[00:00:00] Speaker 03:
The first case before us this morning is United States versus Hadley 237046.

[00:00:10] Speaker 03:
And counsel, when you are ready, we are ready.

[00:00:15] Speaker 02:
Thank you.

[00:00:16] Speaker 02:
Good morning, may it please the court.

[00:00:17] Speaker 02:
My name is Jamie Johnson.

[00:00:18] Speaker 02:
I'm an assistant federal public defender, and I represent Boyd-Hadley.

[00:00:24] Speaker 02:
I would like to start with the first issue that we raised, which is the issue of Indian status.

[00:00:30] Speaker 02:
This issue is entirely controlled by this court's recent opinion in the United States versus Harper.

[00:00:37] Speaker 02:
In this case, as in Harper, the government had to prove that the defendant was Indian,

[00:00:42] Speaker 02:
And in both cases, the government failed to produce the actual tribal records that would have established the defendant's Indian status and instead had a custodian write a letter describing the contents of those records and then also called that custodian as a witness to vouch for the letter and its contents.

[00:01:02] Speaker 02:
As in Harper, that was error.

[00:01:05] Speaker 03:
Is there any time component of Indian status?

[00:01:11] Speaker 02:
Yes, so as we explained in our briefing,

[00:01:17] Speaker 02:
The statute requires that the crime be committed by an Indian, and therefore the status that is relevant is the defendant's status at the time that the offense is committed.

[00:01:31] Speaker 02:
This is consistent with this court's reasoning in the Drury case, and it is also, has been the express holding of the Ambach Ninth Circuit in the United States versus Zepeda.

[00:01:43] Speaker 02:
The time component is really what saves this statute from being a purely racial test.

[00:01:50] Speaker 02:
If all that the government has to do is find an individual who has some Indian blood, which is the first prong of the test,

[00:01:58] Speaker 02:
And then the government can later, down the road, proclaim this person to be an Indian, thereby satisfying the second prong of the test.

[00:02:06] Speaker 02:
Really, what it means is that anyone with Indian blood can become an Indian and be prosecuted by the federal court.

[00:02:14] Speaker 02:
And that does not appear to be what is envisioned by the statute.

[00:02:19] Speaker 02:
And it is one of the issues that the Ninth Circuit pointed out in Zepeda, is that holding that

[00:02:25] Speaker 02:
a person can become an Indian after the fact and then be prosecuted for a crime, violates public policy provisions regarding notice, and invites gamesmanship among the parties.

[00:02:38] Speaker 04:
Council, can I challenge you on your proposition that Harper controls the outcome here?

[00:02:42] Speaker 02:
Yes.

[00:02:42] Speaker 04:
So Harper, as you noted, was the same type of verification letter from a different tribe.

[00:02:49] Speaker 04:
And so let's say I spot you that the Harper decision impacts government exhibit 50, and that we were to say that that exhibit should not have been admitted into evidence for all the reasons that Harper says.

[00:03:01] Speaker 04:
But why here isn't there a harmless error?

[00:03:04] Speaker 04:
Because unlike Harper,

[00:03:05] Speaker 04:
there was additional evidence of Indian status, such as government exhibit 51, the state court pleading that was not challenged, it was objected to, admitted, but not challenged on appeal.

[00:03:16] Speaker 04:
And then of course you have Mr. Hatley's testimony agreeing that he is both of Indian blood and a member of the tribe.

[00:03:22] Speaker 04:
So why couldn't the jury take all of that and make reasonable inferences that he was, in fact, Indian status?

[00:03:28] Speaker 02:
Judge Federico, I think for the same reasons that I was just explaining to Judge McHugh, that information that you decided to, the document, the state court document that was heavily redacted,

[00:03:41] Speaker 02:
said that Mr. Hadley was, at the time that that document was created, which was three years after the events, that he was an enrolled member of the Cherokee Nation in 2020 when the accident happened in 2017.

[00:03:54] Speaker 02:
Mr. Hadley himself testified, you know, some five years after the accident and said, yes, I'm an enrolled member of the Cherokee Nation, made no reference to and did not explain his status earlier.

[00:04:03] Speaker 02:
So really,

[00:04:05] Speaker 02:
The only thing that the jury would have had to go off of was pure speculation.

[00:04:08] Speaker 02:
But this is not a sufficiency challenge.

[00:04:11] Speaker 02:
And so all we really have to, or the government would have to establish, that the admission of this testimony did not substantially sway the jury.

