*2 рractice TANG, Judge Spang’s normal Before THOMPSON and It is O’SCANNLAIN, Judges. arraignment defendants of their to advise counsel, disparage including proceedings by suppress- those right to appointed, ing not to ask defen- counsel them from evidence in this case. an attor- if want or can afford dants January On Ant filed a reserva- Judge Spang went ney. Ant claims that rights upon entry tion of of a conditional reciting rights to ask- immediately from guilty plea, pursuant to Fed.R.Crim.P. guilty. or not ing him he were 11(a)(2).2 sentencing hearing, After a *3 replied “guilty” and was sentenced to Ant district years court sentenced Ant to three jail, months in a sentence which he six prison him and fined $50. Ant was contends that served. The Government recognizance released on his own Judge Spang meaning of a explained the execution of his sentence deferred (“that you admit to the means pending appeal. this Ant filed his Notice charge”), that Ant does not a contention 4, Appeal on February also contends refute. Government rights Ant he understood his said that II. ISSUES prior pleading guilty. 7, 1987, legal Januаry presented by ultimate issue
On indictment charging voluntary appeal filed Ant this whether an uncounseled manslaughter, guilty plea, under 18 1112 and U.S.C. made in tribal court in accord- §§ killing “unlawfully willfully” ICRA, ance both with tribal law and the appearance Birdhat.1 Ant made his initial but which would have been unconstitution- January in federal court on 1987 and ifal made in a federal can be admit- appointed was furnished counsel. guilt ted as subsequent evidence of in a prosecution involving the same 24, 1997, February On Ant moved to reaching issue, criminal acts. Befоre suppress his confession and his tribal court preliminary questions three need to be ad- guilty plea grounds on the that this evi dressed: violation Miranda dence was obtained in Arizona, (a) procedures whether the surrounding 27, 1987, On March guilty plea Ant’s in tribal court did com- granted sup district court the motion to ply ICRA; with tribal law and with the press the confession based on a violation of (b) guilty plea gener- can Miranda suppress denied the motion to ally be used as in subsequent the tribal court Ant renewed prosecution; and supрress motion to his tribal court (c) whether Ant’s would have been guilty plea 13,1987, on November this time permissible constitutionally had it grounds. on Sixth Amendment The district made in federal court. suppress court denied this motion to on ruling, December In this III. VALIDITY OF THE GUILTY district court noted that PLEA UNDER TRIBAL LAW during arraignment the tribal court were AND THE ICRA consistent both with tribal law and the ICRA and concluded that: According Cheyenne to Northern law,
[c]omity
respect
legitimate
Revised Law and Order Ordi
proceedings requires that this Court not
nances of the Northern Cheyenne
Tribe
8, 1987,
April
1. On
"willfully”
the Government
manslaughter
moved to
element of
to the
dismiss the indictment on the basis that new
charge.
February
On
Ant filed a waiv-
may support
evidence was found that
an indict-
charged
er of indictment and consented to be
degree
ment for second
was
murder. This motion
information,
day,
with an
and on that same
an
granted
day.
September
the next
On
charging
information was filed
Ant with "un-
reindicted,
degree
Ant was
not on second
lawfully” killing
February
Birdhat. On
murder,
voluntary
but on the identical
man-
guilty plea
Ant’s conditional
to the correct
slaughter chаrges as in the first indictment.
information,
charge, as stated in the
was en-
Judgment
tered and the district court filed a
January
2. On
Ant moved to withdraw
and Commitment Order.
grounds
his conditional
the second indictment
on the
erroneously
included an
a much
Certainly, it would be
counsel.
Cheyenne Reservation
Northern
deter-
appeal if it were
easier
law
applicable
Montana,
Ch.
