Pascua Yaqui Court of Appeals

No. CA-18-001

Pascua Yaqui Court of Appeals

Pascua Yaqui Tribe, Petitioner,

VS.

Hon. Melvin Stoof, Judge, Pascua Yaqui Tribal Court,

and

Antonio Julian Lopez, Real Party in Interest.

For Plaintiff: Oscar J. Flores, Chief Prosecutor; Kendrick Wilson and Coleen Thoene,

Deputy Prosecutors, Pascua Yaqui Office of the Prosecutor

For Real Party in Interest: Annamarie L. Valdivia, Chief Public Defender for the Pascua Yaqui

Tribe.

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Opinion & Order

I. Background

This case comes to the Appellate Court as a special action petition from the Pascua

Yaqui’s Office of the Prosecutor (hereinafter “Prosecutor”) requesting review of a trial court

order denying the Tribe’s motion to preclude a prior felony conviction for impeachment.

I. Appellate Court Jurisdiction in Special Actions

The special action petition requests that this Court preliminarily determine whether or not the

Appellate Court may exercise jurisdiction over a special action petition filed by the Prosecutor in

a criminal proceeding.

The Pascua Yaqui Tribal Code (hereinafter “PYTC”) is silent on the issue. While the PYTC

specially prohibits interlocutory appeals in civil cases (3 PYTC §2-3-90(F)) and prohibits a

governmental appeal of a judgment acquitting a defendant in a criminal matter (3 PYTC §2-3-

90(D)), there is no PYTC reference to an interlocutory appeal or special action in a criminal

proceeding. In reviewing prior Appellate Court opinions on the issue, it is clear that this Court

has accepted various forms of interlocutory appeals, extraordinary writs, or special actions in

criminal proceedings. See Pascua Yaqui Tribe v. Coleman, CA-15-0003 (PYT Ct. App. Nov. 17,

2015); Pascua Yaqui Tribe v. Molina, CA-14-003 (PYT Ct. App. June 6, 2014); Pascua Yaqui

Tribe v. Montana, CA-12-001 (PYT Ct. App. July 23, 2013). The Appellate Court, however, has

not articulated a clear rule regarding the circumstances under which special action jurisdiction is

appropriate in a criminal proceeding.

In the absence of a clear rule, the PYTC does allow for this Court to adopt the laws of the

State of Arizona. 1 PYTC §2-30(H); Montana, CA-14-003, at 2. The laws of the State of Arizona

only permit special action review where no “equally plain, speedy, and adequate remedy is

available by appeal”. Rule I(a), Ariz. R. P. Spec. Act. Special action relief may only be granted

where: 1) the trial judge has failed to exercise discretion which he/she has a duty to exercise, or

to perform a duty required by law as to which he/she has no discretion; and 2) the trial judge has

proceeded or is threatening to proceed without or in excess of jurisdiction or legal authority, and

3) the trial judge’s determination was arbitrary or capricious or an abuse of discretion. See Rule

3, Ariz. R. P. Spec. Act. This Court holds that in the absence of a clear rule in the PYTC, the

Appellate Court formally adopts the Rules of the State of Arizona surrounding special action

review.

We now turn to the merits and substance of the special action in this case. The Prosecutor

seeks review of a pre-trial order in a criminal matter. It is clear that the Tribe has no plain,

adequate, or speedy remedy available by appeal because 3 PYTC §2-3-90(D) prohibits

governmental appeals after acquittal. Additionally, the special action petition alleges that the trial

court abused its discretion when it ordered that a prosecution witness could be impeached with

her 27 year old conviction. We therefore find that this is a matter within the Appellate Court’s

jurisdiction and warrants special action review by the Appellate Court.

III. The Tribe’s Special Action Petition

Turning to the merits of the special action petition itself, the Tribe alleges that the trial court

abused its discretion when it denied the Tribe’s motion to preclude a prosecution witness’ 27

years old conviction pursuant to 3 PYT R. Evid. 30(B). The trial court denied the Tribe’s motion

and instead ordered that the prosecution witness’ prior conviction was excluded pursuant to PYT

R. Evid. 30(B) but the prior conviction could be used pursuant to PYT R. 29(B) “as probative of

the character for truthfulness of the witness, on cross examination. The Tribe’s proposed

witness’ prior felony convictions may be used for impeachment purposes.” Order Denying

Tribe’s Motion to Preclude Prior Felony Conviction as Impeachment.” Pascua Yaqui Tribe vy.

Lopez, AC-17-020 (May 14, 2018).

In reviewing an alleged abuse of discretion by a trial court, most jurisdictions define an abuse

of discretion as a “plain error, discretion exercised to an end not justified by the evidence, a

judgment that is clearly against the logic and effect of the facts as are found.” Rabkin v. Oregon

Health Sciences Univ., 350 F.3d 967, 977 (9th Cir. 2003); see also Coleman, CA-15-003, at 2.

The PYTC contains formal rules of evidence that apply generally to both civil and criminal

proceedings in the Pascua Yaqui Tribal Court. See PYTC Title 3, Part Il, Chapters 2-4. The

Rules of Evidence contain a specific provision regarding the issue at hand, impeachment of a

witness by evidence of conviction of a crime. 3 PYT R. Evid. 30. This Court sees no reason to

look any further than the PYT’s Rules of Evidence on this issue and finds that Rule 30

specifically addresses the issue of whether a 27 year old conviction may be used to impeach a

witness. Rule 30 reads as follows:

(A) For the purpose of attacking the credibility of a witness, evidence that he has been

convicted of a crime shall be admitted, if it is elicited from the witness or established by

public record, during cross examination, but only if the crime

(1) was punishable by death or imprisonment in excess of one year pursuant to the

law under which he was convicted; or

(2) It involved dishonesty or false statement, regardless of the punishment.

(B) Evidence under this rule is not admissible if ten years have elapsed since the date of

conviction or date of release from the confinement for that conviction whichever is the

later; nor shall juvenile adjudications be admissible.

