United States v. Edgar Alvirez, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-10244
Plaintiff-Appellee,
D.C. No.
v. 3:10-cr-08049-DGC-1

EDGAR MIKE ALVIREZ, JR.,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding

Argued and Submitted June 12, 2012
San Francisco, California

Filed March 14, 2013
Withdrawn April 15, 2013
Resubmitted July 15, 2016
Filed August 1, 2016

Before: Dorothy W. Nelson, Johnnie B. Rawlinson,
and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Rawlinson
2 UNITED STATES V. ALVIREZ

SUMMARY*

Criminal Law

The panel reversed a conviction for assault resulting in
serious bodily injury on an Indian reservation, in violation of
18 U.S.C. §§ 1153 and 113(a)(6), and remanded.

The panel held that the district court abused its discretion
when it determined that a Certificate of Indian Blood offered
into evidence by the government in order to establish Indian
status, an essential element of § 1153, was a
self-authenticating document under Fed. R. Evid. 902(1).
The panel held that this error was not harmless.

The panel held that the district court did not abuse its
discretion in denying the defendant’s motion in limine to
exclude references to polygraph evidence, where the
defendant, who elected not to present his
multiple-interrogation defense as a legal strategy, was not
denied the opportunity to present his defense.

The panel held that the district court cannot show plain
error in the district court’s application of enhancement under
U.S.S.G. § 2A2.2 for infliction of permanent or
life-threatening injury.

The panel held that double jeopardy does not bar retrial
after reversal in this case because the erroneously-admitted

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. ALVIREZ 3

Certificate of Indian Blood was nevertheless sufficient
evidence to support the conviction.

COUNSEL

Daniel L. Kaplan (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Office of
the Federal Public Defender, Phoenix, Arizona, for
Defendant-Appellant.

Heather H. Sechrist (argued), Assistant United States
Attorney; United States Attorney’s Office, Phoenix, Arizona;
for Plaintiff-Appellee.

OPINION

RAWLINSON, Circuit Judge:

Edgar Alvirez, Jr. (Alvirez) appeals his jury conviction
and sentence for assault resulting in serious bodily injury on
an Indian reservation, in violation of 18 U.S.C. §§ 1153 and
113(a)(6).

We have jurisdiction pursuant to 28 U.S.C. § 1291 to
review the district court’s judgment. We conclude that the
district court abused its discretion when it admitted the
unauthenticated Certificate of Indian Blood as evidence to
meet the elements of the governing statute. Accordingly, we
reverse Alvirez’s conviction and remand for further
proceedings. Because other issues raised by Alvirez will
likely arise in the event of a retrial, we address them now in
4 UNITED STATES V. ALVIREZ

the interest of judicial economy. See United States v.
Wiggan, 700 F.3d 1204, 1216 (9th Cir. 2012).

I. BACKGROUND

A. The Assault

On November 3, 2009, at the home of Mary Grace
Alvirez (Mary Grace), Drametria Havatone (Havatone)
discussed the fact that Alvirez, Mary Grace’s son, was not
assisting his mother financially. Havatone initiated this
conversation in the presence of Alvirez, Mary Grace, Brittany
Davis (Davis), Alvirez’s girlfriend and Havatone’s cousin,
and Denisha Siyuja (Siyuja). As the discussion progressed,
a physical altercation ensued. Davis and Siyuja punched and
kicked Havatone as they forcibly and physically removed her
from the house.

Having forced Havatone outside, Davis and Siyuja
continued the physical assault, eventually knocking Havatone
to the ground. While Havatone was prone on the concrete,
Alvirez stepped on Havatone’s ankle.

Hualapai Nation Police Officer Michael Williams (Officer
Williams) was dispatched to the scene. Finding Havatone
lying in the road, Officer Williams asked Havatone if she
needed medical assistance, to which she responded
affirmatively. Officer Williams called paramedics, who
drove Havatone to the Hualapai Mountain Medical Center.
She was subsequently transferred to the Kingman Regional
Medical Center, where Dr. Emmett McEleney (Dr.
McEleney), an orthopedic surgeon, repaired her broken ankle
by inserting nine screws and a metal plate.
 UNITED STATES V. ALVIREZ 5

B. The Investigation

Officer Williams initially obtained statements from Mary
Grace, Davis, and Alvirez (first interview). Once Officer
Williams learned that Havatone’s ankle was broken, he
reclassified the crime from a simple assault to an aggravated
assault, which required referral to the Federal Bureau of
Investigation (FBI).

