10-1154 IN THE UNITED STATES COURT OF APPEALS FOR …In light of the complexity of the issues and...

10-1154

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

____________________

UNITED STATES OF AMERICA,

Appellant,

v.

ROMAN CAVANAUGH, JR.,

Defendant/Appellee.

____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

(Chief Judge Ralph R. Erickson)

BRIEF FOR THE UNITED STATES

LYNN C. JORDHEIM LANNY A. BREUER

Acting United States Attorney Assistant Attorney General

District of North Dakota Criminal Division

KEITH W. REISENAUER GREGORY D. ANDRES

JANICE M. MORLEY Acting Deputy Assistant

Assistant United States Attorneys Attorney General


RICHARD A. FRIEDMAN

Appellate Section, Criminal Division

United States Department of Justice

Washington, D.C. 20530

202-514-3965

(fax) 202-305-2121

[email protected]

Counsel for Appellant

Case: 10-1154 Page: 1 Date Filed: 03/19/2010 Entry ID: 3646786

mailto:[email protected]

TABLE OF CONTENTS

page

Table of Cases and Authorities .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Summary of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of the Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statement of Facts .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. Cavanaugh Is Charged with Domestic Assault by an Habitual

Offender, in Violation of 18 U.S.C. § 117(a), Based on an

Assault He Committed After Having Two or More Final

Domestic Assault Convictions Obtained in Tribal Court. . . . . . . . . . . 4

B. Cavanaugh’s Prior Tribal Court Misdemeanor Convictions

for Domestic Assault Were Obtained Without the Right of an

Indigent Defendant to Have Appointed Counsel, and He Was

Sentenced to Imprisonment for Those Convictions .. . . . . . . . . . . . . . 6

C. The District Court Dismisses the Indictment on the Ground that

18 U.S.C. § 117(a) Is Unconstitutional Insofar as It Allows

Uncounseled Tribal Court Misdemeanor Convictions for Which

Imprisonment Was Imposed To Be Used as Predicate Final

Convictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Legal Standards Governing Tribal Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Criminal Jurisdiction Over Domestic Violence in Indian Country . . . . . . . . . . . . 11

Standard of Review .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

i


Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

IT DOES NOT VIOLATE THE CONSTITUTION TO

USE UNCOUNSELED TRIBAL COURT MISDEMEANOR

CONVICTIONS AS PREDICATE PRIOR FINAL

CONVICTIONS UNDER 18 U.S.C. § 117(a) . . . . . . . . . . . . . . . . . . . . . . . 23

A. Cavanaugh’s Uncounseled Tribal Court Misdemeanor

Convictions Were Nor Invalid Under the Federal Constitution. . . . . 23

B. Congress Constitutionally May Provide that a Tribal Court

Conviction for Domestic Assault May Be Used as a

Predicate Prior “Final Conviction” for the Section 117(a) Offense . 25

1. There Is No Statutory Right for a Defendant

To Preclude Use of a Valid Tribal Court Conviction

in a Section 117(a) Prosecution . . . . . . . . . . . . . . . . . . . . . . . . 26

2. Congress Made a Rational Choice To Permit Use

of Tribal Court Convictions as Prior “Final Convictions”

in Section 117(a), and that Satisfies Due Process . . . . . . . . . . 33

3. There Is No Constitutional Restriction on Section 117(a)’s

Inclusion of Uncounseled Tribal Court Misdemeanor

Convictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

4. There Is No Pertinent Distinction Between Using a Prior

Conviction To Prove an Element of an Offense and Its

Use for Sentencing Enhancement or Other Purposes . . . . . . . 38

5. Indian Defendants in Section 117(a) Prosecutions Are Not

Disadvantaged Compared to Non-Indian Defendants Whose

Prior Convictions Were Obtained in State or Federal Court . . 39

ii


6. Even If Indian Defendants in Section 117(a)

Prosecutions Were Treated Differently Than

Non-Indian Defendants, It Would Not Violate

the Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

7. The District Court Erred in Relying on

United States v. Ant, 882 F.2d 1389 (9 Cir. 1989) . . . . . . . . 45th

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Certificate of Compliance (Word Limit) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Certificate of Conformity (E-mail, Virus Protection, Privacy Redaction) .. . . . . . 49

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Addendum: District Court Order on Motion To Dismiss the Indictment . . . . . . . 51

iii


TABLE OF AUTHORITIES

FEDERAL CASES

Alabama v. Shelton, 535 U.S. 654 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Almendarez-Torres v. United States, 523 U.S. 224 (1998) . . . . . . . . . . . . . 39

Apprendi v. New Jersey, 530 U.S. 466 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Argersinger v. Hamlin, 407 U.S. 25 (1972). . . . . . . . . . . . . . . . . . . . . . . . 16, 24, 41

Baldasar v. Illinois, 446 U.S. 222 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . 18, 23, 36

Burgett v. Texas, 389 U.S. 109 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29,30

Custis v. United States, 511 U.S. 485 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . passim

Daniels v. United States, 532 U.S. 374 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Duro v. Reina, 495 U.S. 676 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Gideon v. Wainright, 372 U.S. 335 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 25

Iowa v. Tovar, 541 U.S. 77 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 42

James v. United States, 550 U.S. 192 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Lewis v. United States, 445 U.S. 55 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Loper v. Beto, 405 U.S. 473 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Means v. Navajo Nation, 432 F.3d 924 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . 11

Morton v. Mancari, 417 U.S. 535 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 45

New York ex rel. Ray v. Martin, 326 U.S. 496 (1946). . . . . . . . . . . . . . . . . . . . . . 12

iv


Nichols v. United States, 511 U.S. 738 (1994). . . . . . . . . . . . . . . . . . . . . . . . . passim

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) . . . . . . . . . . . . . 11

Randall v. Yakima Nation Tribal Court, 841 F.2d 897

(9 Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11th

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). . . . . . . . . . . . . . . . . 10, 24, 36

Scott v. Illinois, 440 U.S. 367 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . 20, 24, 36, 41

Solem v. Bartlett, 465 U.S. 463 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Talton v. Mayes, 163 U.S. 376 (1896). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 24

Tom v. Sutton, 533 F.2d 1101 (9 Cir. 1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10th

United States v. Ant, 882 F.2d 1389 (9 Cir. 1989). . . . . . . . . . . . . . . . . . 22, 46, 47th

United States v. Antelope, 430 U.S. 641 (1977). . . . . . . . . . . . . . . . . . . . . . . . 22, 44

United States v. Benally, 756 F.2d 773 (10 Cir. 1985). . . . . . . . . . . . . . . . . . 11, 37th

United States v. Eckford, 910 F.2d 216 (5 Cir.1990). . . . . . . . . . . . . . . . . . . . . . 43th

United States v. Errol D., Jr., 292 F. 3d 1159,

1164-1165 (9 Cir. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12th

United States v. Hacker, 565 F.3d 522 (8 Cir. 2009). . . . . . . . . . . . . . . . . . . . . . 15th

United States v. Jackson, 493 F.3d 1179 (10 Cir. 2007). . . . . . . . . . . . . . . . . . . . 36th

United States v. Lara, 541 U.S. 193 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . passim

United States v. Ortega, 94 F.3d 764 (2d Cir. 1996).. . . . . . . . . . . . . . . . . 21, 37, 42

United States v. Perez-Macias, 335 F.3d 421 (5 Cir. 2003). . . . . . . . . . . . . . . . . 37th

v


United States v. Red Bird, 287 F.3d 709 (8 Cir. 2001). . . . . . . . . . . . . . . . . . 10, 24th

United States v. Reilley, 948 F.2d 648 (10 Cir.1991). . . . . . . . . . . . . . . . . . . . . . 42th

United States v. Tucker, 404 U.S. 443 (1972).. . . . . . . . . . . . . . . . . . . . . . . . . 28, 30

United States v. Wheeler, 435 U.S. 313 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. White, 529 F.2d 1390 (8 Cir.1976). . . . . . . . . . . . . . . . . . . . . . . 42th

STATE CASES

State v. Spotted Eagle, 71 P.3d 1239 (Mont. 2003). . . . . . . . . . . . . . . . . . . . . 37, 47

State v. Watchman, 809 P.2d 641 (N.M. Ct. App. 1991). . . . . . . . . . . . . . . . . . . . 37

FEDERAL STATUTES AND RULES

18 U.S.C. § 117(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

18 U.S.C. § 922(g)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 38

18 U.S.C. § 924(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

18 U.S.C. § 1111. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

18 U.S.C. 1112.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

18 U.S.C. § 13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

18 U.S.C. § 1152 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

18 U.S.C. § 1153. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 45

18 U.S.C. § 1162. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

18 U.S.C. App. § 1202(a)(1) (1982 ed.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

vi


18 U.S.C. § 2261. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

18 U.S.C. § 3231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

18 U.S.C. §3501.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46,47

21 U.S.C. § 841(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

21 U.S.C. § 846. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

21 U.S.C. § 851. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 41

25 U.S.C. § 1301. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

25 U.S.C. §1302(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

25 U.S.C. § 1303. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

28 U.S.C. § 3731. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

42 U.S.C. 3796gg-10 (statutory note). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Fed. R. App. P. 4(b)(1)(B)(I). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Fed. R. App. P. 32(a)(7)(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Fed. R. Crim. P. 404(b) (Doc. 14). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 15

Fed. R. Evid. 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Fed. R. Evid. 404(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 38

MISCELLANEOUS

“Extent, Nature, and Consequences of Intimate Partner Violence:

Findings from the National Violence Against Women Survey,”

National Institute of Justice, U.S. Department of Justice (July 2000). . . . . . . . . . 13

vii


Jacquelyn C. Campbell, et al., "Risk Factors for Femicide in

Abusive Relationships Results from a Multisite Case Control Study,"

93 Am. J. of Pub. Health (Vol. 93, No. 7 July 2003) . . . . . . . . . . . . . . . . . . . . . . . 14

Carolyn Rebecca Block, "How Can Practitioners Help an

Abused Woman Lower Her Risk of Death?,"

NIJ Journal 5 (No. 250, Nov. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

viii


10-1154

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

____________________

UNITED STATES OF AMERICA,

Appellant,

v.

