Ninth Circuit Court of Appeals No. 11-30346 IN THE · PDF fileNinth Circuit Court of Appeals No. 11-30346 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES

Ninth Circuit Court of Appeals No. 11-30346

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

-vs-

LAKOTA THOMAS FIRST,

Defendant-Appellee.

RESPONSE BRIEF OF DEFENDANT-APPELLEE

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISIONDISTRICT COURT NO. CR-11-80-GF-SEH

HONORABLE SAM E. HADDONUNITED STATES DISTRICT JUDGE

ANTHONY R. GALLAGHERFederal Defender, District of Montana*DAVID F. NESSAssistant Federal DefenderFederal Defenders of MontanaP. O. Box 3547Great Falls, MT 59403-3547Telephone: (406) 727-5328

*Counsel for Defendant-Appellee

SUBMITTED: June 6, 2012

Case: 11-30346 06/06/2012 ID: 8205160 DktEntry: 11-1 Page: 1 of 43

TABLE OF CONTENTS

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii-viii

I. INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2

II. STATEMENT OF JURISDICTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III. STATEMENT OF ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

IV. STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-6

V. SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

VI. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-32

VII. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

STATEMENT OF RELATED CASES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

ii


TABLE OF AUTHORITIES

TABLE OF CASES Page

Alabama v. Shelton,535 U.S. 654 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26, 28, 29

Argensinger v. Hamlin,407 U.S. 25 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27

Baldasar v. Illinois,446 U.S. 222 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28

Barnhart v. Sigmon Coal Co.,534 U.S. 438 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Burgett v. Texas,389 U.S. 109 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 25, 26, 27, 29

DeBartolo Corp. v. Florida Gulf Coast Trades Council,485 U.S. 568 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Deal v. United States,508 U.S. 129 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Dickerson v. New Banner Institute Inc.,460 U.S. 103 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

District of Columbia v. Heller,554 U.S. 570 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 29

In re Doctor's Hospital of Hyde Park,337 F.3d 951 (7th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Edelman v. Lynchburg College,535 U.S. 106 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

iii


Gideon v. Wainwright,372 U.S. 335 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 13, 25

Green v. Bock Laundry Machine Co.,490 U.S. 504 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Huffman v. C.I.R.,978 F.3d 1139 (9th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Hughey v. United States,495 U.S. 411. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

International Association Machinists v. Street,367 U.S. 740 (1961). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Iowa v. Tovar,541 U.S. 77 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Johnson v. Zerbst,304 U.S. 458 (1938). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Lewis v. United States,445 U.S. 67 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 29

McDonald v. City of Chicago,___ U.S. ___, 130 S. Ct. 3020 (2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Miranda v. Arizona,384 U.S. 436 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

NLRB v. Health Care & Retirement Corp.,511 U.S. 571 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Nevada v. Bank of America Corp.,672 F.3d 661 (9th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

iv


Nichols v. United States,511 U.S. 738 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 27, 28, 29

Puerto Rico Department of Consumer Affairs v. Isla Petroleum Corp.,485 U.S. 495 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Ratzlaf v. United States,510 U.S. 135 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 24

Rodriguez v. United States,480 U.S. 522 (1987)(per curiam). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Scott v. Illinois,440 U.S. 367 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27, 28, 29

Shannon v. United States,512 U.S. 573 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Small v. United States,544 U.S. 385 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

United States v. Akins,276 F.3d 1141 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Ant,882 F.2d 1389 (9th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . 5, 6, 29, 30, 31, 32

United States v. Ayala-Gomez,255 F.3d 1314 (11th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Bethurum,343 F.3d 712 (5th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Brady,928 F.2d 844 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

v


United States v. Cabaccang,332 F.3d 622 (9th Cir. 2003)(en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Frechette,456 F.3d 1 (1st Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Frechette,456 F.3d 1 (1st Cir. 2006)(same). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Gradwell,243 U.S. 476 (1917). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

United States v. Hartsock,347 F.3d 1 (1st Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

United States v. Jennings,323 F.3d 263 (4th Cir. 2003)(same). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Lenihan,488 F.3d 1175 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

United States v. Mendoza-Lopez,481 U.S. 828 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

United States v. Smith,171 F.3d 617 (8th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Varity Corp. V. Howe,516 U.S. 489 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

STATE STATUTES

UNITED STATES CODE

18 U.S.C. § 117. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

18 U.S.C. § 3231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

vi


18 U.S.C. §921(a)(33). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

18 U.S.C. § 921(a)(33)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

18 U.S.C. § 921(a)(33)(A)(I). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

18 U.S.C. § 921(a)(33)(B).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9

18 U.S.C. § 921(a)(33)(B).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

18 U.S.C. § 921(a)(33)(B)(i)(I).. . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 17, 18

18 U.S.C. § 921(a)(33)(B)(i)(II) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

18 U.S.C. § 922(g)(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

25 U.S.C. § 1302. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

OTHER SOURCES

152 Cong. Rec. E353-01 (March 14, 2006)(statement of Rep. Conyers). . . . . . . 22

CSKT Ls. Codified, § 1-2-401(s), 2020504 (2000). . . . . . . . . . . . . . . . . . . . . . . . 15

Kerri Fredheim, Closing the Loopholes in Domestic Violence laws: TheConstitutionality of 18 U.S.C. § 922(g)(9), 19 Pace L. Rev. 445 (1999). . . . . . . 20

Alex Kozinski, Should Reading Legislative History Be an ImpeachableOffense?, 31 Suffolk U. L. Rev. 807 (1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

James Park Taylor, Bespeaking Justice: A History of Indigent Defense inMontana, 68 Mont. L. Rev. 363, 409 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

vii


Llewellyn, Karl N., Remarks on the Theory of Appellate Decision and theRules or Canons about How Statutes Are to Be Construed, 3 Vand. L.Rev. 395, 401 (1950). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Melanie Schneider, The Imprecise Draftsmanship of the LautenbergAmendment and the Resulting Problems for the Judiciary,. . . . . . . . . . . . . . . . . . 20

viii


Ninth Circuit Court of Appeals No. 11-30346IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

-vs-

LAKOTA THOMAS FIRST,

Defendant-Appellee.

RESPONSE BRIEF OF DEFENDANT-APPELLEE

I. INTRODUCTION

The court systems operating in Indian country vary from tribe to tribe. In

Montana, tribal courts “provide a unique blend of traditional Native practices filtered

through Anglo concepts of due process.”1 The protections of the Bill of Rights,

including the Sixth Amendment, do not normally apply in tribal courts. The Indian

Civil Rights Act determines the rights of tribal members prosecuted in tribal court.

1 James Park Taylor, Bespeaking Justice: A History of Indigent Defense inMontana, 68 Mont. L. Rev. 363, 409 (2007).

1


See, 25 U.S.C. § 1302. Of the seven tribal court systems in Montana, only the

Flathead Tribal Court provides counsel.

In 2003, Lakota First plead guilty to domestic abuse in Fort Peck Tribal Court.

