10-1154 IN THE UNITED STATES COURT OF APPEALS FOR …In light of the complexity of the issues and...
Transcript of 10-1154 IN THE UNITED STATES COURT OF APPEALS FOR …In light of the complexity of the issues and...
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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
District of North Dakota Criminal Division
RICHARD A. FRIEDMAN
Appellate Section, Criminal Division
United States Department of Justice
Washington, D.C. 20530
202-514-3965
(fax) 202-305-2121
Counsel for Appellant
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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)).
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“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).
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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).
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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
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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
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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.”)
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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).
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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
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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
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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.
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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
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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.
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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
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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
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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
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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
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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
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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.
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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
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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.
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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
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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
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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.
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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
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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
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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
District of North Dakota Criminal Division
KEITH W. REISENAUER GREGORY D. ANDRES
JANICE M. MORLEY Acting Deputy Assistant
Assistant United States Attorneys Attorney General
District of North Dakota Criminal Division
RICHARD A. FRIEDMAN
Appellate Section, Criminal Division
United States Department of Justice
Washington, D.C. 20530
202-514-3965
(fax) 202-305-2121
March 18, 2010 Counsel for Appellant
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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
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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
Counsel for Appellee Roman Cavanaugh, Jr.
Richard A. Friedman
March 18, 2010
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ADDENDUM
District Court Order on Motion To Dismiss the Indictment
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