Rule 30(B) was clearly drafted with the intention to exclude convictions older than ten years for

impeachment purposes. Therefore, a 27 year old conviction is well over the ten year limit

imposed by the PYT Rules of Evidence.

We hold that the trial court abused its discretion in allowing the 27 year old conviction to

be used pursuant to Rule 29(B) for impeachment purposes, when Rule 30 specifically prohibits

its admittance for impeachment purposes. Additionally, this Court finds that in matters where the

PYT Rules of Evidence specifically address an issue, like in this case, the Federal Rules of

Evidence do not apply.

IV. Order

The Order Denying Tribe’s Motion to Preclude Prior Felony Conviction as Impeachment is

REVERSED. This case is REMANDED to the trial court to continue proceedings consistent with

this Opinion.

2 Oe

Justice Kendra A. Martinez

We CONCUR:

Peel

Hon. Rebecca Plevel

IN THE PASCUA YAQUI COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION, ARIZONA

PASCUA YAQUI TRIBE,

OFFICE OF THE PROSECUTOR

APPELLATE CASE NO: CA-18-001

Petitioner

8. TRIBAL COURT CASE NO: AC-17-020

Hon. Melvin Stoof, Judge, Pascua Yaqui Tribal

Court,

ANTONIO JULIAN LOPEZ,

Real Party in Interest

PETITIONER/APPELLANT’S REPLY BRIEF

Oscar J. Flores,

Chief Prosecutor

Kendrick Wilson, Coleen Thoene,

Deputy Prosecutors

Pascua Yaqui Office of the Prosecutor

7777 8. Camino Huivisim

Bldg. A, 2"? Floor

Tucson, AZ 85757

Telephone: (520) 876-6251

Oscar.J.Flores@pascuayaqui-nsn.gov

Attorneys for the Pascua Yaqui Tribe

TABLE OF CONTENTS

TABLE OF AUTHORITIES snare

REQUEST FOR ORAL ARGUMENT ' io 5

STATEMENT OF JURISDICTION... esccsssccssssssssssssccssssssssssssseseesssssssssssssssssssssesssssnsssesessesseesees 5

ISSUES PRESENTED FOR REVIEW 5 6

STATEMENT OF THE CASE......... 7

I. FACTS AND PROCEEDINGS BELOW. .......cccccsssssssssssssssssssssssssssssssessssssesssssuesescnsesssens 7

TI. SUMMARY OF THE ARGUMENT.........cccccsccsssssssssssssssssssssssssssssssssssessssssesssessnecsessesnsess 7

LAW AND ARGUMENT. .......ccsscsssssssssccccssssssssssssuseccesssssssesssssssssessssecssssuseessssssneseeseets 8

I. The issue of whether the trial court abused its discretion in ruling that Ms.

Montano’s 1990 conviction is admissible at trial is ripe for review because the

trial court’s order has already been enterred..........cesccssccssssscseseccscccssscsccsssscsssecsssessssecssssene 8

A. The trial court’s ruling regarding the admissibility of Ms. Montano’s

conviction is ripe for review because the ruling is final, and means that injury

caused by the court’s ruling is “certainly likely.” 9

B. “Ripeness” does not depend on the extrinsic details of Ms. Montano’s

conviction as Fed. R. Evid., Rule 608(b) prohibits the use of extrinsic

information regarding a witness’ prior at trial except under very limited

circumstances. 9

Il. Neither ICRA, Tribal or federal law allows the Defendant to require the use

of a single, older federal rule of evidence and related caselaw to the exclusion of

all current Tribal and federal law. . 10

Ill. The Defendant’s arguments regarding the admissibility of Ms. Montano’s

conviction are based on an old version of the Federal Rules of Evidence, and

case law interpreting those older versions. . 11

IV. Precluding use of Ms. Montano’s conviction at trial will not violate the

Defendant’s Confrontation rights because courts have the authority to limit a

defendant’s ability to cross-examine a witness. 13

CONCLUSION AND REMEDY SOUGHT 15

CERTIFICATE OF SERVICE wes . 16

TABLE OF AUTHORITIES

Authority Page Number

Pascua Yaqui Cases

Pascua Yaqui Tribe v. Montana, CA-12-001 (PYT Ct. App. July 23, 2013)... 3

Pascua Yaqui Tribal Code

3 PYTC § 2-2-430(C)....ceecscescsessssescssesessssesesesscsessssssessvscsssecsasavacsesasasaesavasssvasacsesscsececscssevsness 10

3 PYTC § 2-3-180 oooeeceeesescssssesesseessesescsescsesesesssesecscsessssssvssasesacececsesasavasaratacsasasasessutaseeses 5

3 PYTC § 2-3-260 oo. eecccssccsssessesessssesssesesseccsesscscssssssvsssasscsavacacecasassusasasscsavacsusecsuvacsseverenees 5

Art. I, § 1 Pascua Yaqui Tribal Const. .........cccccsssssssssscssscscsssssscssscssscacacsesessacacacsesaceesvsseavens 11

Pascua Yaqui Rules

3 PYT R. Evid., Rule 29.0... ccc ccccsescesessssesscsscsssscsscsesscsecsccseeecssessaescacens secesesesesesessessesses 11

PYT R. Evid., Rule 30.0.0... ccccsccsesssscscsesssscsssscscssssvscsevscacecsncsesacsssssasacsssusscsevavsscacsessusevsvavene 8

Federal Cases .