ROMAN CAVANAUGH, JR.,

Defendant/Appellee.

____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

(Chief Judge Ralph R. Erickson)

BRIEF FOR THE UNITED STATES

SUMMARY OF THE CASE

This case presents an important question of first impression: Whether the

Sixth Amendment or the Due Process Clause bars the use of uncounseled tribal

court misdemeanor convictions for which imprisonment was imposed to prove an

element of the recidivist domestic assault offense proscribed by 18 U.S.C. § 117(a).

The district court held that Section 117(a) is unconstitutional insofar as it permits

such use of tribal court convictions. The government asserts this was error.

1


Although a defendant in federal or state court has a right to appointed counsel

in a misdemeanor case if he is indigent and imprisonment is imposed, an Indian

defendant in tribal court does not have that right. Defendant/appellee Cavanaugh’s

tribal court misdemeanor convictions for domestic assault were not invalid under

the Constitution and could not have been set aside in any forum on the ground that

the Tribe does not provide counsel to indigent defendants. It does not violate the

Sixth Amendment or due process for Congress to have provided that such a valid

tribal court conviction can be used as a predicate “final conviction” under Section

117(a).

In light of the complexity of the issues and the district court’s ruling that a

federal statute is unconstitutional, the government suggests that the Court would

benefit from oral argument and that it may be appropriate to allot 20-30 minutes per

side.

STATEMENT OF JURISDICTION

This is an appeal from an order dismissing the indictment in a criminal case.

The order appealed from was entered on December 18, 2009. Doc. 58. The notice

of appeal was timely filed on January 15, 2010. Doc. 61; see Fed. R. App. P.

4(b)(1)(B)(i). The district court had jurisdiction under 18 U.S.C. § 3231. This

Court has jurisdiction under 28 U.S.C. § 3731.

2


STATEMENT OF THE ISSUE

Whether the Sixth Amendment or the Due Process Clause bars the use of

uncounseled tribal court misdemeanor convictions for which imprisonment was

imposed to prove an element of the recidivist domestic assault offense proscribed

by 18 U.S.C. § 117(a).

The four most pertinent cases are: Duro v. Reina, 495 U.S. 676 (1990) (Bill

of Rights does not apply in tribal court and the Indian Civil Rights Act, although it

grants the right to be represented by retained counsel in a tribal criminal

prosecution, does not grant a right of appointed counsel for an indigent defendant);

Nichols v. United States, 511 U.S. 738 (1994) (although an indigent defendant in a

state or federal court has a constitutional right to appointed counsel in a

misdemeanor prosecution in which imprisonment is imposed, because he lacks that

right if there is no imprisonment, a constitutionally valid uncounseled misdemeanor

conviction may be used in a subsequent prosecution for sentencing enhancement);

Lewis v. United States, 445 U.S. 55 (1980) (the constitutionality of Congress’

determination to restrict the ability of a defendant to collaterally attack a prior

conviction in the context of a subsequent prosecution is tested under the rationality

standard of the Due Process Clause); Custis v. United States, 511 U.S. 485 (1994)

(unless Congress has provided otherwise, the only constitutional defect in a prior

3


conviction that may be asserted in a subsequent prosecution is the complete denial

of counsel in obtaining a felony conviction).

STATEMENT OF THE CASE

An indictment returned on January 13, 2009, in the United States District

Court for the District of North Dakota charged defendant Roman Cavanaugh, Jr.,

with domestic assault by a person with two or more final convictions for domestic

assault or like offenses, a felony in violation of 18 U.S.C. § 117(a). Doc. 1; JA 8-9.

On December 18, 2009, after briefing and a hearing, the district court (Chief Judge

Ralph R. Erickson) granted (Doc. 58) Cavanaugh’s motion (Doc. 47) to dismiss the

indictment on the ground that Section 117 is unconstitutional to the extent it allows

an uncounseled tribal court misdemeanor conviction to qualify as a predicate final

conviction in a prosecution under Section 117(a). JA –74-98; Addendum, infra.

This government appeal followed.

STATEMENT OF FACTS

A. Cavanaugh Is Charged with Domestic Assault by an Habitual

Offender, in Violation of 18 U.S.C. § 117(a), Based on an

Assault He Committed After Having Two or More Final

Domestic Assault Convictions Obtained in Tribal Court.

Defendant/appellee Roman Cavanaugh, Jr., is a member of the Spirit Lake

Sioux Tribe and resides on that Tribe’s reservation in North Dakota. The

indictment alleges that, on July 7, 2008, he assaulted his common-law wife and

4


mother of his child in Indian country, inflicting substantial bodily injuries. JA 8.

The government’s notice of its intent to introduce other-acts evidence under Fed. R.

Crim. P. 404(b) (Doc. 14) describes the alleged circumstances of the charged

assault: Cavanaugh and his wife were driving home intoxicated at approximately

3:00 a.m. on July 7, 2008, with three of their children in the car. While they were

driving, Cavanaugh started to fight with his wife. He grabbed hold of her hair and

jerked her head back and forth, slamming her face against the dashboard. He

threatened to kill her and drove to a remote area. She rolled out of the car and hid

in the weeds until Cavanaugh drove away with the children. JA 13.

The indictment further alleges that this assault was committed after

Cavanaugh had three final convictions for domestic assault obtained in the Spirit

Lake Tribal Court. JA 8-9. The indictment alleges that, in light of these prior

convictions and the Indian country location of the alleged July 2008 assault,

Cavanaugh violated 18 U.S.C. § 117(a). The statute provides:

§ 117. Domestic assault by an habitual offender

(a) In general. – Any person who commits a domestic assault

within the special maritime and territorial jurisdiction of the United

States or Indian country and who has a final conviction on at least 2

separate prior occasions in Federal, State, or Indian tribal court

proceedings for offenses that would be, if subject to Federal

jurisdiction –

(1) any assault, sexual abuse, or serious violent felony against a

5


spouse or intimate partner or

(2) an offense under chapter 110A [domestic violence and

stalking offenses prescribed by 18 U.S.C. §§ 2261 (interstate domestic

violence), 2261A (interstate stalking), 2262 (interstate violation of a

protection order)],

shall be fined under this title, imprisoned for a term of not more than 5

years, or both, except that if substantial bodily injury results from

violation under this section, the offender shall be imprisoned for a

term of not more than 10 years.

(b) Domestic assault defined. – In this section, the term “domestic

assault” means an assault committed by a current or former spouse,

parent, child, or guardian of the victim, by a person with whom the

victim shares a child in common, by a person who is cohabitating with

or has cohabitated with the victim as a spouse, parent, child or

guardian, or by a person similarly situated to a spouse, parent, child,

or guardian of the victim.

B. Cavanaugh’s Prior Tribal Court Misdemeanor Convictions

for Domestic Assault Were Obtained Without the Right of an

Indigent Defendant to Have Appointed Counsel, and He Was

Sentenced to Imprisonment for Those Convictions.

The indictment identified three of Cavanaugh’s prior tribal court

misdemeanor convictions: a January 14, 2008 conviction for domestic assault, for

which it is assumed, but not yet determined, that Cavanaugh was sentenced to

imprisonment; an April 6, 2005 conviction for domestic assault, for which he was

sentenced to 180 days of imprisonment, with 90 days to be served and 90 days

suspended; and a March 21, 2005 conviction for domestic assault, for which he

was sentenced to 30 days of imprisonment, with 15 days to be served and 15 days

6


suspended. See JA 52-55 (documents relating to convictions). With respect to

each of these convictions, Cavanaugh was advised of his right to be represented by

counsel retained at his own expense and waived that right, electing to represent

himself. See JA. 56-58 (Statement of Rights forms). He had no right under tribal

law, however, for counsel to be appointed if he could not afford to retain counsel.

See JA 60 (tribal code).

C. The District Court Dismisses the Indictment on the Ground

that 18 U.S.C. § 117(a) Is Unconstitutional Insofar as It Allows

Uncounseled Tribal Court Misdemeanor Convictions for Which

Imprisonment Was Imposed To Be Used as Predicate Convictions.

Cavanaugh filed a motion to dismiss the indictment asserting, inter alia, that

the Due Process Clause of the Federal Constitution forbids reliance on his

uncounseled tribal misdemeanor convictions to support a charge under 18 U.S.C. §

117(a). See JA 85 (Op. 12). The government argued that Section 117(a) does not

require that a person be represented by counsel in the underlying tribal prosecution

and that due process is not violated by using such a conviction as a predicate

offense under Section 117(a) because the conviction is valid under tribal and

federal law. Ibid.

