Lead Opinion
Opinion by Judge W. FLETCHER; Concurrence by Judge KOZINSKI; Concurrence by Judge IKUTA.
OPINION
Damien Zepeda appeals from his convictions and sentence on one count of conspiracy to commit assault with a dangerous weapon and to commit assault resulting in serious bodily injury; one count of assault resulting in serious bodily injury; three counts of assault with a dangerous weapon; and four counts of use of a firearm during a crime of violence. We affirm.
The crimes took place on the Ak-Chin Indian Reservation in Arizona. The government charged Zepeda under the Indian Major Crimes Act (“IMCA”), 18 U.S.C. § 1153, which authorizes federal jurisdiction over certain crimes committed by Indians in Indian country. To sustain a prosecution under the IMCA, the government must establish that the defendant is an Indian within the meaning of that statute. Zepeda argues, among other things, that the evidence at trial was insufficient to support the jury’s finding that he was an Indian under the IMCA.
In United States v. Bruce,
We hold that the evidence at trial was sufficient to support the finding that Zepe-da was an Indian within the meaning of the IMCA at the time of his crimes. We reject Zepeda’s other challenges to his convictions and sentence.
I. Background
We recount the evidence in the light most favorable to the jury’s verdict. See United States v. Hicks,
An unidentified driver picked up Zepe-da, Matthew, and Jeremy. Zepeda told the driver to take them to a house located on the Ak-Chin Reservation. The house belonged to Dallas Peters and his wife, Jennifer Davis. Zepeda wanted to see his ex-girlfriend, Stephanie Aviles, who was at Peters’s house with her sixteen-year-old cousin, “C”.
In the car, Zepeda and his brothers drank beer and smoked marijuana. Matthew and Jeremy still thought they were going to a party. The driver dropped them off near Peters’s house. Matthew testified at trial that Zepeda told Jeremy to “grab something from the seat.” Jeremy “wasn’t paying attention,” so Matthew reached under the car seat and pulled out a shotgun. Jeremy testified that Zepeda got out of the car holding a handgun and a shotgun, and that Zepeda tried to give the shotgun to Jeremy. When Jeremy refused, Zepeda gave the shotgun to Matthew. Zepeda told Matthew to fire the shotgun if he heard shots.
Matthew and Jeremy walked to the west side of Peters’s house, and Zepeda approached the front door. Jeremy testified that he saw Zepeda carrying a handgun. At this point, Jeremy testified, he realized they were not at a party. Jeremy walked away toward the main road because he did not want to “get involved with something that ... [was] going to jeopardize me and my family.” Matthew stayed by the side of the house with the shotgun.
Zepeda knocked on the front door, and Peters answered. Zepeda asked to talk to Aviles, who came outside and walked with Zepeda to the northeast corner of the house. Zepeda asked Aviles to leave with him. When she refused, he grabbed her arms. She tried to push him away and felt what she thought was a gun in his pocket. From inside the house, C heard Zepeda and Aviles “getting louder,” and she went outside to check on Aviles. Aviles turned around to return to the house, and Zepeda hit her in the head multiple times with something hard. Aviles fell face-down on the ground.
Zepeda pulled out a handgun and pointed it at C. She ran away down the east side of the house. She heard gunshots. Peters, who was urinating off his back porch at the time, heard the gunshots and walked to the southeast comer of the house. He saw C running toward him. He “grabbed her, pulled her in, like [to] shield her.” While holding C, Peters was shot in the shoulder. He testified, “I didn’t feel the round, but I seen blood come out so I knew I had to be shot.” C testified that she saw Zepeda shooting from about forty feet away. “[T]he shooting kept going and going,” she testified.
