http://www.ca9.uscourts.gov/datastore/opinions/2010/03/16/08-30223.

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff/Appellee, Dist.Ct.No. CR 08-68-GF-SEH
v. Ct.Apps.No. 09-30052
GORDON RAY MANN, JR.,
Defendant/Appellant.
APPELLANTS REPLY BRIEF
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MONTANA, GREAT FALLS DIVISION, UNITED STATES
DISTRICT JUDGE SAM E. HADDON, PRESIDING
Palmer A. Hoovestal, Esq.
Hoovestal Law Firm, PLLC
40 W. 14th Street, Suite 4C
P.O. Box 747
Helena, MT 59624-0747
Tel: (406) 457-0970
Fax: (406) 457-0475
palmer@hoovestal-law.com
Attorney for Appellant
GORDON RAY MANN, JR. Submitted: July 9, 2009
Case: 09-30052 07/09/2009 Page: 1 of 13 ID: 6986846 DktEntry: 14
i
TABLE OF CONTENTS
Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .ii
Case Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . .ii
Statutory Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . .ii
Other. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . .ii
Reply. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . .1
1. Oral argument is necessary.. . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . .1
2. Standard of review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .2
3. Mann is not affiliated with the Blackfeet Tribe... . . . . . . . . . . . .
. .2
4. The Government ignores the fact that Mann may be an Indian in an
anthropological or ethnohistorical sense, but not an Indian for
purposes of federal criminal jurisdiction... . . . . . . . . . . . . . . . . . .
. . .4
Conclusion and Prayer.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . .6
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . .8
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .9
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ii
TABLE OF AUTHORITIES
Case Law
Fisher v. District Court, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976).. .
. .1
LaPier v. McCormick, 986 F.2d 303 (9th Cir. 1993). . . . . . . . . . . . . . . .
. . . . 1, 2, 5
Morton v. Mancari, 417 U.S. 535, 553 n. 24, 94 S.Ct. 2474, 2484, 41 L.Ed.2d
290... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .1
United States v. Antelope, 430 U.S. 641, 646, 97 S.Ct. 1395,
1399, 51 L.Ed.2d 701 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . .1
United States v. Bruce, 394 F3d. 1215 (9th Cir. 2005)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . .2
United States v. Cruz, 554 F.3d 840, 843-44 (9th Cir. 2009).. . . . . . . . . .
. . . . . 2, 5
United States v. Heath, 509 F.2d 16, 19 (9th Cir.1974). . . . . . . . . . . . .
. . . . . . . . .1
Statutory Law
18 U.S.C. 1153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . .6
Other
Chapter 4, Sections 2 (A) and (F), Fish and Game Rules
Governing Hunting, Fishing and Trapping on the
Blackfeet Indian Reservation. . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .4
F.R.A.P. 32(a)(7)(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .8
http://blackfeetfishandwildlife.com/codeofregs.html . . . . . . . . . . . . . .
. . . . . . . . .4
Ninth Circuit Rule 32-1.. . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . .8
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iii
25 C.F.R. 5.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . .6
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1
REPLY
1. Oral argument is necessary.
The Government asserts that oral argument is unnecessary because the facts
and legal arguments are adequately presented in the briefs and record. Appellee
s
Brief, pg. 2.
Gordon Mann disagrees. On the contrary, oral argument is extremely
necessary in this case in large part because the Government has completely faile
d
to address the separate people with their own political institutions argume
nt
made by Mann. This argument is found in Morton v. Mancari, 417 U.S. 535, 553
n. 24, 94 S.Ct. 2474, 2484, 41 L.Ed.2d 290 (1974), United States v. Heath, 509
F.2d 16, 19 (9 Cir.1974), Fisher v. th District Court, 424 U.S. 382, 96 S.Ct. 94
3, 47
L.Ed.2d 106 (1976), United States v. Antelope, 430 U.S. 641, 646, 97 S.Ct. 1395,
1399, 51 L.Ed.2d 701(1977), and LaPier v. McCormick, 986 F.2d 303 (9th Cir.
1993). These cases stand for the proposition that the special relationship betw
een
the federal government and the tribe constitutes the basis for federal criminal
jurisdiction over Indians under the Major Crimes Act. The Government needs to
address this important legal issue at oral argument, since it did not do so in i
ts brief.
The Government also needs to address what affiliation Mann had with the
Blackfeet Tribe, and why LaPier does not apply to this case when Manns only
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2
affiliation with the Blackfeet Tribe is to engage in conduct that both non-
Blackfeet Tribal members and non-Indians have a right to engage in.
Oral argument is therefore necessary in this case.
2. Standard of review.
Relying on United States v. Cruz, 554 F.3d 840, 843-44 (9th Cir. 2009), the
Government contends that there is a deferential standard of review for ultimate
findings of fact made by the jury.
Mann replies that a deferential standard of review is inapplicable here
because Manns Indian status is a legal question, not a factual question. In oth
er
words, LaPier, not Bruce, is determinative as a matter of law since there is no
evidence that Mann is anything but an enrolled member of a non-federally
recognized tribe of Indians. The standard of review is therefore de novo.
3. Mann is not affiliated with the Blackfeet Tribe.
The Government summarily dismisses LaPier and argues the factors referred
to in United States v. Bruce, 394 F3d. 1215 (9th Cir. 2005). While it concedes t
hat
Mann is not a member of a federally recognized tribe, the Government argues that
LaPier does not apply because the evidence showed that Mann was also
affiliated with the Blackfeet Tribe. Appellees Brief, pg. 7. In-so-doing, the
Government sorely misconstrues the record. Contrary to the Governments
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contention, there is no evidence whatsoever that Mann had any affiliation with
the Blackfeet Indian Tribe.
First, he is clearly not a member of, enrolled in, or a descendent of an
enrolled member of the Blackfeet Indian Tribe. Trans., 74:22 to 78:15; 140:22 to
142:24.
Second, because he was not a member of a federally-recognized tribe or a
descendant thereof, he was expressly denied contract health services in the amou
nt
of $ 64,744.56 by the Blackfeet Service Unit Contract Health Services in
Browning, Montana. Trans., 114:3 to 126:5, Exhibits 2, 3, and 4; ER 7, 8, and 9.
There clearly has been no tribal or federal government recognition of Mann as an
Indian; otherwise, he would have been entitled to those contract health services
.
Whether he received emergency services does not win the day for the Government
either because non-Indians are also entitled to emergency services. Trans., 71:1
7
to 74:15. Whether it is free or paid for is immaterial since it is the receipt o
f
assistance reserved only to Indians that is material. Since non-Indians also rec
eive
emergency services, it is not reserved only to Indians.
Third, the fact that Mann resided on the reservation has no import because
both non-Indians and non-Blackfeet Tribal members can and do reside on the
Blackfeet Indian Reservation. The Court can take judicial notice of that fact.
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1 Available on-line at http://blackfeetfishandwildlife.com/codeofregs.html.
4
Fourth, Mann was expressly prohibited from hunting on the Blackfeet
Reservation unless he had a special permit issued to non-members. Chapter 4,
Section 2 (A) and (F), of the Fish and Game Rules Governing Hunting, Fishing
and Trapping on the Blackfeet Indian Reservation1 provides in pertinent part tha
t it
shall be unlawful for non-members of the Blackfeet Tribe to hunt, shoot, transpo
rt,
or possess, big game. However, spouses of enrolled members of the Blackfeet
Tribe may be eligible for special hunting permits, which they must apply for.
Limited special permits may also be issued for non-members for special big-game
hunts in designated areas.
Accordingly, Mann was only doing what both non-Indians and non-
Blackfeet tribal members have full right to do, and that does not create a triba
l
affiliation.
4. The Government ignores the fact that Mann may be an Indian in an
anthropological or ethnohistorical sense, but not an Indian for purposes
of federal criminal jurisdiction.
The Government essentially argues that jurisdiction is based on the fact that
Mann is an Indian in a cultural, anthropological, and enthnohistorical sense.
Appellees Brief, pp. 9 and 10 (holds himself out to be an Indian person, lives
and
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5
hunts on the Blackfeet Reservation, and participates there in Indian social, cul
tural,
and religious ceremonies, and has been invited by members of the Blackfeet Tribe
to attend Indian religious ceremonies such as sweats.) However, it does not
address the fact that under LaPier, while Mann may be an Indian in an
anthropological or ethnohistorical sense, he is not an Indian for purposes of fe
deral
criminal jurisdiction. Id., 986 F.2d at 306. The Government simply refuses to
address the reasoning of the LaPier case and the special relationship between t
he
federal government and the tribe as the basis for federal criminal jurisdiction
. It
merely argues that LaPier is not applicable because Mann was affiliated with t
he
Blackfeet Tribe. As argued above, there was no evidence whatsoever of Blackfeet
Tribal affiliation.
The case relied on by the Government, United States v. Cruz, 554 F.3d 840,
843-44 (9th Cir. 2009), actually supports Manns position. Cruz involved the
same district judge and the same issue as this case, and this Court reversed the
district judges denial of Cruzs motion for judgment of acquittal on a plain er
ror
standard of review. Like Gordon Mann in this case, Cruz was not an enrolled
member of the Blackfeet Tribe of Indians or any other tribe. Cruz had
descendant status in the Blackfeet Tribe as the son of an enrolled member (his
mother), which entitled him to use Indian Health Services, to receive some
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educational grants, and to fish and hunt on the reservation. Mann does not have
descendent status and was expressly denied $ 64,744.56 worth of benefits and
services because he was not entitled to them since he is a member of the Little
Shell Tribe. Both Cruz and Mann lived on the Blackfeet Reservation like many
non-Indians and non-tribal members. As a descendant, Cruz was subject to the
criminal jurisdiction of the tribal court and was at one time prosecuted in trib
al
court, whereas Mann was neither. Cruz had never voted in a Blackfeet tribal
election and did not have a Blackfeet tribal identification card. The same is tr
ue for
Mann. Like Cruz, Mann would not have been eligible for preferential treatment
under the Indian Preference Laws, as he is not a member of a recognized tribe an
d
has less than one-half or more Indian blood of tribes indigenous to the United
States. 25 C.F.R. 5.1.
CONCLUSION AND PRAYER
Because the evidence viewed in the light most favorable to the Government
does not demonstrate that Mann is an Indian or that he meets any of the Bruce
factors, no rational trier of fact could have found that the government proved t
he
statutory element of 1153 beyond a reasonable doubt. Accordingly, the District
Courts denial of the motion for judgment of acquittal was error. This Court sho
uld
reverse the decision below and instruct the District Court to grant the motion f
or
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7
judgment of acquittal.
DATED this 9th day of July, 2009.
RESPECTFULLY SUBMITTED:
By: /s/ Palmer Hoovestal
Palmer Hoovestal
Attorney for Appellant
GORDON RAY MANN
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CERTIFICATE OF COMPLIANCE
I certify pursuant to F.R.A.P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, that
the attached Appellants Reply Brief is proportionately spaced, has a type face
of
14 points or more, and contains 1,815 words, including the Table of Contents and
Table of Authorities.
DATED this 9 th day of July, 2009.
RESPECTFULLY SUBMITTED:
By: /s/ Palmer Hoovestal
Palmer Hoovestal
Attorney for Appellant
GORDON RAY MANN
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U.S. District Court
United States District Court District Of Montana (Great Falls)
CRIMINAL DOCKET FOR CASE #: 4:07-cr-00125-SEH-1

