U.S. v. Weaselhead

• Decision Date: 09 September 1998
• Docket Number: No. 97-4397,97-4397
• Citation: 156 F.3d 818
• Parties: UNITED STATES of America, Appellee, v. Robert Lee WEASELHEAD, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 818

156 F.3d 818

UNITED STATES of America, Appellee, v. Robert Lee WEASELHEAD, Jr., Appellant.

No. 97-4397.

United States Court of Appeals,

Eighth Circuit.

Submitted April 16, 1998.

Decided Sept. 9, 1998.

Rehearing Granted; Opinion and Judgment Vacated Dec. 4, 1998.

Jennifer L. Gilg, Assistant Federal Public Defender, Omaha, NE, argued (David R. Stickman, on the brief), for Appellant.

Michael P. Norris, Assistant U.S. Attorney, Omaha, NE, argued, for Appellee.

Before WOLLMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

WOLLMAN, Circuit Judge.

Robert Lee Weaselhead, Jr. appeals from an order by the district court denying his amended motion to dismiss the superseding indictment returned against him. He contends that Count III of the indictment offends the Double Jeopardy Clause of the Fifth Amendment. We reverse.

I.

Weaselhead is an adult Indian male and an enrolled member of the Blackfeet Indian Tribe of Montana. Although he now lives in Nebraska, he is not a member of the Winnebago Tribe domiciled in that state. In the early months of 1997, Weaselhead, then nineteen years old, entered into a sexual relationship with his fourteen-year-old girlfriend, a member of the Winnebago Tribe. This relationship was brought to the attention of tribal authorities. On March 20, 1997, Weaselhead was arraigned in Winnebago Tribal Court on charges of sexual assault, contributing to the delinquency of a minor, criminal trespass, and child abuse. Although the tribe was apparently aware that Weaselhead and the girl had engaged in sexual acts on more than one occasion, the indictment only charged conduct alleged to have occurred on March 15, 1997. Weaselhead's attorney negotiated a plea agreement with the tribal prosecutor. Pursuant to that agreement, Weaselhead pled no contest to one count of first degree sexual assault. The remaining charges were then dismissed. The tribal court entered a judgment of conviction and sentenced Weaselhead to, inter alia, 280 days in jail, 100 of which were suspended.

The same day that Weaselhead entered his plea in tribal court, he was indicted by a federal grand jury on a charge of engaging in a sexual act with an Indian female juvenile in violation of 18 U.S.C. §§ 2243 and 1153 (1997). He pled not guilty and moved to dismiss the indictment on double jeopardy grounds. The grand jury subsequently returned a superseding indictment, which charged three separate counts of sexual abuse. Counts I and II charged conduct occurring on February 27 and March 1, 1997, respectively. Count III charged sexual contact that occurred on March 15, the same incident that had resulted in Weaselhead's earlier conviction in tribal court.

Weaselhead then moved to dismiss each count. The magistrate judge submitted a report recommending that the motion be granted and the indictment dismissed on double jeopardy grounds, concluding that:

[t]he dual prosecution of the defendant by both the tribal court and now the federal government does not implicate separate prosecutions by separate sovereigns. Rather, the tribal court was exercising jurisdiction over the defendant which flowed from a delegation of power from Congress and a subsequent prosecution by the federal government for the same offense is barred by the Fifth Amendment.

Report and Recommendation at 9. The government objected. Holding that the Double Jeopardy Clause was not implicated because the dual prosecution of Weaselhead was undertaken by separate sovereigns, the district court sustained the government's objections and denied the motion to dismiss.

In this appeal brought pursuant to 28 U.S.C. § 1291, Weaselhead concedes the constitutional propriety of Counts I and II of the superseding indictment and challenges only the denial of his amended motion to dismiss Count III as a violation of double jeopardy. Our review is de novo. See United States v. Basile, 109 F.3d 1304, 1306 (8th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 189, 139 L.Ed.2d 128 (1997).

II.

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." Protection from double jeopardy is a vital safeguard that is "fundamental to the American scheme of justice." United States v. Dixon, 913 F.2d 1305, 1309 (8th Cir.1990) (quoting Benton v. Maryland, 395 U.S. 784, 796, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)). "If such great constitutional protections are given a narrow, grudging application they are deprived of much of their significance." Dixon, 913 F.2d at 1309 (quoting Green v. United States, 355 U.S. 184, 198, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957)).

