United States Court of Appeals
For the Eighth Circuit
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No. 16-3397
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Michael Lee Long, Jr.
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Pierre
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Submitted: March 10, 2017
Filed: August 29, 2017
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Before WOLLMAN, COLLOTON, and SHEPHERD, Circuit Judges.
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WOLLMAN, Circuit Judge.
Michael Lee Long, Jr., was convicted by a jury of one count of assault with a
dangerous weapon, in violation of 18 U.S.C. §§ 1153 and 113(a)(3); one count of
simple assault, in violation of 18 U.S.C. §§ 1153 and 113(a)(5); one count of being
a prohibited person in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(9),
924(a)(2), and 924(d); and one count of using a firearm during and in relation to a
crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). The district court1
sentenced Long to 30 months’ imprisonment on the assault with a dangerous weapon
count, 6 months’ imprisonment on the simple assault count, and 30 months’
imprisonment on the prohibited person in possession of a firearm count (prohibited-
person count), to run concurrently with one another, and to a mandatory minimum
120 months’ imprisonment on the use of a firearm during and in relation to a crime
of violence count, to run consecutively with the other counts. Long appeals from the
district court’s denial of his motion to dismiss the prohibited-person count and its
denial of his motions for a new trial and for a mistrial based on alleged violations of
Brady v. Maryland, 373 U.S. 83 (1963). We affirm.
I. Background
On an evening in May 2015, Cynthia Jones-Bear Robe was riding in a vehicle
returning from St. Francis, SD, to the town of Rosebud, SD, which is located on the
Rosebud Sioux Indian Reservation. Her daughter, K.J., was driving the vehicle,
while K.J.’s boyfriend Robert Kills In Water rode in the back seat. They stopped at
the Paul Mart gas station and convenience store, for Jones-Bear Robe to buy
cigarettes. While Jones-Bear Robe was standing in line, Long came into the store,
entered the checkout line behind her, and made a derogatory remark to her about
purchasing individual cigarettes. She stated that she did not want to speak to him, left
the store after making her purchase, and returned to her vehicle.2
1
The Honorable Roberto A. Lange, United States District Judge for the District
of South Dakota.
2
Jones-Bear Robe testified that Long followed her out of the store and
continued speaking to her, but the store’s surveillance footage shows that Long did
not leave the store immediately after Jones-Bear Robe. The footage captured the
events inside the store and at the gas pumps, but not in the area where Jones-Bear
Robe’s vehicle was parked.
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Jones-Bear Robe called the police from inside her vehicle to report that Long
was harassing her. She exited her vehicle to record Long’s license plate number and
then returned to the passenger seat of her vehicle. Long, expressing anger that Jones-
Bear Robe was reporting him to the police, opened the vehicle’s passenger door,
pulled a gun out of his pocket, pointed it at Jones-Bear Robe’s head, and threatened
to shoot Jones-Bear Robe and K.J. At Jones-Bear Robe’s instruction, K.J. put the
vehicle in reverse and accelerated; Long was hit by and rolled under the open
passenger door.
Long then opened fire on the vehicle, with the witnesses at trial giving different
accounts of the number of shots he fired. Jones-Bear Robe testified that he might
have fired two, three, or four shots. The police dispatcher who took Jones-Bear
Robe’s call testified that Jones-Bear Robe had said that Long fired twice. The
supervisor at Paul Mart testified that she did not hear any gunshots, saying that the
cement walls in her office may have accounted for this fact. The cashier at the store
testified that she heard one loud sound, like two cars colliding. Kills In Water
testified that he heard four gunshots. K.J. testified that there were four shots, two of
which hit the vehicle.
On the first day of Long’s trial, the government received and provided to
defense counsel a report prepared by Sergeant Daniel Reynolds of the Rosebud Police
Department, one of the officers who responded to the incident at the Paul Mart, which
included statements from two additional witnesses, Jennifer Young and James
Bordeaux. Young testified that she was preparing to purchase gasoline outside the
Paul Mart during the incident. She testified that she heard three gunshots, and that
she had told Reynolds at the scene that she heard “a gun going off,” without
specifying the number of shots. Reynolds testified that Bordeaux, whom the parties
were unable to locate, had told Reynolds that he saw a vehicle reversing quickly and
heard a single noise, which he thought was a car backfire. Young identified an
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additional witness from the surveillance video, but the parties were unable to contact
her in time for her to testify at trial.