Case title: USA v. Maggi

Magistrate judge case number:

4:07-mj-00043-RKS

Date Filed: 11/07/2007

Date Terminated: 06/11/2008
Assigned to: Judge Sam E Haddon

Appeals court case number: 08-30223 9th Circuit

Defendant (1)

Shane Medore Maggi

TERMINATED: 06/11/2008
also known as
Shane Maggi
TERMINATED: 06/11/2008

represented by

Daniel Donovan
DANIEL DONOVAN PC
PO Box 2799
Great Falls, MT 59403
406-727-0500
Fax: 406-727-0560
Email: dan@danieldonovanlaw.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
James B. Obie
ATTORNEY AT LAW
1205 Butte Ave Suite 1
Helena, MT 59601
406-443-5043
Fax: 406-442-4642
Email: jim@obielaw.us
TERMINATED: 02/09/2009
ATTORNEY TO BE NOTICED
Designation: CJA Appointment
R. Hank Branom
FEDERAL DEFENDERS OF MONTANA - GREAT FALLS BRANCH
PO Box 3547
Great Falls, MT 59403-3547
406-727-5328
Fax: 406-727-4329
Email: hank_branom@fd.org
TERMINATED: 03/27/2008
Designation: Public Defender or Community Defender Appointment

Pending Counts

Disposition
ASSAULT WITH A DANGEROUS WEAPON; Title 18 USC 1153 and 113(a)(3)
(1)

87 MONTHS to run concurrent with Count II, 3 yrs spr rel, $100 special assessmen
t87 MONTHS to run concurrent with Count II, 3 yrs spr rel, $100 special assessme
nt
ASSAULT WITHIN A DANEROUS WEAPON; Title 18 USC 1153 and 113(a)(3)
(2)

87 MONTHS to run concurrent with Count I, $100 special assessment87 MONTHS to ru

n concurrent with Count I, $100 special assessment
USE OF A FIREARM DURING A CRIME OF VIOLENCE; Title 18 USC 924(c)(1)(A)(iii)
(3)

120 MONTHS to run consecutive with Counts I and II, $100 special assessment120 M
ONTHS to run consecutive with Counts I and II, $100 special assessment
USE OF A FIREARM DURING A CRIME OF VIOLENCE; Title 18 USC 924(c)(1)(A)(ii)
(4)
300 MONTHS to run consecutive with all other counts, $100 special assessment300
MONTHS to run consecutive with all other counts, $100 special assessment

