United States v. Zepeda, No. 10-10131

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtPAEZ
PartiesUNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAMIEN ZEPEDA, Defendant-Appellant.
Decision Date18 January 2013
Docket NumberNo. 10-10131,D.C. No. 2:08-cr-01329-ROS-1

DAMIEN ZEPEDA, Defendant-Appellant.

No. 10-10131
D.C. No. 2:08-cr-01329-ROS-1


Filed January 18, 2013



Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Chief District Judge, Presiding

Argued and Submitted
July 17, 2012—San Francisco, California

Before: Ferdinand F. Fernandez, Richard A. Paez,
and Paul J. Watford, Circuit Judges.

Opinion by Judge Paez;
Dissent by Judge Watford

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Criminal Law

The panel reversed jury convictions under the Major Crimes Act, 18 U.S.C. § 1153, which provides for federal jurisdiction over certain crimes committed by Indians in Indian country.

The panel held that whether a given tribe is federally recognized, as required for jurisdiction under § 1153, is a question of fact for the jury, not a question of law for the court; and rejected the government's request that this court take judicial notice of the Bureau of Indian Affairs's list of federally recognized tribes in 2008 and 2010.

The panel held that a Certificate of Enrollment in an Indian tribe, entered into evidence through the parties' stipulation, is insufficient evidence for a rational juror to find beyond a reasonable doubt that a defendant is an Indian for purposes of § 1153, where the government offers no evidence that the defendant's bloodline is derived from a federally recognized tribe.

Dissenting, Judge Watford would hold that federal recognition of an Indian tribe is a question of law for the court to resolve.

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Joan G. Ruffennach, Assistant United States Attorney, Office of the United States Attorney, Phoenix, Arizona, for Plaintiff-Appellee.

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


PAEZ, Circuit Judge:

On October 25, 2008, Damien Zepeda ("Zepeda") traveled with his brothers Jeremy and Matthew Zepeda ("Matthew") to the home of Dallas Peters ("Peters"), located on the Ak-Chin Reservation of Arizona. Zepeda and Matthew opened fire upon the house's occupants, injuring Peters severely. In a nine-count indictment, the government charged Zepeda with, inter alia, conspiracy to commit assault, assault with a deadly weapon, and use of a firearm during a crime of violence.1 The indictment alleged that

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Zepeda was an "Indian[]." Following a jury trial, Zepeda was convicted of all counts.

The Major Crimes Act, 18 U.S.C. § 1153, provides for federal jurisdiction for certain crimes committed by Indians in Indian country.2 The statute does not define who is an Indian, and determining the proper boundaries of federal jurisdiction over Indians is a formidable task. It is now well-settled in this circuit that we apply the two-part test articulated in United States v. Bruce, 394 F.3d 1215 (9th Cir. 2005) to determine who is an Indian. We consider: (1) the defendant's degree of Indian blood, and (2) the defendant's tribal or government recognition as an Indian. Id. at 1223; United States v. Cruz, 554 F.3d 840, 845 (9th Cir. 2009). More recently, we clarified that the first of these two prongs requires that the defendant's "bloodline be derived from a federally recognized tribe."3 United States v. Maggi, 598 F.3d 1073, 1080 (9th Cir. 2010).

This appeal calls upon us to decide whether a Certificate of Enrollment in an Indian tribe, entered into evidence through the parties' stipulation, is sufficient evidence for a rational juror to find beyond a reasonable doubt that the defendant is an Indian for the purposes of § 1153 where the government offers no evidence that the defendant's bloodline

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is derived from a federally recognized tribe. We hold that it is not.


At Zepeda's trial, the government introduced into evidence a document entitled "Gila River Enrollment/Census Office Certified Degree of Indian Blood."4 The document bore an "official seal" and stated that Zepeda was "an enrolled member of the Gila River Indian Community," and that "information [wa]s taken from the official records and membership roll of the Gila River Indian Community." It also stated that Zepeda had a "Blood Degree" of "1/4 Pima [and] 1/4 Tohono O'Odham" for a total of ½. The Certificate was signed by "Sheila Flores," an "Enrollment Services Processor." The prosecutor and Zepeda's attorney stipulated to admission of the Certificate into evidence without objection.5 Their stipulation stated: "The parties have conferred and have agreed that Exhibit 1[, the Tribal Enrollment Certificate,] . . . may be presented at trial without objection and [its] contents are stipulated to as fact."