He was not represented by counsel during these proceedings as the Fort Peck Tribes

have elected to limit the right to counsel to only those defendants who can afford to

hire their own lawyer. With a income of less than $10,000 and two dependents he

was unable to hire a lawyer.

Seven years later, he was charged with possessing a firearm after being

convicted of a misdemeanor crime of violence in violation of 18 U.S.C. § 922(g)(9).

The term “misdemeanor crime of violence” is defined to exclude convictions obtained

without affording the defendant the “right to counsel.” For defendants convicted in

state and federal court, this right encompasses the right to court-appointed counsel

for financially qualified defendants. The Government asserts that a different rule

should apply to Native Americans. In their case, it maintains that the “right to

counsel” should be limited to only retained counsel.

As argued more fully below, the Government’s argument, if accepted will

result in disparate treatment not just among those convicted in tribal court rather than

state court, but also among the various Indian tribes.

2


II. STATEMENT OF THE JURISDICTION

The Defendant-Appellee, Lakota Thomas First, was charged in the District of

Montana with possessing a firearm after being convicted of a misdemeanor crime of

violence in violation of 18 U.S.C. § 922(g)(9). The district court’s jurisdiction was

premised on 18 U.S.C. § 3231. The Government appeals from the district court’s

order dismissing the Indictment. This Court has jurisdiction of the Government’s

appeal under 28 U.S.C. § 1291.

III. STATEMENT OF THE ISSUE

Under 18 U.S.C. § 922(g)(9), it is “unlawful for any person . . . who has been

convicted in any court of a misdemeanor crime of domestic violence” to possess a

firearm. The term “misdemeanor crime of violence” is defined at 18 U.S.C. §

921(a)(33) to include only those convictions where the defendant was represented by

counsel, or “knowingly and intelligently waived the right to counsel.” The issue in

this case is whether the term “right to counsel” should be defined by a single national

standard or, as the Government asserts, by the standards of the jurisdiction in which

the defendant’s domestic violence conviction was sustained.

3


IV. STATEMENT OF THE CASE

A. Factual and Procedural Background

Lakota First is an enrolled member of the Fort Peck and Assiniboine Tribes.

In December of 2003, he plead guilty to Domestic Abuse in Fort Peck Tribal Court

and was sentenced to serve a 30-day suspended sentence. He was financially unable

to hire a lawyer to represent him in connection with the 2003 tribal court proceedings.

In that year, he had two dependents and an income of $9,381.00 (ER 18-19).

Seven years later, First was arrested by tribal police for DUI. During the

course of the arrest, they allegedly discovered a rifle in the backseat of his car. In

August of 2010, the Government filed an Indictment charging First with illegal

possession of a firearm in violation of 18 U.S.C. § 922(g)(9). Subject to some

important limitations, that are discussed in greater detail below, this provision

prohibits possession of a firearm by “any person . . . who has been convicted in any

court of a misdemeanor crime of domestic violence.” The Indictment read, in

pertinent part, as follows:

That on or about December 14, 2010, at Poplar, in the State and Districtof Montana, the defendant, Lakota Thomas First, having been convictedof a misdemeanor crime of violence, namely the crime of DomesticAbuse in violation of Title VII, Chapter 2, Section 244 in Cause Number3801-03-12, dated December 15, 2003, in Tribal Court of the Fort PeckAssinboine and Sioux Tribes of the Fort Peck Reservation, Poplar,Montana, knowingly possessed a firearm . . . which had been shipped in

4


interstate and foreign commerce, in violation of 18 U.S.C. §§ 922(g)(9)and 924(a)(2).

First moved to dismiss the Indictment on three grounds. He began his

argument with a straightforward analysis of 18 U.S.C. § 922(g)(9). As noted, this

provision prohibits any person who has been convicted of a “misdemeanor crime of

domestic violence” from possessing a firearm. The term “misdemeanor crime of

violence” is defined at 18 U.S.C. § 921(a)(33) to exclude convictions where the

defendant “did not knowingly and intelligently waive[] the right to counsel.”

Because he was not afforded the right to appointed counsel in connection with his

2003 tribal court proceedings, First argued that his conviction could not be validly

considered a “misdemeanor crime of violence.” To the extent there was any

ambiguity in this provision, he argued that the trial court should apply the rule of

lenity. First also argued that, because he did not validly waive the right to counsel,

use of his 2003 tribal court conviction would violate the Fifth and Sixth Amendments

to the Constitution.2 As a final matter, he argued that his prosecution was barred by

this Court’s decision in United States v. Ant, 882 F.2d 1389 (9th Cir. 1989).

The district court granted First’s motion to dismiss. It rejected the

Government’s contention that the term “right to counsel” as used in § 921(a)(33)

2 See, e.g., Burgett v. Texas, 389 U.S. 109, 115 (1967); Nichols v. UnitedStates, 511 U.S. 738 (1994).

5


should be limited – or, for that matter, expanded – to conform to the standards of the

jurisdiction in which a defendant’s domestic violence conviction was sustained. It

should, rather, be read to conform with the federal constitutional standard articulated

in Gideon v. Wainwright and its progeny. This result, the court determined, was

dictated by this Court’s decision in Ant and the notion that federal defendants should

be tried and convicted under fair and equal standards. (ER at 19-28).

V. SUMMARY OF ARGUMENT

The Government’s argument rests on the assumption that the term “right to

counsel”, as used in § 921(a)(33), should be construed in terms of tribal rather than

federal law. Under this theory, this Court should apply tribal court standards for

determining whether a defendant has a right to counsel. Congress, in other words, did

not intend to provide for a single, uniform definition of the term “right to counsel”.

It intended, rather, that the term’s meaning should shift in accordance with state, local

and tribal standards.

The Government’s argument suffers from a number of flaws. Most

prominently, it is inconsistent with normal principles of statutory construction. It also

gives rise to serious constitutional questions, would result in disparate and unequal

application of the federal gun laws, and is inconsistent with this Court’s precedent.

6


VI. ARGUMENT

Standard of Review

A district court’s interpretation of a federal statute is reviewed de novo. See,

United States v. Cabaccang, 332 F.3d 622, 624-25 (9th Cir. 2003)(en banc). Similarly,

a decision to dismiss an indictment based on a district court’s interpretation of a

federal statute is also reviewed de novo. United States v. Akins, 276 F.3d 1141, 1146

(9th Cir. 2002). This Court can affirm a district court’s order on any ground supported

by the record even if it differs from the rationale of the district court. Nevada v. Bank

of America Corp., 672 F.3d 661 (9th Cir. 2012).

Reviewability

The district court filed and entered its Judgment and Order in the criminal

docket on November 9, 2011. (ER 44). The Government filed a Notice of Appeal

in the Ninth Circuit on December 8, 2011. (ER 45-46). The issue in this case is

exhausted and ripe for review.

Argument

The term “right to counsel” as used in 18 U.S.C. § 921(a)(33)(B)should be interpreted in accordance with a uniform federalstandard.

7


A. Introduction

In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court held

that the Second Amendment guarantees an individual right to keep and bear arms.