On November 9, 2009, FBI Special Agent Margo Barber
(Agent Barber) and Detective Sam Tsosie (Detective Tsosie)
of the Hualapai Nation Police Department, interviewed
Alvirez outside his home (second interview). During the
second interview, the investigators asked Alvirez if he would
submit to a polygraph test. Alvirez acknowledged that he
knew what a polygraph test was and agreed to submit to the
test.

On January 26, 2010, Agent Barber and Detective Tsosie
arrived at Alvirez’s home to continue the investigation.
Agent Barber asked Alvirez if he remembered stating that he
would be willing to undergo a polygraph examination.
Alvirez acknowledged the conversation and stated that he was
still willing to submit to the polygraph test. Agent Barber and
Detective Tsosie drove Alvirez to the police station to have
FBI Special Agent Brian Fuller (Agent Fuller) administer the
polygraph examination.

Agent Fuller advised Alvirez of his Miranda1 rights
before administering the polygraph examination. While
Agent Barber and Deputy Tsosie were present, Agent Fuller
reviewed the polygraph consent forms with Alvirez. During

1
Miranda v. Arizona, 384 U.S. 436 (1966).
6 UNITED STATES V. ALVIREZ

the polygraph exam, only Agent Fuller was present and
Alvirez denied jumping on Havatone’s leg and breaking it.

Agent Fuller initiated the post-polygraph interview (third
interview) by informing Alvirez that his results signaled
deception. After receiving the information regarding
deception, Alvirez admitted to stepping hard on Havatone’s
leg. Immediately following Alvirez’s oral statement, Agent
Fuller typed and presented the written statement to Alvirez.
Alvirez signed the typed statement, acknowledging that it was
given voluntarily and that it was “true, accurate, and correct.”
Agent Barber and Detective Tsosie then rejoined Agent Fuller
and Alvirez for the continued post-polygraph interview
conducted by Agent Barber. Alvirez was subsequently
charged with assault resulting in serious bodily injury.

C. Pre-Trial Motion Hearing and Trial

Prior to trial, Alvirez filed a motion in limine to exclude
any reference to his polygraph examination. The government
responded that it had no intention of referring to the
polygraph examination, unless Alvirez “opened the door” by
suggesting that his confession was coerced or that the
government acted improperly. The district court confirmed
the government’s intention of omitting any reference to the
polygraph test. The court determined that even though
polygraph examinations are not “per se inadmissible,” this
circuit was still “leery of polygraph evidence.”

The district court then heard arguments from both parties
regarding what could be considered “opening the door” for
admission of polygraph evidence. The defense stated that it
might want to clarify the amount of time Agent Fuller spent
with Alvirez before Alvirez confessed. The court restated the
 UNITED STATES V. ALVIREZ 7

defense’s proposed argument that Alvirez on two previous
occasions denied assaulting Havatone and confessed during
the third interview, where three officers were present, and
after being alone with one of the officers for an hour and a
half. The government took the position that the defense’s
described clarification would “open the door” to introduction
of the polygraph evidence.

After hearing from both sides, the district court
recognized that the defense should be able to make the
described argument as part of its case. However, the district
court also acknowledged that it would be unfair to allow the
defense to state its argument without allowing the
government to give “an accurate picture of what happened,”
including administration of the polygraph examination.
Ultimately, the district court stated its preference to avoid any
mention of the polygraph, but deferred ruling on the
admissibility of polygraph evidence until the issue “play[ed]
out in the courtroom.” The district court clarified that its
ruling was in no way intended to limit the defense’s
presentation of its case. The district court then denied the
motion in limine.

