A recently issued federal court opinion concerning defendant Lakota First, a member of the Fort Peck Assiniboine tribe,¹ directly affects only a small portion of the U.S. population: indigent Native Americans who have been convicted in a tribal court of a misdemeanor crime of domestic violence and who later possess a firearm. But, interpreted more broadly, the case illustrates the harsh reality that there is at least one situation in which indigent individuals can be convicted of and incarcerated for a relatively minor crime² without having had the services of a lawyer; serve their sentences; behave themselves – for the most part – after release; and then be charged with a much more severe crime based on the prior uncounseled conviction.

You might be thinking, “Wait a minute, isn’t that what happens to felons in possession of a firearm?” The answer to that question is “not exactly.” Lakota First’s case differs from a typical felon-in-possession case because 1) his underlying conviction was only a misdemeanor, not a felony; and 2) unlike the vast majority of defendants who are charged under the felon-in-possession law, First did not have a lawyer to help defend him against the predicate conviction.

U.S. v. First Background

In 2003, First was charged in Fort Peck tribal court with committing misdemeanor domestic violence.³ He could not afford to hire a lawyer.⁴ The maximum possible sentence that the tribal court could impose for the crime was three months of imprisonment and a $500 fine, which (for reasons discussed below) meant that he was not entitled to appointed counsel.⁵ First eventually accepted a plea bargain and received a sentence of 30 days in jail, suspended 120 days for probation (meaning that he would not have to serve any jail time if he behaved himself for the 120 days after his sentencing hearing). ⁶

In 2011, First was arrested by tribal police for driving while intoxicated.⁷ During the arrest, the officers reportedly found a rifle in the back seat of the car First was driving.⁸ Shortly thereafter, First was indicted by the federal government for illegally possessing a firearm after being convicted of domestic violence.⁹ So, despite never knowing or having reason to know of his inability to legally possess firearms after the domestic violence conviction, First now faces charges for an extremely serious crime. Despite serving his sentence and more or less behaving himself for the next seven years, First’s debt to society has not been paid; rather, the size of his debt has ballooned to the point that he will, if convicted, face as much as 10 years in prison.

Section 922(g)(9) + The Indian Civil Rights Act = Problem for Indigent Indians

How did Lakota First end up in this situation?

A key factor is a federal statute, 18 U.S.C. § 922(g)(9), also known as the Lautenberg amendment.¹⁰ That statute reads, in pertinent part, that “[i]t shall be unlawful for any person who has been convicted in any court of a misdemeanor crime of domestic violence … to … possess … any firearm or ammunition.”¹¹ Violation of section 922(g)(9) is a felony punishable by up to 10 years in prison.¹²

The definition of “misdemeanor crime of domestic violence” as used in section 922(g)(9) is also important. Under 18 U.S.C. § 921(a)(33)(A), a “misdemeanor crime of domestic violence” is an offense that “is a misdemeanor under Federal, State, or Tribal law and has, as an element, the use or attempted use of physical force … committed by a current or former spouse, parent, or guardian of the victim, by a person … who is cohabiting with or has cohabitated with the victim ….”¹³

The word “tribal” in the above definition is particularly significant; it was recently added to the statutory definition of misdemeanor crime of domestic violence as part of the Violence Against Women and Department of Justice Reauthorization Act of 2005,¹⁴ and for seemingly good reason. Congress had made certain findings before amending section 921(a)(33)A, including that “Indian women experience the violent crime of battering at a rate of 23.2 per 1,000, compared with 8 per 1,000 among Caucasian women [and] during the period of 1979 through 1992, homicide was the third leading cause of death of Indian females aged 15 to 34.”¹⁵ So, to clarify, before 2005, individuals, such as First, who were convicted of misdemeanor domestic violence in a tribal court and who later possessed a firearm could not be charged under 18 U.S.C. § 922(g)(9). Since the addition of the word “tribal” to the statute, they can be charged.