See also, McDonald v. City of Chicago, ___ U.S. ___, 130 S.Ct. 3020 (2010). Under

18 U.S.C. § 922(g)(9), a person who has been convicted of a misdemeanor crime of

violence can lose this constitutional right. This provision makes it unlawful for any

person who has been convicted in any court of a misdemeanor crime of domestic

violence” to, inter alia, “possess in or affecting commerce, any firearm or

ammunition.” The term “misdemeanor crime of violence” is defined at 18 U.S.C. §

921(a)(33) as follows:

(A) [T]he term “misdemeanor crime of domestic violence” means anoffense that

(i) is a misdemeanor under Federal, State, or Tribal law; and

(ii) has, as an element, the use or attempted use of physicalforce, or the threatened use of a deadly weapon, committedby a current or former spouse, parent, or guardian of thevictim, by a person with whom the victim shares a child incommon, by a person who is cohabiting with or hascohabited with the victim as a spouse, parent, or guardian,or by a person similarly situated to a spouse, parent, orguardian of the victim.

Although it is defined somewhat broadly, this term is limited in two important

respects. Helping to insure that those accused of domestic abuse crimes do not lose

8


their gun rights without adequate due process, § 921(a)(33)(B) excepts those who

were denied counsel or a jury trial (if entitled to one in the prosecuting jurisdiction)

from § 922(g)(9)’s firearm prohibition.

(B)(I) A person shall not be considered to have been convicted of suchan offense for purposes of this chapter, unless –

(I) the person was represented by counsel in the case, orknowingly and intelligently waived the right tocounsel in the case; and

(II) in the case of a prosecution for an offense described in thisparagraph for which a person was entitled to a jury trial inthe jurisdiction in which the case was tried, either

(aa) the case was tried by a jury, or

(bb) the person knowingly and intelligently waived theright to have the case tried by a jury, by guilty pleaor otherwise.

On August 19, 2011, First was charged with having “knowingly possessed a

firearm . . . which had been shipped in interstate and foreign commerce, in violation

of 18 U.S.C. §§ 922(g)(9) and 924(a)(2).” According to the Indictment, he was

prohibited from possessing a firearm because, in December of 2003, he had been

convicted of domestic violence in Fort Peck Tribal Court.

First moved to dismiss the Indictment on the ground that the 2003 tribal

offense did not count as a “conviction” within the meaning of 18 U.S.C. §

9


921(a)(33)(B) because it was secured without affording him the right to counsel.

Tribal law, he noted, did not provide for court appointed counsel for indigent

defendants in criminal cases. In 2003, when First was convicted, the Fort Peck Code

of Justice provided as follows:

Sec. 501. Rights of defendant in criminal cases.

No person shall twice be put in jeopardy for the same offense, nor shallhe/she be compelled in any criminal case to be a witness againsthimself/herself. The accused shall have the right to a speedy and publictrial, the right to be confronted with witnesses against him/her, the rightto assistance of counsel at his/her own expense and the right to demandtrial by an impartial jury if the offense, or combination of offenses,charged is punishable by imprisonment.3

(emphasis added).

Section 401 of the Code set forth the procedures to be followed during a change of

plea hearing:

Sec. 401. Arraignment.

(c) Before an accused is required to plead to any criminalcharges the judge shall;

(2) Advise the accused that he/she has the right (a) toremain silent, (b) to have a speedy and public trialwhere he/she will be confronted with witnessesagainst him/her after he/she has had sufficient time

3 The Fort Peck Tribal Code has undergone some changes, which appear to bestylistic in nature since 2003. Relevant portions of the Code, which are now in effectare set forth in the Appendix.

10


to prepare his/her defense if he/she pleads “notguilty,”(c) to be tried by a jury if the offense chargedis punishable by imprisonment, and (d) to berepresented by counsel at his/her own expense,before he/she pleads to the charge.

(e)(2) If the accused pleads “guilty” to the charge, thejudge shall accept the plea only if he/she is satisfiedthat the plea is made voluntarily and the accusedunderstands the consequences of the plea, includingthe rights which he/she is waiving by the plea. Thejudge may then impose..... (emphasis added)

In discovery, the Government provided only two documents from First’s 2003

court proceedings, the final judgment and the complaint. The final judgment states

that First was sentenced to “30 days in jail flat suspended for 120 days probation”.

Neither it or the complaint, however, indicate that First was informed of, much less

given the option to have, appointed counsel. (ER 12-13). Nor is there any evidence

to support a finding that he waived this right.4

Both parties agree that First was indigent and that, had he been prosecuted in

state or federal court, he would have been constitutionally entitled to appointed

counsel. All agree that he was not provided with appointed counsel before entering

his plea. The parties’ dispute centers on the meaning of the term “right to counsel.”

4 According to an “arraignment script” that was submitted to the district courtby the Government, defendants in Fort Peck Tribal Court are generally informed thatthey have “the right to be represented by legal counsel at [their] own expense.”

11


The Government contends that its meaning should derive from state and local or, in

this case, tribal, standards. First, on the other hand, believes that it should be

measured by a single national standard – that set forth by the federal constitution.

B. Statutory Interpretation

(1) Textual Analysis

Statutory construction begins with the plain, ordinary meaning of the text.

Meaning, however, cannot be divorced from context. A “fundamental principle of

statutory construction (and, indeed, of language itself) [is] that the meaning of a word

cannot be determined in isolation, but must be drawn from the context in which it is

used.” Deal v. United States, 508 U.S. 129, 132 (1993). Absent legislative direction

to the contrary, words used in a technical or legal sense are construed in accord with

their technical meaning unless the statute plainly indicates otherwise. Huffman v.

C.I.R., 978 F.3d 1139 (9th Cir. 1992). As explained by Justice Scalia:

The meaning of a statute’s terms “ought to be determined, not on thebasis of which meaning can be shown to have been understood by alarger handful of the Members of Congress; but rather on the basis ofwhich meaning is (1) most in accord with context and ordinary usage,and thus most likely to have been understood by the whole Congresswhich voted on the words of the statute (not to mention the citizenssubject to it), and (2) most compatible with the surrounding body of lawinto which the provision must be integrated – a compatibility which, bybenign fiction, we assume Congress always has in mind.” Green v.Bock Laundry Mach. Co., 490 U.S. 504, 528 (1989)(Scalia, J.,concurring).

12


The Government maintains that, in determining whether First was afforded the

“right to counsel”, this Court should look to the Indian Civil Rights Act and the Fort

Peck Tribal Code. Rather than provide a single, uniform definition of the term “right

to counsel”, it contends that Congress intended the term’s meaning to shift in

accordance with the standards applied in the forum of a defendant’s misdemeanor

conviction. First, on the other hand, maintains that the statute is best interpreted to

provide a single national standard. The rules of statutory construction favor First’s

reading.

Absent some express language to the contrary, it is generally presumed that

“words in federal statutes reflect federal understandings”. United States v. Ayala-

Gomez, 255 F.3d 1314, 1319 (11th Cir. 2001). “[I]n the absence of a plain indication

to the contrary, . . . it is assumed when Congress enacts a statute that it does not

intend to make its application dependent on state law” because “the application of

federal legislation is nationwide and at times the federal program would be impaired

if state law were to control.” See, Dickerson v. New Banner Inst. Inc., 460 U.S. 103

(1983).