At about the time Zepeda started shooting, Matthew fired the shotgun toward the backyard. Matthew then walked into the backyard and fired the shotgun in Peters’s direction. Matthew testified that he did not see Peters when he fired the shotgun. Peters tried to run toward the front of the house, but he “hear[d] shots going past [his] ears from that way.” He saw Matthew “fiddling [with the gun] with it pointed down.” Peters ran toward Matthew and tried, unsuccessfully, to disarm him. '
Peters returned to the southeast corner of the house, where he saw Zepeda. Zepe-da had lowered his gun, either because it had jammed or because he was reloading. Peters “rush[ed]” at Zepeda and “grabbed the gun.” Peters pulled the trigger around twelve times to “get rid of the bullets.” After the gun was empty, Peters let go. Zepeda ran to the west side of the house. He caught up with Matthew and Jeremy, and the three men fled.
After the shooting started, Aviles stood up and ran into the house. According to C,
[Aviles] was crying and she asked what happened and where Dallas was and if everybody was in the house and if we were all okay. And we ran to the hallway where Jennifer was, Dallas’s wife, and she was crying. And the whole time we were in there we could hear gunshots. ■
We stood in the hallway for probably around ten minutes until the doorbell kept ringing ... and Jennifer finally went and opened the door and Dallas came inside and collapsed on the floor and he was covered in blood.
Peters was severely injured in the shooting. He had numerous gunshot wounds, including life-threatening wounds to his wrist and upper thigh. He had many small buckshot wounds in his torso. He spent more than a month in the hospital and underwent more than eight surgeries.
The government charged Zepeda, Matthew, and Jeremy in connection with the shooting. Matthew pled guilty to assault resulting in serious bodily injury and to use of a firearm during a crime of violence. Jeremy pled guilty to misprision of a felony. The government charged Zepeda with nine counts: (1) one count of conspiracy to commit assault with a dangerous weapon and to commit assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1153, 371, and 2; (2) one count of assault resulting in serious bodily injury against Peters, in violation of 18 U.S.C. §§ 1153, 113(a)(6), and 2; (3) three counts of assault with a dangerous weapon against Peters, Aviles, and C, in violation of 18 U.S.C. §§ 1153, 113(a)(6), and 2; and (4) four counts of use of a firearm during a crime of violence against Peters, Aviles, and C, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2. Zepeda went to trial on all nine counts.
To prove that Zepeda was an Indian within the meaning of the IMCA, the government introduced into evidence a document titled “Gila River Enrollment/Census Office Certified Degree of Indian Blood” (“Enrollment Certificate”). Detective Sylvia Soliz, a detective for the Ak-Chin Police Department, testified that an Enrollment Certificate is “a piece of paper confirming through the tribe that ... this person is an enrolled member of their tribe and ... meet[s] the blood quantum.” She testified that enrollment certificates may be used to determine whether a person is eligible to receive benefits, such as housing and medical care, from the tribe. The government and Zepeda’s attorney stipulated that the Enrollment Certificate
Zepeda’s Enrollment Certificate stated that Zepeda was “an enrolled member of the Gila River Indian Community.” It listed Zepeda’s “blood degree” as one-fourth Pima and one-fourth Tohono 0‘0d-ham, for a total of one-half Indian blood. Matthew also testified about Zepeda’s Indian status. He testified that Zepeda is half Indian, with blood from the “Pima and Tiho” tribes. (Matthew may have said “T.O.,” for Tohono 0‘Odham, which was then transcribed as “Tiho.”) Matthew testified that Zepeda also is “at least half Native American.” He testified that his own Indian heritage comes from his father, and that he and Zepeda have the same father and mother.
At the close of the government’s case-in-chief, Zepeda moved for a judgment of acquittal because of insufficient evidence. The district court denied the motion. Zepeda renewed his motion at the close of evidence, and the district court again denied it. The court instructed the jury that, in order to convict, it needed to find that Zepeda was an Indian. The court did not instruct the jury how to make that finding. Neither the government nor Zepeda’s lawyer objected to this instruction or requested that the court provide the jury with more information about making the finding of Indian status.
