Brief in Support of Petitioner here.
U.S. cert petition previously posted here.
United States v. Cavanaugh
United States v. Bryant Cert Petition — Federal Habitual Offender Statute and Uncounseled Tribal Court Convictions
Here is the petition:
Question presented:
Section 117(a) of Title 18, United States Code, makes it a federal crime for any person to “commit[] a domestic assault within the special maritime and territorial jurisdiction of the United States or Indian country” if the person “has a final conviction on at least 2 separate prior occasions in Federal, State, or Indian tribal court proceedings for” enumerated domestic-violence offenses. 18 U.S.C. 117(a).
Sharply Divided Ninth Circuit Denies En Banc Review in United States v. Bryant
Here are the materials:
CA9 Order Denying En Banc Petition + Opinions
Panel materials and commentary are here.
Ninth Circuit Reaffirms that Uncounseled Tribal Court Convictions Resulting in Jail Time May Not Be Used to Enhance Federal Sentences
Here is the opinion in United States v. Bryant.
From the court’s syllabus:
The panel reversed the district court’s denial of a motion to dismiss an indictment charging the defendant, an Indian, with two counts of domestic assault by a habitual offender, in
violation of 18 U.S.C. § 117(a).Applying United States v. Ant, 882 F.2d 1389 (9th Cir. 1989), the panel held that, subject to the narrow exception recognized in case law for statutes that serve merely as enforcement mechanisms for civil disabilities, tribal court convictions may be used in subsequent prosecutions only if the tribal court guarantees a right to counsel that is, at minimum, coextensive with the Sixth Amendment right. Because the defendant’s tribal court domestic abuse convictions would have violated the Sixth Amendment had they been obtained in federal or state court, the panel concluded that it is constitutionally impermissible to use them to establish an element of the offense in a subsequent prosecution under § 117(a), which is an ordinary recidivist statute and not a criminal enforcement scheme for a civil disability.
Concurring, Judge Watford wrote separately to highlight
why Ant warrants reexamination.
Judge Watford correctly notes that a circuit split on this issue has arisen with the Eighth and Tenth Circuits:
It’s perhaps unsurprising that our decision in this case conflicts with decisions from two of our sister circuits. Faced with almost identical scenarios—prior, uncounseled tribal court convictions that would have violated the Sixth Amendment in state or federal court and that were used as predicate offenses under 18 U.S.C. § 117—the Eighth and Tenth Circuits pointedly disagreed with us. See United States v. Cavanaugh, 643 F.3d 592, 595, 604 (8th Cir. 2011); United States v. Shavanaux, 647 F.3d 993, 995–98 (10th Cir. 2011). As our colleagues on the Eighth Circuit noted, “Supreme Court authority in this area is unclear; reasonable decisionmakers may differ in their conclusions as to whether the Sixth Amendment precludes a federal court’s subsequent use of convictions that are valid because and only because they arose in a court where the Sixth Amendment did not apply.” Cavanaugh, 643 F.3d at 605. Given this circuit split and the lack of clarity in this area of Sixth Amendment law, the Supreme Court’s intervention seems warranted.
If nothing else, the case at least may generate support for en banc review. We posted materials on these two cases here (the Supreme Court denied cert). I wrote about this issue a few years ago in a paper titled “Sovereign Comity.“
Here are the briefs:
Supreme Court Denies Cert in Shavanaux
As expected, given the denial in Cavanaugh. Here is today’s order (Shavanaux is on page 4).
Here is our post on this question — how (and whether) federal courts may use uncounseled tribal court convictions for sentencing purposes. The cert petitions are here. OSG doesn’t publish cert opps for unpaid petitions, so if anyone has them, please send along.
Cavanaugh and Shavanaux Cert Petitions: Challenges to Use of Uncounseled Tribal Court Convictions in Federal Sentencing
Here they are:
11-7379 Cavanaugh Cert Petition
11-7731 Shavanaux Cert Petition
The Cavanaugh question presented (Cavanaugh is now represented by Alex Reichart of United States v. Lara fame):
Whether the United States Constitution precludes the use of prior, uncounseled, tribal court misdemeanor convictions as predicate convictions to establish the habitual offender element of Section 117?
The Shavanaux question presented:
Does the Constitution prevent the use of a prior, uncounseled tribal court conviction that received a term of imprisonment to establish an element of the offense?
