United States v. Bryant

Issues 

Can the Government constitutionally rely on tribal court convictions that fail to satisfy the Sixth Amendment for purposes of proving the predicate offense requirement under 18 U.S.C. 117(a)?

Oral argument: 
April 19, 2016

 

This case provides the Supreme Court with the opportunity to determine whether the United States Government ("Government") can use uncounseled tribal court convictions to satisfy the predicate offense requirement outlined in 18 U.S.C. § 117(a). Section 117(a) is a domestic assault statute under which the Government may prosecute a person who has committed sexual assault within the U.S. or Indian country and who has already been twice convicted in State, Federal, or Indian court, of assault against a spouse or intimate partner. The Government argues that it may use Bryant’s prior convictions in his § 117 prosecution because the convictions did not violate the U.S. Constitution but were instead obtained on tribal lands where the Constitution is inapplicable. The Government further argues that using the convictions would not violate due process because the statute passes the rational-basis standard of review and is consistent with the principles of comity. Bryant counters, arguing that the Court’s precedent establishes a bright-line rule that invalidates convictions obtained in a manner that violates the Constitution, including Bryant’s convictions here, and that the Government’s reading of Court precedent is overly broad. Bryant further contends that allowing these convictions would lead to either admittance of an abundance of suspect convictions or a complex process requiring courts to determine the validity of each conviction. The Supreme Court’s resolution of this case will significantly impact the validity of tribal court judgments for purposes of predicate-offense crimes as well as the ability of prosecutors to prevent domestic abuse crimes in Indian Country.

Questions as Framed for the Court by the Parties 

Section 117(a) of Title 18 of the United States Code makes it a federal crime for any person to “commit[] a domestic assault within the special maritime and terri-torial jurisdiction of the United States or Indian coun-try” if the person “has a final conviction on at least 2 separate prior occasions in Federal, State, or Indian tribal court proceedings for” enumerated domestic-violence offenses. 18 U.S.C. 117(a) (Supp. II 2014). The question presented is:

Does the reliance on valid, uncounseled tribal-court misdemeanor convictions to prove Section 117(a)’s predicate-offense element violate the Constitution?

Facts 

In 2011, Michael Bryant, Jr. was charged with violating 18 U.S.C. § 117(a), which involves the offense of domestic assault by a habitual offender. See United States v. Bryant, 769 F.3d 671, 673–74 (9th Cir. 2014); 18 U.S.C. § 117(a). Section 117(a) applies to persons who have committed sexual assault within the U.S. or Indian country and have already been twice convicted in State, Federal, or Indian court, of assault against a spouse or intimate partner. See 18 U.S.C. § 117(a). Count I of the indictment charged Bryant with assaulting his previous girlfriend in February 2011 and Count II charged Bryant with assaulting his current girlfriend in May of the same year. See United States v. Bryant, 769 F.3d at 673. Both counts asserted that, at the time of the assault, Bryant had been convicted twice of at least two former domestic assaults. See id. The Northern Cheyenne Tribal Court convicted Bryant of the prior domestic assault charges at issue in the lower court. See id.

Bryant filed a motion to dismiss in the District Court for the District of Montana, arguing that the use of his tribal court convictions for purposes of § 117(a) violated his rights under both the Fifth and Sixth Amendments. See id. First, Bryant argued that he lacked the assistance of counsel during the prior proceedings in tribal court. See id. Second, Bryant argued that Indians are the only group against which a prior conviction that does not meet the requirements of the Sixth Amendment may be used for purposes of § 117(a). See id. 

The government conceded that Bryant did not have the assistance of counsel in the Northern Cheyenne Tribal Court and also that his prior convictions did not pass constitutional muster under the Sixth Amendment. See id. Nevertheless, the District Court denied Bryant’s motion to dismiss. See id. Bryant pled guilty, but preserved his right to appeal the District Court’s ruling on the motion to dismiss. See id.

Bryant appealed to the United States Court of Appeals for the Ninth CircuitSee id. at 671. The Court of Appeals agreed with Bryant that, had the tribal court convictions been obtained in state or federal court, they would have violated the Sixth Amendment. See id. at 675. Next, the Court of Appeals held that in order for the government to use prior convictions to satisfy §117(a), the tribal court must have afforded the defendant a right to counsel that is in line with the Sixth Amendment. See id. at 679. As a result, because the tribal court convictions would not have satisfied the Sixth Amendment, the District Court improperly relied on those convictions for purposes of §117(a). See id. Consequently, the Court of Appeals reversed the District Court and dismissed the charges against Bryant. See id.