One additional important requirement must be fulfilled to charge a person under section 922(g)(9). For a misdemeanor crime of domestic violence conviction to be used as the predicate offense for a section 922(g)(9) charge, the defendant must have either been represented by counsel in the case or waived the right to counsel in the case.¹⁶

To summarize, then, a federal court can convict a defendant under 18 U.S.C. § 922(g)(9) if all the following conditions are met:

• The defendant was convicted in federal, state, or tribal court of a misdemeanor crime of domestic violence.
• The defendant possessed a firearm or ammunition after that conviction.
• The defendant was either represented by counsel or waived his or her “right to counsel in the case.”
• The third condition above is the one of most significance for First and similarly situated defendants. As mentioned earlier, First could not afford an attorney, and he was not appointed an attorney for his case in tribal court. This might seem unfair, given that defendants who cannot afford a lawyer are entitled to have one appointed in certain situations. Specifically, the Sixth Amendment grants indigent individuals a right to appointed counsel in any state or federal criminal proceeding that results in a sentence of actual imprisonment or a suspended sentence of imprisonment.¹⁷

Why didn’t First receive a court-appointed attorney? The answer is because the Sixth Amendment right to counsel does not exist in tribal courts; as stated by the court in First, “‘[t]he protections of the … Constitution are generally inapplicable to Indian tribes, Indian courts and Indians on the reservation [because] … Indian tribes are quasi-sovereign nations.’”¹⁸

Even so, First did have some rights in his 2003 tribal court case. In tribal court, a defendant’s rights are governed by the Indian Civil Rights Act¹⁹ (ICRA). The ICRA, however, grants criminal defendants a much different right to counsel than does the U.S. Constitution. Similar to the Constitution, the ICRA allows defendants to retain counsel if they can afford to. Unlike the Constitution, however, the ICRA only provides indigent defendants 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.”²⁰ This is a drastically different right to counsel than the one provided by the Sixth Amendment, which grants indigent defendants the right to counsel for any criminal proceeding in which any term of imprisonment is imposed.

Outcome of First

The problem in First that the Ninth Circuit Court of Appeals needed to resolve was, thus, the following: when Congress drafted 18 U.S.C. § 922(g)(9) and its accompanying statutes, what did it mean by “the right to counsel in the case”? Was the legislature referring to the right to counsel applicable in the predicate, domestic violence case, or was it referring to the Sixth Amendment right to counsel guaranteed by the U.S. Constitution? The answer to that question would ultimately determine whether Lakota First could be charged under section 922(g)(9).

At the district court, First filed a motion to dismiss the section 922(g)(9) charge.²¹ First stated that Congress was referring to the Sixth Amendment right to counsel and, therefore, he never had a right to counsel that he could have waived in tribal court.²² As a result, he argued, he could not be charged under section 922(g)(9). The federal government’s argument was that Congress was referring only to the right to counsel applicable in the predicate domestic violence case and that First did waive a right to counsel. Specifically, the government argued that First, by not being able to afford an attorney, waived his right to retain counsel under the ICRA.²³

The district court granted First’s motion and dismissed the indictment.²⁴ The government appealed and, on Oct. 1, 2013, the Ninth Circuit Court of Appeals reversed, holding that “a misdemeanor conviction obtained in tribal court may qualify as a predicate offense to a section 922(g)(9) prosecution so long as the defendant was provided whatever right to counsel existed in the underlying misdemeanor proceeding.”²⁵ Ultimately, the Ninth Circuit determined that Congress was referring to the right to counsel applicable in the predicate, domestic violence case, rather than to the Sixth Amendment right to counsel.

How exactly the Ninth Circuit interpreted the statutes and related legislative history to arrive at its decision is beyond the scope of this article. The focus below is on what can be learned, whether by indigent Native American defendants, criminal defense lawyers, or the general public, from the decision in First.

First’s Effect on Indigent Native American Defendants

The Ninth Circuit’s decision in First will result in disparate treatment of individuals convicted of a misdemeanor crime of domestic violence in tribal court rather than state court.²⁶ Simply put, indigent defendants charged with a misdemeanor crime of domestic violence in state court will probably be entitled to appointed counsel and, therefore, will have a better chance of being informed about their inability to possess firearms. Indigent Native American defendants charged with a misdemeanor crime of domestic violence in tribal court will probably not receive a lawyer and, therefore, will likely have no reason to ever know of their inability to legally possess firearms after conviction.

The disparate treatment resulting from First will likely encompass Native Americans who reside in Wisconsin. Wisconsin is home to 11 Native American tribes, the largest number of tribes in any state east of the Mississippi River. Although First was decided in the Ninth Circuit, it was a case of first impression and, therefore, it is entirely possible that the court’s decision will serve as guidance for Wisconsin’s federal prosecutors and, eventually, Wisconsin’s district courts or the Seventh Circuit Court of Appeals.