§
guilty plea was not
Ant’s
guilty,
mined
pleaded
Ant
ICRA;
offense,
law or
with tribal
in accordance
charged
“[a]ny Indian
suppress
reason to
represent-
might be a
may
itself
this in
expense,
option and
legal
by professional
plea. But because
in tribal court
ed
is valid
Tribe”
counsel, or,
member
that Ant’s
by a
determination
clear-
Also, according to the
said to be
added).
cannot be
tribal law
(emphasis
under
deny to
erroneous,
Mow v. Unit
... shall
Han
ly
tribe
see Chua
“[n]o
Cir.1984),
proceeding
in a criminal
F.2d 1308
any person
ed
as-
expense
his own
...at
1302(6).
25 U.S.C.
of counsel.”
because
“[fed
sistance
that,
due
has held
intrusive
The Ninth
must avoid undue
eral courts
the ICRA notwithstand-
process
reviewing
clause
Tribal Court
*4
in
interference
1302(8),
federal
there is no
ing,
cedures,”
25 U.S.C.
Tribes
v.
Smith
Confederated
in tribal
appointed counsel
right to
Ore
Springs Reservation
the Warm
Sutton, 533 F.2d
denied,
proceedings.
(9th Cir.),
Tom
1409
cert.
gon,
Cir.1976).
in tribal
is clear that
It
1101
107 S.Ct.
attorney
have an
court,
entitled to
Ant was
finding
(1986),
district court’s
accept the
we
he was
expense, but that
his own
at
guilty plea under
validity of
as to the
attor-
court-appointed
a
entitled
and the ICRA.4
tribal law
ney.3
AN EARLIER
interpre
OF
in their
IY. ADMISSIBILITY
parties
differ
SUBSEQUENT
surrounding Ant’s
PLEA IN A
GUILTY
of the facts
tation
Ant admits that
PROSECUTION
in
court.
FEDERAL
guilty
tribal
а
him
he had
Judge Spang told
Tribal
Has No
Guilty Plea
Earlier
A. When
privi
a
court-appointed attorney,
right
ato
Constitutional
Infirmities
requirements of trib
lege that exceeds
ICRA,
that she
claims
but
al law
held to be
guilty plea has been
An earlier
attorney, if he
had an
ask him if he
did not
subsequent
prosecu
federal
in a
admissible
could afford an
attorney, or if he
an
wished
tion,
are in differ
if the
even
in the
excerpted colloquy
attorney. The
earlier
if the
jurisdictions,
ent
Ant indi
shows that
Government’s brief
consistent with
conditions
under
was madе
rights,
his
he
cated that
understood
In United
States Constitution.
United
knowing
intelli
and
clear
is not
Riley,
States
to counsel
gent waiver of
accomplished.
(1983),
example, a defen
L.Ed.2d
misdemeanor
plea to a state
dant’s
deter-
made a factual
The district court
charge was ruled admissible
pimping
made in accord-
that the
mination
prostitution prosecution
federal
subsequent
tribal law
ance with both
Act.
by under the Mann
representation
despite Ant’s lack of
4. It
notwithstanding,
at
onset that "when an
be noted
should
of the dissent
The assertions
criminally punishes
that the
a tribe member
at
"troubled"
fact
tribe
we are not
all
binding
law,
upon
is not
violating
acts as
Sixth Amendment
the tribe
Furthermore, we
at 1398.]
Dissent
[See
courts.
sovereign,
as an arm of
independent
holding
disagree
“will
far-reach-
that our
Wheeler,
States v.
Government.” United
Federal
virtually
consequences
ing
all tribal
313, 329,
guilty pleas
be inadmissible
will
omitted).