Corley v. United States, 556 U.S. 303 (2009) ...c.cccccccssscssesecescscsescscscssssscsesssssscscsesasesessees 10

Delaware v. Fensterer, 474 U.S. 15, (1985) v.ccccccsccsscssscsscscescscseisescsssssesscsesssscsavecseveusevsvees 13

Delaware v. Van Arsdall, 475 U.S. 673 (1986) .c.cccccccccssssssssessscssssesssssesessscssssecsccssececeees 13, 14

Janakes v. U.S. Postal Serv., 768 F.2d 1091 (9th Cir. 1985) ...ccccssscsssssessssssssessesecsssesceesess 5

Thomas v. Union Carbide Agr. Prods. Co., 472 US 568 (1985) v.scccccssssssssssessesesesssscsssesseesee. 9

United States v. Bensimon, 172 F.3d 1121 (9th Cir. 1999).....ccscccssssssesecesccsesesessssssesssesseees 13

United States v. Bonanno, 852 F.2d 434 (9 Cir. 1988) ...cecccescscecsssecsssessssessssescsesecessasseseees 13

United States v. Jacobo Castillo, 496 F.3d 947, 952 (9 Cir. 2007) ...ccecessessessessessesseesssesssee 5

United States v. Lo, 231 F.3d 471, (9th Cir. 2000) .o..eccccscccsesesesesssscscscscecscsessccecscecessecevene 13

United States v. Nevitt, 563 F.2d 406 (9 Cir. 1977). ..c.ccccsssssscessessessessessssecsesscsssscsveesesessense 12

United States v. Ortega, 561 F.2d 803 (9 Cir. 1977) .ccccscssssssssssssessessessessesssesseesecscees 11,12

United States v. Osazuwa, 564 F.3d 1169 (9 Cir, 2009) ...cecccccssssessessessesecsessesesscsessesseneonse 10

United States v. Rowe, 92 F.3d. 928 (9 Cir. 1996)...c..c.csssessessessecsessecssscsessessssscsesseseeseseeees 12

United States v. Streich, 560 F.3d 926 (9th Cir. 2009) w...ccccccccccsessssssssssssssescscscssscscsssssessecsees 9

Federal Statutes

25 ULS.C. § 1301-1303 oe eeccssessescseseeseesssssssescsssssscsesevscsetssscscsesacacassacscseceesassceesens 10, 11

25 U.S.C. § 1302(a)(8) oe eeeecssesesssesesescesssescsescsescsssssscscsssessusssvavasacseasacscsesevavavacsesecevecareasanes 11

Federal Rules

co 8

Fed. R. Evid., Rule 403 oo... cccscsssscssssssscssssceccscsecscsscsacaesasessassucsesavsesesesvassassesesceccececeeeceess 12

Fed. R. Evid., Rule 608 ........cccccccesscssssssscssssssccscsecsecsessssessesssssesesssacsasusecsssassevsecseseesees 10, 11

Fed. R. Evid., Rules 608.0.........cccccccsscsssssescscsssscscsscsssssssasscsssssessssarsesasaassavassevavseserececsneeeses 12

Arizona Statutes

Ariz. Rev. Stat. § 13-1001(A)

Ariz. Rev. Stat. 13-1003(A)

Ariz. Rev. Stat. 13-3408

Ph eee eee ee ee ee er rn

TORO e eee He Reeser enero Deere DEE DEO EHD EES OE ODOR EES OE SEO EEE ROE OEO DHE D HODES EEE EEE See eeEeneecetsecences

REQUEST FOR ORAL ARGUMENT

The parties agree that holding oral arguments in this case is in the interests of justice.!

The Tribe, therefore, renews its request for oral argument based on 3 PYTC § 2-3-180, and 3

PYTC § 2-3-260(C)(6) & (D).

STATEMENT OF JURISDICTION

In his response, the Defendant/Real Party in Interest agreed that this Court has

jurisdiction over this interlocutory appeal.? However, the Tribe notes that subject matter

jurisdiction concerns a “court’s power to hear a case.” United States v. Jacobo Castillo, 496

F.3d 947, 952 (9 Cir. 2007) (citations and quotations omitted). | It is not a power that can be

“forfeited or waived.” Id.; see c.f Janakes v. U.S. Postal Serv., 768 F.2d 1091, 1095 (9th Cir.

1985) (noting, in context of a federal civil suit, that parties “cannot by stipulation or waiver grant

or deny” subject matter jurisdiction). Thus, this Court must still determine whether it has

jurisdiction over this matter. The Tribe further notes, as it did during its Opening Brief, that no

detailed caselaw from the Pascua Yaqui Court of Appeals discusses when or who may file a

criminal interlocutory appeal. Nor does local caselaw discuss what issues and circumstances

would be appropriate for interlocutory review.’ Because these are jurisdictional questions, they

must be addressed by this Court even though both parties believe that jurisdiction exists.

Accordingly, the Tribe urges the Court to accept jurisdiction based on the arguments raised in its

Opening Brief.

* See Real Party in Interest Response Brief, PYT v. Lopez, PYT CA-18-001, p.4.

2 Td.

> The Court of Appeals only briefly analyzed special action jurisdiction in Pascua Yaqui Tribe v. Montana, CA-12-

001 (PYT Ct. App. July 23, 2013), and did not provide a detailed discussion of the Arizona rules or related caselaw

upon which it relied.

5

ISSUES PRESENTED FOR REVIEW

The Tribe presented a number of issues for this Court’s review in its Opening Brief. In

his response, the Defendant addressed some of those issues, but also raised three additional

topics that were not included in the Tribe’s brief. This Reply will respond to the following

additional topics raised by the Defendant, in addition to addressing the Defendant’s

counterarguments to issues raised in the Opening Brief. 4

5. Whether the trial court’s written ruling that Ms. Montano’s 1990 conviction is ripe for

review when documentation of the facts underlying that conviction are unavailable due to

the passage of nearly thirty years?

6. Whether the Indian Civil Rights Act, 25 U.S.C. § 1302, and due process grant a

defendant a protected right to request that the admission of evidence against a defendant

at trial be governed by a single, outdated federal evidentiary rule and associated caselaw

in contravention of the rules of statutory construction, and when currently existing Tribal

and federal rules more than adequately ensure due process?

