[00:00:00] Speaker 04: United States versus Hobson, 23-5056. [00:00:05] Speaker 05: Good morning, Your Honors. [00:00:08] Speaker 05: I'm Neil Van Dalsum, here to represent the appellant, Jason Hobson. [00:00:15] Speaker 05: I want to focus my presentation this morning on the jurisdictional question that is presented. [00:00:24] Speaker 05: You may be looking at this, and the question on your mind may be, well, why doesn't the Keeble case resolve this appeal? [00:00:36] Speaker 05: I would ask you to humor me for just a second, because I would suggest there is a better question. [00:00:43] Speaker 05: And the better question is, why doesn't McGirt versus Oklahoma resolve this appeal? [00:00:49] Speaker 05: In McGirt versus Oklahoma, the court reiterated [00:00:53] Speaker 05: that there has to be a clear expression of congressional intent for there to be federal jurisdiction to prosecute an Indian person for a crime committed on Indian land. [00:01:11] Speaker 05: When we get to Keeble and when we get to the cases that cite Keeble, all that we are doing is mental gymnastics [00:01:22] Speaker 05: to try to avoid the underlying problem that there is nothing in the Major Crimes Act nor in Section 3242 that indicate a clear expression of congressional intent to be able to prosecute an Indian under the Major Crimes Act for simple assault. [00:01:41] Speaker 04: What statute provides subject matter jurisdiction in this case? [00:01:51] Speaker 05: Subject matter jurisdiction, in this case, arises from the general statute for criminal case subject matter jurisdiction. [00:01:59] Speaker 05: 32-31, correct? [00:02:02] Speaker 05: Correct. [00:02:04] Speaker ?: OK. [00:02:05] Speaker 04: And that's a clear statement of jurisdiction, subject matter jurisdiction. [00:02:09] Speaker 04: Correct. [00:02:11] Speaker 04: So those other statutes that you're talking about are not subject matter jurisdiction statutes, correct? [00:02:18] Speaker 05: In this particular instance, I don't know that I would go that far. [00:02:23] Speaker 05: And the reason is this statute is a division of power between the United States and tribal governments. [00:02:37] Speaker 05: And in that sense, I think we really are dealing here with a capital J-type jurisdictional question. [00:02:44] Speaker 03: But Council, I'm having trouble understanding the practical consequence of your argument. [00:02:49] Speaker 03: So if Keeble says what it says, whether there's tension there, it's not for us to decide. [00:02:58] Speaker 03: So if Keeble, we held in Joe, for example, that Keeble provides federal district court with jurisdiction. [00:03:12] Speaker 03: to instruct on a non-enumerated offense, right? [00:03:14] Speaker 03: So you don't even challenge that in this case. [00:03:19] Speaker 03: Correct. [00:03:20] Speaker 03: But then what is the consequence of that? [00:03:22] Speaker 03: It seems like it would be an empty promise to the jury if they are told that they can convict on a lesser, but in fact, they can't. [00:03:33] Speaker 05: Keeble creates a procedural device to accomplish the goal [00:03:39] Speaker 05: of giving an Indian defendant the same trial as a non-Indian defendant. [00:03:47] Speaker 05: And if you read Keeble, it's clear that that's what they are intending. [00:03:51] Speaker 05: Keeble says, we reached this ruling because we don't think that Congress intended it to be easier to convict an Indian than a non-Indian on the same facts. [00:04:02] Speaker 05: There are benefits to a defendant that are procedural in nature too. [00:04:07] Speaker 05: from getting a lesser included instruction. [00:04:11] Speaker 03: So then as a practical matter, when the procedural right is protected by giving the instruction and the jury, as here, convicts, you're saying at that point, what should the judge have done? [00:04:23] Speaker 04: Enter the judgment of acquittal. [00:04:25] Speaker 04: Well, how do you reconcile that with concerns expressed by the Supreme Court in Spaziano [00:04:33] Speaker 04: back about tricking the jury. [00:04:35] Speaker 04: I think that's the expression that was used. [00:04:39] Speaker 04: That is, why tell the jury that they have the option when it really isn't an option? [00:04:47] Speaker 