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United States v. Bryant

United States Supreme Court

June 13, 2016

UNITED STATES, PETITIONER
v.
MICHAEL BRYANT

          Argued April 19, 2016

         ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

         In response to the high incidence of domestic violence against Native American women, Congress enacted a felony offense of domestic assault in Indian country by a habitual offender. 18 U.S.C. §117(a). Section 117(a)(1) provides that any person who "commits a domestic assault within . . . Indian country" and who has at least two prior final convictions for domestic violence rendered "in Federal, State, or Indian tribal court proceedings . . . shall be fined . . ., imprisoned for a term of not more than 5 years, or both . . . ." Having two prior tribal-court convictions for domestic violence crimes is thus a predicate of the new offense.

         This case raises the question whether §117(a)'s inclusion of tribal-court convictions as predicate offenses is compatible with the Sixth Amendment's right to counsel. The Sixth Amendment guarantees indigent defendants appointed counsel in any state or federal criminal proceeding in which a term of imprisonment is imposed, Scott v. Illinois, 440 U.S. 367, 373–374, but it does not apply in tribal-court proceedings, see Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 337. The Indian Civil Rights Act of 1968 (ICRA), which governs tribal-court proceedings, accords a range of procedural safeguards to tribal-court defendants "similar, but not identical, to those contained in the Bill of Rights and the Fourteenth Amendment, " Santa Clara Pueblo v. Martinez, 436 U.S. 49, 57. In particular, ICRA provides indigent defendants with a right to appointed counsel only for sentences exceeding one year. 25 U.S.C. §1302(c)(2). ICRA's right to counsel therefore is not coextensive with the Sixth Amendment right.

         This Court has held that a conviction obtained in state or federal court in violation of a defendant's Sixth Amendment right to counsel cannot be used in a subsequent proceeding "to support guilt or enhance punishment for another offense." Burgett v. Texas, 389 U.S. 109, 115. Use of a constitutionally infirm conviction would cause "the accused in effect [to] suffe[r] anew from the [prior] deprivation of [his] Sixth Amendment right." Ibid. Burgett's principle was limited by the Court's holding in Nichols v. United States, 511 U.S. 738, that "an uncounseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction, " id., at 748–749.

         Respondent Michael Bryant, Jr., has multiple tribal-court convictions for domestic assault. When convicted, Bryant was indigent and was not appointed counsel. For most of his convictions, he was sentenced to terms of imprisonment not exceeding one year's duration. Because of his short prison terms, the prior tribal-court proceedings complied with ICRA, and his convictions were therefore valid when entered. Based on domestic assaults he committed in 2011, Bryant was indicted on two counts of domestic assault by a habitual offender, in violation of §117(a). Represented in federal court by appointed counsel, he contended that the Sixth Amendment precluded use of his prior, uncounseled, tribal-court misdemeanor convictions to satisfy §117(a)'s predicate-offense element and moved to dismiss the indictment. The District Court denied the motion; Bryant pleaded guilty, reserving the right to appeal. The Ninth Circuit reversed the conviction and directed dismissal of the indictment. It comprehended that Bryant's uncounseled tribal-court convictions were valid when entered because the Sixth Amendment right to counsel does not apply in tribal-court proceedings. It held, however, that Bryant's tribal-court convictions could not be used as predicate convictions within §117(a)'s compass because they would have violated the Sixth Amendment had they been rendered in state or federal court.

         Held:

Because Bryant's tribal-court convictions occurred in proceedings that complied with ICRA and were therefore valid when entered, use of those convictions as predicate offenses in a §117(a) prosecution does not violate the Constitution.

Nichols instructs that convictions valid when entered retain that status when invoked in a subsequent proceeding. Nichols reasoned that "[e]nhancement statutes . . . do not change the penalty imposed for the earlier conviction"; rather, repeat-offender laws "penaliz[e] only the last offense committed by the defendant." 511 U.S., at 747. Bryant's sentence for violating §117(a) punishes his most recent acts of domestic assault, not his prior crimes prosecuted in tribal court. He was denied no right to counsel in tribal court, and his Sixth Amendment right was honored in federal court. Bryant acknowledges that Nichols would have allowed reliance on uncounseled tribal court convictions resulting in fines to satisfy §117(a)'s prior-crimes predicate. But there is no cause to distinguish for §117(a) purposes between fine-only tribal-court convictions and valid but uncounseled tribal-court convictions resulting in imprisonment for a term not exceeding one year. Neither violates the Sixth Amendment. Bryant is not aided by Burgett. A defendant convicted in tribal court suffered no Sixth Amendment violation in the first instance, so he cannot "suf-fe[r] anew" from a prior deprivation in his federal prosecution.

