FORTINO ALVAREZ, Petitioner-Appellant, v. · Roberts test, Mr. Tracey’s insistence that it passed...

12-15788 __________________________________________________________________

__________________________________________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_________________________

FORTINO ALVAREZ,

Petitioner-Appellant,

v.

RANDY TRACEY, Acting Chief Administrator for the Gila River Indian

Department of Rehabilitation and Supervision,

Respondent-Appellee. ________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA (CV-08-2226-PHX-DGC)

_______________________________________

PETITIONER - APPELLANT’S REPLY BRIEF

_______________________________________

JON M. SANDS

Federal Public Defender

District of Arizona

DANIEL L. KAPLAN

Assistant Federal Public Defender

KEITH J. HILZENDEGER

Research and Writing Specialist

850 West Adams Street, Suite 201

Phoenix, Arizona 85007-2730

(602) 382-2767

__________________________________________________________________

__________________________________________________________________

Case = 12-15788, 09/27/2012, ID = 8339394, DktEntry = 17, of 28

i

TABLE OF CONTENTS

Table of Authorities ................................................................................................. iii

Introduction ................................................................................................................ 1

Argument.................................................................................................................... 2

I. Mr. Tracey fails to refute Mr. Alvarez’s demonstration that he is entitled

to relief for the Community’s violation of his confrontation right ................. 2

A. Mr. Tracey fails to overcome Mr. Alvarez’s showing that the

Community violated his confrontation right by using alleged

victim E.C.’s out-of-court accusations to convict him .......................... 2

B. Mr. Tracey fails to show that the Community’s violation of

Mr. Alvarez’s confrontation right was harmless ................................... 6

II. Mr. Tracey fails to refute Mr. Alvarez’s showing that the Community

court failed to take adequate measures to ensure that he understood,

and made a knowing and voluntary decision to waive, his right to a

jury trial............................................................................................................ 9

A. Mr. Tracey’s reliance on state court misdemeanor cases is

unavailing .............................................................................................. 9

(1) The Community court failed to satisfy even the standard set

forth in these cases, because it failed to notify Mr. Alvarez

that he had to make a request to exercise his right to a jury

trial .............................................................................................. 9

(2) The Indian Civil Rights Act’s jury right is not analogous

to the jury right provided to state-court misdemeanor

defendants ................................................................................. 12


ii

B. Mr. Tracey’s assertion that imposing Sixth Amendment-type waiver

requirements in connection with the Indian Civil Rights Act’s jury

right would be “unprecedented” is mistaken ...................................... 15

C. Mr. Tracey’s reliance on the comments of a congressional witness

who opposed Congress’s extension of Bill of Rights protections to

Indians is misplaced ............................................................................ 17

D. Mr. Tracey’s assertion that tribal defendants should not be required

to waive their jury right “on the record” is irrelevant ......................... 18

Conclusion ............................................................................................................... 19

Certificate of Compliance with FRAP 32(A)(7)(B)

Certificate of Filing and Service


iii

TABLE OF AUTHORITIES

Cases

Bryan v. United States, 524 U.S. 184 (1998) ...........................................................18

Boykin v. Alabama, 395 U.S. 238 (1969) ................................................................15

Christian v. Rhode, 41 F.3d 461 (9th Cir. 1994) ....................................................... 4

Confederated Salish & Kootenai Tribes v. Peone, 16 Indian Law Reporter

6136 (Confederated Salish & Kootenai Court 1989) ..............................................16

Crawford v. Washington, 541 U.S. 36 (2004) ........................................................... 2

Howlett v. Salish and Kootenai Tribes, 529 F.2d 233 (9th Cir. 1976) ....................13

Jackson v. State, 644 N.E.2d 595 (Ind. Ct. App. 1994) .............................. 10, 12, 14

Laramie v. Colville Confederated Tribes, 22 Indian Law Reporter 6072

(Colville Confederated Tribes Court of Appeals 1995) ..........................................15

Looper v. State, 605 S.W.2d 490 (Ark. Ct. App. 1980) .......................................4, 6

Miranda v. Anchondo, 684 F.3d 844 (9th Cir. 2012),

pet. for cert. filed (No. 11-11045) ............................................................................14