Here are the Cavanaugh lower court materials. And here are the Shavanaux lower court materials.
There is no circuit split, as far as we can tell. As such, it seems pretty unlikely these petitions will be granted. As we’ve said here, the Ninth Circuit does not appear to have weighed in on the question. Both petitions argue that the CA9 decision in United States v. Ant (882_F.2d_1389) furnishes the desired circuit split. It’s not clean, in that Ant’s tribal court conviction was a guilty plea used as a confession in federal court, not a conviction in a prior case used under Section 117 to establish facts for a habitual offender sentence enhancement. That said, who knows? We’ll see how the government handles it.
H/t Indianz.
More on Uncounseled Tribal Court Convictions
Recently, two federal circuits — the Eighth and the Tenth — have affirmed trial courts’ use of uncounseled tribal court convictions to increase prison sentences under the federal habitual offender statute (18 U.S.C. § 117). The cases are Cavanaugh and Shavanaux.
Both circuits reversed trial court decisions ruling that the portion of § 117 allowing the use of uncounseled tribal court convictions for sentencing purposes was unconstitutional. Both circuits held that since the uncounseled tribal court conviction did not violate either the U.S. Constitution (under Talton v. Mayes) or the Indian Civil Rights Act (which does not require tribes to provide indigent defendants paid counsel), the tribal court convictions were valid.
Frankly, I’m surprised, and to a considerable extent pleased. I’m pleased that the federal courts are so deferential to tribal courts as a matter of comity. I’m surprised because there is some federal constitutional infirmity in using such convictions to enhance a federal sentence, though apparently not enough to trouble these circuits. Both courts agree that the uncounseled convictions could not be used to prove an element of a federal offense, for example.
Conceivably, both could be reversed en banc, assuming petitions for rehearing are filed (especially, the CA8 decision, where the panel was split). There’s no circuit split … yet … though it seems at least possible that Ninth Circuit or another circuit would come out the other way in the next 5, 10 years.
One possible outcome, even if the Supreme Court never reviews these cases, is a big impact on tribal court criminal justice. More and more tribal defendants will, the theory goes, refuse to plea bargain given these cases. Regardless, the need for full-scale tribal public defender offices grows daily.
Divided Eighth Circuit Panel Affirms Use of Uncounseled Tribal Court Convictions in Federal Sentencing Enhancement
Here is the opinion in United States v. Cavanaugh: CA8 Opinion in Cavanaugh.
Briefs are here.
Top Ten Indian Law Cases of 2010 on Turtle Talk
A slightly different list than our first post, this post looks at the top cases in Indian law based on hits to the post on Turtle Talk. These can include posts about preliminary matters in the case. Cases will only make one appearance on the list at their highest spot (adding the total number of hits from all posts on a case would not change the top ten list). We made a note when materials from a case made it into the top 20 most downloaded documents of the year.
1. Wells Fargo v. Lake of Torches EDC, post with materials on the case (the final decision post would be number 6 on this list; the final opinion is the 10th most downloaded document of the year).
2. Red Earth LLC v. United States, preliminary injunction in PACT Act case (additional materials in this case would be number 10 on this list).
3. United States v. Fred Paquin, indictment of former Sault Tribe chief of police (the indictment is the 8th most downloaded document of the year).
4. Miranda v. Nielson, federal court rejects tribal stacked sentencing.
5. Saginaw Chippewa Tribe v. Granholm, boundary settlement materials.
6. United States v. Cavanaugh, federal district court dismissal of indictment as previous uncounseled convictions in tribal court could not be used as evidence of “habitual offender” status.
7. Menominee Tribal Enterprises v. Solis, OSHA applies to tribal enterprise (the decision in this case is the 20th most downloaded document for the year).
8. Pacheco v. Massengill, federal district court grants ICRA habeas petition.
9. Attorney’s Process and Investigation Services v. Sac and Fox Tribe, federal court upholds tribal jurisdiction over nonmember.
10. United States v. Tohono O’odham Nation, Supreme Court grants cert.
Eighth Circuit Briefing Complete in United States v. Cavanaugh–Challenge to Use of Uncounseled Tribal Court Convictions
Since this is also a challenge to a federal statute, expect a strong cert petition from the US if it loses this case in the Eighth Circuit. If not, then look for a circuit split down the line.
Here are those materials:
US v Cavanaugh Appellant Brief
Earlier posting with lower court materials here.
Turtle Talk 
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