Long moved for a mistrial, or in the alternative for a continuance, on the
ground that the government’s failure to disclose Reynolds’s report violated his
Fourteenth Amendment rights under Brady, arguing that the statements by Young and
Bordeaux supported his theory that he acted in self defense by firing a single shot at
the vehicle to prevent it from running over him. The district court denied the motion
during the trial and denied Long’s post-trial motion for a new trial. D. Ct. Order of
July 13, 2016, at 13-18. It concluded that information within the possession of
officers of the Rosebud Sioux Tribal Law Enforcement Services was not within the
government’s control for purposes of Brady, relying on its previously decided case,
United States v. Stoneman, No. CR 09-30101-RAL, 2010 WL 2710477, *1-2 (D.S.D.
July 8, 2010). D. Ct. Opinion & Order of July 13, 2016, at 15-16. It concluded that
the late disclosure of Young’s statement did not prejudice Long because she testified
at trial and was cross-examined by Long. Id. at 16-17. It also concluded that
Bordeaux’s unavailability did not prejudice Long because his statement was “at best,
neutral evidence” for Long, and because any prejudice to Long was remedied by his
opportunity to recall Reynolds and elicit hearsay testimony regarding Bordeaux’s
statement. Id. at 17-18.
Long also moved to dismiss the prohibited-person count, arguing that his
underlying tribal-court conviction for domestic violence was obtained without
counsel and thus could not qualify as a predicate conviction under
18 U.S.C. § 921(a)(33)(B)(i). The district court initially deferred ruling on this
motion pending counsel’s arguments at the pretrial conference. D. Ct. Opinion &
Order of May 6, 2016, at 9-11. The government presented evidence at the pretrial
conference that Long had pleaded guilty to an offense of domestic abuse under
Rosebud tribal law in June 2011. Long stated that his counsel in that case, Lisa
White Pipe, was not a licensed attorney or a law school graduate. Long’s district
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court counsel stated that he had been unable to find White Pipe’s name in the State
Bar of South Dakota Membership Directory. The government stated that it had not
been aware that White Pipe was not law trained, but agreed that it had been unable
to find her name in the Membership Directory. The government did not dispute that
White Pipe had in fact been Long’s representative. After Long offered to elicit White
Pipe’s testimony that she was not a licensed attorney, the court stated that it would
consider the motion. The court denied the motion the following day, citing United
States v. First, 731 F.3d 998 (9th Cir. 2013). D. Ct. Order of May 10, 2016.
II. Discussion
A. Right to Counsel for Predicate Offense
We review de novo the district court’s denial of Long’s motion to dismiss the
prohibited-person count. United States v. Smith, 171 F.3d 617, 619 (8th Cir. 1999).
Under 18 U.S.C. § 922(g)(9), it is unlawful for any person “who has been convicted
in any court of a misdemeanor crime of domestic violence” to possess a firearm in or
affecting interstate commerce, or to receive a firearm that has been shipped in
interstate commerce. Section 921(a)(33)(B), however, provides:
(B)(i) A person shall not be considered to have been convicted of such
an offense for purposes of this chapter, unless—
(I) the person was represented by counsel in the case, or
knowingly and intelligently waived the right to counsel in the
case; and
(II) in the case of a prosecution for an offense described in this
paragraph for which a person was entitled to a jury trial in the
jurisdiction in which the case was tried, either
(aa) the case was tried by a jury, or
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(bb) the person knowingly and intelligently waived the right to
have the case tried by a jury, by guilty plea or otherwise.
Adopting the reasoning set forth in United States v. First, the district court
concluded that this statute did not bar the use of Long’s domestic abuse conviction
as a predicate for the prohibited-person count. In First, the Ninth Circuit held that,
to give meaning to the phrase “knowingly and intelligently waived the right to
counsel in the case,” the “right to counsel” must refer to “the right as it existed in the
predicate misdemeanor proceeding,” rather than “a uniform federal meaning
containing a Sixth Amendment floor.” 731 F.3d at 1003. Because the defendant had
only a right to retained counsel at his underlying tribal-court conviction, the Ninth
Circuit held that his lack of appointed counsel did not bar the conviction from serving
as a predicate offense under 18 U.S.C. § 922(g)(9). Id. at 1001-03, 1009.
