Ninth Circuit Court of Appeals No. 11-30346 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellant, -vs- LAKOTA THOMAS FIRST, Defendant-Appellee. RESPONSE BRIEF OF DEFENDANT-APPELLEE ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA GREAT FALLS DIVISION DISTRICT COURT NO. CR-11-80-GF-SEH HONORABLE SAM E. HADDON UNITED STATES DISTRICT JUDGE ANTHONY R. GALLAGHER Federal Defender, District of Montana *DAVID F. NESS Assistant Federal Defender Federal Defenders of Montana P. O. Box 3547 Great Falls, MT 59403-3547 Telephone: (406) 727-5328 *Counsel for Defendant-Appellee SUBMITTED: June 6, 2012 Case: 11-30346 06/06/2012 ID: 8205160 DktEntry: 11-1 Page: 1 of 43
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Ninth Circuit Court of Appeals No. 11-30346
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
-vs-
LAKOTA THOMAS FIRST,
Defendant-Appellee.
RESPONSE BRIEF OF DEFENDANT-APPELLEE
ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISIONDISTRICT COURT NO. CR-11-80-GF-SEH
HONORABLE SAM E. HADDONUNITED STATES DISTRICT JUDGE
ANTHONY R. GALLAGHERFederal Defender, District of Montana*DAVID F. NESSAssistant Federal DefenderFederal Defenders of MontanaP. O. Box 3547Great Falls, MT 59403-3547Telephone: (406) 727-5328
Llewellyn, Karl N., Remarks on the Theory of Appellate Decision and theRules or Canons about How Statutes Are to Be Construed, 3 Vand. L.Rev. 395, 401 (1950). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Melanie Schneider, The Imprecise Draftsmanship of the LautenbergAmendment and the Resulting Problems for the Judiciary,. . . . . . . . . . . . . . . . . . 20
Lakota First is an enrolled member of the Fort Peck and Assiniboine Tribes.
In December of 2003, he plead guilty to Domestic Abuse in Fort Peck Tribal Court
and was sentenced to serve a 30-day suspended sentence. He was financially unable
to hire a lawyer to represent him in connection with the 2003 tribal court proceedings.
In that year, he had two dependents and an income of $9,381.00 (ER 18-19).
Seven years later, First was arrested by tribal police for DUI. During the
course of the arrest, they allegedly discovered a rifle in the backseat of his car. In
August of 2010, the Government filed an Indictment charging First with illegal
possession of a firearm in violation of 18 U.S.C. § 922(g)(9). Subject to some
important limitations, that are discussed in greater detail below, this provision
prohibits possession of a firearm by “any person . . . who has been convicted in any
court of a misdemeanor crime of domestic violence.” The Indictment read, in
pertinent part, as follows:
That on or about December 14, 2010, at Poplar, in the State and Districtof Montana, the defendant, Lakota Thomas First, having been convictedof a misdemeanor crime of violence, namely the crime of DomesticAbuse in violation of Title VII, Chapter 2, Section 244 in Cause Number3801-03-12, dated December 15, 2003, in Tribal Court of the Fort PeckAssinboine and Sioux Tribes of the Fort Peck Reservation, Poplar,Montana, knowingly possessed a firearm . . . which had been shipped in
In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court held
that the Second Amendment guarantees an individual right to keep and bear arms.
See also, McDonald v. City of Chicago, ___ U.S. ___, 130 S.Ct. 3020 (2010). Under
18 U.S.C. § 922(g)(9), a person who has been convicted of a misdemeanor crime of
violence can lose this constitutional right. This provision makes it unlawful for any
person who has been convicted in any court of a misdemeanor crime of domestic
violence” to, inter alia, “possess in or affecting commerce, any firearm or
ammunition.” The term “misdemeanor crime of violence” is defined at 18 U.S.C. §
921(a)(33) as follows:
(A) [T]he term “misdemeanor crime of domestic violence” means anoffense that
(i) is a misdemeanor under Federal, State, or Tribal law; and
(ii) has, as an element, the use or attempted use of physicalforce, or the threatened use of a deadly weapon, committedby a current or former spouse, parent, or guardian of thevictim, by a person with whom the victim shares a child incommon, by a person who is cohabiting with or hascohabited with the victim as a spouse, parent, or guardian,or by a person similarly situated to a spouse, parent, orguardian of the victim.