05: Spaziano and Beck are dealing with a completely different context. [00:04:51] Speaker 03: Those are capital cases, aren't they? [00:04:52] Speaker 05: Those are capital cases from state courts. [00:04:57] Speaker 05: And the issue is, what does the 14th Amendment require a state to do? [00:05:03] Speaker 05: And all those cases are saying is the 14th Amendment does not require a state to give a lesser included instruction on an offense where no actual conviction is going to happen. [00:05:16] Speaker 05: By contrast, here, Hebel is not based on due process at all. [00:05:22] Speaker 05: It's based upon 3242. [00:05:24] Speaker 05: Is that a jurisdictional statute? [00:05:26] Speaker 05: 3242 is not a jurisdictional statute. [00:05:29] Speaker 05: It is a procedural statute. [00:05:31] Speaker 05: It's designated as such in the case law, Keeble and the cases that follow up. [00:05:41] Speaker 05: And so if you go to the statutes, there is no grant of authority for a court to impose a conviction against a defendant under the major crimes act for misdemeanor assault. [00:05:58] Speaker 05: Well, there actually may be an exception because they do allow generally an assault on a person under age 16 is included. [00:06:09] Speaker 05: If that were a misdemeanor assault, then it would be covered. [00:06:13] Speaker 05: But regular assault, like we have in this case, [00:06:17] Speaker 05: Congress's intent was for felony assault to be included. [00:06:22] Speaker 04: Well, why doesn't a charge like assault resulting in serious bodily injury necessarily encompass simple assault? [00:06:33] Speaker 05: Because Congress said felony assault. [00:06:37] Speaker 04: Well, I know it did. [00:06:37] Speaker 04: That's what's in the statute. [00:06:40] Speaker 04: But doesn't it encompass [00:06:43] Speaker 04: simple assault because simple assault requires proof of the same elements except for the serious bodily injury. [00:06:53] Speaker 04: In other words, it's part of the same offense. [00:06:58] Speaker 04: Why can't it be looked at that way? [00:07:02] Speaker 05: Because you have to look at the function of the major crimes act. [00:07:08] Speaker 05: And it is [00:07:09] Speaker 05: There are cases that are Indian, against Indian cases, but the crime is serious enough that we think it's better handled by the federal court system and therefore it's appropriate to invade the sovereignty of a tribe and [00:07:28] Speaker 05: Bring that into federal court. [00:07:30] Speaker 04: Didn't the Keeble Court say that that wasn't a good argument? [00:07:38] Speaker 04: In other words, in fact, the court said under the government, they're taking the position that the instructions should be given. [00:07:50] Speaker 04: And they said that... [00:07:56] Speaker 04: The argument against was that that should fall before the congressionally sanctioned interest of the tribe in preserving its inherent jurisdiction, which I think is your argument. [00:08:05] Speaker 04: And then the court says, since that conclusion is compelled neither by the language nor the purposes nor the history of the act, we cannot agree. [00:08:14] Speaker 04: In other words, Keeble, I think, disagrees with that argument in terms of at least giving the instruction. [00:08:24] Speaker 05: For giving an instruction. [00:08:26] Speaker 05: Right. [00:08:27] Speaker 05: Keeble goes on to say, we want to stress here we're not infringing on the sovereignty of a tribe. [00:08:33] Speaker 03: So I'm still stuck on the practical implications of this and to Judge Matheson's point about Spaziano and those cases that speak to tricking the jury. [00:08:42] Speaker 03: What is the practical import of the procedural right if at the end of the day it's purely token? [00:08:53] Speaker 05: It is to assure that the government has proven [00:08:56] Speaker 05: a federal crime occurred, and to give a defendant the same protections that any defendant who's not an Indian would have. [00:09:05] Speaker 03: So does it matter at all? [00:09:06] Speaker 03: Or maybe how should we be thinking about the fact that in this case, your client did not request the instruction? [00:09:13] Speaker 05: That is another issue. [00:09:15] Speaker 05: And if Keeble creates a