Ohio v. Roberts, 448 U.S. 56 (1980) .....................................................................2, 3

Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833 (1992) ..............12

Randall v. Yakima Nation Tribal Court, 841 F.2d 897 (9th Cir. 1988) ..................13

Red Fox v. Red Fox, 564 F.2d 361 (9th Cir. 1977) ..................................................13

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) ..............................................12

Seattle v. Williams, 680 P.2d 1051 (Wash. 1984)....................................................15


iv

State v. Armes, 607 S.W.2d 234 (Tenn. 1980).......................................................4, 6

State v. Farmer, 548 S.W.2d 202 (Mo. Ct. App. 1977) ............................. 11, 12, 14

State v. Gordon, 766 A.2d 75 (Me. 2001) .................................................. 11, 12, 14

State v. Sharp, 327 S.W.3d 704 (Tenn. Crim. App. 2010) ....................................4, 6

State v. Vernon, 356 N.W.2d 887 (Neb. 1984) ..................................... 10, 11, 12, 14

United States v. Alameda Gateway Ltd., 213 F.3d 1161 (9th Cir. 2000) .................. 8

United States v. Harbin, 112 F.3d 974 (8th Cir. 1997) .........................................4, 6

United States v. Kortgaard, 425 F.3d 602 (9th Cir. 2005) ........................................ 8

Wilson v. Bowie, 408 F.2d 1105 (9th Cir. 1969) .......................................... 1, 4, 5, 6

Yee v. Escondido, 503 U.S. 519 (1992) ..................................................................... 8

Statutes

25 U.S.C. § 1302(6) (Westlaw, USCA03 database) .................................................. 2

25 U.S.C. § 1302(10) (Westlaw, USCA03 database) ..............................................10

25 U.S.C. § 1302(c)(5) (Westlaw 2012) ..................................................................19

Other Authorities

Constitutional Rights of the American Indian: Hearings Before the

Subcomm. on Constitutional Rights of the S. Comm. on the Judiciary,

89th Cong., 1st Sess. (1965) ............................................................................. 17, 18

Mark D. Rosen, Multiple Authoritative Interpreters of Quasi-Constitutional

Federal Law: Of Tribal Courts and the Indian Civil Rights Act, 69 Fordham L.

Rev. 479 (Nov. 2000) ...............................................................................................16


v

United States Constitution, Fourteenth Amendment ...............................................12

United States Constitution, Sixth Amendment ............................................. 9, 15, 16


Introduction

In seeking to refute Mr. Alvarez’s confrontation claim, Mr. Tracey makes no

attempt to show that non-witness E.C.’s accusations had the “indicia of reliability”

or “particularized guarantees of trustworthiness” required to satisfy the

confrontation standard that governed at the time of Mr. Alvarez’s trial. In addition,

Mr. Tracey fails to meaningfully distinguish this Court’s closely on-point decision

in Wilson v. Bowie, 408 F.2d 1105 (9th Cir. 1969), and he fails even to address the

other caselaw that Mr. Alvarez cited, with respect to the question of whether E.C.

was “unavailable” to testify at Mr. Alvarez’s trial. Mr. Tracey thus fails to show

that Mr. Alvarez is not entitled to relief on his confrontation claim. Moreover, in

seeking to refute Mr. Alvarez’s claim that he was improperly deprived of his right

to a jury trial, Mr. Tracey overlooks the crucial fact that the Community failed to

notify Mr. Alvarez that he had to make a request to invoke that right. For these

and the further reasons set forth below, Mr. Tracey’s Response Brief fails to refute

Mr. Alvarez’s showing that he is entitled to relief on both of these claims.


2

Argument

I. Mr. Tracey fails to refute Mr. Alvarez’s demonstration that he is

entitled to relief for the Community’s violation of his confrontation

right.

A. Mr. Tracey fails to overcome Mr. Alvarez’s showing that the

Community violated his confrontation right by using alleged

victim E.C.’s out-of-court accusations to convict him.

In his Opening Brief, Mr. Alvarez demonstrated that the Community

violated his right “to be confronted with the witnesses against him” (25 U.S.C.

