The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30346
Plaintiff-Appellant,
D.C. No.
v. 4:11-cr-00080-SEH-1
LAKOTA THOMAS FIRST,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
November 8, 2012—Portland, Oregon
Filed October 1, 2013
Before: Kenneth F. Ripple,* Stephen S. Trott,
and Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
*
The Honorable Kenneth F. Ripple, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
2 UNITED STATES V. FIRST
SUMMARY**
Criminal Law
Reversing the district court’s dismissal of an indictment
charging the defendant as a misdemeanant in possession of a
firearm in violation of 18 U.S.C. § 922(g)(9), the panel held
that a misdemeanor conviction obtained in tribal court may
qualify as a predicate offense to a § 922(g)(9) prosecution so
long as the defendant was provided whatever right to counsel
existed in the underlying misdemeanor proceeding.
The panel concluded 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.
COUNSEL
Michael W. Cotter, United States Attorney, J. Bishop Grewell
(argued), Assistant United States Attorney, Billings,
Montana, for Plaintiff-Appellant.
Anthony R. Gallagher, Federal Defender, District of
Montana, David F. Ness (argued), Assistant Federal
Defender, Great Falls, Montana, for Defendant-Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. FIRST 3
OPINION
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 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.
I. BACKGROUND
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
4 UNITED STATES V. FIRST
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
1
Although we are mindful that the term “Native American” or
“American Indian” may be preferable, we use the term “Indian”
throughout this opinion because that is the term used throughout the
United States Code, and the term “Tribal” is used in 18 U.S.C.
§ 921(a)(33)(A), the statute at issue in this appeal.
2
Under the standard arraignment script followed by the tribal court
judge, it is likely that First was advised of his right to be represented by
counsel at his own expense. See CCOJ, tit. VI, §§ 401, 501 (2003). First
does not argue that he was deprived of his right to retain counsel.
UNITED STATES V. FIRST 5
misdemeanor conviction when he had been denied his Sixth
Amendment right to counsel in that misdemeanor proceeding.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. “We
review de novo a district 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).
III. ANALYSIS
A.
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
(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 (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);
6 UNITED STATES V. FIRST
Argersinger v. Hamlin, 407 U.S. 25, 33, 37 (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 which an Indian tribe, in
exercising powers of self-government, imposes a total term
of imprisonment of more than 1 year,” 25 U.S.C. § 1302(c),
but left unchanged the right to retained counsel when a lesser
penalty is imposed, id. § 1302(a)(6).3
3
ICRA provided in part that “[n]o Indian tribe in exercising powers of
self-government shall— . . . deny to any person in a criminal proceeding
the right . . . at his own expense to have the assistance of counsel for his
defense.” 25 U.S.C. § 1302(6) (1968). That provision remained
unchanged until Congress enacted the Tribal Law and Order Act of 2010.
Pub. L. 111-211, tit. VII § 234, 124 Stat. 2279 (July 29, 2010). The 2010
Act maintained a defendant’s right, “at his own expense to have the
UNITED STATES V. FIRST 7
Here, the Fort Peck Tribal Court imposed a suspended
sentence of thirty days in jail. Although this sentence, had it
been imposed in state or federal court, would have triggered
Sixth Amendment protection under Shelton, the sentence does
not trigger such protection in tribal court.4 Rather, First was
entitled to the right to retained counsel under both federal
statute, 25 U.S.C. § 1302 (2003), and the tribal law governing
Fort Peck Tribal Court, CCOJ tit. VI § 501 (stating in part
that in a criminal case “[t]he accused shall have . . . the right
to assistance of counsel at his/her own expense”).
First does not argue that he was denied his right to
retained counsel pursuant to federal statute and tribal law, and
we do not address that issue here. Further, the government
does not dispute that First was not provided and did not waive
a Sixth Amendment right to appointed counsel. Here, the
dispute turns on whether a conviction for a misdemeanor
crime of domestic violence that was validly obtained in tribal
assistance of counsel for his defense” and appended that “[i]n a criminal
proceeding in which an Indian tribe, in exercising powers of self-
government, imposes a total term of imprisonment of more than 1 year on
a defendant, the Indian tribe shall— (1) provide to the defendant the right
to effective assistance of counsel at least equal to that guaranteed by the
United States Constitution; and (2) at the expense of the tribal
government, provide an indigent defendant the assistance of a defense
attorney licensed to practice law by any jurisdiction in the United States
that applies appropriate professional licensing standards and effectively
ensures the competence and professional responsibility of its licensed
attorneys.” 25 U.S.C. § 1302.
