United States v. First

A tribal court misdemeanor conviction can serve as a predicate offense for unlawful possession of a firearm under 18 U.S.C. § 922(g)(9) when the defendant was provided the right to counsel that was required in the misdemeanor trial, even if that right as given in a tribal court does not meet the constitutional federal minimum.

In 2003, Lakota Thomas First was charged in a Montana tribal court with misdemeanor domestic abuse. First was not required to be given court-appointed counsel, and as an indigent he did not seek representation at his own expense. He pled guilty to the offense. In 2011, First was indicted under 18 U.S.C. § 922(g)(9), which makes it unlawful for a person convicted of a “misdemeanor crime of domestic violence” to possess a firearm. The district court dismissed the indictment, holding that First “was [not] represented by counsel…or knowingly and intelligently waived the right to counsel” in his domestic abuse case, so that conviction could not serve as a predicate offense for the firearm charge. First appealed the dismissal to the Ninth Circuit. The panel noted that while the Sixth Amendment guarantees the right to retain counsel, it does not guarantee the right for indigent defendants in a tribal court to be appointed counsel as they would have in state or federal court, unless the tribal court imposes a sentence of more than one year. Since the language in the statute defining the predicate offenses is that the defendant had a “right to counsel in the case” and the legislative history supported its conclusion, the panel held that the right to counsel for purposes of the statute is the “right that existed in the underlying proceeding.” The panel concluded that First’s domestic abuse charge could serve as the predicate offense for the firearm charge despite the fact that he did not have a right to appointed counsel in the tribal court. REVERSED and REMANDED.