Here are the materials in Jacobs v. United States (D. S.D.):
DCT Order Denying Habeas Relief
Materials from Mr. Jacobs’ direct appeal of his conviction based on the 1868 Fort Laramie treaty is here.
Major Crimes Act
Perhaps as Many as Three Ninth Circuit Indian Criminal Cases Uncertain as Feds Ponder En Banc Petition in U.S. v. Zepeda
Today, the Ninth Circuit withdrew an opinion affirming a conviction in United States v. Alvirez. The Alvirez materials are here. The Zepeda materials are here. The federal government has until April 18 to file an en banc petition. A third decision that may be implicated as well is United States v. PMB (materials here).
The issue in Zepeda is here:
The panel held that a Certificate of Enrollment in an Indian tribe, entered into evidence through the parties’ stipulation, is insufficient evidence for a rational juror to find beyond a reasonable doubt that a defendant is an Indian for purposes of § 1153, where the government offers no evidence that the defendant’s bloodline is derived from a federally recognized tribe.
Ninth Circuit Reverses Another Conviction under Zepeda (Tribal CDIB Insufficient Evidence of Indian Status)
Here is yesterday’s unpublished order in United States v. PMB.
The Zepeda post is here.
United States v. Sun Bear — CA8 Rejects SORNA Challenge (Major Crimes Act Conviction)
Here is the opinion:
Eighth Circuit to Rehear Major Crimes Act Sexual Offenses Cases to Resolve Intra-Circuit Split
Ninth Circuit Holds Unauthenticated Tribal Membership Card Insufficient for Proving Indian Status under Major Crimes Act
Here are the materials in United States v. Alvirez (opinion here):
From the court’s syllabus:
Reversing 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), the panel held that the district court abused its discretion when it admitted an unauthenticated Certificate of Indian Blood issued by the Colorado River Indian Tribes as evidence that the defendant has tribal or federal government recognition as an Indian. The panel wrote that because Indian tribes are not listed among the entities that may produce self-authenticatingdocuments, the district court abused its discretion in admitting the Certificate pursuant to Fed. R. Evid. 902(1) as a self-authenticating document.
On Federal Juries and American Indian Defendants
Commentators (for example, here and here) have been noting in response to Grassley’s concern that white male perpetrators will not benefit from a jury of their peers in tribal courts that Indian defendants (almost) never stand trial before federal juries with American Indians in the jury box. Let us not forget ASIA Kevin Washburn’s Michigan Law Review article from a few years back that made that perfectly clear. He wrote:
Despite the normative principle of representativeness, Indians tend not to be well represented in federal juries in Indian country cases. Even in states with large Indian populations, Indians remain a very small fraction of the population. As a result, Indians would be expected to have minimal representation in the jury venire. However, the statistics indicate lower numbers than one would expect.
Split Ninth Circuit Orders Federal Prosecutors to Prove Federal Recognition Status of Tribes in Major Crimes Act Prosecutions…
… to a jury beyond a reasonable doubt.
Here are the materials in United States v. Zepeda:
CA9 memorandum (related opinion on other issues)
The court’s summary:
The panel reversed jury convictions under the Major Crimes Act, 18 U.S.C. § 1153, which provides for federal jurisdiction over certain crimes committed by Indians in Indian country.
The panel held that whether a given tribe is federally recognized, as required for jurisdiction under § 1153, is a question of fact for the jury, not a question of law for the court; and rejected the government’s request that this court take judicial notice of the Bureau of Indian Affairs’s list of federally recognized tribes in 2008 and 2010.
The panel held that a Certificate of Enrollment in an Indian tribe, entered into evidence through the parties’ stipulation, is insufficient evidence for a rational juror to find beyond a reasonable doubt that a defendant is an Indian for purposes of § 1153, where the government offers no evidence that the defendant’s bloodline is derived from a federally recognized tribe.
Dissenting, Judge Watford would hold that federal recognition of an Indian tribe is a question of law for the court to resolve.
Ninth Circuit Affirms Holding that Major Crimes Act Juvenile Defendants May Be Tried as an Adult
Here is today’s opinion in United States v. Juvenile Male.
From the court’s summary:
The panel affirmed the district court’s order granting the government’s motion to transfer juvenile proceedings for adult prosecution under 18 U.S.C. § 5032 in a case in which the defendant is charged with second-degree murder and using a firearm during a crime of violence. Agreeing with sister circuits that a psychological evaluation is not a prerequisite to approving a transfer motion, the panel held that the district court did not abuse its discretion in making a finding about the defendant’s intellectual development by relying solely on lay-witness testimony. The panel also held that although the district court did not explicitly address the staff-to-offender ratio or specific counseling programs, the district court did not abuse its discretion in making findings about the treatment programs available at adult and juvenile facilities where the defendant might serve any sentence imposed. The panel wrote that the district court consistently presumed for purposes of the transfer decision that the defendant would be convicted of one or both charges, and that the presumption of guilt for this purpose does not violate the defendant’s due-process rights.
Eighth Circuit Creates Intra-Circuit Conflict –On Same Day — in Major Crimes Act Sexual Assault Cases
Here are the cases:
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.”
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