We agree with the Ninth Circuit that the phrase “right to counsel” in
§ 921(a)(33)(B)(i)(I) refers to the right to counsel “as it existed in the predicate
misdemeanor proceeding.” Id. at 1003. We find Long’s arguments to the contrary
unpersuasive. Long argues that if Congress had intended the result in First, the
subsection of the statute regarding the right to counsel would, like the subsection
regarding the right to trial by a jury, have included such qualifying language as “in
the case of a prosecution for an offense . . . for which a person was entitled to court-
appointed counsel in the jurisdiction in which the case was tried.” Appellant’s Br.
13. We disagree, for the same reason given by the Ninth Circuit in First—namely,
that the phrase “in the case” still serves to qualify the right-to-counsel provision even
if the jury-trial provision is qualified more clearly. 731 F.3d at 1004. Long argues
that the Ninth Circuit erred in relying on this court’s decision in Smith, 171 F.3d at
621-22, but the Ninth Circuit made clear that it drew support from Smith only insofar
as that case considered state law in interpreting the phrase “right to counsel” in
§ 921(a)(33)(B)(i)(I). First, 731 F.3d at 1005. We also reject Long’s argument that
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the Ninth Circuit misinterpreted the legislative history of § 921(a)(33). The court
stated in First: “If anything, the words ‘in the case’ served to engross the right to
counsel by referencing the state right to counsel provisions, which can only exceed
the federal constitutional minimum.” 731 F.3d at 1007. In contending that this
statement supports his position rather than the government’s, Long fails to address
the Ninth Circuit’s separate conclusion that when, in 2006, Congress added tribal
offenses to the definition of “misdemeanor crime of domestic violence” under
§ 921(a)(33)(A), it “was aware that . . . it was allowing convictions obtained without
constitutional protections to qualify as misdemeanors capable of triggering
prosecution under § 922(g)(9).” Id. Finding none of Long’s arguments to the
contrary persuasive, we will follow the approach set forth in First and consider
Long’s right to counsel as it existed at his tribal court proceedings.
“The Sixth Amendment guarantees indigent defendants, in state and federal
criminal proceedings, appointed counsel in any case in which a term of imprisonment
is imposed. But the Sixth Amendment does not apply to tribal-court proceedings.”
United States v. Bryant, 136 S. Ct. 1954, 1958 (2016) (citation omitted). Under the
Indian Civil Rights Act of 1968, a criminal defendant in tribal-court proceedings is
entitled to appointed counsel when a sentence of more than one year’s imprisonment
is imposed. 25 U.S.C. § 1302(c)(2). Because Long was sentenced to 365 days’
imprisonment, with 305 days suspended, in the underlying tribal-court proceeding,
any right that Long had to appointed counsel could have come only from Rosebud
tribal law.
The Bill of Rights set forth in the Constitution of the Rosebud Sioux Tribe
provides that the tribe shall not deny a criminal defendant the right “to have the
assistance of counsel for his or her defense including the right to have counsel
provided subject to income guidelines.” Const. and Bylaws of the Rosebud Sioux
Tribe of South Dakota, art. X, § 1(f). The Law and Order Code of the Rosebud Sioux
Tribe allows both professional attorneys and lay counsel to practice in tribal court.
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Law and Order Code of the Rosebud Sioux Tribe § 9-2-6 (“Every person appearing
as a party in any judicial procedure before a Tribal court shall have the right to be
represented either by lay counsel or professional attorneys and have such counsel and
attorneys assist in the preparation and presentation of his case. The Rosebud Sioux
Tribe shall have no obligation to provide or pay for such lay counsel or professional
attorneys and only those persons who have first obtained admission to practice before
the Tribal Courts shall appear therein.”). It further provides that both professional
attorneys and lay counsel must represent indigent defendants upon appointment by
the tribal court. Id. § 9-2-7 (“Any person admitted to practice before the Tribal Court
will accept and represent indigent clients without compensation or without full
compensation when directed to do so by a Judge of the Tribal Court.”).
Long has presented no evidence that his counsel at the tribal-court proceeding
was not admitted to practice as lay counsel in the tribal court, arguing only that Ms.