The jury convicted Zepeda on all counts. The district court sentenced Zepeda to a prison term of ninety years and three months. Zepeda appealed, challenging his convictions and sentence on a number of separate grounds. A three-judge panel of this court affirmed Zepeda’s conviction for conspiracy and reversed his convictions on the other eight counts. United States v. Zepeda,
We granted rehearing en banc. United States v. Zepeda,
II. Discussion
In this opinion, we address only Zepe-da’s arguments (1) that the government’s evidence was insufficient to support a jury finding that he was an Indian within the meaning of the IMCA, and (2) that his sentence was unreasonable. We agree with the three-judge panel’s reasons for rejecting Zepeda’s other arguments, and we adopt them as our own. See Zepeda,
A. Sufficiency of the Evidence to Prove Indian Status
1. Indian Status Under the IMCA
The IMCA is one of several statutes addressing “[t]he exercise of criminal jurisdiction over Indians and Indian country.” Bruce,
[a]ny Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, maiming, a felony under chapter 109A, incest, a felony assault under section 113, an assault against an individual who has not attained the age of 16 years, felony child abuse or neglect, arson, burglary, robbery, and a*1110 felony under section 661 of this title within the Indian country.
18 U.S.C. § 1153(a). Under the IMCA, “the defendant’s Indian status is an essential element ... which the government must allege in the indictment and prove beyond a reasonable doubt.” Bruce,
As we noted in Bruce, the IMCA does not define “Indian,” but “courts have ‘judicially explicated’ its meaning.” Id. at 1223 (quoting United States v. Broncheau,
The two-prong Bruce test requires that, in addition to affiliation with a federally recognized tribe, as specified in the second prong, a defendant subject to the IMCA must also have some quantum of Indian blood, as specified in the first prong. That is, the defendant must have a blood connection to a “once-sovereign political communit[y].” United States v. Antelope,
Five years after Bruce, and after trial in this case, we added a gloss to the Bruce test, based on a broad application of the premise that Indian status requires “a sufficient connection to an Indian tribe that is recognized by the federal government.” Maggi,
Under Bruce, the governing law at the time of Zepeda’s trial, there was no requirement that an Indian defendant’s blood be traceable to a federally recognized tribe. Relying on Bruce, and not anticipating the yet-undecided Maggi, the government did not present evidence that Zepeda’s Indian blood derived from a member of a federally recognized tribe. However, its undisputed evidence showed conclusively that Zepeda had some quantum of Indian blood. We need not reach the question whether Zepeda is right that the government did not introduce sufficient evidence to satisfy the definition of “Indian” under Maggi, for we are convinced that Maggi was wrongly decided.
Maggi read LaPier to require federal recognition under both prongs of the Bruce test. But LaPier required federal recognition only under Bruce’s second prong. The “dispositive” question in La-Pier was whether “the Indian group with which LaPier claims affiliation [is] a federally acknowledged Indian tribe.” Id. at 304-05 (emphasis added). We wrote that a “defendant whose only claim of membership or affiliation is with an Indian group that is not a federally acknowledged Indian tribe cannot be an Indian for criminal jurisdiction purposes.” Id. at 305 (emphasis added). LaPier’s discussion of federal recognition thus focused exclusively on the particular tribe with which the defendant was currently affiliated. See id. at 304-05.
Zepeda contends that Maggi was correctly decided. He argues, based on United States v. Antelope,
In Antelope, the Indian defendants had been convicted of first-degree felony murder under the IMCA.
Neither the Ninth Circuit nor the Supreme Court in Antelope defined “Indian” under the IMCA. However, we know from the Court’s analysis that the definition required at least an affiliation with a federally recognized tribe. Id. at 646,
In Mancari, decided just three years before Antelope, non-Indian employees of the Bureau of Indian Affairs (“BIA”) challenged the employment preference given to Indians under the so-called Indian Preference Statutes.
Literally every piece of legislation dealing with Indian tribes and reservations, and certainly all legislation dealing with the BIA, single out for special treatment a constituency of tribal Indians living on or near reservations. If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed invidious racial discrimination, an entire Title of the United States Code (25 U.S.C.) would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized.
