United States v. Alvirez

Under the Fed. R. Evid. §§ 902(1) and 902(2), Indian tribes are not political subdivisions capable of issuing self-authenticating documents and, therefore, tribes and tribal officers cannot authenticate a Certificate of Indian Blood.

Edgar Alvirez, Jr. (“Alvirez”) challenged his jury conviction and thirty-seven month sentence for “assault resulting in serious bodily injury on an Indian reservation,” in violation of 18 U.S.C. §§ 1153 and 113(a)(6). A defendant’s Indian status is an essential element of a § 1153 offense. The most important element of Indian status is tribal enrollment or government recognition of such. The Ninth Circuit held the district court abused its discretion when it admitted as proof of that element a Certificate of Indian Blood (“Certificate”) issued by the Colorado River Indian Tribes and proffered by the government as self-authenticating. The panel agreed with Alvirez that Fed. R. Evid. 902(1), does not enumerate tribes as political subdivisions capable of issuing self-authenticating documents, and, for that reason, a Hualapai Nation Police Officer could not authenticate the Certificate under Rule 902(2). The panel “vacate[d] [Alvirez’] conviction because more likely than not the admission of the Certificate materially affected the verdict.” For the sake of judicial economy the court addressed other issues likely to arise on remand: 1) a seven-level enhancement for “permanent or life-threatening injury” was not plain error where repair of victim’s ankle included nine screws, surgical steel, and may cause long-term arthritic effects; 2) because polygraph evidence may be admissible as “an operative fact” and is not “per se inadmissible,” it was not abuse of discretion to deny Alvirez’ motion in limine to exclude a dispositive polygraph; and 3) denial of the motion in limine did not deny Alvirez his constitutional right to present a complete defense merely because he elected not to present coercion as a defense for fear of opening the door to admission of the polygraph. REVERSED and REMANDED.