United States v. Lakota First
2013 U.S. App. LEXIS 20010
| 9th Cir. | 2013Background
- In 2003 Lakota Thomas First, an Indian, pleaded guilty in Fort Peck Tribal Court to a misdemeanor domestic‑violence offense and received a suspended 30‑day jail sentence while indigent and without appointed counsel. He was not offered appointed counsel and did not waive a Sixth Amendment right (which does not apply in tribal court).
- Tribal law and the Indian Civil Rights Act (ICRA) guaranteed the right to retained counsel at the defendant’s expense; at the time tribal courts were not required to provide appointed counsel for misdemeanor sentences under one year.
- In 2011 First was indicted under 18 U.S.C. § 922(g)(9) for possessing a firearm after conviction of a “misdemeanor crime of domestic violence.” Section 921(a)(33)(B)(i)(I) disqualifies a conviction unless the person “was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case.”
- First moved to dismiss, arguing his tribal conviction could not be used as a § 922(g)(9) predicate because he was denied the Sixth Amendment right to appointed counsel; the district court granted the motion.
- The government appealed, arguing the statute’s phrase “in the case” requires courts to look to the right to counsel that existed in the underlying proceeding (i.e., tribal law and ICRA), not a uniform federal constitutional floor.
Issues
| Issue | Plaintiff's Argument (First) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether the phrase “right to counsel in the case” in 18 U.S.C. § 921(a)(33)(B)(i)(I) requires a uniform federal (Sixth Amendment) meaning or the right as it existed in the predicate proceeding | The phrase should be read to impose a uniform federal meaning requiring the Sixth Amendment floor | The phrase “in the case” modifies “right to counsel,” so courts must look to the right as it existed in the underlying proceeding (state, federal, or tribal) | The court held the statutory phrase refers to the right to counsel existing in the predicate proceeding, not a single federal standard |
| Whether a tribal misdemeanor conviction obtained without Sixth Amendment appointed counsel may serve as a § 922(g)(9) predicate | First argued using his uncounseled tribal conviction violates Sixth Amendment protections and § 921’s safeguards | Government argued Congress intended to look to local-law rights and that Lewis permits using prior convictions to trigger firearms disabilities even if the prior conviction lacked constitutional counsel | The court held the tribal conviction may qualify as a § 922(g)(9) predicate because First received the counsel-rights that existed in the tribal proceeding; applying Lewis, this does not violate the Sixth Amendment |
| Whether use of such a tribal conviction violates Due Process or Equal Protection | First argued it violates due process and disparate treatment concerns | Government argued Congress balanced reliability concerns against tribal sovereignty and Lewis supports application | The court held no violation of the Fifth Due Process or Fourteenth Equal Protection Clauses in applying § 922(g)(9) to the tribal conviction |
Key Cases Cited
- Alabama v. Shelton, 535 U.S. 654 (holding suspended sentences that may result in actual imprisonment require counsel)
- Scott v. Illinois, 440 U.S. 367 (Sixth Amendment right to counsel required when actual imprisonment is imposed)
- Argersinger v. Hamlin, 407 U.S. 25 (counsel required where imprisonment actually imposed)
- Lewis v. United States, 445 U.S. 55 (prior uncounseled conviction may be used to impose a civil firearms disability enforceable by criminal sanction)
- Dickerson v. New Banner Inst., Inc., 460 U.S. 103 (statutory terms may have uniform federal meaning when unmodified)
- United States v. Percy, 250 F.3d 720 (9th Cir.) (Sixth Amendment does not apply in tribal court criminal proceedings)
- Burgett v. Texas, 389 U.S. 109 (limitations on use of uncounseled convictions to support guilt or enhance punishment)
- United States v. Antelope, 430 U.S. 641 (classifications based on Indian tribal status and constitutional applicability to tribes)
- United States v. Smith, 171 F.3d 617 (8th Cir.) (examining waiver and state‑law basis for right to counsel in § 921(a)(33) context)