(footnote
Thus
L.Ed.2d
stringent requirements of
given the less
prosecutions
are
"[s]ince
brought
[Dissent,
Although
n. 2.]
at 1398
the ICRA."
sovereigns, they
by separate
are nоt ‘for
us,
currently
we
precise
issue is
before
offence,'
Jeopardy
the Double
properly
and volun-
presume that a
counseled
when the other
thus does not bar one
has
clause
tary guilty plea
court would
admissi-
in tribal
329-30,
S.Ct. at 1089.
occurred." Id.
court.
ble in a federal
Riley argued
The defendant
by anyone
that the ad-
advised
that his
and state-
mission
“was tanta-
state
ments or
admissions
State Court would
directing
against
mount to
him
verdict
against
or could be used
him.” United
charges.”
the Mann Act
rected verdict ANT’S TRIBAL particularly as COURT GUILTY PLEA evidenced conditional HAD IT BEEN Nevertheless, MADE IN in Riley, FEDERAL COURT earlier state guilty plea was held to be admissible Because, above, as discussed it is inher- subsequent prosecution as аn “ad- ently prejudicial to admit a constitutionally 801(d)(2), mission” under Fed.R.Evid. al- plea against infirm a defendant at a subse- though case, unlike the instant there were quent offense, trial on a new see Burgett v. claims that no the earlier plea was Texas, any way invalid. See also v. 19 it is thus necessary Holmes, (8th Cir.1986). to examine the validity constitutional Ant’s earlier plea, tribal court guilty inde- B. Guilty When Earlier Plea Has Con- pendent of issues involving tribal law or *5 stitutional ICRA, Infirmities the as if plea the had been made in federal court. Our conclusion is hand, On the that other there is direct author- Ant’s tribal court had supporting proposition been ity that made in a federal only not prior would it proceeding from a in obtained viola- be constitutionally infirm, but it would also tion United States Constitution can- be inadmissible in a subsequent federal subsequent not be used in a prose- federal prosecution. Indeed, cution. in Elkins v. United 206, 1437, 364 U.S. 80 S.Ct. A. Sixth Amendment Right to Counsel (1960), Supreme rejected Court the “sil- At Pleading Time Guilty platter” doctrine, ver ruling that evidence by state obtained officials in violation right Sixth Amendment to counsel the Fourth Amendment is inadmissible a attaches at stages “critical” in a criminal subsequent prosecution.6 federal In a case prosecution rights where “substantial of a point closer on situation, the instant a may accused be affected.” Mem court suppressed the prior pa 128, defendant’s Rhay, 134, v. 389 254, U.S. 88 S.Ct. plea state court guilty 256, the subsequent 19 (1967). 336 L.Ed.2d Particularly prosecution where “he was never since Ant was jail sentenced to imme- According may issue, a tribal 7. Regarding not a related in United States v. impose year. a sentence more than Tucker, 443, one 25 589, 92 S.Ct. 30 L.Ed.2d 1302(7). § U.S.C. This was from increased six (1972), Supreme disapproved 592 Court a 27, on months October 1986. Pub.L. 99-570 sentence by had enhanced uncoun- 4217. The § is unresolved as to wheth- prior seled convictions. But see United States v. a jurisdiction er tribe has concurrent with the Fleishman, (9th Cir.) (in 1346 a prosecute federal courts to a for one member case, drug sentencing judge’s consideration Act, Major the crimes enumerated in the Crimes prior drug uncounseled Mexican conviсtions on manslaughter U.S.C. § 18 or mur- charges judge was not when error was aware of Wilkinson, D. der. Getches C.& Federal Indian constitutional infirmities of the convic- (2d 1986). 401 Law ed. sentence, tions and enhanced the not because of convictions, Also, Manuel, in United because the v. defendants 706 drug-related n. "had been involved in we offenses and concluded in dicta constitutionally fruits of a experiences”), that had not denied, by learned from their infirm arrest police prose- are inadmissible in a federal (1982). cution. Michigan v. оf no waiver. in favor solved clear it seems guilty, diately pleading after 625, 633, 106 S.Ct. Jackson, 475 U.S. stage” a “critical arraignment was govern- L.Ed.2d coun right to Amendment Sixth where right his Ant waived implied that ment has Alabama, 368 Hamilton sel attached. indicating that by counsel in 157, 158,7 L.Ed.2d counsel and he understood v. Common (1961); see also However, the attorney. requesting not 447, 451 Pennsylvania, wealth of support the conclu- do facts available hearing plea of Cir.1965) on (3d (“a a intelligently knowingly and that Ant sion stage in the is a critical rights under Amendment his Sixth waived his neеd accused, one which For standards. Ninth Circuit urgent”). most counsel is
..for
opportuni-
given the
example, Ant was
Hamlin,
According
Argersinger
counsel,
he
appointed
ty 25, 37, 92 S.Ct.