White Pipe is not a licensed attorney. Because lay counsel are admitted to practice
before the tribal court, we conclude that Long was represented by counsel in the
tribal-court proceeding within the meaning of 18 U.S.C. § 921(a)(33)(B), and that his
conviction there thus constituted a valid predicate offense under
18 U.S.C. § 922(g)(9).
B. Evidence Disclosed During Trial
We review for abuse of discretion the denial of Long’s Brady-based motions
for a mistrial and for a new trial. United States v. Tyndall, 521 F.3d 877, 881 (8th
Cir. 2008). “[T]he suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
Brady, 373 U.S. at 87. “[T]he individual prosecutor has a duty to learn of any
favorable evidence known to the others acting on the government’s behalf in the case,
including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995). “Brady is
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violated if three requirements are met: ‘The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is impeaching; that evidence
must have been suppressed by the State, either willfully or inadvertently; and
prejudice must have ensued.’” Tyndall, 521 F.3d at 881 (quoting Morales v. Ault,
476 F.3d 545, 554 (8th Cir. 2007)). “The evidence is not material and no prejudice
can be shown unless there is a reasonable probability that the verdict would have
been different if the evidence had not been suppressed.” Id. “A mid-trial disclosure
violates Brady only if it comes too late for the defense to make use of it.” Id. at 882.
We need not decide whether the tribal law enforcement officers in this case
were acting on the government’s behalf such that Reynolds’s report was in the
government’s possession, because the information contained therein was not
exculpatory, and even if it was, Long suffered no prejudice. Young appeared at trial
and was cross-examined by Long, during which Young testified that she heard three
gunshots, clarifying her earlier statement to Reynolds. The district court permitted
Long to elicit hearsay testimony from Reynolds regarding the unavailable Bordeaux’s
statement. To the extent that Bordeaux’s statement—that he saw a vehicle moving
quickly in reverse and heard a single noise, which he thought was a car
backfiring—was exculpatory, Reynolds’s testimony mitigated any prejudice that
resulted from the disclosure of Reynold’s report at the beginning of the trial. Cf.
United States v. Almendares, 397 F.3d 653, 664 (8th Cir. 2005) (holding to be
adequate the trial-time disclosure of evidence that a witness identified an alternate
suspect, where defense did not recall witness but cross-examined another witness
regarding the identification). Long presented no evidence that the testimony of the
additional witness identified by Young would have been exculpatory had she been
found in time to testify at trial. Accordingly, the district court did not abuse its
discretion in denying Long’s motions for a mistrial and for a new trial.
The judgment is affirmed.
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COLLOTON, Circuit Judge, concurring in part and dissenting in part.
A misdemeanant like Michael Long is forbidden to possess a firearm only if
he was “represented by counsel in the case” in which he sustained the misdemeanor
conviction, or if he “waived the right to counsel in the case.” 18 U.S.C.
§ 921(a)(33)(B)(i)(I). It is undisputed that Long did not waive the right to counsel
and that he was not represented by a lawyer in the case. The court concludes,
however, that because Long was represented in the case by a nonlawyer, dubbed a
“lay counsel” by the Rosebud Sioux Tribe, he was “represented by counsel in the
case.” I believe that this conclusion is inconsistent with the meaning of the word
“counsel” in the statute, so I would reverse Long’s conviction for possession of a
firearm as a prohibited person.
When the Supreme Court recognized the individual right to keep and bear arms
in the Second Amendment, the Court said that its opinion should not be read to cast
doubt on the longstanding prohibition on “the possession of firearms by felons.”
District of Columbia v. Heller, 554 U.S. 570, 626 (2008). In 18 U.S.C. § 922(g)(9),
Congress extended the prohibition to persons who have been “convicted in any court
of a misdemeanor crime of domestic violence.” When it established that prohibition,
however, Congress included certain procedural safeguards that must be satisfied
before a conviction qualifies. If the misdemeanor defendant was entitled to a jury
trial “in the jurisdiction in which the case was tried,” then he is a prohibited person
under the firearm statute only if the case was tried to a jury or if he knowingly and
intelligently waived the right to have the case tried by a jury. Id.
§ 921(a)(33)(B)(i)(II). And a convicted misdemeanant loses his Second Amendment
rights only if he “was represented by counsel in the case, or knowingly and
intelligently waived the right to counsel in the case.” Id. § 921(a)(33)(B)(i)(I).