The term “right to counsel” can easily be read as an abbreviated reference to

the federal constitutional standard set forth in Gideon v. Wainwright and its progeny.

It would be difficult, to say the least, to administer § 922(g)(9) by reference to state

13


and local law to determine what is meant by “the right to counsel.” Texas, as the

Government points out, guarantees the right to appointed counsel if, inter alia, “the

‘interests of justice’ require appointment.” An “interest of justice” standard is by

design highly discretionary. Federal courts should not be put in the position of

interpreting or, worse yet, second-guessing a state court’s application of this standard.

A single, well-understood national standard is clearly easier for federal courts to

apply than would be a patchwork of diverse and often highly discretionary local laws.

See, United States v. Frechette, 456 F.3d 1 (1st Cir. 2006)(rejecting argument that the

term “knowing and voluntary” as used in § 921(a)(33)(B)(i)(II)(bb) should be

analyzed under state rather than federal law).

It is, moreover, noteworthy that Congress referred to local law in the clause

immediately following the right to counsel provision. Under § 921(a)(33)(B)(i)(II),

the term misdemeanor crime of domestic violence is defined to exclude convictions

obtained without affording the defendant a jury trial if the defendant “was entitled to

a jury trial in the jurisdiction in which the case was tried.” As this provision

indicates, Congress knows how to direct attention to local standards when it wants

to. That it did not refer to state and local law in connection with the right to counsel

is powerful evidence that it acted intentionally. See, Barnhart v. Sigmon Coal Co.,

534 U.S. 438 (2002)(“[I]t is a general principle of statutory construction that when

14


‘Congress includes particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion.’”).

The text of § 921(a)(33)(B)(i)(I), while arguably not crystal clear, is consistent

with an intent by Congress that the term “right to counsel” be construed under a

federal constitutional standard rather than by state or tribal standards. As stated,

federal statutes are usually written to incorporate federal law, § 921(g)(9) is more

easily administered by use of a uniform standard and, while the clause referring to the

right to a jury trial contains an express reference to state law, there is none in the right

to counsel provision. The view that the “right to counsel” should be governed by

tribal law would, moreover, result in disparate treatment not just among those

convicted in tribal court rather than state court, but also among the various Indian

tribes.5 For these reasons, this Court should construe § 921(a)(33)(B)(i)(I) to give the

term “right to counsel” its most natural reading – the definition determined by the

federal constitution. Such a holding would have the added benefit of comporting

with the decisions of other circuits. See, e.g., United States v. Bethurum, 343 F.3d

712, 718 (5th Cir. 2003)(applying federal constitutional standard to the question of

5 As noted, the Flathead Tribal Court, unlike that in Fort Peck, providescounsel for indigent criminal defendants. See, CSKT Ls. Codified, § 1-2-401(s), 2020504(2000).

15


whether a jury trial was “knowing and intelligent” within meaning of 18 U.S.C. §

921(a)(33)(B)(i)(II)(bb)); United States v. Jennings, 323 F.3d 263, 275-76 (4th Cir.

2003)(same); United States v. Frechette, 456 F.3d 1 (1st Cir. 2006)(same).6

(2) Canons of Construction

“Canons of construction . . . are simply ‘rules of thumb’ which will sometimes

‘help courts determine the meaning of legislation. To apply a canon properly one

must understand its rationale.” Canons, in other words, are “just aids to construction,

not ironclad rules.” See, Varity Corp. V. Howe, 516 U.S. 489 (1996). Although they

can provide an indication to a term’s meaning, they must yield in the presence of

more contrary indications.

The Government relies on several canons of construction to support its

argument. In this regard, it brings to mind Karl Llewellyn’s oft-cited argument that

“[T]here are two opposing canons on almost every point.” Although contradictory,

he argued, “[e]very lawyer must be familiar with them all” because “they are still

6 On page 17 of its opening brief, the Government states that the EighthCircuit, in United States v. Smith, 171 F.3d 617 (8th Cir. 1999), “recognized the rightof counsel referenced in [§ 921(a)(33)(B)(i)(I)] as the right in the prior proceeding,rather than the Sixth Amendment right to counsel.” The Government over reads thiscase. In Smith, the defendant argued that he did not validly waive his right tocounsel. While noting that he had a right to counsel under state law, the Smith courtbased its holding on federal constitutional standards. It rejected the defendant’sargument not for reasons of state law, but because he had no Fifth or SixthAmendment right to counsel in the underlying proceeding. Id. at 622.

16


needed tools of argument.”7 Professor Llewellyn’s argument is somewhat strained.

But his main point is valid – canons are useless if parties can pick and choose among

them to achieve whatever result is desired.

The Government relies on the maxim that statutes should be read to “avoid

rendering superfluous” any statutory language to support its argument that the words

“in the case” has two different meanings. As it notes, § 921(a)(33)(B)(i)(I) provides

that a prior misdemeanor conviction cannot be used as a predicate for a § 922(g)(9)

offense unless “the person was represented by counsel in the case, or knowingly and

intelligently waived the right to counsel in the case.” The phrase “in the case”, it

argues, must have two different meanings “or it would be superfluous.” The principle

on which the Government relies is sound, but it does not support its interpretive

claim. Use of the word “in the case” may, or may not, be redundant, but it does not

support the Government’s argument, which, it would seem, is contradicted by an

equally correct but opposing canon – that “a term appearing in several places in a

statutory text is generally read the same way each time it appears.” Ratzlaf v. United

States, 510 U.S. 135, 143 (1994).

7 Llewellyn, Karl N., Remarks on the Theory of Appellate Decision and theRules or Canons about How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 401(1950).

17


The Government goes on to argue that § 921(a)(33)(B)(i)(I) should be read

“hand in hand with the Indian Civil Rights Act to recognize that the right to be

waived in tribal court is only the right to retained counsel.” For this proposition, it

relies on the canon that Congress is presumed to be aware of existing law when it

passes legislation. As Judge Posner once observed in a slightly different context, this

maxim rests on the notion that Congress surveys and envisions the whole body of law

before legislating – an “unrealistic” assumption given the “vast expanse of

legislation.” In re Doctor’s Hospital of Hyde Park, 337 F.3d 951, 960 (7th Cir. 2003).

Judge Posner’s critique aside, the Government’s argument is undercut by yet

another well-established canon. Congress is presumably aware of existing judicial

precedent when it legislates. Edelman v. Lynchburg College, 535 U.S. 106, 116-117

n. 13 (2002). The Government’s assumption – that Congress knew when it enacted

§ 922(g)(9) that some of those who would be prosecuted under the statute would not

have been represented by counsel in their predicate misdemeanor offense – may be

true. But it is also true that, under existing judicial precedent, Congress had no

obligation to act on this concern. See, Lewis v. United States, 445 U.S. 67 (1980).

It “nonetheless chose to do so by creating an exception . . . for domestic violence

misdemeanor convictions in which the defendant had not been represented by counsel

18


and did not knowingly and intelligently waive the right to counsel.” See, United

States v. Hartsock, 347 F.3d 1, 5 (1st Cir. 2003).