7. Whether limiting a defendant’s ability to cross examine Ms. Montano regarding her 1990

drug conviction will restrict his ability to adequately cross examine her as to the events

she witnessed in 2017, and thereby deny him due process?

“For the sake of clarity, these additional issues have been numbered sequentially following the four issues outlined

in the Tribe’s Opening Brief.

6

STATEMENT OF THE CASE

I. Facts and Proceedings Below:

The Tribe rests on the factual and procedural history summary included in its Opening

Brief. The Tribe, however, notes that many of the records of Ms. Montano’s 1990 drug

conviction are so old that they have been purged. What limited records were available through

Pima County Superior Court’s online “Agave” system were provided to the trial court and

defense counsel as an exhibit to the Tribe’s motion to preclude use of the conviction at trial, and

were included in the Tribe’s materials submitted to this Court.

II. Summary of the Argument

The Defendant first argues that whether Ms. Montano’s prior conviction may be admitted

to impeach her at trial is not an issue that is ripe for review. Specifically, he claims that the issue

is unripe because the parties lack knowledge of the exact facts that lead to Ms. Montano’s

conviction.»

This argument is based on a mistaken interpretation of the “ripeness” doctrine.

“Ripeness” in this context depends entirely on whether the trial court’s ruling caused actual

injury to a party, or whether injury is likely to occur. Because the trial court ruled that Ms.

Montano’s conviction is admissible at trial contrary to Tribal and Federal evidentiary rules,

absent intervention by this Court, Ms. Montano will be cross examined at trial about her criminal

history. Injury will, therefore, happen, and the issue is ripe for review.

The remainder of the Defendant’s arguments focus on an overbroad interpretation of the

due process rights afforded to Native criminal defendants by ICRA. The Defendant appears to

argue, albeit indirectly, that ICRA allows a defendant to pick and choose not only what body of

° See Real Party in Interest Response Brief, PYT v. Lopez, PYT CA-18-001, p.5.

7

law and rules should be applied to his case, but also which individual rules or cases should

control the outcome of his case. As a result, he mistakenly argues that the admissibility of Ms.

Montano’s conviction is governed by an outdated version of Fed. R. Evid., Rule 608, and

caselaw interpreting that version. What the Defendant forgets, however, is that the concepts of

fairness and due process are not one-way streets that lead only in a defendant’s direction. And

nothing in tribal, federal, or state law allow a party to assume that outdated laws are controlling

merely because they might be more beneficial to his case.

Based on the arguments and law presented in its Opening Brief, as well as the arguments

presented below, the Tribe respectfully requests that this Court grant its requested relief.

LAW AND ARGUMENT

I. The issue of whether the trial court abused its discretion in ruling that Ms.

Montano’s 1990 conviction is admissible at trial is ripe for review because the trial

court’s order has already been entered.

The Defendant asserts that the Tribe’s interlocutory appeal is not ripe for review because

no information has been provided regarding the specific facts and circumstances that resulted in

Ms. Montano being convicted for conspiracy to sell a narcotic drug in 1990. This argument fails

for two reasons. First, “ripeness” is not an issue because the trial court has already issued a

ruling regarding the conviction’s admissibility. This is a ruling that is reviewable on

interlocutory appeal. Second, the admissibility of prior convictions pursuant to Fed. R. Evid.

609 — which substantially mirrors PYT R. Evid., Rule 30 — does not depend in any way on the

introduction of extrinsic evidence.

A. The trial court’s ruling regarding the admissibility of Ms. Montano’s conviction is

ripe for review because the ruling is final, and means that injury caused by the

court’s ruling is “certainly likely.”

It is well settled that courts lack jurisdiction to evaluate any claim unless it is ripe for

review. United States v. Streich, 560 F.3d 926, 931 (9th Cir. 2009). Ripeness “is peculiarly a

question of timing.” Jd. (quoting Thomas v. Union Carbide Agr. Prods. Co., 472 US 568, 580

(1985). “A claim is not ripe if it involves contingent future events that may not occur as

anticipated, or indeed may not occur at all.” Jd. (internal citations and quotations omitted). A

litigant does not need to await actual injury in order to obtain some sort of preventative relief.

Id. So long as the injury is “certainly impending,” the issue presented is fit for judicial decision,

and the parties would suffer hardship if such decision is withheld until actual injury occurs, the

issue will be considered ripe for judicial review. Id.

Here, the Defendant argues that the fact that he lacks information concerning the exact

circumstances surrounding Ms. Montano’s conviction renders review of the trial court’s order

regarding its admittance at trial unripe for appellate review. The Defendant is mistaken as this

extrinsic evidence has no bearing on ripeness. The trial court has already ruled that the

conviction can be admitted at trial. Although one can argue that actual injury has yet to happen

because trial has yet to commence, the prejudice that will be caused to the prosecution by

allowing the defense to impeach Ms. Montano with an ancient, irrelevant conviction is more than

certainly impending because of the trial court’s ruling. Thus, the issue is ripe for review.

B. “Ripeness” does not depend on the extrinsic details of Ms. Montano’s conviction as Fed.

R. Evid., Rule 608(b) prohibits the use of extrinsic information regarding a witness’

prior at trial except under very limited circumstances.

The Defendant also argues that the Tribe’s interlocutory appeal is not ripe because he

does not have information concerning the extrinsic facts of Ms. Montano’s conviction.

Specifically, he claims that the trial court’s ruling as to admissibility cannot be reviewed without

9

knowing whether Ms. Montano’s conviction involved some element of dishonesty or moral

turpitude. As discussed above, “ripeness” is an issue of timing, and not one of extrinsic facts.

Furthermore, Fed. R. Evid., Rule 608(b) specifically states that “extrinsic evidence is not

admissible to prove specific instances of a witness’s conduct in order to attack or support the

witness’s character for truthfulness.” (emphasis added); see also United States v. Osazuwa, 564

F.3d 1169, 1175 (9" Cir. 2009). The scope of inquiry is purposefully limited by the rule

“because of the unfair prejudice and confusion that could result from eliciting details of the prior

crime.” Id. Accordingly, this argument has absolutely no bearing on ripeness.

