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9th Circuit Defense Wins: “crimes of violence”, self-authentication and Indian tribes, sentencing remand

United States v. Benally, — F.3d —, 2016 WL 4073316 (9th Cir. 2016): Involuntary manslaughter is not a “crime of violence”

Depending on who you believe, defendant either coldly knelt down, aimed, and shot his neighbor through the heart, or recklessly shot him by accident while the two were playing a “drunken game” with a rifle. The jury went with version two, convicting him of the lesser-included offense of involuntary manslaughter. The second count in the indictment was for use of a firearm during a “crime of violence” in violation of 18 U.S.C. 924(c), where the purported “crime of violence” was the homicide. Defendant’s counsel objected to the jury being instructed that involuntary manslaughter was a “crime of violence,” arguing that reckless crimes do not qualify. But the government produced a Ninth Circuit case, United States v. Springfield, 829 F.2d 860 (9th Cir. 1987), that held that involuntary manslaughter is a crime of violence, and the district court found that Springfield was controlling. This was a mistake, because – as the government acknowledged on appeal – Springfield had been abrogated by Leocal v. Ashcroft, 543 U.S. 1 (2004), and its Ninth Circuit progeny, which have established that reckless crimes are not “crimes of violence” pursuant to Section 924. The Ninth Circuit accordingly held that Springfield is no longer good law, that involuntary manslaughter is not a “crime of violence,” and that defendant’s Section 924(c) conviction and associated 10-year consecutive sentence must be vacated.

(Modesty prevents this blogger from identifying the attorney to whom congratulations might be directed.)

United States v. Alvirez, — F.3d —, 2016 WL 4073312 (9th Cir. 2016): Indian tribal documents are not self-authenticating under FRE 902(1)

Certain (mostly violent) crimes that are committed by Indians on Indian reservations may be prosecuted in federal court under the Indian Major Crimes Act, 18 U.S.C. 1153. In such cases, one of the elements that the government must prove beyond a reasonable doubt is that the defendant is an “Indian,” as the Act requires. The Ninth Circuit has articulated a two-part test for establishing a defendant’s Indian status. The first part requires a quantum of “Indian blood” – i.e., an Indian parent, grandparent, or great-grandparent. The second part requires scrutiny of four factors: enrollment in a federally-recognized tribe, receipt of benefits reserved to tribe members, affiliation with a recognized tribe, and participation in Indian social life. At defendant’s trial, the government in seeking to prove this element placed almost total reliance on a “Certificate of Indian Blood” – a type of document commonly issued by Indian tribes, that purports to confirm an individual’s enrollment and degree of “Indian blood.” But the government failed to introduce this document through a person with direct knowledge of its creation. Instead, it introduced the certificate through an officer of a different tribe, who had only general knowledge as to the category of documents to which it appeared to belong. Defendant’s counsel objected. The court overruled the objection, reasoning that the document – which purported to have been issued by a federally-recognized tribe and bore a raised seal – was self-authenticating pursuant to Federal Rule of Evidence 902(1). This was error, because Indian tribes are not among the governmental entities that Rule 902(1) identifies as able to issue self-authenticating documents. The error was not harmless, because the government had presented little else to prove defendant’s Indian status. The court reversed defendant’s conviction and remanded the case for a new trial.

(Modesty prevents this blogger from identifying the attorney to whom congratulations might be directed.)

United States v. Pridgette, — F.3d — (9th Cir. Aug. 5, 2016) (No. 14-30223): Where government tries but fails to prove sentence enhancement at intial sentencing, resentencing is on a closed record

In 2013, defendant was convicted of transporting a stolen vehicle, being a felon in possession of a firearm, and possessing counterfeit credit cards and counterfeiting devices. The Sentencing Guidelines assign two criminal history points for each prior sentence of imprisonment of at least 60 days but less than one year and one month, and one point for each prior sentence of fewer than 60 days. Over defendant’s objection that the non-suspended terms of several prior sentences were shorter than the probation officer indicated, the district court added four points to his criminal history calculation. By the time of his appeal, however, defendant was able to prove with state court records that his objection had been correct. At oral argument, the government acknowledged that it had no basis to dispute defendant’s assertion. The Ninth Circuit then gave the government 48 hours “to consider whether to confess error.” The government confessed error and asked for a remand. The Ninth Circuit then ordered supplemental briefing as to whether the remand should call for resentencing “on the existing record or on an open record.” After reviewing the briefing, the court held that resentencing would be conducted on the existing record. Generally, the court remands for resentencing on an open record, but exceptions apply when (1) additional evidence would not have changed the outcome, or (2) there was a failure of proof after a full inquiry into the factual question at issue. The second exception applies when the government in the initial sentencing “tries but fails to prove facts supporting an increased sentence.” That, the court held, was what occurred here: The government had ample opportunity and notice of defendant’s objection, and should not be given a second bite at the apple on remand. The court vacated defendant’s sentence and remanded for resentencing on the existing record.

(Congratulations to David Alan Benjamin, Nevin, Benjamin, McKay & Bartlett LLP, Boise, ID.)

(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)

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