procedural right in the defendant, [00:09:23] Speaker 05: And that results in some expansion of jurisdiction. [00:09:26] Speaker 05: If that is the reading of Keeble, in this case, the defendant did not request that instruction. [00:09:31] Speaker 04: Didn't object to it either. [00:09:33] Speaker 05: Correct. [00:09:33] Speaker 05: Did not object to it, but didn't request it either. [00:09:37] Speaker 05: But if he didn't ask for it, he didn't buy into this expansion of jurisdiction. [00:09:44] Speaker 04: How do we know that? [00:09:45] Speaker 04: I mean, it was requested. [00:09:46] Speaker 04: If he didn't want the instruction given, he should have said something, shouldn't he? [00:09:50] Speaker 04: Your counsel should have said something. [00:09:52] Speaker 05: He didn't object to the instruction. [00:09:55] Speaker 05: That's what I'm saying. [00:09:57] Speaker 05: And that is, in fact, what the record shows. [00:10:00] Speaker 05: I'm not suggesting otherwise. [00:10:03] Speaker 05: But he didn't invoke it. [00:10:04] Speaker 02: Well, because wouldn't he want the instruction? [00:10:06] Speaker 02: I mean, he didn't object, right? [00:10:08] Speaker 02: Because he would want it, wouldn't he? [00:10:10] Speaker 04: That's why the co-defendant asked for it. [00:10:12] Speaker 05: He would certainly benefit from the protection that's identified in Keeble as a procedural protection. [00:10:22] Speaker 04: And I will... Well, let me just ask you one other thing. [00:10:26] Speaker 04: You say in your brief that the government could not have charged Mr. Hobson with misdemeanor simple assault, correct? [00:10:33] Speaker 04: Correct. [00:10:34] Speaker 04: Because that's not listed in the major crimes act. [00:10:37] Speaker 04: But the government didn't charge him with [00:10:40] Speaker 04: simple assault, right? [00:10:43] Speaker 05: The government did not. [00:10:44] Speaker 04: OK. [00:10:46] Speaker 04: Why isn't it different to be indicted for simple assault, on the one hand, as opposed to being convicted of simple assault as a lesser included offense of felony assault? [00:10:59] Speaker 05: Going back to the text of the Major Crimes Act, that was not Congress's intent. [00:11:06] Speaker 04: Well, how do we know that? [00:11:08] Speaker 04: Why wasn't it Congress's intent? [00:11:11] Speaker 04: that the enumerated crimes would include those lesser included offenses that have the same elements as the enumerated crimes. [00:11:21] Speaker 05: If that was their intent, then it's difficult to understand why they listed felony assault under Section 113. [00:11:29] Speaker 04: Well, because as you point out, the government couldn't have charged simple assault. [00:11:35] Speaker 04: And they didn't. [00:11:36] Speaker 04: They didn't charge simple assault. [00:11:37] Speaker 04: They charged assault resulting in serious bodily injury. [00:11:42] Speaker 04: But why doesn't that charge encompass simple assault? [00:11:48] Speaker 05: What you're proposing is that the congressional plan was for some reason to allow only charges for felony assault with the understanding that then [00:12:04] Speaker 05: people could be convicted of something other than felony assault, misdemeanor assault, which is an invitation for prosecutors to expand what they can charge by just overcharging. [00:12:17] Speaker 04: In this case... But they aren't supposed to do that. [00:12:20] Speaker 04: I mean, that would run counter to their responsibility. [00:12:24] Speaker 04: They can't charge [00:12:27] Speaker 04: They can't charge assault resulting in serious bodily injury if they don't have the proof. [00:12:31] Speaker 04: And you're suggesting, well, they're going to go ahead and do it anyway. [00:12:34] Speaker 04: But they're not supposed to do that. [00:12:38] Speaker 04: Are we just supposed to assume that they will? [00:12:40] Speaker 05: Well, they do. [00:12:42] Speaker 05: In this case, that's what happened. [00:12:45] Speaker 05: The code defendant in this case pled guilty to an information and was found guilty of misdemeanor assault. [00:12:53] Speaker 05: There's a case I learned about this week, Caleb English, [00:12:56] Speaker 05: Case 23, 1328, pending in this court. [00:13:00] Speaker 05: In that case, they charged the defendant with felony assault, turn around, work out a plea deal to misdemeanor assault. [00:13:09] Speaker 05: The district court won't take the plea because you can't charge him with misdemeanor assault, and now that's pending in your court. [00:13:17] Speaker 03: Is that different? [00:13:17] Speaker 03: Is plea bargaining context different? [00:13:20] Speaker 05: I don't think there's jurisdiction, so it's not different. [00:13:25] Speaker 03: I have one more question for you on the circuit courts that have taken up the issue that's now before us have found not in your favor on the issue and have concluded or understood, Keeble, that jurisdiction over a lesser is implicit in the statutes. [00:13:48] Speaker 03: That's the language that I believe the Eighth Circuit in Felicia used, and it's the same sort [00:13:54] Speaker 03: theory that is the working theory in those other circuits. [00:13:58] Speaker 03: What's wrong with that understanding of Keeble? [00:14:02] Speaker 05: What's wrong with that understanding of Keeble is it doesn't look at what Keeble actually held, which was we're not expanding federal jurisdiction here. [00:14:12] Speaker 05: We're not invading tribal jurisdiction here. [00:14:15] Speaker 05: And you can't reach that outcome without expanding federal jurisdiction and infringing on sovereignty [00:14:25] Speaker 05: Felicia, in particular, has very, in my opinion, tortured readings of the Major Crimes Act. [00:14:32] Speaker 05: If you look at it, they have a couple of points that are essentially tortured readings of the Major Crimes Act that try to get out of the limitations that are in the act. [00:14:45] Speaker 05: And then ultimately, they just say, well, it'd be a futility. [00:14:49] Speaker 05: And that ignores the holding of Keeble too and the reasoning of Keeble. [00:14:53] Speaker 05: The subsequent cases, [00:14:56] Speaker 05: all really kind of go back to Felicia. [00:14:59] Speaker 05: The latter two cases, Bowman and Walking Eagle, have vigorous dissents that essentially adopt what I'm saying. [00:15:13] Speaker 05: The Bowman opinion is interesting in that it's almost an apology for the outcome. [00:15:20] Speaker 04: Would we be creating a circuit split if we affirm here? [00:15:26] Speaker 05: Yes But I think that you have to look under the hood of this circuit split and see what's going on because you've got Felicia it stands on its own two legs then you've got John and [00:15:48] Speaker 05: which really was decided because they realized, well, wait a minute, this is an 1152 case anyway, so this isn't really a problem. [00:15:55] Speaker 05: We're not invading federal or tribal jurisdiction here. [00:15:59] Speaker 05: And then you've got the latter two cases that basically say, well, it seems like this is what everybody's doing, and it doesn't really make sense to us. [00:16:06] Speaker 05: And then you've got dissents that are saying, this doesn't make sense. [00:16:08] Speaker 05: This is not right. [00:16:10] Speaker 04: I know you're over time, but I just need to ask you one other question. [00:16:13] Speaker 04: I believe Judge Rossman raised one of our cases, one of John's cases earlier. [00:16:20] Speaker 04: Given some of the language in our cases post-Keeble about this issue, 3242, [00:16:32] Speaker 04: Is this really an argument that you need to be making to the en banc court? [00:16:37] Speaker 04: Are we constrained by our previous decisions here? [00:16:41] Speaker 05: I don't think you are. [00:16:43] Speaker 05: I don't think that this issue has not been decided. [00:16:47] Speaker 05: It was not decided in Hebel explicitly. [00:16:51] Speaker 05: Subsequently, the court acknowledges we haven't decided this issue. [00:16:55] Speaker 05: I don't think that this court has decided this issue. [00:17:00] Speaker 05: I think the court will have to decide the issue in this case and in the English case that's pending. [00:17:06] Speaker 05: So that one, in some respects, is a related appeal that I just learned about. [00:17:11] Speaker 05: The issues are so intertwined, but there is no circuit precedent. [00:17:16] Speaker 05: And the government has not argued that it would be necessary to overturn 10th