United States v. Bryant

This case presents the Supreme Court with the opportunity to determine if the Government can constitutionally rely upon uncounseled misdemeanor convictions to satisfy the predicate-offense element of 18 U.S.C. § 117(a). See United States v. Bryant, 769 F.3d 671, 673–74 (9th Cir. 2014). The Government argues that Bryant’s prior convictions can be used in his § 117(a) prosecution because the convictions did not violate the Constitution as they were obtained on tribal lands where the Constitution does not apply. See Brief for Petitioner, United States at 28­–29. The Government further argues that allowing the use of these prior convictions is better policy and that not doing so would lead to incongruous results. See Id. at 40, 42, 52. Additionally, according to the Government, using the convictions would not violate due process because the statute passes the rational-basis standard of review and is consistent with the principles of comity. See Id. Bryant counters, arguing that the Court’s precedent establishes a bright-line rule—the Sixth Amendment mandates that a defendant has a right to counsel in any case where the defendant faces a sentence of imprisonment—and that the Government’s reading of Court precedent is overly broad. See Brief for Respondent, Michael Bryant, Jr. at 12–13, 19. Bryant further contends that allowing these convictions would lead to either admittance of an abundance of suspect convictions or a complex process requiring courts to determine the validity of each conviction. See Id. at 27–29. Finally, Bryant argues that admitting uncounseled convictions violates Due Process, given the importance of the right to counsel in the American justice system, and, further, that principles of comity are granted contingent on the foreign tribunal preserving a level of due process, and, thus, the Court should not apply comity here. See Id. at 48, 50.

THE SIXTH AMENDMENT AND SUPREME COURT PRECEDENT

The Government argues that Bryant’s conviction under 18 U.S.C. § 117(a) is constitutionally admissible because the relevant question in this case concerns whether the prior convictions violated the Sixth Amendment, not whether Bryant did not have counsel at the prior proceeding. See Brief for Petitioner at 28. According to the Government, if Bryant’s convictions did not violate the Sixth Amendment, they can be used in a later prosecution. See Id. The Government further argues that Bryant’s convictions did not violate the Sixth Amendment because they were obtained by Indian tribal governments which are not subject to the Sixth Amendment. See Id. at 28–29. The Government asserts that the Court’s holdings in Burgett v. Texas, 389 U.S. 109 (1967), and Nichols v. United States, 511 U.S. 738 (1994) are particularly relevant here. See Brief for Petitioner at 29; see also Nichols v. United States, 511 U.S. 738 (1994); Burgett v. Texas, 389 U.S. 109 (1967). The Government argues that Burgett, which held that a prior, uncounseled conviction obtained in violation of the Sixth Amendment right to counsel could not be used in a later prosecution, does not bar the use of the convictions here because the Sixth Amendment was never violated in the first place. See Brief for Petitioner at 22, 29. Instead, according to the Government, the convictions were obtained outside of the Sixth Amendment’s jurisdiction. See Id. at 29. The Government asserts that the Court should instead follow Nichols, which held that a prior, uncounseled misdemeanor conviction carrying no term of imprisonment could be used in a later prosecution for a crime carrying a term of imprisonment, thus making Bryant’s tribal-court convictions valid and permissible for use in his § 117(a) prosecution. See Id. at 24, 29. The Government also contends that the Ninth Circuit’s reasoning was erroneous because it was based on now-overruled Supreme Court case law and that the Ninth Circuit misapplied Nichols. See Id. at 30–32. The Government argues that Bryant’s prior convictions conform with the Sixth Amendment, as the defendant’s prior convictions did in Nichols, because the Sixth Amendment did not apply to the prior convictions. See Id. at 32.

Bryant asserts that the Court’s precedent establishes a bright-line rule: the Sixth Amendment mandates that a defendant has a right to counsel in any case where the defendant faces a sentence of imprisonment. See Brief for Respondent at 12–13. Bryant further argues that, in accordance with this rule, the holding in Burgett is controlling here: relying on a conviction obtained in violation of the Sixth Amendment to support another conviction is unconstitutional. See Id. at 13. Bryant also contends that the Nichols holding was narrow and does not apply here. See Id. at 19. In Nichols, according to Bryant, the Court allowed the use of a prior, uncounseled conviction to be used during the sentencing phase of a subsequent prosecution, not during the guilt phase as Bryant’s prior convictions were used here. See Id. Bryant argues that Supreme Court case law succeeding Nichols supports the proposition that use of a prior conviction during sentencing is fundamentally different than using it to establish an element of the underlying crime, specifically noting that the Court has tended to freely admit evidence of prior convictions, primarily because the Court could assume that they were obtained constitutionally. See Id. at 24–26. Thus, Bryant argues, because Bryant’s convictions were not obtained via a process adhering to all of the constitutional safeguards and are being used to prove an element of the crime and not merely as a sentencing factor, the convictions are not subject to the deferential analysis underlying Nichols. See Id. at 26, 31. Bryant asserts that the Ninthircuit's reasoning was correct where it determined that, because Bryant’s prior convictions would have been invalid in federal or state court due to his lack of counsel, the use of Bryant’s convictions as the elements of a crime in federal court violates the Sixth Amendment. See Id. at 36–37.

DUE PROCESS CONCERNS AND COMITY

The Government argues that § 117(a) does not violate Due Process because the statute passes rational-basis review, where defining a crime in part on a defendant’s status as a prior criminal offender does not enter upon any “constitutionally suspect criteria,” and Congress rationally chose to target prior criminal offenders in attempting to curb violence in Indian territories. See Brief for Petitioner at 42­–43. The Government further argues that Congress rationally chose to target both offenders who had counseled and uncounseled prior convictions because only targeting prior criminal offenders who had counseled convictions would have been ineffective in addressing the many offenders prosecuted on Indian lands. See Id. at 47. The Government contends that Congress’s ability to exclude a right to counsel is strengthened by principles of comity, asserting that judgments of Indian tribes warrant the same deference as those of any foreign tribunal, and foreign judgments often receive recognition despite some foreign tribunals having fewer procedural protections than those offered in the United States. See Id. at 52–53.

Bryant counters that the Government’s Due Process arguments are misguided and untimely because Bryant did not make a separate Due Process argument in his motion to dismiss in District Court but merely included those arguments with his Sixth Amendment arguments. See Brief for Respondent at 38­–39. Thus, Bryant argues, the Ninth Circuit never had the opportunity to address these arguments and, consequently, the Supreme Court must remand for a decision on the Due Process issue before reaching a judgment. See Id. at 38­–40. Bryant also argues that, if the Court were to reach the Due Process issue, the use of a prior, uncounseled conviction as an element of a crime offends Due Process because the right to counsel is an integral part of Due Process. See Id. at 48. Bryant further argues that the use of uncounseled convictions dilutes the reasonable-doubt standard that, according to Bryant, is an essential element of the American justice system. See Id. Finally, Bryant argues that comity is optional and is contingent on the foreign tribunal adhering to principles of Due Process, and that the lack of the right to counsel is a sufficient reason to withhold applying comity. See Id. at 50­–51.