The government filed a petition for rehearing, which was denied on July 6, 2015. See Petition for a Writ of Certiorari at 1. The government then filed a writ of certiorari with the United States Supreme Court on October 5, 2015, and the Court granted the petition on December 14, 2015. See generally id.   

Analysis 

This case presents the Supreme Court with the opportunity to determine if the Government can constitutionally rely upon uncounseled misdemeanor convictions to satisfy the predicate-offense element of 18 U.S.C. § 117(a)See United States v. Bryant, 769 F.3d 671, 673–74 (9th Cir. 2014). The Government argues that Bryant’s prior convictions can be used in his § 117(a) prosecution because the convictions did not violate the Constitution as they were obtained on tribal lands where the Constitution does not apply. See Brief for Petitioner, United States at 28­–29. The Government further argues that allowing the use of these prior convictions is better policy and that not doing so would lead to incongruous results. See id. at 40, 42, 52.  Additionally, according to the Government, using the convictions would not violate due process because the statute passes the rational-basis standard of review and is consistent with the principles of comitySee id. Bryant counters, arguing that the Court’s precedent establishes a bright-line rule—the Sixth Amendment mandates that a defendant has a right to counsel in any case where the defendant faces a sentence of imprisonment—and that the Government’s reading of Court precedent is overly broad. See Brief for Respondent, Michael Bryant, Jr. at 12–13, 19. Bryant further contends that allowing these convictions would lead to either admittance of an abundance of suspect convictions or a complex process requiring courts to determine the validity of each conviction. See id. at 27–29. Finally, Bryant argues that admitting uncounseled convictions violates Due Process, given the importance of the right to counsel in the American justice system, and, further, that principles of comity are granted contingent on the foreign tribunal preserving a level of due process, and, thus, the Court should not apply comity here. See id. at 48, 50.

THE SIXTH AMENDMENT AND SUPREME COURT PRECEDENT

The Government argues that Bryant’s conviction under 18 U.S.C. § 117(a) is constitutionally admissible because the relevant question in this case concerns whether the prior convictions violated the Sixth Amendment, not whether Bryant did not have counsel at the prior proceeding. See Brief for Petitioner at 28. According to the Government, if Bryant’s convictions did not violate the Sixth Amendment, they can be used in a later prosecution. See id. The Government further argues that Bryant’s convictions did not violate the Sixth Amendment because they were obtained by Indian tribal governments which are not subject to the Sixth Amendment. See id. at 28–29. The Government asserts that the Court’s holdings in Burgett v. Texas, 389 U.S. 109 (1967), and Nichols v. United States, 511 U.S. 738 (1994) are particularly relevant here.  See Brief for Petitioner at 29; see also Nichols v. United States, 511 U.S. 738 (1994); Burgett v. Texas, 389 U.S. 109 (1967). The Government argues that Burgett, which held that a prior, uncounseled conviction obtained in violation of the Sixth Amendment right to counsel could not be used in a later prosecution, does not bar the use of the convictions here because the Sixth Amendment was never violated in the first place. See Brief for Petitioner at 22, 29. Instead, according to the Government, the convictions were obtained outside of the Sixth Amendment’s jurisdiction. See id. at 29. The Government asserts that the Court should instead follow Nichols, which held that a prior, uncounseled misdemeanor conviction carrying no term of imprisonment could be used in a later prosecution for a crime carrying a term of imprisonment, thus making Bryant’s tribal-court convictions valid and permissible for use in his § 117(a) prosecution. See id. at 24, 29. The Government also contends that the Ninth Circuit’s reasoning was erroneous because it was based on now-overruled Supreme Court case law and that the Ninth Circuit misapplied NicholsSee id. at 30–32. The Government argues that Bryant’s prior convictions conform with the Sixth Amendment, as the defendant’s prior convictions did in Nichols, because the Sixth Amendment did not apply to the prior convictions. See id. at 32.