§ 1302(6) (Westlaw, USCA03 database)) when it used non-witness E.C.’s out-of-

court accusations to convict him.1 (Footnotes in this brief contain only citations to

the briefs and Excerpts of Record.) Pursuant to the then-governing standard set

forth in Ohio v. Roberts, 448 U.S. 56 (1980), overruled by Crawford v.

Washington, 541 U.S. 36 (2004), the Community’s use of these out-of-court

statements was improper unless E.C. was “unavailable” to testify in person and the

statements bore adequate “indicia of reliability” or had “particularized guarantees

of trustworthiness.” Id. at 66. Mr. Tracey proffers a number of arguments in

opposition to this claim, but none has merit.

1 Op. Br. at 20-30.


3

Mr. Tracey first argues that the Community did not violate Mr. Alvarez’s

confrontation right because E.C. was “unavailable” to testify.2 This argument

suffers from two independently-fatal flaws.

First, even if Mr. Tracey could show that E.C. was “unavailable,” the

admission of her out-of-court accusations would not have been permissible under

Ohio v. Roberts unless these accusations also bore adequate “indicia of reliability”

or had “particularized guarantees of trustworthiness.” Roberts, 448 U.S. at 66.

Mr. Alvarez showed in his Opening Brief that E.C.’s accusations satisfied neither

of these criteria,3 and Mr. Tracey makes no effort to refute this showing. Because

it is therefore undisputed that the Community’s use of E.C.’s accusations failed the

second part of the Ohio v. Roberts test, Mr. Tracey’s insistence that it passed the

first part of that test is immaterial.

Second, Mr. Tracey fails to show that E.C. was “unavailable” to testify at

Mr. Alvarez’s trial. Mr. Tracey posits that “[r]elying on the legal mechanism that

is typically used to secure the appearance of a witness is reasonable and a good

faith effort” to ensure that the witness testifies.4 Because the Community’s rules

provide for the use of subpoenas to ensure a witness’s appearance at trial, Mr.

Tracey asserts, the Community’s service of a subpoena on E.C.’s residence

2 Resp. Br. at 3-7.

3 Op. Br. at 24-25.

4 Resp. Br. at 6.


4

necessarily establishes that it made a sufficient good-faith effort to secure her in-

person testimony.5 But as Mr. Tracey acknowledges, “‘“[g]ood faith” and

reasonableness” are “terms that demand fact-intensive, case-by-case analysis, not

rigid rules”’” (quoting Christian v. Rhode, 41 F.3d 461, 467 (9th Cir. 1994)).6

Thus, contrary to Mr. Tracey’s assertion, there is no ‘rule’ providing that the

prosecution’s compliance with rules governing the issuance of subpoenas

automatically establishes that it has made a good faith effort to secure the witness’s

presence at trial.

Indeed, Mr. Alvarez in his Opening Brief cited five cases in which this Court

and others held that the prosecution’s compliance with rules providing for the use

of subpoenas to secure a witness’s testimony does not necessarily constitute an

adequate good-faith effort to ensure that the witness testifies at trial: Wilson v.

Bowie, 408 F.2d 1105 (9th Cir. 1969); United States v. Harbin, 112 F.3d 974 (8th

Cir. 1997); State v. Armes, 607 S.W.2d 234 (Tenn. 1980); State v. Sharp, 327

S.W.3d 704 (Tenn. Crim. App. 2010); Looper v. State, 605 S.W.2d 490 (Ark. Ct.

App. 1980).7 Most notably, this Court held in Wilson v. Bowie that the prosecutor

failed to establish the alleged victim’s unavailability when his explanation for the

victim’s absence was: “We attempted to subpoena [the victim], your Honor. He’s

5 Id.

6 Id.

7 Op. Br. at 22-24.


5

not in court this morning.” Wilson, 408 F.2d at 1106. Mr. Tracey ignores all of

these cases except Wilson, and his attempt to distinguish Wilson is unconvincing.

Mr. Tracey posits that Wilson is unlike the instant case because in Wilson the

prosecution merely “attempted to subpoena” the witness, whereas here E.C. “was,

in fact, subpoenaed.”8 But it is hardly plausible that the United States

government’s “attempt[]” to subpoena the alleged victim in Wilson was stymied by

its inability to accomplish the straightforward task of having a subpoena issued and

served. The only plausible meaning of the Wilson prosecutor’s statement is that

the prosecution obtained and served a subpoena, but the witness nevertheless failed

to appear at trial – which is precisely what occurred here.

