United States v. Damien Zepeda

On October 25, 2008, Damien Zepeda (“Zepeda”) traveled with his brothers Jeremy and Matthew Zepeda (“Matthew”) to the home of Dallas Peters (“Peters”), located on the Ak-Chin Reservation of Arizona. Zepeda and Matthew opened fire upon the house’s occupants, injuring Peters severely. In a nine-count indictment, the government charged Zepeda with, inter alia, conspiracy to commit assault, assault with a deadly weapon, and use of a firearm during a crime of violence. 1 The *204 indictment alleged that Zepeda was an “Indian[ ].” Following a jury trial, Zepeda was convicted of all counts.

The Major Crimes Act, 18 U.S.C. § 1153 , provides for federal jurisdiction for certain crimes committed by Indians in Indian country. 2 . The statute does not define who is an Indian, and determining the proper boundaries of federal jurisdiction over Indians is a formidable task. It is now well-settled in this circuit that we apply the two-part test articulated in United States v. Bruce, 394 F.3d 1215 (9th Cir.2005) to determine who is an Indian. We consider: (1) the defendant’s degree of Indian blood, and (2) the defendant’s tribal or government recognition as an Indian. Id. at 1223 ;…

dissenting:

I agree with much of the majority’s analysis, particularly its conclusion that whether a tribe has been recognized by the federal government is a question of law. But I disagree with the majority’s ultimate determination that the government failed to present sufficient evidence from which a rational jury could infer that Zepeda has a blood connection to a federally recognized tribe. Under Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979), a rational jury could certainly infer that the reference in Zepeda’s tribal enrollment certificate to “1/4 Tohono O’Odham” is a reference to the federally recognized Tohono O’odham Nation of Arizona.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-10131 Plaintiff-Appellee, D.C. No. v. 2:08-cr-01329-ROS-

DAMIEN ZEPEDA,

Defendant-Appellant. OPINION

Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, Chief District Judge, Presiding

Argued and Submitted July 17, 2012—San Francisco, California

Filed September 19, 2013

Before: Ferdinand F. Fernandez, Richard A. Paez, and Paul J. Watford, Circuit Judges.

Opinion by Judge Paez; Dissent by Judge Watford SUMMARY*

Criminal Law

The panel reversed jury convictions under the Major Crimes Act, 18 U.S.C. § 1153, which provides for federal jurisdiction for certain crimes committed by Indians in Indian country.

The panel held that the district court did not plainly err in admitting a tribal enrollment certificate into evidence pursuant to the parties’ stipulation.

The panel held that the question of whether a tribe is federally recognized, as required for jurisdiction under § 1153, is a question of law; and that both the “Gila River Indian Community of the Gila River…