Although it is defined somewhat broadly, this term is limited in two important
respects. Helping to insure that those accused of domestic abuse crimes do not lose
their gun rights without adequate due process, § 921(a)(33)(B) excepts those who
were denied counsel or a jury trial (if entitled to one in the prosecuting jurisdiction)
from § 922(g)(9)’s firearm prohibition.
(B)(I) A person shall not be considered to have been convicted of suchan offense for purposes of this chapter, unless –
(I) the person was represented by counsel in the case, orknowingly and intelligently waived the right tocounsel in the case; and
(II) in the case of a prosecution for an offense described in thisparagraph for which a person was entitled to a jury trial inthe jurisdiction in which the case was tried, either
(aa) the case was tried by a jury, or
(bb) the person knowingly and intelligently waived theright to have the case tried by a jury, by guilty pleaor otherwise.
On August 19, 2011, First was charged with having “knowingly possessed a
firearm . . . which had been shipped in interstate and foreign commerce, in violation
of 18 U.S.C. §§ 922(g)(9) and 924(a)(2).” According to the Indictment, he was
prohibited from possessing a firearm because, in December of 2003, he had been
convicted of domestic violence in Fort Peck Tribal Court.
First moved to dismiss the Indictment on the ground that the 2003 tribal
offense did not count as a “conviction” within the meaning of 18 U.S.C. §
921(a)(33)(B) because it was secured without affording him the right to counsel.
Tribal law, he noted, did not provide for court appointed counsel for indigent
defendants in criminal cases. In 2003, when First was convicted, the Fort Peck Code
of Justice provided as follows:
Sec. 501. Rights of defendant in criminal cases.
No person shall twice be put in jeopardy for the same offense, nor shallhe/she be compelled in any criminal case to be a witness againsthimself/herself. The accused shall have the right to a speedy and publictrial, the right to be confronted with witnesses against him/her, the rightto assistance of counsel at his/her own expense and the right to demandtrial by an impartial jury if the offense, or combination of offenses,charged is punishable by imprisonment.3
(emphasis added).
Section 401 of the Code set forth the procedures to be followed during a change of
plea hearing:
Sec. 401. Arraignment.
(c) Before an accused is required to plead to any criminalcharges the judge shall;
(2) Advise the accused that he/she has the right (a) toremain silent, (b) to have a speedy and public trialwhere he/she will be confronted with witnessesagainst him/her after he/she has had sufficient time
3 The Fort Peck Tribal Code has undergone some changes, which appear to bestylistic in nature since 2003. Relevant portions of the Code, which are now in effectare set forth in the Appendix.
to prepare his/her defense if he/she pleads “notguilty,”(c) to be tried by a jury if the offense chargedis punishable by imprisonment, and (d) to berepresented by counsel at his/her own expense,before he/she pleads to the charge.
(e)(2) If the accused pleads “guilty” to the charge, thejudge shall accept the plea only if he/she is satisfiedthat the plea is made voluntarily and the accusedunderstands the consequences of the plea, includingthe rights which he/she is waiving by the plea. Thejudge may then impose..... (emphasis added)
In discovery, the Government provided only two documents from First’s 2003
court proceedings, the final judgment and the complaint. The final judgment states
that First was sentenced to “30 days in jail flat suspended for 120 days probation”.
Neither it or the complaint, however, indicate that First was informed of, much less
given the option to have, appointed counsel. (ER 12-13). Nor is there any evidence
to support a finding that he waived this right.4
Both parties agree that First was indigent and that, had he been prosecuted in
state or federal court, he would have been constitutionally entitled to appointed
counsel. All agree that he was not provided with appointed counsel before entering
his plea. The parties’ dispute centers on the meaning of the term “right to counsel.”
4 According to an “arraignment script” that was submitted to the district courtby the Government, defendants in Fort Peck Tribal Court are generally informed thatthey have “the right to be represented by legal counsel at [their] own expense.”
The Government contends that its meaning should derive from state and local or, in
this case, tribal, standards. First, on the other hand, believes that it should be
measured by a single national standard – that set forth by the federal constitution.
B. Statutory Interpretation
(1) Textual Analysis
Statutory construction begins with the plain, ordinary meaning of the text.