[00:04:18] Speaker 02:
And there really wasn't anything in the record other than this testimony establishing that he was an Indian at the time that the offense was committed.

[00:04:25] Speaker 03:
Well, he filed a motion to dismiss the state court proceedings.

[00:04:30] Speaker 03:
And the Oklahoma Court of Criminal Appeals has explicitly held that in order for you to be an Indian for purposes of the major crimes act that put you in federal court, you have to be an Indian at the time of the offense.

[00:04:49] Speaker 03:
So the fact that he filed that motion to dismiss in Oklahoma and the motion was granted, doesn't that establish its harmless error because it had to be because he was an Indian at the time of the offense or it wouldn't have been dismissed?

[00:05:04] Speaker 02:
No, Your Honor.

[00:05:05] Speaker 02:
None of that information about what this motion was or what it was accomplishing was before the jury.

[00:05:10] Speaker 02:
The document itself is heavily redacted.

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It contains only three lines of information plus a signature.

[00:05:19] Speaker 02:
It says the defendant, you know, now comes Lloyd-Hatley.

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The defendant is alleged to have caused a car accident.

[00:05:27] Speaker 02:
This location is within the boundaries of the Chickasaw Nation.

[00:05:30] Speaker 02:
The defendant is a citizen of the Cherokee Nation.

[00:05:32] Speaker 02:
It doesn't say anything about McGirt.

[00:05:34] Speaker 02:
It doesn't say this is a motion to dismiss the state court case for lack of jurisdiction.

[00:05:39] Speaker 02:
And this heavily redacted document is all that the jury had.

[00:05:43] Speaker 02:
It was all the information that was presented at trial.

[00:05:47] Speaker 01:
So, counsel, what do you think would be sufficient?

[00:05:50] Speaker 01:
Do we need the defendant to say, I was a member of the tribe at the time of the accident?

[00:05:58] Speaker 01:
We need a statement that says that.

[00:06:00] Speaker 01:
Is that your argument?

[00:06:02] Speaker 02:
Certainly, Judge, that would be sufficient.

[00:06:05] Speaker 02:
There are other options available.

[00:06:07] Speaker 02:
Obviously, the defendant does not testify in every case.

[00:06:09] Speaker 02:
In this case, he did.

[00:06:10] Speaker 02:
And the government could have asked.

[00:06:12] Speaker 02:
You know, they did ask, are you a member of the Bible out of the Cherokee Nation?

[00:06:15] Speaker 02:
And they could have said, was that also true in 2017?

[00:06:18] Speaker 02:
They just didn't ask that question.

[00:06:20] Speaker 02:
But there are other options.

[00:06:21] Speaker 02:
If the defendant doesn't testify, as was explained in Harper, the tribal records themselves, there's a CDIB card.

[00:06:28] Speaker 02:
There's the tribal enrollment documents.

[00:06:30] Speaker 02:
The documents that were summarized in this letter instead of presented to trial can be presented to show the defendant's Indian status.

[00:06:39] Speaker 03:
Well, you could also ask him when he was on the stand.

[00:06:42] Speaker 03:
Yes.

[00:06:43] Speaker 03:
Were you a member of the tribe at the time of the offense, right?

[00:06:47] Speaker 02:
Yes.

[00:06:48] Speaker 02:
Certainly, they could have done that.

[00:06:49] Speaker 02:
And if he had answered yes, that would have been sufficient, and we would not be raising this as an issue.

[00:06:59] Speaker 02:
If the panel does not have any additional questions on this topic, I can move to other issues.

[00:07:03] Speaker 02:
Yeah, let's talk about void for vagueness.

[00:07:06] Speaker 02:
Yes, Your Honor.

[00:07:07] Speaker 02:
This statute fails to provide sufficient notice to, without more explanation, to defendants of what conduct is expected of them while driving.

[00:07:21] Speaker 02:
The language itself is failing to devote full time and attention.

[00:07:25] Speaker 02:
It is

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as the Oklahoma state courts have held, it doesn't apply any fixed standard, and it requires more information in order to determine that this person's conduct was actually violative.

[00:07:38] Speaker 03:
So let me, I want to focus you for a minute.

[00:07:40] Speaker 03:
There's two predicates under which you could be convicted, and here the jury convicted under both.

[00:07:47] Speaker 03:
When you're arguing your void for vagueness, are we talking about committing a criminal act

[00:07:53] Speaker 03:
Or are we on the second predicate where it's a lawful act but done grossly negligently?