4
Some tribal courts do provide a right to appointed counsel to
defendants in First’s position. See, e.g., Laws of the Confederated Salish
and Kootenai Tribes Codified, § 1-2-401(2) (Revised 2003) (“An indigent
defendant accused of a criminal offense punishable by imprisonment has
a right to representation by the Tribal Defender’s Office.”).
8 UNITED STATES V. FIRST
court, under circumstances that would have violated the Sixth
Amendment in state or federal court, may qualify as the
predicate misdemeanor offense for a prosecution under
§ 922(g)(9).
We begin by addressing First’s statutory argument and
then turn to his constitutional arguments.
B.
Section 921(a) defines the terms used in § 922, which
criminalizes inter alia the possession of firearms by certain
persons. The relevant portion of § 921(a) provides:
(33)(A) . . . the term “misdemeanor crime of
domestic violence” means an offense that—
(i) is a misdemeanor under Federal, State, or
Tribal law; and
(ii) has, as an element, [domestic
violence]. . . .
(B)(i) A person shall not be considered to
have been convicted of such an offense for
purposes of this chapter, unless—
(I) the person was represented by counsel in
the case, or knowingly and intelligently
waived the right to counsel in the case; and
(II) in the case of a prosecution for an offense
described in this paragraph for which a person
UNITED STATES V. FIRST 9
was entitled to a jury trial in the jurisdiction in
which the case was tried, either
(aa) the case was tried by a jury, or
(bb) the person knowingly and intelligently
waived the right to have the case tried by a
jury, by guilty plea or otherwise.
18 U.S.C. § 921(a)(33) (emphasis added).
We must determine whether the “right to counsel” in
§ 921(a)(33)(B)(i)(I) refers to a uniform federal meaning
containing a Sixth Amendment floor (First’s contention) or to
the right as it existed in the predicate misdemeanor
proceeding (the government’s contention). We conclude that
the government’s argument should prevail.
1. Statutory Text
We begin with the text of the statute. Miranda v.
Anchondo, 684 F.3d 844, 849 (9th Cir. 2012) cert. denied,
133 S. Ct. 256 (2012). The government argues that in the
phrase “right to counsel in the case,” the words “in the case”
modify the words “right to counsel.” We agree. First offers
no plausible alternative interpretation that does not effectively
eliminate the words “in the case” from the statute. And it is
our “duty to give effect, if possible, to every clause and word
of a statute.” Duncan v. Walker, 533 U.S. 167, 174 (2001)
(citations and quotation marks omitted). Moreover, the words
“in the case” clearly refer to the predicate misdemeanor
proceeding, and they could not plausibly refer to any other
proceeding. Indeed, in looking to “the language and design
of the statute as a whole,” K Mart Corp. v. Cartier, Inc.,
10 UNITED STATES V. FIRST
486 U.S. 281, 291 (1988), the entirety of § 921(a)(33) defines
a qualifying predicate misdemeanor.
Unlike First, we do not find it “noteworthy that Congress
referred to local law in the clause immediately following the
right to counsel provision.” That subclause provides that
in the case of a prosecution for an offense
described in this paragraph for which a person
was entitled to a jury trial in the jurisdiction in
which the case was tried, either (aa) the case
was tried by a jury, or (bb) the person
knowingly and intelligently waived the right
to have the case tried by a jury.
§ 921(a)(33)(B)(i)(II) (emphasis added). Although Congress
arguably referenced local law more clearly when it spoke
about a defendant’s right to a jury than it did when it spoke to
his right to counsel, that does not mean we can ignore its
direction to examine the “right to counsel” as it existed “in
the case,” i.e., in the predicate misdemeanor proceeding. Put
another way, the canon of statutory construction that states
“when 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 disparate inclusion or exclusion,” Barnhardt v.
Sigmon Coal Co., 534 U.S. 438, 452 (2002) (internal
quotation marks omitted), is inapplicable in this circumstance
because Congress placed a limitation in both subclauses.
First also argues that we should give the “right to
counsel” a uniform federal meaning because, by default,
words in federal statutes are to be given federal meaning.
