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:
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.
Well, he's never been one to hide his light under a bushel. But if the "look at me, I'm clever" parts were excised, you'd have a very well-expressed dissent. He's a brilliant guy. Too bad he had to make it personal but he seems to have a talent for that.

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.
2.10.2009 11:46pm
Reinhardt and Kozinski are bff in real life, so I suspect a lot of the seemingly over the top language is not being taken seriously by either side.
2.10.2009 11:56pm
From the AP report:

"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?
2.10.2009 11:56pm
Daryl Herbert (www):
NickW, I don't know about Montana in particular, but many states have laws that say if a federal prosecution fails, the defendant cannot be tried for similar offenses under state law (even though it would not be a violation of the Fifth Amendment because of the "dual sovereignty" doctrine).

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.
2.11.2009 12:16am
Daryl Herbert (www):
Mont.Code Ann. Sec. 46-11-504. This statute eliminates, in Montana, the "dual-sovereignty" exception to the prohibition against being placed twice in jeopardy. It bars state prosecution following federal prosecution for the same conduct. See State v. Zimmerman, 175 Mont. 179, 187-88, 573 P.2d 174, 179 (1977) (state may not prosecute individual for same conduct that served as basis for federal prosecution).

(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.
2.11.2009 12:20am
It's pretty creepy that someone can be subject to federal jurisdiction by virtue of their ethnicity. Yes, yes, history and all that, but still.
2.11.2009 12:25am
Soronel Haetir (mail):
I would have thought the location would have been the sffecient jurisdictional nexus, regardless of ethnicity. Yet another reason to be glad that Alaska is down to just one reservation.
2.11.2009 1:02am
Does the Montana statute bar trying him for a case that eventually got decided on a jurisdictional fact?
2.11.2009 1:03am
David Schwartz (mail):
This isn't a jurisdictional fact. Being an Indian (in a very unusual way that has to do with more than just ethnicity) is an *element* of the offense.

Oddly, the State law seems to be very broad in what prosecutions it prohibits.
2.11.2009 1:15am
The opinion does use "element" language, and I'm probably missing something, but this line from the opinion made me think it was jurisdictional:

"We begin by observing that, [] the question of Indian status operates as a jurisdictional elementunder § 1153,”

Good that the law is broad, though.
2.11.2009 1:19am
Dave N (mail):

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:
Although an individual citizen's right to appointed counsel is protected under the Sixth and Fourteenth Amendments in criminal actions brought by the United States and the individual states thereof, Indians on the reservation do not have such protection under the federal constitution when the criminal action is brought under tribal law in the tribal court.
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:
Although the U.S. Constitution does not bind the Navajo tribe in the exercise of its own sovereign powers,FN75 the Indian Civil Rights Act confers all the criminal protections on Means that he would receive under the Federal Constitution, except for the right to grand jury indictment and the right to appointed counsel if he cannot afford an attorney.
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.
2.11.2009 1:19am
ARCraig (mail):
I'm really rather appalled that Federal courts- and Federal juries!- are even engaging in such anachronistic, pseudo-scientific nonsense as parsing a person's ancestry to assign them a "race".
2.11.2009 1:24am
Dave N--
Both Judges Reinhardt and Thomas are active, so they would get to vote on an en banc pet too, right?
2.11.2009 3:43am
Public_Defender (mail):
Isn't there at least an arguable equal protection problem when a criminal law applies only to one racial group?
2.11.2009 6:45am
Daryl: Thanks for the info. Good for Montana.
2.11.2009 8:35am
I read the Kozinski opinion first and was expecting some pretty serious logic bending from Reinhardt (which I have seen in the past) but was disappointed. Not having studied the issue, the outcome is at least facially plausible, Kozinski's histrionics notwithstanding.
2.11.2009 9:50am
loki13 (mail):
1. Reinhardt and Kozinski Duke It Out in United States v. Cruz

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*
2.11.2009 10:03am
Dave N (mail):

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.
2.11.2009 10:09am
Dave N (mail):

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.
2.11.2009 10:13am
Realist Liberal:

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.
2.11.2009 10:45am
usage snot:
Reinhardt uses "forego" for "forgo" in fn 5. If that doesn't call for en banc, what does?
2.11.2009 11:14am
Andrew J. Lazarus (mail):
Isn't there at least an arguable equal protection problem when a criminal law applies only to one racial group?
In the case of Indians, often, no.

I'm really rather appalled that Federal courts- and Federal juries!- are even engaging in such anachronistic, pseudo-scientific nonsense as parsing a person's ancestry to assign them a "race".
So, let's say Indians have a treaty right to fish in excess of the limits generally allowed. How would you determine whether a fisherman is entitled to additional fish?
2.11.2009 12:11pm
Roscoe B. Means (mail):
IIRC, considerable case law holds that "Indian" is a political classification, not requiring strict scrutiny, and that on that basis, that laws granting "preference" to Indians do not offend equal protection. I think that's pertinent to some of the comments above - the provisions of 18 U.S.C. 1853 basing federal jurisdiction on Indian status were intended to favor Indians, by protecting them from the perceived hostility of state courts. They don't define a special crime that can only be committed by Indians.
2.11.2009 1:05pm
anon gramarian:
usage snot -- from Oxford English Dictionary:
"forgo, forego, v.: . . . 5. To abstain or refrain from (some action or procedure)."

"Forego" is an appropriate alternate spelling of forgo.
2.11.2009 1:14pm
suspect element:
Right. Tribal affiliation is assumed to be a political, rather than racial, category. "[F]ederal regulation of Indian affairs is not based upon impermissible classifications. Rather, such regulation is rooted in the unique status of Indians as 'a separate people' with their own political institutions. Federal regulation of Indian tribes, therefore, is governance of once-sovereign political communities; it is not to be viewed as legislation of a racial group . . . the federal criminal statutes enforced here are based neither in whole nor in part upon impermissible racial classifications." United States v. Antelope, 430 U.S. 641, 646-647 (1977).
2.11.2009 1:26pm
So Judge Kozinski sometimes comments here under the name EZRider?
2.11.2009 1:29pm

No. The name is not reserved.
2.11.2009 1:49pm
Like a prior commenter, I thought the histrionics of Kozinski's dissent were waaaaaaaay uncalled for. I also read the dissent first (like Scalia's, AK's opinions are usually entertaining) and was expecting the majority opinion to be retarded. Not so.

I really admire the wit and clarity AK usually brings to his opinions, but here he did a disservice to his office and reputation.
2.11.2009 2:23pm
Steve H (mail):
Hey, very few people are as smart as Judge Kozinski ...

thinks he is.
2.11.2009 3:30pm
Larry Fafarman (mail) (www):
If US courts have a hard time deciding who is Indian, then how did the Nazis decide who was Jewish?

A "systematic" Jewish holocaust was impossible because the Nazis had no objective and reliable ways of identifying Jews and non-Jews.
2.12.2009 11:14pm
Let us note for the record that Larry Fafarman is a holocaust denier.
2.13.2009 5:59am

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