II. Neither ICRA, Tribal or federal law allows the Defendant to require the use of a

single, older federal rule of evidence and related caselaw to the exclusion of all

current Tribal and federal law.

The Defendant asserts that the Indian Civil Rights Act, codified in 25 U.S.C. § 1301-

1303, grants him a “protected right to apply the Federal Rules of Evidence in [his] case.” See

Response, Lopez, CA-18-001, at p.4. In doing so, he relies primarily upon 3 PYTC § 2-2-430(c)

which states, “Whenever due process or the court requires, the Federal Rules of Evidence shall

be adopted in any trial proceeding or evidentiary hearing, unless otherwise found by the court to

have been voluntarily and intelligently waived by the defendant.” (emphasis added).

The Tribe notes that the Defendant’s desired application of this rule is problematic from a

construction standpoint for two reasons. First, the text of the rule itself suggests that, rather than

being applied as a matter of course in every criminal case, it should only be invoked when Tribal

tules and procedures fail to adequately protect a defendant’s due process rights, or when the trial

court requires its application. Second, application of this rule in a particular case serves to render

an entire chapter of the Pascua Yaqui Tribal Code superfluous. See Corley v. United States, 556

U.S. 303, 314 (2009) (laws within a statutory scheme are to be interpreted “so that effect is given

to all its provisions” and “so that no part will be inoperative or superfluous, void or

10

insignificant.”) However, whether 3 PYTC § 2-2-430(c) has been correctly invoked in the

Defendant’s particular case is not an issue that this Court needs to address in order to resolve the

interlocutory appeal. This is because Ms. Montano’s conviction is inadmissible under both

Tribal and Federal law..

The Indian Civil Rights Act, codified in 25 U.S.C. § 1301-1303, grants Native defendants

the same due process rights afforded to non-Native defendants under the Bill of Rights. 25

U.S.C. § 1302(a)(8). specifically prohibits tribal governments from “deny[ing] to any person

within its jurisdiction the equal protection of its law or depriv[ing] any person of liberty or

property without due process of law.” The Pascua Yaqui Tribal Constitution includes the same

protections outlined in ICRA. See Art. I, § 1 Pascua Yaqui Tribal Const.. The Defendant relies

upon these guarantees to urge this Court to entertain a unique proposition: namely, that due

process requires that a defendant be allowed to pick and choose not only which body of laws

should apply to his case, but also which historic version should be used.

Other than citing to ICRA, the Defendant did not provide authority from any jurisdiction

that supports his proposition. The Tribe has likewise been unable to find any authority

suggesting that the Defendant’s argument is correct, because there is none. Indeed, even the

most generous reading of ICRA or the Tribal and Federal Constitutions does not support the

proposition that a party may rely upon a historical version of a law simply because that particular

version might be more beneficial to his case.

III. The Defendant’s arguments regarding the admissibility of Ms. Montano’s

conviction are based on an old version of the Federal Rules of Evidence, and case

law interpreting those older versions.

As the trial court did in its ruling, the Defendant relies heavily upon United States v.

Ortega, 561 F.2d 803 (9 Cir. 1977) in support of his argument that Ms. Montano’s conviction is

admissible pursuant to Fed. R. Evid., Rule 608 — and, by extension, 3 PYT R. Evid., Rule 29.

11

Specifically, the Defendant relies upon Ortega for the proposition that evidence of a non-defense

witness’ prior conviction can be admitted without determining whether the prejudicial effect of

the evidence greatly outweighs its probative value. He asserts that, because Ortega has not been

specifically overruled, it is still considered good law. His argument carries the implication that,

because Ortega has not been directly overruled by name, it carries more persuasive and

precedential weight than current caselaw interpreting current versions of the Federal Evidentiary

Rules.

In its Opening Brief, the Tribe extensively discussed the history of Fed. R. Evid., Rules

608 and 609 and when relevant amendments took effect. Those discussions will not be reiterated

here. However, while Ortega has not been flagged by Westlaw as having been overturned,®

Ortega was decided the same year as United States v. Nevitt, 563 F.2d 406, 408 (9" Cir, 1977).

Nevitt addressed the same issue that Ortega did, and also concluded that the federal rules barred

the use of any sort of balancing test when determining whether a witness’ prior conviction was

admissible under Rule 608. Jd. Nevitt was addressed by name in the Ninth Circuit’s ruling in

United States v. Rowe, 92 F.3d. 928, 933 (9" Cir. 1996), a federal case which analyzed the same

issue addressed by Nevitt and Ortega. The Rowe court, not surprisingly, concluded that courts

must engage in Fed. R. Evid., Rule 403 balancing test even when admitting prior convictions

under Rules 608 and 609 because the law had changed.

The Defendant’s reliance upon Ortega is misplaced because it analyzed a version of the

Federal Evidentiary Rules that is no longer in effect. Accordingly, the Tribe respectfully

requests that relief be granted.

° The Tribe notes that the Keycite and/or “Sheparding” flags included with cases and statutes on Westlaw are only as

good as the individuals who put them there. Every day, hundreds of opinions are written in just as many cases

across the United States. Sometimes, the research engine employees responsible for flagging cases make mistakes,

and miss flagging cases that have been affected by a change in statutory law. This error does not mean that the

incorrectly flagged case is still good or current law. Indeed, this Court is in no way bound by Westlaw’s internal

legal research.

12

IV. Precluding use of Ms. Montano’s conviction at trial will not violate the Defendant’s

Confrontation rights because courts have the authority to limit a defendant’s

ability to cross-examine a witness.