[00:08:01] Speaker 02:
Yes.

[00:08:01] Speaker 02:
The void for vagueness challenge is only as to the state court statute that requires drivers to devote full time and attention to driving.

[00:08:10] Speaker 03:
So it would be lawful but grossly negligent.

[00:08:16] Speaker 03:
I'm sorry.

[00:08:16] Speaker 03:
Oh, OK.

[00:08:17] Speaker 03:
You're saying you're on predicate one.

[00:08:19] Speaker 02:
I'm on predicate one, yes.

[00:08:20] Speaker 02:
And then arguments three and four relate to predicate number two.

[00:08:24] Speaker 02:
So it is somewhat unclear exactly what conduct, as a result of the vagueness of the statute, it becomes somewhat unclear what the jury actually convicted Mr. Hadley of.

[00:08:40] Speaker 02:
The government in its brief suggests that the error here was just simple failure to break.

[00:08:47] Speaker 02:
But that requires, under the case law, knowledge of circumstances that would make failing to break negligent.

[00:08:55] Speaker 02:
He must be actually aware that the car in front of him.

[00:08:57] Speaker 03:
Well, it actually has to be grossly negligent.

[00:08:59] Speaker 02:
Grossly negligent.

[00:09:00] Speaker 02:
Yes, excuse me.

[00:09:00] Speaker 02:
Grossly negligent.

[00:09:02] Speaker 02:
Thank you for the correction.

[00:09:04] Speaker 02:
that he had to have been actually aware of the circumstance that this car in front of him was slowing to a near stop on a road with a 65 mile an hour speed limit, apparently in preparation for engaging in illegal traffic maneuver.

[00:09:18] Speaker 02:
If he was unaware that the car was slowing, it would not be grossly negligent to fail to brake.

[00:09:24] Speaker 02:
There was no stoplight.

[00:09:25] Speaker 02:
There was no traffic signal.

[00:09:27] Speaker 02:
And combined that with the lack of fixed standards in the state statute for failing to devote full time and attention to driving, as applied to these circumstances,

[00:09:40] Speaker 02:
makes it very unclear what Mr. Hatley was convicted of.

[00:09:43] Speaker 02:
Now there are circumstances under which I think this failing to devote full time and attention to driving statute might not be insufficiently, might not be void for vagueness.

[00:09:53] Speaker 02:
We've only raised the out of supply challenge.

[00:09:55] Speaker 02:
For example, if somebody was texting, was doing a non-driving activity,

[00:10:00] Speaker 02:
That might be a circumstance in which, as applied to that person, the statute isn't vague.

[00:10:05] Speaker 02:
But there is no allegation that Mr. Hatley was engaged in any conduct that is not really a constituent act of driving.

[00:10:12] Speaker 02:
He was looking around, observing obstacles in the road, off to the side of the road, and unfortunately re-rendered this car that was engaged in an illegal traffic maneuver.

[00:10:21] Speaker 04:
Counsel, the brief cites Reed, which tells us that this is essentially an as-applied challenge, but Reed also instructs that it's very fact-intensive.

[00:10:30] Speaker 04:
Why didn't the government's bill of particulars on this count sort of satisfy the universe of facts that were needed here for us to look at that, and then the trial evidence to be satisfied that this, as it was applied to Mr. Hatley, you know, there are enough universe of facts to satisfy the vagueness standard.

[00:10:49] Speaker 02:
Well, the government's bill of particulars really only describes what happened.

[00:10:54] Speaker 02:
That they were, you know, he was driving down the road, there was a car in front of him, the car slowed to a near stop, he failed to apply his brakes.

[00:11:01] Speaker 02:
None of those facts are really in dispute.

[00:11:05] Speaker 02:
What is in dispute, or what the court concerned that the jury was being asked to vote on, is what he did that constituted failing to devote full-time and attention to driving, in addition to

[00:11:22] Speaker 02:
you know, what unlawful manner he committed this lawful act in.

[00:11:28] Speaker 02:
And the government's brief, even on appeal, just does not make that clear at all.

[00:11:33] Speaker 03:
Well, I think the argument is that he didn't, that based on the bill of particulars, that the car that was, I think, going two miles an hour could be seen for eight seconds

[00:11:48] Speaker 03:
and he didn't start applying his brake until one second before the collision.

[00:11:53] Speaker 03:
And so it essentially is an improper lookout argument.

