ramiro bustamante, petitioner-appellant, v. michael ......for the district of arizona...

10-15714________________________________________________________________________

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

_________________________

RAMIRO BUSTAMANTE,

Petitioner-Appellant,

v.

MICHAEL VALENZUELA, Interim Chief,Pascua Yaqui Tribe Department of Public Safety,

Respondent-Appellee,

KURT BRAATZ, Commander, Detention, Coconino County Detention Facility,


VINCENT ANCHANDO, Supervisory Correctional Specialist, Bureau of Indian Affairs,Office of Justice Services, Division of Corrections, District 3,

Respondent-Appellee.________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF ARIZONA (CV-09-8192-PHX-ROS)

_______________________________________

PETITIONER - APPELLANT’S OPENING BRIEF_______________________________________

JON M. SANDSFederal Public DefenderDistrict of Arizona

DANIEL L. KAPLANAssistant Federal Public DefenderKEITH J. HILZENDEGERResearch and Writing Specialist850 West Adams Street, Suite 201Phoenix, Arizona 85007-2730(602) 382-2767

________________________________________________________________________

Case: 10-15714 09/10/2010 Page: 1 of 36 ID: 7470118 DktEntry: 8

TABLE OF CONTENTS

PAGE

Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Issue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. Nature of the Case, Course of Proceedings, andDisposition Below.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

The District Court Erred in Concluding that Congress Intended to Permit IndianTribes to Evade ICRA’s One-Year Sentencing Cap by ‘Stacking’ ConsecutiveSentences in Connection with Individual Criminal Transactions. . . . . . . . . . . . . . 8

A. Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B. Construing ICRA to Permit ‘Stacking’ Flouts Congress’sIntention in Capping Tribal Court Sentences at One Year. . . . . . . . . 8

(1) As the District of Minnesota Observed in Spears v. RedLake Band of Chippewa Indians, ‘Stacking’ ContravenesCongress’s Intention to Create a “Balanced and Logical”Regime in Which the Degree of Procedural ProtectionsProvided to Tribal Defendants Corresponds to theSeverity of the Possible Sentences They May Receive. . . . . . . 8

(2) The District Court’s Criticisms of the Spears Court’sReasoning are Not Compelling. . . . . . . . . . . . . . . . . . . . . . . . 12

i


[a] The District Court’s Approach of Deriving an“Unambiguous” Meaning of the Term “Offense” asUsed in ICRA by Citing Four Decisions IssuedBetween 25 and 116 Years Before ICRA’sEnactment is Flawed. . . . . . . . . . . . . . . . . . . . . . . . . . . 12

[b] The District Court’s Assertion that the SpearsCourt’s Analysis Would be Flawed Even if ICRAWere Ambiguous is Mistaken. . . . . . . . . . . . . . . . . . . . 20

(3) The District Court’s Construction of ICRA Transformsthe Statute’s One-Year Sentencing Cap Into a VirtualNullity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Statutory Addendum

Certificate of Compliance with FRAP 32(a)(7)(b)

Statement Regarding Related Cases

Certificate of Filing and Service

ii


TABLE OF AUTHORITIES

CASES PAGE

American Tobacco Co. v. United States, 147 F.2d 93 (6th Cir. 1944),aff’d, 328 U.S. 781 (1946).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 19

Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) .. . . . . . . . . . . . . . . 5

Bell v. United States, 349 U.S. 81 (1955). . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 19

Dugan & McNamara, Inc. v. United States, 127 F. Supp. 801 (Ct. Cl. 1955). . . . 15

Ebeling v. Morgan, 237 U.S. 625 (1915). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 19

Harrison v. Ollison, 519 F.3d 952 (9th Cir.), cert. denied, 129 S. Ct. 254 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

King v. St. Vincent’s Hosp., 502 U.S. 215 (1991).. . . . . . . . . . . . . . . . . . . . . . . . . 18

Miranda v. Braatz et al., No. 10-15167. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Miranda v. Braatz et al., No. 10-15308. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 29

Miranda v. Nielsen, No. 09-cv-8065, 2010 WL 148218(D. Ariz. Jan. 12, 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Moore v. Illinois, 55 U.S. 13 (1852). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 17, 19

Morissette v. United States, 342 U.S. 246 (1952).. . . . . . . . . . . . . . . . . . . . . . . . . 13

Padilla-Romero v. Holder, 611 F.3d 1011 (9th Cir. 2010). . . . . . . . . . . . . . 8, 9, 14

Pascua Yaqui Tribe v. Miranda, CA-08-015 (Pascua Yaqui Ct. App. 2009). . . . . 5

Portland 76 Auto/Truck Plaza, Inc. v. Union Oil Co., 153 F.3d 938 (9th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Retuta v. Holder, 591 F.3d 1181 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . 9, 18, 26

iii


Romero v. Goodrich, No. 09-cv-232 (D. N.M. Mar. 10, 2010). . . . . . . . . . . . . . . 11

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).. . . . . . . . . . . . . . . . . . . . . . 23

Spears v. Red Lake Band of Chippewa Indians, 363 F. Supp. 2d 1176(D. Minn. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-12, 16-25

State v. Berger, 134 P.3d 378 (Ariz. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Tablada v. Thomas, 533 F.3d 800 (9th Cir.), cert. denied,130 S. Ct. 3408 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955). . . . . . . . . . . . . . . . 20, 21

United States v. Bennett, 383 F.2d 398 (6th Cir. 1967). . . . . . . . . . . . . . . 13, 19, 20

United States v. Watkins, 278 F.3d 961 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . 14

