Supreme Court Set to Decide Whether Certain Tribal Prosecutions Implicate Double Jeopardy Protection
This case law update was written by James P. Garay Heelan, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
Erin Schaff | AP
Supreme Court justices were critical during oral argument of allowing the federal government to prosecute a defendant in federal court, where that defendant had been previously convicted in a federally-operated tribal court.
In July 2017, the Bureau of Indian Affairs (BIA) arrested Merle Denezpi for a sexual encounter he had with another member of the Navajo Nation that occurred within the boundaries of the Ute Mountain Ute Reservation.
Denezpi was charged by complaint in the Court of Indian Offenses of the Ute Mountain Agency – a so-called “CFR court” because it was established under Title 25 of the Code of Federal Regulations – with three offenses: terroristic threats, false imprisonment, and assault and battery. In the CFR court, a BIA attorney prosecuted the case on behalf of the United States against Denezpi, who entered an Alford plea to the assault and battery charge in exchange for the prosecutor’s agreement to dismiss the other two charges. Denezpi then received a sentence of 140 days incarceration.
Six months after Denezpi completed his CFR court-issued sentence, he was charged by indictment in U.S. District Court for the District of Colorado. The new charges were based on the same conduct underlying the charges against Denezpi in the CFR court.
Prior to trial, Denezpi filed a motion to dismiss the indictment on Fifth Amendment double jeopardy grounds. He acknowledged U.S. Supreme Court precedent holding that “dual sovereignty doctrine” allowed the federal government to prosecute a tribal member following a tribal prosecution for the same acts. But, the CFR court operated as a federal court and not a tribal court, Denezpi argued, triggering his right against double jeopardy.
The district court denied Denezpi’s motion and a jury convicted him of aggravated sexual assault, for which the district court sentenced him to 360 months incarceration. On Denezpi’s appeal, the U.S. Court of Appeals for the Tenth Circuit affirmed his conviction. The Supreme Court subsequently granted his petition on the double jeopardy issue. This week, the Supreme Court received oral argument in the case.
At oral argument, Denezpi’s attorney emphasized the Court of Indian Offenses which convicted Denezpie was a “CFR court” answered to the federal government and not to the Ute Mountain Ute tribe. For that reason, he argued, the federal role in Denezpi’s first trial precluded the later trial in U.S. District Court.
In response to Justice Sonia Sotomayor question about whether there was an “easy fix” to the problem, Denezpi’s attorney suggested the federal government could provide funding for the tribe to administer prosecutions through its own prosecutor. Alternatively, he suggested reallocating federal funding away from CFR courts to establish tribal courts.
Justice Stephen Breyer and Justice Elena Kagan asked how federal the CFR could really be, when the tribe submitted to the Court that it considers the CFR court to be a “tribal court.” Denezpi’s attorney responded that, while the tribe relies on the CFR court to enforce tribal laws, that reliance created a double jeopardy issue. Justice Clarence Thomas then raised the question of whether the CFR court–if it is a federal court–even had the constitutional authority to enforce criminal law.
Arguing for the United States, an attorney from the Office of the Solicitor General argued the tribe was the ultimate authority for Denezpi’s first prosecution, and that it “made the sovereign choice” to prosecute him in the CFR court. For that reason, she argued the “dual sovereignty doctrine” applied and that Denezpi’s double jeopardy argument should fail.
Justice Thomas asked about the disparity between the 140-day sentence from the CFR court and the 360-month sentence from the District Court. The government’s attorney explained that Congress had limited the penalties that tribes could impose in tribal courts and CFR courts. She then told justices that, despite those limitations, imposing any sentence is a significant exercise of a tribe’s sovereign authority.
Chief Justice Roberts asked whether federal prosecutors could use CFR court prosecutions as “practice rounds” before initiating prosecutions in federal district court. The government’s attorney cited to an amicus brief filed by former United States attorneys, which said their offices did not coordinate with BIA prosecutors working in CFR courts.
In the final minutes of oral argument, during Denezpi’s rebuttal, several justices said that there seemed to be workable solutions to avoid the dilemma that Denezpi’s case presented. Denezpi’s attorney agreed, if done “in an unambiguous way,” the problem could be avoided by allowing tribes to directly appoint prosecutors.
FEDagent will update readers on the Supreme Court’s decision in Denezpi v. United States when it issues later this year.
Read the Supreme Court filings here.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.