Id. at 552,
It might be objected that the rationale of Mancari does not apply to the IMCA, given that Mancari deals with disproportionate benefits provided to Indians while the IMCA, at least in some of its applications, deals with disproportionate burdens imposed on Indians. But the Court in Antelope specifically responded to this objection. It wrote:
Both Mancari and Fisher [v. District Court,424 U.S. 382 ,96 S.Ct. 943 ,47 L.Ed.2d 106 (1976),] involved preferences or disabilities directly promoting Indian interests in self-government, whereas in the present case we are dealing, not with matters of tribal self-regulation, but with federal regulation of criminal conduct within Indian country implicating Indian interests. But the principles reaffirmed in Mancari and Fisher point more broadly to the conclusion that federal regulation of Indian affairs is not based upon impermissible classifications. Rather, such regulation is rooted in the unique status of Indians as “a separate people” with their own political institutions.
The gloss added by Maggi to the first prong of Bruce would impose an unnecessary and burdensome requirement. Under Maggi, the government would have to prove that an ancestor of the defendant— not merely the defendant himself or herself—was a member of a federally recognized tribe. Such proof is unnecessary, given that the political status necessary to insulate a prosecution under the IMCA from an equal protection challenge is established, under any conception of Indian political status, under the second prong of Bruce. Further, such proof may be difficult or even impossible to obtain, even if it is undisputed that the defendant has Indian blood. In some cases, evidence about the defendant’s Indian ancestors and their tribal affiliation may be difficult to find or, if found, ambiguous. In other cases, the evidence may be easily available and clear, but show that the Indian ancestors were not members of a federally recognized tribe.
We therefore overrule Maggi and restore the basic structure of Bruce, though not its precise articulation, as the “generally accepted test for Indian status” under the IMCA. Bruce,
In a prosecution under the IMCA, the government must prove that the defendant was an Indian at the time of the offense with which the defendant is charged. If the relevant time for determining Indian status were earlier or later, a defendant could not “predict with certainty” the consequences of his crime at the time he commits it. Apprendi v. New Jersey,
In seeking to prove federal recognition of a defendant’s tribe, the government should present to the judge evidence that the tribe was recognized at the time of the offense. In most cases, the judge will be able to determine federal recognition by consulting the relevant BIA List. If necessary to decide whether the BIA List omits a federally recognized tribe or includes an unrecognized tribe, the court may consult other evidence that is judicially noticeable or otherwise appropriate for consideration.
On the first Bruce prong, the court should instruct the jury that it has to find beyond a reasonable doubt that the defendant has some quantum of Indian blood. On the second prong, the court should instruct the jury that it has to find beyond a reasonable doubt that the defendant was a member of, or affiliated with, a federally recognized tribe at the time of the offense. We described in our opinion in Bruce the criteria for such recognition. Bruce,
Here, the trial court erred by instructing the jury to find whether Zepe-da was an Indian without telling it how to make that finding. Zepeda did not object to the instruction, so we review for plain error. United States v. Williams,
2. Sufficiency of the Evidence Against Zepeda
Zepeda argues the government failed to present sufficient evidence at trial to prove that he was an Indian. If Zepeda is right, we must reverse eight of his nine convictions. The government charged Zepeda with assault with a dangerous weapon and assault resulting in serious bodily harm under the IMCA. See 18 U.S.C. § 1153 (covering “felony assault[s] under section 113”); 18 U.S.C. §§ 113(3), (6). Conspiracy and use of a firearm during a crime of violence are “federal law[s] of general, non-territorial applicability,” which do not require the government to satisfy the IMCA’s elements. United States v. Errol D., Jr.,
The first prong of the Bruce test requires only that the defendant have “some” quantum of Indian blood. Therefore, “evidence of a parent, grandparent, or great-grandparent who is clearly identified as an Indian is generally sufficient to satisfy this prong.” Bruce,
Zepeda’s Enrollment Certificate established that he was an enrolled member of the Gila River Indian Community. The Gila River Indian Community was, as a matter of law, a federally, recognized tribe at the time of the charged offenses. See BIA List, 74 Fed.Reg. 40,218-02, 40,220 (Aug. 11, 2009); BIA List, 73 Fed.Reg. 18,553-01, 18,554 (Apr. 4, 2008). Zepeda stipulated to the admission of the Enrollment Certificate and did not challenge its attestation that he was a member of the Gila River Indian Community.