that his tribal
unaware
apparently
knowing and
a
“absent
L.Ed.2d
against him a
used
im
waiver,
may be
person
no
intelligent
felony prosecution.
subsequent
he
unless was
...
any
offense
prisoned
as evi-
Accordingly, the use of
Fur
trial.”
at his
represented
counsel
court is unconstitutional.
dence
Illinois, 446 U.S.
thermore,
in Baldasar
L.Ed.2d
Voluntari-
Amendment Claim:
B. Fifth
prior uncoun-
curiam), thе defendant’s
(per
Plea
ness of
could not be
conviction
misdemeanor
seled
argues
the tribal
Ant also
stat
penalty
enhanced
under Illinois’
used
Fifth
suppressed
should be
misdemeanor
subsequent
ute to convert
it
primarily because
grounds,
Amendment
In the
prison term.
felony
into
Ant cites to U.S.C.
voluntary.
being
case,
jeopardy
Ant is
governing
federal statute
§
court because
by a federal
imprisoned
confessions,
argues
admissibility of
prior uncounseled
essentially a confession
if Ant’s earlier
Thus,
appears thаt
to the
did not conform
other
a court
made in
had been
According
in deter-
this statute.
*6
court,
it would
be
in a tribal
confession,
than
mining the voluntariness
prose
subsequent federal
in the
admissible
judge
the trial
intelligent
knowing
a
absent
and
cution
circum-
consideration all
into
shall take
to effec
for a defendant
In order
waiver.
surrounding
giving of the
the
stances
Amend
of the Sixth
a
waiver
tuate
valid
including
such
... whether
confession
counsel,
court must
the trial
right ment
the
the
of-
knew
nature
defendant
inquiry to ensure
thorough
a
undertake
charged ...
he
was
fense with
informed
an
the
has made
that
defendant
defendant was
or not such
whether
[and]
Gillies, 332 U.S.
Moltke v.
decision. Von
required
he
knew that
advised or
323, 92 L.Ed.
S.Ct.
any
that
any
make
statement
for waiver
The
(plurality).
standard
him.
could be used
statement
trial court
is that the
Ninth
in the
3501(b)(2-3).
guidelines
The
18 U.S.C. §
open
the
with
defendant
should discuss
voluntary
guilty
is
plea
a
ensuring that
being made
the waiver is
court whether
11(d).
in Fed.R.Crim.P.
are outlined
under
intelligently, with an
knowingly and
adequate to determine
is not
The record
penal
possible
charges, the
standing of the
guilty
not Ant’s
or
self-representation.
ties,
dangers of
law. The
voluntary under
plea
486 F.2d
Dujanovic,
United States
the tribal
ruled that
district
Cir.1973);
(9th
also United
see
186-187
on the basis
suppressible
plea “is not
(9th
Harris,
Cir.
683 F.2d
States
confession
an
unwarned
followed
1982).
poisonous
the
(i.e.
is not fruit of
that it
determina-
no
tree),
Court makes
Concerning
question of waiv
the
the
[but]
upon which the
grounds
prov
tion as
other
er,
the
government has
burden
though the
Even
might
attacked.”
plea
be
re-
waiver,
any
must be
ing
doubts
panel may
“review
rul
court’s
federal court under
identical circumstanc-
ing on the
es,
plea
voluntariness of the guilty
it would be inadmissible in a subsequent
novo,”
United
States
Ferreira-
de
prosecution.