Circuit precedent. [00:17:22] Speaker 04: Thank you, counsel. [00:17:23] Speaker 05: Thank you. [00:17:24] Speaker 05: I understand your answer. [00:17:25] Speaker 05: Thank you. [00:17:30] Speaker 00: Good morning. [00:17:30] Speaker 00: May it please the court, Stephen Scaife on behalf of the United States. [00:17:34] Speaker 00: The district court below had jurisdiction to convict and sentence appellant for the lesser included offense of simple assault pursuant to 18 U.S.C. [00:17:42] Speaker 00: Section 3242. [00:17:44] Speaker 00: And that conclusion is supported by the absolute authority Congress has to establish the jurisdiction of federal courts by the language of Section 3242 itself. [00:17:53] Speaker 00: Is that a jurisdictional statute? [00:17:55] Speaker 00: It is, Your Honor, and this court in Nagantop v. Samuels' 1991 decision [00:17:59] Speaker 00: stated that Section 3242, quote, governs the jurisdiction and venue of the Major Crimes Act. [00:18:06] Speaker 00: It's also found within Chapter 2. [00:18:08] Speaker 03: Is there any discussion about what we meant by that? [00:18:11] Speaker 03: Because it seems that understanding 3242 as a first principle jurisdictional statute is wrong. [00:18:20] Speaker 03: It is a procedural provision. [00:18:22] Speaker 03: And all throughout your brief, you rely on it as a jurisdictional statute. [00:18:26] Speaker 00: It is a jurisdictional statute that comes into play at trial. [00:18:31] Speaker 00: So the initial basis for the prosecution remains Section 1153. [00:18:34] Speaker 00: It must be an enumerated major crime. [00:18:37] Speaker 00: But once that prosecution is brought, Section 3242 is then implicated in order to provide the defendant, the Indian defendant, the lesser included instruction. [00:18:47] Speaker 00: And so that is where the jurisdictional analysis comes into play under Section 3242. [00:18:51] Speaker 00: And other circuits, including the Ninth Circuit and the Eighth Circuit, have also concluded that Section 3242 does confer jurisdiction on the district court. [00:19:01] Speaker 04: I'm still a little puzzled. [00:19:04] Speaker 04: This word jurisdiction gets thrown around a lot in this area and a lot of other areas, too. [00:19:10] Speaker 04: But is it subject matter jurisdiction that we're talking about here, or is it really more a matter [00:19:22] Speaker 04: a statute that defines the ultimate reach of the statute that fits under subject matter jurisdiction. [00:19:31] Speaker 04: It seems to me that your use of jurisdiction to describe 3242, it just doesn't look like a subject matter jurisdiction statute. [00:19:43] Speaker 04: So I take it you aren't using jurisdiction in that sense. [00:19:48] Speaker 00: It is a jurisdictional statute, and I think it's subject matter jurisdiction in this context as it relates to the particular offense at issue in this appeal, the simple misdemeanor assault. [00:19:59] Speaker 00: In that sense, it does create jurisdiction over that offense as it relates to an Indian defendant. [00:20:05] Speaker 00: And so that would be the basis for it being a subject matter jurisdiction statute. [00:20:09] Speaker 00: It establishes jurisdiction over a particular offense here. [00:20:14] Speaker 04: What about 1153A? [00:20:18] Speaker 04: Let's forget about 3242 for a second. [00:20:22] Speaker 04: Is it your position that when a district court has jurisdiction over a particular offense, that it always has jurisdiction over a lesser included offense? [00:20:41] Speaker 00: is the government's position that that is the case under 3242? [00:20:44] Speaker 04: No, no, I'm just looking at 1153A for now. [00:20:48] Speaker 04: It lists assault resulting in serious bodily injury. [00:20:55] Speaker 04: Does that encompass [00:20:57] Speaker 00: simple assault not under section 1153 because I think under that reading of section 1153 that would then allow the government to indict on the lesser included offense on simple assault because of section 1153 is the basis for jurisdiction that is the jurisdictional statute authorizing the government to bring an indictment and a prosecution in the first instance why couldn't there be a distinction between what 1153 authorizes to charge in other