Bryant asserts that the Court’s precedent establishes a bright-line rule: the Sixth Amendment mandates that a defendant has a right to counsel in any case where the defendant faces a sentence of imprisonment. See Brief for Respondent at 12–13. Bryant further argues that, in accordance with this rule, the holding in Burgett is controlling here: relying on a conviction obtained in violation of the Sixth Amendment to support another conviction is unconstitutional. See id. at 13. Bryant also contends that the Nichols holding was narrow and does not apply here. See id. at 19. In Nichols, according to Bryant, the Court allowed the use of a prior, uncounseled conviction to be used during the sentencing phase of a subsequent prosecution, not during the guilt phase as Bryant’s prior convictions were used here. See id. Bryant argues that Supreme Court case law succeeding Nichols supports the proposition that use of a prior conviction during sentencing is fundamentally different than using it to establish an element of the underlying crime, specifically noting that the Court has tended to freely admit evidence of prior convictions, primarily because the Court could assume that they were obtained constitutionally. See id. at 24–26. Thus, Bryant argues, because Bryant’s convictions were not obtained via a process adhering to all of the constitutional safeguards and are being used to prove an element of the crime and not merely as a sentencing factor, the convictions are not subject to the deferential analysis underlying NicholsSee id. at 26, 31. Bryant asserts that the Ninthircuit's reasoning was correct where it determined that, because Bryant’s prior convictions would have been invalid in federal or state court due to his lack of counsel, the use of Bryant’s convictions as the elements of a crime in federal court violates the Sixth Amendment. See id. at 36–37.

DUE PROCESS CONCERNS AND COMITY

The Government argues that § 117(a) does not violate Due Process because the statute passes rational-basis review, where defining a crime in part on a defendant’s status as a prior criminal offender does not enter upon any “constitutionally suspect criteria,” and Congress rationally chose to target prior criminal offenders in attempting to curb violence in Indian territories. See Brief for Petitioner at 42­–43. The Government further argues that Congress rationally chose to target both offenders who had counseled and uncounseled prior convictions because only targeting prior criminal offenders who had counseled convictions would have been ineffective in addressing the many offenders prosecuted on Indian lands. See id. at 47. The Government contends that Congress’s ability to exclude a right to counsel is strengthened by principles of comity, asserting that judgments of Indian tribes warrant the same deference as those of any foreign tribunal, and foreign judgments often receive recognition despite some foreign tribunals having fewer procedural protections than those offered in the United States. See id. at 52–53.

Bryant counters that the Government’s Due Process arguments are misguided and untimely because Bryant did not make a separate Due Process argument in his motion to dismiss in District Court but merely included those arguments with his Sixth Amendment arguments. See Brief for Respondent at 38­–39. Thus, Bryant argues, the Ninth Circuit never had the opportunity to address these arguments and, consequently, the Supreme Court must remand for a decision on the Due Process issue before reaching a judgment. See id. at 38­–40. Bryant also argues that, if the Court were to reach the Due Process issue, the use of a prior, uncounseled conviction as an element of a crime offends Due Process because the right to counsel is an integral part of Due Process. See id. at 48. Bryant further argues that the use of uncounseled convictions dilutes the reasonable-doubt standard that, according to Bryant, is an essential element of the American justice system. See id. Finally, Bryant argues that comity is optional and is contingent on the foreign tribunal adhering to principles of Due Process, and that the lack of the right to counsel is a sufficient reason to withhold applying comity. See id. at 50­–51.

Discussion 

This case presents the Supreme Court with the opportunity to determine the constitutionality of relying on uncounseled tribal court convictions to satisfy 18 U.S.C. § 117(a)’s prior offense requirement. See Brief for Petitioner, United States at 19; Brief for Respondent, Michael Bryant Jr. at 8. The Supreme Court’s resolution of this case will significantly impact the validity of tribal court judgments for purposes of predicate-offense crimes as well as the ability of prosecutors to prevent domestic abuse crimes in Indian Country. See Brief of Amici Curiae Dennis K. Burke, Former United States Attorney, District of Arizona, et al., in Support of Petitioner at 5.

PREVENTING SERIOUS DOMESTIC VIOLENCE CRIMES IN INDIAN COUNTRY

The Government and supporting amici fear that the Ninth Circuit’s decision to disallow uncounseled tribal court convictions to satisfy § 117(a)’s predicate-offense requirement will tie federal prosecutors’ hands in attempting to prevent serious domestic abuse crimes in Indian Country. See Brief of Amici Curiae Dennis K. Burke, Former United States Attorney, District of Arizona, et al., in Support of Petitioner at 5. A group of former United States Attorneys argues that domestic abuse offenders have extremely high recidivism rates and are more likely than other types of criminals to reoffend. See id. Additionally, they note that, for this class of crime, the severity of the violence usually increases with each subsequent offense. See id. at 7. Accordingly, amici contend that § 117(a) is an important way for prosecutors to increase the level of punishment to match the escalating nature of violence present in cases of repeat offenders. See id. at 9. Amici argue that if the Court finds that § 117(a) is inapplicable to uncounseled tribal court convictions, federal prosecutors would be deprived of one of their most valuable tools in the fight against domestic violence. See id. at 10.

