United States v. Damien Zepeda , 738 F.3d 201 ( 2013 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,               No. 10-10131
    Plaintiff-Appellee,
    D.C. No.
    v.                   2:08-cr-01329-ROS-1
    DAMIEN ZEPEDA,
    Defendant-Appellant.             OPINION
    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
    Filed September 19, 2013
    Before: Ferdinand F. Fernandez, Richard A. Paez,
    and Paul J. Watford, Circuit Judges.
    Opinion by Judge Paez;
    Dissent by Judge Watford
    2                  UNITED STATES V. ZEPEDA
    SUMMARY*
    Criminal Law
    The panel reversed jury convictions under the Major
    Crimes Act, 
    18 U.S.C. § 1153
    , which provides for federal
    jurisdiction for certain crimes committed by Indians in Indian
    country.
    The panel held that the district court did not plainly err in
    admitting a tribal enrollment certificate into evidence
    pursuant to the parties’ stipulation.
    The panel held that the question of whether a tribe is
    federally recognized, as required for jurisdiction under
    § 1153, is a question of law; and that both the “Gila River
    Indian Community of the Gila River Indian Reservation,
    Arizona” and the “Tohono O’odham Nation of Arizona” are
    federally-recognized tribes.
    The panel held that the tribal enrollment certificate was
    insufficient to establish that the defendant is an Indian for
    purposes of federal jurisdiction under § 1153, where the
    government introduced no evidence that the defendant’s
    bloodline is derived from a federally recognized tribe.
    The panel remanded for resentencing on a conspiracy
    conviction unaffected by this disposition.
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    UNITED STATES V. ZEPEDA                               3
    Dissenting, Judge Watford disagreed with the majority’s
    determination that the government failed to present sufficient
    evidence from which a rational jury could infer that the
    defendant has a blood connection to a federally recognized
    tribe.
    COUNSEL
    Michele R. Moretti, Law Office of Michele R. Moretti, Lake
    Butler, Florida, for Defendant-Appellant.
    Joan G. Ruffennach (argued), Assistant United States
    Attorney, Office of the United States Attorney, Phoenix,
    Arizona, for Plaintiff-Appellee.
    OPINION
    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
    1
    The nine counts included: (1) conspiracy to commit assault with a
    dangerous weapon and assault resulting in serious bodily injury, in
    violation of 
    18 U.S.C. §§ 1153
    , 371, and 2; (2) assault resulting in serious
    4                        UNITED STATES V. ZEPEDA
    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).
    bodily injury against Dallas Peters, in violation of 
    18 U.S.C. §§ 1153
    ,
    113(a)(6) and 2; (3) use of a firearm during a crime of violence as charged
    in count 2, in violation of 
    18 U.S.C. §§ 924
    (c)(1)(A) and 2; (4), (6), (8)
    assault with a dangerous weapon against Dallas Peters, Stephanie Aviles,
    and Jane Doe, in violation of 
    18 U.S.C. §§ 1153
    , 113(a)(3), and 2; and,
    (5), (7), (9) use of a firearm during the crimes of violence charged in
    counts 4, 6, and 8, in violation of 
    18 U.S.C. §§ 924
    (c)(1)(A) and 2. Aviles
    was Zepeda’s ex-girlfriend and Doe was Aviles’s cousin. Both were
    present at the Peters residence on the night of the shooting.
    2
    Although we are mindful that the term “Native American” or
    “American Indian” may be preferable, we use the term “Indian”
    throughout this opinion since that is the term used in 
    18 U.S.C. § 1153
     and
    at issue in this appeal.
    3
    In this opinion, we consider the first prong only.
    UNITED STATES V. ZEPEDA                            5
    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
    is derived from a federally recognized tribe. We hold that it
    is not.
    I.
    At Zepeda’s trial, the government introduced into
    evidence, as Exhibit 1, 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 1/2. 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.”
    4
    For the purposes of clarity, we refer to this document as the “Tribal
    Enrollment Certificate” or “Certificate” throughout.
    5
    The stipulation, which was signed by counsel, was admitted into
    evidence as Exhibit 48.
    6               UNITED STATES V. ZEPEDA
    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
    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?
    UNITED STATES V. ZEPEDA                              7
    A: Yes, it does.
    Zepeda’s brother Matthew also testified regarding
    Zepeda’s Indian status. Matthew testified that he was half
    “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.
    6
    We note that although Zepeda did not present argument to the district
    court regarding the sufficiency of the evidence of his Indian status, “Rule
    29 motions for acquittal do not need to state the grounds upon which they
    are based because ‘the very nature of such motions is to question the
    sufficiency of the evidence to support a conviction.’” United States v.
    Viayra, 
    365 F.3d 790
    , 793 (9th Cir. 2004) (quoting United States v.
    Gjurashaj, 
    706 F.2d 395
    , 399 (2d Cir. 1983)); see also Cruz, 
    554 F.3d at
    844 n.4; United States v. South, 
    28 F.3d 619
    , 627 (7th Cir. 1994)
    (concluding that “Rule 29 does not require anything more” than “to put the
    government on notice that [a defendant] was contesting the sufficiency of
    the evidence in support” of a conviction); 8A Moore’s Federal Practice
    ¶ 29.03(1), at 29–8 (2d ed. 1989); 2 Charles A. Wright, Federal Rules of
    Criminal Procedure § 466, at 653 (2d ed. 1982) (“Specificity is not
    required by Rule 29.”).
    8                     UNITED STATES V. ZEPEDA
    II.
    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
    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
    7
    “[T]he term ‘Indian country’ . . . means (a) all land within the limits of
    any Indian reservation under the jurisdiction of the United States
    Government . . . (b) all dependent Indian communities within the borders
    of the United States whether within the original or subsequently acquired
    territory thereof . . . and (c) all Indian allotments, the Indian titles to which
    have not been extinguished, including rights-of-way running through the
    same.” 
    18 U.S.C. § 1151
    .
    UNITED STATES V. ZEPEDA                            9
    Act,8 grants federal jurisdiction over certain crimes
    committed in Indian country by non-Indians against Indians
    and vice versa, 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
    8
    Section 1152 provides that:
    Except as otherwise expressly provided by law, the
    general laws of the United States as to the punishment
    of offenses committed in any place within the sole and
    exclusive jurisdiction of the United States, except the
    District of Columbia, shall extend to the Indian country.
    This section shall not extend to offenses committed by
    one Indian against the person or property of another
    Indian, nor to any Indian committing any offense in the
    Indian country who has been punished by the local law
    of the tribe, or to any case where, by treaty stipulations,
    the exclusive jurisdiction over such offenses is or may
    be secured to the Indian tribes respectively.
    