United States v. Youssef, 547 F.3d 1090 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . 8

W.J. Dillner Transfer Co. v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen,and Helpers, 94 F. Supp. 491 (W.D. Pa. 1950). . . . . . . . . . . . . . . . . . . . . . . . . . . 15

STATUTES AND REGULATIONS PAGE

18 U.S.C. § 1153. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

25 U.S.C. § 1302(7).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 6, 7, 10, 13, 22, 23

25 U.S.C. § 1303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 2241. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2

iv


OTHER PAGE

4 Pascua Yaqui Tribal Code § 1-40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

4 Pascua Yaqui Tribal Code § 1-510. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

4 Pascua Yaqui Tribal Code § 1-780. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

4 Pascua Yaqui Tribal Code § 4-20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Tribal Law and Order Act of 2010, Pub. L. No. 111-211, tit. 2 (2010). . . . . . . . . 10

United States Constitution, Fifth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States Constitution, Sixth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

v


10-15714

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

__________________________

RAMIRO BUSTAMANTE,

Petitioner-Appellant,

v.

MICHAEL VALENZUELA, Interim Chief,Pascua Yaqui Tribe Department of Public Safety,


KURT BRAATZ, Commander, Detention, Coconino County Detention Facility,


VINCENT ANCHANDO, Supervisory Correctional Specialist, Bureau of IndianAffairs, Office of Justic Services, Division of Corrections, District 3,

Respondent-Appellee._________________________

Statement of Jurisdiction

The District Court for the District of Arizona (Silver, D.J.) had jurisdiction

over Petitioner-Appellant Ramiro Bustamante’s Petition for Writ of Habeas Corpus

pursuant to 25 U.S.C. § 1303 and 28 U.S.C. §§ 1331 and 2241. The district court

entered its final judgment on April 1, 2010. Clerk’s Record (“CR”) #48;

Petitioner-Appellant’s Excerpts of Record Volume II (“ERVII”) at 185. Mr.

Bustamante filed a timely Notice of Appeal the following day. CR #49; ERVII at


186-87. Mr. Bustamante does not require a certificate of appealability to pursue

this appeal. CR ##51, 52; Harrison v. Ollison, 519 F.3d 952, 958-59 (9th Cir.),

cert. denied, 129 S. Ct. 254 (2008) (certificate of appealability not required where

petition is filed under 28 U.S.C. § 2241). This Court has jurisdiction over Mr.

Bustamante’s appeal pursuant to 28 U.S.C. § 1291.

Statement of the Issue

At the time of Mr. Bustamante’s sentencing in tribal court, the Indian Civil

Rights Act provided that tribal courts could “in no event impose for conviction of

any one offense any penalty or punishment greater than imprisonment for a term of

one year and a fine of $5,000, or both” (25 U.S.C. § 1302(7)). Notwithstanding

this one-year cap, the tribal court sentenced Mr. Bustamante to eighteen months’

imprisonment in connection with a single incident in which he allegedly took some

household items from a camper in his mother’s backyard and then refused to leave

when asked. Did the district court err in holding that this sentence was lawful?

Statement of the Case

A. Nature of the Case, Course of Proceedings, and Disposition Below

Mr. Bustamante, an enrolled member of the Pascua Yaqui Tribe, pleaded

guilty in tribal court to three violations of the Tribe’s criminal code. The tribal

court sentenced Mr. Bustamante to eighteen months’ imprisonment, and the tribal

2


court of last resort rejected Mr. Bustamante’s argument that this sentence violated

the one-year sentencing cap set forth in the Indian Civil Rights Act, 25 U.S.C.

§ 1302(7). Mr. Bustamante then filed a Petition for Writ of Habeas Corpus in

federal district court, seeking relief on the ground that the tribal court had exceeded

the Indian Civil Rights Act’s one-year sentencing cap. Although the magistrate

judge recommended that the district court grant Mr. Bustamante relief, the district

court denied Mr. Bustamante’s petition, finding that the tribal court sentence did

not violate the Indian Civil Rights Act. Mr. Bustamante then filed the instant

appeal.

B. Statement of Facts

On March 18, 2009, Pascua Yaqui Tribe police officers arrested Ramiro

Bustamante, an enrolled member of the Tribe, on the Pascua Yaqui reservation in

southern Arizona. ERVII at 150 (¶ 1), 157 (¶ 1), 160 (¶ 22), 181 (¶ 4); D. Ariz.

LRCiv 56.1. Later that day, the Tribe filed a four-count criminal complaint against

Mr. Bustamante. ERVII at 76. The complaint alleged that at approximately 11:40

a.m. that day, Mr. Bustamante’s mother caught him taking some items from a small

camper in her backyard. Id. Mr. Bustamante did not have his parents’ consent to

be in her backyard, and a Tribal Court judge had previously ordered him to stay

3


away from his parents’ home. Id. Mr. Bustamante also failed to leave after his

family member Vanessa Bustamante asked him to. Id.

From this incident the Tribe extracted four separate offenses, charging Mr.

Bustamante with: (1) Domestic Violence, Burglary, (2) Domestic Violence, Theft,

(3) Domestic Violence, Criminal Trespass, and (4) Disobedience to a Lawful Court

Order. Id. Mr. Bustamante pleaded guilty to Counts 1, 2, and 4 without counsel in

Tribal Court. Id. at 93-105. The Tribal Court accepted Mr. Bustamante’s guilty

pleas and scheduled a sentencing hearing on those counts and a pretrial hearing on

Count 3. Id. at 102:4-105:5.

