Brief in Support of Petitioner here.
U.S. cert petition previously posted here.
Here is the petition:
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).
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:
Here are the materials in United States v. Bundy (D. N.M.):
From the order:
As previously noted, Defendant has provided the Court with a copy of the transcript of her guilty plea proceeding. [Doc. 194-1] Since there is no indication in the transcript that Defendant was represented by counsel, the Court will not assume that Defendant was informed of her rights by counsel. Rule 12(c) of the Navajo Rules of Criminal Procedure required the judge, prior to accepting Defendant’s plea, to explain to Defendant that she had the rights (1) to remain silent, (2) to have counsel at her own expense or appointed counsel if defendant cannot afford counsel, (3) to plead not guilty, (4) to confront and cross-examine witnesses; (5) to be released on bail unless certain findings are made, (6) to trial by jury, (7) to a speedy and public trial, (8) to call witnesses, and (9) to file a writ of habeas corpus. Instead of the detailed enumeration of her trial rights contemplated by the Navajo Rules of Criminal Procedure, the page-and-a-half transcript shows a cursory, rudimentary colloquy. Although Defendant was asked “Do you understand your rights as explained to you?” the transcript does not include any enumeration of those rights, nor does the record show that Defendant was told that she was giving up those rights by pleading guilty. Under the Navajo Rules of Criminal Procedure, the advisement of rights pursuant to Rule 12(c) is the sole procedure for advising a defendant of her rights. Further, Defendant’s counsel has represented to the Court that an examination of the tape of the proceedings before the tribal court for April 22, 2009 fails to show any explanation of rights to Defendant or any other person. [Doc. 194 at 3, n.1] It appears that this prerequisite to a valid guilty plea was entirely overlooked in Defendant’s case. The Court finds that Defendant was not advised of key rights guaranteed by ICRA–the privilege against self-incrimination, the right to confront her accusers and to compulsory process, the right to counsel at her own expense, and the right to trial before a jury of not less than six persons. Section 1302 (4) (6) and (10). The transcript also shows that there was no inquiry into the factual basis of Defendant’s plea. Defendant has made a compelling showing that her guilty plea was not knowing and voluntary. Under ICRA due process of law is itself a right. Section 1302(8). The Court concludes that Defendant’s guilty plea was obtained in violation of the due process provision of ICRA, and under Shavanaux is inadmissible as substantive evidence in a subsequent federal prosecution.
In a footnote, the court added:
Given the solicitude of the Navajo Supreme Court for the rights of accused tribemembers, e.g. Eriacho v. Ramah District Court, 6 Am. Tribal Law 624 (Navajo Sup. Ct. 2005); Navajo Nation v. Curley, 6 Am. Tribal Law 697 (Navajo Sup. Ct. 2005); Curley v. Navajo Nation, 4 Am. Tribal Law 622 (Navajo Sup. Ct. 2002), the Court has considerable doubt whether a prior conviction based on a demonstrably invalid guilty plea would be admissible in Navajo tribal court over the defendant’s objection.
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.
Here they are:
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?
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.
The dismissal of a federal domestic violence charge against a 37-year-old enrolled member of the Northern Ute Tribe was reversed and sent back to the lower court by a three-judge panel of the U.S. 10th Circuit Court of Appeals on July 26.
The justices ruled that neither the absence of counsel in two prior domestic violence convictions in Ute Tribal Court nor differences between tribal and U.S. law violated the rights of Adam Ray Shavanaux of Fort Duchesne, Uintah and Ouray Reservation, Utah.
Shavanaux was arrested in January 2010 after Ute tribal police officers were called to aid an assault victim who was able to escape from a home in Fort Duchesne and seek assistance. The victim was later taken to the hospital, according to the U.S. Attorney in Utah.
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.