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Long was convicted of a misdemeanor in a Rosebud Sioux tribal court. He did
not waive a right to counsel in the case, so the key issue here is whether Long was
“represented by counsel in the case.”
The ordinary meaning of “counsel” in the legal context conveyed by the phrase
“represented by counsel” is a lawyer. Webster’s defines “counsel” as “a lawyer
engaged in the trial or management of a cause in court.” Webster’s Third New
International Dictionary 518 (1993). Black’s Law Dictionary says that “counsel”
means “[o]ne or more lawyers who represent a client,” and in turn defines lawyer as
“[o]ne who is licensed to practice law.” Black’s Law Dictionary 352, 895 (7th ed.
1999). Courts ordinarily use the term in the same way. See Zanecki v. Health All.
Plan of Detroit, 576 F. App’x 594, 595 (6th Cir. 2014) (“The problem, then, is that
Mark Zanecki was impermissibly acting as the estate’s counsel, and [a] nonlawyer
can’t handle a case on behalf of anyone except himself.”) (alteration in original)
(internal quotation omitted); Muzikowski v. Paramount Pictures Corp., 322 F.3d 918,
924 (7th Cir. 2003) (“Muzikowski cannot represent the NWLL because he is not a
lawyer. . . . Because NWLL has not appeared by counsel, we dismiss it as a party to
this appeal.”) (citation omitted); Fernicola v. Eannance, 25 F. App’x 68, 69 (2d Cir.
2002) (“Although 28 U.S.C. § 1654 provides that ‘[i]n all courts of the United States
the parties may plead and conduct their own cases personally or by counsel . . .,’ this
does not empower a pro se nonlawyer litigant to represent his or her child.”)
(alteration in original).
The court does not really dispute that “represented by counsel” ordinarily
means represented by a lawyer, but concludes that the modified phrase “represented
by counsel in the case” implies a different meaning here. The natural meaning of the
modified phrase, however, is simply that the person was represented by a lawyer in
the criminal case that resulted in the conviction, not represented by a lawyer in some
other context. Many people are represented by counsel in connection with their
business affairs, estate planning, or civil litigation. The statute makes clear that a
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misdemeanant is a prohibited person only if he was represented by counsel in his
criminal case.
The court relies on the second clause of § 921(a)(33)(B)(i)(I), which provides
that a misdemeanant has a qualifying conviction if he “knowingly and intelligently
waived the right to counsel in the case.” The suggestion is that “in the case” would
be superfluous here unless it implied that the second clause referred to “right to
counsel” as defined by the Tribe in its constitutional provision concerning “right to
counsel.” Waiver of a right to counsel under the second clause is not at issue in
Long’s case. But insofar as the two clauses should be read in pari materia, the phrase
“in the case” does not justify interpreting “counsel” to mean a nonlawyer in both
clauses.
Absent a “plain indication to the contrary,” we assume that Congress intended
a uniform national definition of statutory terms. United States v. Storer, 413 F.3d
918, 921 (8th Cir. 2005). We should therefore assume that “counsel” carries the
ordinary meaning of “lawyer” in all jurisdictions where misdemeanants might be
prosecuted. The phrase “in the case” in the waiver clause requires the court to
determine whether the defendant waived the right to a lawyer “in the case” in which
he sustained the misdemeanor conviction. If federal law or the prosecuting
jurisdiction provides the right to a lawyer in the case, and the defendant waives that
right, then he has been convicted of a qualifying offense. But where, as here, neither
federal law nor the prosecuting jurisdiction provided the right to a lawyer, there could
be no waiver that would satisfy the statute. To read more into the phrase “in the case”
would dilute the procedural protections that Congress included when it added a new
category of prohibited persons under § 922(g)(9).
When Long was convicted of a misdemeanor in the tribal court, he was not
represented by a lawyer in the case. Therefore, he was not “represented by counsel
in the case” within the meaning of § 921(a)(33)(B)(i)(I), and he “shall not be
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considered to have been convicted” of a “misdemeanor crime of domestic violence”
for purposes of § 922(g)(9). For these reasons, I would reverse Long’s conviction for
unlawful possession of a firearm as a prohibited person and remand for resentencing.
I concur in Parts I and II.B of the court’s opinion, and join the decision to affirm
Long’s three other convictions.
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