Meaning, however, cannot be divorced from context. A “fundamental principle of
statutory construction (and, indeed, of language itself) [is] that the meaning of a word
cannot be determined in isolation, but must be drawn from the context in which it is
used.” Deal v. United States, 508 U.S. 129, 132 (1993). Absent legislative direction
to the contrary, words used in a technical or legal sense are construed in accord with
their technical meaning unless the statute plainly indicates otherwise. Huffman v.
C.I.R., 978 F.3d 1139 (9th Cir. 1992). As explained by Justice Scalia:
The meaning of a statute’s terms “ought to be determined, not on thebasis of which meaning can be shown to have been understood by alarger handful of the Members of Congress; but rather on the basis ofwhich meaning is (1) most in accord with context and ordinary usage,and thus most likely to have been understood by the whole Congresswhich voted on the words of the statute (not to mention the citizenssubject to it), and (2) most compatible with the surrounding body of lawinto which the provision must be integrated – a compatibility which, bybenign fiction, we assume Congress always has in mind.” Green v.Bock Laundry Mach. Co., 490 U.S. 504, 528 (1989)(Scalia, J.,concurring).
‘Congress includes particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion.’”).
The text of § 921(a)(33)(B)(i)(I), while arguably not crystal clear, is consistent
with an intent by Congress that the term “right to counsel” be construed under a
federal constitutional standard rather than by state or tribal standards. As stated,
federal statutes are usually written to incorporate federal law, § 921(g)(9) is more
easily administered by use of a uniform standard and, while the clause referring to the
right to a jury trial contains an express reference to state law, there is none in the right
to counsel provision. The view that the “right to counsel” should be governed by
tribal law would, moreover, result in disparate treatment not just among those
convicted in tribal court rather than state court, but also among the various Indian
tribes.5 For these reasons, this Court should construe § 921(a)(33)(B)(i)(I) to give the
term “right to counsel” its most natural reading – the definition determined by the
federal constitution. Such a holding would have the added benefit of comporting
with the decisions of other circuits. See, e.g., United States v. Bethurum, 343 F.3d
712, 718 (5th Cir. 2003)(applying federal constitutional standard to the question of
5 As noted, the Flathead Tribal Court, unlike that in Fort Peck, providescounsel for indigent criminal defendants. See, CSKT Ls. Codified, § 1-2-401(s), 2020504(2000).
whether a jury trial was “knowing and intelligent” within meaning of 18 U.S.C. §
921(a)(33)(B)(i)(II)(bb)); United States v. Jennings, 323 F.3d 263, 275-76 (4th Cir.
2003)(same); United States v. Frechette, 456 F.3d 1 (1st Cir. 2006)(same).6
(2) Canons of Construction
“Canons of construction . . . are simply ‘rules of thumb’ which will sometimes
‘help courts determine the meaning of legislation. To apply a canon properly one
must understand its rationale.” Canons, in other words, are “just aids to construction,
not ironclad rules.” See, Varity Corp. V. Howe, 516 U.S. 489 (1996). Although they
can provide an indication to a term’s meaning, they must yield in the presence of
more contrary indications.
The Government relies on several canons of construction to support its
argument. In this regard, it brings to mind Karl Llewellyn’s oft-cited argument that
“[T]here are two opposing canons on almost every point.” Although contradictory,
he argued, “[e]very lawyer must be familiar with them all” because “they are still
6 On page 17 of its opening brief, the Government states that the EighthCircuit, in United States v. Smith, 171 F.3d 617 (8th Cir. 1999), “recognized the rightof counsel referenced in [§ 921(a)(33)(B)(i)(I)] as the right in the prior proceeding,rather than the Sixth Amendment right to counsel.” The Government over reads thiscase. In Smith, the defendant argued that he did not validly waive his right tocounsel. While noting that he had a right to counsel under state law, the Smith courtbased its holding on federal constitutional standards. It rejected the defendant’sargument not for reasons of state law, but because he had no Fifth or SixthAmendment right to counsel in the underlying proceeding. Id. at 622.
needed tools of argument.”7 Professor Llewellyn’s argument is somewhat strained.
But his main point is valid – canons are useless if parties can pick and choose among
them to achieve whatever result is desired.