All defendants have a right to confront the witnesses that the prosecution calls against

them at trial. That being said, courts have “considerable discretion in restricting crossexamination.” United States v. Bensimon, 172 F.3d 1121, 1128 (9th Cir. 1999). “A limitation on

cross-examination does not violate the Confrontation Clause unless it limits relevant testimony

and prejudices the defendant, and denies the jury sufficient information to appraise the biases and

motivations of the witness.” Jd. (emphasis added). “A defendant’s constitutional right to

confront witnesses through cross-examination is limited to issues relevant to the trial.” United

States v. Bonanno, 852 F.2d 434, 439 (9" Cir. 1988). “Generally, once cross-examination

reveals sufficient information with which to appraise a witness’s possible bias and motives,

confrontation demands are satisfied.” Id.; see also Delaware v. Van Arsdall, 475 U.S. 673, 679,

106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (“The Confrontation Clause guarantees an opportunity

for effective cross-examination, not cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.” (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106

S.Ct. 292, 88 L.Ed.2d 15 (1985))); United States v. Lo, 231 F.3d 471, 482 (9th Cir. 2000),

holding modified by United States v. Larson, 495 F.3d 1094 (9th Cir. 2007).

The Defendant argues that his due process right of confrontation will be violated if he is

not allowed to cross-examine Ms. Montano as to either the existence or nature of her prior

conviction. What the Defendant cannot demonstrate, however, is how Ms. Montano’s prior

conviction is at all relevant to his case. Ms. Montano was convicted in 1990 for conspiracy to

sell a narcotic drug. The basic elements of that crime did not require the prosecution to prove

anything relating to whether Ms. Montano was truthful. All state prosecutors needed to prove

was that she conspired with at least one other individual to sell a narcotic drug. See Ariz. Rev.

13

| Stat. §§ 13-1003(A), 13-3408.’ Ms. Montano was ordered to serve a term of probation. She

successfully completed that probation in 1997. She has not been convicted of any felonies — or

any other crimes — since.

Ms. Montano’s testimony in this case will consist of events she saw and heard in 2017,

27 years after she was convicted. The Defendant has not been able to suggest that Ms.

Montano’s conviction gives her a motive to lie about or misremember the events she witnessed

in her neighborhood. Her conviction is irrelevant both to her credibility as a witness and to the

Defendant’s guilt or innocence. Any limited probative value it might have is substantially

outweighed by the prejudice its introduction will cause. Forcing her to testify as to her conviction

serves no purpose other than to embarrass and harass her, confuse the issues, and mislead the

jury as to who and what crime are on trial.

On the other hand, preclusion of Ms. Montano’s prior conviction or placing limitations

on how the issue can be explored through cross-examination does not unduly limit the

Defendant’s ability to confront Ms. Montano. The Defendant may still cross-examine her on a

variety of issues relevant to her credibility, including her relationship (if any) she had with the

Defendant, whether she was distracted with other tasks when her daughter’s dog was shot,

whether lighting, environmental, or physical conditions might have affected her ability to see and

hear what happened. As the United State Supreme Court has noted, due process and the

“Confrontation Clause guarantee[] an opportunity for effective cross-examination, not crossexamination that is effective in whatever way, and to whatever extent, the defense might wish.”

Van Arsdall, 475 U.S. at 679 (internal citations and quotations omitted).

’ While preparing its Reply, the Tribe discovered that it had mistakenly indicated in its opening brief that Arizona’s

conspiracy statute was codified as Ariz. Rev. Stat. § 13-1001(A). That citation is incorrect and applies to “attempt”

classifications, not conspiracy.

14

CONCLUSION AND REMEDY SOUGHT

The trial court’s ruling as to the admissibility of Ms. Montano’s prior conviction was

both contrary to law and an abuse of discretion. Appellant respectfully requests that the trial

court’s ruling be reversed, and that this case be remanded for further proceedings.

/ Oscar J. Flores

f, J

/ Chief Prosecutor”

(7

15

RESPECTFULLY submitted this 19th day of September, 2018.

Mbd LCA

Kendrick Wilson

Deputy Prosecutor

Ps ) — =

( Fu { : C

ee bd Y — ————_

Coleen Thoene

Deputy Prosecutor

CERTIFICATE OF SERVICE

I hereby certify that the Tribe’s pleading was delivered this date to:

Benjamin Casey

Ben.Casey@pascuayaqui-nsn.gov

Clerk of the Court of Appeals

Pascua Yaqui Court of Appeals

7777 8. Camino Huivisim

Tucson, AZ 85757

And that one (1) copy of the Tribe’s pleading was delivered, this date to:

Annamarie Valdivia

Annamarie. Valdivia@pascuayaqui-nsn.gov

Pascua Yaqui Office of the Public Defender

7474 S. Camino de Oeste

Tucson, AZ 85757

And that one (1) copy of the Tribe’s pleading was delivered this date to:

Associate Judge Melvin Stoof

Pascua Yaqui Tribal Court

7777 S. Camino Huivisim

Tucson, AZ 85757

Dated this 19 day of September, 2018.

PASCUA YAQUI PROSECUTOR

q

Nadal Uh

Kendrick Wilson

Deputy Prosecutor

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{[ ~ a7 es ee

Coleen Thoene

Deputy Prosecutor

Sworn before me this day of , 2018

Notary Signature

16

PEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE, APPELLATE CASE NO. CA-18-001

PASCUA YAQUI TRIBAL COURT NO.

AC-17-202

Appellant,

vs.

LOPEZ, Antonio,

)

)

)

)

)

)

)

)

Appellee. )

)

APPELLEE’S RESPONSE BRIEF

PASCUA YAQUI PUBLIC DEFENDER

Annamarie L. Valdivia

Chief Public Defender

PYT Bar #10267

4725 W. Calle Tetakusim, Building B

Tucson, AZ 85757

(520) 883-5013

Attorney for Appellee Antonio Lopez

VII.