At the sentencing hearing, Mr. Bustamante (who by then had been appointed

a Tribal Public Defender (id. at 85)) argued that, notwithstanding the fact that the

Tribe’s Court of Appeals had previously ruled to the contrary, it would be “illegal”

to sentence him to more than one year of incarceration in connection with the

single incident underlying the complaint. Id. at 90.

The Tribal Court rejected this argument and sentenced Mr. Bustamante to a

total of eighteen months’ imprisonment, including nine months’ imprisonment on

Count One and nine months’ imprisonment on Count Two, to be served

consecutive to the sentence imposed for Count One. Id. The court also imposed

nine months’ imprisonment on Count Four, to be served concurrently with the

4


sentences imposed on Counts One and Two, and dismissed Count Three with

prejudice. Id. Deducting 35 days for time Mr. Bustamante had already served, the

Tribal Court set Mr. Bustamante’s release date at September 18, 2010. Id.

(Pursuant to his “duty . . . to bring to the federal tribunal’s attention, without

delay, facts that may raise a question of mootness (Arizonans for Official English v.

Arizona, 520 U.S. 43, 68 n.23 (1997) (internal quotation marks omitted)), Mr.

Bustamante hereby notifies this Court that a question of mootness may be raised by

the fact that he is scheduled to be released from imprisonment on September 18,

2010, shortly after the filing of this brief.)

Mr. Bustamante sought review in the Pascua Yaqui Tribal Court of Appeals,

arguing that his sentence violated the Indian Civil Rights Act, 25 U.S.C. § 1302(7)

(“ICRA”), because it exceeded one year in connection with a single criminal

transaction. ERVII at 161 (¶ 26), 181 (¶ 8). The Tribe failed to file a responsive

brief. Id. at 31 (¶ 33), 67 (¶ 16). The Tribal Court of Appeals rejected Mr.

Bustamante’s claim on the merits, holding that the issue was controlled by the

court’s earlier decision in Pascua Yaqui Tribe v. Miranda, CA-08-015 (Pascua

Yaqui Ct. App. 2009). ERVII at 164.

Mr. Bustamante then filed the underlying Petition for Writ of Habeas Corpus

in the district court. Id. at 26-33. Mr. Bustamante’s Petition raised a single claim,

5


alleging that the Tribal Court’s imposition of a sentence of imprisonment

exceeding one year in connection with a single incident violated the one-year

sentencing cap imposed by 25 U.S.C. § 1302(7). ERVII at 32. After the

Respondents had filed answers (id. at 34-149), Tribal respondent Michael

Valenzuela, Interim Chief of the Pascua Yaqui Tribe’s Department of Public

Safety, filed a motion for summary judgment, arguing that Mr. Bustamante had not

yet exhausted his available tribal court remedies and that the Tribe was entitled to

impose multiple consecutive up-to-one-year sentences in connection with a single

incident, notwithstanding § 1302(7). CR ##26, 27. Mr. Bustamante opposed the

motion and filed a cross-motion for summary judgment, arguing that such

‘stacking’ of consecutive sentences in connection with a single incident violates

§ 1302(7). CR #29.

Magistrate Judge Michelle Burns recommended that Mr. Valenzuela’s

motion be denied and that Mr. Bustamante’s motion and petition be granted.

Petitioner-Appellant’s Excerpts of Record Volume I (“ERVI”) at 1-13. Judge

Burns found Mr. Valenzuela’s exhaustion argument meritless (id. at 4:6-7:3) and

agreed with Mr. Bustamante’s assertion that § 1302(7) limited the Tribal Court to a

one-year sentence in connection with a “single criminal transaction” (id. at 7:4-

6


12:3). The parties filed cross-objections to portions of Judge Burns’ Report and

Recommendation. CR ##41-44.

The district court accepted Judge Burns’ recommendation with respect to

Mr. Valenzuela’s exhaustion argument (ERVI at 16:7-17:2), but rejected her

recommendation with respect to the violation of 25 U.S.C. § 1302(7) (id. at 17:3-

25:7). The district court concluded that, by limiting sentences for “any one

offense” to one year, § 1302(7) effectively authorizes Tribal Courts to impose

consecutive sentences of up to one year for any number of discrete “violation[s] of

a criminal statute,” regardless of whether the violations relate to a single criminal

transaction. ERVI at 20:1-3. The district court accordingly denied Mr.

Bustamante’s petition and entered judgment against him. Id. at 25:10, ERVII at

185. Mr. Bustamante then filed the instant appeal. Id. at 186-87.

Summary of Argument

The district court carved a loophole out of the Indian Civil Rights Act’s one-

year sentencing cap that would virtually nullify it, frustrating Congress’s intention

to meaningfully limit tribal sentencing authority. The Act caps the sentences that

may be imposed by tribal courts at one year for “any one offense.” According to

the district court’s interpretation, Indian tribes are nevertheless free to attach as

many separately-defined crimes, and as many consecutive one-year sentences, to a

7


criminal transaction as they see fit. Because it finds no support in the Act’s plain

language and would fly directly in the face of Congress’s intent to create a

meaningful one-year cap on tribal court sentencing authority, the district court’s

interpretation must be rejected.

Argument

The District Court Erred in Concluding that Congress Intended to PermitIndian Tribes to Evade ICRA’s One-Year Sentencing Cap by ‘Stacking’

Consecutive Sentences in Connection with Individual Criminal Transactions.

