United States v. Wilson Tsosie ( 2017 )

FILED
NOT FOR PUBLICATION
SEP 25 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10624
Plaintiff-Appellee, D.C. No. 3:11-cr-08130-GMS-1
v.
MEMORANDUM*
WILSON TSOSIE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted September 1, 2017
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: W. FLETCHER and IKUTA, Circuit Judges, and BARKER,** District
Judge.1
Wilson Tsosie appeals his criminal conviction under the Major Crimes Act,
18 U.S.C. § 1153, for the sexual assault on his mother-in-law. We have
jurisdiction under 28 U.S.C. § 1291 and review the district court’s ruling de novo.
Deere v. Cullen, 718 F.3d 1124, 1144 (9th Cir. 2013).
The district court did not err by finding admission of the unauthenticated
certificate of Indian blood to be harmless error. To determine harmless error we
consider “what the jury actually would have done without the error” and “whether
the error had substantial and injurious effect or influence in determining the jury’s
verdict.” United States v. Bruce, 394 F.3d 1215, 1229 (9th Cir. 2005) (internal
quotations and citation omitted). Aside from the certificate, there was strong and
uncontradicted evidence presented as to Tsosie’s Indian blood. Tsosie’s wife
provided testimony of Tsosie’s enrollment in the Navajo Nation, his possession of
an adequate quantum of Indian blood, and his participation in unique Navajo
Nation ceremonies. There was additional evidence of Tsosie’s Indian status,
**
The Honorable Sarah Evans Barker, United States District Judge for
the Southern District of Indiana, sitting by designation.
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including his brother’s testimony that Tsosie had lived on the reservation his entire
life, and Tsosie’s use of a Navajo interpreter throughout the trial. The cumulative
evidence rendered any effect of the unauthenticated certificate of Indian blood
harmless.
The district court did not err in denying Tsosie’s motion for judgment of
acquittal due to lack of jurisdiction. Tsosie was prosecuted pursuant to the Major
Crimes Act, 18 U.S.C. § 1153(a), which authorizes federal prosecution over certain
offenses committed “within the Indian country.” “Indian country” is defined by 18
U.S.C. § 1151 to include “all land within the limits of any Indian reservation under
the jurisdiction of the United States Government.” The victim testified that the
sexual assault occurred at the sheep camp, which was sufficient evidence for the
jurors to reasonably conclude that the government had proved the locus of the
offense beyond a reasonable doubt. See United States v. Gipe, 672 F.2d 777, 779
(9th Cir. 1982) (holding that the “locus of the offense within that area is an issue
for the trier of fact”). The court could conclude as a matter of law that the sheep
camp was part of the Navajo Reservation (“Reservation”). See id. (holding that the
“the existence of federal jurisdiction over the geographic area” is a matter of law
for the court to determine.). The victim testified that the sheep camp where the
assault occurred was located between 10 and 15 miles from Pinon, Arizona. An
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investigator who worked in law enforcement for the Navajo Nation testified that
Pinon is within the boundaries of the Reservation. Review of a map of the
Reservation shows Pinon to be more than 15 miles from a Reservation boundary in
every direction. We have held that a judge may take judicial notice of a map of
territorial boundaries to establish the jurisdictional element of a federal offense.
See United States v. Coutchavlis, 260 F.3d 1149, 1153-54 (9th Cir. 2001) (citing
Fed. R. Evid. 201(b)). The victim’s testimony as to the location of the sheep camp,
combined with a map illustrating the Reservation’s boundaries, sufficiently
supports the court’s finding as to this jurisdictional element.
The government concedes the jury instructions were inadequate because
they failed to set forth the two-pronged test under United States v. Bruce, 394 F.3d
1215 (9th Cir. 2005), for determining whether a defendant is an “Indian” within the
meaning of § 1153. See United States v. Zepeda, 792 F.3d 1103, 1115 (9th Cir.
2015) (en banc). However, given the evidence as to Tsosie’s Indian status, this
error was harmless.
Tsosie’s Miranda waiver was valid. A written advisement is adequate so
long as the suspect can read and understand it. Bell v. United States, 382 F.2d 985,
987 (9th Cir. 1967). Tsosie was able to read the written Miranda warnings out
loud, and he signed a written waiver.
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The district court did not err by admitting Tsosie’s statements made after he
signed the Miranda waiver. This court has distinguished affirmative requests for
an attorney from mere questions about the right to an attorney, with only the
former constituting an invocation of one’s right to counsel. Here, as in United
States v. Younger, 398 F.3d 1179, 1187 (9th Cir. 2005), Tsosie asked about his
right to counsel when he said, “I have the lawyer or something?” This is distinctly
different from the request, “Can I get an attorney right now, man?” followed by
two more questions about the immediate availability of an attorney, as in Alvarez v.
Gomez, 185 F.3d 995, 998 (9th Cir. 1999).
The district court did not fail to consider sanctions for discovery violations.
At trial, in response to the Government’s failure to properly notice expert
testimony by the victim’s treating physician, the district court limited the dotor’s
testimony to that of a lay witness. The district court thus, in effect, did sanction the
Government.
The district court did not err by applying a vulnerable victim enhancement
pursuant to U.S.S.G. § 3A1.1(b). Although neither the victim’s age nor the remote
location in which the offense occurred made her a vulnerable victim per se, the
trial court’s factual finding that the victim was particularly susceptible to being
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physically overpowered by Tsosie due to the combination of these two factors was
reasonable.
The district court did not plainly err by failing to explain its decision to
impose a lifetime term of supervised release, and the sentence was not
unreasonable. The district court did not distinguish between the custodial and
supervised release portions of Tsosie’s term in sentencing. However, the court did
offer an adequate explanation of its decision to impose a custodial sentence of less
than the statutory maximum and a maximum statutory term for supervised release.
The district court did not sentence Tsosie to the maximum so that he could have a
relationship with his children. This mitigating concern is irrelevant in determining
the appropriate term of supervised release, and a lifetime term is within the
statutory range set forth for Tsosie’s offense.
AFFIRMED.
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