TABLE

OF CONTENTS

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INTRODUCTIONS asic sssnencees evan cannons ccen ss sinsuws coe nes meenawee ors 98 a eemmeme ¢ ae preemie 4

ARCUMEIN Tose is css aanewsnas csv sxamenwema assess eeemen eave 1s ommneo 420049 9 eecnemens + syoemerneen 4-6

CONCLUSION js iissscessices iad ccommemne pes c2 s ewenmes ove anpmemne eaamegse aya t spears sre pooeees 6

CERTIFICATE OF COMPLIANCE. . nsicasson ects es siasum ye rs as wemnows emcees ee rena eives ss 7

CERTIFICATE OF SERVI Ciissscsonus ius ssvncsasaws sea sisamuaw o4eans esmmmemmmee sets saveree es 8

TABLE OF AUTHORITIES

CASE Law

Afford v. United States (1931) 282 U.S. 687 (1931). ......ccccc cece cece renee eee ener ence ene ents eee e nines 6

Davis v, Alaska, 415 U.S. 308 (1974)... ccc een n ene tener nes 6

Smith v. Illinois, 390 U.S. 129 (1968)... ccc cece ence een eee eee teens tensa een ence enneree® 6

United States v. Alvarez-Lopez 559 F.2d 1155 (9th Cit. 1977)... 0... cee eee cere eee en eee ne ene e ener niees 6

United States v. Dixon 547 F.2d 1079 (Oth Cir. 1976).......ccccccccee cece eee ee eee ee eee eee eens nen een eens 6

United States v Ortege, 561 F.2d 803 (Oth Civ, 1977)... 2p semeve cee rerenennne rere sennnene cee neamenme ene 5

TRIBAL STATUTES

Sos hl Oe | 0 nn 4

FEDERAL STATUTES

Federal Rules of Evidence (generally).............ccccccrertesennnecectesnnaaeeed ibaa asanennad eden eda tin’ 4

25 USS.C. § 1301-1302 (Indian Civil Rights Act). ccc cece cece e ere eter entre ea en teen ties 4-5

Ao ORR OF Ws 0s 0 nee ene 4-5

FRE 608.00... 00 cece cece cee eee eee enn ene E nL EEE EERE SED E EEE EE EES EEE EEE EEE EEE EEE EEE Ee res 5

FRE 609.0... cece cece cee ene ene e EEE EEE EEE EEE EEE E EEE EEE EEE EEE eee EEE EEE ESE EEE ene Ee ete 5

FRE 403.0... .c cece cece ce eee een ene erent n reenter Een EEE EEE DEE; e Eee nE eee tbe Eee e eaten rene Et etds 5

I. INTRODUCTION

Appellant, Mr. Lopez hereby submits the following response to the Tribe’s Opening Brief of

the Appellant. Jury trial in this case was set for May 22, 2018 and is currently stayed pending the

outcome of this interlocutory appeal. Mr. Lopez is out of custody. Mr. Lopez does not dispute

jurisdiction in this case and agrees that oral argument would be in the interests of justice. While

some of the alleged facts are contested by Mr. Lopez and determination of guilt has yet to be

made, the Tribe adequately addresses the relevant proceedings below. Mr. Lopez makes no

admissions.

II. ARGUMENT

1. The Trial Court Properly Admitted Evidence of Prior Acts Committed By The

Alleged Victim.

The Federal Rules of Evidence apply in this case. “Whenever due process or the court

requires, the Federal Rules of Evidence (“FRE”) shall be adopted in any trial proceeding or

evidentiary hearing, unless otherwise found by the court to have been voluntarily and intelligently

waived by the defendant.” 3 PYTC 2-2-430. Mr. Lopez did not waive his protected right to apply the

Federal Rules of Evidence in this case. In fact, Mr. Lopez specifically requested application of the

Federal Rules of Evidence in this case. (Case Index #31, Case File pp. 103-106).

The Indian Civil Rights Act (“ICRA”) requires that tribal courts afford defendants the same

rights guaranteed under the U.S. Constitution’s Bill of Rights. See 25 U.S.C. §1301-1303. Specifically,

25 U.S.C. § 1302 — 25 U.S.C. § 1302 (a)(8) prohibits tribal courts from “depriving any person of

liberty or property without due process of law.” Although the Pascua 3 PYT R. Evid., Rule 30

generally prohibits the use of impeachment material to other bad acts that are more than ten years

old, the federal rules do not.

Because Mr. Lopez is protected by the ICRA and he demanded due process in this case, the

time limits set forth in FRE 609 are controlling. Rule FRE 609 does not limit the admission of prior

bad acts to those committed within 10 years from the date of an offense. Per FRE 609, felonies that

are more than ten years old may be used if their “probative value, supported by specific facts and

circumstances, substantially outweighs its prejudicial effect.”

Mr. Lopez knows that Mr. Montafio was convicted of a drug trafficking offense that

involved a conspiracy. The Tribe has failed to indicate what role Ms. Montano played in her

conspitacy conviction. Defense does not know what actions she took in furtherance of the

conspiracy. Without additional information on Ms. Montafio’s prior conviction, it is impossible to

know whether the probative value of this offense outweighs its tendency to cause undue prejudice.

Furthermore, FRE 608(b) does not prohibit use of extrinsic evidence to prove up the alleged

victim’s prior drug trafficking conviction. Therefore, this argument is not ripe.

2. FRE 608 does not require sanitization of prior conviction being used to attack the

credibility of a witness.

FRE 608 permits “Rule 609(a) does not permit any [FRE 403] weighing process with respect to

such impeaching evidence elicited by a defendant. The evidence produced in his defense cannot

have a prejudicial effect ‘to the defendant.” United States v. Ortega, 561 F.2d 803, 806 (9th Cir. 1977).