words [00:21:26] Speaker 04: It doesn't say you can charge simple assault. [00:21:29] Speaker 04: But you can charge assault resulting in serious bodily injury. [00:21:33] Speaker 04: And that's a legitimate charge. [00:21:36] Speaker 04: Obviously, it's on the face of the statute. [00:21:38] Speaker 04: But why doesn't that carry with it the possibility of a conviction for simple assault? [00:21:45] Speaker 04: I mean, as a practical matter, whether the government or the defense [00:21:52] Speaker 04: wants to ask for a lessering fluid, it's usually a tactical decision in the moment. [00:21:58] Speaker 04: Sometimes it can benefit both sides or maybe only benefit the defendant, depending on how the evidence has come in. [00:22:05] Speaker 04: But at that point, it's encompassed within [00:22:08] Speaker 00: That is correct and that's why an indictment under 1153 for felony assault gives the defendant notice of misdemeanor assault and that's why it can be implicated at trial and that's why the defendant could ultimately be convicted. [00:22:24] Speaker 00: at trial of simple assault, because he does have notice that within the charged felony assault on the face of the indictment, that also includes with it the simple or the lesser... Okay, I didn't hear you saying that earlier, but do you need 3242 to get there? [00:22:43] Speaker 00: Relying on 3242 is prudent here because it is an explicit congressional statute that authorizes jurisdiction. [00:22:50] Speaker 00: There's no need to find jurisdiction by implication or by reading between the lines of a separate statute. [00:22:57] Speaker 00: Section 3242 establishes that Indian defendants shall be tried in the same courts and in the same manner as all other persons. [00:23:05] Speaker 00: That is very similar language to the jurisdictional statement in Section 1153. [00:23:09] Speaker 00: which is that Indian defendants shall be subject to the same law and penalties as are all other persons. [00:23:15] Speaker 00: Neither statute gives an explicit this court or the district court shall have jurisdiction over these offenses. [00:23:20] Speaker 03: What authority do you rely on for that? [00:23:22] Speaker 03: I mean the you know you just struck by your statement that relying on 3242 obviates the need to infer jurisdiction by implication like the other circuit courts perhaps have done but what authority establishes 3242 as a [00:23:38] Speaker 03: statute of subject matter jurisdiction? [00:23:40] Speaker 00: Well, in addition to this court's Negansot decision from 1991 that it is a jurisdictional statute, a common sense application of Section 3242 requires that jurisdiction be found. [00:23:52] Speaker 00: If an Indian defendant is to be tried in the same manner as a non-Indian defendant, then that's not being followed. [00:24:00] Speaker 00: An Indian defendant cannot be convicted of the lesser offense, but a non-Indian defendant could be. [00:24:05] Speaker 00: They're no longer being tried in the same manner in that instance. [00:24:09] Speaker 00: And so 3242 requires that both defendants, Indian and non-Indian, receive the lesser included instruction. [00:24:15] Speaker 00: And by the same reasoning, the statute requires that both defendants be able to be convicted of that lesser offense. [00:24:22] Speaker 04: Well, what's wrong with [00:24:25] Speaker 04: drawing the line and giving the instruction. [00:24:27] Speaker 04: In other words, if Mr. Hobson and the co-defendant want the instruction to be given and Keeble says you've got to give instruction, the court gives the instruction, 3242 has been complied with, correct? [00:24:45] Speaker 04: on the procedural side as far as giving the instruction in the first instance. [00:24:49] Speaker 04: Yeah. [00:24:49] Speaker 04: And it has the authority to instruct. [00:24:53] Speaker 04: But the next question is, does it have the authority to convict? [00:24:57] Speaker 04: Correct. [00:24:58] Speaker 04: And as long as these procedural protections are followed, why not draw the line there and say, you can have the instruction. [00:25:07] Speaker 04: But the court can't be convicted in federal court. [00:25:12] Speaker 04: That would have to be a tribal [00:25:14] Speaker 00: That would