The district court agreed with Cavanaugh and dismissed the indictment. It1

The district court rejected Cavanaugh’s arguments (1) that the indictment1

was insufficient because it did not specifically allege that the prior assault

7


observed that tribal law does not require the appointment of counsel to indigent

defendants, but instead advises defendants that they have the right to counsel at

their own expense. JA 92 (Op. 19). The court “assume[d] the tribal court

convictions would be constitutionally infirm if obtained in state or federal court.”

JA 93 (Op. 20 n.8). Given that assumption, the court concluded that the use of

such uncounseled tribal court convictions to prove an element of the Section

117(a) offense violated constitutional requirements. JA 94-97 (Op. 21-24). It

distinguished the use of such convictions under Section 117(a) “to prove an

essential element of a federal crime” from the use of such convictions “for

purposes of sentencing enhancement, for purposes of impeachment, or as evidence

under Fed. R. Evid. 404(b).” JA 95 (Op. 22). It expressed concern that, unless it

precluded use of such tribal court convictions to prove an element of the Section

117(a) offense, “American Indians are the only group of defendants that could face

conviction under 18 U.S.C. § 117(a) as a result of underlying convictions for

which they had no right to appointed counsel” and thus its ruling was necessary to

convictions were committed against a spouse or intimate partner (JA 75-78 (Op. 2-

5)), (2) that Congress lacked the power to enact Section 117(a) in its entirety (JA

78-85 (Op. 5-12)), and (3) that Section 117(a) should be interpreted on its terms to

require that a defendant must have been represented by counsel in the prior

domestic assault conviction before it may be used as a predicate final conviction

(JA 95-96 (Op. 22-23)).

8


“put[] all defendants indicted under 18 U.S.C. § 117 on the same playing field.”

JA 97 (Op. 24). The court concluded: “The Court, in its independent view[,] finds

the introduction of uncounseled tribal court convictions in federal court as proof of

an essential element of a federal crime violate[s] a defendant’s right to counsel and

due process. Thus, to the extent that 18 U.S.C. § 117 allows for the use of such

convictions in such a manner, it is unconstitutional.” JA 96 (Op. 23).

LEGAL STANDARDS GOVERNING TRIBAL COURTS

This case does not involve the validity of Cavanaugh’s prior tribal court

domestic assault convictions, but rather the constitutionality of the use of those

convictions in a Section 117(a) prosecution to establish the recidivism element of

that offense. Nevertheless, an overview of the legal standards governing tribal

courts provides a backdrop for the constitutional issues involved in this case.

“[A]n Indian tribe acts as a separate sovereign when it prosecutes its own

members.” United States v. Lara, 541 U.S. 193, 197 (2004) (emphasis omitted).2

See United States v. Wheeler, 435 U.S. 313, 322-323 (1978) (dual2

sovereign exception to double jeopardy protection permits federal prosecution

following tribal prosecution of a Tribe member for the same offense because a

tribe’s “sovereign power to punish tribal offenders,” while subject to “complete

defeasance” by Congress, remains among those “inherent powers of a limited

sovereignty which has never been extinguished”) (emphasis omitted); Lara

(Wheeler principle applies to tribal prosecution of a member of another Tribe after

Congress restored the previously extinguished tribal sovereign power to prosecute

such cases).

9


Tribal court prosecutions are not governed by the Federal Constitution. “As

separate sovereigns pre-existing the Constitution, tribes have historically been

regarded as unconstrained by those constitutional provisions framed specifically as

limitations on federal or state authority.” Santa Clara Pueblo v. Martinez, 436 U.S.

49, 56 (1978). Significantly, “the Bill of Rights does not apply to Indian tribal

governments.” Duro v. Reina, 495 U.S. 676, 693 (1990) (citing Talton v. Mayes,

163 U.S. 376 (1896)); see United States v. Red Bird, 287 F.3d 709, 713 (8 Cir.th

2001). Accordingly, the Sixth Amendment right to counsel does not apply in

tribal court prosecutions.

Instead, the minimum federal rights guaranteed to defendants in tribal courts

are statutory rights provided by the Indian Civil Rights Act of 1968 (ICRA), 25

U.S.C. §§ 1301-1303. Although Section 1302 provides that “[n]o Indian tribe in

exercising powers of self-government shall – * * * (6) deny to any person in a

criminal proceeding the right * * * at his own expense to have the assistance of

counsel for his defense,” it does not provide for appointed counsel for indigent

defendants. See Lara, 541 U.S. at 207; Duro, 495 U.S. at 693.

Section 1302(8) also provides that no Indian tribe shall “deny to any person

within its jurisdiction * * * due process of law.” That provision does not guarantee

the appointment of counsel for indigent defendants, however. Tom v. Sutton, 533

10


F.2d 1101, 1104-1105 (9 Cir. 1976); United States v. Benally, 756 F.2d 773, 779th

(10 Cir. 1985). See also Means v. Navajo Nation, 432 F.3d 924, 932 & n.49 (9th th

Cir. 2005) (“Although the Indian Civil Rights Act imposes due process limitations

upon Indian tribes * * *, not all the constitutional restraints are imposed. They are

statutory, not constitutional, and the sole remedy for violation is habeas corpus.”). 3

CRIMINAL JURISDICTION OVER

DOMESTIC VIOLENCE IN INDIAN COUNTRY

When a Tribe prosecutes an Indian for an offense against another Indian in

Indian Country, it exercises its inherent tribal authority and acts in its capacity as a

separate sovereign. See Lara, 541 U.S. at 210. Congress, however, has limited the

sentencing authority of tribal courts. Under ICRA, tribal courts may not impose a

prison term for any offense – no matter how serious – of greater than one year. See

25 U.S.C. §1302(7); Duro, 495 U.S. at 681 n.2. Tribal courts therefore cannot

incapacitate the most serious offenders or deter the most serious crimes committed

in Indian country. A Tribe has no jurisdiction to prosecute a non-Indian, even for

a crime against an Indian on the Reservation. Oliphant v. Suquamish Indian Tribe,

ICRA Section 1303 provides that “[t]he privilege of habeas corpus shall be3

available to any person, in a court of the United States, to test the legality of his

detention by order of an Indian tribe.” In addition, tribes may provide for direct

review of such convictions in the tribal court system, but ICRA does not require it.

See Randall v. Yakima Nation Tribal Court, 841 F.2d 897, 900-901 (9 Cir. 1988).th

11


435 U.S. 191 (1978).

State courts lack jurisdiction in Indian country over offenses committed by

an Indian, or committed by a non-Indian if the victim is an Indian. Solem v.

Bartlett, 465 U.S. 463, 465 n.2 (1984); New York ex rel. Ray v. Martin, 326 U.S.

496 (1946).4

Only the federal courts are authorized to impose a penalty greater than one

year on an Indian who commits a crime in Indian Country. See, e.g., 18 U.S.C. §§

13, 1152, and 1153. But these statutes are not comprehensive. Specifically, they5

do not adequately address the endemic and serious problem of domestic violence in

Indian country. Congress sought to fill this gap by enacting The Violence Against

Women Act of 2005, Pub. L. 109-162, Tit. IX, § 909, 119 Stat. 3084 (Jan. 5,

2006). The Congressional findings (codified at 42 U.S.C. 3796gg-10 (statutory

note)) starkly illustrate the scope of the problem:

(1) 1 out of every 3 Indian (including Alaska Native) women are

raped in their lifetimes;

(2) Indian women experience 7 sexual assaults per 1,000, compared

with 4 per 1,000 among Black Americans, 3 per 1,000 among

Caucasians, 2 per 1,000 among Hispanic women, and 1 per 1,000

Congress has granted a small number of states such jurisdiction, 18 U.S.C.4

§ 1162, but North Dakota is not among them.

Federal offenses of general applicability that apply to any person likewise5

apply in Indian country. See United States v. Errol D., Jr., 292 F.3d 1159, 1164-

1165 (9 Cir. 2002).th

12


among Asian women;

(3) Indian women experience the violent crime of battering at a rate of

23.2 per 1,000, compared with 8 per 1,000 among Caucasian women;

(4) during the period 1979 through 1992, homicide was the third

leading cause of death of Indian females aged 15 to 34, and 75 percent

were killed by family members or acquaintances;

(5) Indian tribes require additional criminal justice and victim services

resources to respond to violent assaults against women; and

(6) the unique legal relationship of the United States to Indian tribes

creates a Federal trust responsibility to assist tribal governments in

safeguarding the lives of Indian women.

Due to the nature of domestic violence, felony prosecution of repeat

offenders is an important means to respond to a continuing pattern of violence.

Domestic violence is a type of crime with high recidivism rates, and the degree of

violence often escalates as the offender recidivates. See “Extent, Nature, and

Consequences of Intimate Partner Violence: Findings from the National Violence

Against Women Survey,” National Institute of Justice, U.S. Department of Justice

iv (July 2000) (“The survey found that women who were physically assaulted by

an intimate partner averaged 6.9 physical assaults by the same partner, [and] men

averaged 4.4 assaults.); id. at 26 (Indian/Alaska-Native group in survey reported

approximately 50 percent higher incidence of victimization from domestic violence

than white group and approximately 29 percent higher incidence than African-

American group). Moreover, research shows that prior physical abuse is often a

precursor to intimate partner homicide and that frequent episodes of violence pose

13


a high risk of future, deadly violence. See Jacquelyn C. Campbell, et al., "Risk

Factors for Femicide in Abusive Relationships Results from a Multisite Case

Control Study," 93 Am. J. of Pub. Health 1091 (Vol. 93, No. 7 July 2003) (“70%

of the 307 total femicide cases were physically abused before their deaths by the

same intimate partner who killed them”); Carolyn Rebecca Block, "How Can

Practitioners Help an Abused Woman Lower Her Risk of Death?," NIJ Journal 5

(No. 250, Nov. 2003) (“In the great majority of homicides, the woman had

experienced violence at the hands of her partner in the past year. Also, most of the

abused women had experienced other incidents in the past.”).