Although this proposition may be generally applicable, it is
UNITED STATES V. FIRST 11
not persuasive here where Congress explicitly modified the
“right to counsel” with the phrase “in the case.” In the
primary case relied upon by First, the Supreme Court held
that the term “conviction” in the federal firearms statute,
18 U.S.C. §§ 922(g)–(h) (1976), had a uniform federal
meaning. Dickerson v. New Banner Inst., Inc., 460 U.S. 103,
111–12 (1983), superseded by statute, 18 U.S.C.
§ 921(a)(20). There, however, the Court relied on the fact
that it had previously interpreted the word “conviction” in a
parallel gun control statute to have a uniform federal meaning
because “[n]o modifier is present, and nothing suggests any
restriction on the scope of the term ‘convicted.’” Id. at 111
(quoting Lewis v. United States, 445 U.S. 55, 60 (1980)).
Indeed, the Court noted that “[n]othing on the face of the
statute suggests a congressional intent to limit its coverage.”
Id. (internal quotation marks omitted). Therefore, the Court
concluded:
Whether one has been “convicted” within the
language of the gun control statutes is
necessarily . . . a question of federal, not state,
law, despite the fact that the predicate offense
and its punishment are defined by the law of
the State. This makes for desirable national
uniformity unaffected by varying state laws,
procedures, and definitions of “conviction.”
Id. at 111–12 (citation omitted). First also directs us to an
Eleventh Circuit case, in which the court interpreted
Dickerson as standing for the proposition that “[w]ords in
federal statutes reflect federal understandings, absent an
explicit statement to the contrary, even if a state uses the
word differently.” United States v. Ayala-Gomez, 255 F.3d
1314, 1319 (11th Cir. 2001) (per curiam). Here, in contrast,
12 UNITED STATES V. FIRST
Congress explicitly modified “right to counsel” when it
appended the words “in the case.”
At least one circuit seems to have implicitly read the
“right to counsel” provision in § 921(a)(33)(B) as referring to
the right that existed in the underlying proceeding. See
United States v. Smith, 171 F.3d 617, 621–22 (8th Cir. 1999).
In Smith, the defendant was convicted under § 922(g)(9) on
the basis of a prior Iowa misdemeanor domestic assault
conviction. Id. at 619. The state court appointed counsel, but
counsel failed to appear at Smith’s plea hearing. Id. Smith
then waived his right to counsel, pleaded guilty, and was
fined $100. Id. On appeal, Smith argued that his waiver of
the right to counsel was not knowing and intelligent as
required by § 921(a)(33)(B)(i)(I). Id. The Eighth Circuit
noted that Smith’s right to counsel in his Iowa misdemeanor
proceeding necessarily arose under state law because the
Sixth Amendment right did not apply where only a fine was
imposed. Id. at 622 (citing Scott, 440 U.S. at 373–74).
Nonetheless, the court went on to evaluate whether Smith’s
waiver of the state right to counsel was valid. Id. at 621–22.
Although the decision does not explicitly determine whether,
for purposes of qualifying as a conviction under § 921(a)(33),
the law governing the right to counsel is state or federal, it is
at least somewhat telling that the court did not terminate its
inquiry the moment it determined that Smith had no federal
right to counsel.5
5
First argues that other out-of-circuit precedent favors his interpretation
of the statute. See United States v. Frechette, 456 F.3d 1 (1st Cir. 2006);
United States v. Jennings, 323 F.3d 263, 275–76 (4th Cir. 2003); United
States v. Bethurum, 343 F.3d 712, 718 (5th Cir. 2003). These cases are
inapposite, as they all interpret what it means to “knowingly and
intelligently waive[]” rights contained in § 921(a)(33)(B)—an altogether
UNITED STATES V. FIRST 13
On this basis, we are inclined to conclude that the text and
structure of the statute render it capable of only one plausible
reading: that the “right to counsel” in § 921(a)(33)(B)(i)(I)
refers to the right to counsel that existed in the underlying
domestic violence misdemeanor proceeding. We find further
support in the legislative history of the statute.
2. Legislative History
The federal firearms statute codified at 18 U.S.C. §§ 921
et. seq. has existed in several iterations. In its initial
manifestation, the statute did not include misdemeanors
different inquiry than the one posed here. See also United States v.
Lenihan, 488 F.3d 1175, 1177–78 (9th Cir. 2007).
