United States v. Kirkaldie
| Decision Date | 22 May 2014 |
| Docket Number | No. CR 14–12–GF–BMM.,CR 14–12–GF–BMM. |
| Citation | 21 F.Supp.3d 1100 |
| Parties | UNITED STATES of America, Plaintiff, v. William Tayler KIRKALDIE, Defendant. |
| Court | U.S. District Court — District of Montana |
Jessica Betley, Office of the U.S. Attorney, Great Falls, MT, Lori A. Harper Suek, Office of the U.S. Attorney, Billings, MT, Yvonne G. Laird, Laird Law Office PLLC, Chinook, MT, for Plaintiff.
Evangelo Arvanetes, Federal Defenders of Montana, Great Falls, MT, for Defendant.
ORDER GRANTING MOTION TO DISMISS INDICTMENT
Defendant William Tayler Kirkaldie (Kirkaldie) has moved to dismiss the indictment against him. (Doc. 20.) The United States (Government) opposes that motion. (Doc. 24.) The Court heard oral argument on the motion on April 18, 2014. (Doc. 33.)
The Grand Jury returned a one-count indictment on February 20, 2014, that charged Kirkaldie with domestic abuse by a habitual offender, in violation of 18 U.S.C. § 117(a). (Doc. 1.) Kirkaldie moved to dismiss the indictment on March 17, 2014. (Doc. 20.) The Government responded on March 30, 2014. (Doc. 24.)
Kirkaldie simultaneously reached a plea agreement with the Government, and filed a motion to change his plea on April 10, 2014. (Doc. 26.) Kirkaldie and the Government reached a plea agreement pursuant to Fed.R.Crim.P. 11(a)(2). (Doc. 32 at 2–3.) The plea agreement reserved each party's right to appeal the Court's order on the motion to dismiss. (Doc. 32 at 2–3.)
The Government charged Kirkaldie as a habitual domestic violence offender under 18 U.S.C. § 117(a). (Doc. 1.)
Section 117(a) attaches a federal penalty to the commission of a domestic assault when the actor has at least two prior, similar convictions in another jurisdiction. 18 U.S.C. 117(a). The statute addresses specifically the commission of a domestic assault in “Indian country.” 18 U.S.C. 117(a). The prior convictions may arise from state, federal, or tribal court. 18 U.S.C. 117(a).
The Violence Against Women and Department of Justice Reauthorization Act of 2005 created the new federal offense under section 117(a) as part of the statute's title to promote safety for Indian women. Pub.L. No. 109–162, § 909, 119 Stat. 2960, 3084 (January 5, 2006). Section 117(a) obligates the federal Government to hold repeat domestic violence offenders accountable as part of the “[f]ederal trust responsibility to assist tribal governments in safeguarding the lives of Indian women.” Pub.L. No. 109–162, at § 901. The trust responsibility between the federal Government and Indian tribes stems from “the distinctive obligation of trust incumbent upon the [federal] Government in its dealings with these dependent and sometimes exploited people.” Seminole Nation v. United States, 316 U.S. 286, 296, 62 S.Ct. 1049, 86 L.Ed. 1480 (1942).
“[S]ometimes exploited” seems an understatement. Indian women experience battery at a rate of 23.2 per 1,000, as compared with 8 per 1,000 among Caucasian women. Pub.L. No. 109–162, at §§ 902, 909 (setting forth Congressional findings). Tribal courts generally lack the authority, however, to prosecute non-Indian domestic violence offenders for offenses against Indian women. 41 Am.Jur. 2d Indians; Native Americans § 143; see also Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978).
An exception slowly evolves. On March 7, 2013, the President signed into law Congress's grant of jurisdiction to tribes over certain domestic violence crimes. Pub.L. No. 113–4, § 904, 127 Stat. 120, 120–124 (Mar. 7, 2013), codified at 25 U.S.C. § 1304. Tribes within the United States—although outside of this District—have developed the requisite capacity to prosecute a non-Indian for a domestic violence offense against a tribal member at present. See Sari Horwitz, Arizona tribe set to prosecute first non-Indian under a new law,Washington Post, Apr. 18, 2014, available at http://www.washingtonpost. com/national/arizona-tribe-set-to-prosecute-first-non-indian-under-a-new-law/2014/04/18/127a202a–bf20–11e3–bcec–b71ee10e9bc3_story.html. For all other tribes, the expanded jurisdiction takes effect on March 7, 2015. Pub.L. No. 113–4, § 908, 127 Stat. at 125–126. The grant of jurisdiction represents a step toward keeping Indian women safe. The historic jurisdictional gap that arose from non-Indians that committed offenses on Indian reservations nevertheless proves troubling.