Mr. Tracey also seeks to distinguish Wilson on the ground that in that case

the defendant told the judge that he “‘wanted to have the witnesses present and to

question them’” (quoting Wilson, 408 F.2d at 1107).9 But Mr. Tracey takes this

passage from Wilson out of context: The Wilson Court found this fact significant

not because it showed that the defendant preserved his confrontation objection, as

Mr. Tracey suggests, but rather because it showed that the defendant “did not state

that he did not want the transcript of the preliminary hearing read” – as a result of

which the government could not show that the trial judge declined to consider the

transcript in rendering his decision, and the error could not have been harmless.

8 Resp. Br. at 6.

9 Resp. Br. at 10.


6

Wilson, 408 F.2d at 1107-08. Mr. Tracey’s attempts to distinguish Wilson are thus

unavailing. In any case, Mr. Tracey makes no attempt to distinguish Harbin,

Armes, Sharp, and Looper – all of which confirm that serving a single subpoena is

insufficient to show “unavailability.”

Mr. Tracey thus fails to refute Mr. Alvarez’s showing that the Community

violated his confrontation right by using E.C.’s out-of-court accusations to convict

him.

B. Mr. Tracey fails to show that the Community’s violation of Mr.

Alvarez’s confrontation right was harmless.

Mr. Tracey next asserts that the Community’s violation of Mr. Alvarez’s

confrontation right was harmless because Mr. Alvarez “admitted the truth of the

out-of-court statements from [E.C.].”10

This assertion is both irrelevant and

mistaken.

Mr. Tracey’s assertion is irrelevant because, as Mr. Alvarez demonstrated in

his Opening Brief, the applicable harmlessness standard calls for reversal when the

prosecution fails to show that the judge “did not refer to” the unlawfully-

introduced evidence. Wilson, 408 F.2d at 1107-08.11

Even if Mr. Tracey’s

assertion that Mr. Alvarez’s comments could be deemed an admission of E.C.’s

10

Resp. Br. at 9. 11

Op. Br. at 26-27.


7

allegations were correct, these comments would not demonstrate that the trial

judge “did not refer to” Officer Benally’s testimony in arriving at the judgment.

Mr. Tracey’s assertion is mistaken because, as Mr. Alvarez showed in his

Opening Brief, it suffers from two fatal flaws: First, Mr. Alvarez admitted only

that E.C. made certain allegations to Officer Benally, not that those allegations

were accurate.12

Second, but for the unlawful introduction of E.C.’s out-of-court

accusations through Officer Benally, Mr. Alvarez’s statement that “everything that

he says it be true” would not – even under Mr. Tracey’s interpretation – have

amounted to an acknowledgment of guilt with respect to Mr. Alvarez’s alleged

offenses against E.C.13

Mr. Tracey ignores the second of these points, and his effort to address the

first is not compelling. Mr. Tracey asserts that Officer Benally “testified to matters

beyond allegations”14

– but because Officer Benally arrived on the scene after the

incident was over and witnessed only the alleged victims’ “allegations,” this

assertion is plainly incorrect.

In a footnote, Mr. Tracey suggests that this Court should decline to consider

whether the introduction of E.C.’s out-of-court statements through the testimony of

her brother J.C. (as opposed to Officer Benally) violated Mr. Alvarez’s

12

Id. at 28-29. 13

Id. at 29. 14

Resp. Br. at 9.


8

confrontation right, because Mr. Alvarez raises that violation for the first time on

appeal.15

Because this argument is confined to a cursory footnote, the Court

should decline to address it. See United States v. Kortgaard, 425 F.3d 602, 610

(9th Cir. 2005) (government waived waiver argument by failing to properly

preserve it); United States v. Alameda Gateway Ltd., 213 F.3d 1161, 1168-69 (9th

Cir. 2000) (declining to consider argument confined to cursory footnote). The

argument is meritless in any case, because it is well-established that “[o]nce a

federal claim is properly presented, a party can make any argument in support of

that claim; parties are not limited to the precise arguments they made below.” Yee

v. Escondido, 503 U.S. 519, 534 (1992).