Nine years later, when Congress amended § 921(a)(33)(A) to include tribal

misdemeanors, it passed the habitual domestic abuser statute. See, 18 U.S.C. § 117.

This statute targets recidivist abusers for federal prosecution. Unlike § 922(g)(9),

however, it does not require that the defendant be afforded the right to counsel in

connection with his earlier domestic abuse convictions. Against this backdrop, it is

reasonable to assume that if Congress intended uncounseled tribal misdemeanors to

serve as predicates for a § 922(g)(9) conviction, it would have clearly said so.

The Government also relies on the general principle that statutory language

should be interpreted in a manner consistent with statutory purpose. Congress, it

argues, amended § 922(a)(33) to include tribal misdemeanants because it was

concerned over “the violent realities of domestic relations on tribal lands.” This

observation may be true. But it is also largely irrelevant.

One should not place too much reliance on general statutory purposes in

resolving narrow issues of statutory interpretation. Legislation seldom, if ever,

authorizes each and every means that can be said to further a general purpose, and

there is also the possibility that stated or inferred purposes may in some instances

conflict with one another. “No legislation pursues its purposes at all costs. Deciding

19


what competing values will or will not be sacrificed to the achievement of a particular

objective is the very essence of legislative choice – and it frustrates rather than

effectuates legislative intent to simplistically assume that whatever furthers the

statute’s primary objective must be the law.” Rodriguez v. United States, 480 U.S.

522, 525-26 (1987)(per curiam).

(3) Legislative History

The Government relies extensively on legislative history to support its

argument, especially the statements of § 922(g)(9)’s sponsor, Senator Frank

Lautenberg (D-N.J.). There are those who object to the use of legislative history on

principle.8 But, whatever its merits, the Government’s extensive reliance on

legislative history is particularly inapt in this case. It is undermined by the

controversy surrounding the law itself and the enactment process. As described by

one commentator, “[t]he Domestic Violence Offender Gun Ban is the product of an

aggressive senator, who attached an obscure rider to a desperately-needed

appropriations bill.”9

8 See, e.g., Alex Kozinski, Should Reading Legislative History Be anImpeachable Offense?, 31 Suffolk U. L. Rev. 807 (1998).

9 Melanie Schneider, The Imprecise Draftsmanship of the LautenbergAmendment and the Resulting Problems for the Judiciary, 17 Colum. J. Gender &Law 505, 515 (2008); see also, Kerri Fredheim, Closing the Loopholes in DomesticViolence laws: The Constitutionality of 18 U.S.C. § 922(g)(9), 19 Pace L. Rev. 445

20


In 1996, the 104th Congress amended the Gun Control Act of 1968 by passing

the Lautenberg Amendment. Named after its sponsor and codified at 18 U.S.C. §

922(g)(9). The Amendment proved to be highly controversial. Although it was

overwhelming approved by the Senate, the bill was heavily criticized, not just

because of its content, but also because it was never debated by the House of

Representatives and because it was part of a huge spending bill that was passed in

order to prevent a government shut-down. According to one description:

Senator Lautenberg authored the Domestic Violence Offender Gun Banand attempted to pass the legislation several times. He originallyintroduced it in March 1996, and after extensive compromise, the Senateadopted the provision as an amendment to an anti-stalking bill. Yetwhen the bill reached the House of Representatives, the House refusedto support it. Senator Lautenberg then sought an alternative route: he re-offered the amendment to be incorporated into the 1997 Treasury, PostalService and General Government appropriations bill. Addressing theSenate on September 12, 1996, he stated: “Since the stalking bill maynot become law, we, therefore, need to pursue another vehicle that hasa realistic chance of being enacted, and this is one of the few suchvehicles remaining.” Republican Senator Trent Lott, who was involvedwith the initial negotiations regarding the language of the bill, removedit from the floor.

During the early morning hours on Saturday, September 28, 1996,Senator Lautenberg initiated his third attempt and ensured that the billwould pass by attaching it to the 1997 Omnibus ConsolidatedAppropriations Act. The “massive federal budget bill” was consideredmust-pass legislation to “prevent [a] government ‘shutdown.’” Thusduring the “feverish last days of the 104th Congress,” Senator

(1999).

21


Lautenberg’s amendment passed both houses, and when PresidentClinton signed the omnibus appropriations bill, the Domestic ViolenceOffender Gun Ban finally became law.10

As originally passed, § 922(g)(9) only applied to persons convicted of a

“misdemeanor crime of domestic violence” under state or federal law. But, nine years

later, as part of the Violence Against Women and the Department of Justice

Reauthorization Act of 2005, Congress amended § 921(a)(33)(A)(I) to include tribal

misdemeanors. The 2005 amendment, like the Domestic Violence Offender Gun Ban,

was part of a larger appropriations bill. Among other things, the legislation provided

funding to the Office of the Inspector General to oversee the war on terrorism,

amended the emergency sessions authority for federal courts, and required the

Attorney General to report to Congress on the status of persons detained on suspicion

of terrorism.11 The Act also provided grants to Indian tribes for domestic violence

programs and directed the National Institute of Justice to “conduct a national baseline

study to examine violence against Indian women.”

10 Schneider, supra, note 8, at 510.

11 See, 152 Cong. Rec. E353-01 (March 14, 2006)(statement of Rep. Conyers). According to Representative Conyers’s statement – which is “no doubt” reflective ofthe sense of Congress as a whole – the reporting requirements imposed on theAttorney General were needed because the Department of Justice and its componentshad “abused terrorism suspects, pushing them into walls, leaving them in legal limbo,and depriving them of access to family and counsel.”

22


In light of this background, it is highly doubtful that a majority of both houses

of Congress, let alone the President when he signed the bill, gave any thought to the

issue now before the Court. To the extent that any member of Congress considered

whether uncounseled tribal convictions could be used as a § 922(g)(9) predicate, it

is by no means certain that he or she would have agreed with the Government’s

position. Given the controversy surrounding gun rights, it is just as likely that he or

she would have interpreted the “right to counsel” provision as a protection for tribal

members, who generally do not have the same rights as those prosecuted in state and

federal court. See, e.g., Shannon v. United States, 512 U.S. 573, 583 (1994)(courts

should not give “authoritative weight to a single passage of legislative history that is

in no way anchored in the text of the statute.”)

Whatever the case, it is clear that “[u]nenacted approvals, beliefs, and desires

are not laws.” Puerto Rico Dep’t of Consumer Affairs v. Isla Petroleum Corp., 485

U.S. 495, 501 (1988). “It is the function of the courts and not the legislature, much

less a committee of one house of the legislature, to say what an enacted statute

means.” NLRB v. Health Care & Retirement Corp., 511 U.S. 571, 582

(1994)(“isolated statement” in 1974 committee report accompanying amendments to

other sections of act is not “authoritative interpretation” of language enacted in 1947).