To help confront this problem, Congress targeted domestic assaults by

habitual offenders in Section 117(a). As the title of Section 117 states, it is

targeted at “[d]omestic assault by habitual offender[s].” That section authorizes a

district court to sentence by up to 5 years of imprisonment “any person” who

commits a “domestic assault” in “Indian country” after having “a final conviction

on at least 2 separate prior occasions in Federal, State, or Indian tribal court

proceedings” for like offenses, and to sentence such an offender by up to 10 years

of imprisonment “if substantial bodily injury results from violation under this

section.”

Cavanaugh is the type of serious recidivist domestic violence offender

14


against whom the statute was targeted. For example, as asserted in the

government’s notice of intent to introduce evidence under Fed. R. Crim. P. 404(b),

Cavanaugh committed, prior to the domestic assault charged in the present

indictment, six prior assaults against his wife (and a seventh against his sister)

since April 2000. JA 10-12. The notice asserts: in April 2000, Cavanaugh

punched his wife in the face while she was driving and dragged her from the car,

causing the wheel of the car to run over her, JA 10-11; in July 2000, he punched

her in the face, JA 11; in March 2002, he punched and slapped her causing

swellings on her body, multiple scratches, and two broken fingers, id.; in March

2003, he struck her in the face while she held her young child causing her to bleed,

and he threatened to kill her, id.; in October 2003, he hit and kicked his sister,

causing bruising and swelling of her eye, JA 11-12; in December 2006, he spit on

and struck his wife, JA 12; and in February 2007, he threatened to injure his wife

while using a hammer to destroy belongings in their residence, JA 12.

STANDARD OF REVIEW

This case presents purely legal questions about the scope and

constitutionality of a federal statute, which are reviewed de novo. E.g., United

States v. Hacker, 565 F.3d 522, 524 (8 Cir. 2009). th

15


SUMMARY OF ARGUMENT

Cavanaugh’s tribal court misdemeanor convictions were not invalid under

the Federal Constitution and could not have been set aside in any forum on the

ground that the Tribe does not provide appointed counsel to indigent defendants. It

does not violate the Sixth Amendment or the Due Process Clause for Congress to

have provided that such a tribal court conviction can be used as a predicate “final

conviction” under 18 U.S.C. 117(a).

A. The district court erred in assuming that Cavanaugh’s tribal court

convictions were constitutionally invalid. “[T]he Bill of Rights does not apply to

Indian tribal governments.” Duro v. Reina, 495 U.S. 676, 693 (1990).

Accordingly, the Sixth Amendment right to counsel does not attach to defendants

charged in tribal court. It is irrelevant to the validity of a tribal court conviction

that an indigent defendant in federal court has a Sixth Amendment right to

appointed counsel before he may be imprisoned for any offense, and that a

defendant in state court has the same right under the Due Process Clause of the

Fourteenth Amendment. Argersinger v. Hamlin, 407 U.S. 25 (1972).

B. Congress has broad authority to define offenses, and can include as an

element the fact of a defendant’s prior conviction. When it does so, the Due

Process Clause does not require that the defendant’s guilt of the underlying prior

16


offense independently be established in the subsequent federal prosecution. If the

element is defined in terms of the existence of a prior conviction, proof of the fact

of that conviction is all that is required to satisfy the statutory element. The extent

to which a defendant will be permitted to preclude use of a prior conviction for that

purpose, or to qualify him for enhanced punishment, is primarily a matter of

statutory interpretation, not constitutional limitation.

1. The constitutionality of Congress’ decision to allow proof of the mere

fact of a prior conviction to establish an element of an offense or qualify defendant

for an enhanced sentence is tested under the rationality principle of the Due

Process Clause, “with the deference that a reviewing court should give to a

legislative determination.” Lewis v. United States, 445 U.S. 55, 67 & n.9 (1980).

2. Congress’ determination to allow the use of prior tribal court convictions

in Section 117(a) satisfies due process. There is no doubt that Congress reasonably

concluded that the problems of recidivist domestic violence in Indian country

required federal criminal intervention. Congress specifically included prior final

convictions for domestic assault and like offenses obtained in tribal court

proceedings. Congress was well aware that tribal courts do not universally provide

counsel to indigent defendants, and that ICRA does not provide all the safeguards

of the Bill of Rights. Yet Congress has provided a range of guarantees to ensure a

17


baseline of fairness in tribal prosecutions and has afforded review in federal court

of any tribal court conviction for which the defendant is sentenced to

imprisonment. Congress could rationally conclude that these safeguards produce a

sufficiently reliable outcome to support use of a tribal court conviction to show

habitual offender status.

3. There is no constitutional limitation on Congress’ authority to use an

uncounseled determination of guilt in a misdemeanor prosecution to establish

recidivist status for purposes of enhancing punishment or elevating what would

otherwise be a misdemeanor offense to a felony. Nichols v. United States, 511

U.S. 738 (1994), held that it does not offend due process or the Sixth Amendment

to use a valid, uncounseled misdemeanor conviction for purposes of sentencing

enhancement in a subsequent prosecution. Nichols completely overruled the prior

decision in Baldasar v. Illinois, 446 U.S. 222 (1980) (per curiam), which precluded

use of such a conviction to elevate a misdemeanor offense to a felony for which

imprisonment was imposed. Nichols strongly supports the conclusion that a

determination of guilt in a constitutionally valid uncounseled misdemeanor

conviction may be used to define a subsequent felony offense. Like Nichols’ prior

conviction, Cavanaugh’s prior convictions are not invalid under the Constitution.

Their use in a prosecution designed to punish repeat offenders does not constitute

18


additional punishment for those prior offenses; rather, the Supreme Court

“consistently has sustained repeat-offender laws as penalizing only the last offense

committed by the defendant.” Nichols, 511 U.S. at 747.

4. The district court erred when it sought to distinguish the use of a prior

misdemeanor conviction to prove an essential element of the Section 117(a)

offense from the use of such convictions for other purposes, such as sentencing

enhancement. There is no constitutional requirement for greater confidence that

the prior conviction proved the underlying conduct. Congress did not require the

government to prove that defendant committed two prior acts of domestic assault

or like offenses before committing the subsequent domestic assault that is alleged

as the Section 117(a) violation, but merely that he was in a category of persons

who had twice previously had “final convictions” for such offenses. The

government is required to prove the existence of such prior convictions beyond a

reasonable doubt, but that is the only pertinent difference from the use of a prior

conviction as a sentencing enhancement.

5. The district court also was wrong to base its ruling on concern that an

Indian defendant facing a Section 117(a) prosecution predicated on prior tribal

court misdemeanor convictions would be unfairly disadvantaged as compared with

a non-Indian defendant who was charged with the Section 117(a) offense

19


predicated on prior state or federal misdemeanor convictions. The district court’s

concern was premised on its assumption that a non-Indian defendant in a Section

117(a) prosecution would be able to preclude use of a prior uncounseled state or

federal misdemeanor conviction if a sentence of imprisonment was imposed for

that conviction. That assumption was incorrect for two reasons.

First, a prerequisite for any challenge to a prior conviction used as a

predicate for guilt or sentencing enhancement is a showing by defendant that the

conviction itself is constitutionally invalid. A misdemeanor conviction may be

constitutionally obtained without benefit of counsel if no imprisonment is imposed,

Scott v. Illinois, 440 U.S. 367 (1979), and it may be used as a predicate offense in a

subsequent prosecution, Nichols, supra. The constitutional infirmity when

imprisonment is imposed for a misdemeanor conviction in state or federal court

without the right to appointed counsel for an indigent defendant is the imposition

of imprisonment, not the fact of conviction. The determination of guilt for the

misdemeanor offense is the same, and the same procedures are employed, whether

counsel is provided or not. Accordingly, courts have held that an indigent

defendant convicted of a misdemeanor offense and sentenced to imprisonment

without the right to appointed counsel may have his term of imprisonment vacated

on direct or collateral review, but may not have the conviction itself overturned.

20


E.g., United States v. Ortega, 94 F.3d 764, 769 (2d Cir. 1996) (citing cases). Thus,

a non-Indian defendant could not exclude the fact of such a “final conviction” in a

Section 117(a) prosecution because the “final conviction” is valid, even if the

sentence of imprisonment was not.

Moreover, an Indian defendant is not disadvantaged simply because he

cannot collaterally attack his tribal-court predicate convictions in the Section 117

prosecution. The same is true for a non-Indian defendant whose prior

misdemeanor convictions were obtained in state or federal court. The only

challenge to a prior conviction that may be advanced in the context of a subsequent

prosecution is the unique and fundamental defect that the prior conviction was a

felony conviction obtained without the right to counsel, in violation of the principle

of Gideon v. Wainright, 372 U.S. 335 (1963). No other constitutional attack is

permitted, including a claim of ineffective assistance of counsel or a claim that a

guilty plea was not knowing and intelligent. Custis v. United States, 511 U.S. 485,

496 (1994). Because a misdemeanor conviction without imprisonment may be

obtained without affording an indigent defendant the right to appointed counsel,

the constitutional defect when less than one year of imprisonment is imposed is not

so fundamental that it attains the status of a Gideon violation.