Bryant also invokes the Due Process Clause of the Fifth Amendment to support his assertion that tribal-court judgments should not be used as predicate offenses under §117(a). ICRA, however, guarantees "due process of law, " accords other procedural safeguards, and permits a prisoner to challenge the fundamental fairness of tribal court proceedings in federal habeas corpus proceedings. Because proceedings in compliance with ICRA sufficiently ensure the reliability of tribal-court convictions, the use of those convictions in a federal prosecution does not violate a defendant's due process right. Pp. 12– 16.

769 F.3d 671, reversed and remanded.

          Ginsburg, J., delivered the opinion for a unanimous Court. Thomas, J., filed a concurring opinion.

          OPINION

          GINSBURG JUSTICE

         In response to the high incidence of domestic violence against Native American women, Congress, in 2005, enacted 18 U.S.C. §117(a), which targets serial offenders. Section 117(a) makes it a federal crime for any person to "commi[t] a domestic assault within . . . Indian country" if the person has at least two prior final convictions for domestic violence rendered "in Federal, State, or Indian tribal court proceedings." See Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA Reauthorization Act), Pub. L. 109-162, §§901, 909, 119 Stat. 3077, 3084.[1] Respondent Michael Bryant, Jr., has multiple tribal-court convictions for domestic assault. For most of those convictions, he was sentenced to terms of imprisonment, none of them exceeding one year's duration. His tribal-court convictions do not count for § 117(a) purposes, Bryant maintains, because he was uncounseled in those proceedings.

         The Sixth Amendment guarantees indigent defendants, in state and federal criminal proceedings, appointed counsel in any case in which a term of imprisonment is imposed. Scott v. Illinois, 440 U.S. 367, 373-374 (1979). But the Sixth Amendment does not apply to tribal-court proceedings. See Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 337 (2008). The Indian Civil Rights Act of 1968 (ICRA), Pub. L. 90-284, 82 Stat. 77, 25 U.S.C. §1301 etseq., which governs criminal proceedings in tribal courts, requires appointed counsel only when a sentence of more than one year's imprisonment is imposed. § 1302(c)(2). Bryant's tribal-court convictions, it is undisputed, were valid when entered. This case presents the question whether those convictions, though uncounseled, rank as predicate offenses within the compass of §117(a). Our answer is yes. Bryant's tribal-court convictions did not violate the Sixth Amendment when obtained, and they retain their validity when invoked in a § 117(a) prosecution. That proceeding generates no Sixth Amendment defect where none previously existed.

         I

         A

         "[C]ompared to all other groups in the United States, " Native American women "experience the highest rates of domestic violence." 151 Cong. Rec. 9061 (2005) (remarks of Sen. McCain). According to the Centers for Disease Control and Prevention, as many as 46% of American Indian and Alaska Native women have been victims of physical violence by an intimate partner. Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, M. Black et al., National Intimate Partner and Sexual Violence Survey 2010 Summary Report 40 (2011) (Table 4.3), online at http://www.cdc.gov/ ViolencePrevention/pdf/NISVS_report2010-a.pdf (all Internet materials as last visited June 9, 2016). 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." Dept. of Justice, Attorney General's Advisory Committee on American Indian and Alaska Native Children Exposed to Violence, Ending Violence So Children Can Thrive 38 (Nov. 2014), online at https:// www.justice.gov /sites /default/files/defendingchildhood/ pages/attachments/2015/03/23/ending_violence_so_children_ can_thrive.pdf. American Indian women experience battery "at a rate of 23.2 per 1, 000, compared with 8 per 1, 000 among Caucasian women, " and they "experience 7 sexual assaults per 1, 000, compared with 4 per 1, 000 among Black Americans, 3 per 1, 000 among Caucasians, 2 per 1, 000 among Hispanic women, and 1 per 1, 000 among Asian women." VAWA Reauthorization Act, §901, 119 Stat. 3077.

         As this Court has noted, domestic abusers exhibit high rates of recidivism, and their violence "often escalates in severity over time." United States v. Castleman, 572 U.S. ___, ___ (2014) (slip op., at 2). Nationwide, over 75% of female victims of intimate partner violence have been previously victimized by the same offender, Dept. of Justice, Bureau of Justice Statistics, S. Catalano, Intimate Partner Violence 1993–2010, p. 4 (rev. 2015) (Figure 4), online at http://www.bjs.gov/content/pub/pdf/ipv9310.pdf, often multiple times, Dept. of Justice, National Institute of Justice, P. Tjaden & N. Thoennes, Extent, Nature, and Consequences of Intimate Partner Violence, p. iv (2000), online at https://www.ncjrs.gov/pdffiles1/nij/181867.pdf ("[W]omen who were physically assaulted by an intimate partner averaged 6.9 physical assaults by the same partner."). Incidents of repeating, escalating abuse more than occasionally culminate in a fatal attack. See VAWA Reau-thorization Act, §901, 119 Stat. 3077–3078 ("[D]uring the period 1979 through 1992, homicide was the third leading cause of death of Indian females aged 15 to 34, and 75 percent were killed by family members or acquaintances.").

