United States v. Alvirez

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.

 

Updated Ninth Circuit Briefs in United States v. Alvirez

Matthew L.M. Fletcher1 Comment

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

Matthew L.M. Fletcher3 Comments

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.

National Association of Criminal Defense Lawyers Amicus Brief Filed in United States v. Zepeda

Matthew L.M. Fletcher3 Comments

Here:

Criminal Defense Attorney Amicus

Prior posts here (order granting en banc review), and links to briefs here.

 

Additional Briefing in United States v. Zepeda — US Renews En Banc Plea

Matthew L.M. Fletcher5 Comments

Here:

US Supplemental Brief

Zepeda Supplemental Brief

Prior post with links to all materials here.

Ninth Circuit Issues Amended Opinion in Zepeda — Same Outcome, Different Reasoning

Matthew L.M. Fletcher6 Comments

Here are the new materials:

CA9 Amended Opinion

US En Banc Petition

Zepeda Response to En Banc Petition

From Judge Watford’s now-much-shortened dissent:

I agree with much of the majority’s analysis, particularly its conclusion that whether a tribe has been recognized by the federal government is a question of law. But I disagree with the majority’s ultimate determination that the government failed to present sufficient evidence from which a rational jury could infer that Zepeda has a blood connection to a federally recognized tribe. Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), a rational jury could certainly infer that the reference in Zepeda’s tribal enrollment certificate to “1/4 Tohono O’Odham” is a reference to the federally recognized Tohono O’odham Nation of Arizona.

Panel materials are here.

Materials on affected appeals are here.

Ninth Circuit Withdraws Zepeda Opinion

Matthew L.M. Fletcher

Here. The order:

The opinion in this case filed on January 18, 2013, and reported at 705 F.3d 1052 is hereby withdrawn. The opinion shall not be cited as precedent by or to any court of the Ninth Circuit. The court will file a new opinion in due course. As the court’s opinion is withdrawn, the government’s petition for rehearing and rehearing en banc is moot.

Materials in this case and related cases are here.

Montana Lawyer Article on the Zepeda Case

Matthew L.M. Fletcher

Here, see pages 28-30.

Perhaps as Many as Three Ninth Circuit Indian Criminal Cases Uncertain as Feds Ponder En Banc Petition in U.S. v. Zepeda

Matthew L.M. Fletcher3 Comments

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 Holds Unauthenticated Tribal Membership Card Insufficient for Proving Indian Status under Major Crimes Act

Matthew L.M. Fletcher2 Comments

Here are the materials in United States v. Alvirez (opinion here):

Alvirez Brief

Federal Appellee Brief

Alvirez Reply

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.