United States v. Michael Bryant, Jr.

ORDER

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for rehearing en banc is DENIED.

Judge McKEOWN did not participate in the deliberations or vote in this case.

joined by PREGERSON, Circuit Judge, concurring in the denial of rehearing en banc:

The conflict that presents itself again and again in this case is how to apply Nichols v. United States, 511 U.S. 738 , 114 S.Ct. 1921 , 128 L.Ed.2d 745 (1994), to cases like Bryant, where the government seeks to use uncounseled tribal court misdemeanor convictions as an essential element of a felony prosecution under 18 U.S.C. § 117 (a). 1 The dissents from denial of rehearing en banc, along with two other circuits, urge a bright-line reading of Nichols that permits the use of these convictions as long as they do not violate the Sixth Amendment (which tribal court convictions, by definition, never do). We write to explain why Bryant does not apply this bright-line rule, while recognizing that only the Supreme Court can clarify the meaning and scope of its decision in Nichols .

I

Nichols permits the use of a prior uncounseled misdemeanor conviction to enhance a sentence, so long as the conviction does not violate the Sixth Amendment. Nichols, 511 U.S. at 746-47 , 114 S.Ct. 1921 (citing Scott v. Illinois, 440 U.S. 367 , 99 S.Ct. 1158 , 59 L.Ed.2d 383 (1979)). That *1043 Nichols is a sentencing…

joined by O’SCANNLAIN, GOULD, TALLMAN, BYBEE, CALLAHAN, BEA, and M. SMITH, Circuit Judges, dissenting from the denial of rehearing en bane:

Michael Bryant likes to beat women. Sometimes he kicks them. Sometimes he punches them. Sometimes he drags them by their hair., He punched and kicked one girlfriend repeatedly, threw her to the floor, and even bit her. When he could not find his keys, he choked another woman to the verge of passing out. Although his violence varies, his punishment never does. Despite Bryant’s brutality — resulting in seven convictions for domestic violence— his worst sentence was a slap on the wrist: one year imprisonment, or what someone who “borrows” a neighbor’s People magazine from the mailbox on two separate *1045 occasions could face. See 18 U.S.C. § 1701 (retarding the passage of mail).

There are many, many men like Michael Bryant. And there are even more victims of men like Michael Bryant. American Indian and Alaska Native women are 2.5 times more likely to be raped or sexually assaulted than women in the United States in general. Att’y Gen.’s Advisory Comm, on Am. Indian/Alaska Native Children Exposed to Violence, Ending Violence so Children Can…

joined by GOULD, TALLMAN, BYBEE, CALLAHAN, BEA, M. SMITH, and OWENS, Circuit Judges, dissenting from the denial of rehearing en banc:

Judge Owens passionately reveals this opinion’s pernicious impact on domestic violence victims, and I share his concern. I also write to explain why the legal errors that corrupt this opinion, and its predecessor United States v. Ant, 882 F.2d 1389 (9th Cir.1989), should have been corrected by our court sitting en banc.

Following Ant , the court decides that indisputably valid tribal court proceedings are “constitutionally infirm” because they do not afford the right to appointed counsel required by the Sixth Amendment. United States v. Bryant, 769 F.3d 671, 677 (9th Cir.2014) (citing Ant, 882 F.2d at 1394-95 ). A sensible result, perhaps, were it not for the fact that the Indian Civil Rights Act (“ICRA”) — not the Sixth Amendment — governs tribal court proceedings. The court grudgingly acknowledges this fact. Id. at 675. Yet — undeterred in its quest to punish the tribal court for complying with the procedures that govern it — the court concludes that convictions procured in that venue are so defective that the federal government is barred from…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-30177 Plaintiff-Appellee, D.C. No. v. 1:11-cr-00070-JDS-

MICHAEL BRYANT, JR.,

Defendant-Appellant. ORDER

Filed July 6, 2015

Before: Harry Pregerson, Richard A. Paez, and Paul J. Watford, Circuit Judges.

Order; Concurrence by Judge Paez; Dissent by Judge Owens; Dissent by Judge O’Scannlain SUMMARY*

Criminal Law

The panel issued an order denying a petition for rehearing en banc on behalf of the court in an appeal from the denial of a motion to dismiss an indictment charging the defendant, an Indian, with domestic assault by a habitual offender, in violation of 8 U.S.C. § 117(a).

In its opinion, the panel reversed the district court’s denial of the motion to dismiss the indictment. Applying United States v. Ant, 882 F.2d 1389 (9th Cir. 1989), the panel held that, subject to the narrow exception recognized in case law for statutes that serve merely as enforcement mechanisms for civil disabilities, tribal court convictions may be used in subsequent prosecutions only if the tribal court guarantees a…