[00:11:59] Speaker 02:
Well, Judge McHugh, the language of the statute is failing to devote full time and attention to driving.

[00:12:05] Speaker 02:
No one is disputing that he did not notice that this car had stopped in the middle of the roadway.

[00:12:10] Speaker 02:
Now, for gross negligence, as this court has explained in Benally, it would require that the government show that Mr. Hadley was actually aware, not just that the car could be seen, nobody disputes that the car could be seen, but that he actually saw it, that he actually noticed, not just that he saw the car, but that he was aware of the circumstance that the car was slowing to a near stop such that application of the brake was necessary and prudent.

[00:12:37] Speaker 03:
Is it your position that if he had been gazing out the window for 20 minutes and not looking at the road because he didn't know before he plowed into another car, that that's not a violation?

[00:12:51] Speaker 02:
No, Your Honor.

[00:12:52] Speaker 02:
I think gazing out the window for 20 minutes.

[00:12:54] Speaker 03:
So he doesn't have to be actually aware he's about to plow into another car.

[00:12:58] Speaker 03:
He has to be actually aware that the actions that he's taking, i.e.

[00:13:03] Speaker 03:
not looking at the road,

[00:13:05] Speaker 03:
would bring to his attention the risk of causing a serious injury?

[00:13:13] Speaker 02:
I think that when somebody's staring out the road for 20 minutes, we would concede that that person is aware that they are going to hit something, very likely.

[00:13:22] Speaker 02:
I think that

[00:13:25] Speaker 02:
The looking out the window for six to seven seconds, that's kind of the outside limit of what could have been established, but that actually was not something the government proved at trial.

[00:13:35] Speaker 02:
It was not something that Mr. Hadley admitted.

[00:13:36] Speaker 02:
What he said was, he was driving down the road.

[00:13:39] Speaker 02:
I didn't notice brake lights until I put my eyes back on the road after glancing off to the side of the road.

[00:13:48] Speaker 02:
Certainly, one could speculate that the reason he didn't see it is because he was looking at the car for longer than he thought.

[00:13:54] Speaker 02:
That wasn't something that the government proved at trial.

[00:13:58] Speaker 02:
It's also, in the world of speculation, it's also possible that he simply failed to notice that the brake lights were illuminated and didn't notice until he looked away and then looked back and then saw them for the first time.

[00:14:10] Speaker 02:
It's not, as we've discussed, it's not a place that one would traditionally break.

[00:14:14] Speaker 02:
And I see I'm running short on time.

[00:14:16] Speaker 02:
May I reserve the rest of my time for a bottle?

[00:14:19] Speaker 02:
Yes, you may.

[00:14:20] Speaker 02:
Thank you.

[00:14:32] Speaker 00:
May I proceed?

[00:14:42] Speaker 01:
Yes.

[00:14:43] Speaker 00:
May it please the court, my name is Benjamin Traster, and I represent the United States.

[00:14:48] Speaker 00:
The defendant contests the admissibility of the verification letter that was introduced to trial, and the government concedes that Harper controls the introduction, as hearsay, of the verification letter.

[00:15:00] Speaker 00:
However, as the court was asking,

[00:15:03] Speaker 00:
during counsel's argument.

[00:15:05] Speaker 00:
There was other evidence of the defendant's Indian status.

[00:15:09] Speaker 00:
And I would also note that it is important that there was also evidence both of defendant's Indian status at the time of the offense and defendant's Indian status at the time of the trial.

[00:15:21] Speaker 00:
That's important, and the way that that comes out is based on the timing of the interim Tribal Registrar's testimony.

[00:15:29] Speaker 03:
And I also want to come to it at... Well, if we agree that the Tribal Registrar's testimony has the same deficiencies as the verification letter, is there other evidence that goes to his Tribal status as of the time of the offense?

[00:15:46] Speaker 00:
At the time of the offense, the only evidence that I can point to, Judge McHugh, is actually with respect to your question, which is you have a defendant like Mr. Hatley who files a motion to dismiss in state court two weeks after the McGirt decision on July 17, 2020, in essence saying, McGirt applies to me, and this case should not be in state court.

[00:16:08] Speaker 00:
And I think that, as Judge McHugh, as you pointed out, that could be conceived circumstantially as an admission that he was an Indian at the time.

[00:16:16] Speaker 01:
I was going to say, but how?

[00:16:18] Speaker 04:
As your opposing counsel pointed out, the jury doesn't know any of that.