In Frechette, the First Circuit analyzed “whether the jury waiver
question [in § 921(a)(33)(B)] is determined by reference to state law
standards or to the federal constitutional standard for waiver.” 456 F.3d
at 7. The court held that the federal constitutional standard applied to “the
validity of a waiver of jury trial.” Id. The court reasoned that the “very
phrase ‘knowingly and intelligently’ can easily be read as a shorthand
encapsulation of the federal constitutional standard.’” Id. at 9. Although
the jury provision “explicitly referred to the law of the jurisdiction in
which the offense was committed,” id., the court held that federal
constitutional standards governed the sub-provision regarding “waiver” of
that right. Id. We do not address the application of the federal standard
to the words “knowingly and intelligently.” Here, we conclude only that
this holding does not bear on our decision, where the “right to counsel” is
explicitly modified by the words “in the case.” § 921(a)(33)(B)(i)(I).
Similarly, in Jennings, the Fourth Circuit concluded that a defendant’s
waiver of his rights to counsel and a jury trial in an underlying state
domestic violence misdemeanor proceeding met federal “constitutional
minimums.” 323 F.3d at 276. This conclusion goes no further than the
First Circuit’s decision in Frechette. The same is true of the Fifth
Circuit’s reasoning in Bethurum. See 343 F.3d at 717–19.
14 UNITED STATES V. FIRST
whatsoever. See id. § 921 (effective through Sept. 29, 1996).
In 1996, via the “Lautenberg Amendment” to the Omnibus
Consolidated Appropriations Act, Congress added
§ 921(33)(A), thereby including “misdemeanor crimes of
domestic violence” as predicate offenses. See Pub. L. 104-
208, div. A, tit. I, § 101(f) (Sept. 30, 1996).
The Lautenberg Amendment was hotly contested and
sheds some light on the meaning Congress intended in its
text.6 The version read into the record on September 12, 1996
did not include the “in the case” phrase; but rather included
convictions only where the defendant
has been convicted in any court of any crime
involving domestic violence, if the individual
has been represented by counsel or knowingly
and intelligently waived the right to counsel.
142 Cong. Rec. S10377 (Sept. 12, 1996).
As the government points out, the Lautenberg
Amendment was intended to help close the gap between the
way perpetrators of domestic violence were treated compared
to perpetrators of non-domestic violence. Whereas a
defendant might only be charged with a misdemeanor for
abusing his own spouse, he would likely be charged with a
felony for abusing someone else’s spouse. 142 Cong. Rec.
S10379. As Senator Feinstein said, “This amendment looks
6
See, e.g., Melanie C. Schneider, The Imprecise Draftsmanship of the
Lautenberg Amendment and the Resulting Problems for the Judiciary, 17
Colum. J. Gender & L. 505, 505–07 (2008) (noting that the amendment
was “controversial”).
UNITED STATES V. FIRST 15
to the type of crime, rather than the classification of the
conviction.” Id. at S10380.
Because Congress was seeking to deprive misdemeanants
of gun rights, congressional opponents of the gun ban fought
for the inclusion of increased procedural protections for
defendants. 142 Cong. Rec. S11877 (Sept. 30, 1996). As
Senator Lautenberg noted on September 30, 1996,
“opponents of a strong gun ban continued to express concern
that gun rights should not be lost without an assurance that
offenders will be provided with all appropriate due process.”
142 Cong. Rec. S11877 (Sept. 30, 1996). If Congress was
going to take away gun rights, defendants needed more
process; and we assume that Congress was aware that
misdemeanor proceedings typically provide for lesser process
than felony proceedings.
The words “in the case” were likely added to address
these due process concerns. They were added to the proposed
statute between September 12, 1996, when the statute
required that “the individual has been represented by counsel
or knowingly and intelligently waived the right to counsel”
and September 30, 1996, when Senator Lautenberg had
changed the language to address due process concerns. Id.
Thus, we find it hard to imagine that the words “in the case”
could have been intended to diminish the “right to counsel”
that was unqualified and included in the September 12
version. If anything, the words “in the case” served to
engross the right to counsel by referencing the state right to
counsel provisions, which can only exceed the federal
constitutional minimum.
The first decade after its enactment, § 921(33)(A) did not
include tribal convictions within the ambit of its proscription.
16 UNITED STATES V. FIRST
It read: “. . . the term ‘misdemeanor crime of domestic
violence’ means an offense that—(i) is a misdemeanor under
Federal or State law.” 18 U.S.C. § 921 (effective Sept. 30,
1996 to Jan. 4, 2006). In 2006, as part of the Violence
Against Women and Department of Justice Reauthorization
Act of 2005, Congress amended § 921(33)(A)(i) to include
offenders convicted under tribal law. See Pub. L. 109-162,
tit. IX, § 908(a), 119 Stat. 3083 (Jan. 5, 2006).
