthorization in 2013 of the Violence Against Women Act (VAWA). 159 Cong. Rec. S480-02, S488 (daily ed. Feb. 7, 2013) (statement of Sen. Udall). In relevant part, the Act amended the federal assault statute to add a provision directed toward victims of nonfatal strangulation by a domestic partner. Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, 127 Stat. 54. The newly added section (a)(8) criminalizes “[a]ssault of a spouse, intimate partner, or dating partner by strangling, suffocating, or attempting to strangle or suffocate.” 18 U.S.C. § 113(a)(8).

Ninth Circuit Reverses Major Crimes Act Conviction on Indian Status Grounds

Matthew L.M. Fletcher

Here is the opinion in United States v. Alvirez.

The court’s syllabus:

The panel reversed a conviction for assault resulting in serious bodily injury on an Indian reservation, in violation of 18 U.S.C. §§ 1153 and 113(a)(6), and remanded.

The panel held that the district court abused its discretion when it determined that a Certificate of Indian Blood offered into evidence by the government in order to establish Indian status, an essential element of § 1153, was a self-authenticating document under Fed. R. Evid. 902(1). The panel held that this error was not harmless.

The panel held that the district court did not abuse its discretion in denying the defendant’s motion in limine to exclude references to polygraph evidence, where the defendant, who elected not to present his multiple-interrogation defense as a legal strategy, was not denied the opportunity to present his defense.

The panel held that the district court cannot show plain error in the district court’s application of enhancement under U.S.S.G. § 2A2.2 for infliction of permanent or life-threatening injury.

The panel held that double jeopardy does not bar retrial after reversal in this case because the erroneously-admitted Certificate of Indian Blood was nevertheless sufficient evidence to support the conviction.

Briefs here.

 

Ninth Circuit Reverses Major Crimes Act Conviction for Crime Arising on Navajo

Matthew L.M. Fletcher1 Comment

Here is the opinion in United States v. Benally.

An excerpt:

Joe Arviso Benally appeals a jury conviction for involuntary manslaughter under 18 U.S.C. §§ 1112 and 1153 and for using a firearm in connection with a “crime of violence” under 18 U.S.C. § 924(c). In a separate unpublished memorandum disposition, we address Benally’s challenge to the trial proceedings and sentence. In this opinion, we address whether involuntary manslaughter can be considered a “crime of violence” under § 924(c). We hold that involuntary manslaughter is not a “crime of violence” and reverse the § 924(c) count of conviction.

Federal Court Rejects Challenge to Major Crimes Act Conviction, Defendant Argued Justice Thomas’ View of Indian Law

Matthew L.M. Fletcher

Here are the materials in United States v. Bearcomesout (D. Mont.):

26 Motion to Dismiss

30 Response

31 Reply

32 DCT Order

An excerpt:

Citing decades of “schizophrenic” case law, Bearcomesout argues that the law has evolved such that the Northern Cheyenne Tribe’s concept of self-governance and sovereignty has disappeared. As a result, Bearcomesout argues that the Tribe is “subject to the external whim of the United States” which inherently extinguishes the tribe’s sovereignty. Because the Tribe is not sovereign, Bearcomesout argues that her prosecution in Northern Cheyenne Tribal Court was in essence a federal prosecution, in violation of the Double Jeopardy Clause.

The obvious disagreement about the state of tribal sovereignty among Supreme Court justices contained in various dissents and concurrences over the years unquestionably creates uncertainty and doubt about whether the term “independent sovereign” still appropriately applies to Indian tribes. Nevertheless, as recently as June of this year, the Supreme Court reaffirmed the rule from Wheeler and its progeny that tribal sovereignty continues to exist, at least as it relates to Double Jeopardy….

Tribal Issues Advisory Group Public Hearing

Sarah M Donnelly

Today, the United States Sentencing Commission (“Commission”) is holding a public hearing to receive testimony from members of its Tribal Issues Advisory Group (TIAG) on their final report addressing federal sentencing issues relating to American Indian defendants and victims, and to offenses committed in Indian country.

View the hearing agenda.

The Commission has proposed that studying the findings and recommendations contained in the May 2016 report and consideration of any subsequent amendments to the federal sentencing guidelines  be one of its policy priorities for the upcoming amendment year (ending May 1, 2017). The Commission is accepting public comment on all proposed priorities through July 25, 2016.

The hearing will be from 11:00 am to 1:00 pm EST at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle NE, in Suite 2-500 (South Lobby), and will be broadcast live at

here: http://www.ussc.gov/education/videos/public-hearing-july-21-2016

Cert Petition in Kelsey v. Pope

Teresa Walrod2 Comments

Cert Petition regarding the question of the Little River Band’s criminal jurisdiction over off-reservation crimes affecting core tribal government interests.

Questions presented:

1.  Whether Indian tribes can prosecute their members for acts that occur outside the tribe’s territory absent Congressional authorization; and

2. Whether the Band’s retroactive expansion of a narrow and precise jurisdictional statute to encompass an extraterritorial act previously outside its plain terms violates the due process protections of the Indian Civil Rights Act, 25 U.S.C. § 1302(a), and Bouie v. City of Columbia, 378 U.S. 647 (1964).

No. 16-5120 Kelsey Cert Petition

Prior posts on Kelsey v. Pope, including lower court decisions, are here.

 

Eighth Circuit Affirms DV Recidivist Conviction

Matthew L.M. Fletcher

Here is the opinion in United States v. Drapeau.

 

 

Tribal Issues Advisory Group’s Final Report on Impact of Sentencing Guidelines

Sarah M Donnelly1 Comment

Link to final report (PDF) here.

Link to previous coverage here.

Some key recommendations:

      • Adding commentary to guide when tribal court convictions may be considered for a possible upward departure in the defendant’s criminal history category.
      • Establishing a standing advisory group on tribal issues to assist the Commission on changes to the Guidelines impacting American Indian defendants, to advise on and assist in tribal consultation, and to form the basis for a new TIAG when appropriate.
      • Creating a process for the collection of better data on federal court sentencing to allow for study of the protection order provisions of the Guidelines and analysis of sentencing disparity concerns as detailed herein;
      • Considering the recommendations of other working groups regarding juvenile offenders, including possibly collapsing sentencing zones A, B, and C into a single zone.