    18 U.S.C. § 1152
    .
    9
    Section 1153(a) provides:
    Any Indian who commits against the person or property
    of another Indian or other person any of the following
    offenses, namely, murder, manslaughter, kidnaping,
    maiming, a felony under chapter 109A, incest, assault
    with intent to commit murder, assault with a dangerous
    weapon, assault resulting in serious bodily injury (as
    defined in section 1365 of this title), an assault against
    an individual who has not attained the age of 16 years,
    felony child abuse or neglect, arson, burglary, robbery,
    and a felony under section 661 of this title within the
    Indian country, shall be subject to the same law and
    10                   UNITED STATES V. ZEPEDA
    in which an Indian commits one of a list of thirteen
    enumerated crimes 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,
    
    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 at 846-47
    .
    “Although jurisdictional questions are ordinarily reviewed
    de novo, when a defendant brings a motion for acquittal in
    order to challenge the sufficiency of the evidence underlying
    a jurisdictional element, we owe deference to the jury’s
    penalties as all other persons committing any of the
    above offenses, within the exclusive jurisdiction of the
    United States.
    
    18 U.S.C. § 1153
    (a).
    10
    As we explained in Bruce, “[m]ixed questions of law and fact are
    those in which ‘the historical facts are admitted or established, the rule of
    law is undisputed, and the issue is whether the facts satisfy the statutory
    standard.’” 
    394 F.3d at 1218
     (quoting Pullman-Standard v. Swint,
    
    456 U.S. 273
    , 289 n. 19 (1982)).
    UNITED STATES V. ZEPEDA                     11
    ultimate factual finding.” Cruz, 
    554 F.3d at
    843–44
    (emphasis in original). “Accordingly . . . we review the
    district court’s decision under the standard applied to
    sufficiency-of-the-evidence challenges: ‘whether, after
    viewing the evidence in the light most favorable to the
    prosecution, any rational trier of fact could have found the
    essential elements of the crime beyond a reasonable doubt.’”
    
    Id. at 844
     (quoting Jackson v. Virginia, 
    443 U.S. 307
    , 319
    (1979) (emphasis omitted)); see also United States v. Nevils,
    
    598 F.3d 1158
    , 1163–67 (9th Cir. 2010) (en banc).
    III.
    A.
    We first must determine whether the Tribal Enrollment
    Certificate was properly admitted into evidence, or rather, as
    Zepeda urges, whether its admission violated his rights under
    the Confrontation Clause. Because Zepeda did not object at
    trial to the district court’s admission of the Certificate
    pursuant to the parties’ stipulation, we review for plain error.
    United States v. Wright, 
    625 F.3d 583
    , 607 (9th Cir. 2010).
    “The test regarding the validity of a stipulation is
    voluntariness.” United States v. Molina, 
    596 F.3d 1166
    ,
    1168–69 (9th Cir. 2010). We have previously held that
    “‘[s]tipulations freely and voluntarily entered into in criminal
    trials are as binding and enforceable as those entered into in
    civil actions.’” 
    Id. at 1169
     (quoting United States v. Technic
    Servs., 
    314 F.3d 1031
    , 1045 (9th Cir. 2002) (alteration in
    original)). “‘[S]tipulations serve both judicial economy and
    the convenience of the parties, [and] courts will enforce them
    absent indications of involuntary or uninformed consent.’”
    
