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United States v. Alvirez

United States Court of Appeals, Ninth Circuit

August 1, 2016

United States of America, Plaintiff-Appellee,
v.
Edgar Mike Alvirez, Jr., Defendant-Appellant.

          Argued and Submitted June 12, 2012 San Francisco, California

          Filed March 14, 2013

          Withdrawn April 15, 2013

          Resubmitted July 15, 2016

         Appeal from the United States District Court for the District of Arizona, No. 3:10-cr-08049-DGC-1 David G. Campbell, District Judge, Presiding

          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.

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

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

          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 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.

         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 Miranda[1] rights before administering the polygraph examination. While Agent Barber and Deputy Tsosie were present, Agent Fuller reviewed the polygraph consent forms with Alvirez. During 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 ...


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