A. Standard of Review

This Court applies de novo review to a district court’s denial of a habeas

corpus petition, Tablada v. Thomas, 533 F.3d 800, 805 (9th Cir.), cert. denied, 130

S. Ct. 3408 (2010), as well as to questions of statutory interpretation, United States

v. Youssef, 547 F.3d 1090, 1093 (9th Cir. 2008).

B. Construing ICRA to Permit ‘Stacking’ Flouts Congress’sIntention in Capping Tribal Court Sentences at One Year.

(1) As the District of Minnesota Observed in Spears v. Red LakeBand of Chippewa Indians, ‘Stacking’ ContravenesCongress’s Intention to Create a “Balanced and Logical”Regime in Which the Degree of Procedural ProtectionsProvided to Tribal Defendants Corresponds to the Severityof the Possible Sentences They May Receive.

In construing a statute, this Court’s task “is to discern congressional intent.”

Padilla-Romero v. Holder, 611 F.3d 1011, 1013 (9th Cir. 2010). To do so, the

8


Court “look[s] first to the plain language of the statute, construing the provisions of

the entire law, including its object and policy.” Retuta v. Holder, 591 F.3d 1181,

1188 (9th Cir. 2010) (internal quotation marks omitted). Because a statutory

phrase’s context may be pertinent to Congress’s intent, the Court does not view a

particular word or phrase “in isolation from its context.” Padilla-Romero, 611 F.3d

at 1013. Instead, the Court considers the broader context and purpose of the statute

in question, examining the legislative history where appropriate to ascertain “what

social problem Congress addressed” when it enacted the law. Portland 76

Auto/Truck Plaza, Inc. v. Union Oil Co., 153 F.3d 938, 944 (9th Cir. 1998).

In Spears v. Red Lake Band of Chippewa Indians, 363 F. Supp. 2d 1176 (D.

Minn. 2005), the District Court for the District of Minnesota applied these core

principles of interpretation to the question at issue here.

In Spears, the court reviewed a habeas corpus petition filed by a petitioner

who drove drunk and without a license on the Red Lake Indian Reservation,

causing a fatality. Id. at 1176. After he was convicted and sentenced in federal

court for involuntary manslaughter, the petitioner was charged in the Red Lake

Tribal Court with six separate criminal counts arising from the same incident. Id.

at 1176-77. He pleaded guilty to all of the charges and was given sentences adding

up to 30 months’ incarceration. Id. at 1177. After exhausting his appeals in tribal

9


court, he filed a habeas corpus petition in the district court, arguing that his

sentences violated § 1302(7) of ICRA, the pertinent clause of which limits tribal

courts’ sentencing authority to one year of incarceration for “any one offense.”

Spears, 363 F. Supp. 2d at 1177. (ICRA was amended on July 29, 2010 by the

Tribal Law and Order Act of 2010, Pub. L. No. 111-211, tit. 2 (2010), which

authorizes tribal courts to sentence defendants to terms exceeding one year of

incarceration under specified conditions, see id. § 234.)

The court recognized that the phrase “any one offense” was ambiguous,

noting that similar statutory language had given rise to disputes over interpretation

in other contexts. Spears, 363 F. Supp. 2d at 1178-79. The court therefore

resolved to interpret the phrase in the light of Congress’s evident purposes in

enacting the statute. Id. at 1179. When Congress enacted ICRA, the court noted,

states were not constitutionally mandated to provide counsel for indigent

defendants exposed to sentences of six months or less – which was the maximum

tribal-court sentence permitted for “any one offense” at the time of ICRA’s

enactment. Id. at 1179-80. The court further observed that under the Major Crimes

Act, 18 U.S.C. § 1153, Indians facing serious criminal charges were entitled to the

“full panoply of constitutional rights in federal court.” Spears, 363 F. Supp. 2d at

1180. Thus, the court reasoned, Congress evidently intended for ICRA and the

10


Major Crimes Act to create a “balanced and logical regime” under which “Indians

accused of minor crimes faced minor penalties in tribal court where some

constitutional rights were withheld,” while “Indians accused of serious crimes

faced serious penalties in federal court where all constitutional rights were

available.” Id.

The court then observed that this “balanced and logical regime” can be

maintained only if the phrase “any one offense” is interpreted to mean “a single

criminal transaction.” Id. Otherwise, the court stressed, “tribal court defendants

would be routinely exposed to serious sentences for minor crimes without

guaranteeing them all their basic constitutional rights.” Id. Finding that the

charges against the petitioner arose from a common nucleus of operative fact and

were factually and legally intertwined, the court found that all of the charges

derived from a single criminal transaction. Id. at 1181. The court thus concluded

that the petitioner’s tribal court sentence was unlawful, and granted his petition. Id.

at 1182. The Spears Court’s analysis and conclusion have attracted the agreement

of three federal magistrate judges and one district court judge. Miranda v. Nielsen,

No. 09-cv-8065, 2010 WL 148218 (D. Ariz. Jan. 12, 2010); Romero v. Goodrich,

No. 09-cv-232 (D. N.M. Mar. 10, 2010); ERVI at 1-13.

11


The Spears court’s analysis was correct, and applies directly here. Like the

petitioner in Spears, Mr. Bustamante was subjected to consecutive sentences

totaling more than one year of incarceration in connection with a single criminal

transaction. ERVII at 76, 90. Indeed, all of the charges against Mr. Bustamante

arose from a single incident occurring “at approximately 11:40 A.M.” on March 18,

2009, in which he took some household items from a camper in his mother’s

backyard and then refused to leave when asked to do so. Id. at 76. Clearly all of

the charges relating to this incident involved a common nucleus of operative fact

and were factually and legally intertwined. Spears, 363 F. Supp. 2d at 1181.