During trial, Officer Williams testified that a document
presented by the government was a Certificate of Indian
Blood (Certificate), although initially he did not recognize the
document. Officer Williams identified the Certificate as a
way to determine a person’s quantum of Indian blood and
whether the person was a registered member of a tribe.
Officer Williams testified from examining the document that
the Certificate was issued by the Colorado River Indian
Tribes (CRIT), and that he felt a raised seal on the document.
8 UNITED STATES V. ALVIREZ

Defense counsel objected to Officer Williams’ attempted
authentication of the Certificate, challenging Officer
Williams’ statement as hearsay, because Officer Williams
had no affiliation with the CRIT sufficient to authenticate the
Certificate. The government responded that the Certificate
was a self-authenticating document. When defense counsel
was unable to identify a reason that the Certificate was not
self-authenticating, the judge overruled the defense objection
and admitted the Certificate into evidence.

During Havatone’s testimony, she identified her own
Certificate of Indian Blood. Havatone testified that the
Certificate signified that she was an enrolled member of an
Indian tribe. Havatone added that she could feel the raised
Hualapai reservation seal on her Certificate. In addition, she
stated that Alvirez was “a Hualapai member of our
reservation.” The court also admitted Havatone’s Certificate
into evidence.

Havatone then testified about her assault. She recalled
that after being dragged outside of Mary Grace’s house, she
was lying on her stomach. Alvirez came outside and stepped
on her ankle while she was lying on the concrete. Havatone
described feeling extreme pain in her leg, and hearing her
ankle crack.

Dr. McEleney testified that the fracture to Havatone’s
ankle was severe, necessitating stabilization with surgical
grade stainless steel, resulting in the potential long-term
effect of posttraumatic osteoarthritis. The doctor explained
that posttraumatic osteoarthritis occurs after physical trauma
to a limb, and usually develops earlier than normal arthritis.
He also testified that the hardware installed in Havatone’s
 UNITED STATES V. ALVIREZ 9

ankle may need to be replaced more frequently than if the
hardware had been installed in another area of the body.

After the jury found Alvirez guilty as charged, the district
court imposed a sentence of thirty-seven months. Alvirez
filed a timely notice of appeal.

II. STANDARDS OF REVIEW

The decision to admit evidence is reviewed for an abuse
of discretion. See McCollough v. Johnson, Rodenburg &
Lauinger, LLC, 637 F.3d 939, 953 (9th Cir. 2011). A district
court’s acceptance of evidence as authentic is also reviewed
for abuse of discretion. See United States v. Estrada-Eliverio,
583 F.3d 669, 672 (9th Cir. 2009).

Generally, we review the ruling on a motion in limine for
abuse of discretion. See United States v. Ross, 206 F.3d 896,
898 (9th Cir. 2000). However, we review de novo whether
the ruling precludes the presentation of a defense. See id. at
898–99.

Criminal sentences are generally reviewed for an abuse of
discretion and are not reversed, unless there is a “procedural
error or substantive unreasonableness.” United States v.
Gonzalez-Aparicio, 663 F.3d 419, 426 (9th Cir. 2011), as
amended (citation omitted). The “interpretation and
application of the Guidelines is usually reviewed de
novo. . . .” Id. (citations omitted). When the defendant has
failed to object, review is for plain error. See United States
v. Charles, 581 F.3d 927, 932 (9th Cir. 2009).
10 UNITED STATES V. ALVIREZ

We review a district court’s findings of fact to support a
sentencing enhancement for clear error. See United States v.
Pearson, 274 F.3d 1225, 1234 (9th Cir. 2001).

III. DISCUSSION

A. Determination of Indian Status

Indian status is an essential element of 18 U.S.C. § 1153,
“which the government must allege in the indictment and
prove beyond a reasonable doubt.” United States v. Zepeda,
792 F.3d 1103, 1110 (9th Cir. 2015) (en banc) (citation
omitted). We apply a two-prong test to determine if this
element has been met. See id. First, the government must
prove that the defendant has “some quantum of Indian blood,
whether or not that blood derives from a member of a
federally recognized tribe,” and second, the government must
establish that the defendant has “membership in, or affiliation
with, a federally recognized tribe.” Id. at 1113.

