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United States v. First

United States Court of Appeals, Ninth Circuit

October 1, 2013

UNITED STATES of America, Plaintiff-Appellant,
Lakota Thomas FIRST, Defendant-Appellee.

Argued and Submitted Nov. 8, 2012.

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[Copyrighted Material Omitted]

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Michael W. Cotter, United States Attorney, J. Bishop Grewell (argued), Assistant United States Attorney, Billings, MT, for Plaintiff-Appellant.

Anthony R. Gallagher, Federal Defender, District of Montana, David F. Ness (argued), Assistant Federal Defender, Great Falls, MT, for Defendant-Appellee.

Appeal from the United States District Court for the District of Montana, Sam E. Haddon, District Judge, Presiding. D.C. No. 4:11-cr-00080-SEH-1.



PAEZ, Circuit Judge:

Lakota Thomas First was indicted as a misdemeanant in possession of a firearm under 18 U.S.C. § 922(g)(9), which makes

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it unlawful for a person convicted of a " misdemeanor crime of domestic violence" to possess a firearm. The district court dismissed the indictment because First was not provided with appointed counsel pursuant to the Sixth Amendment at his underlying misdemeanor domestic violence proceeding in tribal court. The government appealed. Interpreting 18 U.S.C. § 921(a)(33) (defining " misdemeanor crime of domestic violence" ), we hold that the statute's " right to counsel" provision, id. § 921(a)(33)(B)(i)(I), refers to the right to counsel that existed in the predicate misdemeanor proceeding— not to a uniform federal right to counsel. First was convicted of a misdemeanor crime of domestic violence in tribal court, where he had the right to retain counsel at his own expense but lacked a Sixth Amendment right to appointed counsel. Because First was not denied his right to counsel as it existed in the tribal court misdemeanor proceeding, we hold that his resulting conviction could properly serve as a predicate to a § 922(g)(9) prosecution. We further hold that this result does not violate the Sixth Amendment, the Due Process Clause of the Fifth Amendment, or the Equal Protection Clause of the Fourteenth Amendment.


In 2003, First, an Indian, was charged in the Fort Peck Tribal Court in Montana for misdemeanor domestic abuse in violation of the governing tribal law. See Fort Peck Tribes Comprehensive Code of Justice (" CCOJ" ), tit. VII, § 244 (2003).[1] The statute of prosecution authorized a maximum penalty of three months imprisonment and a $500 fine. Id. § 501(2). First appeared before a judge in Fort Peck Tribal Court and pleaded guilty. The judge sentenced First to thirty days in jail, " suspended for 120 days probation." At the time of his guilty plea, First was indigent and could not afford a lawyer. He was not offered the assistance of court-appointed counsel.[2]

In August 2011, the government indicted First for one count of violating 18 U.S.C. § 922(g)(9) for possessing a firearm after having been convicted of the 2003 misdemeanor crime of domestic violence. First moved to dismiss the indictment because he had not been represented by counsel nor had he waived his right to appointed counsel in the 2003 tribal court proceeding. For the purpose of a § 922(g)(9) prosecution, " [a] person shall not be considered to have been convicted" of a " misdemeanor crime of domestic violence" unless " the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case." 18 U.S.C. § 921(a)(33)(B)(i). The district court granted First's motion and held that First could not be charged with violating § 922(g)(9) on the basis of a predicate misdemeanor conviction when he had been denied his Sixth Amendment right to counsel in that misdemeanor proceeding.


We have jurisdiction under 28 U.S.C. § 1291. " We review de novo a district

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court's decision to dismiss ... an indictment," and the district court's interpretation of the underlying statute. United States v. W.R. Grace, 504 F.3d 745, 751 (9th Cir.2007) (citing United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir.1991) and United States v. Gorman, 314 F.3d 1105, 1110 (9th Cir.2002)). We may affirm the district court's dismissal of an indictment on any ground supported by the record even if it differs from the rationale of the district court. United States v. Telink, Inc., 910 F.2d 598, 600 n. 1 (9th Cir.1990) (per curiam).



Under well-established precedent, the Sixth Amendment right to counsel serves as a constitutional minimum in all state and federal criminal proceedings that result in a sentence of actual imprisonment or a suspended sentence of imprisonment. Alabama v. Shelton, 535 U.S. 654, 658, 672, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002) (holding that " a suspended sentence that may ‘ end up in the actual deprivation of a person's liberty’ may not be imposed unless the defendant was accorded ‘ the guiding hand of counsel’ in the prosecution for the crime charged" (citation omitted)); Scott v. Illinois, 440 U.S. 367, 373-74, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979) (holding that the Sixth Amendment right to counsel was only required when a defendant was sentenced to " actual imprisonment," which was later expanded by Shelton ); Argersinger v. Hamlin, 407 U.S. 25, 33, 37, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) (holding that defense counsel must be appointed in any criminal prosecution, " whether classified as petty, misdemeanor, or felony," " that actually leads to imprisonment even for a brief period" ).

However, " [t]his Circuit has held the Sixth Amendment right to counsel does not apply in tribal court criminal proceedings." United States v. Percy, 250 F.3d 720, 725 (9th Cir.2001) (citing United States v. Ant, 882 F.2d 1389, 1392 (9th Cir.1989) and Settler v. Lameer, 507 F.2d 231, 241 (9th Cir.1974)). As we have explained, " [t]he protections of the United States Constitution are generally inapplicable to Indian tribes, Indian courts and Indians on the reservation [because] ... Indian tribes are quasi-sovereign nations." Id. (citations omitted). In 1968, however, Congress enacted the Indian Civil Rights Act (" ICRA" ), which mandated that a defendant in tribal court be provided a right to retained counsel in all criminal proceedings. 25 U.S.C. § 1302(6) (1968); see Pub.L. 90-284, tit. II §§ 201-02, 82 Stat. 77 (Apr. 11, 1968). In 2010, Congress further provided defendants in tribal court with the right to appointed counsel " [i]n a criminal proceeding in ...

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