(2) The District Court’s Criticisms of the Spears Court’sReasoning are Not Compelling.

The district court nevertheless denied Mr. Bustamante relief, finding the

Spears court’s reasoning “not persuasive.” ERVI at 20:9. But the district court’s

reasons for rejecting the Spears court’s analysis are not compelling.

[a] The District Court’s Approach of Deriving an“Unambiguous” Meaning of the Term “Offense” asUsed in ICRA by Citing Four Decisions IssuedBetween 25 and 116 Years Before ICRA’s Enactmentis Flawed.

The district court first asserted that the Spears court erred in finding

ambiguity in the phrase “any one offense” as used in ICRA. Id. at 19:1-22:5. This

12


premise was mistaken, the district court reasoned, because pre-ICRA caselaw

demonstrates that in using the word “offense,” Congress borrowed a “‘term[] of art

in which [was] accumulated the legal tradition and meaning of centuries of

practice.’” Id. at 18:16-17 (quoting Morissette v. United States, 342 U.S. 246, 263

(1952)). To prove its point, the district court cited Supreme Court decisions from

1852 and 1915, as well as Sixth Circuit decisions from 1945 and 1967, which

allegedly showed that when ICRA was enacted (in 1968) the word “offense” had

the “settled meaning” of “any discrete criminal violation.” Id. at 19:2-10 & nn.4-6

(citing Moore v. Illinois, 55 U.S. 13 (1852); Ebeling v. Morgan, 237 U.S. 625

(1915); American Tobacco Co. v. United States, 147 F.2d 93 (6th Cir. 1944), aff’d,

328 U.S. 781 (1946); and United States v. Bennett, 383 F.2d 398 (6th Cir. 1967)).

The district court’s analysis is flawed, for several reasons.

First, even if the assertion that the word “offense” had a settled meaning in

1968 were correct, it would be irrelevant. Congress did not simply use the word

“offense” in crafting the one-year sentencing cap at issue here – instead, it coined

the phrase “any one offense.” 25 U.S.C. § 1302(7) (emphasis added). The district

court failed to identify a single case ascribing any “settled meaning” to this phrase.

Ignoring two of the three words that comprise this key phrase would flout the well-

established rules that “courts are to accord a meaning, if possible, to every word in

13


a statute” (United States v. Watkins, 278 F.3d 961, 966 (9th Cir. 2002) (internal

quotation marks omitted)), and that a particular statutory term should not be viewed

“in isolation from its context,” Padilla-Romero, 611 F.3d at 1013.

Indeed, elsewhere in its analysis the district court itself took the position that

when a distinctive phrase is “coined,” it is the meaning of the phrase, rather than of

the words that comprise it, that is significant. ERVI at 21:25-26 (“The Supreme

Court coined the term ‘serious offense’ and then adopted its own definition of that

term.”). This approach makes sense here, because Congress’s purpose in coining

the phrase “any one offense” may well have been to forestall courts from engaging

in precisely the sort of interpretive method that the district court applied here, in

which caselaw having nothing to do with ICRA is cited as a justification for giving

the law’s key terms constructions that tend to undermine its essential purposes.

Second, the district court’s assertion that in 1968 the word “offense” was

uniformly used to describe a “violation of a criminal statute,” rather than an

individual criminal transaction (id. at 20:1-3), is incorrect.

Only thirteen years before ICRA’s enactment, for example, the Supreme

Court held that “if Congress does not fix the punishment for a federal offense

clearly and without ambiguity, doubt will be resolved against turning a single

transaction into multiple offenses.” Bell v. United States, 349 U.S. 81, 84 (1955).

14


The Bell decision demonstrates that, close to the time of ICRA’s enactment, the

Supreme Court found it natural to presume that a single “transaction” constitutes a

single “offense” when construing a federal statute.

Lower court decisions issued close to the time of ICRA’s enactment are to

the same effect. In 1950, for example, the District Court for the Western District of

Pennsylvania held that the term “offense,” as used in the War Labor Disputes Act,

although “usually used to describe a crime,” was “broad enough to include a civil

injury for which the injured party may seek redress by suit.” W.J. Dillner Transfer

Co. v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen, and Helpers, 94 F.

Supp. 491, 493 (W.D. Pa. 1950). And in 1955 the United States Court of Claims,

while acknowledging that “[t]he meaning to be given the term ‘offense’ in statutory

construction is not without difficulty,” concluded that, as used in the War Time

Suspension of Limitations Act, the term referred to “all actions involving fraud

against the United States whether the Government should seek redress by criminal

or civil means.” Dugan & McNamara, Inc. v. United States, 127 F. Supp. 801, 804

(Ct. Cl. 1955). These decisions demonstrate that at the time of ICRA’s enactment,

the statutory term “offense” was commonly construed as referring to a person’s

course of conduct that may potentially give rise to multiple criminal or civil

15


charges or claims, thus refuting the district court’s assertion that the term

unambiguously and unvaryingly referred to a “discrete criminal violation.”

This fact is further confirmed by the cases cited by the Spears court

involving the use of the term “offense” in the Fifth and Sixth Amendment contexts.

Spears, 363 F. Supp. 2d at 1178-79. The district court’s reasons for rejecting this

component of the Spears court’s reasoning are unsound.

