United States v. Francis Floyd Ant , 882 F.2d 1389 ( 1989 )

O’SCANNLAIN, Circuit Judge,

dissenting:

Because I agree with Judge Battin that suppression in federal court of the guilty plea entered in tribal proceedings disparages the integrity of tribal courts, I must respectfully dissent. The majority concedes that Ant’s plea in tribal court complied fully with tribal law and the Indian Civil Rights Act (ICRA). The majority points to no evidence of coercion, “shocking conduct,” or inaccuracy in the transcript of the tribal proceedings. Because I find no constitutional prohibition against admission of the guilty plea in federal court, and because I find no bar to admissibility as an evidentiary matter, I would affirm Judge Battin’s denial of the motion to suppress.

I agree with the majority that had the plea been entered in a state court it would have been constitutionally infirm. I agree with the majority that had the plea been made in a federal court, it would have been constitutionally infirm. I also agree that such a guilty plea, had it been made in a state trial or in another federal trial, would require suppression here for the reasons expressed in the majority opinion.

But none of these principles is relevant here. The plea occurred, not in a federal court, not in a state court, but in a tribal court whose proceedings are entitled to the dignity shown to foreign courts. See United States v. Wheeler, 435 U.S. 313, 328, 98 S.Ct. 1079, 1088, 55 L.Ed.2d 303 (1978). Generally, evidence of judicial proceedings in foreign courts is admissible in federal court. See Ennis v. Smith, 55 U.S. (14 How.) 400, 430, 14 L.Ed. 472 (1852); 30 Am.Jur.2d Evidence § 982 (1967). This includes evidence of guilty pleas received in a foreign jurisdiction. See United States v. Nolan, 551 F.2d 266 (10th Cir.), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191 (1977) (evidence of defendant’s British conviction, and his guilty plea leading up to it, even if they were obtained in manner inconsistent with U.S. Constitution, nonetheless held properly admitted in federal criminal trial under Fed.R.Evid. 404(b)); cf. United States v. Ogle, 587 F.2d 938 (8th Cir.1978) (even if Japanese system does not afford constitutional due process protections, Japanese conviction admissible to prove identity); cf. also La Victoire v. Kelly, 5 A.D.2d 548, 173 N.Y.S.2d 543, 547 (1958) (motorist’s plea of guilty in Canada admissible in license revocation hearing to determine whether out-of-state driving violation occurred).

Granted, none of these cases directly addresses the admissibility of a guilty plea to a foreign criminal charge that has as its basis the very same activity as does the federal crime. Admissibility in the case before us is more compelling, however, because there is no danger of Ant’s being convicted based on evidence of prior crimes designed to show bad character. See United States v. Lewis, 787 F.2d 1318, 1321 (9th Cir.1986); Fed.R.Evid. 404(b).

Furthermore, we have given great deference to search and seizure procedures satisfactory to foreign jurisdictions when they meet certain threshold tests. Generally, such evidence obtained by foreign officials is admissible in federal court. Cf. Stonehill v. United States, 405 F.2d 738, 743, 746 (9th Cir.1968), cert. denied, 395 U.S. 960, 89 S.Ct. 2102, 23 L.Ed.2d 747 (1969) (evidence seized by foreign officers in raids which would have violated fourth amendment held admissible in federal court). This is true even when the officials’ conduct would violate the Constitution had they been state or federal agents, provided that the conduct (1) does not amount to coercion; (2) is not “shocking”; and (3) is valid in the jurisdiction where the evidence was secured. See United States v. Rose, 570 F.2d 1358, 1362 (9th Cir.1978). And, there is a fourth threshold consideration: the foreign jurisdiction must be “at least equally [as] civilized” as the United States. See United States v. Nagelberg, 434 F.2d 585, 587 n. 1 (2d Cir.1970), cert. denied, 401 U.S. 939, 91 S.Ct. 935, 28 L.Ed.2d 219 (1971). There is no reason not to apply this same four-part standard in cases involving uncounseled guilty pleas in foreign or tribal courts. Just as the fourth amendment is not binding on foreign officials in their evidence gathering activities, so too the sixth amendment is not binding upon foreign or tribal courts. See Flynn v. Shultz, 748 F.2d 1186, 1197 & n. 10 (7th Cir.1984), cert. denied, 474 U.S. 830, 106 S.Ct. 94, 88 L.Ed.2d 77 (1985) (court stating that “[ojbviously, the Mexican government is not bound by the requirements of our Constitution” and noting that there is “no indication from the debate leading to ratification of the Constitution and the Bill of Rights that application of the Sixth Amendment to foreign court prosecutions was contemplated”).

What the majority opinion implies, regrettably, is that we simply are not willing to treat tribal courts with the same dignity as we do foreign courts. Whether the majority intends it or not, its opinion will be construed to mean that evidence from tribal court proceedings obtained in a way which clearly complies with ICRA and tribal law will be suppressed largely because we do not regard tribal courts to be as “civilized” as state and federal courts.¹ Congress clearly intended that not all provisions of the Constitution be imposed upon the freedom of Indian tribes to conduct themselves in accordance with their own tribal laws — laws, incidentally, which have always been considered to be laws of a sovereign of equal dignity with the United States, not a subdivision of the federal government. Wheeler, 435 U.S. at 328, 98 S.Ct. at 1088.

The majority seems troubled by the fact that the sixth amendment is not binding upon tribal courts.² But that is exactly what the ICRA tells us. Compare U.S. Const, amend. VI (“In all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defense”) with 25 U.S.C. § 1302(6) (1982) (“No Indian tribe in exercising powers of self-government shall ... deny to any person in a criminal proceeding the right... at his own expense to have the assistance of counsel for his defense”) (emphasis supplied).

Had Congress intended that the full panoply of sixth amendment protections be imposed upon tribal courts, it clearly could have said so in the ICRA. Because the nature of comity between tribal courts and federal courts — analogous to the relationship between sovereign states — is so sensitive and so delicately balanced, it is up to Congress, not this panel, to change the rules if they should be changed at all.

1 . There is potential for even greater disparagement. Under the ICRA, right to counsel is only guaranteed to the extent the defendant can afford an attorney. Under the majority’s rationale, could it not be argued that evidence from a tribal proceeding in which an indigent defendant appears pro se would never be admissible in federal court? Indeed what policy, other than disparagement, is served by promulgation of the majority’s new “policy” on suppression of evidence which by definition has not been obtained by unconstitutional means?

2 . Of course, I recognize that suppressing a tribal court guilty plea in a federal criminal trial is not equivalent to an imposition of the sixth amendment on tribal courts. Nonetheless, the majority’s holding will have far-reaching consequences since virtually all tribal court guilty pleas will be inadmissible in federal court, given the less stringent requirements of the ICRA.