Highest Offense Level (Opening)

Felony

Terminated Counts

Disposition
None

Highest Offense Level (Terminated)

None
Complaints

Disposition
Assault With A Dangerous Weapon (Counts I and II) Title 18 U.S.C. 113(a)(3) a
nd 1153 (Penalty: Ten years imprisonment, $250,000.00 fine, and three years supe
rvised release) Use A Firearm During A Crime Of Violence (Count III) Title 18 U.
S.C 924(c)(1)(A)(iii) (Penalty: Mandatory minimum ten years imprisonment and a
maximum term of life imprisonment, consecutive to any other sentence, and five
years supervised release) Use A Firearm During A Crime Of Violence (Count IV) Ti
tle 18: U.S.C. 924(c)(1)(A)(ii) (Penalty: Mandatory minimum seven years impriso
mment and a maximium term of life imprisonment, consecutive to any other sentenc
e, and five years supervised release)

Plaintiff

USA

represented by

E. Vincent Carroll
OFFICE OF THE U.S. ATTORNEY
119 1st Avenue North
Suite 300
Great Falls, MT 59403-3447
406-761-7715
Email: vincent.carroll@usdoj.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Designation: Retained
Top of Form
Date Filed

clear

Docket Text
10/05/2007

COMPLAINT as to Shane Maggi (1). (Attachments: # 1 Arrest Warrant Issued) (SLR)

[4:07-mj-00043-RKS] (Entered: 10/05/2007)
10/22/2007

Case unsealed as to Shane Maggi, Attorney update in case as to Shane Maggi. Atto
rney R. Hank Branom for Shane Maggi, Josh Van de Wetering for USA added. (app) [
4:07-mj-00043-RKS] (Entered: 10/22/2007)
10/22/2007

Arrest of Shane Maggi (app) [4:07-mj-00043-RKS] (Entered: 10/22/2007)

10/22/2007

Minute Entry for proceedings held before Judge Jeremiah C. Lynch : Initial Appea
rance as to Shane Maggi held on 10/22/2007, Arraignment as to Shane Maggi (1) Co
unt Complaint held on 10/22/2007; John Rhodes appeared w/ in custody defendant,
Hank Branom apptd for all future proceedings, AUSA Josh Van de Wetering appeared
for the govt, USPO Todd McLean present; Read charges, penalties, rights w/ defe
ndant understanding the same; Defendant request a preliminary and detention hear
ing and requests that this be held in Great Falls - written order to follow w/ t
he date and time of hearings; Defendant remanded to the custody of USM pending f
urther proceedings. (Court Reporter FTR Gold.) (app) [4:07-mj-00043-RKS] (Entere
d: 10/22/2007)
10/22/2007

4
Order Appointing Counsel as to Shane Maggi: Appointment of Attorney R. Hank Bran
om for Shane Maggi. Signed by Judge Jeremiah C. Lynch on 10/22/2007. (app) [4:07
-mj-00043-RKS] (Entered: 10/22/2007)
10/22/2007

Order Setting as to Shane Maggi, ORDER OF DETENTION as to Shane Maggi Detention

Hearing set for 10/25/2007 10:00 AM in Great Falls, MT before Magistrate Keith S
trong. Preliminary Examination set for 10/25/2007 10:00 AM in Great Falls, MT be
fore Magistrate Keith Strong.. Signed by Judge Jeremiah C. Lynch on 10/22/2007.
(txb) [4:07-mj-00043-RKS] (Entered: 10/22/2007)
10/25/2007

Minute Entry for Detention Hearing held 10/25/07 for deft Shane Maggibefore Judg
e Keith Strong : 11:02 w/AUSA Hosley, FD Branom, Deft pr in custody, USPO Hedges
. Deft waives detention. Crt orders deft remanded to custody of USM. Recess 11:0
2. (Court Reporter FTR Gold Recorded.) (tlo) [4:07-mj-00043-RKS] (Entered: 10/26
/2007)
10/25/2007

Terminate Deadlines and Hearings as to Shane Maggi: Preliminary hearing termed (

tlo) [4:07-mj-00043-RKS] (Entered: 10/26/2007)
11/07/2007

INDICTMENT as to Shane Medore Maggi (1) counts 1, 2, 3,4. (tlo) Modified on 11/1
5/2007 to reflect Count 4 added (TLO, ). (Entered: 11/13/2007)
11/07/2007

Counts added: Shane Medore Maggi (1) count 4 (tlo) (Entered: 11/15/2007)
11/07/2007

Counts added: Shane Medore Maggi (1) count 4 (tlo) (Entered: 11/15/2007)
11/13/2007

Set/Reset Hearings as to Shane Medore Maggi: Arraignment set for 11/15/2007 10:0
0 AM in Great Falls, MT before Magistrate Keith Strong. (tlo) (Entered: 11/13/20
07)
11/15/2007

Case unsealed as to Shane Medore Maggi (tlo) (Entered: 11/15/2007)

11/15/2007

Minute Entry for Arraignment held 11/15/07 for deft Shane Medore Maggi before Ju
dge Keith Strong : 9:59 w/AUSA Hosley, FD Branom, Deft pr in custody, USPO Hedge
s & Heffernan. Deft states full name. Crt advises deft of rights, charges and ma
x penalties. Deft has read and understands charges in Indictment, waives reading
of Indictment and pleads Not guilty to Counts 1-4. Telephone PTC set for 11/20/
07 at 4:30 pm w/Judge Haddon. AUSA requests detention. Deft remanded to custody
of USM. Recess 10:05. (Court Reporter FTR Gold Recorded.) (tlo) (Entered: 11/15/
2007)
11/15/2007

10

ORDER as to Shane Medore Maggi; Telephone Pretrial Conference set for 11/20/2007
04:30 PM before Judge Sam E. Haddon. Signed by Judge Keith Strong on 11/15/2007
. (tlo) (Entered: 11/15/2007)
11/16/2007

11

NOTICE of Receipt of Discovery by Shane Medore Maggi and Response to Request for
Reciprocal Discovery (Branom, R.) (Entered: 11/16/2007)
11/16/2007

12

Notice of Discovery Request by Shane Medore Maggi (Branom, R.) (Entered: 11/16/2
007)
11/21/2007

13

ORDER as to Shane Medore Maggi; PPT held 11/20/07; JURY TRIAL 1/8/08 at 8:45 AM
before Judge Sam E. Haddon; dscvy ddl: 11/23/07; mtns ddl: 11/30/07; resp ddl: 1
2/7/07; plea agmnt/offer of prf ddl: 12/26/07; jy instr/trl brf ddl: 12/28/07. S
igned by Judge Sam E. Haddon on 11/21/2007. (lav) (Entered: 11/21/2007)
12/03/2007