directly violate Spaziano. [00:25:17] Speaker 00: Spaziano says where a defendant is otherwise entitled to a lesser included instruction, he cannot receive that instruction if, as a matter of law, he cannot be convicted of that lesser offense. [00:25:27] Speaker 00: And that's because the jury cannot be deceived or tricked. [00:25:31] Speaker 00: Spaziano is very similar to this case and Keeble. [00:25:36] Speaker 00: Spaziano was addressing a defendant that was entitled to a lesser included or was otherwise entitled to a lesser included instruction following Beck. [00:25:44] Speaker 00: This case involves an Indian defendant who is otherwise entitled to a lesser included instruction pursuant to Keeble. [00:25:50] Speaker 00: But applying Spaziano, we cannot trick the jury, which would be the outcome of appellant's position. [00:25:55] Speaker 00: Under appellant's position, the jury would be instructed on the lesser offense, and that would be deceiving the jury. [00:26:02] Speaker 00: And so you cannot simply draw the line at, okay, we gave the instruction, that's enough. [00:26:06] Speaker 00: There also has to be a finding that there is jurisdiction in the first instance which allows the instruction to be given. [00:26:12] Speaker 00: That is what Spaziano says. [00:26:15] Speaker 00: And limiting the applicability of Spaziano to capital cases that arise out of state courts, I think, gives a far too narrow application of Supreme Court precedent. [00:26:24] Speaker 00: The Supreme Court was establishing principles that could be applied to other cases, to other contexts, and that principle of you cannot deceive the jury applies on all fours in this instance here. [00:26:36] Speaker 01: Counsel, can you help me understand how you would be deceiving the jury? [00:26:42] Speaker 01: I mean, you're telling them to answer a question, but do you think that it's deceiving the jury if they don't get to convict, I guess is what you're saying. [00:26:53] Speaker 01: How is that deceiving them? [00:26:55] Speaker 00: Because you're telling the jury that they can convict on the charged felony offense, they can convict on the lesser included simple assault, or they can completely acquit the defendant. [00:27:04] Speaker 00: And we heard an appellant this morning stand up and say that if the jury convicts the appellant for simple assault, the outcome of that is that the judge would have to then acquit him. [00:27:15] Speaker 00: And so if the jury's finding him guilty of simple assault and the outcome of that is an acquittal, well, that is on its face, deceiving the jury as to what they could ultimately find the defendant guilty of. [00:27:26] Speaker 00: The only actual options the jury has in that situation is convicting on the felony assault or a complete acquittal, even though they're told that one of those options would be actually finding him guilty on simple assault. [00:27:50] Speaker 00: I think just a few additional points. [00:27:52] Speaker 00: The procedural basis for providing the lesser included instruction is Rule 31C of the Federal Rules of Criminal Procedure. [00:27:58] Speaker 00: That text describes what a defendant may be found guilty of. [00:28:04] Speaker 00: Again, appellant is trying to flip that principle on its head to get the lesser included offense in order to be acquitted of it. [00:28:10] Speaker 00: And I think a policy issue that is relevant here is that [00:28:15] Speaker 00: Under appellant's reading of the jurisdictional statutes here, we won't know whether jurisdiction exists until after a verdict is reached. [00:28:23] Speaker 00: And that's the most basic threshold question of what does jurisdiction exist. [00:28:28] Speaker 00: And under appellant's reading, it's not until the court and the parties and the victims go through the entire trial where that basic threshold question be answered. [00:28:35] Speaker 00: And that simply cannot be what Congress intended in establishing these jurisdictional parameters. [00:28:40] Speaker 00: I'm not sure I just followed. [00:28:42] Speaker 00: Can you maybe restate that? [00:28:45] Speaker 00: Sure. [00:28:45] Speaker 00: So no one disputes that jurisdiction is established under 1153 for the felony assault that's charged on the