To satisfy the first prong, the government need only prove
that the defendant has “some” Indian blood as a descendant
of an Indian parent, grandparent, or great-grandparent.
United States v. Bruce, 394 F.3d 1215, 1223–24 (9th Cir.
2005) (citations omitted). We utilize a four-factor test to
assess proof of the second prong. See id. at 1224. These
factors, listed in decreasing order of importance, are:
“1) enrollment in a federally recognized tribe; 2) government
recognition formally and informally through receipt of
assistance available only to individuals who are members, or
are eligible to become members, of federally recognized
tribes; 3) enjoyment of the benefits of affiliation with a
federally recognized tribe; and 4) social recognition as
someone affiliated with a recognized tribe through residence
 UNITED STATES V. ALVIREZ 11

on a reservation and participation in the social life of a
federally recognized tribe.” Zepeda, 792 F.3d at 1114.

1. Evidence of “Some” Indian Blood

A person who has a parent, grandparent, or great-
grandparent “who is clearly identified as Indian” will
generally satisfy the requirement that a defendant has “some”
Indian blood. Bruce, 394 F.3d at 1223–24. A Certificate of
Indian Blood or an enrollment certificate may also establish
a person’s quantum of Indian blood. See id.

The government elicited through Officer Williams’
testimony that Mary Grace, Alvirez’s mother, resided on the
Hualapai Indian Reservation. Although this evidence was
unrefuted, it is questionable whether it was adequate to meet
the required showing of “some” Indian blood. Id. (discussing
cases where the quantum of blood was part of the evidence).
We need not resolve this question because we reverse on
different grounds.

2. Tribal or Federal Government Recognition

The second prong of the Indian status element required
the government to establish that Alvirez is acknowledged by
a federally recognized tribe or by the government as an
Indian. See id. at 1224. Tribal enrollment in a federally
recognized tribe is one of the four types of evidence
considered by courts in assessing the required Indian status.
See Zepeda, 792 F.3d at 1114.

The government moved to admit Alvirez’s Certificate to
meet the second prong of the Indian status element. The
Certificate indicated that Alvirez was an enrolled member of
12 UNITED STATES V. ALVIREZ

the CRIT and that his blood quantum is one-fourth CRIT,
three-eighths Hualapai, and one-eighth Havasupai.
Additionally, Agent Barber testified to Alvirez’s residency on
the Hualapai reservation, and Havatone testified to Alvirez
being a member of the Hualapai reservation.

As in Zepeda, the government presented no evidence
during Alvirez’s trial that any of the tribes listed on his
Certificate was a federally recognized tribe. See id. at 1110.
In Zepeda, we clarified that the determination of federal
recognition of a tribe is a question of law to be determined by
the judge. See id. at 1114; see also United States v. Reza-
Ramos, 816 F.3d 1110, 1122 (9th Cir. 2016). We explained
that the government “should present to the judge evidence
that the tribe was recognized at the time of the offense, but
the judge may also consult other evidence that is judicially
noticeable or otherwise appropriate for consideration.” Reza-
Ramos, 816 F.3d at 1122 (quoting Zepeda, 792 F.3d at 1114)
(internal quotation marks omitted).

The district court admitted the Certificate as a self-
authenticating document. On appeal, Alvirez challenges the
district court’s admission of the Certificate as a self-
authenticating document. The government responds that
Alvirez waived his right to raise this issue on appeal. We
reject the government’s waiver argument. When the district
court judge “makes a definitive ruling” admitting evidence,
there is no need to renew the objection to preserve the
claimed error. United States v. Sepulveda-Barraza, 645 F.3d
1066, 1070 (9th Cir. 2011) (quoting Fed. R. Evid. 103(b)).
During trial, defense counsel objected to admission of the
Certificate as hearsay and because the proponent of the
Certificate was not affiliated with the issuing Tribe. The
government responded that the Certificate was a self-
 UNITED STATES V. ALVIREZ 13

authenticating document. After visually examining the
Certificate, the district court asked defense counsel for a
reason underlying her position that the Certificate was not a
self-authenticating document. When defense counsel could
not readily articulate a reason, the district court overruled the
objection. Because the district court made this definitive
ruling on the admissibility of the Certificate and because it
was clear, in context, that Alvirez’s objection was that the
document had not been properly authenticated, Alvirez
preserved his objection to the authentication of the
Certificate. See id.

Alvirez contends that documents issued by Indian Tribes
cannot be self-authenticating because the tribes are not
political subdivisions as described in Fed. R. Evid. 902(1).2
Additionally, Alvirez argues that the government could not
authenticate the document through Officer Williams’

2
Fed. R. of Evid. 902(1) (2010) provides:

Self-authentication

...

(1) Domestic public documents under seal. A
document bearing a seal purporting to be that of the
United States, or of any State, district, Commonwealth,
territory, or insular possession thereof, or the Panama
Canal Zone, or the Trust Territory of the Pacific
Islands, or of a political subdivision, department,
officer, or agency thereof, and a signature purporting to
be an attestation or execution.
14 UNITED STATES V. ALVIREZ

testimony because Officer Williams did not meet the
requirement set forth in Fed. R. Evid. 902(2).3 We agree.

Authentication is a prerequisite to the admission of
evidence, satisfied by establishing that the proferred item is
in fact what it purports to be. See Orr v. Bank of Am.,
285 F.3d 764, 773 (9th Cir. 2002), as amended.
Authentication establishes the genuineness of evidence and
is a special aspect of relevancy. See id. at 773 n.7. Evidence
may be authenticated by presenting testimony from an
individual who has sufficient familiarity with the proffered
evidence to identify the evidence and inform the court of the
circumstances under which the evidence was created. See
United States v. Pelisamen, 641 F.3d 399, 411 (9th Cir.
2011). In sum, the individual who authenticates the evidence
seeks to convince the court that the proffered evidence is
genuinely what it purports to be. See Las Vegas Sands, LLC
v. Nehme, 632 F.3d 526, 532–33 (9th Cir. 2011). However,
certain documents are characterized as self-authenticating,
requiring no extrinsic evidence of genuineness to be admitted
into evidence. See United States v. Mateo-Mendez, 215 F.3d

3
Fed. R. of Evid. 902(2) (2010) provides:

Self-authentication

...

(2) Domestic public documents not under seal. A
document purporting to bear the signature in the official
capacity of an officer or employee of any entity
included in paragraph (1) hereof, having no seal, if a
public officer having a seal and having official duties in
the district or political subdivision of the officer or
employee certifies under seal that the signer has the
official capacity and that the signature is genuine.
 UNITED STATES V. ALVIREZ 15

1039, 1043 (9th Cir. 2000) (explaining self-authentication).
Pursuant to Fed. R. Evid. 902(1), self-authentication requires
a seal from an entity listed in the rule and a signature of
attestation or execution.4 See Fed. R. Evid. 902(1). Federal
Rule of Evidence 902(1) specifically lists the entities that
may issue self-authenticating documents and Indian tribes are
not among those listed. See Fed. R. Evid. 902(1) (listing the
United States; a State of the United States; a commonwealth,
territory, or insular possession of the United States; the
Panama Canal Zone; and the Trust Territory of the Pacific
Islands); see also United States v. Weiland, 420 F.3d 1062,
1072 (9th Cir. 2005) (explaining that a party may not
circumvent the requirements of authentication when the plain
language of a rule lists the requirements necessary for
authentication).

The plain language of Rule 902(1) specifically lists the
entities that may issue self-authenticating documents. The
Rule is not ambiguous and must be applied as written. See
Gardenhire v. IRS (In re Gardenhire), 209 F.3d 1145, 1152
(9th Cir. 2000). Because Indian tribes are not listed among
the entities that may produce self-authenticating documents,5

4
An attestor certifies that a document is what it purports to be. See
Mateo-Mendez, 215 F.3d at 1043. An executor confirms preparation of
the document. See Christopher B. Mueller and Laird C. Kirkpatrick,
Authentication and Identification: Rules 901 to 903, 5 Federal Evidence
§ 9:30 (3d ed.) (June, 2012), available at Westlaw FEDEV § 9:30.
5
The government argues that tribes are “political subdivisions” of the
United States and thus captured by the text of Rule 902(1). We disagree.
Tribes are “sovereigns or quasi sovereigns,” Kiowa Tribe of Okla. v. Mfg.
Tech., Inc., 523 U.S. 751, 757 (1998), not one of the political entities into
which the federal government is divided, see Santa Clara Pueblo v.
Martinez, 436 U.S. 49, 56 (1978) (“As separate sovereigns pre-existing
the Constitution, tribes have historically been regarded as unconstrained
16 UNITED STATES V. ALVIREZ