    Id.
     (quoting CDN Inc. v. Kapes, 
    197 F.3d 1256
    , 1258 (9th
    12                UNITED STATES V. ZEPEDA
    Cir. 1999) (alterations in original)). “A ‘defendant who has
    stipulated to the admission of evidence cannot later complain
    about its admissibility’ unless he can show that the stipulation
    was involuntary.” 
    Id.
     (quoting Technic Servs., 314 F.3d at
    1045).
    Zepeda points to no record evidence that he entered into
    the stipulation at issue involuntarily. Rather, he points to a
    lack of record evidence that his attorney informed him of the
    contents of the stipulation and its legal effect, and asserts that
    his counsel’s waiver of his Confrontation Clause rights was
    invalid. While his first contention is plausible, Soliz testified
    extensively regarding the Tribal Enrollment Certificate’s
    contents, referring both to Zepeda’s bloodline and to his
    eligibility for benefits from the Gila River Indian
    Community. This testimony at least put Zepeda on notice
    regarding the contents of the stipulation. Regardless, Zepeda
    bears the burden on appeal of pointing to record evidence
    showing that his consent was involuntary, and he has not
    done so here. See Molina, 
    596 F.3d at 1169
    .
    Moreover, our case law recognizes that “defense counsel
    may waive an accused’s constitutional rights as a part of trial
    strategy.” United States v. Gamba, 
    541 F.3d 895
    , 900 (9th
    Cir. 2008). Counsel’s authority extends to waivers of the
    accused’s Sixth Amendment right to cross-examination and
    confrontation as a matter of trial tactics or strategy. Wilson
    v. Gray, 
    345 F.2d 282
    , 287–88 (9th Cir. 1965).
    Zepeda argues that waiver of a fundamental constitutional
    right cannot ever constitute a sound trial strategy, particularly
    where, as here, the Tribal Enrollment Certificate purported to
    establish an essential jurisdictional element. It appears from
    the record, however, that Zepeda’s attorney strategically
    UNITED STATES V. ZEPEDA                      13
    focused Zepeda’s defense on the implausibility of
    government witnesses’ testimony, as compared to Zepeda’s
    markedly different version of the relevant events. He chose
    not to direct the jury’s attention to Zepeda’s Indian status, and
    informed the jury during his opening statement: “I will
    stipulate and concede things that ought to be conceded in
    terms of my client, Mr. Zepeda.” Although ultimately not a
    winning strategy, it was clearly “deliberately made as a
    matter of trial tactics,” and did not involve a “basic trial
    right[]” such as the decision “whether to plead guilty, waive
    a jury, testify in his . . . own behalf, or take an appeal.”
    Gamba, 
    541 F.3d at 901
     (quoting Florida v. Nixon, 
    543 U.S. 175
    , 187 (2004) (internal quotation marks omitted)). Nor, as
    we discuss at length below, was the Tribal Enrollment
    Certificate sufficient to carry the government’s burden of
    proof of Zepeda’s Indian status. Thus, Zepeda’s attorney did
    not violate Zepeda’s Confrontation Clause rights when he
    stipulated to admission of the Certificate. See Gamba,
    
    541 F.3d at 900
    ; Wilson, 
    345 F.2d at 287
    .
    Accordingly, we conclude that the district court did not
    plainly err in admitting the Tribal Enrollment Certificate into
    evidence pursuant to the parties’ stipulation.
    B.
    Having determined that the Tribal Enrollment Certificate
    was properly admitted into evidence, we turn to whether,
    viewing all evidence in the light most favorable to the
    government, any rational juror could have found beyond a
    reasonable doubt that Zepeda was an Indian, on the basis of
    the slim evidence as to both prongs of the Bruce test. We
    begin by explaining that the Bruce test contains an “important
    overlay.” Maggi, 
    598 F.3d at 1078
    .
    14               UNITED STATES V. ZEPEDA
    As noted, “[t]he Bruce test requires that the Government
    prove two things: that the defendant has a sufficient ‘degree
    of Indian blood,’ and has ‘tribal or federal government
    recognition as an Indian.’” Cruz, 
    554 F.3d at 845
     (quoting
    Bruce, 
    394 F.3d at 1223, 1224
    ). “The first prong requires
    ‘some’ Indian blood.” United States v. Ramirez, 
    537 F.3d 1075
    , 1082 (9th Cir. 2008) (quoting Bruce, 
    394 F.3d at 1223
    ).
    “Thus, ‘evidence of a parent, grandparent, or great-
    grandparent who is clearly identified as an Indian is generally
    sufficient to satisfy this prong.’” 
    Id.
     (quoting Bruce, 
    394 F.3d at 1223
    ).
    “The second prong requires evidence that ‘the Native
    American has a sufficient non-racial link to a formerly
    sovereign people.’” 
    Id.
     (quoting Bruce, 
    394 F.3d at 1224
    ).
    “Courts analyzing this prong have considered evidence of: ‘1)
    tribal enrollment; 2) government recognition formally and
    informally through receipt of assistance reserved only to
    Indians; 3) enjoyment of the benefits of tribal affiliation; and
    4) social recognition as an Indian through residence on a
    reservation and participation in Indian social life.’” 
    Id.
    (quoting Bruce, 
    394 F.3d at 1224
    ). These four factors “are to
    be considered ‘in declining order of importance.’” Cruz,
    