23


(4) The Rule of Lenity

In addition to the general canons of statutory construction, there are several

overriding presumptions that favor a particular result. Of relevance to this case, is the

rule of lenity. The rule of lenity requires that “before a man can be punished as a

criminal . . . his case must be plainly and unmistakably within the provisions of some

statute.” United States v. Gradwell, 243 U.S. 476, 485 (1917). It is based on the twin

notions that “fair warning should be given to the world in language that the common

world will understand, of what the law intends to do” and that “legislatures and not

courts should define criminal activity.” Ratzlaf v. United States, 510 U.S. 135, 148-

49 (1994).

The rule of lenity comes into play when a statute’s language is ambiguous. In

such cases, it “demands resolution . . . in favor of the defendant.” Even if the Court

does not consider the issue in this case to be as clear as First does, it must at least

acknowledge, one would think, that it is debatable. That is enough, under the rule of

lenity to require a finding in his favor. Hughey v. United States, 495 U.S. 411, 422

(“In these circumstances – where the text, structure, and [legislative] history fail to

establish that the Government’s position is unambiguously correct – we apply the rule

of lenity and resolve the ambiguity in [the defendant’s] favor”).

24


C. Constitutionality of using First’s Tribal Conviction as a § 922(g)(9)predicate.

(1) Introduction

In district court, First sought to dismiss the Indictment on both statutory and

constitutional grounds. Although relief is warranted on either ground, First believed,

and continues to believe, that this case can and should, under the doctrine of

constitutional avoidance, be resolved on statutory grounds. See, e.g., International

Ass’n Machinists v. Street, 367 U.S. 740, 749-50 (1961)(statutes should, if possible,

be interpreted in a way that avoids constitutional doubt). That being said, he will now

turn his attention to the constitutional issues that arise when, as here, the Government

seeks to use an uncounseled conviction “to support guilt . . . for another offense.”

See, Burgett v. Texas, 389 U.S. 109, 115 (1967).

(2) Use of First’s 2003 tribal court conviction to establish his guiltof the instant offense is prohibited by the Fifth and SixthAmendments.

In Johnson v. Zerbst, 304 U.S. 458 (1938), the Supreme Court held that the

Sixth Amendment required court appointed counsel for indigent federal defendants.

The Court applied this right to the states through the Fourteenth Amendment in

Gideon v. Wainwright, 372 U.S. 335 (1963). Subsequently, in a line of cases that

culminated in Alabama v. Shelton, 535 U.S. 654 (2002), the Court explained the

contours of Gideon and Zerbst.

25


In Argensinger v. Hamlin, 407 U.S. 25 (1972), the Court held that an indigent

defendant must be afforded counsel in any misdemeanor case “that actually leads to

imprisonment.” Id. at 373. Seven terms later, in Scott v. Illinois, 440 U.S. 367

(1979), it reaffirmed and clarified this pronouncement. In Scott, the Court held that

the right to counsel extends only to situations involving “actual imprisonment”. In

misdemeanor cases where the defendant is not actually sentenced to a term of

imprisonment, the Sixth Amendment does not require appointment of counsel. Thus,

in Scott, the Supreme Court established the rule that uncounseled misdemeanors are

constitutionally valid, so long as they do not result in jail time. 440 U.S. at 373-74.

The “actual imprisonment” rule of Scott was subsequently limited in Shelton,

which held that a suspended sentence that may “end up in the actual deprivation of

a person’s liberty” may not be imposed unless the defendant was accorded the

“guiding hand of counsel” in the prosecution for the crime charged. Id. at 666.

Although Shelton established the contours of the right to counsel in the first instance,

it left unanswered a different, albeit related, question – whether or how a court may

make use of a prior uncounseled conviction for enhancement purposes or to prove the

elements of a subsequent offense.

This question has, however, been answered (albeit not completely) in a

different line of cases. In Burgett v. Texas, 389 U.S. 109 (1967), the Court held that

26


an uncounseled prior felony conviction could not be used “against a person either to

support guilt or enhance punishment for another offense.” Burgett, at 115.

Subsequently, in Baldasar v. Illinois, 446 U.S. 222 (1980), the Court held that an

uncounseled misdemeanor conviction that was valid under Scott and Argensinger

could not be used to enhance a subsequent misdemeanor into a felony.

In Baldasar, the defendant, without the aid of counsel, was originally convicted

of misdemeanor theft and was fined $159.00. Six months later he was charged with

stealing a $29.00 shower head. In the jury trial that followed this second charge, he

was convicted of a felony under an Illinois enhancement statute. The Supreme Court,

in a fractured, per curium opinion reversed his felony conviction.

With no real rationale supporting its holding, the Baldasar decision generated

a great deal of confusion among the lower courts. Some courts, unable to detect a

common rationale among its concurring opinions, limited Baldasar to its facts.

Others, such as the Ninth Circuit moved in a different direction and held that

“uncounseled misdemeanor convictions [may] not be used collaterally to impose an

increased term of imprisonment upon a subsequent conviction.” United States v.

Brady, 928 F.2d 844 (9th Cir. 1991).

In Nichols v. United States, 511 U.S. 738 , 114 S.Ct. 1921 (1994), the Court

stepped in to “resolve a conflict among state courts as well as the federal courts of

27


appeals” created by the “fractured decision in Baldasar”. In Nichols, the defendant

plead guilty to federal felony drug charges. Several years earlier, he was fined but not

incarcerated for a state misdemeanor DUI. He was not represented during his DUI

proceedings in state court. The DUI conviction was later used to calculate his

sentence under the Sentencing Guidelines following his conviction for the federal

drug charges. As a result of the extra criminal history point attributed to the DUI

conviction, the defendant was subject to a sentence “25 months longer than if the

misdemeanor conviction had not been considered.” Nichols, 511 U.S. at 741. The

Supreme Court upheld this result, concluding that “an uncounseled misdemeanor

conviction valid under Scott because no prison term was imposed, is also valid when

used to enhance punishment at a subsequent conviction.” Nichols, 511 U.S. at 749.

In coming to this conclusion, the Nichols Court specifically overruled Baldasar.

Considered together, Scott, Shelton and Nichols stand for the following

principle: An uncounseled misdemeanor conviction which resulted in only a fine can

be used in a subsequent prosecution because it was constitutionally valid when

imposed. The converse of this statement is also true, however. Uncounseled

misdemeanor convictions which resulted in a sentence of imprisonment or the

imposition of a suspended sentence may not be used for collateral purposes because

they are constitutionally invalid under Scott and Shelton.

28


In the instant case, First’s 2003 conviction was obtained without affording him

the right to counsel. He was subsequently sentenced to a 30 day suspended sentence.

Under the rationale of Nichols, this conviction cannot be used to prove the elements

of the instant offense because it was obtained in proceedings that do not comport with

the Supreme Court’s decisions in Scott and Shelton.12 To the extent there is any

doubt on this score, the Court should interpret § 921(a)(33) to avoid what is,

undoubtedly, a “serious constitutional question.” DeBartolo Corp. v. Florida Gulf

Coast Trades Council, 485 U.S. 568, 575 (1988).

