U.S. v. Ant
| Decision Date | 09 August 1989 |
| Docket Number | No. 88-3035,88-3035 |
| Citation | 882 F.2d 1389 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Francis Floyd ANT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Vernon E. Woodward, Billings, Mont., for defendant-appellant.
Bryon H. Dunbar, U.S. Atty., and Robert L. Zimmerman, Asst. U.S. Atty., Billings, Mont., for U.S.
Appeal from the United States District Court for the District of Montana.
Before TANG, THOMPSON and O'SCANNLAIN, Circuit Judges.
In his federal manslaughter prosecution, Francis Floyd Ant appeals the district court's refusal to suppress a guilty plea made earlier in tribal court. Both the tribal and federal cases arise out of the same alleged incident. Ant claims that the plea should be suppressed because he did not have an attorney in tribal court and because the plea was not voluntary. In denying Ant's suppression motion, the district court found that the plea was made in concordance both with tribal law and the Indian Civil Rights Act (ICRA), 25 U.S.C. Sec. 1302, and ruled that suppressing the plea would violate principles of comity and disparage the tribal proceedings. On review, we hold that because the tribal court guilty plea was made under circumstances which would have violated the United States Constitution were it applicable to tribal proceedings, and because suppression of the plea would not violate principles of comity, would not be disparaging to the tribal court proceedings, and would not unduly prejudice the government, the judgment of the district court is reversed.
Except for the facts surrounding the acceptance of Ant's guilty plea in tribal court, the Government stipulated to the facts as presented by Ant.
On October 27, 1986, the body of an Indian woman was found on the Northern Cheyenne Indian Reservation. The victim was later identified as Keri Lynn Birdhat, a niece of Mr. Ant. On December 17, 1986, Bureau of Indian Affairs and tribal police went to Ant's residence and obtained a confession, even though Ant had not been advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After the confession, Ant was placed under arrest on tribal charges of assault and battery, and the tribal police chief read Ant his Miranda rights. Ant was then taken to tribal court for arraignment before Judge Spang where Ant entered a plea of guilty.
It is Judge Spang's normal practice at arraignment to advise defendants of their right to counsel, including the right to have counsel appointed, but not to ask defendants if they want or can afford an attorney. Ant claims that Judge Spang went immediately from reciting his rights to asking him if he were guilty or not guilty. Ant replied "guilty" and was sentenced to six months in jail, a sentence which he served. The Government contends that Judge Spang explained the meaning of a guilty plea ("that means you admit to the charge"), a contention that Ant does not refute. The Government also contends that Ant said that he understood his rights prior to pleading guilty.
On January 7, 1987, a federal indictment was filed charging Ant with voluntary manslaughter, under 18 U.S.C. Secs. 1112 and 1153, for "unlawfully and willfully" killing Birdhat. 1 Ant made his initial appearance in federal court on January 16, 1987 and was furnished appointed counsel.
On February 24, 1997, Ant moved to suppress his confession and his tribal court guilty plea on the grounds that this evidence was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). On March 27, 1987, the district court granted the motion to suppress the confession based on a violation of Miranda but denied the motion to suppress the tribal court guilty plea. Ant renewed the motion to suppress his tribal court guilty plea on November 13, 1987, this time on Sixth Amendment grounds. The district court denied this motion to suppress on December 30, 1987. In this ruling, the district court noted that the proceedings during the tribal court arraignment were consistent both with tribal law and the ICRA and concluded that:
[c]omity and respect for legitimate tribal proceedings requires that this Court not disparage those proceedings by suppressing them from evidence in this case.
On January 4, 1988, Ant filed a reservation of rights upon entry of a conditional guilty plea, pursuant to Fed.R.Crim.P. 11(a)(2). 2 After a sentencing hearing, the district court sentenced Ant to three years in prison and fined him $50. Ant was released on his own recognizance and the execution of his sentence was deferred pending this appeal. Ant filed his Notice of Appeal on February 4, 1988.
