Criminal

Eighth Circuit Creates Intra-Circuit Conflict –On Same Day — in Major Crimes Act Sexual Assault Cases

Matthew L.M. Fletcher1 Comment

Here are the cases:

United States v. Bruguier

United States v. Rouillard

Here is a blog post from On Brief, Iowa Appellate Blog, that details the conflict. H/t to P.T. and How Appealing.

The conflict:

In United States v. Bruguierand United States v. Rouillard, the defendants were convicted of “knowingly . . . engaging in a sexual act with another person if that other person is–(A) incapable of apprising the nature of the conduct; or (B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act.”   The issue is whether the “knowingly” requirement extends to both (A) and (B)—in other words, must the defendant have known that the person was mentally or physically incapacitated?

The Bruguier panel, Judge Diana Murphy writing, said no: “[T]he ‘most natural grammatical reading’ of the statute suggests that ‘knowingly’ only modifies the surrounding verb, which in this case is the phrase ‘engages in a sexual act.’”

The Rouillard panel, Judge Shepherd writing, said yes: “Knowingly ‘engag[ing] in a sexual act with another person’ is not inherently criminal under federal law, barring some other attendant circumstance”—“we believe the statute is properly read as requiring defendant’s knowledge that the other person was incapacitated.”

Salon: How Abusers Get Away with Targeting Indian Women

Matthew L.M. Fletcher4 Comments

Here.

An excerpt:

“We have serial rapists on the reservation — that are non-Indian — because they know they can get away with it,” said Charon Asetoyer, executive director of the Native American Women’s Health Education Resource Center in Lake Andes, S.D. “Many of these cases just get dropped. Nothing happens. And they know they’re free to hurt again.”

Federal Court Declines to Suppress Evidence Obtained in Search by Cheyenne River Sioux Tribal Police

Matthew L.M. Fletcher

Here are the materials in United States v. Farlee (D. S.D.):

DCT Denying Farlee Motion

Farlee MJ R&R

 

Bob Anderson on PL 280 Retrocession Legislation in Washington State

Matthew L.M. Fletcher

Robert T. Anderson has published “Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280” in the Washington Law Review. HIGHLY RECOMMENDED!

Here is the abstract:

The Public Law 280 legislation was approved by Congress in the face of strenuous Indian opposition and denied consent of the Indian tribes affected by the Act . . . .

The Indian community viewed the passage of Public Law 280 as an added dimension to the dreaded termination policy. Since the inception of its passage the statute has been criticized and opposed by tribal leaders throughout the Nation. The Indians allege that the Act is deficient in that it failed to fund the States who assumed jurisdiction and as a result vacuums of law enforcement have occurred in certain Indian reservations and communities. They contend further that the Act has resulted in complex jurisdictional problems for Federal, State and tribal governments.

S. Comm. on the Interior & Insular Affairs, 94th Cong., Background Rep. on Public Law 280 (Comm. Print 1975) (statement of Sen. Henry M. Jackson, Chairman).

Senator Jackson’s statement accurately described the issues then and now. This Article reviews the legal history of federal-tribal-state relations in the context of Public Law (P.L.) 280 jurisdiction. Washington State has recently taken progressive steps that could serve as the foundation for a national model to remove state jurisdiction as a tribal option. The federal self-determination policy is not advanced by adherence to termination era experiments like P.L. 280. The article concludes that federal legislation should provide for a tribally-driven retrocession model, and makes proposals to that end.

Shinnecock Member Files Cert Petition Challenging Conviction for Improper Shellfish Tags

Matthew L.M. Fletcher

Here is the petition in Smith v. People of the State of New York:

Smith v New York Cert Petition

The question presented:

Whether the statutory bar restricting removal jurisdiction is a separate and distinct removal jurisdiction, and a waivable procedural defect, by the failure to file a motion to remand with the 30 day statutory time limitation provided in 28 U.S.C. § 1447(c)?