6. Even if there were such a distinction between the treatment of Indian

21


defendants and non-Indian defendants in a Section 117(a) prosecution, that would

not be constitutionally impermissible. It does not violate the equal protection

component of the Due Process Clause for Congress to treat Indian criminal

defendants differently from non-Indian defendants. United States v. Antelope, 430

U.S. 641, 645 (1977). Legislation that “singles out Indians for particular and

special treatment” will be upheld “[a]s long as the special treatment can be tied

rationally to the fulfillment of Congress’ unique obligation toward the Indians.”

Morton v. Mancari, 417 U.S. 535, 554-555 (1974). Congress made a rational

choice in determining that tribal court convictions could be counted as recidivist

offenses under Section 117(a) and that such inclusion was appropriate to combat

the special problem of domestic violence in Indian country.

7. Finally, the district court was mistaken to rely on the Ninth Circuit’s

decision in United States v. Ant, 882 F.2d 1389 (9 Cir. 1989), which held that ath

tribal court guilty plea based on an invalid waiver of counsel could not be used in a

federal manslaughter prosecution to establish that Ant committed that same assault.

Ant is readily distinguishable from Cavanaugh’s case. In Ant, the conduct

underlying the prior tribal conviction – not the mere fact of the conviction – had to

be proved in the subsequent federal prosecution and therefore the accuracy of the

tribal court conviction’s determination of guilt was the decisive issue. Ant

22


mistakenly incorporated Sixth Amendment analysis in evaluating Ant’s right to

counsel in the tribal court. Moreover, Ant relied in part on the then-extant

precedent of Baldasar, supra, that even a valid, uncounseled misdemeanor

conviction cannot be used in a subsequent prosecution if that subsequent

prosecution results in imprisonment. But Baldasar has been overruled by Nichols.

ARGUMENT

THE USE OF UNCOUNSELED TRIBALCOURT

MISDEMEANOR CONVICTIONS TO ESTABLISH

THE RECIDIVIST ELEMENT OF 18 U.S.C. § 117(a)

DOES NOT VIOLATE THE SIXTH AMENDMENT

OR THE DUE PROCESS CLAUSE

Cavanaugh’s uncounseled tribal court misdemeanor convictions did not

violate the Sixth or Fourteenth Amendments of the Federal Constitution because

the Constitution does not apply to tribal prosecutions. Neither the Sixth

Amendment nor the Due Process Clause bars the use of such tribal court

convictions to establish the recidivism element of 18 U.S.C. § 117(a).

A. Cavanaugh’s Uncounseled Tribal Court Misdemeanor

Convictions Were Not Invalid Under the Federal Constitution.

[A]n Indian tribe acts as a separate sovereign when it prosecutes its own

members.” United States v. Lara, 541 U.S. 193, 197 (2004) (emphasis omitted).

Tribal court prosecutions are not governed by the Federal Constitution. “As

separate sovereigns pre-existing the Constitution, tribes have historically been

23


regarded as unconstrained by those constitutional provisions framed specifically as

limitations on federal or state authority.” Santa Clara Pueblo v. Martinez, 436 U.S.

49, 56 (1978). “[T]he Bill of Rights does not apply to Indian tribal governments.”

Duro v. Reina, 495 U.S. 676, 693 (1990) (citing Talton v. Mayes, 163 U.S. 376

(1896)); see United States v. Red Bird, 287 F.3d 709, 713 (8 Cir. 2001). Thus,th

there is no constitutional right for a defendant in tribal court to have counsel

appointed if he is indigent.

It is irrelevant to the validity of a tribal court conviction that an indigent

defendant in federal court has a Sixth Amendment right to appointed counsel

before he may be imprisoned for any offense, and that a defendant in state court

has the same right under the Due Process Clause of the Fourteenth Amendment.

Argersinger v. Hamlin, 407 U.S. 25 (1972); see Scott v. Illinois, 440 U.S. 367

(1979) (absent actual imprisonment, the Constitution does not guarantee the right

to appointed counsel to a defendant convicted of a misdemeanor); Alabama v.

Shelton, 535 U.S. 654 (2002) (Argersinger applies when punishment is a

suspended term of imprisonment). 6

“In felony cases, in contrast to misdemeanor charges, the Constitution6

requires that an indigent defendant be offered appointed counsel unless that right is

intelligently and competently waived.” Nichols v. United States, 511 U.S. 738,

743 n.9 (1994); see Gideon v. Wainwright, 372 U.S. 335 (1963).

24


Thus, it is clear that Cavanaugh’s prior uncounseled misdemeanor

convictions for domestic assault did not violate any provision of the Federal

Constitution and could never have been set aside in federal court based on the

contention that Cavanaugh was indigent and was denied appointed counsel. The

district court’s ruling was based on its flawed premise that “[t]he issue * * * is

whether a tribal court conviction that complies with tribal law and the Indian Civil

Rights Act, but not the United States Constitution, can be used to establish an

essential element of a federal crime.” JA 93 (Op. 20); see JA 95 (Op. 22) (“To

permit a conviction that violates the Sixth Amendment to be used against a person

to support guilt for another offense would erode the very principle set forth in

Gideon.”). Contrary to the district court’s assumption, the United States

Constitution had no bearing on the validity of Cavanaugh’s prior tribal court

convictions.

B. Congress Constitutionally May Provide that a Tribal Court

Conviction for Domestic Assault May Be Used as a Predicate

Prior “Final Conviction” for the Section 117(a) Offense.

When Congress elects to use the fact of a defendant’s prior conviction to

partially define an offense, or to define the punishment for an offense, there is no

constitutional requirement that the defendant’s guilt of the underlying prior offense

independently be established in the subsequent federal prosecution. If the element

25


is defined in terms of the existence of a prior conviction, proof of the fact of that

conviction is all that is required. The extent to which a defendant will be permitted

to preclude use of a prior conviction to satisfy an element of an offense, or to

qualify him for enhanced punishment, is primarily a matter of statutory

interpretation, not constitutional limitation. It does not violate the Sixth

Amendment or the Due Process Clause to use uncounseled tribal court

misdemeanor convictions for which imprisonment was imposed to prove an

element of the Section 117(a) offense.

1. There Is No Statutory Right for a Defendant

To Preclude Use of a Valid Tribal Court

Conviction in a Section 117(a) Prosecution.

Where Congress has permitted the use of a prior conviction as an element of

proof or for sentencing enhancement, a defendant is not permitted to object to the

use of a prior conviction that is valid under the Constitution. Congress may define

an element of an offense in terms of the fact of a prior conviction if it satisfies the

rationality principle of the Due Process Clause.

a. In 18 U.S.C. § 922(g)(1), for example, Congress has defined a criminal

offense for a person who “has been convicted in any court of[] a crime punishable

by imprisonment for a term exceeding one year” to “ship or transport in interstate

or foreign commerce, or possess in or affecting commerce, any firearm or

26


ammunition; or to receive any firearm or ammunition which has been shipped or

transported in interstate or foreign commerce.” In Lewis v. United States, 445 U.S.

55 (1980), the Supreme Court held that proof of the fact of a prior felony

conviction could be used as conclusive proof of that element of a now-superseded

version of the Section 922(g)(1) offense (18 U.S.C. App. § 1202(a)(1) (1982 ed.)),

regardless of whether the predicate felony conviction might be subject to collateral

attack on constitutional grounds, even if the predicate felony conviction was

defective under Gideon v. Wainwright. The Court reasoned that Congress decided

to rely on “the mere fact of conviction * * * in order to keep firearms away from

potentially dangerous persons.” 445 U.S. at 67. There was no requirement for7

confidence in the reliability of the underlying conviction. Congress’ decision to

rely on the fact of a prior conviction alone, without permitting challenge to its

constitutional validity, is to be tested for rationality under the Due Process Clause,

id. at 65, and the assessment of whether Congress’ choice was rational must be

made “with the deference that a reviewing court should give to a legislative

determination,” id. at 67 & n.9.

See id. at 61 n.5 (“[W]e view the language Congress chose as consistent7

with the common-sense notion that a disability based upon one’s status as a

convicted felon should cease only when the conviction upon which that status

depends has been vacated. We note, nonetheless, that the disability effected by §

1202(a)(1) would apply while a felony conviction was pending on appeal.”)

27


b. Congress has provided for a 15-year mandatory minimum sentence for a

violation of Section 922(g) under the Armed Career Criminal Act (ACCA) for an

offender who “has three previous convictions by any court * * * for a violent

felony or a serious drug offense.” 18 U.S.C. § 924(e). In Custis v. United States,8

511 U.S. 485 (1994), the Supreme Court held that ACCA precluded a defendant

from challenging a predicate conviction in the context of the Section 924(e)

sentencing except for the “unique” circumstance of the deprivation of the right to

counsel in obtaining a prior felony conviction in violation of Gideon v.

