Federal Court Denies Motion to Remand Serial DV Case to Tribal Court

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

DCT Order Denying Motion

Pego Indictment

Pego Superceding Indictment

US Opposition to Pego Motion


Lomas v. Hedgpeth Cert Petition: Challenge to Conviction Based on Search at Morongo Gaming Operation

Here is the petition:

Lomas Cert Petition

The question presented:

Whether the Ninth Circuit incorrectly denied Petitioner a Certificate of Appealability, pursuant to 28 U.S.C. § 2253(c), on his Sixth Amendment claim that his trial counsel rendered ineffective assistance of counsel by failing to file a Motion to Dismiss and/or Suppress pursuant to his Fourth Amendment right to be free from an unreasonable search and seizure on the Morongo Band of Mission Indians’ Reservation’s protected land?

No chance for a grant here.


Federal Court Refuses to Suppress Statements Made to FBI under Advice of Tribal Court Lay Advocate

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

Chase Alone Magistrate R&R

Chase Alone Objection

DCT Order on Chase Alone R&R

Apparently under the Red Bird case, a tribal lay advocate is not “counsel” under the Fifth and Sixth Amendments, so any statements made to the FBI after a tribal criminal defendant is represented by a lay advocate are not required to be suppressed.

Shavanaux Brief in Appeal of Dismissal of Federal Indictment Using Uncounseled Prior Tribal Court Convictions

Important case to watch. The appellant brief and lower court materials are posted here.

The appellee’s brief: Shavanaux Appellee Brief.

My own short article on this question is here.

Federal Court Dismisses Indian Country Indictment for Reliance Upon Uncounseled Tribal Court Convictions

Here are the materials in United States v. Shavanaux (D. Utah):

DCT Order Dismissing Shavanaux Indictment

Shavanaux Motion to Dismiss

Government Opposition to Shavanaux Motion to Dismiss

Shavanaux Reply

New Sixth Amendment Case Out of Indian Country re: Lay Counsel and Miranda

Here is yet another case holding that the appointment of tribal lay advocates/counsel to defend an Indian in tribal court does not trigger Sixth Amendment protections under Miranda.



Here is an important footnote in the R&R (n. 4):

There is a split of authority among the circuits as to whether, in cases involving an allegation of a Sixth Amendment violation, the Texas v. Cobb decision incorporates the full panoply of double jeopardy analysis–specifically the dual sovereign analysis–or whether only the Blockburger test applies. This would be of significance where, for example, state and federal officials charged a defendant with offenses having identical elements. If the defendant had already appeared in state court and asserted his Sixth Amendment right to counsel, and federal officials subsequently interrogated the defendant before the institution of federal charges with the same essential elements as the state charges, courts disagree on whether this would constitute a Sixth Amendment violation. See United States v. Coker, 433 F.3d 39, 43 (1st Cir. 2005). The Second Circuit does not apply the dual sovereign analysis to allegations of Sixth Amendment violations. United States v. Mills, 412 F.3d 325 (2d Cir. 2005). The Eighth Circuit is in accord with this approach at least where the other sovereign is an Indian tribe. See Red Bird, 287 F.3d at 715. The First and Fifth Circuits apply the dual sovereign analysis to Sixth Amendment violations. See Coker, 433 F.3d at 43; United States v. Avants, 278 F.3d 510 (5th Cir. 2002).

U.S. v. Perez — Sixth Amendment Right to Counsel when Tribe Appoints Lay Advocate Defender

Here are the materials in U.S. v. Perez:



The interesting excerpt from the district court’s denial of the motion is here:

After a careful review of the parties’ arguments, the facts, and relevant caselaw, the court adopts the magistrate judge’s recommendation and finds that Perez’s Sixth Amendment right to counsel was not violated. While Perez is correct that United States v. Red Bird, 287 F.3d 709 (8th Cir. 2002), would likely require this court to find a Sixth Amendment violation if he had been represented by an attorney on his tribal charges, the court agrees with Magistrate Judge Duffy and other judges in the District of South Dakota that Red Bird is distinguishable when it is lay counsel, not an attorney, who represented the defendant in tribal court. Red Bird, 287 F.3d at 716; see also Docket 54, page 25-27; United States v. Tools, CR 07-30109-01-KES, 2008 U.S. Dist. LEXIS 49490 (D.S.D. June 27, 2008); United States v. Killeaney, 2007 U.S. Dist. LEXIS 92763, 2007 WL 4459348, *5-*8 (D.S.D. Dec. 17, 2007) (stating that “[t]here is a clear distinction between licensed legal counsel and lay representation under the Sixth Amendment” and concluding that “the appointment of ‘counsel’ pursuant to the Rosebud Constitution does not in all circumstances cause Sixth Amendment protections to attach” when that “counsel” is lay counsel); United States v. Dupris, 2006 DSD 4, 422 F. Supp. 2d 1061, 1068 (D.S.D. 2006); see also United States v. Whitefeather, 2006 U.S. Dist. LEXIS 17237, 2006 WL 763204, *2 (D. Minn. Mar. 24, 2006). Because Perez’s Sixth Amendment right to counsel had not “attached” as discussed in McNeil, statements made during Agent Cresalia’s conversation with Perez on January 11, 2008, are admissible. Perez’s motion is denied.

United States v. Killeaney — Sixth Amendment and the Dual Sovereignty Doctrine — A Circuit Split involving Tribal Law Enforcement & Tribal Courts?

The District Court for the District of South Dakota recently declined to suppress evidence obtained in a criminal investigation at the Rosebud. This case has the potential to go to the Supreme Court (a circuit split already exists and another could arise) and could be a significant problem for tribal criminal law enforcement.

The defendant allegedly committed a crime on tribal lands, initially investigated by the tribal police and prosecuted in tribal court. The defendant made statements to police while being represented by a tribal public defender, who was not a lawyer or a law school graduate (however, the director of the tribal public defender office is a lawyer). The US would like to use those statements in the federal prosecution of the same offense. The question is when the defendant’s Miranda and the Sixth Amendment right to counsel attaches. If the CA8 reverses this decision and holds that they attach at the tribal court level, then there will be two circuit splits.

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