Wednesday, July 08, 2015

The Ninth Circuit finally issued the en banc opinion in Zepeda, and affirmed convictions for crimes committed in Indian country.  Also summarized here are an opinion affirming a conviction for storing hazardous waste without a permit, and an opinion affirming the dismissal of a 28 U.S.C. § 2254 petition as untimely.

United States v. Zepeda, No. 10-10131 (Fletcher for the en banc court; Kozinski and Ikuta also wrote concurring opinions) --- The Ninth Circuit affirmed convictions under the Major Crimes Act, 18 U.S.C. § 1153, holding that the government need not prove that the defendant is descended from a federally recognized tribe in order to satisfy the blood-quantum component of the Indian status element.

Federal jurisdiction was appropriate in this case if the defendant was an "Indian," a term not defined by statute.  Under the governing test, see United States v. Bruce, 394 F.3d 1215 (9th Cir. 2005), in order to satisfy this requirement, the government must prove that the defendant has "a blood connection to a once-sovereign political community" and "tribal or government recognition as an Indian."  After Bruce, the court added a gloss on this test -- that the defendant's connections must be "to an Indian tribe that is recognized by the federal government."  See United States v. Maggi, 598 F.3d 1073 (9th Cir. 2010).  The three-judge panel vacated the defendant's MCA convictions because the government did not prove that the defendant was descended from a federally-recognized tribe, even though it was undisputed that he was the descendant of some aboriginal tribe.  The blood-quantum component may or may not be a race-based classification, but it was acceptable to limit the federal-recognition requirement to the affiliation component, because that was definitely a political classification (as Bruce had held and Maggi did not undermine). 

The court also held that whether the tribe in question is federally recognized is a question of law to be determined by the judge.  Usually he can do this by referring to the Burean of Indian Affairs's list of recognized tribes; in some cases, the judge may need to take judicial notice of other appropriate sources to make this determination. 

The court held that the trial judge erred by failing to instruct the jury on the definition of "Indian" as set forth in Bruce.  But trial counsel did not object to this failure, and there was no reversible plain error in light of the "clear and undisputed evidence" that the defendant had Indian blood and was an enrolled member of a federally recognized tribe.  The enrollment certificate admitted at trial said that he was a half-blooded Indian (regardless of whether the tribes he was descended from were federally recognized), and the defendant's brother testified that their father was an Indian.  Moreover, the defendant stipulated to admitting the enrollment certificate, and the tribe that issued it was federally recognized at the time of the charged offenses.  He did not challenge the certificate's attestation that he was a member of the tribe that issued it.

Judge Fletcher's opinion also affirmed the total sentence imposed, which was the result of four § 924(c) charges which carried a total of 85 years.  The first charge had a 10-year mandatory minimum because a firearm was discharged, and the other three had 25-year mandatory minimums because they were directed at three different victims.  The "length" of the sentence "was determined not by the judge but, in effect, by the United States Attorney's charging decision."

Judge Kozinski saw the majority's test as a racial classification that must be subject to strict scrutiny.  But he would affirm the convictions here as well, either because the panel correctly applied the federal-recognition requirement to the blood-quantum component or because there was sufficient evidence for the jury to conclude that this blood quantum was from a federally recognized tribe.

Judge Ikuta would dispense with the blood-quantum component altogether, because the federal-recognition requirement of the affiliation component was adequate and use of blood quantum had a "sorry history" in American law.

The decision is here:

United States v. Roach, No. 14-50260 (Korman (DJ, EDNY) with Thomas and Callahan) --- The Ninth Circuit affirmed a conviction for storing hazardous waste without a permit obtained at a bench trial.  Indeed, the panel noted, the defendant "conceded" that he knowingly stored hazardous waste without a permit, both in a joint stipulation before the bench trial and before the court of appeals.  The court rejected the defendant's argument that he could not have been "storing" some of the waste when it was leaking out of some containers, in light of the fact that other storage containers were not leaking.  The court also rejected the argument that he had abandoned the containers (and thus was no longer "storing" the waste therein) by abandoning the premises where the containers were located, because he had begun storing the waste before he abandoned the building.

The decision is here:

Maes v. Chavez, No. 13-16523 (Ponsor (DJ, Mass.) with Kozinski and Graber) --- The Ninth Circuit affirmed the dismissal of a California state prisoner's § 2254 habeas petition, holding that so-called "gap tolling" is not available for the period of time available to seek review of a postconviction decision in a higher court unless the petitioner actually does seek review in a higher court.  Here, after seeing his state habeas petition denied by the superior court, the petitioner filed a habeas petition in federal court, but did so after the limitations period expired but within what would be a "reasonable time" for him to seek review of the state habeas denial by a higher state court.  He should have done that instead of proceeding directly to federal court. 

The opinion does lament that California's system of state habeas review creates traps for unwary litigants, which gave rise to the confusion here (and the possibility that a meritorious claim might have gone unreviewed).

The decision is here:


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