D. Use of First’s 2003 conviction to establish his guilt of the instantoffense is prohibited by United States v. Ant.

In United States v. Ant, 882 F.2d 1389 (9th Cir. 1989), the defendant was

charged with a tribal offense of assault and battery after confessing to tribal

authorities that he killed his niece. Following his confession, he was taken to tribal

court where he entered a guilty plea. He was later charged in federal court with the

crime of voluntary homicide. He moved to suppress his confession and his tribal

12There may be room to believe that, under Burgett and Nichols, uncounseledtribal conviction can be used to enhance a sentence in a subsequent prosecution. Thatdoes not mean, however, that an uncounseled conviction can used to support guilt foranother offense. See, e.g., United States v. Mendoza-Lopez, 481 U.S. 828, 833(1987). The Supreme Court's decision in Lewis may undercut this position. But,Lewis itself is undercut by District of Columbia vs Heller, 554 U.S. 570 (2008) andSmall v. United States, 544 U.S. 385 (2005).

29


court guilty plea on the ground that they were obtained in violation of Miranda v.

Arizona, 384 U.S. 436 (1966). The court granted his motion to suppress the

confession, but denied his request to suppress the guilty plea. Ant renewed his

motion to suppress the guilty plea on the ground that it was obtained in violation of

his Sixth Amendment right to counsel. The district court denied the renewed motion,

finding that the guilty plea proceedings were consistent with both tribal law and the

ICRA.

The issue presented on appeal was “whether an uncounseled guilty plea, made

in tribal court in accordance with tribal law and the ICRA, but which would have

been unconstitutional if made in federal court, can be admitted as evidence in a

subsequent federal prosecution involving the same criminal acts.” Ant, 882 F.2d at

1391. In determining that Ant's guilty plea was inadmissible, the Ninth Circuit noted

that it was not made pursuant to a valid waiver of his constitutional right to counsel.

In particular, there was nothing in the record to establish that he waived his rights and

entered his guilty plea “knowingly and intelligently, with an understanding of the

charges, the possible penalties, and the dangers of self-representation.” Ant, 882 F.2d

at 1394. Ant's plea, if it had been made in federal court under identical

circumstances, would not be admissible in a subsequent federal proceeding. The fact

that the guilty plea had been made in tribal court made no difference. Although the

30


guilty plea was made in compliance with tribal law and with the ICRA, it was not

admissible in the later federal prosecution. Ant 882 F.2d at 1395.

The Government argued that failure to admit the guilty plea would violate

principles of comity and disparage the tribal court proceedings, but this court

dismissed this its argument as novel. The principle of federal-tribal comity, it noted,

had generally been limited to prevent direct attacks on tribal court proceedings in

federal courts, and to require exhaustion of tribal remedies before going to federal

court. The question surrounding the admissibility of Ant’s guilty plea did not

implicate either of these concerns. The question, rather, was whether the plea met the

requirements of the United States Constitution for use in prosecution in federal court.

Because the tribal guilty plea did not meet these requirements it was not admissible

in Ant’s federal prosecution, notwithstanding the fact that it was valid under tribal

law and the ICRA. Ant 882 F.2d at 1396.

Ant has not been overruled. First’s conviction may have been validly obtained

under tribal law and the ICRA. This does not mean that it is admissible in a

subsequent prosecution to establish his guilt of a federal crime. There is no indication

that First knowingly and intelligently waived his right to counsel prior to entering his

31


guilty plea in 2003 and, therefore, the resulting conviction cannot, consistent with the

holding of Ant, be used to establish his guilt of the instant offense.13

VII. CONCLUSION

For all the above reasons, the district court’s order dismissing the Indictment

against First should be affirmed.

RESPECTFULLY SUBMITTED this 6th day of June, 2012

s/David F. Ness DAVID F. NESSAssistant Federal DefenderFederal Defenders of Montana104 Second Street South, Suite 301Great Falls, MT 59401Phone: (406) 727-5328Fax: (406) 727-4329

Counsel for Defendant-Appellee

13Relying on Iowa v. Tovar, 541 U.S. 77 (2004), the Government argues thatthe district incorrectly held “that First had to be told of the advantages anddisadvantages of self-representation in order to intelligently waive his right toCounsel.” Govt. Brief at p. 14 n. 6. First does not read Tovar so broadly. Tovar, theIowa Supreme Court ruled that a trial court must advise a defendant that waivingcounsel entailed the risk that a viable defense will be overlooked and that by waivingthe right to counsel, the defendant would lose the opportunity to obtain an“independent opinion”. United States v. Lenihan, 488 F.3d 1175, 1177 (9th Cir.2007). The Supreme Court held that neither warning was mandated by theConstitution. The Court instructed lower courts to look to the particular facts andcircumstances of a case, “including the defendant’s education or sophistication, thecomplex or easily grasped nature of the charge, and the stage of the proceeding,” todetermine whether a defendant knowingly and intelligently waived counsel. Tovar,541 U.S. at 88.

32


CERTIFICATE OF COMPLIANCE

I hereby certify that this Opening Brief of Defendant-Appellant is in

compliance with Ninth Circuit Rule 32(a). The Brief’s line spacing is double spaced.

The brief is proportionately spaced, the body of the argument has a Times New

Roman typeface, 14 point size and contains less than 14,000 words at an average of

280 words (or less) per page, including footnotes and quotations. (Total number of

words: 7,574 excluding tables and certificates).

DATED this 6th day of June, 2012.

s/David F. Ness DAVID F. NESSAssistant Federal DefenderFederal Defenders of Montana104 Second Street South, Suite 301Great Falls, MT 59401Phone: (406) 727-5328Fax: (406) 727-4329


33


STATEMENT OF RELATED CASES

The undersigned, Counsel of record for the Defendant-Appellant, pursuant to

Rule 28-2.6 of the Rules of the United States Court of Appeals for the Ninth Circuit,

states that, to his knowledge, there are no related cases pending in this Court.

DATED this 6th day of July, 2012.

s/David F. Ness DAVID F. NESSAssistant Federal DefenderFederal Defenders of Montana104 Second Street South, Suite 301Great Falls, MT 59403-3547Phone: (406) 727-5328Fax: (406) 727-4329


34


CERTIFICATE OF SERVICEFed.R.App.P. 25

I hereby certify that on June 6, 2012, I electronically filed the foregoing with

the Clerk of the Court for the United States Court of appeals for the Ninth Circuit by

using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by the

appellate CM/ECF system.

