[00:00:05] Speaker 00:
We will take up our final case of the morning, United States versus King, 25-50-14.

[00:00:13] Speaker 00:
Mr. Gemmer, am I saying that?

[00:00:21] Speaker 00:
That's correct, Your Honor.

[00:00:22] Speaker 00:
Thank you.

[00:00:23] Speaker 00:
You may proceed.

[00:00:25] Speaker 01:
Good morning, your honors, and may it please the court, Jared Gemmer on behalf of Adam Joseph King.

[00:00:31] Speaker 01:
Before I jump into my argument, I want to correct one mistake I made in my briefing, which addresses the testimony of Bill Trammell.

[00:00:40] Speaker 01:
My briefing said that Bill Trammell's testimony was that some of the healthcare he was talking about that MV was receiving.

[00:00:48] Speaker 01:
occurred after her enrollment with the Cherokee Nation.

[00:00:51] Speaker 01:
I was reviewing the transcript again this morning.

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He says it was before her enrollment, but that does not meaningfully change our arguments.

[00:00:59] Speaker 01:
I just wanted to correct that for the court.

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So I think the 800 pound gorilla in the room is Hebert and what's happening with that because this case is fundamentally once again about Indian status, not just of the defendant though, but also of the victim.

[00:01:19] Speaker 01:
To begin, this case has a few distinctions from Hebrew.

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The first big one is we know that the defendant was not enrolled in a federally recognized tribe at the time of the offense.

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That was not the case in Hebrew.

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However, it is unbelievably clear from all of the case law, not just in this circuit, but other circuits, that the absence of enrollment is not dispositive.

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So the government needed to do more than just show an absence of enrollment.

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Because there are at least three other mechanisms by which a person can be recognized as an Indian.

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One is the receipt of assistance from the federal government that is reserved exclusively to Indian persons.

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The second is the enjoyment of benefits of tribal affiliation.

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And the last is the vague idea of social recognition through perhaps living on a reservation or attending powwows or other tribal ceremonies.

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We know two other things about Mr. King.

[00:02:29] Speaker 01:
His blood quantum, at least one sister is adamant that they have blood relation to Native Americans through their mother's side, not simply through their adoptive father, which would not provide blood quantum at all.

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The second sister, when asked, the specific question posed to her was whether she was aware of whether anyone in her family beyond the adoptive father had Indian heritage.

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Her response was, not that I am aware of, no.

[00:03:06] Speaker 01:
Judge Matheson, as the author of Hebert, I know Your Honor is quite aware of this.

[00:03:11] Speaker 01:
That amounts to I don't know.

[00:03:13] Speaker 01:
Not that I'm aware of is the same as I don't know.

[00:03:16] Speaker 00:
Isn't there a big difference, though, between a sister in this case and Ms.

[00:03:20] Speaker 00:
Byers in Hebert?

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The sister is in a much stronger position here to know than Ms.

[00:03:28] Speaker 00:
Byers was in Hebert.

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Wouldn't you agree?

[00:03:31] Speaker 01:
I understand that is the case, Your Honor.

[00:03:34] Speaker 01:
I agree.

[00:03:35] Speaker 01:
Conceptually, she's in a stronger position.

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Her other sister says, we absolutely have Indian status.

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So she's in just as strong a position.

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Then.

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I understand, but I wouldn't be comparing these witnesses in the two cases.

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That's fair, Your Honor.

[00:03:51] Speaker 00:
Is that fair enough?

[00:03:52] Speaker 01:
That's fair, Your Honor.

[00:03:54] Speaker 01:
When Ms.

[00:03:55] Speaker 01:
Guess, it was Kelly Guess, who said the I don't know or not that I'm aware of, she was specifically asked about her mother's own Indian heritage

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And I believe the responses were, I don't know, I don't know.

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I don't know isn't proof of anything.

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It's an absence of knowledge.

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It's not a categorical, no, we don't have it, yes, we do have it.

[00:04:21] Speaker 01:
It is, I don't know.

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So blood is an open question, but an open question is not enough for beyond a reasonable doubt for the government's purposes.

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It needs to prove

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needs to prove beyond a reasonable doubt the absence of a blood quantum for that particular element.

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It has not done so.

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The other pillar upon which the government rests its case are the text messages between Mr. King and his girlfriend, Emily, and Asagasti.

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The government portrays these text messages, one of them as Mr. King saying that he isn't tribal.

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The specific statement within that text message was, according to the Cherokee, I wasn't tribal at the time.

