United States v. Michael Lee Long, Jr.
2017 U.S. App. LEXIS 16473
| 8th Cir. | 2017Background
- Michael Long Jr. was tried and convicted of: assault with a dangerous weapon, simple assault, being a prohibited person in possession of a firearm (under 18 U.S.C. § 922(g)(9)), and using a firearm in relation to a crime of violence (18 U.S.C. § 924(c)); sentences on the first three counts ran concurrently and the § 924(c) sentence ran consecutively.
- Facts: after an interaction in a convenience store on the Rosebud Sioux Reservation, Long pulled a gun, was struck by a vehicle door as the vehicle reversed, and fired at the vehicle; witnesses differed on the number of shots fired.
- During trial the government produced a Rosebud police report (Sergeant Reynolds) late that contained statements from witnesses Jennifer Young (heard three shots) and James Bordeaux (unavailable; reported hearing a single noise he thought was a backfire).
- Long moved for mistrial/continuance and later for a new trial under Brady, claiming the late disclosure prejudiced his self-defense theory (single defensive shot). The district court denied relief, finding no prejudice and permitting elicitation of Reynolds’s hearsay about Bordeaux.
- Long moved to dismiss the prohibited-person firearm count, arguing his underlying Rosebud tribal misdemeanor domestic-violence conviction was invalid as a predicate because his tribal “counsel” (Lisa White Pipe) was not a licensed attorney; the district court denied the motion relying on Ninth Circuit precedent holding the § 921(a)(33)(B) inquiry looks to the right to counsel as defined in the forum that tried the predicate offense.
- The Eighth Circuit affirmed: it held Long’s tribal representation by lay counsel satisfied § 921(a)(33)(B) and that the Brady claim failed for lack of material prejudice given trial testimony and remedial measures.
Issues
| Issue | Long's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Long’s tribal-court misdemeanor can serve as a § 922(g)(9) predicate because his tribal representative was a nonlawyer (lay counsel) | His tribal ‘counsel’ was not a licensed attorney; therefore he was not "represented by counsel in the case" under § 921(a)(33)(B)(i)(I), so the conviction cannot qualify | § 921(a)(33)(B) looks to the right to counsel "as it existed in the predicate proceeding;" tribal law allowed lay counsel and provided appointment for indigents, so Long was represented | Affirmed: lay counsel admitted under tribal law satisfies "represented by counsel" for § 921(a)(33)(B) purposes |
| Whether the phrase "right to counsel" in § 921(a)(33)(B) requires a federal/constitutional minimum or looks to local (state/tribal) law | Argues Congress intended a federal floor (i.e., lawyer representation or appointment where required by constitution) | Relies on Ninth Circuit (First) and precedents: the statute’s "in the case" language ties the inquiry to the rights as defined in the forum that tried the predicate offense | Affirmed the First approach: the right is defined by the predicate forum (tribal law), not a uniform federal constitutional standard |
| Whether the government violated Brady by late disclosure of the Reynolds report containing Young’s and Bordeaux’s statements | Late disclosure suppressed potentially exculpatory impeachment evidence that supported self-defense theory (single shot) and prejudiced trial | The evidence was not materially exculpatory; Young testified at trial and was cross-examined; Bordeaux’s statement was elicited via Reynolds’s hearsay, so no prejudice | Affirmed: no Brady violation — late disclosure did not cause material prejudice and remedial measures mitigated harm |
| Whether mid-trial disclosure of witnesses known to tribal police imposes Brady duty on federal prosecutors | Long argued tribal-law enforcement evidence should be treated as within government’s possession/control for Brady purposes | Court assumed without deciding that tribal officers might be on government’s behalf but found no material evidence withheld; remedial measures sufficed | Affirmed on alternative grounds: even if Brady applied, nondisclosure was not prejudicial |
Key Cases Cited
- United States v. First, 731 F.3d 998 (9th Cir. 2013) (interprets § 921(a)(33)(B) to look to counsel-rights as defined in the forum of the predicate conviction)
- United States v. Smith, 171 F.3d 617 (8th Cir. 1999) (standard of review for denial of motion to dismiss under § 922(g) and consideration of predicate conviction issues)
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution’s duty to disclose favorable, material evidence)
- Kyles v. Whitley, 514 U.S. 419 (1995) (prosecutor’s duty to learn of favorable evidence known to others acting on government’s behalf)
- United States v. Bryant, 136 S. Ct. 1954 (2016) (Sixth Amendment right to counsel does not apply to tribal-court proceedings)
- United States v. Almendares, 397 F.3d 653 (8th Cir. 2005) (trial-time disclosure of evidence may be adequate where defense can cross-examine witnesses)
- United States v. Tyndall, 521 F.3d 877 (8th Cir. 2008) (standard for Brady-based review of mistrial/new-trial motions)
- Morales v. Ault, 476 F.3d 545 (8th Cir. 2007) (Brady three-part test restated)