554 F.3d 840 (9th Cir. 2009), 07-30384, United States v. Cruz

Docket Nº:07-30384.
Citation:554 F.3d 840
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Christopher Patrick CRUZ, Defendant-Appellant.
Case Date:February 10, 2009
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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554 F.3d 840 (9th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,


Christopher Patrick CRUZ, Defendant-Appellant.

No. 07-30384.

United States Court of Appeals, Ninth Circuit.

February 10, 2009

Argued and Submitted Aug. 11, 2008.

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[Copyrighted Material Omitted]

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Ryan M. Archer, Assistant United States Attorney, United States Attorney's Office for the District of Montana, Helena, MT, for the plaintiff-appellee.

Joseph E. Thaggard, Assistant United States Attorney, United States Attorney's Office for the District of Montana, Helena, MT, for the plaintiff-appellee.

R. Henry Branom Jr., Assistant Federal Defender, Federal Defender for the District of Montana, Great Falls, MT, for the defendant-appellant.

Appeal from the United States District Court for the District of Montana, Sam E. Haddon, District Judge, Presiding. D.C. No. CR-07-00052-SEH.


Opinion by Judge REINHARDT; Dissent by Chief Judge KOZINSKI.

REINHARDT, Circuit Judge:

At first glance, there appears to be something odd about a court of law in a diverse nation such as ours deciding whether a specific individual is or is not " an Indian." 1 Yet, given the long and complex relationship between the government of the United States and the sovereign tribal nations within its borders, the criminal jurisdiction of the federal government often turns on precisely this question-whether a particular individual " counts" as an Indian-and it is this question that we address once again today.

As our court has noted before, the law governing " [t]he exercise of criminal jurisdiction over Indians and Indian country [encompasses] a ‘ complex patchwork of federal, state, and tribal law,’ which is better explained by history than by logic." United States v. Bruce, 394 F.3d 1215, 1218 (9th Cir.2005) (quoting Duro v. Reina, 495 U.S. 676, 680 n. 1, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990)). From that history, and from various cases we have decided over the years, our circuit has distilled a specific test for determining whether an individual can be prosecuted by the federal government under 18 U.S.C. § 1153, a statute governing the conduct of Indians in Indian Country. We announced that test in United States v. Bruce, 394 F.3d 1215 (9th Cir.2005), a case that both parties agree controls our analysis today. Because the evidence adduced during Christopher Cruz's trial does not satisfy any of the four factors outlined in the second

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prong of the Bruce test, we hold that, even when viewed in the light most favorable to the government, his conviction cannot stand. The district court's failure to grant Cruz's motion for judgment of acquittal was plain error, and accordingly we reverse.


Cruz was born in 1987 to Roger Cruz and Clara Clarice Bird. His father is Hispanic and his mother is 29/64 Blackfeet Indian and 32/64 Blood Indian. The Blackfeet are a federally recognized tribe based in northern Montana; the Blood Indians are a Canadian tribe. Given his parents' heritage, Cruz is 29/128 Blackfeet Indian and 32/128 Blood Indian.

For a period of three or four years during his childhood, Cruz lived in the town of Browning, Montana on the Blackfeet Reservation. Between the age of seven and eight, he moved off the reservation and spent the next ten years living first with his father in Great Falls, Montana and subsequently with his uncle in Delano, California. Neither Great Falls nor Delano is located on an Indian reservation or otherwise located in Indian country.2 In 2005, Cruz returned to Montana, living for a period of time in the town of Cut Bank, which is located just outside the boundaries of the Blackfeet Reservation. Shortly before the incident underlying this case, Cruz moved back to Browning, where he rented a room at the Town Motel.

On December 21, 2006, Cruz and a group of friends spent a part of the evening drinking in his room at the Town Motel. While standing outside the motel talking on a cordless phone to his girlfriend, Cruz was approached by Eudelma White Grass, who had been drinking in a neighboring room and was heavily intoxicated. An altercation took place in which White Grass was severely injured.