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Now, the context behind this is important because Mr. King was held by the Cherokee Nation to simply not be a member of a federally recognized tribe at the time of the offense.

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That is all the Cherokees said about him.

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They did not make any other ruling regarding Indian status beyond that fact.

[00:05:30] Speaker 01:
There was another text message, I believe, along the lines of the tribal prosecutors knowing they don't have jurisdiction over him.

[00:05:38] Speaker 01:
That's a perfectly true statement within the confines of the Cherokee Nation saying he was not enrolled at the time, therefore we can't prosecute him.

[00:05:48] Speaker 01:
That is not an admission on his part that he has no Indian blood or no recognition.

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That is simply a statement of fact.

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The Cherokee said he wasn't tribal at the time.

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Those are the only two pillars upon which the government rests its case that Mr. King was a non-Indian at the time of the offense.

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And I believe that under Hebert and under Ruiz, that is simply not enough.

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And the government has failed to prove beyond a reasonable doubt that Mr. King was a non-Indian at the time of the offense.

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That brings us to MV status.

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MV status is much more complicated.

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She is also not an enrolled member of a tribe at the time of the offense.

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She does have a blood quantum.

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Everyone can agree on that.

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She is biologically, ancestrally Native American through her mother's side and potentially her biological father's side.

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The absence of enrollment places her in essentially the same place as Mr. King.

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There was also no testimony as to social recognition, such as tribal ceremonies, powwows, that sort of thing.

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The distinction is that MV received medical care from Indian hospitals.

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Now, this could have occurred in one of two ways.

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It could have been provided by the federal government or it could have been provided by tribal hospitals.

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The four recognition factors, enrollment, federal assistance reserved only for Indians, tribal benefits, social recognition.

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If the medical care was provided by the federal government, it would only constitute recognition as an Indian if the care provided was reserved exclusively to Indian persons.

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Now, we can think of this in one of two ways.

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Either the medical care

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benefit, the assistance that the federal government is providing is actually assistance to the parent in the sense that the federal government is ensuring, is assisting the parent in providing medical care to their child.

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In which case, that would be a recognition that Emily in Asagasti is an Indian.

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Or, and Emily in Asagasti naturally is an Indian, she both has blood and enrollment as of the time of the offense, but her recognition is not in question.

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The second alternative is that MV was an eligible non-Indian person under statutory law.

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Federal Indian Health Services provides medical care to eligible non-Indians, and this is under 25 USC section 16 ADC.

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And this is alluded to in the briefing, but not necessarily expanded upon.

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Eligible non-Indians are defined as the natural-born children of eligible Indians, and also the stepchildren, adopted children, foster children, legal wards, and orphans of eligible Indians.

[00:09:16] Speaker 01:
Under that same statute, an eligible Indian is specifically an Indian

[00:09:23] Speaker 01:
who is eligible for health care services for reasons other than those provided in 1680 C. And the same statutory scheme defines an Indian as someone who is a member of a federally recognized tribe.

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So unless a person is a member of a federally recognized tribe, their receipt of health care services from a federal IHS facility would be through their status as an eligible non-Indian person.

[00:09:56] Speaker 01:
That would seem to be what MV was in this case, if she received such health care.

[00:10:03] Speaker 01:
That matters because MV, even though she is biologically the child of Emily and Asagasti,

[00:10:10] Speaker 01:
Her biological relation does not change her legal status in the eyes of IHS.

[00:10:16] Speaker 01:
In the eyes of IHS, under the statutory scheme, she is no different than a child from China who was adopted by two Indian parents who then brought that child to an IHS facility.

[00:10:27] Speaker 01:
No one in their right mind would say that IHS was recognizing the Chinese child as an Indian.

[00:10:35] Speaker 01:
The alternative scenario involves the Cherokee Nation Health Services.

[00:10:40] Speaker 01:
because there is also testimony that could be interpreted as the Cherokee Nation providing health services to MV at times.

[00:10:50] Speaker 01:
The factor that is at play there is whether the individual is enjoying the benefits of tribal affiliation.

[00:10:59] Speaker 01:
The test doesn't explicitly say who's tribal affiliation, but it goes, I think it is natural to believe that the individual's tribal affiliation is what is being examined.

[00:11:13] Speaker 01:
It can't constitute recognition as an Indian if it is not recognizing their own affiliation with the tribe.

[00:11:22] Speaker 01:
The problem is all of the testimony in this case

[00:11:26] Speaker 01:
Beyond Any Doubt shows that MV received all of her medical care because her mother was a member of the Cherokee Nation.