14

Arrest Warrant Returned Executed on 11/15/07 in case as to Shane Medore Maggi. (

TLO, ) (Entered: 12/04/2007)
12/14/2007

15

NOTICE of Receipt of Discovery by Shane Medore Maggi Additional Discovery (Brano

m, R.) (Entered: 12/14/2007)
12/27/2007

16

TRIAL BRIEF by USA as to Shane Medore Maggi (Carroll, E.) (Entered: 12/27/2007)
12/27/2007

17

Proposed Jury Instructions by USA as to Shane Medore Maggi (Attachments: # 1 Cle

an Instructions# 2 Verdict)(Carroll, E.) (Entered: 12/27/2007)
12/27/2007

18

NOTICE of Receipt of Discovery by Shane Medore Maggi Additional Discovery (Brano

m, R.) (Entered: 12/27/2007)
12/28/2007

19

Proposed Voir Dire by Shane Medore Maggi (Branom, R.) (Entered: 12/28/2007)
01/03/2008

20
NOTICE of Receipt of Discovery by Shane Medore Maggi Additional Discovery (Brano
m, R.) (Entered: 01/03/2008)
01/07/2008

21

AMENDED DOCUMENT by USA. Amendment to 17 Proposed Jury Instructions (Attachments

: # 1 Clean Instructions)(Carroll, E.) (Entered: 01/07/2008)
01/08/2008

22

Minute Entry for JURY SELECTION AND JURY TRIAL for dft SHANE MEDORE MAGGI held 1
/8/08 before Judge Sam E. Haddon 8:45 am: AUSA/Vincent Carroll, dft cnsl/Hank Br
anom, dft (in custody), present. Cnsl ready to proceed with trial. Jury panel or
dered 8:50 am w/47 propective jurors prst; welcome. Panel sworn oath by clerk; 3
2 names drawn. Intros. Crt begins voir dire. Jurors 22,31,32 excused and re-draw
n. Indictment and witness list read. Recess at 10:25 am. 10:49 am w/cnsl prst; p
anel ordered; crt w/brf voir dire. Juror 26 excused and re-drawn. 11:10 am USA v
oir dire begins; 11:15 am DFT voir dire begins; jry passed. AZ chal begins. 11:2
5 am clk calls names of 13 jury members; crt thanks, excuses remainder of panel.
11:30 am jury re-seated and sworn oath to try case by clk. Crt reviews outline
of sch of trial. Prelim instr read, instr regarding note taking. Rule 615 involk
ed by govt. USA representative Agent Mike Wineman. 11:50 am USA Opening Statemen
t; 11:55 am DFT Opening Statement. 11:58 jury excused for recess; admonishment.
Crt conts w/o jury, discusses time line w/cnsl. 1:15 pm crt conts w/cnsl present
. AUSA moves to admit EXHIBITS 1 and 2, no obj, Exhibits ADMITTED. Jury ordered.
AUSA calls WITNESSES MISTY HALL, KENNETH SMITH, MELODY EVANS, KELLY HOYT, KIMBE
RLY HOYT, MICHAEL WINEMAN, S/T, ATN, EXHIBITS 3-22 ADMITTED w/o obj, cross by df
t, DFT EXHIBIT 501 ADMITTED w/o obj. 3:20 PM USA RESTS. Jry excused, crt conts.
Dft motions for judgment of acquittal. USA responds. Crt states findings and den
ies motion. Crt reads note received from jury asking if monitor can be moved fro
m defense table. Dft has no obj. Monitors are moved from table. Crt discusses ti
meline and closing w/cnsl. Dft has no case to put on. Recess to get instructions
to cnsl. 4:00 Crt conts w/cnsl present. AUSA has no objs to instructions, dft h
as objs to definition of Indian person; Crt will make change. 4:06 jury ordered.
AUSA brings to the courts attention that the verdict form has a typo, crt will
make change before it is submitted. 4:10 Jry present. Crt addresses the jurors q
uestion regarding moving the monitor. Final jury instr read. 4:30 closing by USA
; 4:37 closing by dft; 4:45 closing by USA. Crt reads verdict form and addresses
alternative juror. Bailiff sworn. 4:55 jry leaves to begin deliberations on the
ir verdict. Cnsl has no obj to smoke brk if reqstd by jry, recess. 6:25 pm crt c
onts w/cnsl present to discuss 3 jury notes. Crt reads notes. Cnsl responds. 6:3
0 pm jry ordered. Jry present. Crt reviews notes with jury and gives response to
questions. Jry excused, recess 6:40pm. 7:00 pm crt conts w/o jry to discuss jur
y note that requested a phone call be made on their behalf to let family know th
ey will be late. Crt questions if cnsl has any obj that if similar requests are
received that the crt will make the decision without calling cnsl back. Cnsl has
no objs. Crt is going to order portions of the transcripts to be sealed that di
scuss names and personal information. Crt will authorize call to be made. Recess
7:05 pm. Crt conts 9:00 am w/cnsl present; crt reads note that jury has reached
a verdict. Jry prst, bailiff returns verdict to crt, clk publishes verdict; GUI
LTY; on all four counts; all reply unanimous. Crt thanks and excuses panel. Cnsl
remain; crt sets sentencing for May 1, 2008 at 9:30 am. Dft remanded to custody
of USM. Crt addresses dft. Recess 9:20 am. (Court Reporter Tina Brilz.) (MMS, )
(Entered: 01/09/2008)
01/08/2008

23

Jury List w/AZ chal (Document Sealed) as to Shane Medore Maggi (MMS, ) (Entered:
01/09/2008)
01/08/2008

24

JURY VERDICT as to Shane Medore Maggi (1) Guilty on Counts 1,2,3,4. (MMS, ) (Ent
ered: 01/09/2008)
01/08/2008

25

TRIAL EXHIBIT LIST by USA as to Shane Medore Maggi (MMS, ) (Entered: 01/09/2008)
01/08/2008

26

TRIAL WITNESS LIST by USA as to Shane Medore Maggi (MMS, ) (Entered: 01/09/2008)
01/08/2008

27
TRIAL EXHIBIT LIST by Shane Medore Maggi (MMS, ) (Entered: 01/09/2008)
01/08/2008

28

JURY NOTES (Sealed Document)as to Shane Medore Maggi. (MMS, ) (Entered: 01/09/20
08)
01/08/2008

29

JURY NOTE (Sealed Document); verdict reached at 8:48 pm as to Shane Medore Maggi
(MMS, ) (Entered: 01/09/2008)
01/08/2008

30

Final Given Jury Instructions as to Shane Medore Maggi (MMS, ) (Entered: 01/09/2
008)
01/09/2008

31

ORDER to provide meals for jurors for 1/8/08 jury trial as to Shane Medore Maggi
. Signed by Judge Sam E Haddon on 1/9/2008. (MMS, ) (Entered: 01/09/2008)
01/14/2008

32

ORDER as to Shane Medore Maggi; dft having been adjudged guilty of chgs in the i
ndict following a jury trial; Sentencing set for 5/1/2008 09:30 AM before Judge
Sam E Haddon. Signed by Judge Sam E Haddon on 1/14/2008. (LAV, ) (Entered: 01/14
/2008)
02/08/2008