In short, Mr. Tracey fails to refute Mr. Alvarez’s showing that he is entitled

to relief for the Community’s violation of his confrontation right.

15

Resp. Br. at 10 n.18.


9

II. Mr. Tracey fails to refute Mr. Alvarez’s showing that the Community

court failed to take adequate measures to ensure that he understood,

and made a knowing and voluntary decision to waive, his right to a jury

trial.

A. Mr. Tracey’s reliance on state court misdemeanor cases is

unavailing.

(1) The Community court failed to satisfy even the standard set

forth in these cases, because it failed to notify Mr. Alvarez

that he had to make a request to exercise his right to a jury

trial.

It is undisputed that all that the Community did to advise Mr. Alvarez of his

right to a jury trial was to inform him during an en masse advisement of rights that

he had a right to a jury trial – without specifying that the right was available only

“upon request” – and then to ask him whether he had questions about his rights

when his individual arraignment began.16

Mr. Tracey’s efforts to show that Mr.

Alvarez’s failure to invoke his jury right under these circumstances can be deemed

an effective waiver of the right are unconvincing.

Mr. Tracey argues that, because of the differences between the Indian Civil

Rights Act’s right to counsel and the Sixth Amendment version, “the obligation of

the trial court was limited to informing [Mr.] Alvarez of the right.”17

But even if

this proposition were correct, it would not advance Mr. Tracey’s case, because the

Community did not “inform[] [Mr.] Alvarez of the right.” The Community’s

16

Op. Br. at 6-7. 17

Resp. Br. at 12.


10

notice to Mr. Alvarez stated only: “You have the right to a jury trial.”18

The notice

failed to inform Mr. Alvarez of the crucial fact that what he actually had was the

right to a jury trial “upon request.” 25 U.S.C. § 1302(10) (Westlaw, USCA03

database) (emphasis added). As Mr. Tracey acknowledges, this qualification is

essential to the nature of the jury right protected by the Indian Civil Rights Act,19

and it is self-evident that a defendant – particularly a young defendant with limited

education and little understanding of court proceedings20

– cannot be expected to

intuit that he must request a jury trial in order to exercise this right.

Indeed, the very cases that Mr. Tracey cites in seeking to analogize the

Indian Civil Rights Act’s jury right to the jury right provided to misdemeanor

defendants in state courts illustrate the importance of notifying the defendant of his

need to make a timely request in order to secure a jury trial. In finding that the

defendants had effectively waived their jury right by failing to make a timely

request, these courts stressed that the trial courts had expressly informed the

defendants of the need to make such a request. State v. Vernon, 356 N.W.2d 887,

889 (Neb. 1984) (stressing that the trial judge had “specifically advised the

defendant of the necessity for a demand for a jury trial within 10 days after

arraignment”); Jackson v. State, 644 N.E.2d 595, 596 (Ind. Ct. App. 1994) (noting

18

ER Vol. III at 327. 19

Resp. Br. at 11-14. 20

ER Vol. II at 109:23-25, 111:1-8, 151:25-152:1.


11

that defendant at his initial hearing had signed a form advising him: “If you do not

request a jury trial at least ten (10) days prior to your trial setting, you waive you

[sic] right to a trial by jury.”); State v. Farmer, 548 S.W.2d 202, 205 (Mo. Ct. App.

1977) (noting that “defendant had been contacted by the clerk a week before the

trial and had been asked if he wanted a jury trial”).

The Supreme Judicial Court of Maine’s decision in State v. Gordon, 766

A.2d 75 (Me. 2001), is the exception – but it is an exception that emphatically

proves the rule: Although it concluded that the defendant had waived his jury right

by failing to make a timely request, the Gordon court based this conclusion on the

fact that the defendant was represented by an attorney who “clearly had knowledge

of the time frame within which to make a jury trial demand.” Id. at 77. Moreover,

contrary to Mr. Tracey’s assertion that these cases show that defendants need not

make a voluntary and intelligent waiver of a non-constitutional jury right in order

to waive it, the Gordon court stressed that “[a] waiver of a right to a trial by jury is

binding only if it is made ‘voluntarily and intelligently,’” adding: “We have said

that at arraignment a court must drive home to [its] hearers the necessity of making

a demand for a jury within 21 days and that a defendant’s failure to make such a

timely demand constitutes waiver.” Id. (internal quotation marks omitted).

