FILED
NOT FOR PUBLICATION
AUG 19 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10340
Plaintiff-Appellant, D.C. No.
4:12-cr-00516-CKJ-BPV-1
v.
LJO, JUVENILE MALE, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted August 12, 2016
San Francisco, California
Before: HAWKINS and GRABER, Circuit Judges, and SELNA,** District Judge.
The United States appeals the district court’s judgment of acquittal. The district
court held that it lacked jurisdiction over this juvenile delinquency case under the
Indian Major Crimes Act, 18 U.S.C. § 1153, because the government had presented
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
insufficient evidence at trial to establish that LJO’s Indian blood derived from a
federally recognized tribe, citing United States v. Zepeda, 705 F.3d 1052 (9th Cir.
2013). Intervening authority requires that we reverse and remand for the district court
to consider the effect of the superseding en banc opinion in United States v. Zepeda,
792 F.3d 1103 (9th Cir. 2015) (en banc), cert. denied, 136 S. Ct. 1712 (2016). The
district court should also decide in the first instance whether to take judicial notice of
the Tohono O’odham Constitution for purposes of determining whether the
government proved beyond a reasonable doubt that LJO has “some quantum of Indian
blood.” Id. at 1113.
REVERSED AND REMANDED.
2