The Tribal Enrollment Certificate was published to the jury through the testimony of Detective Sylvia Soliz, a detective for the Ak-Chin Police Department, who told the jury that she obtained the Certificate from the Gila River Indian Community in advance of trial, "confirming" that

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Zepeda was an enrolled member. The colloquy between Soliz and the prosecutor proceeded as follows:

Q: [W]e've talked a little bit about Native Americans and Indian blood and that sort of thing. Is this a jurisdictional requirement that you have? Explain that for the jury.
A: Yes, it is. I am only able to investigate if the witness would come to a federal status and the victim was an enrolled member of a tribe or - and if it occurred on the reservation boundaries.
. . .
Q: You talked about a certification of Indian blood. What is that?
A: It's a piece of paper confirming through the tribe that you obtained from the enrollment office that confirms that this person is an enrolled member of their tribe and he[,] and they[,] do meet the blood quantum.
Q: And is that sometimes used in determining whether that person might be able to receive tribal benefits from the tribe?
A: Yes, it does.

Zepeda's brother Matthew also testified regarding Zepeda's Indian status. Matthew testified that he was half

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"Native American," from the "Pima and Tiho" tribes, and that his Indian heritage came from his father. He also testified that he and Zepeda shared the same father, as well as the same mother, who was "Mexican."

No further evidence regarding Zepeda's Indian status was admitted. At the close of the government's case in chief, Zepeda moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29, arguing that insufficient evidence supported his convictions.6 The court denied his motion. Zepeda renewed his motion at the close of the evidence, and again, his motion was denied.

On appeal, Zepeda argues, inter alia, that the government failed to prove beyond a reasonable doubt that he was an Indian under § 1153. We agree.


Indian "tribes generally have exclusive jurisdiction over crimes committed by Indians against Indians in Indian country."7 United States v. LaBuff 658 F.3d 873, 876 (9th

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Cir. 2011). As we explained in United States v. Begay, 42 F.3d 486 (9th Cir. 1994):

Indian tribes are recognized as quasi-sovereign entities that may regulate their own affairs except where Congress has modified or abrogated that power by treaty or statute. Courts have also recognized, however, that regulation of criminal activity in Indian country is one area where competing federal interests may override tribal interests.

Id. at 498.

To balance the sovereignty interest of Indian tribes and the United States's interest in punishing offenses committed in Indian country, Congress enacted two statutes, 18 U.S.C. §§ 1152 and 1153. Id. Section 1152, the General Crimes Act,8 grants federal jurisdiction over certain crimes

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committed by non-Indians against Indians in Indian country, but excludes crimes committed by one Indian against another. Id.; LaBuff, 658 F.3d at 876. Section 1153, the Major Crimes Act,9 creates federal jurisdiction for cases in which an Indian commits one of a list of thirteen enumerated crimes against another Indian in Indian country. Id. The government charged Zepeda and prosecuted him under the latter statute.

The question of Indian status operates as a jurisdictional element under § 1153. Cruz, 554 F.3d at 843; Bruce, 394 F.3d at 1228. Nonetheless, we have held that Indian status "is an element of the offense that must be alleged in the indictment and proved beyond a reasonable doubt." Maggi,

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598 F.3d at 1077 (citing Cruz, 554 F.3d at 845; Bruce, 394 F.3d at 1229). We have also held that whether a defendant is an Indian is a mixed question of fact and law that must be determined by the jury.10 See Bruce, 394 F.3d at 1218, 1223, 1229; see also Maggi, 598 F.3d at 1077; Cruz, 554 F.3d at 845. Indeed, it is the special province of the jury to resolve any factual disputes arising under the two prongs of the Bruce test. See Bruce, 394 F.3d at 1223; Maggi, 598 F.3d 1082-83; Cruz, 554 F.3d...

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