United States v. Michael Bryant, Jr.

Opinion by Judge PAEZ; Concurrence by Judge WATFORD.

OPINION

Michael Bryant, Jr., an Indian, was indicted on two counts of domestic assault by *673 a habitual offender, in violation of 18 U.S.C. § 117 (a). 1 In support of the charges, the government relied on two pri- or tribal court convictions for domestic abuse. These convictions were uncoun-seled and at least one resulted in a term of imprisonment. The Sixth Amendment guarantees indigent defendants in state and federal criminal proceedings appointed counsel in any case where a term of imprisonment is imposed. Scott v. Illinois, 440 U.S. 367, 369, 373-74 , 99 S.Ct. 1158 , 59 L.Ed.2d 383 (1979). But the Sixth Amendment' does not apply to tribal court proceedings. United States v. First, 731 F.3d 998, 1002 (9th Cir.2013), cert. denied, — U.S. -, 135 S.Ct. 50 , 190 L.Ed.2d 54 (2014). In this case, we must decide whether, in a prosecution under § 117(a), the government may use prior tribal court convictions that, although not obtained in violation of the Constitution, do not comport with the Sixth Amendment right to counsel to prove an element of the offense. We hold that United States v. Ant, 882 F.2d 1389, 1395 (9th Cir.1989),…

concurring:

I agree with the majority that United States v. Ant, 882 F.2d 1389 (9th Cir.1989), remains binding and controls the outcome of this case. I write separately to highlight three reasons why, in my view, Ant warrants reexamination.

1. The Supreme Court’s decision in Nichols v. United States, 511 U.S. 738 , 114 S.Ct. 1921 , 128 L.Ed.2d 745 (1994), doesn’t squarely overrule Ant , but it does call Ant’s reasoning into question. Nichols held that an uncounseled misdemeanor conviction valid under Scott v. Illinois, 440 U.S. 367 , 99 S.Ct. 1158 , 59 L.Ed.2d 383 (1979) — because no term of imprisonment was imposed — may be used “to enhance the sentence for a subsequent offense, even though that sentence entails imprisonment.” 511 U.S. at 746-47 , 114 S.Ct. 1921 . The Court’s holding undermines the notion that uncounseled convictions are, as a categorical matter, too unreliable to be used as a basis for imposing a prison sentence in a subsequent case. Nichols suggests that so long as a prior conviction isn’t tainted by a constitutional violation, nothing in the Sixth Amendment bars its use in subsequent criminal proceedings.

That principle is hard to square with the result we…

I. BACKGROUND

In June 2011, Michael Bryant, Jr. was indicted on two counts of domestic assault by a habitual offender, in violation of 18 U.S.C. § 117(a). Section 117(a) criminalizes the commission of “domestic assault within . . . Indian country” by any person “who has a final conviction on at least 2 separate prior occasions in Federal, State, or Indian tribal court proceedings for offenses that would be, if subject to Federal jurisdiction[,] . . . assault . . . against a spouse or intimate partner.” Count I charged that in February 2011, Bryant assaulted C.L.O., his previous girlfriend, “after having been convicted of at least two separate prior domestic assaults.” Count II charged that in May 2011, Bryant assaulted his new live-in girlfriend, D.E., “after having been convicted of at least two separate prior domestic assaults.”2 The prior domestic assaults the government relied upon were domestic abuse convictions obtained in the Northern Cheyenne Tribal Court.

2 The February 2011 and May 2011 assaults both occurred at Bryant’s residence, which was located within the Northern Cheyenne Indian Reservation.

UNITED STATES V. BRYANT

Bryant filed a motion…