Cruz was arrested and charged with " [a]ssault resulting in serious bodily injury," 18 U.S.C. § 113(a)(6), which is a federal offense when committed by an Indian on an Indian reservation, 18 U.S.C. § 1153. He pled not guilty and went to trial, where his Indian status was a contested issue. At the close of the government's case-in-chief, Cruz moved for judgment of acquittal, contending that the government failed to establish his Indian status by proof beyond a reasonable doubt.3 The district court denied the motion. Cruz subsequently took the stand in his own defense and was ultimately convicted. He now appeals, arguing that there was insufficient evidence that he is an Indian under § 1153 and that the district court committed reversible error when instructing the jury as to how to determine his Indian status.


The standard of review to be applied on appeal is contested by the parties. We begin by observing that, even though the question " of Indian status operates as a jurisdictional element under § 1153," Bruce, 394 F.3d at 1228, de novo review is not appropriate given the posture of this case. Although jurisdictional questions are ordinarily reviewed de novo, when a

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defendant brings a motion for acquittal in order to challenge the sufficiency of the evidence underlying a jurisdictional element, we owe deference to the jury's ultimate factual finding.4 See United States v. Gomez, 87 F.3d 1093, 1097 n. 3 (9th Cir.1996) (citing United States v. Vasquez-Velasco, 15 F.3d 833, 838-39 (9th Cir.1994)). Accordingly, if such a challenge is properly made, we review the district court's decision under the standard applied to sufficiency-of-the-evidence challenges: " whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis omitted); see United States v. Vizcarra-Martinez, 66 F.3d 1006, 1009-10 (9th Cir.1995); see also United States v. Morgan, 238 F.3d 1180, 1185-86 (9th Cir.2001) (noting applicability of this standard to jurisdictional elements).

Here, however, Cruz's sufficiency-of-the-evidence challenge made at the close of the prosecution's case-in-chief was not preserved because no new challenge was made following submission of all of the evidence. " The proper way ... to challenge the sufficiency of the government's evidence pertaining to [a] jurisdictional element ... is a motion for acquittal under Rule 29, presented at the close of the government's case-in-chief." 5 Morgan, 238 F.3d at 1186 (internal quotation marks omitted) (quoting United States v. Nukida, 8 F.3d 665, 672-73 (9th Cir.1993)). But should such a motion be denied, it must be renewed following submission of all the evidence or it is deemed waived. United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1200 (9th Cir.2000). Cruz failed to renew his motion. As a result, the standard of review in this case rises to the at least theoretically more stringent " plain error" standard. Id. at 1200-01 We say " theoretically" because, while plain-error review appears more stringent in theory, it is hard to comprehend how a standard can be any more stringent in actuality than that ordinarily applied to sufficiency-of-the-evidence challenges. As we observed in Vizcarra-Martinez :

[U]nder our ordinary test-the standard applicable when the defendant makes all the proper motions-we cannot reverse

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unless there is a clear showing as to insufficiency: we must affirm if any rational trier of fact could have found the evidence sufficient. Thus, it is difficult to imagine just what consequences flow from our application of the [plain error] standard [ ] or to envision a case in which the result would be different because of the application of one rather than the other of the standards.

66 F.3d at 1010. Our case law, however, has repeatedly parsed the increasingly thin differences between standards of review, slicing ever finer and finer distinctions whose practical consequences are seemingly minuscule, if not microscopic. As a result of these exercises in abstraction, our standards of review continue to multiply, the relationships between them growing more obscure with each iteration. Still, because an existing decision of this court has clearly held that plain-error review applies when a jurisdictional element is the subject of an unrenewed motion for acquittal, we dutifully apply that standard in this case. See Morgan, 238 F.3d at 1186; see also United States v. Singh, 532 F.3d 1053, 1056-57 (9th Cir.2008).

Under plain-error review, reversal is permitted only when there is (1) error that is (2) plain, (3) affects substantial rights, and (4) " seriously affects the fairness, integrity, or public reputation of judicial proceedings." Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). When a conviction is predicated on insufficient evidence, the last two prongs of the Olano test will necessarily be satisfied: A defendant's " substantial rights," as well as the " fairness" and " integrity" of the courts, are seriously affected when someone is sent to jail for a crime that, as a matter of law, he did not commit, or when the court, as a matter of law, has no jurisdiction to try him for the alleged offense. See United States v. Dominguez Benitez, 542 U.S. 74, 81, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66...

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