792 F.3d 1103 (9th Cir. 2015), 10-10131, United States v. Zepeda

Docket Nº:10-10131
Citation:792 F.3d 1103
Opinion Judge:William A. Fletcher, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAMIEN ZEPEDA, Defendant-Appellant
Attorney:Michele R. Moretti (argued), Law Office of Michele R. Moretti, Lake Butler, Florida, for Defendant-Appellant. Robert Lally Miskell (argued), Assistant United States Attorney, Office of the United States Attorney, Tucson, Arizona; Joan G. Ruffennach, Assistant United States Attorney, Mark S. Kokan...
Judge Panel:Before: Harry Pregerson, Alex Kozinski, Barry G. Silverman, Kim McLane Wardlaw, William A. Fletcher, Ronald M. Gould, Richard A. Paez, Richard C. Tallman, Consuelo M. Callahan, Sandra S. Ikuta and Morgan Christen, Circuit Judges. Opinion by Judge W. Fletcher; Concurrence by Judge Kozinski; Concur...
Case Date:July 07, 2015
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1103

792 F.3d 1103 (9th Cir. 2015)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

DAMIEN ZEPEDA, Defendant-Appellant

No. 10-10131

United States Court of Appeals, Ninth Circuit

July 7, 2015

Argued and Submitted En Banc, Seattle, Washington June 18, 2014.

Appeal from the United States District Court for the District of Arizona. D.C. No. 2:08-cr-01329-ROS-1. Roslyn O. Silver, Senior District Judge, Presiding.

SUMMARY[*]

Criminal Law

The en banc court affirmed a defendant's convictions and sentence under the Indian Major Crimes Act, which authorizes federal jurisdiction over certain crimes committed by Indians in Indian country.

The en banc court held in order to prove Indian status under the IMCA, the government must prove that the defendant (1) has some quantum of Indian blood and (2) is a member of, or is affiliated with, a federally recognized tribe. The court held further that under the IMCA, a defendant must have been an Indian at the time of the charged conduct, and that, under the second prong, a tribe's federally recognized status is a question of law to be determined by the trial judge. Overruling United States v. Maggi, 598 F.3d 1073 (9th Cir. 2010), the en banc court held that the federal recognition requirement does not extend to the first prong of the Indian status test. The court held that the evidence at trial was sufficient to support the finding that the defendant was an Indian within the meaning of the IMCA at the time of his crimes.

The en banc court held that the defendant's sentence was not unreasonable because it was mandated by 18 U.S.C. § 924(c), which required the district court to impose consecutive mandatory minimum sentences on the defendant's convictions for use of a firearm during a crime of violence.

The en banc court agreed with the three-judge panel's reasons for rejecting the defendant's other arguments, and it adopted those reasons as its own.

Concurring in the judgment, Judge Kozinski, joined by Judge Ikuta, wrote that under the majority's holding, the IMCA is a criminal statute whose application, in violation of equal protection, turns on whether a defendant is of a particular race. Judge Kozinski wrote that he would instead affirm the conviction either by applying the IMCA to all members of federally recognized tribes irrespective of their race, or by holding, consistent with Maggi, that the jury had sufficient evidence to infer that the defendant's ancestry was from a federally recognized tribe.

Concurring in the judgment, Judge Ikuta, joined by Judge Kozinski, wrote that the court should not continue to define an Indian by the " degree of Indian blood" because this definition disrespects tribal sovereignty and perpetuates the " sorry history" of this method of establishing race-based distinctions.

Michele R. Moretti (argued), Law Office of Michele R. Moretti, Lake Butler, Florida, for Defendant-Appellant.

Robert Lally Miskell (argued), Assistant United States Attorney, Office of the United States Attorney, Tucson, Arizona; Joan G. Ruffennach, Assistant United States Attorney, Mark S. Kokanovich and Randall M. Howe, Deputy Appellate Chiefs, and Ann Birmingham Scheel, Acting United States Attorney, Phoenix, Arizona, for Plaintiff-Appellee.

Paul Whitfield Hughes (argued), Charles Rothfeld, Michael Kimberly and Breanne Gilpatrick, Mayer Brown LLP, Washington, D.C.; David Porter, Sacramento, California, for Amici Curiae National Association of Criminal Defense Lawyers and Ninth Circuit Federal Public and Community Defenders.

Before: Harry Pregerson, Alex Kozinski, Barry G. Silverman, Kim McLane Wardlaw, William A. Fletcher, Ronald M. Gould, Richard A. Paez, Richard C. Tallman, Consuelo M. Callahan, Sandra S. Ikuta and Morgan Christen, Circuit Judges. Opinion by Judge W. Fletcher; Concurrence by Judge Kozinski; Concurrence by Judge Ikuta.

OPINION

William A. Fletcher, Circuit Judge:

Damien Zepeda appeals from his convictions and sentence on one count of conspiracy to commit assault with a dangerous weapon and to commit assault resulting in serious bodily injury; one count of assault resulting in serious bodily injury; three counts of assault with a dangerous weapon; and four counts of use of a firearm during a crime of violence. We affirm.

