and Submitted June 12, 2012 San Francisco, California
March 14, 2013
Withdrawn April 15, 2013
Resubmitted July 15, 2016
from the United States District Court for the District of
Arizona, No. 3:10-cr-08049-DGC-1 David G. Campbell, District
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.
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.
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.
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.
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
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.
RAWLINSON, Circuit Judge:
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).
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).
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.
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
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
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
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.
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
Fuller advised Alvirez of his Miranda 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.
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.
Pre-Trial Motion ...