I further certify that some of the participants in the case are not registered

CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage

prepaid, or have dispatched it to a third party carrier for delivery within 3 calendar

days, to the following non-CM/ECF participants:

LAKOTA THOMAS FIRSTDefendant-Appellee

s/David F. Ness DAVID F. NESS Assistant Federal DefenderCounsel for Defendant-Appellee

35


APPENDIX


Title VI • Criminal Procedures Chapter 4. Armignlllent nnd Release Sec. 401. Arraignment. (a) Arraignment is the bringing of an accused before the Court, informing him/her ofhis/her rights and of the charge against him/her, receiving his/her plea, and setting conditions of pre-triall'elease as appropriate in accordance with this Code. (b) Arraignment shall be held in open court without unnecessary delay after the accused is taken into custody and in no instance shall arraignment be later than the next regular session of Court. (0) Before an accused is required to plead to any criminal charges the judge shall: (1) Read the complaint to the accused and determine that he/she understands the complaint and the Section of the Tribal Code which helshe is charged with violating, including the maximum authorized penalty; and . (2) Advise the accused that he/she has the right (a) to remain silent, (b) to have a speedy and public trial where he/she will be confronted with witnesses against him/her after he/she has had sufficient time to prepare his/her defense if he/she pleads "not guilty," ( c) to be tried by a jury ifthe offense charged is punishable by imprisonment, and (d) to be represented by cOlmsel at his/her own expense, before helshe pleads to the charge. (d) If the arrest was without a wan'ant, and the defendant is to be continued in custody, the judge shall also determine during all'aignment whether there is probable cause to believe that an offense against Tribal law has been committed by the named accused. (e) The judge shall call upon the defendant to plead to the charge: (1) If the accused pleads "not guilty" to the charge, the judge shall then set a trial date and consider conditions for release prior to tdal as provided in Section 402. (2) If the accused pleads "guilty" to the charge, the judge shall accept the plea only if he/she is satisfied that the plea is made voluntarily and the accused understands the consequences of the plea, including the rights which he/she is waiving by the plea. The judge may then impose sentence or defer sentencing for a reasonable time in order to obtain any information he/she deems necessary for the imposition of a just sentence. The accused shall be afforded an opportunity to be heard by the Court prior to sentencing. (3) If the accused refuses to plead, the judge shall enter a plea of "not guilty" on his/her behalf.


Title VI • Criminal Procedures Challter 5. Trial Proceedings Sec. 501. Rights of defendant in criminal cases. No person shall twice be put in jeopardy for the same offense, nor shall he/she be compelled in any criminal case to be a witness against himselflherself. The accused shall have the right to a speedy and public trial, l1le right to be confronted with witnesses against him/her, the right to assistance of counsel at his/her own expense and l1le right to demand trial by an impartial jury if the offense, or combination of offenses, charged is ptmishable by imprisonment.


Title VI • Criminal Procedures Chapter 5, '!rial Proceedings Sec. 506. Trial procedure.

t

(a) The time and place of court sessions, the rules of evidence to be followed by the Court and all other details of judicial procedure may be set out in rules of court. (b) The defendant shall be present in court at every stage of the trial, including impaneling the jury, retum of the verdict, and imposition of the sentence. (c) All testimony of witnesses shall be given orally under oath in open court and subject to the right of cross- examination. Documentary and tangible evidence shall also be received in open court and available to the defendant. (d) The defendant is presumed to be innocent. The prosecution has the burden of proving the defendant's guilt beyond a reasonable doubt, including the facts that a crime has actually been committed, and that the defendant committed it with the requisite intent, when intent is an element of the offense. (e) The prosecution shall present its case first, followed by the case of the defendant. If rebuttal is required, the prosecution shall proceed first, followed by the defendant. (f) At the conclusion of the evidence, the prosecution and defendant each in turn shall summarize the proof and malce final argument, with the prosecution having the right of final rebuttal. (g) All records relating to statements or confessions of the defendant, 01' reports of physical, mental, or other scientific tests or examinations relating to or performed on the defendant, when in the possession or control of the Tribes, shall be open to inspection and copying by 11,e defendant. (h) At any time in 11,e trial process, the judge may appoint an interpreter of hislher own selection and may fix the reasonable compensation of such interpreter. An interpreter through whom testimony is communicated shall be put tmder oath to faithfully and accurately translate and commtmicate as reqtlired by the judge.


Title VI " Criminal Procedures Chapter 5. Trial Proceedings Sec. 507. Right to jury trial. (a) Any person accused ofa crime punishable by imprisonment shall be granted a jury trial, upon hislher request made at time of arraignment. Ajury shall consist of at least six (6) members of the Tribe selected at random from a list of eligible jurors prepared each year by the Court. (b) An eligible juror is a tribal member who has reached the age of eighteen (18) years, is of sOlmd mind and discretion, has never been convicted of a felony, is not a member of the Tribal Council, or a judge, officer or employee of the Coult or an employee of the Reservation police force or Reservation jail, and is not otherwise disqualified according to standards established by the Court. (c) A list of at least twenty one (21) resident enrollees of the Tribes who are eligible for jury duty shall be prepared and maintained by the clerk. (d) Under Ule supervision of the presiding judge, a panel of jurors shall be drawn by lot from the jury list. A trial jury shall consist of six (6) qualified jurors selected from a panel oftwelve (12) eligible persons taken from the jury list, none of whom has an interest in the case, or is related as spouse, parent, brother 01' sister to any of the patties or their attorneys. If the jury panel is exhausted before a sufficient number of jurors are selected for the trial jlU'y, additional jurors shall be drawn by lot from the jury list fOl' the paneillUtil a trial jury is selected. (e) The judges of the Court shall have the power to issue subpoenas to compel the attendance of members of the jury panel and of trial jmors. Subpoenas shall be signed by the judge issuing them. (1) The judge assigned to the case shall have the power to excuse persons from jury duty on aCColmt of siclmess, disability or for other good cause. (g) Each party may question members of the panel of prospective jurors for the purpose of selecting a trial jury. (11) In criminal cases, in addition to disqualifying jurors for cause as determined by the judge, the prosecution and the defendant, each side shall be entitled to three (3) peremptory challenges without assigning any cause. Where there is more than one (1) defendant, they must join in a challenge before it can be made unless the Court, for due cause shoWll, shall permit otherwise, or shall permit each defendatlt to exercise two (2) peremptory challenges. (i) Each member of the jury panel called to service and each juror who serves upon a jury shall be entitled to compensation at a rate paid to jurors by Roosevelt County, Montat13, and may, in the discretion of the presiding judge, be allowed mileage at a rate to be fixed by the Court. All payments of per diem and mileage shall be supported by vouchers signed by the presiding judge. Such vouchers shall be paid in order of presentation, from available f1.mcJs on deposit for the purpose. G) The judge shall instruct the jury with regard to the applicable law and the jmy shall decide all questions of fact on the basis of that law. At the close of evidellce or at such earlier time during the trial as the judge directs, atly patty may file with the judge written instructions on the law which the party requests the judge to deliver orally to the jlU'y. At tlle same time copies of such requests shall be furnished to the opposing party. The judge shall inform each patty of hislher proposed action upon each request prior to the arguments to the jury, but the judge shall deliver his/her instructions to the jmy afiel' arguments al'e completed. No party may assign as erl'Ol' any portion of the judge's chat'ge or any omission


unless he/she makes his/her objection and reasons for it before the jury retires to consider its verdict. Opportunity shall be given to make the objection out oftbe hearing of the jury. (k) After deliberation in private, the jlll'Y in criminal cases shall return to the judge in open court a verdict of "Guilty" or "Not Guilty" with respect to each defendant. A verdict in criminal cases shal1 be rendered by a five-sixths (5/6) majority of the jury. (AMENDED AS PER RESOLUTION NO. 739.2002.7, DATED 07/08/02).


Documents

Ninth Circuit Court of Appeals No. 11-30346 IN THE · PDF fileNinth Circuit Court of Appeals No. 11-30346 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES