FILED
NOT FOR PUBLICATION JUL 08 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-35127
Plaintiff - Appellee, D.C. Nos. 4:08-cv-00029-SEH
4:03-cr-00145-SEH-1
v.
RONNIE LYNN SMITH, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted June 9, 2011
Portland, Oregon
Before: FISHER, GOULD and PAEZ, Circuit Judges.
Ronnie Lynn Smith appeals the district court’s denial of his motion to
vacate, set aside or correct his sentence under 28 U.S.C. § 2255. We affirm.
1. Indian status. Smith was convicted of assault with a dangerous weapon
in violation of 18 U.S.C. §§ 113(a)(3) and 1153 for the stabbing of Lee Harrison
Tuttle, an Indian person. To convict Smith under § 1153, the jury was required to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
find beyond a reasonable doubt that Smith was an Indian. See 18 U.S.C. § 1153(a)
(subjecting “[a]ny Indian” who commits one of 14 major crimes to the criminal
laws and penalties applicable in areas of exclusive federal jurisdiction). Smith
argues under United States v. Bruce, 394 F.3d 1215 (9th Cir. 2005), United States
v. Cruz, 554 F.3d 840 (9th Cir. 2009), and United States v. Maggi, 598 F.3d 1073
(9th Cir. 2010), that the government presented insufficient evidence of his Indian
status.1 We disagree.
“The generally accepted test for Indian status considers ‘(1) the degree of
Indian blood; and (2) tribal or government recognition as an Indian.’” Bruce, 394
F.3d at 1223 (quoting United States v. Keys, 103 F.3d 758, 761 (9th Cir. 1996)).
“[F]our factors . . . govern the second prong; those four factors are, ‘in declining
order of importance, evidence of the following: 1) tribal enrollment; 2) government
recognition formally and informally through receipt of assistance reserved only to
Indians; 3) enjoyment of the benefits of tribal affiliation; and 4) social recognition
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We reject the government’s argument that Teague v. Lane, 489 U.S. 288
(1989), precludes us from applying Bruce, Cruz and Maggi, which were decided
after Smith’s trial. Teague bars the retroactive application of new procedural rules
under certain circumstances. See 489 U.S. at 310. It does not apply to new
substantive rules, including “decisions that narrow the scope of a criminal statute
by interpreting its terms.” Schriro v. Summerlin, 542 U.S. 348, 351 (2004).
Because Bruce, Cruz and Maggi interpret the substantive scope of § 1153, the
Teague bar is inapplicable.
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as an Indian through residence on a reservation and participation in Indian social
life.’” Cruz, 554 F.3d at 846 (quoting Bruce, 394 F.3d at 1224).
The government presented sufficient evidence of Smith’s Indian blood to
satisfy Bruce’s first prong. We have held this requirement satisfied by as little as
1/8 (12.5%) Indian blood. See Maggi, 598 F.3d at 1080; Bruce, 394 F.3d at 1223.
Here, the government presented evidence that Smith has 25/128 (19.5%)
Assiniboine and Sioux blood, well in excess of the 1/8 we approved in Bruce and
Maggi. We acknowledge that Smith’s § 2255 motion attached a letter from the
Fort Peck Tribes Enrollment Office stating that Smith “does not meet the required
blood quantum of 1/8 for Associate Membership [in the Fort Peck tribes], nor 1/4
Full Enrollment.” But this evidence was not presented at trial, and even if it had
been, a rational trier of fact could have chosen to credit the more specific, higher
figure established by the government’s evidence.
The government also presented sufficient evidence of tribal or government
recognition of Smith as an Indian to satisfy Bruce’s second prong. There was
evidence that Smith at one time enjoyed formal tribal enrollment, the most
important indicator of tribal recognition of a defendant’s Indian status. See Cruz,
554 F.3d at 846. As early as 1990, Smith was enrolled as an associate member of
the Assiniboine and Sioux tribes, a status available to persons of “one-eighth (1/8)
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or more but less than one-quarter (1/4), Assiniboine and/or Sioux blood born to
any member of the Assiniboine and Sioux Tribes.” Sioux & Assiniboine Ord. No.
1, § 1(e). Although Cruz and Maggi held that “descendant status” in the Blackfeet
tribe, available to the children of formally enrolled Blackfeet members, was
insufficient to show tribal enrollment, see Cruz, 554 F.3d at 847; Maggi, 598 F.3d
at 1082, Smith’s membership in the Sioux and Assiniboine tribes was more formal
than Cruz and Maggi’s descendant status. Smith was actually enrolled as a tribe
member by virtue of his own quantum of Indian blood. He was not a mere
descendant eligible for tribal affiliation by virtue of a parent’s enrollment alone.
