United States v. Michael Bryant, Jr.
769 F.3d 671
9th Cir.2014Background
- Defendant Michael Bryant, Jr., an enrolled Indian, was indicted under 18 U.S.C. § 117(a) for two counts of domestic assault as a habitual offender based on at least two prior domestic-abuse convictions in Northern Cheyenne Tribal Court.
- At least one of those tribal convictions was uncounseled and resulted in imprisonment; the government did not dispute that fact below.
- Bryant moved to dismiss, arguing the government could not use those tribal convictions to prove an element of § 117(a) because they would have violated the Sixth Amendment if obtained in state or federal court.
- The district court denied the motion; Bryant entered a conditional plea preserving the issue and appealed.
- The Ninth Circuit panel held Ant controls: tribal convictions obtained without counsel (and resulting in imprisonment) may not be used as predicate offenses in § 117(a) prosecutions unless the tribal forum provided a right to counsel coextensive with the Sixth Amendment.
- The court reversed, dismissing the § 117(a) charges because Bryant’s predicate tribal convictions did not meet that standard.
Issues
| Issue | Plaintiff's Argument (Bryant) | Defendant's Argument (Gov't) | Held |
|---|---|---|---|
| Whether prior tribal-court convictions obtained without counsel may be used to satisfy the predicate-offense element of § 117(a) | Uncounseled tribal convictions that would have violated the Sixth Amendment in state/federal court cannot be used to prove an element of § 117(a). | Tribal courts are not governed by the Sixth Amendment; convictions not actually unconstitutional may be used. Alternatively, Nichols controls. | Held: Under Ant, such tribal convictions may not be used as § 117(a) predicates unless the tribal forum afforded a right to counsel coextensive with the Sixth Amendment. |
| Whether Ant remains good law after Nichols and related Supreme Court decisions | Ant remains binding; Nichols is distinguishable because it involved convictions that comported with the Sixth Amendment (or were valid under Scott). | Nichols undermines Ant; if a conviction did not violate the Constitution, it may be used. | Held: Ant remains controlling in Ninth Circuit; Nichols does not render it irreconcilable. |
| Whether Lewis / First carve out an exception | Bryant: exception inapplicable because § 117(a) is an ordinary recidivist statute, not a civil-disability enforcement. | Government: Lewis and First permit use of tribal convictions for statutes akin to civil disabilities. | Held: Lewis/First are narrow exceptions for statutes enforcing civil disabilities (e.g., firearms prohibitions); they do not apply to § 117(a). |
| Whether equal protection or Fifth Amendment concerns bar use (alternative argument) | Only Indians are subject to prosecution based on prior convictions that lack Sixth Amendment protections, raising equal protection/due process concerns. | Not reached in opinion (court resolved on Ant ground). | Held: Court did not decide equal protection claim because dismissal under Ant resolved the case. |
Key Cases Cited
- United States v. Ant, 882 F.2d 1389 (9th Cir. 1989) (tribal uncounseled convictions that would violate Sixth Amendment in other forums generally cannot be used in later federal prosecutions)
- United States v. First, 731 F.3d 998 (9th Cir. 2013) (narrow application of Lewis: uncounseled tribal conviction may serve as predicate for firearms-disability statute enforcing a civil disability)
- Nichols v. United States, 511 U.S. 738 (1994) (an uncounseled prior conviction valid under Scott may be used to enhance a later sentence)
- Lewis v. United States, 445 U.S. 55 (1980) (prior uncounseled conviction can be used to impose a firearms prohibition treated as a civil disability)
- Scott v. Illinois, 440 U.S. 367 (1979) (Sixth Amendment right to appointed counsel applies when imprisonment is actually imposed)
- Argersinger v. Hamlin, 407 U.S. 25 (1972) (right to appointed counsel attaches where loss of liberty is involved)
- Burgett v. Texas, 389 U.S. 109 (1967) (uncounseled convictions generally cannot be used to establish prior-felony elements)
- United States v. Tucker, 404 U.S. 443 (1972) (limitations on using prior convictions obtained in violation of the Sixth Amendment to increase sentence)
- Loper v. Beto, 405 U.S. 473 (1972) (uncounseled convictions may not be used for impeachment in subsequent proceedings)
- United States v. Shavanaux, 647 F.3d 993 (10th Cir. 2011) (contrary holding: uncounseled tribal convictions may be used as § 117 predicates)
- United States v. Cavanaugh, 643 F.3d 592 (8th Cir. 2011) (contrary holding to Ant on use of uncounseled tribal convictions for § 117)