“We assume that Congress is aware of existing law when
it passes legislation.” Miles v. Apex Marine Corp., 498 U.S.
19, 32 (1990); see also Annachamy v. Holder, No. 07-70336,
2013 WL 4405687, at *5 n.7 (9th Cir. Aug. 19, 2013); United
States v. Vallee, 677 F.3d 1263, 1265 (9th Cir. 2012). But see
In re Doctor’s Hosp. of Hyde Park, 337 F.3d 951, 960 (7th
Cir. 2003). At that time, ICRA provided only the right to
retained counsel in tribal court criminal proceedings,
25 U.S.C. § 1302 (2006), and it was well-recognized that the
federal constitution did not apply to tribes exercising their
sovereign powers, see Talton v. Mayes, 163 U.S. 376, 381–82
(1896); see also Felix S. Cohen, Handbook of Federal Indian
Law § 14.04[2] (2012). Therefore, we conclude that
Congress was aware that by including tribal court convictions
in § 921(a)(33)(A), it was allowing convictions obtained
without constitutional protections to qualify as misdemeanors
capable of triggering prosecution under § 922(g)(9).
In sum, we conclude that the “right to counsel” in
§ 921(a)(33)(B)(i)(I) refers to the right to counsel as it existed
in the domestic violence misdemeanor proceeding.7 We next
7
We reiterate that tribal courts must provide at least the right to retained
counsel in every criminal proceeding, 25 U.S.C. § 1302(a)(6), and the
right to appointed counsel in any criminal proceeding that results in a total
UNITED STATES V. FIRST 17
turn to whether this interpretation of the statute violates the
Sixth Amendment or the Due Process Clause of the Fifth
Amendment.8
C.
First argues that our interpretation of the statute violates
the Sixth Amendment and the Due Process Clause of the Fifth
Amendment because it allows a conviction obtained in
violation of Scott and Shelton to be used to support his guilt
in a subsequent § 922(g)(9) prosecution. First relies on our
term of imprisonment of more than one year, id. § 1302(c). Again,
defendants are entitled to a more expansive right to counsel in some tribal
courts, see supra note 4, and a federal court enforcing § 922(g)(9) would
be required to look to the right that existed in that particular proceeding,
even where it exceeded the minimum imposed by § 1302.
8
Although the district court referenced notions of equal protection, First
does not argue that the use of his uncounseled misdemeanor conviction in
a § 922(g)(9) prosecution would violate the Equal Protection Clause of the
Fourteenth Amendment. Nonetheless, we address that issue because the
government briefed it and we may affirm the district court’s dismissal of
an indictment on any basis supported by the record. Telink, 910 F.2d at
600 n.1. The Supreme Court has long held that classifications based on
status as a member of a recognized Indian tribe do not violate the Equal
Protection Clause. United States v. Antelope, 430 U.S. 641, 644–47
(1977). Antelope specifically left open the question of whether “instances
in which Indians tried in federal court are subjected to differing penalties
and burdens of proof from those applicable to non-Indians charged with
the same offense” would violate the Equal Protection Clause. Id. at 649
n.11. This case, however, does not present such a scenario. First is
subject to the same federal statute as any non-Indian, and he faces no
greater burden in proving that he was denied the right to counsel that
existed in his misdemeanor proceeding.
18 UNITED STATES V. FIRST
decision in Ant, 882 F.2d 1389, but this case is controlled by
Lewis, 445 U.S. 55.9
Lewis presented the question of “whether a defendant’s
extant prior conviction, flawed because he was without
counsel, as required by Gideon v. Wainwright, 372 U.S. 335
(1963), may constitute the predicate for a subsequent
conviction under [18 U.S.C. App.] § 1202(a)(1) [(1980)],” the
predecessor to § 922(g).10 445 U.S. at 56. The Court held
that such a flawed conviction could serve as a predicate to
prosecution under the firearms statute “despite the fact that
the predicate [conviction] may be subject to collateral attack
on constitutional grounds.” Id. at 65.
In reaching this conclusion, Lewis distinguished a line of
cases holding that a conviction obtained in violation of the
Sixth Amendment could not be used in a subsequent
prosecution to “support guilt or enhance punishment.”
Burgett v. Texas, 389 U.S. 109, 115 (1967); see Loper v.