[00:16:24] Speaker 04:
So if the jury has to make a reasonable inference from the evidence, how would they know what the legal consequences are of that statement just saying, I'm a member of the Cherokee Nation?

[00:16:35] Speaker 00:
That's correct in part, but I do think when the questions came out, when the exhibit was introduced, exhibit 51, and the questions came out, the exhibit was tied to, it was clearly related to the state case and it was tied to the state case.

[00:16:50] Speaker 00:
It talks about that the defendant was an Indian, a member of the Cherokee Nation.

[00:16:54] Speaker 00:
It talks about that it happened on the Chickasaw.

[00:16:56] Speaker 00:
reservation.

[00:16:57] Speaker 00:
It happened at the location where the accident occurred.

[00:17:00] Speaker 00:
So I think there are ways that that motion to dismiss in the state case can tie back to the time of the offense.

[00:17:08] Speaker 03:
Well, the motion to dismiss

[00:17:12] Speaker 03:
says I am a member.

[00:17:14] Speaker 03:
It doesn't say when he became a member.

[00:17:17] Speaker 03:
And the more difficult thing for me is that the district court gave a specific instruction that said Indian Tribal Document Certification that Mr. Hadley had some degree of Indian blood

[00:17:30] Speaker 03:
and that he is enrolled in tribal member is sufficient to show both that he has some degree of Indian blood and that he is recognized as an Indian by the tribe.

[00:17:39] Speaker 03:
The court gave an instruction, here's what you need to do to prove Indian status and oh, by the way, the verification letter checks both of those boxes.

[00:17:50] Speaker 03:
I mean, I think that's a big problem in terms of us deciding it was harmless.

[00:17:55] Speaker 00:
Well, I would note that that instruction, first of all, was asked for by the defense as well as the government.

[00:18:02] Speaker 00:
That was an invited jury instruction.

[00:18:04] Speaker 00:
It was proposed in volume one, page 387 and 388.

[00:18:07] Speaker 00:
You can actually see the jury instruction that the defendant requested.

[00:18:12] Speaker 00:
And what it requests is this present tense recognition of defendant's Indian status, that he is an Indian.

[00:18:18] Speaker 00:
He is recognized as an Indian and here are the ways that one can show his Indian status.

[00:18:24] Speaker 00:
I do think that's important with respect.

[00:18:25] Speaker 03:
But if we join the other cases that have decided it and we hold that in order for you to meet your burden to prove this element of the offense, you have to show Indian status

[00:18:40] Speaker 03:
at the time of the offense, I'm not sure that the defendant can waive your obligation to prove an element of the crime.

[00:18:48] Speaker 00:
Well, I think that there is a question.

[00:18:51] Speaker 00:
So there's a number of problems here, and one of them is that the defendant didn't argue this.

[00:18:56] Speaker 00:
in defendant's opening brief.

[00:18:57] Speaker 00:
What defendant did was simply assumed based on a jury instruction in wood two that the jury instruction was at the time of the offense defendant's Indian status.

[00:19:08] Speaker 00:
But the instruction proposed by the defendant and then provided by the court was the present tense instruction.

[00:19:15] Speaker 00:
So this wasn't argued.

[00:19:16] Speaker 00:
Defendant actually goes and eventually argues in the reply brief that even if it wasn't argued, it was plain error.

[00:19:22] Speaker 00:
But that wasn't developed.

[00:19:23] Speaker 00:
And it was essentially waived in the opening brief.

[00:19:25] Speaker 00:
I want to go back and also just point out that the way that the testimony came out, the way that Derek Vann, the interim tribal registrar, testified, there was no objection to his testimony at any point.

[00:19:39] Speaker 00:
There was no objection on the basis of hearsay.

[00:19:41] Speaker 03:
Well, the objection was foundation when he started testifying about Indian status, meaning you personally don't have any knowledge.

[00:19:52] Speaker 03:
That's the proper objection there, is foundation.

[00:19:55] Speaker 00:
And I think that as the interim tribal registrar, and even in the Harper case, there's a distinction in the Harper case.

[00:20:02] Speaker 00:
that the custodian in the Harper case, Tabitha Oaks, testified generally about her knowledge of the records with the Choctaw Nation.

[00:20:11] Speaker 00:
She testified about CDIB cards.

[00:20:13] Speaker 00:
She didn't testify that she knew anything about the defendant in that case.

[00:20:17] Speaker 03:
Neither did Mr. Van, and when he was asked, you know, can you tell us, he said no.