In short, if this Court were to accept Mr. Tracey’s assertion that the Indian

Civil Rights Act’s jury right is analogous to the jury rights at issue in Vernon,


12

Jackson, Farmer, and Gordon, it would be obliged to conclude that Mr. Alvarez is

entitled to relief, because the Community court deprived Mr. Alvarez of something

that those decisions recognize as crucial: notice of his need to make a timely

request in order to exercise his right to a jury trial.

(2) The Indian Civil Rights Act’s jury right is not analogous to

the jury right provided to state-court misdemeanor

defendants.

In any event, this Court should reject Mr. Tracey’s attempt to analogize the

Indian Civil Rights Act’s jury right to the jury right provided to misdemeanor

defendants in state court, because it fundamentally misconstrues the nature of the

Indian Civil Rights Act in two respects.

First, Mr. Tracey overlooks the fact that, unlike the state statutes at issue in

Vernon, Jackson, Farmer, and Gordon, which apply to defendants who are

protected by the incorporation of federal Bill of Rights protections against the

states through the Fourteenth Amendment (Planned Parenthood of Se.

Pennsylvania v. Casey, 505 U.S. 833, 847 (1992)), the Indian Civil Rights Act was

enacted to guarantee fundamental constitutional rights to a population of criminal

defendants who otherwise would not have them at all. As the Supreme Court

observed in Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), a “central

purpose” of the Act was to “‘secur[e] for the American Indian the broad

constitutional rights afforded to other Americans.’” Id. at 61 (quoting S. Rep. No.


13

90-841, at 5-6 (1967)). It is for this reason – because the Act serves as “a conduit

to transmit federal constitutional protections to those individuals subject to tribal

jurisdiction” (Red Fox v. Red Fox, 564 F.2d 361, 364 (9th Cir. 1977)) – that this

Court held in Randall v. Yakima Nation Tribal Court, 841 F.2d 897 (9th Cir.

1988), that “federal constitutional standards” should generally be employed in

determining whether a challenged procedure violated the Act. Id. at 900.

Mr. Tracey asserts that this portion of Randall should be read in conjunction

with the Court’s prior decision in Howlett v. Salish and Kootenai Tribes, 529 F.2d

233 (9th Cir. 1976), wherein the Court held that federal constitutional standards

should be applied to Indian Civil Rights Act rights where the tribal procedures in

question “are parallel to those commonly employed in Anglo-Saxon society.” Id.

at 238.21

Mr. Tracey’s point is reasonable, but does not advance his case: The

record confirms that the Community’s criminal trial procedures are “parallel to

those commonly employed in Anglo-Saxon society,” and Mr. Tracey does not

argue otherwise. Mr. Tracey’s reliance on Howlett is thus unavailing.

Second, Mr. Tracey’s assertion that tribal courts are courts of “limited

jurisdiction in criminal matters,”22

and his implicit suggestion that this makes them

resemble state misdemeanor courts, is misleading. To the extent that this statement

is intended to suggest that the 2003 version of the Indian Civil Rights Act

21

Resp. Br. at 13-14. 22

Resp. Br. at 16.


14

substantially limited tribal court sentencing authority in individual prosecutions, it

is incorrect. Although the Act limited the sentence for “any one offense” to one

year, this Court has held that the Act permitted tribal courts to ‘stack’ consecutive

one-year sentences for as many separately-charged “offenses” as it saw fit to

include in any particular prosecution, even if all of the charges derived from a

single incident. Miranda v. Anchondo, 684 F.3d 844, 852 (9th Cir. 2012), pet. for

cert. filed (No. 11-11045). In Mr. Alvarez’s prosecution in case number CR-2003-

543, the tribal court took advantage of this ‘stacking’ technique to impose a five

year sentence in connection with a single incident.23

Mr. Tracey’s attempt to

analogize tribal prosecutions to cases like Vernon, Jackson, Farmer, and Gordon,

wherein the sentences (so far as can be determined from the opinions) ranged from

seven days to six months (Vernon, 356 N.W.2d at 889; Farmer, 548 S.W.2d at

203), is thus unconvincing.