The ultimate legal issue presented by this appeal is whether an uncounseled guilty plea, made in tribal court in accordance both with tribal law and the ICRA, but which would have been unconstitutional if made in a federal court, can be admitted as evidence of guilt in a subsequent federal prosecution involving the same criminal acts. Before reaching this issue, three preliminary questions need to be addressed:
(a) whether the procedures surrounding Ant's guilty plea in tribal court did comply with tribal law and with the ICRA;
(b) whether a prior guilty plea can generally be used as evidence in a subsequent prosecution; and
(c) whether Ant's plea would have been constitutionally permissible had it been made in federal court.
According to Northern Cheyenne tribal law, Revised Law and Order Ordinances of the Northern Cheyenne Tribe of the Northern Cheyenne Reservation of Montana, Ch. 1, Sec. 9, the applicable law of the court in which Ant pleaded guilty, "[a]ny Indian charged with an offense, at his option and expense, may be represented in tribal court by professional legal counsel, or, by a member of the Tribe" (emphasis added). Also, according to the ICRA, "[n]o Indian tribe ... shall deny to any person in a criminal proceeding the right ... at his own expense to have assistance of counsel." 25 U.S.C. Sec. 1302(6). The Ninth Circuit has held that, the due process clause of the ICRA notwithstanding, 25 U.S.C. Sec. 1302(8), there is no federal right to appointed counsel in tribal criminal proceedings. Tom v. Sutton, 533 F.2d 1101 (9th Cir.1976). It is clear that in tribal court, Ant was entitled to have an attorney at his own expense, but that he was not entitled to have a court-appointed attorney. 3
The parties differ in their interpretation of the facts surrounding Ant's plea of guilty in tribal court. Ant admits that Tribal Judge Spang told him that he had a right to a court-appointed attorney, a privilege that exceeds the requirements of tribal law and the ICRA, but claims that she did not ask him if he had an attorney, if he wished an attorney, or if he could afford an attorney. The excerpted colloquy in the Government's brief shows that Ant indicated that he understood his rights, but it is not clear whether a knowing and intelligent waiver of the right to counsel was accomplished.
The district court made a factual determination that the plea was made in accordance with both tribal law and the ICRA, despite Ant's lack of representation by counsel. Certainly, it would be a much easier question on appeal if it were determined that Ant's guilty plea was not made in accordance with tribal law or the ICRA; this in itself might be a reason to suppress the plea. But because the district court's determination that Ant's guilty plea is valid under tribal law cannot be said to be clearly erroneous, see Chua Han Mow v. United States, 730 F.2d 1308 (9th Cir.1984), cert. denied, 470 U.S. 1031, 105 S.Ct. 1403, 84 L.Ed.2d 790 (1985), and because "[f]ederal courts must avoid undue or intrusive interference in reviewing Tribal Court procedures," Smith v. Confederated Tribes of the Warm Springs Reservation of Oregon, 783 F.2d 1409 (9th Cir.), cert. denied, 479 U.S. 964, 107 S.Ct. 465, 93 L.Ed.2d 410 (1986), we accept the district court's finding as to the validity of the guilty plea under tribal law and the ICRA. 4
An earlier guilty plea has been held to be admissible in a subsequent federal prosecution, even if the proceedings are in different jurisdictions, if the earlier guilty plea was made under conditions consistent with the United States Constitution. In United States v. Riley, 684 F.2d 542 (8th Cir.1982), cert. denied, 459 U.S. 1111, 103 S.Ct. 742, 74 L.Ed.2d 962 (1983), for example, a defendant's guilty plea to a state misdemeanor pimping charge was ruled admissible in a subsequent federal prostitution prosecution under the Mann Act.
The defendant Riley argued that the admission of the state guilty plea "was tantamount to directing a verdict against him on the Mann Act charges." 684 F.2d at 544. Similarly, in the instant case, because the tribal federal charges arose out of the exact same incident, 5 the admission of Ant's tribal court guilty plea in federal court could also be seen as tantamount to a directed verdict against him, particularly as evidenced by his conditional guilty plea. Nevertheless, in Riley, the earlier state guilty plea was held to be admissible in the subsequent federal prosecution as an "admission" under Fed.R.Evid. 801(d)(2), although unlike the instant case, there were no claims that the earlier guilty plea was in any way invalid. See also United States v. Holmes, 794 F.2d 345, 349 (8th Cir.1986).
On the other hand, there is direct authority supporting the proposition that evidence from a prior proceeding obtained in violation of the United States Constitution cannot be used in a subsequent federal prosecuti...
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