The Government relies on the maxim that statutes should be read to “avoid
rendering superfluous” any statutory language to support its argument that the words
“in the case” has two different meanings. As it notes, § 921(a)(33)(B)(i)(I) provides
that a prior misdemeanor conviction cannot be used as a predicate for a § 922(g)(9)
offense unless “the person was represented by counsel in the case, or knowingly and
intelligently waived the right to counsel in the case.” The phrase “in the case”, it
argues, must have two different meanings “or it would be superfluous.” The principle
on which the Government relies is sound, but it does not support its interpretive
claim. Use of the word “in the case” may, or may not, be redundant, but it does not
support the Government’s argument, which, it would seem, is contradicted by an
equally correct but opposing canon – that “a term appearing in several places in a
statutory text is generally read the same way each time it appears.” Ratzlaf v. United
States, 510 U.S. 135, 143 (1994).
7 Llewellyn, Karl N., Remarks on the Theory of Appellate Decision and theRules or Canons about How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 401(1950).
what competing values will or will not be sacrificed to the achievement of a particular
objective is the very essence of legislative choice – and it frustrates rather than
effectuates legislative intent to simplistically assume that whatever furthers the
statute’s primary objective must be the law.” Rodriguez v. United States, 480 U.S.
522, 525-26 (1987)(per curiam).
(3) Legislative History
The Government relies extensively on legislative history to support its
argument, especially the statements of § 922(g)(9)’s sponsor, Senator Frank
Lautenberg (D-N.J.). There are those who object to the use of legislative history on
principle.8 But, whatever its merits, the Government’s extensive reliance on
legislative history is particularly inapt in this case. It is undermined by the
controversy surrounding the law itself and the enactment process. As described by
one commentator, “[t]he Domestic Violence Offender Gun Ban is the product of an
aggressive senator, who attached an obscure rider to a desperately-needed
appropriations bill.”9
8 See, e.g., Alex Kozinski, Should Reading Legislative History Be anImpeachable Offense?, 31 Suffolk U. L. Rev. 807 (1998).
9 Melanie Schneider, The Imprecise Draftsmanship of the LautenbergAmendment and the Resulting Problems for the Judiciary, 17 Colum. J. Gender &Law 505, 515 (2008); see also, Kerri Fredheim, Closing the Loopholes in DomesticViolence laws: The Constitutionality of 18 U.S.C. § 922(g)(9), 19 Pace L. Rev. 445
In 1996, the 104th Congress amended the Gun Control Act of 1968 by passing
the Lautenberg Amendment. Named after its sponsor and codified at 18 U.S.C. §
922(g)(9). The Amendment proved to be highly controversial. Although it was
overwhelming approved by the Senate, the bill was heavily criticized, not just
because of its content, but also because it was never debated by the House of
Representatives and because it was part of a huge spending bill that was passed in
order to prevent a government shut-down. According to one description:
Senator Lautenberg authored the Domestic Violence Offender Gun Banand attempted to pass the legislation several times. He originallyintroduced it in March 1996, and after extensive compromise, the Senateadopted the provision as an amendment to an anti-stalking bill. Yetwhen the bill reached the House of Representatives, the House refusedto support it. Senator Lautenberg then sought an alternative route: he re-offered the amendment to be incorporated into the 1997 Treasury, PostalService and General Government appropriations bill. Addressing theSenate on September 12, 1996, he stated: “Since the stalking bill maynot become law, we, therefore, need to pursue another vehicle that hasa realistic chance of being enacted, and this is one of the few suchvehicles remaining.” Republican Senator Trent Lott, who was involvedwith the initial negotiations regarding the language of the bill, removedit from the floor.
During the early morning hours on Saturday, September 28, 1996,Senator Lautenberg initiated his third attempt and ensured that the billwould pass by attaching it to the 1997 Omnibus ConsolidatedAppropriations Act. The “massive federal budget bill” was consideredmust-pass legislation to “prevent [a] government ‘shutdown.’” Thusduring the “feverish last days of the 104th Congress,” Senator
Lautenberg’s amendment passed both houses, and when PresidentClinton signed the omnibus appropriations bill, the Domestic ViolenceOffender Gun Ban finally became law.10
As originally passed, § 922(g)(9) only applied to persons convicted of a
“misdemeanor crime of domestic violence” under state or federal law. But, nine years
later, as part of the Violence Against Women and the Department of Justice
Reauthorization Act of 2005, Congress amended § 921(a)(33)(A)(I) to include tribal
misdemeanors. The 2005 amendment, like the Domestic Violence Offender Gun Ban,
was part of a larger appropriations bill. Among other things, the legislation provided
funding to the Office of the Inspector General to oversee the war on terrorism,
amended the emergency sessions authority for federal courts, and required the
Attorney General to report to Congress on the status of persons detained on suspicion
of terrorism.11 The Act also provided grants to Indian tribes for domestic violence
programs and directed the National Institute of Justice to “conduct a national baseline
study to examine violence against Indian women.”