the district court abused its discretion in admitting the
Certificate pursuant to Federal Rule of Evidence 902(1) as a
self-authenticating document. See United States v. Nguyen,
465 F.3d 1128, 1130 (9th Cir. 2006)6 (articulating that a
district court abuses its discretion when it admits evidence
“based on an erroneous view of the law”) (citation and
internal quotation marks omitted).7

Alvirez’s Indian status is at the heart of this matter.
Indeed, a “defendant’s Indian status is an essential element of
a § 1153 offense which the government must allege in the
indictment and prove beyond a reasonable doubt.” Bruce,
394 F.3d at 1229 (citations omitted). Admission of the
Certificate allowed the government to establish both elements
of Indian status. First, the quantum blood information
indicated that Alvirez met the “some” Indian blood
requirement. Id. at 1223; see also Reza-Ramos, 816 F.3d at
1121. Second, the Certificate established that Alvirez was an
enrolled member of the CRIT. See Bruce, 394 F.3d at 1224;
see also Zepeda, 792 F.3d at 1116. Absent admission of the

by those constitutional provisions framed specifically as limitations on
federal or state authority.”).
6
At oral argument, the government conceded that Federal Rule of
Evidence 902(4) is inapplicable to this case because, in this case, there
was no “custodian that certified that this was a document” from tribal
records. Therefore, we do not address whether the document could have
been admitted under Rule 902(4).
7
For the same reason, the Certificate was not self-authenticating under
Rule 902(2). That rule allows for the authentication of documents
“purporting to bear the signature in the official capacity of an officer or
employee of any entity included in” Rule 902(1). Fed. R. Evid. 902(2).
Because tribes are not among the entities included in Rule 902(1), Rule
902(2) is inapplicable.
 UNITED STATES V. ALVIREZ 17

Certificate, it is questionable whether the government would
have established Alvirez’s Indian status to the satisfaction of
the jury because the only other evidence of Indian status was
Havatone’s and Agent Barber’s testimony that Alvirez lived
on the reservation, and Havatone’s testimony that Alvirez
was a member of the Hualapai Tribe, a different tribe than
reflected in the Certificate. Consequently, it was more likely
than not that the admission of the Certificate materially
affected the verdict. See Wiggan, 700 F.3d at 1215. Because
the error was not harmless, we vacate Alvirez’s conviction
and remand for proceedings consistent with the reasoning in
this opinion.

B. Denial of Alvirez’s Motion In Limine to Exclude
References to Polygraph Evidence

Citing Crane v. Kentucky, 476 U.S. 683, 690 (1986),
Alvirez asserts that the district court erred when it denied his
motion in limine to exclude references to the polygraph
evidence, because it “deprived him of his constitutional right
to present a complete defense.” As discussed above, when
the district court denied Alvirez’s motion in limine, it
acknowledged the defense’s potential argument that Alvirez
was coerced into a confession during the third interview.
Prior to administering the polygraph, FBI Agent Fuller
verified Alvirez’s willingness to talk to him and advised
Alvirez of his Miranda rights. Agent Fuller asked Alvirez if
he had been drinking, whether he was well rested, and
whether he was taking medications. Alvirez responded that
he had not drunk alcoholic beverages, but that he was taking
phenobarbital and blood pressure medication. Alvirez also
stated that he was tired due to a lack of sleep the previous
night. However, Agent Fuller testified that he did not note
18 UNITED STATES V. ALVIREZ

any weariness or impairment, and that Alvirez indicated “he
was okay to take the test.”

The government stated that it had no intention of referring
to Alvirez’s polygraph examination or its results in its case-
in-chief. However, once the government learned that Alvirez
planned to pursue the defense that multiple interrogations and
alleged coercion led to his confession, the prosecution
responded that the defense would be opening the door for the
prosecution to discuss the polygraph examination and its
results. The district court denied Alvirez’s motion in limine
seeking to exclude polygraph evidence. However, the district
court specifically noted that its ruling was in no way intended
to deprive Alvirez of his right to present a complete defense.