The district court criticized the Spears court for finding potential alternative

meanings of the word “offence” as used in the Fifth Amendment based on possible

interpretations that the Supreme Court considered, but did not adopt. ERVI at

20:14-21:3. The district court missed the point: The fact that the Supreme Court

entertained the possibility of adopting a “transaction”-based interpretation of the

word “offence” shows that this is a natural interpretation of the term. If the district

court’s theory that the term had a perfectly fixed and “unambiguous” meaning were

correct, this aspect of the Supreme Court’s analysis would have been irrational, as

if the Court were ruminating on whether Congress might have intended the term

“refrigerator” to mean “sea turtle.” Indeed, the district court itself at one point

virtually conceded that the term “offense” is ambiguous, acknowledging that “it is

theoretically possible to interpret ‘offense’ in two ways.” Id. at 20:19-20. Because

alternative possible interpretations are available – and thus ambiguity is present –

16


the Spears court correctly looked to the statutory context and legislative purpose to

ascertain Congress’s intended meaning. Spears, 363 F. Supp. 2d at 1179-80.

The district court also criticized the Spears court for relying on cases dealing

with the Sixth Amendment, calling this reliance “suspect” because “the Sixth

Amendment itself does not use the term ‘offense.’” ERVI at 21:5-6. But the

district court itself relied for its interpretation on four cases, none of which

addresses a statutory provision containing the term “offense.” Id. at 19:2-20:5 &

nn.4-6.

The district court criticized the Spears court for considering a Sixth

Amendment case decided in 1974, six years after ICRA was enacted, alleging that a

post-enactment decision cannot be relevant to Congress’s intention. Id. at 21:10-

23. But if the term “offense” truly had the fixed and “unambiguous” meaning in

1968 that the district court claimed to have discerned from caselaw stretching over

more than a century, it is unlikely that this firmly-established meaning would have

evaporated in only six years. Indeed, relying on a decision issued within a few

years of ICRA’s enactment makes more sense than relying on a decision issued 116

years earlier. See id. at 19:4-5 & n.4 (citing Moore, 55 U.S. at 17).

Third, the district court’s underlying premise – that a small handful of cases

issued as much as a century before ICRA’s enactment provide a sounder guide to

17


the meaning of the term “offense” than the statutory context in which the term

appears – is unsound. The district court overlooked the fact that “the meaning of

statutory language, plain or not, depends on context.” King v. St. Vincent’s Hosp.,

502 U.S. 215, 221 (1991). The district court’s ability to identify a few cases

ascribing the term “offense” the meaning of a “discrete criminal violation” can

show at most that this meaning, like the meaning adopted by the Spears court, has

at times been recognized as a permissible one. But this would only serve to

confirm that, as the district court at one point conceded (ERVI at 20:19-20), the

term has multiple acceptable meanings – i.e., it is ambiguous. Spears, 363 F. Supp.

2d at 1178. The question of which possible meaning should be deemed to reflect

Congress’s intent depends on the context in which the term appears, including “the

provisions of the entire law” and its “object and policy.” Retuta, 591 F.3d at 1188;

accord Spears, 363 F. Supp. 2d at 1179-80.

Finally, the decisions on which the district court relied to discern the

“unambiguous” meaning of the term “offense” at the time of ICRA’s enactment

(ERVI at 19:2-10 & nn.4-6) cannot carry the weight that the district court placed on

them. None of these decisions addresses a statutory provision containing the

phrase that Congress used in ICRA – “any one offense.” In fact, none of these

decisions addresses a statutory provision containing the term “offense,” upon

18


which the district court focused. Instead, the decisions simply use the word

“offense” in the course of describing Congress’s evident intentions in the various

statutes at issue. Ebeling, 237 U.S. at 629; Moore, 55 U.S. at 17; Bennett, 383 F.2d

at 399; American Tobacco Co., 147 F.2d at 116-17. For this reason, and because

all but one of them was issued a quarter century or more before ICRA’s enactment,

these decisions provide little guidance as to Congress’s intentions in including the

phrase “any one offense” in ICRA.

The district court cited one decision issued close to the time of ICRA’s

enactment – the Sixth Circuit’s 1967 decision in United States v. Bennett (ERVI at

19 n.6) – but it fundamentally mischaracterized that decision’s holding. The

Bennett court did not hold, as the district court stated, that “multiple criminal acts

committed in ‘one transaction’ did not constitute one offense.” Id. Rather, the

Bennett court found that the defendant’s transportation of various stolen vehicles

did not constitute “one transaction.” Bennett, 383 F.2d at 399-400. For this

reason, the court rejected the defendant’s contention that because “[his] acts

constituted one transaction and hence one offense” he was entitled to the

presumption articulated in Bell v. United States. Id. Mirroring the test set forth in

Spears, the court stressed that the defendant’s various acts of transportation

19


constituted separate transactions because proving each required different evidence.

Bennett, 383 F.2d at 400; cf. Spears, 363 F. Supp. 2d at 1181-82.

Rather than supporting the district court’s assertion regarding the

“unambiguous” meaning of the term “offense,” the Bennett decision thus directly

undermines it, by confirming that at the time of ICRA’s enactment a single

“transaction” was generally deemed to constitute a single “offense.”

In sum, the district court’s assertion that the Spears court overlooked the

“unambiguous” meaning of ICRA’s key language is thus unconvincing.

[b] The District Court’s Assertion that the Spears Court’sAnalysis Would be Flawed Even if ICRA WereAmbiguous is Mistaken.

The district court next asserted that even if ICRA were ambiguous, the

Spears court’s analysis would nevertheless be mistaken. ERVI at 22:6-24:16. But

its reasoning in support of this assertion is not sound.