33

TRANSCRIPT DESIGNATION ORDER FORM by USA as to Shane Medore Maggi for proceeding
s held on 1/8/08 before Judge Haddon. (Carroll, E.) (Entered: 02/08/2008)
02/28/2008

34

Remark: Received pro se motion from defendant Shane Maggi for change of attorney
of record. (Letter forwarded to cnsl and SEH chambers). (MMS, ) (Entered: 02/28
/2008)
03/11/2008

35

(SEALED) TRANSCRIPT of Proceedings as to Shane Medore Maggi held on JANUARY 8, 2

008 before Judge Sam Haddon. Court Reporter: Tina Brilz. (LAV, ) (Entered: 03/11
/2008)
03/11/2008

36

(SEALED) TRANSCRIPT of Proceedings as to Shane Medore Maggi held on JANUARY 8, 2

008 before Judge Sam Haddon. Court Reporter: Tina Brilz. (LAV, ) (Entered: 03/11
/2008)
03/11/2008

37
TRANSCRIPT of Proceedings as to Shane Medore Maggi held on JANUARY 8, 2008 befor
e Judge Sam Haddon. Court Reporter: Tina Brilz. (LAV, ) (Entered: 03/11/2008)
03/12/2008

38

Remark: Received pro se motions from defendant, forwarded to counsel and SEH cha
mbers. (MMS, ) (Entered: 03/12/2008)
03/27/2008

39

MOTION to Withdraw as Attorney and Motion for Substitution of CJA Panel Counsel
by R. Henry Branom Jr.. by Shane Medore Maggi. (Attachments: # 1 Text of Propose
d Order Order Granting Withdawal and Appointing Substitute Counsel)(Branom, R.)
(Entered: 03/27/2008)
03/27/2008

40

Order Striking Appearance of the Federal Defender and Appointing CJA Counsel as
to Shane Medore Maggi: ORDERED: FD and Henry Branom are removed as cnsl of recor
d; FURTHER ORDERED substitute cnsl be apptd; Appointment of Attorney James B. Ob
ie is ordered for Shane Medore Maggi. (Motions terminated as to Shane Medore Mag
gi: 39 MOTION to Withdraw as Attorney and Motion for Substitution of CJA Panel C
ounsel by R. Henry Branom Jr.. filed by Shane Medore Maggi). Signed by Judge Sam
E Haddon on 3/27/2008. (Clks note: CJA 20 will be forthcoming for cnsl Obie) (L
AV, ) (Entered: 03/27/2008)
04/02/2008

41

CJA 20 as to Shane Medore Maggi: Appointment of Attorney James B. Obie for Shane
Medore Maggi.. Signed by Judge Sam E Haddon on 3/27/2008. (orig mailed to cnsl
Obie) (LAV, ) (Entered: 04/02/2008)
04/06/2008
42

MOTION for Extension of Time to File PSR Objections by Shane Medore Maggi. (Atta
chments: # 1 Text of Proposed Order)(Obie, James) (Entered: 04/06/2008)
04/09/2008

43

Order as to Shane Medore Maggi; defendant s Motion for Extension of Time to File
PSR Objections is GRANTED. The Sentencing set for May 1, 2008 and the remaining
deadlines in the Court s Order of January 14, 2008 are VACATED. Sentencing is R
ESET for 5/19/2008 01:30 PM in Great Falls, MT before Judge Sam E Haddon. Signed
by Judge Sam E Haddon on 4/9/2008. (MMS, ) (Entered: 04/09/2008)
04/28/2008

44

OBJECTION TO PRESENTENCE INVESTIGATION REPORT by USA as to Shane Medore Maggi (S

entencing Memo) (Carroll, E.) (Entered: 04/28/2008)
05/01/2008

45

SENTENCING MEMORANDUM by Shane Medore Maggi (Obie, James) (Entered: 05/01/2008)

05/18/2008

46

Supplement re 45 Sentencing Memorandum (Obie, James) (Entered: 05/18/2008)

05/19/2008

47
Minute Entry; SENTENCING (not held) for dft SHANE MEDORE MAGGI 5/19/08 w/Vincent
Carroll, CJA Jim Obie, dft in custody 1:30 for proceedings held before Judge Sa
m E Haddon: Obj to PSR pending, by govt & dft. Crt hears dft s obj first; oral a
rgt stated; all denied. USA resp as to obj heard. Crt states it will accept F/F
of PSR as it does not pertain to obj as filed/noted. Crt notes trial record cont
rols. Crt notes counts 1-4, as they are charged, and mandatory mimimum & consecu
tive sentence in relation to statute as it is to be applied. Crt states cnt 4 re
quires mandatory minimum of 25 years consecutive, and indict states mandatory ma
x is 7 years. Crt orders briefs filed by pties addressing the discrepency of the
se two issues; briefs are due 5/27/09 w/optional reply due by 5/30/08 (which cns
l Obie requests). Upon receipt of briefs, crt will reset sentencing for sometime
in early June. Recess 2:03 pm. C/D Leslie McNeil. (Court Reporter Tina Brilz.)
(LAV, ) (Entered: 05/19/2008)
05/19/2008

Set response and reply ddl for sentencing briefs (see minute entry 47 ) in case
as to Shane Medore Maggi. Responses due by 5/26/2008. Replies due by 5/30/2008.
Sentencing to be reset upon receipt of brfs. (LAV, ) (Entered: 05/19/2008)
05/19/2008

48

ORDER as to Shane Medore Maggi, the Court held a sentencing hearing in this matt
er on May 19, 2008 at 1:30 pm. Upon the record made in open court, The sentencin
g hearing is CONTINUED. On or before May 26, 2008, each party shall file a brief
directed to Count IV mandatory minimum sentence issues. Optional response brief
s are due on or before May 30, 2008. Sentencing in this matter will be RESET by
further order of the Court. Signed by Judge Sam E Haddon on 5/19/2008. (MMS, ) (
Entered: 05/19/2008)
05/23/2008

49

BRIEF/RESPONSE TO ORDER by USA as to Shane Medore Maggi (Carroll, E.) (Entered:

05/23/2008)
05/26/2008
50

SENTENCING MEMORANDUM by Shane Medore Maggi (Attachments: # 1 Exhibit) (Obie, Ja

mes) (Entered: 05/26/2008)
05/30/2008

51

RESPONSE as to Shane Medore Maggi (Sentencing Issue) re 50 (Carroll, E.) (Entere

d: 05/30/2008)
05/30/2008

52

RESPONSE as to Shane Medore Maggi Sentencing Issue re 49 (Obie, James) (Entered:

05/30/2008)
06/03/2008

53

Order Setting Sentencing Hearing for 6/9/2008 at 3:30 PM in Great Falls, MT befo
re Judge Sam E Haddon, as to Shane Medore Maggi. Signed by Judge Sam E Haddon on
6/2/2008. (SLR, ) (Entered: 06/03/2008)
06/04/2008

54

Supplement re 45 Sentencing Memorandum (Obie, James) (Entered: 06/04/2008)

06/09/2008

55
Minute Entry for SENTENCING for dft SHANE MAGGI held 6/9/08 before Judge Sam E H
addon in GF 3:30 pm: AUSA/Vincent Carroll, dft cnsl/Jim Obie, dft (in custody),
present. Crt notes this sentencing has been continued from 5/19/08 for the court
to consider additional briefing. Crt has reviewed briefing and counsel has noth
ing else to add. Crt finds that mandatory 25 year sent for use of a firearm. Crt
will group Cnts 1 and 2 with a net offense 21, criminal history 5, guideline ra
nge 70-87 months. Count 3 has a mandatory 10 year consecutive, Count 4 has a man
datory 25 year consecutive. Guideline range for all Counts are 490-507 months. A
llocution; USA responds. Obie calls Kristen Cobell, S/T, ATN. Crt sentences dft
Shane Maggi to BOP 507 MONTHS; Count I 87 MONTHS, Count II 87 MONTHS with Count
I and II to run concurrent, Count III 120 MONTHS to run consecutive with counts
I and II; Count IV 300 MONTHS to run consecutive to other counts for a total of
507 months. 3 years spr rel. $100 special assessment of each count for a total o
f $400. No objs frm cnsl. Judgment as stated is entered. Right to appeal given.
Dft remanded to custody of USM. Recess 4:00 pm. (Court Reporter Tina Brilz.) (MM
S, ) (Entered: 06/09/2008)
06/11/2008

56

JUDGMENT as to Shane Medore Maggi (1), Count(s) 1, 87 MONTHS to run concurrent w

ith Count II, 3 yrs spr rel, $100 special assessment; Count(s) 2, 87 MONTHS to r
un concurrent with Count I, $100 special assessment; Count(s) 3, 120 MONTHS to r
un consecutive with Counts I and II, $100 special assessment; Count(s) 4, 300 MO
NTHS to run consecutive with all other counts, $100 special assessment. Signed b
y Judge Sam E Haddon on 6/10/2008. (Copy w/stmt of reasons given to USA, Obie) (
MMS, ) Modified on 6/11/2008 to correct date Judge signed (MMS, ). (Entered: 06/
11/2008)
06/15/2008

57

NOTICE OF APPEAL by Shane Medore Maggi re 56 Judgment,. (Obie, James) Modified o

n 6/16/2008 to remove filing fee (MMS, ). (Entered: 06/15/2008)
06/17/2008

58

Appeal Notification Form as to Shane Medore Maggi to US Court of Appeals re 57 N

otice of Appeal - Final Judgment (MMS, ) (Entered: 06/17/2008)
06/17/2008
59

Time Scheduling Order as to Shane Medore Maggi re 57 Notice of Appeal - Final Ju

dgment : Transcript Ordered From Court Reporter 7/8/08; Court Reporter s transcr
ipt filed 8/7/08; Appellant s Opening Brief 9/16/08; Appellee s Brief 10/16/08;
Appellant s Reply Brief 10/30/08. (MMS, ) (Entered: 06/17/2008)
06/17/2008

Remark: Appeal Packet Mailed to USCA. (MMS, ) (Entered: 06/17/2008)

06/24/2008

60

TRANSCRIPT DESIGNATION ORDER FORM by Shane Medore Maggi for proceedings held on
06/09/08, 01/08/08 before Judge Haddon, Transcript due by 7/8/2008. (Obie, James
) (Entered: 06/24/2008)
06/25/2008

61

TRANSCRIPT DESIGNATION ORDER FORM by USA as to Shane Medore Maggi for proceeding
s held on 01/08/2008; 01/09/2008; 06/09/2008 before Judge Haddon, re 59 Time Sch
eduling Order, Transcript due by 7/25/2008. (Carroll, E.) (Entered: 06/25/2008)
06/26/2008

62

USCA Case Number as to Shane Medore Maggi 08-30223 for 57 Notice of Appeal - Fin
al Judgment filed by Shane Medore Maggi. (SLR, ) (Entered: 06/26/2008)
07/02/2008

63
CJA 20 as to Shane Medore Maggi: Authorization to Pay James Obie. Amount: $ 3161
.80, Voucher # 080702000071. Signed by Judge Sam E Haddon on 6/30/08; (orig to f
inance/Msla for final approval) (LAM, ) (Entered: 07/02/2008)
07/15/2008

64

TRANSCRIPT OF SENTENCING PROCEEDINGS filed as to Shane Medore Maggi for dates of

June 9, 2008 before Judge Sam E Haddon, re 57 Notice of Appeal - Final Judgment
Court Reporter, TINA C. BRILZ, Telephone number 406-454-7805 or tina_brilz@mtd.
uscourts.gov. Tape Number: TRANSCRIPT OF SENTENCING PROCEEDINGS. Transcript may
be viewed at the court public terminal or purchased through the Court Reporter b
efore the deadline for Release of Transcript Restriction. After that date it may
be obtained through PACER, the Clerks Office, or from the court reporter. NOTIC
E: A NOTICE OF INTENT TO REQUEST REDACTION MUST BE FILED WITHIN 10 DAYS OF THIS
FILING Redaction Request due 8/5/2008. Redacted Transcript Deadline set for 8/15
/2008. Release of Transcript Restriction set for 10/14/2008. (TCB, ) (Entered: 0
7/15/2008)
08/15/2008

Terminate Redaction and Release Request ddl as to Shane Medore Maggi: (MMS, ) (E
ntered: 08/15/2008)
09/15/2008

66

ORDER of USCA as to Shane Medore Maggi re 57 Notice of Appeal - Final Judgment;

mtn for extension of time by appellant to file open brf is granted. Open brf due
11/14/08; answg brf due 12/15/08; opt reply brf due w/i 14 days after svc of an
swg brf (LAM, ) (Entered: 09/15/2008)
10/23/2008
Terminate release of transcript deadline as to Shane Medore Maggi: (MMS, ) (Ente
red: 10/23/2008)
02/09/2009

67

Order Appointing Counsel as to Shane Medore Maggi: Appointment of Attorney Danie

l Donovan for Shane Medore Maggi. Signed by Magistrate Keith Strong on 2/9/2009.
(SLL, ) Modified on 2/9/2009 to reflect copies given to USCA, Maggi, Leslie (MM
S, ). (Entered: 02/09/2009)
02/10/2009

68

CJA 20 as to Shane Medore Maggi: Appointment of Attorney Daniel Donovan for Shan
e Medore Maggi. Signed by Judge Keith Strong 2/9/09. (Mailed orig to cnsl) (LAM,
) (Entered: 02/10/2009)
08/05/2009