question
in the
Alameda,
(9th
Cir.
is
case
different
since
prior
Ant’s
1987) (as amended),
may
plea
there
not be suffi
was not made in
cient
evidence
for us
but was
record
to hold
made in a tribal court where it was
plea
Ant’s tribal court
valid
involun
under
law and the IGRA.
tary.
event,
any
In
determination
question
of whether a constitutional-
voluntariness
is unnecessary
since
ly infirm guilty plea may bе admitted as
matter can be resolved on Sixth Amend
evidence in federal
solely
because it
grounds.
ment
was made in compliance with tribal law and
with the
ICRA is a
of first impres-
VI. ADMISSIBILITY OF ANT’S
sion. We hold that
such a
is inadmis-
TRIBAL COURT GUILTY PLEA
sible
a federal prosecution.8
IN FEDERAL COURT
In the district’s
opinion,
failure to
As indicated in
preceding discussion,
admit
would
principles
violate
had
Ant’s
comity
made
and would disparage the tribal court
8. The dissent
simply
Amendment,
states that "we
are not
suppressed
is
under the
willing
rule,
to treat
dig-
tribal courts
exclusionary
not because the evidence is
nity
foreign
as we do
courts.” [Dissent
irrelevant
untrustworthy,
at
1397.]
but rather
aas de-
This claim is
absolutely
erroneous.
terrent
There is
practices
no
unlawful
by officers in the
authority
proposition
for the
Brulay
States,
that we
States. See
would
v. United
(9th Cir.) ("Neither
allow into evidence
F.2d
court a
the Fourth nor
foreign
in a court
country
Fourteenth
Amendments
did
are
directed
comply
Mexican
officials
prophylactic
with the
no
purpose
of the United
by
Constitution,
served
applying
exclusionary
even if thе
rule here
conformed
foreign
what we do will not alter
poli
law. This
be
search
true even in
sovereign
cies of
denied,
Mexico.”),
involving
Nation
cases
foreign
a "civilized"
court.
In-
deed,
contrary
assertions
dissent not-
Indeed,
(1967).
agents
when United
withstanding,
the question of whether the for-
“substantially”
are
illegal
involved in
eign jurisdiction
search
completely
“civilized" is
im-
police,
foreign
seizure
may
the evidence
holding.
material to our
suppressed
the exclusionary
under
rule.
Furthermore,
cases
cited
the dissent
Stоnehill
Cir.1968),
(9th
v. United
misplaced
are
upon
and do not bear
the instant
rt.
ce
Indeed,
issues.
the dissent concedes that none
(1969);
son, would
tribal
disparage
comity, and would
of the
application
The district
court
of the district
ceedings,
the order
be novel.
appears to
comity
principle of
plea is
of the
denying supression
policy
“longstanding
is a
there
While
Iowa
aside,
self-government,”
encouraging
REVERSED,
tribal
is set
conviction
LaPlante, Ins. Co.
Mutual
further
for
is REMANDED
the cause
94 L.Ed.2d
proceedings.
comity has
of federal-tribal
principle
prevent
primarily
used
heretofore been
O’SCANNLAIN,
Judge,
fed
in
proceedings
on tribal
direct attacks
dissenting:
courts,
require exhaustion
eral
Judge Battin that
agree
I
with
Because
to federal
going
before
remedies
tribal
court
federal
suppression in
Ins. Cos.