10 Schneider, supra, note 8, at 510.
11 See, 152 Cong. Rec. E353-01 (March 14, 2006)(statement of Rep. Conyers). According to Representative Conyers’s statement – which is “no doubt” reflective ofthe sense of Congress as a whole – the reporting requirements imposed on theAttorney General were needed because the Department of Justice and its componentshad “abused terrorism suspects, pushing them into walls, leaving them in legal limbo,and depriving them of access to family and counsel.”
In the instant case, First’s 2003 conviction was obtained without affording him
the right to counsel. He was subsequently sentenced to a 30 day suspended sentence.
Under the rationale of Nichols, this conviction cannot be used to prove the elements
of the instant offense because it was obtained in proceedings that do not comport with
the Supreme Court’s decisions in Scott and Shelton.12 To the extent there is any
doubt on this score, the Court should interpret § 921(a)(33) to avoid what is,
undoubtedly, a “serious constitutional question.” DeBartolo Corp. v. Florida Gulf
Coast Trades Council, 485 U.S. 568, 575 (1988).
D. Use of First’s 2003 conviction to establish his guilt of the instantoffense is prohibited by United States v. Ant.
In United States v. Ant, 882 F.2d 1389 (9th Cir. 1989), the defendant was
charged with a tribal offense of assault and battery after confessing to tribal
authorities that he killed his niece. Following his confession, he was taken to tribal
court where he entered a guilty plea. He was later charged in federal court with the
crime of voluntary homicide. He moved to suppress his confession and his tribal
12There may be room to believe that, under Burgett and Nichols, uncounseledtribal conviction can be used to enhance a sentence in a subsequent prosecution. Thatdoes not mean, however, that an uncounseled conviction can used to support guilt foranother offense. See, e.g., United States v. Mendoza-Lopez, 481 U.S. 828, 833(1987). The Supreme Court's decision in Lewis may undercut this position. But,Lewis itself is undercut by District of Columbia vs Heller, 554 U.S. 570 (2008) andSmall v. United States, 544 U.S. 385 (2005).
guilty plea in 2003 and, therefore, the resulting conviction cannot, consistent with the
holding of Ant, be used to establish his guilt of the instant offense.13
VII. CONCLUSION
For all the above reasons, the district court’s order dismissing the Indictment
against First should be affirmed.
RESPECTFULLY SUBMITTED this 6th day of June, 2012
s/David F. Ness DAVID F. NESSAssistant Federal DefenderFederal Defenders of Montana104 Second Street South, Suite 301Great Falls, MT 59401Phone: (406) 727-5328Fax: (406) 727-4329
Counsel for Defendant-Appellee
13Relying on Iowa v. Tovar, 541 U.S. 77 (2004), the Government argues thatthe district incorrectly held “that First had to be told of the advantages anddisadvantages of self-representation in order to intelligently waive his right toCounsel.” Govt. Brief at p. 14 n. 6. First does not read Tovar so broadly. Tovar, theIowa Supreme Court ruled that a trial court must advise a defendant that waivingcounsel entailed the risk that a viable defense will be overlooked and that by waivingthe right to counsel, the defendant would lose the opportunity to obtain an“independent opinion”. United States v. Lenihan, 488 F.3d 1175, 1177 (9th Cir.2007). The Supreme Court held that neither warning was mandated by theConstitution. The Court instructed lower courts to look to the particular facts andcircumstances of a case, “including the defendant’s education or sophistication, thecomplex or easily grasped nature of the charge, and the stage of the proceeding,” todetermine whether a defendant knowingly and intelligently waived counsel. Tovar,541 U.S. at 88.
I hereby certify that this Opening Brief of Defendant-Appellant is in
compliance with Ninth Circuit Rule 32(a). The Brief’s line spacing is double spaced.