The doctrine of dual sovereignty permits successive prosecutions by independent sovereigns based upon the same conduct. Because "each sovereign derives its power from a different constitutional source, ... both may prosecute and punish the same individual for the same act." Basile, 109 F.3d at 1307; see also Abbate v. United States, 359 U.S. 187, 193-96, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). Dual sovereignty principles are inapplicable, however, when the authority of two entities to prosecute an individual emanates from the same overriding sovereign. See, e.g., Waller v. Florida, 397 U.S. 387, 393-95, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970) (holding that city and state in which it was political subdivision could not bring successive prosecutions for same unlawful conduct despite fact that state law treated them as separate sovereigns); Puerto Rico v. Shell Co., 302 U.S. 253, 264-66, 58 S.Ct. 167, 82 L.Ed. 235 (1937) (holding that successive prosecutions by federal and territorial courts are impermissible because such courts are "creations emanating from the same sovereignty"); Grafton v. United States, 206 U.S. 333, 351-55, 27 S.Ct. 749, 51 L.Ed. 1084 (1907) (holding that soldier acquitted of murder by federal court-martial could not be retried for same offense by territorial court in Philippines). Thus, application of the dual sovereignty exception "turns on whether the two entities draw their authority to punish the offender from distinct sources of power." Heath v. Alabama, 474 U.S. 82, 88, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985); see also United States v. Sanchez, 992 F.2d 1143, 1149-50 (11th Cir.1993).

In United States v. Wheeler, 435 U.S. 313, 314, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), the question was whether the Double Jeopardy Clause barred prosecution of an Indian in federal court after he had been convicted in tribal court of a lesser included offense arising out of the same incident. ¹ The Court framed the issue as follows It is undisputed that Indian tribes have power to enforce their criminal laws against tribe members. Although physically within the territory of the United States and subject to ultimate federal control, they nonetheless remain "a separate people, with the power of regulating their internal and social relations." Their right of internal self-government includes the right to prescribe laws applicable to tribe members and to enforce those laws by criminal sanctions.... [T]he controlling question in this case is the source of this power to punish tribal offenders: Is it a part of inherent tribal sovereignty, or an aspect of the sovereignty of the Federal Government which has been delegated to the tribes by Congress?

Id. at 322, 98 S.Ct. 1079 (citations omitted). Thus, if the power to punish tribe members emanated from the tribe's inherent sovereignty, double jeopardy would not be implicated by a subsequent federal prosecution for the same conduct. However, if the ultimate source of power was "an aspect of the sovereignty of the Federal Government which [had] been delegated to the tribes by Congress," the Double Jeopardy Clause would bar a subsequent federal prosecution. Id.; see also Heath, 474 U.S. at 90-91, 106 S.Ct. 433.

The Court held that an Indian tribe's criminal jurisdiction over its members emanates from its inherent sovereign powers:

[T]he sovereign power of a tribe to prosecute its members for tribal offenses clearly does not fall within that part of sovereignty which the Indians implicitly lost by virtue of their dependent status. The areas which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe. Thus, Indian tribes can no longer freely alienate to non-Indians the land they occupy. They cannot enter into direct commercial or governmental relations with foreign nations. And, as we have recently held, they cannot try nonmembers in tribal courts. These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. Thus, they are not such powers as would necessarily be lost by virtue of a tribe's dependent status.

Wheeler, 435 U.S. at 325-26, 98 S.Ct. 1079 (citations omitted) (emphasis supplied). The Court therefore concluded:

[T]he power to punish offenses against tribal law committed by Tribe members, which was part of the Navajos' primeval sovereignty, has never been taken away from them, either explicitly or implicitly, and is attributable in no way to any delegation to them of federal authority. It follows that when the Navajo Tribe exercises this power, it does so as part of its retained sovereignty and not as an arm of the Federal Government.

Id. at 328, 98 S.Ct. 1079. As a result, when successive prosecutions of a tribe member are brought in tribal court and federal court, double jeopardy principles are not offended. See id. at 329-30, 98 S.Ct. 1079; Heath, 474 U.S. at 90-91, 106 S.Ct. 433.

This case presents the necessary corollary to the holding in...