Reinhardt and Kozinski Duke It Out in United States v. Cruz:
If you're interested in some engaging opinion-writing, check out the majority and dissenting opinions in United States v. Cruz, a criminal case on whether the jury had sufficient evidence to conclude that the defendant was an "Indian" for the purposes of a federal criminal statute. Judge Reinhardt (joined by Judge Thomas) concludes that it was plain error to conclude that there was sufficient evidence, and thus the verdict must be overturrned. Judge Kozinski blows a gasket in dissent, ending with this paragraph:
Thanks to How Appealing for the link.
The majority engages in vigorous verbal callisthenics to reach a wholly counter-intuitive—and wrong—result. Along the way, it mucks up several already complex areas of the law and does grave injury to our plain error standard of review. I hasten to run in the other direction.Judge Kozinski's dissent is classic Kozinski, although if a few of the lines had been left as a VC comment, I would have deleted it and warned commenter "EZRider" to be civil or not comment at all. ("Worse still, after huffing and puffing for 11 hefty paragraphs and 12 chubby footnotes. . . " Sheesh.)
Thanks to How Appealing for the link.
I'm pretty confident that if I filed a brief on appeal or rehearing discussing a judge's opinion in this manner, I'd be looking at some serious consequences. It doesn't set a very good example for the kind of civility judges rightly demand of practicing lawyers. But, maybe it gets him internet links and gets his blurbs into casebooks.
"Cruz cannot face state charges in the same case because of double jeopardy, Branom said."
Was there a state acquittal not mentioned in the report?
The analysis becomes more complicated because of the extra elements in the federal offense (being an Indian, and being on an Indian reservation while the crime is committed). A state law prosecution for assault would not require the state to show those elements.
However, I think if you only cut down on the elements for the second prosecution, then it's a "lesser included offense," and therefore state statutes related to double jeopardy might kick in. It really depends on Montana's state law.
(From 788 F.2d 1401)
So Montana is one of the enlightened states when it comes to the "dual sovereignty" garbage exception to our Constitutional rights.
Oddly, the State law seems to be very broad in what prosecutions it prohibits.
"We begin by observing that, [] the question of Indian status operates as a jurisdictional elementunder § 1153,”
Good that the law is broad, though.
You would be surprised at some of the other things in Indian jurisdiction. I spent a year as a tribal prosecutor while also serving as a local deputy district attorney.
First, some reservations are actually "dry" and it is illegal to possess alcohol.
Second, and still shocking to me, is that there is no right to counsel in the tribal courts, even when incarceration is contemplated:Tom v. Sutton, 533 F.2d 1101, 1103 (9th Cir. 1976).
The Ninth Circuit noted this anomoly (based on the tribes' existence as sovereign entities), though in dicta, as recently as 2005:Means v. Navajo Nation, 432 F.3d 924, 935 (9th Cir. 2005).
As a final note, I am guessing that Judge Kozinski is begging the government to seek rehearing en banc, where under 9th Circuit Rules he is guaranteed a vote and Judges Reinhardt and Thomas are not.
Both Judges Reinhardt and Thomas are active, so they would get to vote on an en banc pet too, right?
2. Judge Reinhardt Admonishes Appellate Lawyers
3. Judges Reinhardt, Henderson and Karlton Indicate Plan to Order California to Release About 25% of Its Inmates
Perhaps the conspirators should re-name this blog The Reinhardt Watch? *smile*
The Ninth Circuit does not ever truly sit en banc. Instead, the en banc court is an 11 judge panel made up of the Chief Judge and ten active judges selected at random. If an active judge has not been selected for any of the preceding 3 en banc panels, then he or she is automatically chosen for the next one.
Being on the 3 judge panel DOES NOT guarantee being on the larger panel.
You are, however, right, that Judges Reinhardt and Thomas would vote on whether the Ninth Circuit should hear the case en banc. It takes a majority of the active, non-recused judges to make that decision.
I took the dissent to mean that the result may be plausible but there is no way it was plain error. Correct me if I'm wrong. Since plain error is the highest appellate burden there is it takes a lot to meet it.
"forgo, forego, v.: . . . 5. To abstain or refrain from (some action or procedure)."
"Forego" is an appropriate alternate spelling of forgo.
No. The name is not reserved.
I really admire the wit and clarity AK usually brings to his opinions, but here he did a disservice to his office and reputation.
thinks he is.
A "systematic" Jewish holocaust was impossible because the Nazis had no objective and reliable ways of identifying Jews and non-Jews.
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