    554 F.3d at
    846 n. 6 (quoting Bruce, 
    394 F.3d at 1224
    ).
    “[T]ribal enrollment is ‘the common evidentiary means of
    establishing Indian status, but it is not the only means nor is
    it necessarily determinative’ . . . . [E]nrollment, and indeed,
    even eligibility therefor, is not dispositive of Indian status.”
    
    Id.
     (quoting Bruce, 
    394 F.3d at 1224-25
     (some alterations in
    original)).
    Our recent decision in United States v. Maggi made clear
    that “[t]here is an important overlay to the Bruce test: To be
    considered an Indian under . . . [§] 1153, the individual must
    UNITED STATES V. ZEPEDA                     15
    have a sufficient connection to an Indian tribe that is
    recognized by the federal government. Affiliation with a tribe
    that does not have federal recognition does not suffice.”
    598 F.3d at 1078 (emphasis in original).
    In Maggi, we addressed the consolidated appeals of two
    defendants, Gordan Mann and Shane Maggi, both tried and
    convicted pursuant to § 1153. Mann was an enrolled member
    of the Little Shell Tribe of the Chippewa Cree, a tribe that
    was not recognized by the federal government, despite a
    longstanding petition for federal recognition. Id. at 1076.
    We noted that tribal enrollment records often include
    identification of an individual’s percentage of Indian blood,
    and that this information is used to establish eligibility for
    enrollment. Id. Mann’s enrollment record reflected his
    degree of Indian blood as 10/64 Chippewa and 11/64 other
    Indian blood. Id. Maggi’s degree of Indian blood was 1/64
    Blackfeet tribe, a tribe recognized by the federal government,
    and 1/32 Cree tribe. Id. at 1076, 1080–81. The record did
    not reflect whether Maggi was descended from a federally
    recognized group of the Cree tribe, such as the Rocky Boy
    Reservation Chippewa Cree, or a non-recognized group, such
    as the Little Shell Tribe Chippewa Cree. Id. Maggi was not
    an enrolled member of any tribe, though his mother’s
    enrollment in the Blackfeet tribe entitled him to the receipt of
    certain limited benefits. Id. at 1076–77. Both Mann and
    Maggi argued in the district court that they were not subject
    to prosecution under § 1153 because they were not Indians.
    Id.
    In Maggi, we commented that we had previously
    addressed the issue of whether prosecution under § 1153
    requires membership in a federally recognized tribe in LaPier
    v. McCormick, 
    986 F.2d 303
    , 304–06 (9th Cir. 1993). In a
    16               UNITED STATES V. ZEPEDA
    federal habeas petition under 
    28 U.S.C. § 2254
    , LaPier
    challenged his Montana state court conviction, maintaining
    that he should have been tried for his alleged crime in federal
    court under § 1153 because he was an Indian. LaPier, like
    Mann, was a member of the Little Shell Tribe of Chippewa
    Cree. Id. at 306. We reasoned that it did not need to examine
    whether LaPier had shown a sufficient degree of Indian blood
    or whether he had a sufficient connection to a tribe because
    he had failed to satisfy an antecedent requirement of
    affiliation with a federally recognized tribe:
    We need not address . . . the question whether
    LaPier has shown a significant degree of
    blood and sufficient connection to his tribe to
    be regarded as one of its members for
    criminal jurisdiction purposes. There is a
    simpler threshold question that must be
    answered first, and in this case it is
    dispositive: Is the Indian group with which
    LaPier claims affiliation a federally
    acknowledged Indian tribe? If the answer is
    no, the inquiry ends. A defendant whose only
    claim of membership or affiliation is with an
    Indian group that is not a federally
    acknowledged Indian tribe cannot be an
    Indian for criminal jurisdiction purposes.
    Id. at 304–05 (internal quotation marks and citations
    omitted). We therefore concluded that LaPier was not
    entitled to habeas relief.
    Maggi recognized that LaPier’s threshold requirement of
    affiliation with a federally recognized tribe stemmed from
    judicial and legislative acknowledgment that federal criminal
    UNITED STATES V. ZEPEDA                     17
    jurisdiction over Indians is not dependent on a racial
    classification, but upon the federal government’s relationship
    with the Indian nations as separate sovereigns. 598 F.3d at
    1078–79 (discussing LaPier, 
    986 F.2d at 305
     (“Federal
    legislation treating Indians distinctively is rooted in the
    unique legal status of Indian tribes under federal law and
    upon the plenary power of Congress, based on a history of
    treaties and the assumption of a guardian-ward status, to
    legislate on behalf of federally recognized Indian tribes.”),
    United States v. Antelope, 
    430 U.S. 641
    , 646 (1977)
    (“[F]ederal regulation of Indian affairs is not based upon
    impermissible classifications. Rather, such regulation is
    rooted in the unique status of Indians as ‘a separate people’
    with their own political institutions. . . . [I]t is not to be
    viewed as legislation of a ‘racial’ group consisting of
    ‘Indians’ . . . .”) (quoting Morton v. Mancari, 
    417 U.S. 535
    ,
    553 n. 24 (1974)), and Means v. Navajo Nation, 
    432 F.3d 924
    , 930 (9th Cir. 2005)).
    Accordingly, Maggi concluded that LaPier’s requirement
    of affiliation with a federally recognized tribe was not altered
    or superseded by the test announced in Bruce, “which
    presupposes that ‘tribal or government recognition as an
    Indian’ means as an Indian from a federally recognized tribe.”
    Maggi, 
    598 F.3d at 1079
     (quoting Bruce, 
    394 F.3d at 1223
    ).
    It followed from this analysis that the first prong of the Bruce
    test requires “that the bloodline be derived from a federally
    recognized tribe.” Id. at 1080; see also Ninth Cir. Model Jury
    Instr. No. 8.113 (“In order for the defendant to be found to be
    an Indian, the government must prove the following, beyond
    a reasonable doubt: First, the defendant has descendant status
    as an Indian, such as being a blood relative to a parent,
    grandparent, or great-grandparent who is clearly identified as
    an Indian from a federally recognized tribe . . . .”) (emphasis
    18               UNITED STATES V. ZEPEDA
    added); id. cmt. (“The question of Indian status operates as a
    jurisdictional element under 
    18 U.S.C. § 1153
    . ‘Some blood’
    evidence must be from a federally recognized tribe.”)
    (citations omitted).
    C.
    We turn to the substance of our sufficiency of the
    evidence inquiry. Bruce and its progeny make clear that
    Indian status is an element of any § 1153 offense, and as
    such, that it must be alleged in the indictment and proven
    beyond a reasonable doubt. 
    394 F.3d at 1229
    ; Maggi,
    