Wainwright. 511 U.S. at 494-495. Custis singled out Gideon violations for this

special treatment because the deprivation of counsel in obtaining a felony

conviction is so fundamental that a court has no authority to convict a person of a

felony if he is denied counsel. 511 U.S. at 496 (“We think that since the decision

in Johnson v. Zerbst [304 U.S. 458 (1938)] more than half a century ago, and

running through our decisions in Burgett [v. Texas, 389 U.S. 109 (1967),] and

[United States v.] Tucker, [404 U.S. 443 (1972),] there has been a theme that

failure to appoint counsel for an indigent defendant was a unique constitutional

defect. Custis attacks his previous convictions claiming the denial of the effective

The definitions of “violent felony,” and “serious drug offense” limit the8

scope of this prevision to predicate federal or state convictions and do not include

any tribal convictions. See Sections 924(e)(2).

28


assistance of counsel, that his guilty plea was not knowing and intelligent, and that

he had not been adequately advised of his rights in opting for a ‘stipulated facts’

trial. None of these alleged constitutional violations rises to the level of a

jurisdictional defect resulting from the failure to appoint counsel at all.”).

Burgett explained that “[t]o permit a conviction obtained in violation of

Gideon v. Wainwright to be used against a person either to support guilt or

enhance punishment for another offense * * * is to erode the principle of that case.

Worse yet, since the defect in the prior conviction was denial of the right to

counsel, the accused in effect suffers anew from the deprivation of that * * *

right.” 389 U.S. at 115. The Supreme Court subsequently has clarified that the

barrier to use of such a conviction to help establish guilt in a subsequent

prosecution arises from due process principles, not directly from the Sixth

Amendment. Loper v. Beto, 405 U.S. 473 (1972) (“Unless Burgett is to be

forsaken, the conclusion is inescapable that the use of convictions constitutionally

invalid under Gideon v. Wainwright to impeach a defendant's credibility deprives

him of due process of law.”).

The district court in the present case relied on Burgett to support its belief

that, “[t]o permit a conviction that violates the Sixth Amendment to be used against

a person to support guilt for another offense would erode the very principle set

29


forth in Gideon.” JA 95 (Op. 22). Burgett is inapposite to the present case because

it involved a violation of the constitutional right to counsel. As we have

established, the Sixth Amendment does not apply in tribal court.

The district court also sought to rely (ibid.) on the Supreme Court’s decision

in Tucker for the same proposition. In Tucker, the Court held that, where a trial

judge in imposing sentence gave explicit consideration to prior felony convictions

that were constitutionally invalid under Gideon, the case was properly remanded

for reconsideration with an understanding of the unconstitutional status of the prior

convictions. Tucker also is inapposite to the present case because it involved prior

convictions invalid under the Constitution.

Custis held that, “[a]bsent specific statutory authorization” permitting a

broader challenge to the validity of a prior conviction, Section 924(e) should not be

interpreted to permit a defendant generally to attack the constitutional validity of

his prior felony convictions. 511 U.S. at 491. The Court noted that Section

921(a)(20) specifically describes the circumstances in which a prior conviction

may be counted for sentencing enhancement, which by negative implication

indicated that no challenge (apart from a Gideon challenge) was authorized in a

30


Section 924(e) sentencing proceeding. Under this principle, a defendant in a9

Section 117(a) prosecution cannot attack the validity of a prior “final conviction,”

with the exception of a prior felony conviction obtained in violation of Gideon.

But Cavanaugh’s prior tribal court final convictions for domestic assault did not

violate Gideon; there was no constitutional violation of the right to counsel.10

Section 117(a) specifically includes predicate misdemeanor domestic assault

convictions obtained in a tribal court. Congress must be presumed to have been

aware that such convictions could be obtained without benefit of appointed counsel

for indigent defendants and yet to have elected to include such convictions in

Section 117(a). In the context of Section 922(g)(9), where Congress has prohibited

Section 921(a)(20) provides that “[w]hat constitutes a conviction of such a 9

crime shall be determined in accordance with the law of the jurisdiction in which

the proceedings were held” but “[a]ny conviction which has been expunged, or set

aside or for which a person has been pardoned or has had civil rights restored shall

not be considered a conviction for purposes of this chapter, unless such pardon,

expungement, or restoration of civil rights expressly provides that the person may

not ship, transport, possess, or receive firearms.”

Daniels v. United States, 532 U.S. 374 (2001), held that collateral review10

of a prior conviction may be pursued after that conviction is used for sentencing

enhancement under Section 924(e) and, if successful, the Section 924(e) sentence

may then be attacked on its own collateral review; but if collateral review of the

prior conviction is no longer available, the validity of the prior conviction cannot

be attacked on collateral review of the Section 924(e). ICRA Section 1303

provides that “[t]he privilege of habeas corpus shall be available to any person, in a

court of the United States, to test the legality of his detention by order of an Indian

tribe.” Cavanaugh did not seek such review of his prior tribal court domestic

assault convictions.

31


a person from possessing a firearm if he “has been convicted in any court of a

misdemeanor crime of domestic violence,” Congress specifically provided in

Section 921(a)(33)(B)(i)(I) that federal, state, or tribal court convictions for such

misdemeanor offenses may be predicate convictions only if “the person was

represented by counsel in the case, or knowingly and intelligently waived the right

to counsel in the case.” As the district court properly ruled (JA 95 (Op. 22)),

however, Section 117 does not incorporate such a limitation on the misdemeanor

convictions that may be used as predicate convictions, and no such limitation may

be inferred.

c. In the penalty provisions of 21 U.S.C. § 841(b), Congress has required

enhanced punishment for drug offenses if the person “commits such a violation

after a prior conviction for a felony drug offense has become final.” Congress has

provided in 21 U.S.C. § 851(c)(2) that, in the context of a Section 841(b)

sentencing, the defendant may challenge such a predicate conviction on the ground

that it “was obtained in violation of the Constitution of the United States” – not

limited to Gideon violations, and if he prevails in that challenge the prior

conviction may not be used for sentencing enhancement. See Custis, 511 U.S. at

492 (“The language of § 851(c) shows that when Congress intended to authorize

collateral attacks on prior convictions at the time of sentencing, it knew how to do

32


so.”).

These restrictions on the ability of a defendant to preclude use of a prior

conviction in a subsequent prosecution demonstrate the error of the district court

ruling that Cavanaugh may exclude his tribal court convictions from use in this

Section 117(a) prosecution to prove the element that he had two “final convictions”

for domestic assault or like offenses at the time he committed the subsequent

alleged domestic assault. Even the most generous of these statutes relating to the

use of prior convictions in subsequent proceedings, Section 851, requires that the

defendant show that the prior conviction was constitutionally invalid before it may

be disqualified from use as a predicate conviction. As we have established above,

however, Cavanaugh’s tribal court misdemeanor domestic assault convictions did

not offend the Constitution.

2. Congress Made a Rational Choice To Permit Use

of Tribal Court Convictions as Prior “Final Convictions”

in Section 117(a), and that Satisfies Due Process.

Whether Cavanaugh’s rights are violated by Congress’ decision to permit

use of his tribal court misdemeanor convictions as prior “final convictions” in the

Section 117(a) prosecution must be tested under the rationality principle of the Due

Process Clause, “with the deference that a reviewing court should give to a

legislative determination.” Lewis, 445 U.S. at 67 & n.9.

33


We have explained above (pp. 11-15) the reasonableness of Congress’

determination that Section 117 was an appropriate response to the problem of

recidivist domestic violence in Indian country. Tribes lack jurisdiction to punish

such offenses when committed by non-Indians, even against Indian victims, and

the tribes are limited to misdemeanor punishment. The occurrence of domestic

violence in Indian country is an especially serious problem. Recidivism is a

frequent occurrence, with the degree of violence and the injuries inflicted on the

victim escalating as the offender recidivates.

In Section 117(a), Congress specifically included prior “final conviction[s]”

for domestic assault and like offenses obtained in “Indian tribal court

proceedings.” Congress could rationally reach the conclusion that tribal court

convictions are sufficiently reliable that a defendant who has twice been convicted

of the specified domestic violence offenses should be liable to federal prosecution

and punishment when he subsequently commits a domestic violence offense.

Congress was well aware that tribal courts do not universally provide counsel to

indigent defendants, and that ICRA does not provide all the safeguards of the Bill

of Rights in recognition of “the unique political, cultural, and economic needs of

tribal governments.” Santa Clara Pueblo, 436 U.S. at 62-63. Yet Congress has

provided a range of guarantees to ensure a baseline of fairness in tribal

34


prosecutions and has afforded habeas review in federal court of any tribal

misdemeanor conviction for which the defendant is sentenced to imprisonment. Id.

at 67; ICRA Section 1303. Congress could rationally conclude that these

safeguards produced a sufficiently reliable outcome to support use of a tribal court

conviction to show habitual offender status.

3. There Is No Constitutional Restriction on Section 117(a)’s

Inclusion of Uncounseled Tribal Court Misdemeanor Convictions.

Nichols v. United States, 511 U.S. 738 (1994), strongly supports the

conclusion that there is no constitutional restriction on Section 117(a)’s inclusion

of uncounseled tribal court misdemeanor convictions as predicate prior final

convictions. Nichols held that a constitutionally valid uncounseled misdemeanor

conviction for which no imprisonment was imposed may be used for purposes of

sentencing enhancement in a subsequent prosecution. In Nichols, the defendant

had been convicted of a prior state misdemeanor for which he was fined but not

imprisoned. 511 U.S. at 740. He later pleaded guilty under 21 U.S.C. § 846 to a

federal drug conspiracy. At sentencing, his criminal history category under the

Sentencing Guidelines was enhanced because of his prior misdemeanor conviction,

thereby increasing his sentencing range under the then-mandatory Guidelines.