Prosecutions in tribal court will continue exclusively against Indian defendants until tribal courts successfully institute the requirements of 25 U.S.C. § 1304. The byproduct of tribal courts' limited jurisdiction to preside exclusively over prosecutions of Indian domestic violence offenders has resulted in predominantly Indian domestic violence offenders as defendants charged under 18 U.S.C. 117(a). See, e.g., United States v. Cavanaugh, 680 F.Supp.2d 1062 (D.N.D.2009)rev'd, 643 F.3d 592 (8th Cir.2011) ; United States v. Shavanaux, 2:10 CR 234, 2010 WL 4038839 at *1 (D.Utah Oct. 14, 2010)rev'd, 647 F.3d 993 (10th Cir.2011). Kirkaldie falls within this framework.
Kirkaldie attests that “a tribal conviction in Tribal Court” constituted one of his “final conviction[s] on at least 2 separate prior occasions.” 18 U.S.C. 117(a) ; (Doc. 21 at 2.) A Government witness testified during the motion hearing that Kirkaldie had served jail time as part of the prior conviction in tribal court. (Doc. 33.) Against this backdrop, Kirkaldie brings two challenges to the indictment that the grand jury returned against him.
Kirkaldie first requests that the Court determine whether his “tribal conviction[s] for domestic violence satisf[y] the constitutional requirements to charge Mr. Kirkaldie with the present Indictment” in this Court. (Doc. 21 at 4.) Kirkaldie argues that his former “conviction[s] entered without the assistance of counsel cannot be used in a subsequent proceeding.” (Doc. 21 at 3.) Kirkaldie alleges that the tribal court proceedings failed to meet “the standard for waiver of the right to counsel in Federal Court.” (Doc. 21 at 4.) Kirkaldie concludes that the use of an “uncounseled tribal conviction” violates United States v. Ant, 882 F.2d 1389 (9th Cir.1989), and the Sixth Amendment to the United States Constitution. (Doc. 21 at 5.) The Government rejects application of Ant for three reasons.
The Government first argues that Ant's foundation, largely developed in Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), no longer supports Ant's holding. (Doc. 24 at 8.) The Supreme Court overruled Baldasar explicitly in Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). In overruling Baldasar, the Supreme Court held that consistent with the Sixth and Fourteenth Amendments, an “uncounseled misdemeanor conviction, valid under Scott [v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979) ] because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction.” Nichols, 511 U.S. at 749, 114 S.Ct. 1921 (emphasis added). The Government contends, as clarified at oral argument, that Nichols's overruling of Baldasar sufficiently shook the foundations of Ant to dictate a different outcome than Ant. (Doc. 24 at 8; see also doc. 33.)
The Government further contends that Ant precludes only the use of Kirkaldie's prior tribal conviction as “substantive evidence of guilt.” (Doc. 24 at 9.) The Government claims that it seeks to use Kirkaldie's tribal convictions only as “the fact of the convictions” to constitute an element of the offense rather than “for the truth of the matters asserted in the plea,” as prohibited in Ant. (Doc. 24 at 9; see also doc. 33.) The Government argues that the use of the tribal convictions to prove an element of the offense, rather than to prove the truth of the matter asserted, takes this case outside Ant's holding. (Doc. 24 at 9.)
The Government lastly suggested during oral argument that a decision to dismiss the indictment, based on the reasoning in Ant, would serve to write 18 U.S.C. § 117(a) off the books. (Doc. 33.) The Government pointed out that the overwhelming majority of persons whom the Government will elect to charge will be persons who have exclusively prior tribal court convictions, rather than state or federal convictions. (Doc. 33.) The Government claimed that Congress wrote 18 U.S.C. § 117 in order to fill the jurisdictional gap that persons who have repeat tribal court convictions present. (Doc. 33.)
The Court's analysis begins with Ant, 882 F.2d 1389. In Ant, an American Indian defendant pled guilty to assault and battery in Northern Cheyenne Tribal Court. Ant, 882 F.2d at 1390. Ant received a sentence of six months in jail. Ant, 882 F.2d at 1391. No lawyer represented Ant, although Judge Spang of Northern Cheyenne Tribal Court likely advised Ant of his right to a lawyer at his own expense. Ant, 882 F.2d at 1390–91.
The grand jury handed down a federal indictment four months later that charged Ant with voluntary manslaughter based upon the same conduct that comprised the Northern Cheyenne assault and battery charge. Ant, 882 F.2d at 1390–91. Ant moved to suppress his guilty plea from the tribal court, in relevant part, based on the fact that his right to counsel under the Sixth Amendment had been violated. Ant, 882 F.2d at 1391. The District Court denied that motion on the basis 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.” Ant, 882 F.2d at 1391.
The Ninth Circuit analyzed whether Ant had entered the guilty plea under conditions that complied with the United States Constitution. Ant, 882 F.2d at 1393–94. The Ninth Circuit determined that “the available facts do not support the conclusion that Ant knowingly and intelligently waived his Sixth Amendment rights under federal and Ninth Circuit...
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