    598 F.3d at 1077
    ; Cruz, 
    554 F.3d at 845
    . We must therefore
    determine whether the evidence presented at trial was
    sufficient, drawing all inferences in the government’s favor,
    to satisfy the threshold question identified in LaPier and
    Maggi, namely, whether Zepeda’s bloodline is derived from
    a federally recognized tribe. See Cruz, 
    554 F.3d at
    843–44.
    Our inquiry contains a legal component and a factual
    component. The question of whether a given tribe is
    federally recognized is a matter of law. The question of
    whether the government has proven that a defendant’s
    bloodline derives from such a tribe is a question of fact for
    the jury to resolve.
    1.
    Federal recognition of an Indian tribe is a formal political
    act that “permanently establishes a government-to-
    government relationship between the United States and the
    recognized tribe as a ‘domestic dependent nation.’” H.R.
    Rep. 103-781, at 2 (1994) (footnote omitted). With this
    understanding, we conclude that the question of whether a
    UNITED STATES V. ZEPEDA                   19
    tribe is federally recognized is best characterized as a
    question of law.
    Our prior cases provide guidance. In LaPier, having
    determined that “[i]t is . . . the existence of the special
    relationship between the federal government and the tribe in
    question that determines whether to subject the individual
    Indians affiliated with that tribe to exclusive federal
    jurisdiction for crimes committed in Indian country,” we
    stated that, “[t]o determine whether that special relationship
    exists—whether the United States recognizes a particular
    tribe—we defer ‘to the political departments.’” 
    986 F.2d at 305
     (quoting Baker v. Carr, 
    369 U.S. 186
    , 215 (1962))
    (additional citations omitted). To that end, we recognized
    that the Bureau of Indian Affairs had compiled and published
    a list of federally recognized tribes in the Federal Register
    pursuant to 25 C.F.R. pt. 83, which we stated “appears to be
    the best source to identify federally acknowledged Indian
    tribes whose members or affiliates satisfy the threshold
    criminal jurisdiction inquiry.” 
    Id.
     Consulting this list, we
    determined that LaPier was not an Indian because the tribe
    with which he claimed affiliation was not among the listed
    tribes. 
    Id. at 306
    .
    In United States v. Heath, 
    509 F.2d 16
     (9th Cir. 1974), we
    considered the effect of the Klamath Termination Act,
    