[00:20:24] Speaker 03:
And I have to look at the verification letter.

[00:20:26] Speaker 03:
I think it's this, but I don't know without looking at the letter.

[00:20:30] Speaker 03:
There was no evidence that he even knew the defendant.

[00:20:35] Speaker 00:
So I would point, Your Honor, to his testimony, I think on page 222 or 223 of volume 3.

[00:20:44] Speaker 00:
where one of the things that he does is he actually points out the lineage of the Indian.

[00:20:50] Speaker 00:
And the reason why that is crucially important is because that goes beyond the four corners of the verification letter.

[00:20:58] Speaker 00:
He had information and he knew.

[00:21:00] Speaker 00:
And again, Judge Federico, in the Harper case, pointed out that Terry Stevens, the director of the Choctaw membership agency, he did not testify.

[00:21:09] Speaker 00:
That was noted twice in that opinion.

[00:21:12] Speaker 00:
Tabitha Oakes didn't have specific knowledge of membership.

[00:21:15] Speaker 00:
She just was a custodian of the records, and the business record wasn't an actual business record in that case.

[00:21:21] Speaker 00:
Everything Derrick Vann testified to, the enrollment date, the foundation for his knowledge, that he's the interim tribal registrar, all came before the introduction of the verification letter.

[00:21:31] Speaker 00:
If that verification letter was never introduced, the defendant couldn't be making this objection today.

[00:21:36] Speaker 00:
It was introduced at the end of his testimony as, in effect, essentially the last thing that was introduced with respect to his testimony.

[00:21:44] Speaker 00:
And it was only then that the objection came out that it was sheersay.

[00:21:48] Speaker 03:
Well, he objected foundation, Mr. Vann's testimony, because he lacked personal knowledge.

[00:21:54] Speaker 03:
And then when you actually offered the exhibit, it was hearsay and foundation.

[00:21:59] Speaker 00:
That's correct.

[00:22:00] Speaker 03:
And I don't see any problem with the objections that he made.

[00:22:04] Speaker 03:
And I'm looking at the testimony.

[00:22:07] Speaker 03:
He says, are you aware from your records and in your capacity, as the custodian of records, how Mr. Hatley traced his lineage?

[00:22:14] Speaker 03:
No, but he did submit all the required documents to become a tribal member.

[00:22:18] Speaker 03:
He doesn't have personal knowledge.

[00:22:20] Speaker 00:
I actually think that that answer is equivocal.

[00:22:24] Speaker 00:
He says no, but he does go on to say that he provided all the records and then goes on to say that even his, again, his lineage is through his paternal grandmother, who was the original Dawes enrollee.

[00:22:35] Speaker 00:
So he clearly does have knowledge.

[00:22:37] Speaker 00:
And again, that's not coming from a verification letter.

[00:22:40] Speaker 00:
I think that there's an important question that is being asked

[00:22:44] Speaker 00:
about the basis for his knowledge, the basis for any witness's knowledge, and that's why the government cited to the Powers case, to talk about essentially after acquired knowledge.

[00:22:53] Speaker 03:
If we disagree with you, do we have to reverse and remand for new trial?

[00:23:01] Speaker 00:
I'm not sure.

[00:23:02] Speaker 00:
I think the court would have to essentially agree that the defendant didn't have to object to the jury instructions, could propose the jury instructions arguing that the defendant is an Indian, then essentially overlook the other evidence, including defendant's own admission that he is a member of the Cherokee Nation.

[00:23:21] Speaker 00:
So I think that there's just a lot of steps that the court would have to find, some steps that weren't, again, weren't even briefed.

[00:23:28] Speaker 03:
But he can agree he is an Indian.

[00:23:31] Speaker 03:
without saying anything about his status at the time of the offense.

[00:23:36] Speaker 03:
That's the problem here.

[00:23:38] Speaker 00:
I agree, but I think that the question as to what the timing is for Indian status, the time of the offense, and I think that there's good reasons.

[00:23:48] Speaker 03:
Well, is the jury instruction plainly erroneous because it doesn't include a temporal factor?

[00:23:55] Speaker 00:
Certainly not, and I think the reason why it's not is the trick instruction is a verbatim quote of this court's decisions in Scrivener, Prentice II, Wood II, even the Harper decision.

[00:24:08] Speaker 00:
Council points to the Drury decision in the 10th Circuit, but I would note that one of the factors in the Drury decision about the defendant's Indian status in that case is that, and I'm sorry, I may have that wrong about the defendant's Indian status or a witness or a victim's Indian status, but in fact, I believe it was the victim's Indian status.