Nichols did not dispute that his uncounseled conviction was valid under Scott v.

Illinois, supra, because he was not sentenced to imprisonment for that offense. He

35


sought to rely, however, on Baldasar v. Illinois, supra, which held that an

uncounseled misdemeanor conviction that is constitutionally valid because no

imprisonment was imposed may not be used under an enhanced penalty statute to

convert a subsequent misdemeanor into a felony with imprisonment. In Nichols,

the Supreme Court disagreed, overruling Baldasar and holding that “an

uncounseled conviction valid under Scott may be relied upon to enhance the

sentence for a subsequent offense, even though that sentence entails

imprisonment.” 511 U.S. at 746-747.

Nichols overruled Baldasar, including its holding precluding use of a

constitutionally valid uncounseled misdemeanor conviction to elevate a

misdemeanor offense into a felony for which imprisonment is imposed. The

principle of Nichols is that a conviction that is valid for its own purposes, despite

the absence of counsel, is also valid for use in a subsequent federal prosecution,

whether for sentencing enhancement or as a component of an element of an

offense. Courts have so interpreted Nichols. See United States v. Jackson, 493

F.3d 1179 (10 Cir. 2007) (Nichols allows prior uncounseled misdemeanorth

conviction to be used to deny statutory eligibility for safety-valve treatment that

would grant relief from mandatory minimum sentence); United States v.

Perez-Macias, 335 F.3d 421 (5 Cir. 2003) (valid uncounseled misdemeanorth

36


conviction can be used to elevate illegal reentry offense to a felony); United States

v. Benally, 756 F.2d 773 (10 Cir. 1985) (uncounseled tribal misdemeanorth

convictions for which imprisonment was imposed may be considered in sentencing

for subsequent federal conviction); State v. Spotted Eagle, 71 P.3d 1239 (Mont.

2003) (such tribal convictions may be considered to enhance subsequent state

conviction from misdemeanor to felony); cf. State v. Watchman 809 P.2d 641

(N.M. Ct. App. 1991) (New Mexico Constitution precludes use of such tribal

convictions to enhance sentence for subsequent state conviction); compare United

States v. Ortega, 94 F.3d 764, 770-771 (2d Cir. 1996) (uncounseled state

misdemeanor conviction for which imprisonment was imposed, invalid under

Scott, cannot be counted in calculating criminal history under the Sentencing

Guidelines because the Guidelines define a qualifying misdemeanor offense based

on the term of imprisonment imposed, and the term of imprisonment for

uncounseled misdemeanor convictions is constitutionally invalid).

Like Nichols’ prior conviction, Cavanaugh’s prior convictions do not offend

the Constitution. Their subsequent use in a proceeding designed to punish repeat

offenders does not constitute punishment for those prior offenses; rather, the

Supreme Court “consistently has sustained repeat-offender laws as penalizing only

the last offense committed by the defendant.” Nichols, 511 U.S. at 747. Nichols

37


necessarily rejected any constitutional limitation based on concern that the

determination of guilt for an uncounseled misdemeanor conviction is less reliable

than it would be if counsel were provided. In other statutory contexts, Congress

plainly has incorporated as an element of an offense the existence of a prior legal

judgment that was obtained on proof less than beyond a reasonable doubt. See,

e.g., 18 U.S.C. § 922(g)(8) (firearm prohibition applies to a person who is subject

to a civil protection order); Lewis, 445 U.S. at 57 n.2, 64 (firearm prohibition at

that time extended to persons under felony indictment). The choice Congress

made in Section 117(a) to include predicate uncounseled tribal court misdemeanor

convictions to show recidivist status was rational, and thus satisfies due process.

4. There Is No Pertinent Distinction Between Using a Prior

Conviction To Prove an Element of an Offense and Its

Use for Sentencing Enhancement or Other Purposes.

The district court sought to distinguish the use of a prior misdemeanor

conviction under Section 117(a) “to prove an essential element of a federal crime”

from the use of such convictions “for purposes of sentencing enhancement, for

purposes of impeachment, or as evidence under Fed. R. Evid. 404(b).” JA 95 (Op.

22) . There is no pertinent distinction, however, except that the element must be

proved beyond a reasonable doubt whereas the fact of conviction for purposes of

sentencing enhancement may be found by the sentencing judge by a preponderance

38


of the evidence. Congress plainly did not intend that the government would be11

required to prove the underlying conduct of the prior conviction in the context of

the Section 117(a) prosecution.

5. Indian Defendants in Section 117(a) Prosecutions Are Not

Disadvantaged Compared to Non-Indian Defendants Whose

Prior Convictions Were Obtained in State or Federal Court.

The district court also was concerned that an Indian defendant facing a

Section 117(a) prosecution predicated on prior tribal court misdemeanor

convictions would be unfairly disadvantaged as compared with a non-Indian

defendant who was charged with a Section 117(a) offense predicated on state or

federal misdemeanor convictions for similar offenses. The district court explained

that its ruling precluding use of uncounseled tribal court misdemeanor convictions

in a Section 117(a) prosecution “puts all defendants indicted under 18 U.S.C. § 117

In Almendarez-Torres v. United States, 523 U.S. 224 (1998), the Supreme11

Court held that the fact of a prior conviction used to enhance a sentence need not

be alleged in a federal indictment or proved beyond a reasonable doubt, but may be

found by the sentencing judge by a preponderance of the evidence. The Court

adhered to this rule even after holding in Apprendi v. New Jersey, 530 U.S. 466

(2000), that any other fact used to increase the maximum punishment must be

alleged in the indictment and proved beyond a reasonable doubt. E.g., James v.

United States, 550 U.S. 192, 214 n.8 (2007). Because Congress has defined the

elements of the Section 117(a) offense that to include proof that defendant had two

or more prior final convictions for domestic assault or like offenses at the time he

committed the subsequent alleged domestic assault, the fact of such prior

convictions must be alleged in the indictment and proved beyond a reasonable

doubt.

39


on the same playing field. As it stands now, American Indians are the only group

of defendants that could face conviction under 18 U.S.C. § 117(a) as a result of

underlying convictions for which they had no right to appointed counsel. * * *

There is simply no compelling reason to sacrifice constitutional order by allowing

an essential element to be established by use of an uncounseled conviction solely

because the defendant happens to be Indian.” JA 97 (Op. 24) . The court’s

concern was premised on its assumption that a Section 117(a) predicate conviction

could not include a state or federal uncounseled misdemeanor conviction where

the conviction was obtained without the right to appointed counsel and a sentence

of imprisonment was imposed. JA 93 (Op. 20 n.8).

The district court was wrong, however, to believe that, if an indigent

defendant in state or federal court was denied appointed counsel in a misdemeanor

prosecution for which he is sentenced to imprisonment, he may preclude the use of

that conviction in a subsequent prosecution. Contrary to the district court’s

assumption, if such a state or federal misdemeanor conviction was a “final

conviction” at the time defendant committed the domestic assault alleged in a

Section 117(a) indictment, that final conviction can be used as a predicate prior

40


conviction under Section 117(a). This is so for two reasons. 12

First, as discussed above, even under the most generous provisions of 21

U.S.C. § 851, a prerequisite for any challenge to a prior conviction in the context

of another prosecution is a showing by the defendant that the conviction itself is

constitutionally invalid. A misdemeanor conviction may be constitutionally

obtained without benefit of counsel if no imprisonment is imposed, Scott, supra,

and it may be used as a predicate offense in a subsequent prosecution, Nichols,

supra. The constitutional infirmity when imprisonment is imposed for a state or

federal misdemeanor conviction is the imposition of imprisonment itself, not the

fact of conviction. It is not pertinent to the right to counsel whether a misdemeanor

defendant is exposed to the punishment of imprisonment, only whether

imprisonment actually is imposed as a sentence. Scott. The determination of guilt

We note that the district court, in assuming that appointed counsel is12

required for all state or federal misdemeanor convictions for which imprisonment

is imposed (JA 93 (Op. 20 n.8) overlooked the limitation that the constitutional

right to counsel requires the offer of appointed counsel only to indigent defendants.

Argersinger, supra. In a collateral attack on a prior uncounseled conviction, the

burden is on the defendant to establish the invalidity of his conviction or sentence.

Iowa v. Tovar, 541 U.S. 77, 92-93 (2004); see 21 U.S.C. § 851(c)(2) (in a

sentencing enhancement proceeding when collateral attack is permitted on the

validity of a prior conviction, the defendant bears the burden of proving any issue

of fact on which his attack relies). Cavanaugh has not as yet provided any

evidence that he was indigent at the time of the tribal court convictions the

government seeks to use in this case.