    25 U.S.C. § 564
     et seq., on the defendant’s criminal
    conviction under § 1153, and found that federal criminal
    jurisdiction over the defendant was lacking because the Act
    terminated federal supervision over the Klamath Tribe. Id. at
    19. In so holding, we explained that “[t]he Klamath
    Termination Act . . . was intended to end the special
    relationship that had historically existed between the Federal
    Government and the Klamath Tribe. While anthropologically
    20                  UNITED STATES V. ZEPEDA
    a Klamath Indian even after the Termination Act obviously
    remains an Indian, his unique status vis-a-vis the Federal
    Government no longer exists.” Id. We therefore concluded
    that “
    18 U.S.C. § 1153
     cannot serve to confer Federal
    jurisdiction with respect to crimes committed by terminated
    Klamath Indians.” 
    Id.
     Finally, in Maggi, discussed at length
    above, we found that the threshold requirement of a bloodline
    from a federally recognized tribe was lacking for one
    defendant because there was an “absence of evidence” that
    his bloodline derived from a recognized tribe. 598 F.3d at
    1080.
    This precedent, considered as a whole, reflects our
    recognition that there is a legal element embedded in the first
    prong of the Bruce test: Federal recognition is a legal status
    afforded to “American Indian groups indigenous to the
    continental United States . . . that can establish a substantially
    continuous tribal existence and which have functioned as
    autonomous entities throughout history until the present.”
    