In sum, Mr. Tracey’s attempt to analogize the Indian Civil Rights Act’s jury

right to the jury right provided in state-court misdemeanor prosecutions is

unavailing.

23

ER Vol. II at 27.


15

B. Mr. Tracey’s assertion that imposing Sixth Amendment-type

waiver requirements in connection with the Indian Civil Rights

Act’s jury right would be “unprecedented” is mistaken.

Mr. Tracey asserts that imposing waiver requirements in connection with the

Indian Civil Rights Act’s jury right that resemble those imposed in connection with

the Sixth Amendment’s jury right would be “unprecedented.”24

This assertion is

incorrect. In fact, tribal courts, which bear the initial responsibility for applying

the Indian Civil Rights Act in tribal criminal prosecutions, have long held that

Sixth Amendment waiver requirements should be applied to the Indian Civil

Rights Act’s jury right.

In Laramie v. Colville Confederated Tribes, 22 Indian Law Reporter 6072

(Colville Confederated Tribes Court of Appeals 1995), for example, the Colville

Confederated Tribal Court of Appeals incorporated Sixth Amendment waiver

principles from United States Supreme Court caselaw in holding that a tribal code

provision specifying that the right to a jury trial is waived if not confirmed at least

ten days before trial could not be applied to criminal trials. Id. at 6074 (citing

Seattle v. Williams, 680 P.2d 1051 (Wash. 1984) (citing Boykin v. Alabama, 395

U.S. 238 (1969))). The court acknowledged the tribe’s claim of administrative

burdens, but reasoned that “the fundamental right of a criminal defendant to a trial

by jury cannot be diluted because of administrative difficulties.” Id.

24

Resp. Br. at 11, 17.


16

Similarly, in Confederated Salish & Kootenai Tribes v. Peone, 16 Indian

Law Reporter 6136 (Confederated Salish & Kootenai Court 1989), the

Confederated Salish & Kootenai Tribes of the Flathead Reservation court held that

a defendant’s failure to make a timely invocation of his Indian Civil Rights Act

right to a jury trial “constitutes a valid waiver only when that failure to request a

jury trial is made knowingly and intentionally.” Id. at 6137. Finding that the

defendant “was apparently not informed of the need to request a jury trial in order

to exercise that right,” the court held that he had not waived his jury right. Id.

(emphasis added).

That these cases are not mere outliers is confirmed by the report of a law

professor who conducted a “comprehensive empirical study of all reported tribal

court case law over a 13-year period.” Mark D. Rosen, Multiple Authoritative

Interpreters of Quasi-Constitutional Federal Law: Of Tribal Courts and the Indian

Civil Rights Act, 69 Fordham L. Rev. 479, 485 (Nov. 2000). This professor

reported that “all tribal courts presented with the question have concluded that

there must be a knowing and voluntary waiver of [the Indian Civil Rights Act’s]

conditional jury right.” Id. at 555 (emphasis added).

These tribal court decisions are entitled to respectful consideration by this

Court, and they refute Mr. Tracey’s assertion that applying Sixth Amendment-type

waiver requirements to the Indian Civil Rights Act’s jury right would be


17

“unprecedented.”25

They also refute Mr. Tracey’s suggestion that doing so would

amount to an affront to tribal sovereignty,26

because it is reasonable to assume that

tribal courts have a thorough understanding of, and a sound regard for, tribal

sovereignty.

C. Mr. Tracey’s reliance on the comments of a congressional witness

who opposed Congress’s extension of Bill of Rights protections to

Indians is misplaced.

Mr. Tracey’s reliance on a portion of a 1965 congressional hearing is equally

misguided. Mr. Tracey accurately notes that Washington, D.C. Indian law attorney

Marvin J. Sonosky criticized the jury right set forth in an early version of the

legislation. Constitutional Rights of the American Indian: Hearings Before the

Subcomm. on Constitutional Rights of the S. Comm. on the Judiciary, 89th Cong.,

1st Sess. (1965) (“1965 Hearing”) 130.27

But Mr. Tracey omits several pertinent

facts: Mr. Sonosky’s recommendation to the subcommittee was that it should

refrain from extending any Bill of Rights protections to tribal criminal defendants,

and should instead direct the Secretary of the Interior to prepare a model code of

justice that individual tribes could implement as they saw fit. 1965 Hearing at

129-31. Speaking “on behalf of [his] tribal clients” – representatives of which

were in the hearing room while he testified (id. at 135) – Mr. Sonosky asserted

25

Resp. Br. at 11, 17. 26

Resp. Br. at 2-3. 27

Resp. Br. at 14-15.