69

Certified and Transmitted Record on Appeal as to Shane Medore Maggi to US Court

of Appeals re 57 Notice of Appeal - Final Judgment, consisting of one (1) brown
expando file folder containing one(1) (#37) Transcript of Jury Trial Proceedings
, two(2) (#35&36) Sealed Transcripts contained in 1 manilla envelope and one (1)
manilla envelope containing Gov t exhibits 1-20 (21 & 22 not included). Remaind
er of record only available electronically. (ACC, ) (Entered: 08/05/2009)
08/21/2009

70

Acknowledgment of Record on Appeal re 57 Notice of Appeal - Final Judgment (ACC,

) (Entered: 08/21/2009)
03/16/2010
71

OPINION (For Publication) of USCA (certified copy) as to Shane Medore Maggi (and
Gordan Ray Mann, Jr CR-08-68-GF-SEH) re 57 Notice of Appeal - Final Judgment "T
he denial of Maggi s motion for acquittal is REVERSED, and his conviction under
18:1153 should be vacated" (Attachments: # 1 Supplement Post Jgmnt Form) (LAM, )
(Entered: 03/16/2010)
03/19/2010

72

MOTION for Release from Custody by Shane Medore Maggi. (Attachments: # 1 Text of
Proposed Order) (Donovan, Daniel) (Entered: 03/19/2010)
03/19/2010

73

NOTICE of Filing Exhibits by Shane Medore Maggi re 72 MOTION for Release from Cu
stody (Attachments: # 1 Exhibit) (Donovan, Daniel) (Entered: 03/19/2010)
03/22/2010

74

ORDER of USCA (certified copy) as to Shane Medore Maggi. Defendant s Motion for
Release, filed March 18, 2010, is denied without prejudice. The court advises th
at any motions concerning release from custody should be filed in the district c
ourt. (MMS, ) (Entered: 03/22/2010)