         The "complex patchwork of federal, state, and tribal law" governing Indian country, Duro v. Reina, 495 U.S. 676, 680, n. 1 (1990), has made it difficult to stem the tide of domestic violence experienced by Native American women. Although tribal courts may enforce the tribe's criminal laws against Indian defendants, Congress has curbed tribal courts' sentencing authority. At the time of §117(a)'s passage, ICRA limited sentences in tribal court to a maximum of one year's imprisonment. 25 U.S.C. §1302(a)(7) (2006 ed.).[2] Congress has since expanded tribal courts' sentencing authority, allowing them to impose up to three years' imprisonment, contingent on adoption of additional procedural safeguards. 124 Stat. 2279– 2280 (codified at 25 U.S.C. §1302(a)(7)(C), (c)).[3] To date, however, few tribes have employed this enhanced sentencing authority. See Tribal Law and Policy Inst., Implementation Chart: VAWA Enhanced Jurisdiction and TLOA Enhanced Sentencing, online at http://www.tribal-institute.org/ download/VAWA/VAWAImplementationChart.pdf.[4]

         States are unable or unwilling to fill the enforcement gap. Most States lack jurisdiction over crimes committed in Indian country against Indian victims. See United States v. John, 437 U.S. 634, 651 (1978). In 1953, Congress increased the potential for state action by giving six States "jurisdiction over specified areas of Indian country within the States and provid[ing] for the [voluntary] assumption of jurisdiction by other States." California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987) (footnote omitted). See Act of Aug. 15, 1953, Pub. L. 280, 67 Stat. 588 (codified, as amended, at 18 U.S.C. §1162 and 25 U.S.C. §§1321–1328, 1360). States so empowered may apply their own criminal laws to "offenses committed by or against Indians within all Indian country within the State." Cabazon Band of Mission Indians, 480 U.S., at 207; see 18 U.S.C. §1162(a). Even when capable of exercising jurisdiction, however, States have not devoted their limited criminal justice resources to crimes committed in Indian country. Jimenez & Song, Concurrent Tribal and State Jurisdiction Under Public Law 280, 47 Am. U. L. Rev. 1627, 1636–1637 (1998); Tribal Law and Policy Inst., S. Deer, C. Goldberg, H. Valdez Singleton, & M. White Eagle, Final Report: Focus Group on Public Law 280 and the Sexual Assault of Native Women 7–8 (2007), online at http://www.tribal-institute.org/download/Final %20280%20FG%20Report.pdf.

         That leaves the Federal Government. Although federal law generally governs in Indian country, Congress has long excluded from federal-court jurisdiction crimes committed by an Indian against another Indian. 18 U.S.C. §1152; see Ex parte Crow Dog, 109 U.S. 556, 572 (1883) (requiring "a clear expression of the intention of Congress" to confer federal jurisdiction over crimes committed by an Indian against another Indian). In the Major Crimes Act, Congress authorized federal jurisdiction over enumerated grave criminal offenses when both perpetrator and victim are Indians, including murder, manslaughter, and felony assault. §1153. At the time of §117(a)'s enactment, felony assault subject to federal prosecution required "serious bodily injury, " §113(a)(6) (2006 ed.), meaning "a substantial risk of death, " "extreme physical pain, " "protracted and obvious disfigurement, " or "protracted loss or impairment of the function of a bodily member, organ, or mental faculty." §1365(h)(3) (incorporated through §113(b)(2)).[5]In short, when §117(a) was before Congress, Indian perpetrators of domestic violence "escape[d] felony charges until they seriously injure[d] or kill[ed] someone." 151 Cong. Rec. 9062 (2005) (remarks of Sen. McCain).

         As a result of the limitations on tribal, state, and federal jurisdiction in Indian country, serial domestic violence offenders, prior to the enactment of §117(a), faced at most a year's imprisonment per offense-a sentence insufficient to deter repeated and escalating abuse. To ratchet up the punishment of serial offenders, Congress created the federal felony offense of domestic assault in Indian country by a habitual offender. §117(a) (2012 ed.); see No. 12– 30177 (CA9, July 6, 2015), App. to Pet. for Cert. 41a (Owens, J., dissenting from denial of rehearing en banc) ("Tailored to the unique problems . . . that American Indian and Alaska Native Tribes face, §117(a) provides felony-level punishment for serial domestic violence offenders, and it represents the first true effort to remove these recidivists from the communities that they repeatedly terrorize."). The section provides in pertinent part:

"Any person who commits a domestic assault within . . . Indian country and 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 any assault, sexual abuse, or serious violent felony against a spouse or intimate partner . . . shall be fined . . ., ...

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