 

Ninth Circuit Affirms Conviction for Selling Eagle Parts

Matthew L.M. Fletcher1 Comment

Here are the materials in United States v. Wahchumwah:

CA9 Opinion

Wahchumwah Brief

Amicus Brief

US Brief

The court’s summary:

The panel affirmed in part and reversed in part a criminal judgment in a case in which a jury convicted the defendant of offenses relating to the sale of eagle parts. The panel held that an undercover agent’s warrantless use of a concealed audio-video device in a home into which he has been invited by a suspect does not violate the Fourth Amendment. The panel held that Count 2 charging the defendant with offering to sell Golden Eagle tails, in violation of the Bald and Golden Eagle Protection Act, and Count 3 charging the defendant with the subsequent sale of a Golden Eagle tail, in violation of the Lacey Act, are multiplicitous because the offer to sell is a lesser included offense. The panel held that Count 4 charging the defendant with offering to sell a pair of eagle plumes from a collection of plumes and Count 5 charging him with the subsequent sale of a pair of plumes, both premised on a violation of the Bald and Golden Eagle Protection Act, are likewise multiplicitous. The panel rejected the defendant’s objection to the admission of certain photographs of eagles and other bird parts under Fed. R. Evid. 403. The panel held that the district court did not err under the Confrontation Clause by permitting officers to testify to receiving complaints from unnamed tribal members that the defendant was selling eagle parts, when the complaints were offered not to prove that the defendant was selling eagle parts, but merely to explain why federal agents began investigating him.

I found this portion of the opinion a little odd (not the opinion, but what it describes):

United States Fish and Wildlife Service agents began an undercover investigation of Wahchumwah based on anonymous complaints that he was selling eagle parts. As part of this investigation, Special Agent Robert Romero began developing a rapport with Wahchumwah in April 2008, at a powwow in Missoula, Montana. Romero claimed to have an interest in eagle feathers, and showed Wahchumwah a Golden Eagle tail he had brought with him. Later that evening, Romero bought a set of eagle wings from Wahchumwah for $400.

It just seems odd to use eagle parts for the purpose of entrapment….

Update: A related unpublished opinion in United States v. Jim is here.

Umatilla Tribal Court Hands Down 27 Month Sentence under TLOA’s Enhanced Sentencing Rules

Matthew L.M. Fletcher

Here.

From Brent Leonhard:

Just to clarify a few things about the story:

The info isn’t entirely accurate, but it isn’t too far off. If the BOP doesn’t pick up the tab, the Tribe will have to pay for incarceration and we contract with Umatilla county – not federal prison. Also, I’m fairly sure we are the first to implement felony sentencing (we did it in March of 2011). Finally, this was the third person sentenced to more than a year for a felony offense, but the first to have jail time imposed of over a year for a single offense. (The other two had 3 years imposed but all but 6 months was suspended in one and all but 3 months suspended in the other – with 3 years of probation and the suspended time hanging over their heads).

The big issue is whether the BOP Pilot Project will accept our referral on the 27 month imposed jail sentence so the feds will eat the cost and house him in their system. I’m waiting to hear back on that.

NYTs Op/Ed: Lawlessness in Indian Country

Matthew L.M. Fletcher1 Comment

Here.

An excerpt:

Violence and crime rage unchecked in Indian country, yet the federal government, the primary law enforcer on reservations, is investigating and prosecuting fewer violent felonies, and reducing financing for tribal courts and public-safety programs. That is a scandal.

Tenth Circuit Affirms Dismissal of ICRA Habeas Petition for Failure to Exhaust Tribal Remedies

Matthew L.M. Fletcher2 Comments

Here are the materials in Valenzuela v. Silversmith, arising out of the Tohono O’odham Nation courts:

CA10 Opinion

Valenzuela Opening Brief

TON Answer Brief

Warden Answer Brief

Valenzuela Reply Brief

An excerpt:

Alvin Valenzuela, an enrolled member of the Tohono O’odham Nation (the “Nation”), through counsel, filed a petition for writ of habeas corpus pursuant to 25 U.S.C. § 1303 seeking relief from tribal court convictions and his sentence. While Mr. Valenzuela’s petition was pending in federal district court, he completed his sentence and was released from prison. The district court concluded that Mr. Valenzuela’s claims were moot because of his release. Alternatively, it concluded that Mr. Valenzuela had failed to exhaust his tribal remedies before seeking habeas relief in federal court. Based on these alternative grounds, the district court dismissed Mr. Valenzuela’s § 1303 petition. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm on the ground that Mr. Valenzuela failed to exhaust his tribal court remedies and remand for the district court to dismiss his § 1303 petition without prejudice.

Tribal Justice Newsletter from US Attorney’s Office for the Western District of Oklahoma

Matthew L.M. Fletcher

Here:

Tribal Justice – Issue 2 FINAL