41


is the same, and it is obtained by the same procedures, whether counsel is provided

or not. Accordingly, an indigent defendant convicted of a misdemeanor offense in

state or federal court and sentenced to imprisonment without the right to appointed

counsel may have his term of imprisonment vacated on direct or collateral review,

but may not have the conviction itself overturned. See Iowa v. Tovar, 541 U.S. at

88 n.10 (acknowledging argument but not ruling on it); Ortega, 94 F.3d at 769 (2d

Cir.) (“[W]e reject defendants-appellants’ contention that their state court

convictions are invalid. Under Scott, the Sixth Amendment protects an

uncounseled misdemeanor defendant not from a judgment of conviction but from

the imposition of certain types of sentences. The appropriate remedy for a Scott

violation, therefore, is vacatur of the invalid portion of the sentence, and not

reversal of the conviction itself.”); United States v. Reilley, 948 F.2d 648, 654 (10th

Cir.1991) (vacating suspended term of imprisonment imposed on uncounseled

misdemeanor defendant but affirming conviction and fine); United States v. White,

529 F.2d 1390, 1394 (8 Cir.1976) (same); Ex Parte Shelton, 851 So. 2d 96, 102th

(Ala. 2000) (vacating suspended sentence for uncounseled misdemeanor

conviction, but affirming conviction), aff’d Alabama v. Shelton, 535 U.S. 654

(2002) (deciding that Argersinger applies even when a term of imprisonment is

suspended; not considering the lower court’s holding that the proper remedy is to

42


affirm the conviction but vacate the sentence of imprisonment); but see United

States v. Eckford, 910 F.2d 216, 218 (5 Cir.1990) (“If an uncounseled defendantth

is sentenced to prison, the conviction itself is unconstitutional.”) (dictum).

The second reason that an Indian defendant is not disadvantaged as

compared to a Section 117(a) defendant who has uncounseled predicate state or

federal misdemeanor convictions is that Custis limits the attack that may be

launched in the context of the Section 117(a) prosecution. Not all violations of the

right to counsel may be entertained. Only the unique and fundamental defect

inherent in a Gideon violation – the deprivation of counsel in the determination of

guilt for a felony offense – may be raised as a barrier to use of a predicate

conviction. Custis, 511 U.S. at 496-497. There is no constitutional defect in the

determination of guilt for the uncounseled misdemeanor conviction; the defect lies

in the sentence. Even if, contrary to the approach adopted in the above-cited cases,

the appropriate prophylactic remedy for an Argersinger violation is to vacate the

otherwise valid conviction as well as the illegal sentence, the nature of the

constitutional defect in sentencing an uncounseled misdemeanor defendant to

imprisonment is not as fundamental as a Gideon violation, and thus could not be

raised in a Section 117(a) prosecution as a bar to use of a predicate conviction.

Thus, Indian and non-Indian defendants stand on an equal footing in a

43


Section 117(a) prosecution. Their prior “final convictions” for misdemeanor

domestic assault are admissible whether obtained in tribal, state, or federal court.

The district court was wrong to support its ruling on its misconception that Indian

defendants are disadvantaged.

6. Even If Indian Defendants in Section 117(a) Prosecutions

Were Treated Differently Than Non-Indian Defendants,

It Would Not Violate the Constitution.

Even if Congress had treated Indian defendants and non-Indian defendants

differently in a Section 117(a) prosecution, that would not have violated the equal

protection component of the Due Process Clause. See United States v. Antelope,

430 U.S. 641 (1997) (prosecution of Indian for felony murder under 18 U.S.C. §§

1111 & 1153 does not violate equal protection principles even though a non-Indian

could not be prosecuted for a like offense under the state law applicable to non-

Indian defendants). Legislation that “singles out Indians for particular and special

treatment” will be upheld “[a]s long as the special treatment can be tied rationally

to the fulfillment of Congress’ unique obligation toward the Indians.” Morton v.

Mancari, 417 U.S. 535, 554-555 (1974). As we have explained, Congress made a

rational choice in determining that tribal court misdemeanor convictions could be

counted as recidivist offenses under Section 117(a) and that such inclusion was

appropriate to combat the special problem of domestic violence in Indian country.

44


7. The District Court Erred in Relying on

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

The district court also was mistaken in relying (JA 94-95 (Op 21-22)) on the

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

That case is readily distinguishable.

In Ant, an Indian defendant was charged in federal court with voluntary

manslaughter under 18 U.S.C. §§ 1112 and 1153. He previously had pleaded

guilty in tribal court to the assault that resulted in the victim’s death and was

sentenced to six months of imprisonment. 882 F.2d at 1390-1391. The trial judge

offered Ant the right to appointed counsel if he was indigent. Id. at 1392 (tribal

judge told Ant “that he had a right to a court-appointed attorney”). But the Ninth

Circuit held that Ant’s waiver of that right to counsel was not knowingly and

intelligently made. Id. 1394. Relying in part on the then-extant holding in

Baldasar that even a valid, uncounseled misdemeanor conviction cannot be used in

a subsequent prosecution if that subsequent prosecution results in imprisonment,

the court of appeals concluded that Ant’s tribal court guilty plea could not be

admitted in the federal prosecution to prove that he committed the underlying

conduct. Id. at 1394, 1395-1396. The court of appeals recognized that Ant’s

statement in the tribal court that he was guilty of assaulting the victim – as opposed

to his conviction for that offense – might be admissible in a federal prosecution to

45


prove that he committed the conduct if that statement was found to have been

voluntarily made, but the record before the Ninth Circuit did not permit an

assessment of the statement’s voluntariness. Id. at 1394-1395.

An important distinction between Ant and the present case is that Ant

involved the circumstance that would exist if Section 117(a) required proof that the

defendant actually committed two prior acts of domestic assault before committing

the domestic assault alleged in the Section 117(a) indictment, rather than proof that

he had two final convictions for domestic assault or like offenses. In the

circumstance of Ant, the accuracy of the prior conviction beyond a reasonable

doubt was at issue, not merely the fact of the prior conviction.

Moreover, the Ninth Circuit acknowledged that a defendant’s voluntary

admission of factual guilt in the tribal court – as evidenced by the transcript rather

than the judgment of conviction – might be admissible in a federal prosecution to

prove guilt of the underlying conduct if the admission was voluntarily made, and a

voluntary admission can be made without benefit of counsel. See 18 U.S.C. §

3501 (governing admissibility of confessions).

Ant’s holding was based on its conclusion that, with respect to Ant’s tribal

court guilty plea, “the available facts do not support the conclusion that Ant

knowingly and intelligently waived his Sixth Amendment rights under federal and

46


Ninth Circuit standards.” 882 F.2d at 1394. But Ant had no Sixth Amendment

right in the tribal court. To the extent the defect in Ant’s waiver was that he

misunderstood his non-Constitutional right, granted by the tribal judge, to have

appointed counsel if he were indigent, that invalid waiver would not violate the

Constitution.13

Ant also should not be followed because it substantially relied on the

holding of Baldasar, which subsequently was overruled by Nichols. See State v.

Spotted Eagle, 71 P.3d 1239, 1244 n.1 (Mont. 2003) (“In light of Nichols, the

continued viability of Ant is questionable, at best.”).

See also our discussion at pp. 39-44 concerning the restrictions on13

challenging the validity of a prior conviction in a subsequent prosecution. In the

circumstance of Ant, where the prior tribal court conviction was being offered in

the federal prosecution for purposes of proving the underlying conduct beyond a

reasonable doubt – which is not the case in a Section 117(a) prosecution – concerns

respecting the accuracy of that conviction may be handled appropriately under Fed.

R. Evid. 403, either by excluding it or admitting it with an appropriate limiting

instruction. Thus, the result of Ant on its facts may be correct, but supported by a

non-constitutional rationale.

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CONCLUSION

For the reasons stated above, the district court order dismissing the

indictment should be reversed and the case remanded for further proceedings.

Respectfully submitted,

LYNN C. JORDHEIM LANNY A. BREUER

Acting United States Attorney Assistant Attorney General


KEITH W. REISENAUER GREGORY D. ANDRES

JANICE M. MORLEY Acting Deputy Assistant

Assistant United States Attorneys Attorney General


RICHARD A. FRIEDMAN

Appellate Section, Criminal Division

United States Department of Justice

Washington, D.C. 20530

202-514-3965

(fax) 202-305-2121

[email protected]

March 18, 2010 Counsel for Appellant

48



CERTIFICATE OF COMPLIANCE PURSUANT TO

FEDERAL RULE OF APPELLATE PROCEDURE 32(a)(7)(C)

I certify that, pursuant to Fed. R. App. P. 32(a)(7)(C), the foregoing brief is

set in Times New Roman, 14 point type, and contains 12,034 words, as measured

by using the WordPerfect X4 software.

Richard A. Friedman

March 18, 2010

CERTIFICATION OF CONFORMITY OF EMAIL SUBMISSION,

VIRUS PROTECTION, AND PRIVACY REDACTION

The undersigned hereby certifies that the copy of this brief that was

electronically transmitted to the Court on March 18, 2010, was identical to the hard

copy of the brief filed the same day, that any required privacy redactions have been

made, and that the emailed submission has been virus scanned by McAfee Virus

Scan Enterprise 8.7.0i, which is updated continuously, and is free of viruses.

Richard A. Friedman

March 18, 2010

49


CERTIFICATE OF SERVICE

Two copies of the foregoing brief have been served this day by overnight

delivery on counsel for appellee at the following mailing address, and an electronic

copy has been served to the following email address:

Alexander F. Reichert, Esq.

Reichert Law Office PC

218 S 3d Street

Grand Forks, ND 58201

701-787-8802

[email protected]

Counsel for Appellee Roman Cavanaugh, Jr.

Richard A. Friedman

March 18, 2010

50



ADDENDUM

District Court Order on Motion To Dismiss the Indictment

51


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