We therefore hold that the Enrollment Certificate and Matthew’s testimony were
B. Zepeda’s Sentence
Zepeda argues that his sentence— a prison term of ninety years and three months—was unreasonable because the district court improperly treated the Sentencing Guidelines as mandatory. Zepe-da’s sentence is indeed long, but his argument is based on a misunderstanding of the law governing his sentence.
Under 18 U.S.C. § 924(c), the district court was required to impose consecutive mandatory minimum sentences on Zepe-da’s convictions for use of a firearm during a crime of violence. Each of Zepeda’s convictions under § 924(c) was tied to a different predicate offense: one count of assault resulting in serious bodily injury against Peters and three counts of assault with a dangerous weapon against Peters, Aviles, and C. The jury found that Zepeda discharged his firearm in committing each offense. Therefore, Zepeda’s first conviction under § 924(c) carried a statutory mandatory minimum sentence of ten years, 18 U.S.C. § 924(c)(l)(A)(iii), and the other three convictions each carried statutory mandatory minimum sentences of twenty-five years, id. § 924(c)(1)(C)®,• see United States v. Beltran-Moreno,
Conclusion
We overrule Maggi and hold that the government’s evidence was sufficient under the Bruce test, as recharacterized in this opinion, to prove that Zepeda was an Indian at the time of his crimes. We reject Zepeda’s other arguments and affirm his convictions and sentence in full.
AFFIRMED.
Concurrence Opinion
with whom Circuit Judge IKUTA joins, concurring in the judgment:
The majority’s holding transforms the Indian Major Crimes Act into a creature previously unheard of in federal law: a criminal statute whose application turns on whether a defendant is of a particular race. Damien Zepeda will go to prison for over 90 years because he has “Indian blood,” while an identically situated tribe member with different racial characteristics would have had his indictment dismissed. It’s the most basic tenet of equal protection law that a statute which treats two identically situated individuals differently based solely on an unadorned racial characteristic must be subject to strict scrutiny. The racial test articulated in United States v. Bruce,
United States v. Maggi at least tethered Bruce’s racial component to a political relationship.
1. The majority holds “that proof of Indian status ... requires only two things: (1) proof of some quantum of Indian blood, whether or not that blood derives from a member of a federally recognized tribe, and (2) proof of membership in, or affiliation with, a federally recognized tribe.” Maj. Op. at 1113. The first prong of that test is an overt racial classification. The majority is unconcerned by this because, in its view, “[t]he second prong of the Bruce test ... is enough to ensure that Indian status is not a racial classification, for the second prong requires, as a condition for the exercise of federal jurisdiction, that the defendant be a member of or be affiliated with a federally recognized tribe.” Maj. Op. at 1112.
But the presence of a separate and independent “nonracial prong” cannot save a test that otherwise turns on race. Bruce ⅛ political affiliation prong may provide a non-racial basis for limiting the IMCA only to tribe members. But not all tribe members are subject to the IMCA. Separating those who are from those who are not is the function of Bruce ’s first requirement, and that requirement turns entirely on race. That ineluctably treats identically situated individuals within a tribe differently from one another solely based on their immutable racial characteristics.
To claim that the Bruce test is “not a racial classification” because there’s a nonracial “condition for the exercise of federal jurisdiction” conflates Congress’s Article I power to enact a law with the affirmative restrictions imposed by the Fifth Amendment. The fact that the “defendant [is] a member of or [ ] affiliated with a federally recognized tribe” explains why Congress is able to criminalize a tribe member’s conduct, even absent a nexus to interstate activity. But the fact that Congress is permitted to create laws regulating tribe members doesn’t mean that Congress can administer those laws in a discriminatory fashion. That would be like saying a federal law extending criminal penalties only to those with “African blood” isn’t a racial classification because it can only be applied to people who engage in interstate commerce.
