Section 117(a) of Title 18, United States Code, makes it a federal crime for any person to “commit[] a domestic assault within the special maritime and territorial jurisdiction of the United States or Indian country” if the person “has a final conviction on at least 2 separate prior occasions in Federal, State, or Indian tribal court proceedings for” enumerated domestic violence offenses. 18 U.S.C. 117(a). The question presented is whether reliance on valid uncounseled tribal-court misdemeanor convictions to prove Section 117(a)’s predicate-offense element violates the Constitution.
Lower court opinion: United States v. Bryant, 769 F.3d 671 (9th Cir. 2014)
This case will primarily be of interest to federal practitioners but could also have application in state law. A line of Supreme Court cases holds that a prior conviction obtained in violation of the Sixth Amendment right to counsel cannot be used to satisfy an element of or enhance the penalty for a subsequent crime. See, e.g., Burgett v. Texas, 389 U.S. 109 (1967); United States v. Tucker, 404 U.S. 443 (1972). But not all convictions obtained in the absence of counsel violate the Sixth Amendment: those which do not result in imprisonment, for example. In Nichols v. United States, 511 U.S. 738 (1994), the Court thus held that an uncounseled prior conviction resulting only in a fine could be used to enhance sentence.
Another category of uncounseled convictions that may nevertheless be valid are those obtained in the tribal courts, where the Constitution generally does not apply. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). (Federal statutes do provide a right to retained counsel in all cases in such courts and to appointed counsel in more serious cases; tribal authorities are free to provide greater protections as well. See United States v. First, 731 F.3d 998, 1002 n. 3&4 (9th Cir. 2013)).
In this case, the Ninth Circuit held that two prior uncounseled convictions from the Northern Cheyenne Tribal Court could not fulfill an element of the federal offense for which Mr. Bryant was convicted. In so doing, it relied on circuit precedent and distinguished Nichols; it also placed itself squarely in conflict with two other federal circuits, the Eighth (United States v. Shavanaux, 647 F.3d 993 (10th Cir.2011)) and the Tenth (United States v. Cavanaugh, 643 F.3d 592 (8th Cir.2011)).
On Point has located no Wisconsin cases addressing the constitutional issue the Court will now take up. It could arise here though, at least theoretically: of particular note, Wis. Stat. § 343.307 provides that OWI priors include convictions for “violations of a law of a federally recognized American Indian tribe or band in this state.”