The Spears court reasoned that Congress did not intend for Indians facing

prosecution in tribal court cases, where the constitutional protections afforded to

non-Indians in federal and state courts are generally unavailable, to be subjected to

lengthy sentences. Spears, 363 F. Supp. 2d at 1181. The district court derisively

described this reasoning as “some speculation.” ERVI at 23:1-2. But the Supreme

Court applied very similar reasoning in United States ex rel. Toth v. Quarles, 350

20


U.S. 11 (1955), holding that Article I of the Constitution should not be construed as

broadly authorizing the military to exert court-martial jurisdiction over ex-soldiers

because that construction would encroach on the jurisdiction of Article III courts

“where persons on trial are surrounded with more constitutional safeguards than in

military tribunals.” Id. at 15. Rather than constituting mere “speculation,” the

Spears court’s reasoning was supported, like the Supreme Court’s reasoning in

Toth, by the sound assumption that American legislators are not eager to permit

lengthy sentences to be doled to persons who are deprived of fundamental

constitutional protections. Id.; cf. Spears, 363 F. Supp. 2d at 1181.

The district court also asserted that “even under the Spears court’s

construction of ICRA, tribal courts would remain free to impose years of

imprisonment without providing publicly funded counsel.” ERVI at 23:20-22. The

district court offered the example of a defendant who “steal[s] ten coins from ten

different individuals over a lengthy period of time,” arguing that even under the

Spears court’s analysis such a course of conduct could lead to sentences

cumulatively exceeding one year. Id. at 23:22-24:2.

This argument attacks a straw man. The Spears court’s analysis did not rest

on the proposition that ICRA bars tribal courts from sentencing any person to terms

of imprisonment cumulatively exceeding one year, regardless of how many crimes

21


that individual has committed. Such an interpretation would indeed be irrational,

and would have no basis in the language of ICRA, which ties the one-year cap to

the transaction constituting “any one offense” (25 U.S.C. § 1302(7) (emphasis

added)), rather than to any one defendant. The Spears court instead interpreted

ICRA as barring the practice of sidestepping ICRA’s one-year cap by extracting

multiple separate “offenses” from discrete criminal transactions that transpire in a

matter of minutes or seconds and involve a unitary body of facts and evidence – as

the Pascua Yaqui Tribe did in Mr. Bustamante’s case. ERVII at 76.

That practice – which enables tribes to evade ICRA’s one-year sentencing

cap even in the most trivial of cases (of which the instant case is a perfect

example) – carves an extremely large loophole out of § 1302(7), effectively

nullifying it by allowing sentences exceeding one year to be imposed in virtually

any case. The same cannot be said of the power to dole out sentences cumulatively

exceeding one year to serial offenders who repeatedly commit the same crime over

a “lengthy period of time” and then are prosecuted in a “single proceeding.” ERVI

at 23:22-24:1. Such cases, assuming that they can exist (despite applicable

limitations periods), and that they actually do exist, are presumably quite rare.

They are plainly non-existent on the Pascua Yaqui reservation, where the

22


applicable limitations period is one year. 4 Pascua Yaqui Tribal Code § 1-40. (The

Pascua Yaqui Tribal Code is available at:

http://www.pascuayaqui-nsn.gov/_static_pages/tribalcodes/.)

Finally, the district court reasoned that the Spears court’s interpretation of

ICRA must be rejected because it “fundamentally undermines tribal authority.”

ERVI at 24:7. This argument is profoundly misguided. A “central purpose” of

ICRA – which, after all, stands for the Indian Civil Rights Act – was to “‘protect

individual Indians from arbitrary and unjust actions of tribal governments.’” Santa

Clara Pueblo v. Martinez, 436 U.S. 49, 61 (1978) (quoting S. Rep. No. 90-841, at

5-6 (1967)). It is self-evident that this purpose – rather than any desire to expand

tribal governments’ powers at the expense of individual Indians – underlay

Congress’s decision to limit tribal governments’ sentencing authority to one year

for “any one offense.” 25 U.S.C. § 1302(7). As the Spears court correctly

observed, it would hardly advance this purpose to allow Indians to be subjected to

multi-year sentences imposed by courts in which they are not guaranteed the right

to appointed counsel. Spears, 363 F. Supp. 2d at 1180.

23


http://www.pascuayaqui-nsn.gov/_static_pages/tribalcodes/

(3) The District Court’s Construction of ICRA Transforms theStatute’s One-Year Sentencing Cap Into a Virtual Nullity.

In addition to raising flawed criticisms of the Spears court’s reasoning, the

district court failed to acknowledge that its interpretation of ICRA would give

tribes carte blanche to dole out sentences exceeding one year in virtually any case,

effectively transforming ICRA’s firm sentencing cap into a virtual nullity. Indeed,

under the district court’s interpretation, a tribe’s ability to ‘stack’ sentences would

be limited only by its creativity in attaching multiple counts of conviction to

individual transactions. A tribe could specify that each firecracker constitutes a

separate count of possession of prohibited fireworks, cf. 4 Pascua Yaqui Tribal

Code § 1-510, and sentence a defendant caught with a 24-pack of fireworks to

twenty-four consecutive one-year prison sentences, see 4 Pascua Yaqui Tribal

Code § 4-20. Or it could specify that each unlawful pill constitutes a separate

count of possession of narcotics, cf. 4 Pascua Yaqui Tribal Code § 1-780, and

sentence a defendant caught with a bottle containing 100 pills to 100 consecutive

one-year sentences.