Ethical Considerations for Federal Prosecutors

Federal prosecutors ultimately will determine how much of an effect 18 U.S.C. § 922(g)(9) and First have on indigent Native American defendants in situations similar to First’s. The general rule regarding charging decisions is that “‘so long as the prosecutor has probable cause to believe that the accused committed an offense by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests in his discretion.’”²⁷ In my opinion, though, decisions on whether to charge under section 922(g)(9), particularly when the individual was not represented by a lawyer for the predicate offense, should be made carefully after at least considering 1) the amount of time since the misdemeanor crime of domestic violence offense occurred, and 2) the individual’s behavior since serving his or her sentence for the predicate offense.

I am not necessarily saying that the prosecutor in First’s case has misused his or her discretion. Neither the Ninth Circuit’s decision nor the appellate briefs give a detailed account of the facts of First’s DUI arrest. Also not part of the record is whether the 2011 DUI was First’s only encounter with the law since his misdemeanor domestic violence conviction in 2003.

First’s case aside, the American public should take notice of the massive responsibility given to prosecutors in any given case. For a detailed discussion of prosecutorial discretion and potential methods of monitoring it, see Tracy L. Meares, Rewards for Good Behavior: Influencing Prosecutorial Discretion and Conduct with Financial Incentives, 64 Fordham L. Rev. 851 (1995).

Ethical Considerations for Lawyers

If First had been represented by a lawyer during his misdemeanor case, it is not necessarily true that he would have been made aware of his inability to possess firearms in the future. If he had had a lawyer, First merely would have had a better chance of being notified of his inability to possess firearms. This is so because neither criminal defense lawyers nor judges are constitutionally required to advise a defendant of the “collateral consequences” of a guilty plea or conviction.²⁸ Nevertheless, as lawyers, even though we are not legally obligated to do so, it would be wise to take note of 18 U.S.C. § 922(g)(9) and to advise any clients, whether Native American or not, facing domestic violence charges of their inability to legally possess firearms after conviction. Lawyers in any sort of practice might also want to contact clients with past domestic violence convictions and recommend that they get rid of any firearms or ammunition kept in their homes or vehicles.

Endnotes

¹ United States v. First, No. 11-30346, 2013 WL 5433755 (9th Cir. Oct. 1, 2013), rev’g D.C. No. CR-11-80-GF-SHE (D. Mont. 2011).

² The words “relatively minor” are used here to describe the crime because the crime itself is classified as a misdemeanor, not to indicate that the author views domestic violence as a minor or insignificant offense.

³ First, 2013 WL 5433755, at *3.

⁴ Id. at *4.

⁵ Id.

⁶ Id.

⁷ Response Brief of Defendant-Appellee, United States v. First, 2013 WL 5433755 (9th Cir. Oct. 1, 2013) (No. 11-30346), 2012 WL 2313331, at *4.

⁸ Id.

⁹ First, 2013 WL 5433755, at *4.

¹⁰ Brannon P. Denning & Glenn H. Reynolds, Heller, High Water(mark)? Lower Courts and the New Right to Keep and Bear Arms, 60 Hastings L.J. 1245, 1250 (2009).

¹¹ 18 U.S.C. § 922(g)(9).

¹² 18 U.S.C. § 924(a)(2).

¹³ 18 U.S.C. § 921(a)(33)(A)(i)-(ii) (emphasis added).

¹⁴ See Pub. L. No. 109-162, § 908(a).

¹⁵ Id. § 901.

¹⁶ 18 U.S.C. § 921(a)(33)(B)(i)(I) (emphasis added).

¹⁷ See Alabama v. Shelton, 535 U.S. 654, 658, 672 (2002); Scott v. Illinois, 440 U.S. 367, 373-74 (1979); Argersinger v. Hamlin, 407 U.S. 25, 33, 37 (1972).

¹⁸ First, 2013 WL 5433755, at *6 (quoting United States v. Percy, 250 F.3d 720, 725 (9th Cir. 2001)).

¹⁹ 25 U.S.C. §§ 1301-1303.

²⁰ 25 U.S.C. § 1302(c) (emphasis added). It should be noted, however, that each individual Indian tribe can expand the ICRA right to counsel.

²¹ First, 2013 WL 5433755, at *4.

²² Id.

²³ Id. at *9.

²⁴ Id. at *4-*5.

²⁵ Id. at *20-*21.

²⁶ Response Brief of Defendant-Appellee, First, 2012 WL 2313331, at *2.

²⁷ United States v. Armstrong, 517 U.S. 456, 464 (1996) (quoting United States v. Chem. Found. Inc., 272 U.S. 1, 14-15 (1926)).

²⁸ But see Padilla v. Kentucky, 559 U.S. 356 (2010) (determining that criminal defense lawyer’s performance was deficient because he did not advise his client that state narcotics conviction would subject client to automatic deportation under federal law).