[00:24:26] Speaker 00:
Children were taken into custody by the tribe after the offense.

[00:24:31] Speaker 00:
So again, Council cites the Drury decision to say it has to be at the time of the offense,

[00:24:36] Speaker 00:
But the actual facts of that case even support the fact, and I concede that it is a small fact, but the facts of the jury case also point out that those children who were taken into custody were taken into custody after the offense.

[00:24:50] Speaker 00:
It's the recognition by a quasi-sovereign status that once you have that recognition, that the state can't come in and then pluck you back and say, we're going to prosecute you.

[00:25:02] Speaker 04:
But counsel, on the timing aspect, I read your brief to say the government does not have to prove status at the time of the offense.

[00:25:08] Speaker 04:
And a moment ago, in response to Judge McHugh, when she said that the timing matters, you said, I agree.

[00:25:14] Speaker 04:
So is the government's position that you don't have to prove it at the time of the offense, or that you do?

[00:25:18] Speaker 00:
Well, I'm not trying to avoid that question, but I would say that I think that there should certainly be more full briefing on that particular question.

[00:25:28] Speaker 04:
They raised it, and I think it's a preserved issue on appeal.

[00:25:31] Speaker 04:
You responded to it in your response brief.

[00:25:34] Speaker 04:
And I also kind of read your argument to be what I'll call reasonable inferences that the jury could make.

[00:25:41] Speaker 04:
And I'm looking at that as you've heard us talk about, both for your direct evidence to prove the element, but also in a harmless error analysis.

[00:25:48] Speaker 04:
Could the jury have taken reasonable inferences to conclude

[00:25:51] Speaker 04:
Mr. Hatley was a member of the tribe with Indian blood meeting the status requirement at the time of the offense.

[00:25:57] Speaker 04:
So just trying to figure out if you're arguing both, it wasn't a legal requirement to prove it at the time of the offense, or regardless, when you look at the realm of evidence, we did prove it by reasonable inferences.

[00:26:08] Speaker 00:
I would argue both.

[00:26:09] Speaker 00:
And I would argue that I still would argue that Mr. Vann's testimony, where he actually testifies without objection as to the enrollment date, is good testimony.

[00:26:19] Speaker 00:
It was simply without objection.

[00:26:20] Speaker 03:
Well, he objected as to foundation.

[00:26:23] Speaker 03:
How can you say it was without objection?

[00:26:25] Speaker 03:
He objected to all of Mr. Vann's testimony as saying it lacks foundation because you have no personal knowledge of when he became a member of the tribe.

[00:26:35] Speaker 00:
He did object to the lack of foundation, but I think by that point, the point that I would make is that I think by that point the court had enough

[00:26:43] Speaker 00:
at that time to rule that he did lay a foundation as the interim tribal registrar and the custodian of those records.

[00:26:51] Speaker 00:
Again, I go back to the fact that it's a question of how does one gain personal knowledge?

[00:26:57] Speaker 00:
And I think that he as the interim tribal registrar can look at the documents and the records, can gain that, just as empowers, can gain that after the fact.

[00:27:06] Speaker 00:
knowledge in the same way that the lay lenders in powers could gain after the fact knowledge.

[00:27:13] Speaker 00:
But I want to go back just to Judge Federico's question that we are arguing both.

[00:27:20] Speaker 00:
direct the court to the Antelope decision.

[00:27:22] Speaker 00:
What the Antelope decision does is it talks about the tribe as a quasi-sovereign status.

[00:27:28] Speaker 00:
And again, the fact is that the Zapata decision, which the defendant points out in their reply brief, one of the interesting points of the Zapata decision talks about this astute defendant who could disassociate from a tribe and therefore gain the venue of their court.

[00:27:44] Speaker 00:
Well, in fact, what we have is an astute defendant in this case who is attempting to do the same thing, going and saying, I'm an Indian, you, state, can't prosecute me, and now coming out and saying, oh, but wait a minute, I'm an Indian, and you can't prosecute me, state, but at the same time, I'm going to claim this quasi-sovereign status, and the federal government can't prosecute me either because... Well, it was an easy fix.

[00:28:11] Speaker 03:
Ask him when he became a member of the tribe.

[00:28:15] Speaker 00:
I agree.

[00:28:16] Speaker 03:
It's not like he's some clever mastermind.

