Thursday, March 10, 2016

[Ed. note: This case was handled by the Arizona FPD.]

United States v. Reza-Ramos, No. 11-10029 (Ikuta with Wallace and McKeown) --- The Ninth Circuit affirmed a conviction for premeditated first-degree murder under the Indian General Crimes Act, but vacated a conviction for felony murder predicated on Arizona's third-degree burglary statute.

This crime took place on the Tohono O'odham Indian reservation in southern Arizona.  The defendant is a Mexican citizen and not an Indian.  Jurisdiction was asserted under 18 U.S.C. § 1152, which makes a federal crime out of acts involving an Indian and a non-Indian, committed in Indian country, that are otherwise punished under the general laws of the United States.

The victim was a ranch hand who took in a "Mexican visitor."  Another ranch hand arrived one morning to discover blood and drag marks leading up a hill to a shallow ravine, where he saw the victim's body with three big rocks on his chest and another on his face.  Investigators also discovered a bloody iron bar on the victim's chest.  In a carport on the ranch property, investigators discovered a truck with broken windows and blood stains on the driver's side.  The truck had some fingerprints that belonged to the victim and some unknown fingerprints.  When those unknown fingerprints were linked to the defendant as the result of an unrelated arrest, he was charged with first-degree murder under 18 U.S.C. § 1111 under four theories -- premeditated murder, felony murder committed during a robbery as defined by Arizona law, felony murder committed during a nonresidential burglary as defined by Arizona law, and felony murder committed during a theft as defined by Arizona law.

At trial the government presented evidence that the victim was "4/4 Tohono O'odham" and had lived and worked on the Tohono O'odham reservation for at least 17 years before his death, speaking the Tohono O'odham language.  The jury was instructed that it had to conclude that the victim was an "Indian," but that term was not defined for the jury along the lines of United States v. Bruce, 394 F.3d 1115 (9th Cir. 2004).  It was also instructed on the elements of the predicate felonies in accordance with Arizona law.  The jury convicted the defendant of premeditated murder and felony murder predicated on both theft and burglary (but not robbery). 

The panel began by deciding which party bears the burden of proving that the victim is an Indian.  Under § 1152 and Bruce, that question is an affirmative defense.  But the court also noted that in United States v. McBratney, 104 U.S. 621 (1881), the Supreme Court had held that states have exclusive jurisdiction in cases not subject to § 1152.  Accordingly, if the victim were an Indian, there would be no federal jurisdiction here, and so the government ultimately bore the burden of proving that the victim is an Indian.  The government's proof on that score was sufficient under United States v. Zepeda, 792 F.3d 1103 (9th Cir. 2015) (en banc), because it was undisputed that the victim was 4/4 Tohono O'odham and there was evidence that allowed the jury to conclude that the victim had societal ties to the Tohono O'odham reservation.  On plain error, the court held that the jury instruction should have included the Bruce factors, but that its failure to do so was harmless in light of the evidence.

The panel then found sufficient evidence of premeditation.  The jury could have inferred that the defendant slept at the house, taken a fireplace shovel from inside the house, used it to beat the victim, and then dragged his body off.

The panel also held that because Congress passed the General Crimes Act in order to impose a uniform definition of murder, state law could not be used to define the predicate felonies for felony murder in cases like this.  And because Arizona's third-degree burglary statute does not match the generic definition of burglary, it vacated the defendant's conviction for felony murder predicated on burglary.

Kudos to Assistant Federal Public Defender Edie Cunningham of Tucson.

The decision is here:


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