indictment. [00:28:53] Speaker 00: But if the lesser included offense is given at trial, that then puts jurisdiction at issue according to appellant, because if he's found guilty of simple assault but acquitted a felony assault, then appellant says there's no jurisdiction. [00:29:07] Speaker 00: And so that clarity as to whether jurisdiction exists will rise or fall with the verdict, will rise or fall with whether the jury says you are guilty of felony assault or you are guilty of just a simple misdemeanor assault. [00:29:21] Speaker 00: And so that clarity does not come until the jury reaches a verdict after the trial is completed. [00:29:28] Speaker 03: Could you speak to your opposing counsel's argument about McGirt and how we should be thinking about McGirt in resolving this appeal? [00:29:34] Speaker 00: McGirt says there must be a clear congressional statement, and that's what Section 3242 is. [00:29:39] Speaker 00: And that's why the government is pointing to a specific statute where this court does not have to imply jurisdiction [00:29:46] Speaker 00: from another statute or by an implicit reading of Keeble. [00:29:50] Speaker 00: There is a clear congressional statement in Section 3242 that uses very similar language to establish jurisdiction as does Section 1153 of the Major Crimes Act. [00:30:00] Speaker 00: It's the language Congress chose to use to confer jurisdiction in these contexts. [00:30:05] Speaker 04: Isn't this clear statement, principal, that isn't only a McGirt? [00:30:12] Speaker 04: The Supreme Court said that many times. [00:30:15] Speaker 00: Correct. [00:30:15] Speaker 04: It's not a McGirt limited issue. [00:30:19] Speaker ?: OK. [00:30:21] Speaker 04: What about this issue of whether Mr. Hobson requested, well, he didn't explicitly request a lesser included offense. [00:30:34] Speaker 04: It was a co-defendant. [00:30:36] Speaker 04: How does that affect the way we should be looking at this? [00:30:39] Speaker 00: I don't think it does affect it here. [00:30:42] Speaker 00: Jurisdiction, as both parties agree here, is not something that can be waived or opted in. [00:30:46] Speaker 00: So jurisdiction existed under Section 3242 as soon as the lesser included offense was implicated. [00:30:54] Speaker 00: And so appellant did not need to opt in to jurisdiction, because jurisdiction exists regardless of what the parties agree on at trial. [00:31:02] Speaker 04: But wasn't Keeble based on an opt-in? [00:31:06] Speaker 04: That is, if the defendant asks for it, [00:31:10] Speaker 00: That's correct. [00:31:11] Speaker 00: The defendant is entitled to it if he requests it and if the evidence supports giving that instruction. [00:31:18] Speaker 00: In this case, appellant could have objected to the lesser included offense and that jury instruction, in which case the district court would have given the instruction and the verdict slip with the lesser included only to the co-defendant that requested it but was not obligated to give it to appellant in this situation. [00:31:35] Speaker 03: But if Keeble is about protecting procedural rights, then [00:31:39] Speaker 03: Does it only apply if the defendant requests the instruction? [00:31:45] Speaker 00: It would not come up if the defendant does not request it. [00:31:49] Speaker 00: So if the defendant never requests the lesser included instruction, then this jurisdictional issue and whether jurisdiction exists over the lesser included offense would simply be irrelevant. [00:31:57] Speaker 04: Why does the government request it? [00:32:00] Speaker 00: The government could request it if it could also request it for the non-Indian defendant. [00:32:05] Speaker 00: And that would be applying the plain language of Section 3242 of treating the Indian defendant the same as the non-Indian defendant. [00:32:12] Speaker 00: It would be trying both parties in the same manner. [00:32:18] Speaker 00: If there are no further questions, thank you. [00:32:20] Speaker 04: Thank you, counsel. [00:32:22] Speaker 04: Very interesting case. [00:32:23] Speaker 04: We appreciate both your arguments this morning. [00:32:26] Speaker 04: Very helpful. [00:32:28] Speaker 04: Case will be submitted. [00:32:29] Speaker 04: Council are now excused.