[00:28:21] Speaker 03:
I just don't think that the government understood or even today believes that it had an obligation to prove his status as of the time of the offense.

[00:28:33] Speaker 00:
I would only suggest to the court that I think that that should have been developed at the trial.

[00:28:38] Speaker 00:
It should have been developed more fully in the opening brief.

[00:28:41] Speaker 00:
Even on plain error, it was only argued in the reply brief.

[00:28:44] Speaker 00:
The jury instructions followed the case law verbatim as to what it says and instructed the jury verbatim about Indian status, is an Indian, is recognized as an Indian,

[00:28:58] Speaker 00:
the only place the defendant got the, and again, even the defendant proposed that jury instruction.

[00:29:04] Speaker 00:
It's not like Simpkins where an element was left out and the government may have proved it.

[00:29:09] Speaker 00:
It's more like a case that we didn't cite in our brief, but more like the Chameau case, and I apologize.

[00:29:16] Speaker 03:
But can the defendant waive

[00:29:19] Speaker 03:
a necessary element of a crime.

[00:29:21] Speaker 03:
So let's say we decide that you do have to show as of the time of the offense.

[00:29:29] Speaker 03:
Does the defendant have any right to waive the government's obligation to prove beyond a reasonable doubt an element of the crime?

[00:29:39] Speaker 00:
Well, what I would suggest to the court, and I see my time is going to expire so I just ask permission to answer the question.

[00:29:44] Speaker 00:
What I would suggest to the court is that

[00:29:46] Speaker 00:
If it was argued on plain error, the government would have had an opportunity to respond and say that there is no consensus among the courts.

[00:29:53] Speaker 00:
There's only the Ninth Circuit as a pated decision.

[00:29:56] Speaker 00:
And there simply is no consensus among the courts about whether it is the time of the offense or whether or not it's at the time of the trial.

[00:30:03] Speaker 00:
And I think that that's important because without that development of the law, then because the jury instruction was presented to the court the way that it was and because the jury instruction followed Tenth Circuit case law,

[00:30:15] Speaker 00:
exactly as it's written that I think that the government did prove that element and the defendant doesn't have to waive that element.

[00:30:23] Speaker 00:
Thank you.

[00:30:44] Speaker 02:
Thank you.

[00:30:45] Speaker 02:
Just briefly to respond, the government says that the knowledge about the defendant's lineage did not come from the letter.

[00:30:53] Speaker 02:
And we don't argue that it does.

[00:30:54] Speaker 02:
It appears to have come from the tribal records.

[00:30:57] Speaker 02:
But as Judge McHugh pointed out, knowledge of the contents of a record that is not in court does not constitute personal knowledge.

[00:31:05] Speaker 02:
That is a violation of Rule 602.

[00:31:08] Speaker 02:
And it is inconsistent with the litany of cases that we cited in our opening briefs where

[00:31:12] Speaker 02:
essentially every federal court to ever examine the issue has said that testimony about a record absent the presence of the record in the courtroom is insufficient, it's hearsay.

[00:31:28] Speaker 02:
With respect to the issue of whether we waived this, we clearly argued in our opening brief that the government failed to introduce evidence at the time of the offense.

[00:31:36] Speaker 02:
When the government came back and said, we don't have to prove that, we further developed the issue.

[00:31:40] Speaker 02:
In their reply, there was no waiver of this issue.

[00:31:43] Speaker 01:
How about the invited error issue?

[00:31:46] Speaker 02:
Yes.

[00:31:46] Speaker 02:
With respect to the invited error issue, am I seeing my time's elapsed?

[00:31:49] Speaker 02:
May I answer?

[00:31:51] Speaker 02:
Please do.

[00:31:54] Speaker 02:
This court has recently held in Simpkins that bad jury instructions, and we concede that this was a bad jury instruction.

[00:32:01] Speaker 02:
But you do concede that you asked for it.

[00:32:04] Speaker 02:
That was also the case in Simpkins.

[00:32:07] Speaker 01:
I understand that, but I'm just trying to get the facts in your case.

[00:32:10] Speaker 02:
Yes, we did propose the bad jury instruction, but as in Simpkins, the fact that the defendant made the same mistake that the government made in formulating the jury instructions does not relieve the government of obligation to prove by competent evidence all elements of the offense, regardless of what the jury instructions say.

[00:32:29] Speaker 03:
Thank you.

[00:32:32] Speaker 03:
We'll take this matter under advisement.