18

that any rights abuses by tribal governments had been “the exception” and were

partly the fault of the federal government, and argued that tribes were too diverse

to be governed by uniform standards. Id. at 130. Mr. Sonosky faced stiff

questioning from the subcommittee (id. at 135-47), and his recommendations were

definitively rejected when Congress enacted the Indian Civil Rights Act into law

three years later. Because “[t]he fears and doubts of the opposition are no

authoritative guide to the construction of legislation” (Bryan v. United States, 524

U.S. 184, 196 (1998) (emphasis added; internal quotation marks omitted)), Mr.

Tracey’s reliance on Mr. Sonosky’s assertions is misplaced.

D. Mr. Tracey’s assertion that tribal defendants should not be

required to waive their jury right “on the record” is irrelevant.

Finally, Mr. Tracey insists that requiring tribal defendants to waive their jury

right “on the record” would unduly burden tribal courts.28

Why he does so is

unclear, because Mr. Alvarez has not suggested that jury waivers must be made

“on the record.”29

To the contrary, Mr. Alvarez acknowledges that for courts that

do not maintain records of in-court proceedings, waivers (or the absence thereof)

could be shown by alternative means, such as written filings, stipulations,

affidavits, or testimony. Mr. Tracey’s argument regarding the requirement of “on

the record” waivers has no bearing upon this case, in which a record of the

28

Resp. Br. at 11-12, 16-17. 29

Op. Br. at 31-36.


19

proceedings is available – and its prospective significance is minimal, because

recent amendments to the Indian Civil Rights Act require tribal courts to “maintain

a record of the criminal proceeding, including an audio or other recording of the

trial proceeding” in any criminal proceeding in which a tribal court imposes a

sentence of imprisonment exceeding one year. 25 U.S.C. § 1302(c)(5) (Westlaw

2012).

In sum, Mr. Tracey fails to refute Mr. Alvarez’s showing that the

Community court failed to take adequate measures to ensure that Mr. Alvarez

understood, and made a knowing and voluntary decision to waive, his right to a

jury trial.

Conclusion

Mr. Alvarez was convicted following a bench trial at which the prosecution

flagrantly violated his confrontation right, and the trial court failed to inform him

that he had to make a request in order to invoke his right to a jury trial. The

essential facts underlying these claims are undisputed, and Mr. Tracey’s efforts to

identify defects in Mr. Alvarez’s entitlement to relief are unavailing. This Court


20

should therefore reverse the district court’s denial of Mr. Alvarez’s habeas corpus

petition.

Respectfully submitted on September 27, 2012.

s/Daniel L. Kaplan

DANIEL L. KAPLAN


KEITH J. HILZENDEGER

Research and Writing Specialist

850 West Adams Street, Suite 201

Phoenix, Arizona 85007-2730

(602) 382-2767


CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)(7)(B)

I hereby certify that, pursuant to FRAP 32(a)(7)(B), the foregoing

Defendant-Appellant’s Reply Brief is proportionately spaced, has a typeface of 14

points, and contains 4,234 words.

s/Daniel L. Kaplan

DANIEL L. KAPLAN


Attorney for Petitioner-Appellant


CERTIFICATE OF FILING AND SERVICE

I hereby certify that I caused the foregoing Defendant-Appellant’s Reply

Brief to be submitted to the Clerk of the Court for the United States Court of

Appeals for the Ninth Circuit on September 27, 2012, using the appellate CM/ECF

system. I further certify that all participants in the case are registered CM/ECF

users and that service will be accomplished by the appellate CM/ECF system.

s/Daniel L. Kaplan

DANIEL L. KAPLAN


Attorney for Petitioner-Appellant


FORTINO ALVAREZ, Petitioner-Appellant, v. · Roberts test, Mr. Tracey’s insistence that it passed...

Documents

Transcript of FORTINO ALVAREZ, Petitioner-Appellant, v. · Roberts test, Mr. Tracey’s insistence that it passed...