United States v. Dennis Garland Andy

Dissenting:

I do not find section 5036 so ambiguous that it requires the construction the majority here would give it. In construing section 5036, the majority refers to section 5032. Section 5032 provides that a juvenile shall not be proceeded against in any court of the United States “unless the Attorney General, after investigation, certifies to an appropriate district court of the United States” that a state court does not have jurisdiction or refuses to assume jurisdiction over the juvenile. This certification is required to give jurisdiction to the United States District Court. While it is an action triggering device which authorizes the federal district court to proceed, - certification does not answer the question of how detention for purposes of section 5036 shall be measured.

Detention is a fact determination and a separate issue. Here, the certification was not made until January 26 (Clerk’s Record at 43). The trial commenced on February 19. The period between these two dates is well within the thirty day period set forth in section 5036. But certification could conceivably have been made ten days earlier or ten days later, and had it been made 10 days earlier, the…

This is an appeal from the district court’s denial of appellant Andy’s motion to dismiss for failure to meet the speedy trial standard of 18 U.S.C. § 5036 , as amended, and from the court’s adjudication of appellant as a juvenile delinquent for an assault with a deadly weapon in violation of 18 U.S.C. § 1153 .

Appellant, an Indian and a resident of the Yakima Indian Reservation in the state of Washington, conducted a lengthy beer-drinking party at his residence on the reservation. On the evening of January 2, 1976, with Dixon Yallup, Edward Ewell, and Lenora James present, appellant brought out a .22 caliber rifle, taking it outside of his residence to shoot at street lights. At one point appellant stated, “Make me a bet, I can hit that ear.” It appears that appellant then began firing shots at passing automobiles on the road near his home.

On the same night, Jesse Jaime was struck by a bullet while driving his car near the intersection of West Wapato and Campbell Roads in Yakima County, Washington. The intersection is immediately in front of appellant’s house. Neither Jaime nor his passenger saw who fired the shot as they quickly fled the scene. Jaime survived.

Indian police…

549 F.2d 1281 UNITED STATES of America, Plaintiff-Appellee, v. Dennis Garland ANDY, Defendant-Appellant. No. 76-1667. United States Court of Appeals, Ninth Circuit. Jan. 31, 1977. As Amended Feb. 22, 1977. Jerry D. Talbott (argued), Willis, McArdle, Dohn & Talbott, Yakima, Wash., for defendant-appellant. Robert S. Linnell, Asst. U.S. Atty. (argued), Spokane, Wash., for plaintiff-appellee. Before TUTTLE, * HUFSTEDLER and TRASK, Circuit Judges. PER CURIAM: 1 This is an appeal from the district court's denial of appellant Andy's motion to dismiss for failure to meet the speedy trial standard of 18 U.S.C. § 5036 , as amended, and from the court's adjudication of appellant as a juvenile delinquent for an assault with a deadly weapon in violation of 18 U.S.C. § 1153 . 2 Appellant, an Indian and a resident of the Yakima Indian Reservation in the state of Washington, conducted a lengthy beer-drinking party at his residence on the reservation. On the evening of January 2, 1976, with Dixon Yallup, Edward Ewell, and Lenora James present, appellant brought out a .22 caliber rifle, taking it outside of his residence to shoot at street lights. At one point appellant stated, "Make…