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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff/Appellee, Dist.Ct.No. CR 08-68-GF-SEH
v. Ct.Apps.No. 09-30052
GORDON RAY MANN, JR.,
Defendant/Appellant.
APPELLANTS REPLY BRIEF
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MONTANA, GREAT FALLS DIVISION, UNITED STATES
DISTRICT JUDGE SAM E. HADDON, PRESIDING
Palmer A. Hoovestal, Esq.
Hoovestal Law Firm, PLLC
40 W. 14th Street, Suite 4C
P.O. Box 747
Helena, MT 59624-0747
Tel: (406) 457-0970
Fax: (406) 457-0475
palmer@hoovestal-law.com
Attorney for Appellant
GORDON RAY MANN, JR. Submitted: July 9, 2009
Case: 09-30052 07/09/2009 Page: 1 of 13 ID: 6986846 DktEntry: 14
i
TABLE OF CONTENTS
Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .ii
Case Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . .ii
Statutory Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . .ii
Other. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . .ii
Reply. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . .1
1. Oral argument is necessary.. . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . .1
2. Standard of review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .2
3. Mann is not affiliated with the Blackfeet Tribe... . . . . . . . . . . . .
. .2
4. The Government ignores the fact that Mann may be an Indian in an
anthropological or ethnohistorical sense, but not an Indian for
purposes of federal criminal jurisdiction... . . . . . . . . . . . . . . . . . .
. . .4
Conclusion and Prayer.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . .6
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . .8
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .9
Case: 09-30052 07/09/2009 Page: 2 of 13 ID: 6986846 DktEntry: 14
ii
TABLE OF AUTHORITIES
Case Law
Fisher v. District Court, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976).. .
. .1
LaPier v. McCormick, 986 F.2d 303 (9th Cir. 1993). . . . . . . . . . . . . . . .
. . . . 1, 2, 5
Morton v. Mancari, 417 U.S. 535, 553 n. 24, 94 S.Ct. 2474, 2484, 41 L.Ed.2d
290... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .1
United States v. Antelope, 430 U.S. 641, 646, 97 S.Ct. 1395,
1399, 51 L.Ed.2d 701 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . .1
United States v. Bruce, 394 F3d. 1215 (9th Cir. 2005)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . .2
United States v. Cruz, 554 F.3d 840, 843-44 (9th Cir. 2009).. . . . . . . . . .
. . . . . 2, 5
United States v. Heath, 509 F.2d 16, 19 (9th Cir.1974). . . . . . . . . . . . .
. . . . . . . . .1
Statutory Law
18 U.S.C. 1153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . .6
Other
Chapter 4, Sections 2 (A) and (F), Fish and Game Rules
Governing Hunting, Fishing and Trapping on the
Blackfeet Indian Reservation. . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .4
F.R.A.P. 32(a)(7)(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .8
http://blackfeetfishandwildlife.com/codeofregs.html . . . . . . . . . . . . . .
. . . . . . . . .4
Ninth Circuit Rule 32-1.. . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . .8
Case: 09-30052 07/09/2009 Page: 3 of 13 ID: 6986846 DktEntry: 14
iii
25 C.F.R. 5.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . .6
Case: 09-30052 07/09/2009 Page: 4 of 13 ID: 6986846 DktEntry: 14
1
REPLY
1. Oral argument is necessary.
The Government asserts that oral argument is unnecessary because the facts
and legal arguments are adequately presented in the briefs and record. Appellee
s
Brief, pg. 2.
Gordon Mann disagrees. On the contrary, oral argument is extremely
necessary in this case in large part because the Government has completely faile
d
to address the separate people with their own political institutions argume
nt
made by Mann. This argument is found in Morton v. Mancari, 417 U.S. 535, 553
n. 24, 94 S.Ct. 2474, 2484, 41 L.Ed.2d 290 (1974), United States v. Heath, 509
F.2d 16, 19 (9 Cir.1974), Fisher v. th District Court, 424 U.S. 382, 96 S.Ct. 94
3, 47
L.Ed.2d 106 (1976), United States v. Antelope, 430 U.S. 641, 646, 97 S.Ct. 1395,
1399, 51 L.Ed.2d 701(1977), and LaPier v. McCormick, 986 F.2d 303 (9th Cir.
1993). These cases stand for the proposition that the special relationship betw
een
the federal government and the tribe constitutes the basis for federal criminal
jurisdiction over Indians under the Major Crimes Act. The Government needs to
address this important legal issue at oral argument, since it did not do so in i
ts brief.
The Government also needs to address what affiliation Mann had with the
Blackfeet Tribe, and why LaPier does not apply to this case when Manns only
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2
affiliation with the Blackfeet Tribe is to engage in conduct that both non-
Blackfeet Tribal members and non-Indians have a right to engage in.
Oral argument is therefore necessary in this case.
2. Standard of review.
Relying on United States v. Cruz, 554 F.3d 840, 843-44 (9th Cir. 2009), the
Government contends that there is a deferential standard of review for ultimate
findings of fact made by the jury.
Mann replies that a deferential standard of review is inapplicable here
because Manns Indian status is a legal question, not a factual question. In oth
er
words, LaPier, not Bruce, is determinative as a matter of law since there is no
evidence that Mann is anything but an enrolled member of a non-federally
recognized tribe of Indians. The standard of review is therefore de novo.
3. Mann is not affiliated with the Blackfeet Tribe.
The Government summarily dismisses LaPier and argues the factors referred
to in United States v. Bruce, 394 F3d. 1215 (9th Cir. 2005). While it concedes t
hat
Mann is not a member of a federally recognized tribe, the Government argues that
LaPier does not apply because the evidence showed that Mann was also
affiliated with the Blackfeet Tribe. Appellees Brief, pg. 7. In-so-doing, the
Government sorely misconstrues the record. Contrary to the Governments
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3
contention, there is no evidence whatsoever that Mann had any affiliation with
the Blackfeet Indian Tribe.
First, he is clearly not a member of, enrolled in, or a descendent of an
enrolled member of the Blackfeet Indian Tribe. Trans., 74:22 to 78:15; 140:22 to
142:24.
Second, because he was not a member of a federally-recognized tribe or a
descendant thereof, he was expressly denied contract health services in the amou
nt
of $ 64,744.56 by the Blackfeet Service Unit Contract Health Services in
Browning, Montana. Trans., 114:3 to 126:5, Exhibits 2, 3, and 4; ER 7, 8, and 9.
There clearly has been no tribal or federal government recognition of Mann as an
Indian; otherwise, he would have been entitled to those contract health services
.
Whether he received emergency services does not win the day for the Government
either because non-Indians are also entitled to emergency services. Trans., 71:1
7
to 74:15. Whether it is free or paid for is immaterial since it is the receipt o
f
assistance reserved only to Indians that is material. Since non-Indians also rec
eive
emergency services, it is not reserved only to Indians.
Third, the fact that Mann resided on the reservation has no import because
both non-Indians and non-Blackfeet Tribal members can and do reside on the
Blackfeet Indian Reservation. The Court can take judicial notice of that fact.
Case: 09-30052 07/09/2009 Page: 7 of 13 ID: 6986846 DktEntry: 14
1 Available on-line at http://blackfeetfishandwildlife.com/codeofregs.html.
4
Fourth, Mann was expressly prohibited from hunting on the Blackfeet
Reservation unless he had a special permit issued to non-members. Chapter 4,
Section 2 (A) and (F), of the Fish and Game Rules Governing Hunting, Fishing
and Trapping on the Blackfeet Indian Reservation1 provides in pertinent part tha
t it
shall be unlawful for non-members of the Blackfeet Tribe to hunt, shoot, transpo
rt,
or possess, big game. However, spouses of enrolled members of the Blackfeet
Tribe may be eligible for special hunting permits, which they must apply for.
Limited special permits may also be issued for non-members for special big-game
hunts in designated areas.
Accordingly, Mann was only doing what both non-Indians and non-
Blackfeet tribal members have full right to do, and that does not create a triba
l
affiliation.
4. The Government ignores the fact that Mann may be an Indian in an
anthropological or ethnohistorical sense, but not an Indian for purposes
of federal criminal jurisdiction.
The Government essentially argues that jurisdiction is based on the fact that
Mann is an Indian in a cultural, anthropological, and enthnohistorical sense.
Appellees Brief, pp. 9 and 10 (holds himself out to be an Indian person, lives
and
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5
hunts on the Blackfeet Reservation, and participates there in Indian social, cul
tural,
and religious ceremonies, and has been invited by members of the Blackfeet Tribe
to attend Indian religious ceremonies such as sweats.) However, it does not
address the fact that under LaPier, while Mann may be an Indian in an
anthropological or ethnohistorical sense, he is not an Indian for purposes of fe
deral
criminal jurisdiction. Id., 986 F.2d at 306. The Government simply refuses to
address the reasoning of the LaPier case and the special relationship between t
he
federal government and the tribe as the basis for federal criminal jurisdiction
. It
merely argues that LaPier is not applicable because Mann was affiliated with t
he
Blackfeet Tribe. As argued above, there was no evidence whatsoever of Blackfeet
Tribal affiliation.
The case relied on by the Government, United States v. Cruz, 554 F.3d 840,
843-44 (9th Cir. 2009), actually supports Manns position. Cruz involved the
same district judge and the same issue as this case, and this Court reversed the
district judges denial of Cruzs motion for judgment of acquittal on a plain er
ror
standard of review. Like Gordon Mann in this case, Cruz was not an enrolled
member of the Blackfeet Tribe of Indians or any other tribe. Cruz had
descendant status in the Blackfeet Tribe as the son of an enrolled member (his
mother), which entitled him to use Indian Health Services, to receive some
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6
educational grants, and to fish and hunt on the reservation. Mann does not have
descendent status and was expressly denied $ 64,744.56 worth of benefits and
services because he was not entitled to them since he is a member of the Little
Shell Tribe. Both Cruz and Mann lived on the Blackfeet Reservation like many
non-Indians and non-tribal members. As a descendant, Cruz was subject to the
criminal jurisdiction of the tribal court and was at one time prosecuted in trib
al
court, whereas Mann was neither. Cruz had never voted in a Blackfeet tribal
election and did not have a Blackfeet tribal identification card. The same is tr
ue for
Mann. Like Cruz, Mann would not have been eligible for preferential treatment
under the Indian Preference Laws, as he is not a member of a recognized tribe an
d
has less than one-half or more Indian blood of tribes indigenous to the United
States. 25 C.F.R. 5.1.
CONCLUSION AND PRAYER
Because the evidence viewed in the light most favorable to the Government
does not demonstrate that Mann is an Indian or that he meets any of the Bruce
factors, no rational trier of fact could have found that the government proved t
he
statutory element of 1153 beyond a reasonable doubt. Accordingly, the District
Courts denial of the motion for judgment of acquittal was error. This Court sho
uld
reverse the decision below and instruct the District Court to grant the motion f
or
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7
judgment of acquittal.
DATED this 9th day of July, 2009.
RESPECTFULLY SUBMITTED:
By: /s/ Palmer Hoovestal
Palmer Hoovestal
Attorney for Appellant
GORDON RAY MANN
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8
CERTIFICATE OF COMPLIANCE
I certify pursuant to F.R.A.P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, that
the attached Appellants Reply Brief is proportionately spaced, has a type face
of
14 points or more, and contains 1,815 words, including the Table of Contents and
Table of Authorities.
DATED this 9 th day of July, 2009.
RESPECTFULLY SUBMITTED:
By: /s/ Palmer Hoovestal
Palmer Hoovestal
Attorney for Appellant
GORDON RAY MANN
Case: 09-30052 07/09/2009 Page: 12 of 13 ID: 6986846 DktEntry: 14
9
CERTIFICATE OF SERVICE BY CM/ECF
I hereby certify that on the 9th day of July, 2009, I duly served a true and
correct copy of the foregoing APPELLANTS REPLY BRIEF on the counsel
listed below by CM/ECF to:
E. VINCENT CARROLL
Assistant U.S. Attorney
U.S. Attorneys Office
P.O. Box 3447
Great Falls, MT 59403
By: /s/ Palmer Hoovestal
Palmer A. Hoovestal
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