The crimes took place on the Ak-Chin Indian Reservation in Arizona. The government charged Zepeda under the Indian Major Crimes Act (" IMCA" ), 18 U.S.C. § 1153, which authorizes federal jurisdiction over certain crimes committed by Indians in Indian country. To sustain a prosecution under the IMCA, the government must establish that the defendant is an Indian within the meaning of that statute. Zepeda argues, among other things, that the evidence at trial was insufficient to support the jury's finding that he was an Indian under the IMCA.

In United States v. Bruce, 394 F.3d 1215, 1223 (9th Cir. 2005), we laid out a two-part test for establishing a person's status as an Indian under the IMCA: the defendant must (1) have Indian blood and (2) be recognized by a tribe or the federal government as an Indian. In United States v. Maggi, 598 F.3d 1073, 1080-81 (9th Cir. 2010), decided after Zepeda's trial had finished, we added a gloss to both prongs of the Bruce test, holding that the government must prove that (1) the defendant has a quantum of Indian blood traceable to a federally recognized tribe and (2) the defendant is a member of, or is affiliated with, a federally recognized tribe. In the case now before us, a three-judge panel held that the government had not presented sufficient evidence to satisfy the first prong of the Bruce test as modified by Maggi. For the reasons we explain below, we overrule Maggi. While Maggi appropriately clarified the second prong of the Bruce test to require a relationship with a federally recognized tribe, Maggi erred in extending the federal recognition requirement to the first prong. We now hold that under the first prong of the Bruce test the government need only prove that the defendant has some quantum of Indian blood, whether or not traceable to a federally recognized tribe. We thus hold that in order to prove Indian status under the IMCA, the government must prove that the defendant (1) has some quantum of Indian blood and (2) is a member of, or is affiliated with, a federally recognized tribe. We hold further that under the IMCA, a defendant must have been an Indian at the time of the charged conduct, and that, under the second Bruce prong, a tribe's federally recognized status is a question of law to be determined by the trial judge.

We hold that the evidence at trial was sufficient to support the finding that Zepeda was an Indian within the meaning of the IMCA at the time of his crimes. We reject Zepeda's other challenges to his convictions and sentence.

I. Background

We recount the evidence in the light most favorable to the jury's verdict. See United States v. Hicks, 217 F.3d 1038, 1041 (9th Cir. 2000). On October 25, 2008, Zepeda and his brother Matthew were drinking beer and malt liquor at Zepeda's mother's house in Maricopa, Arizona. Zepeda asked Matthew if he wanted to go to a party, and Matthew agreed. Zepeda then called another of his brothers, Jeremy, and asked if he wanted to go to the party. Jeremy also agreed.

An unidentified driver picked up Zepeda, Matthew, and Jeremy. Zepeda told the driver to take them to a house located on the Ak-Chin Reservation. The house belonged to Dallas Peters and his wife, Jennifer Davis. Zepeda wanted to see his ex-girlfriend, Stephanie Aviles, who was at Peters's house with her sixteen-year-old cousin, " C" .

In the car, Zepeda and his brothers drank beer and smoked marijuana. Matthew and Jeremy still thought they were going to a party. The driver dropped them off near Peters's house. Matthew testified at trial that Zepeda told Jeremy to " grab something from the seat." Jeremy " wasn't paying attention," so Matthew reached under the car seat and pulled out a shotgun. Jeremy testified that Zepeda got out of the car holding a handgun and a shotgun, and that Zepeda tried to give the shotgun to Jeremy. When Jeremy refused, Zepeda gave the shotgun to Matthew. Zepeda told Matthew to fire the shotgun if he heard shots.

Matthew and Jeremy walked to the west side of Peters's house, and Zepeda approached the front door. Jeremy testified that he saw Zepeda carrying a handgun. At this point, Jeremy testified, he realized they were not at a party. Jeremy walked away toward the main road because he did not want to " get involved with something that . . . [was] going to jeopardize me and my family." Matthew stayed by the side of the house with the shotgun.

Zepeda knocked on the front door, and Peters answered. Zepeda asked to talk to Aviles, who came outside and walked with Zepeda to the northeast corner of the house. Zepeda asked Aviles to leave with him. When she refused, he grabbed her arms. She tried to push him away and felt what she thought was a gun in his pocket. From inside the house, C heard Zepeda and Aviles " getting louder," and she went outside to check on Aviles. Aviles turned around to return to the house, and Zepeda hit her in the head multiple times with something hard. Aviles fell face-down on the ground.

Zepeda pulled out a handgun and pointed it at C. She ran away down the east side of the house. She heard gunshots. Peters, who was urinating off his back porch at the time, heard the gunshots and walked to the southeast corner of the house. He saw C running toward him. He " grabbed her, pulled her in, like [to] shield her." While holding C, Peters was shot in the shoulder. He testified, " I didn't feel the round, but I seen blood come out so I knew I had to be...

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