Farmers Union
court. National
dispar-
proceedings
in tribal
entered
Indians, 845, 105
v. Crow Tribe of
courts, I must
of tribal
ages
integrity
(1985). No
majority con-
respectfully dissent.
stake here.
are at
issues
in
court com-
tribal
that Ant’s
cedes
Ant’s tribal
Further,
suppression of
fully
tribal law and
plied
with
disparage the
guilty plea will not
(ICRA).
majority
Rights Act
Civil
Indeed,
not now
we are
proceedings.
coercion, “shocking
points to no evidence
reviewing
validity of the
transcript of
conduct,”
inaccuracy in the
problem what-
we have no
proceedings and
I find no
proceedings. Because
the tribal
convic-
the fact that the
soever with
against admission
prohibition
constitutional
is valid.
tion itself
court, and
suppressing the tribal
In
admissibility
I
no bar to
find
because
simply
plea,
evaluated
we have
Judge
matter,
I would
evidentiary
affirm
requirements of the
meets
suppress.
of the motion
Battin’s denial
use in a
Constitution
United States
had the
majority
agree
I
court.
prosecution
federal
federal
it
in state
would
plea been entered
beyond the
regard, we have looked
agree
I
constitutionally infirm.
have been
itself
validity of the tribal conviction
plea been
majority that had the
with the
the actual tribal
have reviewеd
have been
in a
federal
conformity
were
to determine
agree
I
infirm.
also
constitutionally
Constitutional
in a
it been made
guilty plea, had
such a
Had
court.
prosecutions
trial, would
trial or in another
state
re-
proceedings met these
the tribal court
reasons
here for the
require suppression
affirmed
quirements, we would have
opinion.
majority
expressed
court below
judgment
the district
But since
refusing
suppress
plea.
relevant
principles is
none
these
But
meet
proceedings did not
oсcurred,
the tribal court
not in a federal
here. The
*8
requirements,
these
in a tribal
court, not in
state
suppressed.
plea must be
to the
are entitled
proceedings
court whose
Unit
See
foreign
dignity
courts.
shown
CONCLUSION
VII.
Wheeler,
98
435 U.S.
ed States
(1978).
1088,
303
1079,
S.Ct.
though Ant’s
uncounseled
Even
proceedings
judicial
Generally,
law
evidence
plea did not violate tribal
foreign
contrast,
or tribal court.
(2d Cir.1976)).
sion of a
484-85
supervi-
no such interterence
case involves
foreign
courts is admissible in federal which would have violated fourth amend-
Smith,
(14 mеnt
court. See Ennis v.
court).
55 U.S.
held
admissible
How.) 400, 430,
(1852);
This
visions al., ASSOCIATION, et conduct to Indian tribes freedom Plaintiffs/Appellants, own their in accordance with themselves incidentally, which have laws, tribal laws— aof laws be considered always been VALLEY, SIMI OF CITY the United dignity equal sovereign of Defendant/Appellee, of the federal subdivision al., Doody, et Jamеs 328, 98 Wheeler, 435 U.S. government. Appellees. Defendants-cross-defendants/ 1088. S.Ct. at by the fact troubled majority seems Tudor, TUDOR; et P. Jennie binding Donald G. is amendment sixth al., Third-party-defendants/Appellees, exactly But that courts.2 upon tribal Compare us. tells the ICRA what Ventura, County of Const, prosecu- (“In all criminal amend. VI Defendant-third-party-plaintiff/ Assist- tions, shall ... the accused cross-claimant defense”) Counsel ance of No. 86-6425. (“No tribe 1302(6) U.S.C. § Appeals, Court self-government shall exercising powers Circuit. Ninth criminal person any deny to ... April 1988. Arguеd Submitted expense right... at his own ceeding the de- for his of counsel 1989. Jan. assistance Decided have the supplied). fense”) (emphasis 23, 1989. March Amended As pan- the full Congress intended Had Rehearing and Denial of As Amended on protections sixth amendment oply Aug. Rehearing En Banc courts, clearly could upon imposed Because the in the ICRA. so have said courts and comity between
nature analogous the relation-
federal courts— so sovereign states —is sensi-
ship between balanced, up it is delicately so
tive and change the panel,
Congress, not this all. changed at should be
rules far-reaching conse- holding majority’s will have course, suppressing a recognize that Of I virtually tribal court quences all in a federal trial court, given pleas will be inadmissible imposition sixth equivalent requirements of ICRA. Nonetheless, stringent less courts. on tribal amendment