    25 C.F.R. § 83.3
    . The Bureau of Indian Affairs, in
    accordance with the governing regulations, affords the legal
    designation of federal recognition to those tribes that meet its
    criteria. See 
    id.
     §§ 83.1–83.13 (noting procedures for
    establishing that an American Indian group exists as an
    Indian tribe). As we said in LaPier, “absent evidence of its
    incompleteness, the BIA list appears to be the best source to
    identify federally acknowledged Indian tribes whose
    members or affiliates satisfy the threshold criminal
    jurisdiction inquiry.” 
    986 F.2d at 305
    .11
    11
    We note that consulting the BIA’s list will not always end the federal
    recognition inquiry. See Felix S. Cohen, Handbook of Federal Indian Law
    § 3.02[5] at 143 (2005 ed.) (“Tribes not included on the list may be able
    to establish their status as federally recognized through other means,
    UNITED STATES V. ZEPEDA                             21
    The district court did not determine whether the tribes at
    issue here are recognized by the federal government. On
    appeal, the government argues that both the “Gila River
    Indian Community of the Gila River Indian Reservation,
    Arizona” and the “Tohono O’odham Nation of Arizona” are
    federally-recognized Indian tribes. We agree. We recognize,
    as a matter of law, that both tribes appear on the BIA’s list of
    federally recognized tribes. See Indian Entities Recognized
    and Eligible to Receive Services from the United States
    Bureau of Indian Affairs, 
    73 Fed. Reg. 18,553
     (April 4,
    2008); 
    74 Fed. Reg. 40,218
     (Aug. 11, 2009); 
    75 Fed. Reg. 60,810
     (Oct. 1, 2010).
    2.
    Having made the legal determination that the “Tohono
    O’odham Nation of Arizona” is a federally recognized tribe,
    we must decide whether the government presented sufficient
    evidence to prove that Zepeda’s blood derived from that
    however.”). Congress retains the authority to recognize new tribes by
    statute and to restore the status of previously terminated tribes without any
    action by the BIA, a power it has exercised a number of times since 1979.
    See, e.g., 
    25 U.S.C. §§ 566
    , 712a, 1300j-1, 1300b-11; see also Cohen
    § 3.02[5] at 144 & n.57; id. § 3.02[8][c], p. 168 & n.225. In addition,
    Congress has declared that it alone has the authority to terminate a tribe’s
    federally recognized status. See Federally Recognized Indian Tribe List
    Act of 1994, Pub. L. No. 103-454, § 103(4), 
    108 Stat. 4791
    , 4791 (1994);
    Cohen § 3.02[8][a] at 164. That means the BIA’s failure to include a
    recognized tribe on the list, whether deliberately or through oversight,
    would not strip a tribe of its federally recognized status unless Congress
    had spoken through express legislative action. See Cohen § 3.02[8][a] at
    164 & n.196. Even today, then, circumstances remain in which
    determining a tribe’s federally recognized status might entail interpreting
    the meaning and effect of congressional enactments.
    22                   UNITED STATES V. ZEPEDA
    tribe.12 The Tribal Enrollment Certificate identifies Zepeda’s
    bloodline as 1/4 Pima and 1/4 Tohono O’Odham; and
    Matthew’s testimony described his ancestral bloodline as
    “Pima and Tiho.” The government introduced no evidence
    that any of these Indian groups are a federally recognized
    tribe.
    In essence then, the government asks us to fill in the
    evidentiary gap in its case. There is no evidence in the record
    that the “Tohono O’Odham” referenced in Zepeda’s Tribal
    Enrollment Certificate refers to the federally recognized
    “Tohono O’odham Nation of Arizona.” Zepeda argues
    correctly that the name “Tohono O’Odham” is not on the BIA
    list. Further, he vigorously argues that:
    [The] appellation “Tohono O’Odham”
    describes the collective Tohono O’Odham
    population, a substantial portion of which has
    always resided in the Sonoran Desert of
    northwest Mexico. The BIA specifically lists
    as federally recognized only the “Tohono
    O’odham Nation of Arizona,” and not
    members of the collective “Tohono
    O’Odham” tribe, “wherever residing” that
    Zepeda’s certificate apparently describes.
    Zepeda’s Resp. to Gov’t’s Mot. to Take Judicial Notice 2–3,
    ECF No. 69.
    12
    We note that because we are concerned only with the first prong of the
    Bruce test, the status of the Gila River tribe is not actually relevant to our
    decision. The government points to the Tohono O’odham Nation of
    Arizona as the only federally recognized tribe from which Zepeda’s
    bloodline may derive.
    UNITED STATES V. ZEPEDA                    23
    “Determination of who is an Indian under [
    18 U.S.C. § 1153
    ] is not as easy as it might seem.” Maggi, 
    598 F.3d at 1075
    . Even under our deferential standard of review, we
    have vacated jury convictions for insufficient evidence of a
    defendant’s Indian status. See, e.g., 
    id. at 1081, 1083
    (vacating two convictions); Cruz, 
    554 F.3d at 851
     (applying
    an even more deferential standard of review).
    In Maggi, the government introduced evidence showing
    that defendant Mann had the following percentages of Indian
    blood: “10/64 Chippewa and 11/64 ‘other Indian blood.’”
    598 F.3d at 1076. Although we recognized that some
    Chippewa tribes were federally recognized, e.g. the Rocky
    Boy Reservation Chippewa Cree, id., we nonetheless
    concluded that no rational juror could have found that the
    Chippewa referenced in Mann’s certificate of enrollment
    could have derived from that tribe. Nor did we think it
    possible that the jury could have inferred that “other Indian
    blood” could have referenced a federally recognized tribe.
    Rather, we concluded that the only rational finding a juror
    could make was that the Chippewa blood derived entirely
    from the Little Shell Tribe of the Chippewa Cree, a non-
    recognized tribe in which Mann was an enrolled member. Id.
    at 1080. Thus, we concluded that “[g]iven the absence of
    evidence of any blood from a federally recognized tribe,
    Mann cannot meet the first prong of Bruce, and his
    conviction must be vacated.” Id.
    We confront an analogous situation here. We are not free
    to speculate that Zepeda’s Tohono O’Odham blood is derived
    from the Tohono O’odham Nation of Arizona. See United
    States v. Andrews, 
    75 F.3d 552
    , 556 (9th Cir. 1996) (noting
    that “[w]hile ‘[c]ircumstantial evidence can be used to prove
    any fact, . . . mere suspicion or speculation’ will not provide
    24               UNITED STATES V. ZEPEDA
    sufficient evidence” (citation omitted)); see also United
    States v. Bennett, 
    621 F.3d 1131
    , 1138–39 (9th Cir. 2010)
    (finding insufficient evidence to support a conviction);
    Walters v. Maass, 
    45 F.3d 1355
    , 1358–60 (9th Cir. 1995)
    (same); United States v. Dinkane, 
    17 F.3d 1192
    , 1195–98 (9th
    Cir. 1994) (same). Zepeda is not an enrolled member of the
    Tohono O’odham Nation of Arizona and the government
    submitted no evidence whatsoever to connect the appellation
    “Tohono O’Odham” to the federally recognized Nation of
    Arizona. We are not free to surmise that they are one in the
    same, just as we were not free to speculate that some of
    Mann’s Chippewa blood could have derived from the
    federally recognized Rocky Boy Reservation Chippewa Cree.
    Maggi, 
    598 F.3d at 1076, 1080
    ; see also United States v.
    Ramirez, 
    714 F.3d 1134
    , 1136, 1140 (9th Cir. 2013)
    (reversing a conspiracy charge and concluding that there was
    insufficient evidence to show that the defendant made an
    agreement to distribute meth despite the “ample proof that the
    defendant possessed and sold drugs” to his associate four
    times in one month in “escalating amounts”).
    Nor are we free to rely on facts outside of the record
    concerning the scope of the Nation of Arizona, because this
    evidence was not presented to the jury and could not have
    been relied upon by it. It is horn book law that we, as an
    appellate court, are limited to the record before the jury when
    assessing the sufficiency of the evidence. See Jackson,
    