Alvirez now argues that he chose not to raise the multiple
interrogation defense for fear that the prosecution would
introduce the polygraph examination evidence, which would
be unduly prejudicial. According to Alvirez, the district
court’s ruling deprived him of an opportunity to present a
complete defense, as was the case in Crane.

In Crane, the defendant was convicted of murder. See
Crane, 476 U.S. at 686. When he was initially arrested, the
defendant was sixteen years old. See id. at 684. After being
indicted, the defendant moved to suppress his confession.
See id. at 684–85. During the evidentiary hearing, the
defendant testified that he had been held for hours in a
windowless room, surrounded by up to six police officers,
repeatedly denied his requests to contact his mother, and
forced into making the confession. See id. at 685. The trial
court denied the motion. See id.
 UNITED STATES V. ALVIREZ 19

During his opening statement, defense counsel stated that
there were a number of reasons the defendant’s confession
should not be considered trustworthy or credible. See id. In
response to this statement, the prosecution moved in limine to
exclude the defense’s introduction of evidence relating to the
circumstances underlying the defendant’s confession. See id.
at 685–86. The prosecution argued that the circumstances
related to the voluntariness of the statement, and that the
court had already resolved that issue. See id. at 686. The
court granted the prosecution’s motion. See id. The
Kentucky Supreme Court upheld the trial court’s ruling. See
id.

The United States Supreme Court reversed, holding that
the defendant’s due process rights under the Fourteenth
Amendment and the Confrontation Clause were violated. See
id. at 690. The Court held that the manner in which a
confession is elicited is important to determine the “reliability
and credibility” of the confession. Id. at 691. The Supreme
Court noted that even voluntary statements may not be
conclusive of guilt. See id. at 689. Excluding evidence
relevant to the credibility of the confession was a clear
violation of the defendant’s right to present a defense and
denied him a fair trial. See id. at 690–91.

In this circuit, it is well-established that a polygraph
examination may not be admitted to prove the veracity of
statements made during the examination. See United States
v. Bowen, 857 F.2d 1337, 1341 (9th Cir. 1988). However,
polygraph evidence may be admissible as “an operative fact.”
Id. During the hearing on the motion in limine, the district
court expressed the view that polygraph tests should rarely be
mentioned during trial. The district court expressed that its
“instinct [was] it shouldn’t come in. . . .” However, the
20 UNITED STATES V. ALVIREZ

district court clarified that it would not limit Alvirez’s
defense, as he should be able to present “whatever defense
you can.” Nevertheless, the court forewarned Alvirez that his
strategy might result in a reference to the polygraph test by
the government. The district court’s denial of the motion in
limine did not prevent Alvirez from calling key witnesses,
from presenting specific information in support of his
defense, or from refuting an essential element of the
government’s case. See United States v. Pineda-Doval,
614 F.3d 1019, 1033 & n.7 (9th Cir. 2010) (explaining that
procedures violating a defendant’s right to present a defense
involved evidentiary rules that “undermined fundamental
elements of the defendant’s defense”). In sum, Alvirez’s
constitutional right to present a complete defense was
honored. See id. Unlike the defendant in Crane, Alvirez was
not denied the opportunity to present his defense. Rather, he
elected not to present his defense as a legal strategy. See,
e.g., United States v. Main, 443 F.2d 900, 901 (9th Cir. 1971)
(articulating that defense counsel’s informed judgment not to
present an intoxication defense, as a matter of strategy, did
not deprive defendant of a fair trial).

C. Application of the Sentencing Guidelines

Alvirez contends that the district court plainly erred in its
calculation of his sentencing by applying a seven-level
 UNITED STATES V. ALVIREZ 21

enhancement under U.S.S.G. § 2A2.28, 9 for infliction of a
permanent or life-threatening bodily injury. The government
counters that Alvirez waived his right to appeal the
enhancement when he failed to object to the pre-sentence
report or the calculated sentencing range.