The brief is proportionately spaced, the body of the argument has a Times New
Roman typeface, 14 point size and contains less than 14,000 words at an average of
280 words (or less) per page, including footnotes and quotations. (Total number of
words: 7,574 excluding tables and certificates).
DATED this 6th day of June, 2012.
s/David F. Ness DAVID F. NESSAssistant Federal DefenderFederal Defenders of Montana104 Second Street South, Suite 301Great Falls, MT 59401Phone: (406) 727-5328Fax: (406) 727-4329
The undersigned, Counsel of record for the Defendant-Appellant, pursuant to
Rule 28-2.6 of the Rules of the United States Court of Appeals for the Ninth Circuit,
states that, to his knowledge, there are no related cases pending in this Court.
DATED this 6th day of July, 2012.
s/David F. Ness DAVID F. NESSAssistant Federal DefenderFederal Defenders of Montana104 Second Street South, Suite 301Great Falls, MT 59403-3547Phone: (406) 727-5328Fax: (406) 727-4329
Title VI • Criminal Procedures Chapter 4. Armignlllent nnd Release Sec. 401. Arraignment. (a) Arraignment is the bringing of an accused before the Court, informing him/her ofhis/her rights and of the charge against him/her, receiving his/her plea, and setting conditions of pre-triall'elease as appropriate in accordance with this Code. (b) Arraignment shall be held in open court without unnecessary delay after the accused is taken into custody and in no instance shall arraignment be later than the next regular session of Court. (0) Before an accused is required to plead to any criminal charges the judge shall: (1) Read the complaint to the accused and determine that he/she understands the complaint and the Section of the Tribal Code which helshe is charged with violating, including the maximum authorized penalty; and . (2) Advise the accused that he/she has the right (a) to remain silent, (b) to have a speedy and public trial where he/she will be confronted with witnesses against him/her after he/she has had sufficient time to prepare his/her defense if he/she pleads "not guilty," ( c) to be tried by a jury ifthe offense charged is punishable by imprisonment, and (d) to be represented by cOlmsel at his/her own expense, before helshe pleads to the charge. (d) If the arrest was without a wan'ant, and the defendant is to be continued in custody, the judge shall also determine during all'aignment whether there is probable cause to believe that an offense against Tribal law has been committed by the named accused. (e) The judge shall call upon the defendant to plead to the charge: (1) If the accused pleads "not guilty" to the charge, the judge shall then set a trial date and consider conditions for release prior to tdal as provided in Section 402. (2) If the accused pleads "guilty" to the charge, the judge shall accept the plea only if he/she is satisfied that the plea is made voluntarily and the accused understands the consequences of the plea, including the rights which he/she is waiving by the plea. The judge may then impose sentence or defer sentencing for a reasonable time in order to obtain any information he/she deems necessary for the imposition of a just sentence. The accused shall be afforded an opportunity to be heard by the Court prior to sentencing. (3) If the accused refuses to plead, the judge shall enter a plea of "not guilty" on his/her behalf.
Title VI • Criminal Procedures Challter 5. Trial Proceedings Sec. 501. Rights of defendant in criminal cases. No person shall twice be put in jeopardy for the same offense, nor shall he/she be compelled in any criminal case to be a witness against himselflherself. The accused shall have the right to a speedy and public trial, l1le right to be confronted with witnesses against him/her, the right to assistance of counsel at his/her own expense and l1le right to demand trial by an impartial jury if the offense, or combination of offenses, charged is ptmishable by imprisonment.
Title VI • Criminal Procedures Chapter 5, '!rial Proceedings Sec. 506. Trial procedure.