Compare Blackfeet Const. art. II, am. III., § 1 (specifying that individuals born
after 1962 must have 1/4 Blackfeet blood to be enrolled as members, without
provision for any “descendant” membership), with Sioux & Assiniboine Ord. No.
1, § 1(d) & (e) (providing that “[e]ach child of one-fourth (1/4) or more
Assiniboine and/or Sioux blood born after [October 1, 1960] to any member of the
Assiniboine and Sioux Tribes” qualifies for full membership, and that “[e]ach child
of one-eighth (1/8) or more but less than one-quarter (1/4), Assiniboine and/or
Sioux blood born to any member of the Assiniboine and Sioux Tribes” qualifies for
associate membership).
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We recognize that Smith relinquished his tribal enrollment in 1996. This
decision does not definitively show, however, that Smith or the tribe ceased to
consider Smith an Indian person. See Cruz, 554 F.3d at 850 (holding that Bruce
requires an analysis of Indian status from the perspective of the individual as well
as from the perspective of the tribe). A tribal investigator, Tom Atkinson, testified
he had known Smith for most of his life, that Smith had lived on the reservation
that entire time and that, as far as Atkinson knew, Smith held himself out to be an
Indian person. A rational jury could have concluded that because Smith was once
formally enrolled in the tribe and continued to hold himself out as an Indian even
after his enrollment ended, both Smith and the tribe continued to view Smith as an
Indian despite his unexplained decision to relinquish his formal enrolled status.
We therefore conclude there was no deficiency of proof on the Indian status
element.
2. Counsel’s failure to dispute Smith’s Indian status. Smith contends trial
counsel and appellate counsel provided ineffective assistance by failing to
challenge the sufficiency of the evidence that he is an Indian. We disagree. Smith
was tried before Bruce, Cruz and Maggi were decided, and pre-Bruce authority
gave counsel little indication that a challenge to the evidence of Indian status might
prove successful. See Keys, 103 F.3d at 761 (affirming an Indian status finding
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without extensive discussion). Counsel’s failure to raise a legal argument that
lacked obvious merit did not constitute ineffective assistance. See United States v.
Ratigan, 351 F.3d 957, 965 (9th Cir. 2003) (holding that the “failure to recognize
every possible legal argument” did not render counsel’s performance
constitutionally deficient).
3. Counsel’s failure to request a clarifying jury instruction. Smith argues
trial counsel rendered ineffective assistance by failing to request a jury instruction
clarifying the definition of the term “Indian.” He argues that the jury should have
been instructed to apply the standard set forth in Bruce and Cruz, including the
basic two-prong Indian status test and the four subfactors used to evaluate the
second prong. But we decline to fault counsel for not proposing jury instructions
whose content was not developed until well after trial. See Strickland v.
Washington, 466 U.S. 668, 690 (1984) (“[A] court deciding an actual
ineffectiveness claim must judge the reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as of the time of counsel’s
conduct.”). Although it might have been preferable to provide the jury with a
clarifying instruction on the meaning of the term “Indian” – especially in light of
the jury note expressing confusion as to the significance of Smith’s relinquishment
of tribal enrollment – there was little useful clarification that counsel, operating
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pre-Bruce, could have proposed. We therefore conclude counsel performed
adequately.
4. Voir dire statement. In questioning prospective jurors during voir dire,
the district court stated:
I want to follow up on this topic that I addressed initially with you
concerning ethnic background of persons and other topics of that sort.
The defendant in this case is in fact a Native American. A very
substantial number of the persons whose [sic] appear and give testimony
at this trial may be Native Americans as well. . . . Do any of you feel that
you have such strong views on the subject of ethnic background or tribal
affiliation or matters of that sort that you could not serve as a fair and
impartial juror in this case?
(Emphasis added.)
Smith contends the court’s remark that he was a Native American “had the
effect of relieving the government of its burden of proving . . . that Smith is an
Indian.” We disagree. Given the context of the district court’s statement, the
prospective jurors likely understood the court’s remark as part of an inquiry into
potential prejudice, not as a comment on forthcoming evidence. Moreover, at the
close of trial, the court instructed the jury not to “read into . . . anything the court
may have said or done any suggestion as to what verdict you should return.”
Although this instruction was rather general, it was sufficient to cure any potential
misimpression arising from the court’s comment. See United States v. McGill, 604
7
F.2d 1252, 1255 (9th Cir. 1979) (holding that a judge’s comment on the issues in
the case, although “not technically correct,” could be cured by instruction).
AFFIRMED.
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