Beto, 405 U.S. 473 (1972) (affirming this proposition in the
9
We do not question Ant’s continued vitality. Ant stands for the general
proposition that even when tribal court proceedings comply with ICRA
and tribal law, if the denial of counsel in that proceeding violates federal
constitutional law, the resulting conviction may not be used to support a
subsequent federal prosecution. 882 F.2d at 1395–96. Lewis, however,
demonstrates that the federal firearms statute is an exception from this
general rule. 445 U.S. at 66–67.
10
Section 1202(a) provided in relevant part: “Any person who— (1) has
been convicted by a court of the United States or of a State or any political
subdivision thereof of a felony . . . and who receives, possesses, or
transports . . . any firearm shall be fined not more than $10,000 or
imprisoned for not more than two years, or both.” 18 U.S.C. App.
§ 1202(a); see Pub. L. 90-351, tit. VII, §§ 1201–1203, 82 Stat. 236 (June
19, 1968).
UNITED STATES V. FIRST 19
“support guilt” context); United States v. Tucker, 404 U.S.
443 (1972) (affirming this proposition in the enhancement of
punishment context). In contrast, Lewis concluded that the
statute, which prohibited certain individuals from possessing
firearms, imposed an “essentially civil disability.” 445 U.S.
at 67. Therefore, “[e]nforcement of that essentially civil
disability through a criminal sanction does not ‘support guilt
or enhance punishment.’” Id. (quoting Burgett, 389 U.S. at
115). Although the three Justices in dissent argued that the
majority’s distinction was “simply inexplicable,” id. at 72
(Brennan, J., dissenting), Lewis remains binding law.
Lewis held that the “[u]se of an uncounseled felony
conviction as the basis for imposing a civil firearms
disability, enforceable by a criminal sanction” does not
violate the Sixth Amendment, even when the underlying
conviction did. Id. at 66–67.
The federal gun laws . . . focus not on
reliability, but on the mere fact of conviction,
or even indictment, in order to keep firearms
away from potentially dangerous persons.
Congress’ judgment that a convicted felon,
even one whose conviction was allegedly
uncounseled, is among the class of persons
who should be disabled from dealing in or
possessing firearms because of potential
dangerousness is rational.
Id. at 67. We see no reason not to apply the same reasoning
to § 922(g)(9). For very similar reasons, discussed supra,
20 UNITED STATES V. FIRST
Congress sought to prohibit those convicted of misdemeanor
crimes of domestic violence from possessing firearms.11
Therefore, it is of no moment that First’s misdemeanor
conviction was obtained without complying with the Sixth
Amendment. The use of such a conviction to trigger the
“civil disability” of possessing a firearm does not violate the
Sixth Amendment, the Due Process Clause of the Fifth
Amendment, nor the Equal Protection Clause of the
Fourteenth Amendment.
IV. CONCLUSION
In sum, we hold that although the right to counsel in
§ 921(a)(33)(B)(i)(I) includes a Sixth Amendment
constitutional minimum in all state and federal proceedings—
11
The district court determined that Lewis was “not applicable to this set
of circumstances” because § 921(a)(33)(B)(i) specifically includes
procedural defenses to the prior conviction; and thus “the addition of those
exceptions in the statute requires this court to look beyond the fact of
conviction and to look specifically at the procedures that led up to the
conviction.” The district court is correct that the provisions in
§ 921(a)(33)(B) invoke Congress’ concern that convictions comply with
a defendant’s fundamental rights to counsel and to a jury trial.
Nonetheless, these provisions do not undermine the conclusion that
“[e]nforcement of [the] essentially civil disability [prohibiting firearms
possession] does not ‘support guilt or enhance punishment.’” Lewis,
445 U.S. at 67.
Therefore, although Congress expressed a heightened concern with
the reliability of predicate misdemeanor convictions for § 922(g)(9)
prosecutions, this concern does not render application of the statute to
First unconstitutional. Rather, the inclusion of tribal convictions within
the ambit of the statute shows that Congress balanced its concern with
reliability against its concern with tribal sovereignty over criminal
proceedings.
UNITED STATES V. FIRST 21
and indeed a more expansive right to counsel in many
states—a misdemeanor conviction obtained in tribal court
may qualify as a predicate offense to a § 922(g)(9)
prosecution so long as the defendant was provided whatever
right to counsel existed in the underlying misdemeanor
proceeding.
REVERSED and REMANDED.