Wednesday, October 01, 2014

US v. Bryant, No. 12-30177 (Paez with Pregerson; concurrence by Watford).

This case is about how the Ninth Circuit handles convictions obtained in tribal court, where Gideon v. Wainwright doesn't apply, when a prior conviction is used as an element of the crime. The 9th reverses a conviction under a domestic abuser recidivist statutes pursuant to 18 USC § 117(a). The defendant, an Indian, was convicted of being a domestic abuser recidivist because of two prior tribal domestic assaults under § 117(a). The 9th held that because the tribal convictions were uncounseled, and time was imposed, they would have violated the sixth amendment if they had been state or federal convictions.  They therefore cannot be used as predicates.  The panel reiterated that it was bound by United States v. Ant, 882 F.2d 1389 (9th Cir. 1989), and that no subsequent decision of the Supreme Court had undermined that decision enough to deem it implicitly overruled under Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc). The Ant decision still bars use of such uncounseled priors in recidivist statutes and continues to be valid.  The 9th squares Ant with the Supreme Court's Nichols decision (uncounseled misdemeanor not resulting in imprisonment can be used in recidivist statute) by stating that the tribal convictions would violate the sixth amendment guarantee to right to counsel. 

Concurring, Watford points out the strange result that the sixth amendment does not apply to the tribes, but that in terms of recidivism; the sixth amendment applies.  Watford also raises the sanctity of tribal sovereignty, and the respect to be afforded to tribal courts.  Judge Watford believes that Ant has been undermined, and points out that recidivist statutes focus on the fact of a prior, not the reliability of the prior (!). Both the majority and Judge Watford point out that Ant conflicts with decisions of the other two main Indian country circuits -- the Eighth and the Tenth -- but Judge Watford expressly says that the Supreme Court should take the issue. 

The decision is here:


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