These examples are extreme, but not implausible. The State of Arizona, for

example, punishes possession of child pornography with mandatory ten-year

consecutive sentences for each image possessed, and the Arizona Supreme Court

24


recently upheld an application of this statute that yielded a 200-year sentence for a

defendant convicted of having twenty prohibited images on his computer. State v.

Berger, 134 P.3d 378 (Ariz. 2006).

Notably, the Gila River Indian Community, in an amicus brief lodged in a

related case pending in this Court, has candidly acknowledged that “many tribes

have adopted criminal codes designed to allow the charging of multiple offenses.”

Amicus Curiae Brief of the Gila River Indian Community in Support of

Respondents and Reversal of the Judgment of the District Court at 15 (Dkt. #22-2

in Miranda v. Nielsen et al., No. 10-15308). Tribes do this, the Gila River tribe

explained, because the federal government routinely declines tribal requests that

tribal offenders be prosecuted federally. Id. In other words, tribes have

purposefully shaped their criminal codes to exploit the loophole that the district

court’s interpretation carves out of ICRA’s one-year sentencing cap.

The Gila River tribe’s frank admission, combined with the examples set forth

above, proves the truth of the Spears court’s observation that the “balance”

Congress intended to create through ICRA would be severely upset if “any one

offense” were not interpreted to mean “a single criminal transaction.” Spears, 363

F. Supp. 2d at 1180. Because the essential purpose of statutory construction is to

25


effectuate, rather than to nullify, Congress’s intention (Retuta, 591 F.3d at 1188),

the district court’s interpretation is untenable.

Conclusion

The district court’s interpretation of the one-year sentencing cap set forth in

ICRA has no basis in the statute’s plain language and would fly directly in the face

of Congress’s intention to place a meaningful and effective limit on tribal court

sentencing authority. This Court should reject that interpretation and find, as have

the majority of federal judges who have addressed the question, that under the pre-

2010 version of ICRA Indian tribes may not impose sentences exceeding one year

of incarceration in connection with a single criminal transaction.

Respectfully submitted on September 10, 2010.

s/Daniel L. Kaplan DANIEL L. KAPLANAssistant Federal Public DefenderKEITH J. HILZENDEGERResearch and Writing Specialist850 West Adams Street, Suite 201Phoenix, Arizona 85007-2730(602) 382-2767

26


STATUTORY ADDENDUM


25 U.S.C. § 1302. Constitutional rights

No Indian tribe in exercising powers of self-government shall--

(1) make or enforce any law prohibiting the free exercise of religion, or abridging the freedomof speech, or of the press, or the right of the people peaceably to assemble and to petition for aredress of grievances;

(2) violate the right of the people to be secure in their persons, houses, papers, and effectsagainst unreasonable search and seizures, nor issue warrants, but upon probable cause,supported by oath or affirmation, and particularly describing the place to be searched and theperson or thing to be seized;

(3) subject any person for the same offense to be twice put in jeopardy;

(4) compel any person in any criminal case to be a witness against himself;

(5) take any private property for a public use without just compensation;

(6) deny to any person in a criminal proceeding the right to a speedy and public trial, to beinformed of the nature and cause of the accusation, to be confronted with the witnesses againsthim, to have compulsory process for obtaining witnesses in his favor, and at his own expense tohave the assistance of counsel for his defense;

(7) require excessive bail, impose excessive fines, inflict cruel and unusual punishments, and inno event impose for conviction of any one offense any penalty or punishment greater thanimprisonment for a term of one year and a fine of $5,000, or both;

(8) deny to any person within its jurisdiction the equal protection of its laws or deprive anyperson of liberty or property without due process of law;

(9) pass any bill of attainder or ex post facto law; or

(10) deny to any person accused of an offense punishable by imprisonment the right, uponrequest, to a trial by jury of not less than six persons.

CREDIT(S): (Pub.L. 90-284, Title II, § 202, Apr. 11, 1968, 82 Stat. 77; Pub.L. 99-570, Title IV,§ 4217, Oct. 27, 1986, 100 Stat. 3207-146.)

Current through PL 111-231 (excluding P.L. 111-203, 111-211, 111-220, 111-221, 111-223,111-226, and 111-227) approved 8-16-10

Westlaw. (C) 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.


CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)(7)(B)

I hereby certify that, pursuant to FRAP 32(a)(7)(B), the foregoing Petitioner-

Appellant’s Opening Brief is proportionately spaced, has a typeface of 14 points,

and contains 5,651 words.

s/Daniel L. Kaplan DANIEL L. KAPLANAttorney for Petitioner - Appellant

STATEMENT REGARDING RELATED CASES

I hereby certify that I am aware of two related cases within the meaning of

Ninth Circuit Rule 28-2.6: Miranda v. Braatz et al., No. 10-15167, and Miranda v.

Braatz et al., No. 10-15308. Those two appeals, which the Court has consolidated,

raise the same legal issue involved in the instant appeal.

s/Daniel L. Kaplan DANIEL L. KAPLANAttorney for Petitioner - Appellant


CERTIFICATE OF FILING AND SERVICE

I hereby certify that I caused the foregoing Petitioner-Appellant’s Opening

Brief to be submitted to the Clerk of the Court for the United States Court of

Appeals for the Ninth Circuit on September 10, 2010, using the appellate CM/ECF

system. I further certify that all participants in the case are registered CM/ECF

users and that service will be accomplished by the appellate CM/ECF system.

s/Daniel L. Kaplan Daniel L. KaplanAttorney for Petitioner - Appellant


ramiro bustamante, petitioner-appellant, v. michael ......for the district of arizona...

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