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(a) The time and place of court sessions, the rules of evidence to be followed by the Court and all other details of judicial procedure may be set out in rules of court. (b) The defendant shall be present in court at every stage of the trial, including impaneling the jury, retum of the verdict, and imposition of the sentence. (c) All testimony of witnesses shall be given orally under oath in open court and subject to the right of cross- examination. Documentary and tangible evidence shall also be received in open court and available to the defendant. (d) The defendant is presumed to be innocent. The prosecution has the burden of proving the defendant's guilt beyond a reasonable doubt, including the facts that a crime has actually been committed, and that the defendant committed it with the requisite intent, when intent is an element of the offense. (e) The prosecution shall present its case first, followed by the case of the defendant. If rebuttal is required, the prosecution shall proceed first, followed by the defendant. (f) At the conclusion of the evidence, the prosecution and defendant each in turn shall summarize the proof and malce final argument, with the prosecution having the right of final rebuttal. (g) All records relating to statements or confessions of the defendant, 01' reports of physical, mental, or other scientific tests or examinations relating to or performed on the defendant, when in the possession or control of the Tribes, shall be open to inspection and copying by 11,e defendant. (h) At any time in 11,e trial process, the judge may appoint an interpreter of hislher own selection and may fix the reasonable compensation of such interpreter. An interpreter through whom testimony is communicated shall be put tmder oath to faithfully and accurately translate and commtmicate as reqtlired by the judge.
Title VI " Criminal Procedures Chapter 5. Trial Proceedings Sec. 507. Right to jury trial. (a) Any person accused ofa crime punishable by imprisonment shall be granted a jury trial, upon hislher request made at time of arraignment. Ajury shall consist of at least six (6) members of the Tribe selected at random from a list of eligible jurors prepared each year by the Court. (b) An eligible juror is a tribal member who has reached the age of eighteen (18) years, is of sOlmd mind and discretion, has never been convicted of a felony, is not a member of the Tribal Council, or a judge, officer or employee of the Coult or an employee of the Reservation police force or Reservation jail, and is not otherwise disqualified according to standards established by the Court. (c) A list of at least twenty one (21) resident enrollees of the Tribes who are eligible for jury duty shall be prepared and maintained by the clerk. (d) Under Ule supervision of the presiding judge, a panel of jurors shall be drawn by lot from the jury list. A trial jury shall consist of six (6) qualified jurors selected from a panel oftwelve (12) eligible persons taken from the jury list, none of whom has an interest in the case, or is related as spouse, parent, brother 01' sister to any of the patties or their attorneys. If the jury panel is exhausted before a sufficient number of jurors are selected for the trial jlU'y, additional jurors shall be drawn by lot from the jury list fOl' the paneillUtil a trial jury is selected. (e) The judges of the Court shall have the power to issue subpoenas to compel the attendance of members of the jury panel and of trial jmors. Subpoenas shall be signed by the judge issuing them. (1) The judge assigned to the case shall have the power to excuse persons from jury duty on aCColmt of siclmess, disability or for other good cause. (g) Each party may question members of the panel of prospective jurors for the purpose of selecting a trial jury. (11) In criminal cases, in addition to disqualifying jurors for cause as determined by the judge, the prosecution and the defendant, each side shall be entitled to three (3) peremptory challenges without assigning any cause. Where there is more than one (1) defendant, they must join in a challenge before it can be made unless the Court, for due cause shoWll, shall permit otherwise, or shall permit each defendatlt to exercise two (2) peremptory challenges. (i) Each member of the jury panel called to service and each juror who serves upon a jury shall be entitled to compensation at a rate paid to jurors by Roosevelt County, Montat13, and may, in the discretion of the presiding judge, be allowed mileage at a rate to be fixed by the Court. All payments of per diem and mileage shall be supported by vouchers signed by the presiding judge. Such vouchers shall be paid in order of presentation, from available f1.mcJs on deposit for the purpose. G) The judge shall instruct the jury with regard to the applicable law and the jmy shall decide all questions of fact on the basis of that law. At the close of evidellce or at such earlier time during the trial as the judge directs, atly patty may file with the judge written instructions on the law which the party requests the judge to deliver orally to the jlU'y. At tlle same time copies of such requests shall be furnished to the opposing party. The judge shall inform each patty of hislher proposed action upon each request prior to the arguments to the jury, but the judge shall deliver his/her instructions to the jmy afiel' arguments al'e completed. No party may assign as erl'Ol' any portion of the judge's chat'ge or any omission
unless he/she makes his/her objection and reasons for it before the jury retires to consider its verdict. Opportunity shall be given to make the objection out oftbe hearing of the jury. (k) After deliberation in private, the jlll'Y in criminal cases shall return to the judge in open court a verdict of "Guilty" or "Not Guilty" with respect to each defendant. A verdict in criminal cases shal1 be rendered by a five-sixths (5/6) majority of the jury. (AMENDED AS PER RESOLUTION NO. 739.2002.7, DATED 07/08/02).