“[A]ny person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny.” Adarand Constructors, Inc. v. Pena,
2. The panel in Bruce believed itself bound to apply a racial test because of the Supreme Court’s decision in United States v. Rogers, 45 U.S. (4 How.) 567, 11 L.Ed. 1105 (1846). Rogers is a nearly 170-year-old case, authored by Chief Justice Taney, in which the Court held that an adopted, non-racially Indian tribe member wasn’t subject to an exemption from federal criminal jurisdiction for crimes committed by an “Indian” against another “Indian.” Id. at 572-73. In defining “Indian” for purposes of the statute, the Court noted that the law “does not speak of members of a tribe, but of the race generally,—of the family of Indians,” id. at 573, and justified the federal government’s exercise of power over “this unfortunate race” in part based on the need “to enlighten their minds and increase their comforts, and to save them if possible from the consequences of their own vices,” id. at 572.
Reliance on pre-civil war precedent laden with dubious racial undertones seems an odd course for our circuit law to have followed, especially in light of the Supreme Court’s much more recent holdings in Mancari and Antelope. And, even if intervening developments in equal protection law hadn’t rendered Rogers obsolete, it’s clearly distinguishable. Rogers stands for the limited proposition that “a white man who at mature age is adopted in an Indian tribe does not thereby become an Indian,”
The majority’s strongest support for Bruce ⅛ racial test appears to be an inference from the fact that the racial preference upheld in Mancari had a blood quantum requirement similar to the one at issue here. But that portion of the provision in Mancari wasn’t challenged by plaintiffs, nor was there any assertion that the hiring preference in that case discriminated among tribe members. Rather, the grievance in Mancari was that non-tribe members were discriminated against by the preferential hiring of tribe members. The constitutionality of that distinction was upheld because the preference was given to “tribal entities,” not to a “racial group.” I find it remarkable that the majority is able to read a case that upholds tribal preferences only so long as they are non-racial as a broad endorsement of the government’s power to racially distinguish between those within a tribe.
3. Overruling Maggi takes our circuit law in the wrong direction. Maggi at least tied the racial component in Bruce to a political relationship. Because Congress’s plenary power over Indian tribes is rooted in treaties and other political accommodations between sovereign entities, the validity of federal regulation must turn, not on a tribe’s existence in some anthropological sense, but on its political relationship with the United States. A genuine political relationship between sovereigns requires reciprocal recognition. Thus, as we correctly noted in LaPier v. McCormick, a political relationship between a tribe and the federal government exists only when “the United States recognizes [the] tribe.”
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By extending Bruce and overruling Maggi, the majority creates a disturbing anomaly in the application of our equal protection law. The majority empowers Congress to distribute benefits and burdens within Indian tribes along purely racial lines. It may be that Congress will never use that power to work racial injustice, but the Constitution’s commands are inexorable precisely because we aren’t prescient enough to predict all the ways in which the government can abuse the power we give to it. Whatever complexities may be inherent in the federal regulation of Indian tribes, the equal protection clause permits no exceptions. Racial classifications must survive the strictest scrutiny. Those that cannot have no place in our law.
Dissenting Opinion
with whom KOZINSKI, Circuit Judge, joins, concurring in the judgment:
The majority today holds that we must continue to define an Indian by the “degree of Indian blood” as required by United States v. Bruce,
Because there is no need to use the blood quantum test in this context, we should avoid perpetuating the sorry history of this method of establishing a race-based distinction. Early in our history, state courts used blood quantum tests to determine who was a slave and who was free. See Gentry v. McMinnis,
Similarly, states relied on blood quantum tests to prevent white people from marrying persons of color. See Loving v. Virginia,
Our nation also used blood quantum tests to discriminate against nonwhites who wanted to become citizens. Congress decreed that only a “free white person[ ]” could be granted the “privilege of naturalization,” and courts generally construed this requirement to mean that “men are not white if the strain of colored blood in them is a half or a quarter, or, not improbably, even less, the governing test always being that of common understanding.” Morrison v. California,
The Supreme Court recently reaffirmed opposition to “[a]ncestral tracing of this sort” in laws that serve to enable race-based distinctions. Rice v. Cayetano,