A defendant does not waive his right to appeal a district
court’s legal determinations simply because he failed to
object. See United States v. Jimenez, 258 F.3d 1120, 1123
(9th Cir. 2001). Instead, we review for plain error. See id. at
1124.

8
Alvirez was sentenced on May 27, 2011. Therefore, references to the
United States Sentencing Guidelines Manual (U.S.S.G. or Guidelines) are
to the November 2010 Guidelines.
9
§ 2A2.2. Aggravated Assault

(a) Base Offense Level: 14

(b) Specific Offense Characteristics

...

(3) If the victim sustained bodily injury, increase the
offense level according to the seriousness of the injury:

Degree of Bodily Injury Increase in Level

(A) Bodily Injury add 3

(B) Serious Bodily Injury add 5

(C) Permanent or Life- add 7
Threatening Bodily Injury
22 UNITED STATES V. ALVIREZ

“Plain error is (1) an error that (2) is plain, (3) affects
substantial rights, and (4) seriously affects the fairness,
integrity or public reputation of judicial proceedings.” United
States v. Blinkinsop, 606 F.3d 1110, 1114 n.2 (9th Cir. 2010)
(citation omitted). An error is plain when it is “clear” or
“obvious.” Charles, 581 F.3d at 933 (citation omitted).

United States Sentencing Guideline Section
2A2.2(b)(3)(C) allows the district court to increase the
defendant’s offense level by seven levels if the offense
resulted in permanent or life-threatening injury. The district
court’s factual findings underpinning its application of a
sentence enhancement are reviewed for clear error. See
Pearson, 274 F.3d at 1234–35. The district court credited Dr.
McEleney’s testimony that Havatone’s ankle required repair
with surgical grade steel and nine screws to stabilize it, that
it may be necessary to replace this hardware more often, and
that the long-term effects of this injury may cause
posttraumatic osteoarthritis. The district court committed no
clear error in equating these effects to a permanent bodily
injury. See id. (approving the district court’s reliance on
evidence from the trial to apply a sentencing enhancement).
Because the district court properly applied the enhancement,
Alvirez cannot show plain error. See United States v. Tafoya-
Montelongo, 659 F.3d 738, 744 (9th Cir. 2011).

D. Double Jeopardy

Alvirez urges us to enter a judgment of acquittal, rather
than remand for a new trial, because there was insufficient
evidence to establish his Indian status. The double jeopardy
clause does not bar retrial after a reversal based on the
erroneous admission of evidence, however, if this evidence
was nevertheless sufficient to support the conviction. See
 UNITED STATES V. ALVIREZ 23

Lockhart v. Nelson, 488 U.S. 33, 40 (1988). As we discussed
above, here, a rational trier of fact could determine that the
evidence adduced at trial—including the Certificate and
testimony from Havatone and Agent Barber—established
both elements of Indian status: “some” Indian blood, and
membership or affiliation in a federally recognized tribe at
the time of the offense. See Bruce, 394 F.3d at 1223; see also
Reza-Ramos, 816 F.3d at 1121; Zepeda, 792 F.3d at 1113.10
As “any rational trier of fact could have found the essential
element[] [of Indian status] beyond a reasonable doubt,”
sufficient evidence supports this element and retrial does not
offend the double jeopardy clause. Jackson v. Virginia,
443 U.S. 307, 319 (1979) (emphasis in the original).

IV. SUMMARY

In accordance with our recent en banc decision in Zepeda,
we conclude that the determination of federal recognition of
a tribe is a question of law to be resolved by the judge. We
also conclude that the district court abused its discretion when
it determined that the Certificate of Indian Blood offered into
evidence by the government was a self-authenticating
document under Federal Rule of Evidence 902(1). Because
the error was not harmless, we reverse the conviction. The
district court did not abuse its discretion when it denied the
motion in limine, thus it did not deny Alvirez his right to
present a defense. Finally, the district court’s application of
the sentencing enhancement for permanent bodily injury was
not clearly erroneous.

10
Although the Certificate is dated January 18, 2011, a reasonable juror
could determine that the certified document was printed by the Tribe on
that date, and that Alvirez was an Indian at the time of the charged
offense.
24 UNITED STATES V. ALVIREZ

CONVICTION REVERSED AND CASE
REMANDED.