United States v. Ortega remains good law and has not been overturned. Mr. Lopez has a fundamental

right to due process and to confront his accusers under the Pascua Yaqui Constitution and the

ICRA. 25 U.S.C. § 1302(a)(6). The rules of evidence were meant to protect these rights, and to

protect the Defendant against undue prejudice. And to ensure that these rights were protected, tribal

code provides for the use of the federal rules of evidence. Limiting Mr. Lopez’s tight to cross-

examine a witness would be a kin to limiting Mr. Lopez’s liberty and access to due process. “Error in

the restriction of a defendant's cross-examination of a government witness has constitutional

implications and, therefore, we must be extremely hesitant in brushing aside such error as harmless.”

Ortega, 561 F.2d at 806 (citing, Davis v. Alaska (1974) 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347;

Smith v. UWlinois (1968) 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956; Afford v. United States (1931) 282

USS. 687, 51 S.Ct. 218, 75 L.Ed. 624; United States v. Alvarez-Lopex (9th Cir. 1977) 559 F.2d 1155. See

also United States v. Dixon (Oth Cir. 1976) 547 F.2d 1079, 1083-84).

II. CONCLUSION

Based on the above, Mr. Lopez respectfully requests that this Court deny the Tribe’s request for

relief and find that the Pascua Yaqui Tribe Trial Court did not abuse its discretion by permitting use

of the alleged victim’s prior drug trafficking conviction for impeachment purposes at trial.

RESPECTFULLY SUBMITTED: — September 4, 2018.

PASCUA YAQUI PUBLIC DEFENDER

Annamarie L. Valdivia

Senior Staff Attorney

Pascua Yaqui Public Defender

4725 W. Calle Tetakusim, Building B

Tucson, AZ 85757

(520) 883-5013

Attorney for Appellee Antonio Lopez

CERTIFICATE OF COMPLIANCE

This brief complies with the provisions set forth in 3 PYTC Part II, Chapter 2-3.

PASCUA YAQUI PUBLIC DEFENDER

eo. LD

Annamarie L. Valdivia

Senior Staff Attorney

Pascua Yaqui Public Defender

4725 W. Calle Tetakusim, Building B

Tucson, AZ 85757

(520) 883-5013

Attorney for Appellee Antonio Lopez

CERTIFICATE OF SERVICE

On September 4, 2018 the original and 5 copies of the Supplemental Appellant Brief were filed, and

conforming copies were sent to the following:

Pascua Yaqui Office of the Prosecutor

Deputy Prosecutor

Kendrick Wilson

7777 S. Camino Huivisim, Bldg. A

Tucson, AZ 85757

Antonio Lopez, Appellant

PASCUA YAQUI PUBLIC DEFENDER

Annamarie L. Valdivia

Senior Staff Attorney

Pascua Yaqui Public Defender

4725 W. Calle Tetakusim, Building B

Tucson, AZ 85757

(520) 883-5013

Attorney for Appellee Antonio Lopez

IN THE PASCUA YAQUI COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION, ARIZONA

PASCUA YAQUI TRIBE,

OFFICE OF THE PROSECUTOR

APPELLATE CASE NO: CA-18-001

Petitioner

VS. TRIBAL COURT CASE NO: AC-17-020

Hon. Melvin Stoof, Judge, Pascua Yaqui Tribal

Court,

ANTONIO JULIAN LOPEZ,

Real Party in Interest:!

PETITIONER/APPELLANT’S SUPPLEMENTAL EXHIBITS

Oscar J. Flores,

Chief Prosecutor

Kendrick Wilson, Coleen Thoene,

Deputy Prosecutors

Pascua Yaqui Office of the Prosecutor

7777 S. Camino Huivisim

Bldg. A, 2"4 Floor

Tucson, AZ 85757

Telephone: (520) 876-6251

Oscar.J.Flores@pascuayaqui-nsn.gov

Attorneys for the Pascua Yaqui Tribe

1 In Special Actions, the complaint names the body, officer, or person against whom relief is sought. However, “[i]f

any public body, tribunal, or officer is named as a defendant, the real party or parties in interest shall be joined as

defendants.” Rule 2(a)(1), Ariz. R. P. Spec. Act. In such circumstances, the practice is to direct the writ in form to

the court as a matter of courtesy, but in fact leave its handling to the Real Party in Interest. See Rule 2, Ariz. R. P.

Spec. Act., State Bar Committee Notes, section (a).

1

On August 1, 2018, the Petitioner/Appellant filed its opening brief with the Pascua Yaqui

Court of Appeals. As part of that brief, the Petitioner made reference to portions of the trial

court’s record, and indicated that there were attached exhibits. However, upon review, it was

discovered that the exhibits were not attached as intended.

Accordingly, the Petitioner now submits the following supplemental exhibits for this

Court’s consideration pursuant to 3 PYTC § 2-3-110(c) and (e).

RESPECTFULLY submitted this 2nd day of August, 2018. -

Mleiidel UL

"Kendrick Wilson

Deputy Prosecutor

f 4 = ———

Ogle

“a —— mn

aa

Coleen Thoene

Deputy Prosecutor

CERTIFICATE OF SERVICE

I hereby certify that the Tribe’s pleading was delivered this date to:

Benjamin Casey

Ben.Casey@pascuayaqui-nsn.gov

Clerk of the Court of Appeals

Pascua Yaqui Court of Appeals

7777 S. Camino Huivisim

Tucson, AZ 85757

And that one (1) copy of the Tribe’s pleading was delivered, this date to:

Annamarie Valdivia

Annamarie. Valdivia@pascuayaqui-nsn.gov

Pascua Yaqui Office of the Public Defender

7474 S. Camino de Oeste

Tucson, AZ 85757

And that one (1) copy of the Tribe’s pleading was delivered this date to:

Associate Judge Melvin Stoof

Pascua Yaqui Tribal Court

7777 S. Camino Huivisim

Tucson, AZ 85757

Dated this 2 day of August, 2018.

PASCUA YAQUI PROSECUTOR

HA.

endrick Wilson

Deputy Prosecutor

CC ASS

Coleen Thoene

Deputy Prosecutor

Sworn before me this ae nol day of August , 2018

Yt Mad

tary gnature

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