Amici supporting Bryant counter, arguing that even if uncounseled tribal convictions are held to not satisfy § 117(a)’s predicate-offense requirement, this will not seriously undermine the objective of preventing domestic violence crimes in Indian Country. See Brief of Amici Curiae Criminal Justice Organizations and Scholars, in Support of Respondent at 10. Amici argue that prosecutors and tribal courts have other tools at their disposal to combat domestic violence. See id. For example, they state that the Violence Against Women Act of 2013 gave tribes “special domestic violence jurisdiction” over domestic abusers and that Congress has appropriated funds to the Attorney General for the express purpose of improving tribal prosecution proceedings. See id. at 10, n.2. Finally, amici contend that it would be unfair to Indian defendants to make them face the risk of long prison sentences based on uncounseled tribal court convictions for crimes they might not have committed. See id. at 11. Amici assert that because many Indians are poor or illiterate, they are especially disadvantaged by the lack of counsel during their tribal-court prosecutions. See id.

CONGRESSIONAL INTENT AND THE SAFETY OF WOMEN IN INDIAN COUNTRY

The government and supporting amici contend that one of the driving forces behind Congress’s enactment of 18 U.S.C. § 117(a) was the intent to provide protection against domestic violence for Indian women who would otherwise not receive it. See Brief of Amici Curiae National Indigenous Women’s Resource Center, et al. ("Center"), in Support of Petitioner at 19. The National Indigenous Women's Resource Center ("Center") worries that, if the Court upholds the Ninth Circuit’s decision, Indian women would be placed in grave danger from repeat offenders of domestic violence. See id. at 33–34. The former U.S. Attorneys maintain that if prior uncounseled tribal court convictions are unable to satisfy § 117(a), protections for domestic violence victims in Indian country would be severely weakened. See Brief of Amicus Curiae Dennis K. Burke, Former United States Attorney, District of Arizona, et al. at 10.

Criminal Justice Organizations and Scholars in support of Bryant argue, however, that the Supreme Court’s precedent presumes that in passing laws, Congress does not intend to raise “serious constitutional doubts.” See Brief of Criminal Justice Organizations and Scholars at 7–8. Amici for Bryant contend that allowing uncounseled tribal court convictions to satisfy § 117(a)’s predicate-offense requirement would raise Sixth Amendment and due process doubts of the kind that this canon of statutory interpretation is meant to prevent. See id. at 8.  They argue that although Congress intended to protect women in Indian Country from domestic abuse, Congress did not intend to do so by punishing defendants on the basis of uncounseled convictions. See id. at 10. Professor Barbara L. Creel and the Tribal Defender Network further maintain that allowing the use of prior uncounseled tribal court convictions will exacerbate the gap in the legal landscape with respect to American Indians, and will subject them to unconstitutional convictions. See Brief for Professor Barbara L. Creel and the Tribal Defender Network, in Support of Respondent at 13. Additionally, the Citizens Equal Rights Foundation argues that allowing uncounseled tribal court convictions to satisfy § 117(a)’s predicate offense requirement would blatantly deny equal protection under the law to American Indians. See Brief for Citizens Equal Rights Foundation, in Support of Respondent at 15.

Conclusion 

This case presents the Supreme Court with the opportunity to determine if uncounseled misdemeanor convictions can be constitutionally relied upon to satisfy the predicate-offense element of 18 U.S.C. § 117(a), which provides for the prosecution of habitual offenders of domestic assault. The Government argues that because the Constitution does not apply on Indian lands, it may use Bryant's prior convictions against him under § 117(a), even though he lacked counsel during those prior convictions. Bryant counters that a bright-line rule exists which prohibits the use of convictions which were obtained in violation of the Sixth Amendment in a subsequent prosecution. The Supreme Court’s resolution of this case could significantly impact the validity of tribal court judgments for purposes of predicate-offense crimes as well as the ability of prosecutors to prevent domestic abuse crimes in Indian Country.

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Additional Resources 

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