    443 U.S. at
    317–18 (reciting that the sufficiency of evidence
    “constitutional standard must also require that the factfinder
    will rationally apply that standard to the facts in evidence”
    and that “the critical inquiry on review of the sufficiency of
    the evidence . . . [must be] to determine whether the record
    evidence could reasonably support a finding of guilt beyond
    a reasonable doubt” (emphasis added)).
    UNITED STATES V. ZEPEDA                     25
    The jury found that Zepeda was an Indian pursuant to
    § 1153 in the absence of any proof that Zepeda’s bloodline
    derived from a federally recognized tribe. Because “there is
    no evidence that [Zepeda] has any blood from a federally
    recognized Indian tribe,” Maggi, 
    598 F.3d at 1075
    , we
    conclude that no rational juror could have found Zepeda
    guilty beyond a reasonable doubt of counts 2 through 9 of the
    indictment, the offenses predicated on § 1153, and his
    convictions must be vacated.
    IV.
    In sum, we hold that the Tribal Enrollment Certificate was
    insufficient to establish that Zepeda is an Indian for the
    purposes of federal jurisdiction under § 1153 because the
    government introduced no evidence that Zepeda’s bloodline
    is derived from a federally recognized tribe. We do not
    suggest, in so holding, that a Tribal Enrollment Certificate
    may never be sufficient to meet the government’s burden
    under the first prong of the Bruce test. Of course, future
    cases may present circumstances in which the Certificate
    itself reflects this information. But that is not the case here.
    Because we hold that the government introduced
    insufficient evidence under the first prong of the Bruce test,
    we need not consider whether the Tribal Enrollment
    Certificate alone was sufficient to carry the government’s
    burden as to the second prong. As to that issue, we express
    no opinion.
    For the above reasons, Zepeda’s convictions under
    § 1153, in counts 2 through 9 of the indictment, are
    REVERSED. Zepeda’s conviction for conspiracy in violation
    26                 UNITED STATES V. ZEPEDA
    of 
    18 U.S.C. § 371
     is unaffected by this disposition.13 See
    Begay, 
    42 F.3d at 499
     (“Section 371 is a federal criminal
    statute of nationwide applicability, and therefore applies
    equally to everyone everywhere within the United States,
    including Indians in Indian country.”).
    REVERSED in part and REMANDED for resentencing.
    WATFORD, Circuit Judge, dissenting:
    I agree with much of the majority’s analysis, particularly
    its conclusion that whether a tribe has been recognized by the
    federal government is a question of law. But I disagree with
    the majority’s ultimate determination that the government
    failed to present sufficient evidence from which a rational
    jury could infer that Zepeda has a blood connection to a
    federally recognized tribe. Under Jackson v. Virginia,
    
    443 U.S. 307
    , 319 (1979), a rational jury could certainly infer
    that the reference in Zepeda’s tribal enrollment certificate to
    “1/4 Tohono O’Odham” is a reference to the federally
    recognized Tohono O’odham Nation of Arizona.
    13
    Zepeda raises numerous additional issues on appeal that are relevant
    to his conspiracy conviction. We addressed those issues in a separate
    memorandum disposition previously filed on January 18, 2013. See
    United States v. Zepeda, 506 F. App’x 536 (9th Cir. 2013).
    

Document Info

Docket Number: 10-10131

Citation Numbers: 738 F.3d 201, 2013 U.S. App. LEXIS 19318, 2013 WL 5273093

Judges: Fernandez, Paez, Watford

Filed Date: 9/19/2013

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (24)

Baker v. Carr , 82 S. Ct. 691 ( 1962 )

united-states-v-john-nez-begay-donald-benally-paul-kinlicheenie-earl , 42 F.3d 486 ( 1994 )

United States v. Ramirez , 537 F.3d 1075 ( 2008 )

Lawrence E. Wilson, Warden of San Quentin Prison v. ... , 345 F.2d 282 ( 1965 )

Florida v. Nixon , 125 S. Ct. 551 ( 2004 )

Jackson v. Virginia , 99 S. Ct. 2781 ( 1979 )

United States v. Antelope , 97 S. Ct. 1395 ( 1977 )

russell-means-v-navajo-nation-a-federally-recognized-indian-tribe-ray , 432 F.3d 924 ( 2005 )

Morton v. Mancari , 94 S. Ct. 2474 ( 1974 )

Leland Neal Lapier v. Jack McCormick Warden, Montana State ... , 986 F.2d 303 ( 1993 )

United States v. Betty Jean Heath , 509 F.2d 16 ( 1974 )

United States v. Molina , 596 F.3d 1166 ( 2010 )

United States v. Samuel H. South , 28 F.3d 619 ( 1994 )

United States v. Miguel Navarro Viayra Manuel Alvarez Guerra , 365 F.3d 790 ( 2004 )

United States v. Rok Gjurashaj and Gjon Dushaj , 706 F.2d 395 ( 1983 )

United States v. Maggi , 598 F.3d 1073 ( 2010 )

CDN INC., a California Corporation, Plaintiff-Appellee, v. ... , 197 F.3d 1256 ( 1999 )

96 Cal. Daily Op. Serv. 753, 96 Daily Journal D.A.R. 1177 ... , 75 F.3d 552 ( 1996 )

United States v. Darweshi Dinkane , 17 F.3d 1192 ( 1994 )

United States v. Bennett , 621 F.3d 1131 ( 2010 )

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