Federal Court Holds Prosecution under 18 U.S.C. § 117 for Indian Country D.V. Does Not Require Indian Victim or Perpetrator

Here are the materials in United States v. Unzueta (E.D. Mich.):

18 Magistrate Report

24 US Response

29 Defendant Response

30 DCT Order

Ninth Circuit Reverses Major Crimes Act Conviction on Indian Status Grounds

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.

 

Federal Court Issues Interesting Post-Zepeda Indian Status Decision

Here are the materials in United States v. Loera (D. Ariz.):

7 Loera Opening Brief

16 Loera Revised Opening Brief

24 US Response

25 Reply

26 DCT Order

An excerpt:

Loera does not meet the first two and most important factors of Bruce’s second prong. And while evidence supports finding that he did satisfy the third and fourth Bruce factors, the Government has successfully demonstrated that Loera’s satisfaction of those factors is weak. In the end, accounting for the descending level of importance given to each Bruce factor, and viewing the evidence in the light most favorable to the Government, a rational trier of fact could have found beyond a reasonable doubt that Loera does not qualify as an Indian. See Cruz, 554 F.3d at 844. Accordingly, the Court affirms the decision of the magistrate court below; the exercise of federal jurisdiction over this case was appropriate pursuant to § 1152.

 

US Cert Opposition Brief in Zepeda

Here:

US Cert Opp Brief

An excerpt:

Petitioner contends (Pet. 11-22) that the Ninth Circuit’s definition of an “Indian” for purposes of 18 U.S.C. 1153 violates equal protection. Petitioner further asserts (Pet. 22-23) that the Ninth Circuit’s decision conflicts with a decision from the Utah Supreme Court. Those claims lack merit. The court of appeals’ decision – which follows this Court’s precedent – is fully consistent with the Constitution, and no conflict exists on the question presented. Moreover, this case would be a poor vehicle to consider the meaning of “Indian” in Section 1153 because petitioner qualifies under any conceivable definition, including the one he proposes. Further review is not warranted.

Cert petition is here.

Zepeda v. United States Cert Petition

Here:

Zepeda Cert Petition

Questions presented:

The Indian Major Crimes Act, 18 U.S.C. § 1153, makes it a federal crime for an “Indian” to commit any one of thirteen enumerated acts in “Indian country.” In this case, the en banc Ninth Circuit held that an element of the offense in prosecutions under this statute is proof that the defendant has “Indian blood,” whether or not that blood tie is to a federally recognized tribe. The question presented is:
Whether, as construed by the Ninth Circuit, Section 1153 impermissibly discriminates on the basis of race.
Opinion here. En banc materials here, here, and here. Panel materials and other materials here, here, and here.

Updated Ninth Circuit Briefs in United States v. Alvirez

Here:

Alvirez Supplemental Brief

US Supplemental Brief

The Ninth Circuit panel decided this one way back in 2013, but withdrew the opinion to await the en banc decision in United States v. Zepeda.

Ninth Circuit Sitting En Banc Announced “Indian Status” Test under Major Crimes Act

Here is the opinion in United States v. Zepeda.

From the syllabus:

The en banc court affirmed a defendant’s convictions and sentence under the Indian Major Crimes Act, which authorizes federal jurisdiction over certain crimes committed by Indians in Indian country.

The en banc court held in order to prove Indian status under the IMCA, the government must prove that the defendant (1) has some quantum of Indian blood and (2) is a member of, or is affiliated with, a federally recognized tribe. The court held further that under the IMCA, a defendant must have been an Indian at the time of the charged conduct, and
that, under the second prong, a tribe’s federally recognized status is a question of law to be determined by the trial judge. Overruling United States v. Maggi, 598 F.3d 1073 (9th Cir.
2010), the en banc court held that the federal recognition requirement does not extend to the first prong of the Indian status test. The court held that the evidence at trial was sufficient to support the finding that the defendant was an Indian within the meaning of the IMCA at the time of his crimes.

The en banc court held that the defendant’s sentence was not unreasonable because it was mandated by 18 U.S.C. § 924(c), which required the district court to impose consecutive mandatory minimum sentences on the defendant’s convictions for use of a firearm during a crime of violence.

The en banc court agreed with the three-judge panel’s reasons for rejecting the defendant’s other arguments, and it adopted those reasons as its own.

Concurring in the judgment, Judge Kozinski, joined by Judge Ikuta, wrote that under the majority’s holding, the IMCA is a criminal statute whose application, in violation of equal protection, turns on whether a defendant is of a particular race. Judge Kozinski wrote that he would instead affirm the conviction either by applying the IMCA to all members of federally recognized tribes irrespective of their race, or by holding, consistent with Maggi, that the jury had sufficient evidence to infer that the defendant’s ancestry was from a federally recognized tribe.

Concurring in the judgment, Judge Ikuta, joined by Judge Kozinski, wrote that the court should not continue to define an Indian by the “degree of Indian blood” because this definition disrespects tribal sovereignty and perpetuates the “sorry history” of this method of establishing race-based distinctions.

En banc materials here, here, and here. Panel materials and other materials here, here, and here.

Tenth Circuit Refuses to Vacate Conviction under Indian Status Theory

Here is the opinion in Nowlin v. United States.

An excerpt:

Our case law employs a two-part test to determine who is an “Indian” under § 1153: a person must (1) have “some Indian blood” and (2) be “recognized as an Indian by a tribe or by the federal government.” United States v. Prentiss, 273 F.3d 1277, 1280 (10th Cir. 2001). Mr. Nowlin argues that the first half of this test was not met. But his plea colloquy established that his mother is an enrolled member of the Shoshone tribe. And, as a previous panel recognized in an unrelated case involving Mr. Nowlin, the fact that one of his parents was “clearly identified as an Indian” is enough to satisfy this part of the test. United States v. Nowlin, 555 F. App’x 820, 823 (10th Cir. 2014) (quoting United States v. Maggi, 598 F.3d 1073, 1077 (9th Cir. 2010)) (internal quotation mark omitted).

Briefs later, when we get them.