[00:11:34] Speaker 01:
Not on her own status, but because of her mother's status.

[00:11:39] Speaker 01:
It was incidental benefit based on her mother's tribal affiliation.

[00:11:49] Speaker 01:
To say that MV is being recognized as an Indian

[00:11:54] Speaker 01:
simply because she is receiving medical care through her mother's tribal affiliation and not her own tribal affiliation, reduces Indian status to a genealogical, i.e.

[00:12:09] Speaker 01:
a racial status.

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Because all it cares about is who the child has descended from, not whether the tribe and the child have affiliated together.

[00:12:19] Speaker 01:
And I see I have three minutes left.

[00:12:21] Speaker 01:
I would like to reserve my remaining time for rebuttal.

[00:12:25] Speaker 00:
Thank you, counsel.

[00:12:28] Speaker 00:
Mr. Johnson, you're back too.

[00:12:31] Speaker 00:
Sorry, you're unexcused as well.

[00:12:34] Speaker 03:
May it please the court, Elliot Anderson for the United States.

[00:12:36] Speaker 03:
Thank you.

[00:12:38] Speaker 03:
I will agree with the appellant here that Hebert is tremendously instructive here.

[00:12:43] Speaker 03:
I disagree that it calls for reversal, because this case could not be more different than Hebert.

[00:12:50] Speaker 00:
Why don't we start with Mr. King's?

[00:12:53] Speaker 00:
Mr. King, the non-Indian status issue, how was your evidence stronger than the evidence in Hebert and Ruiz?

[00:13:02] Speaker 03:
In Hebert, the defendant was, in the words of this court, quote, an itinerant with no close personal ties to anyone who could testify about his background and upbringing.

[00:13:10] Speaker 03:
In contrast, here, we had Mr. King's two full-blooded sisters who were raised with him.

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We had Mr. King's intimate partner of seven years, the minor victim's mother.

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We had a tribal official from the Delaware tribe who testified to Mr. King's misrepresentations in his own enrollment process.

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And then we had judicial admissions and other admissions from Mr. King himself.

[00:13:31] Speaker 00:
Well, what about the two sisters?

[00:13:33] Speaker 00:
According to Pellant, we have one of them giving evidence that he was not an Indian, or that he was Indian.

[00:13:45] Speaker 03:
I would describe that testimony, I wouldn't say that she was adamant.

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I would say that she was highly equivocal.

[00:13:50] Speaker 03:
She said that she believed, had heard, that a great aunt and a great uncle were tribal.

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But she could not answer a single follow-up question.

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She couldn't identify what tribe.

[00:14:00] Speaker 03:
She hadn't spoken to the aunt or the uncle in some years because the uncle was in prison.

[00:14:04] Speaker 03:
She did not remember the aunt's first name.

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She said, I've never talked to them about their tribal status.

[00:14:09] Speaker 03:
So what she had was unfounded speculation that this court in Ortner said that's not enough to negate Indian status or to show that someone's tribal just to say, well, I heard a rumor that there's Indian blood in my family.

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So she was not adamant.

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She made a baseless assertion that she couldn't back up, and the jury was entitled to find that not credible.

[00:14:29] Speaker 03:
But at the end of the day, both sisters admitted

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It wasn't just, well, I don't know.

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I've never really thought about it.

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They said, there's one person we can name who's tribal.

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It's our adopted dad.

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Both sisters said, we cannot give you any documentation or proof that anyone else in our family has tribal blood.

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It wasn't just that they didn't know.

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It's that there were no records of it.

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This is more than just, as you said, the witness in Hebert, the stepdaughter who had lived with the defendant for two days.

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And so the fact that she didn't know his background, not very dispositive, not very persuasive.

[00:14:58] Speaker 03:
Here, the sisters, one of whom said, we were not raised with any tribal participation.

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We didn't go to tribal powwows.

[00:15:05] Speaker 03:
We weren't raised in Indian belief.

[00:15:07] Speaker 03:
These are people who would know.

[00:15:09] Speaker 03:
Right?

[00:15:10] Speaker 00:
Is it your position that both sisters supported the determination?

[00:15:16] Speaker 03:
Yes.

[00:15:17] Speaker 03:
Both sisters could not identify anyone that they are blood relation to that has Indian heritage.

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And one said, I don't have no documentation.

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I have no proof.

[00:15:28] Speaker 03:
The first sister said, there is no one else.

[00:15:30] Speaker 03:
The second sister had heard a rumor, but then couldn't back it up and said, and we weren't raised with any indicia of tribal recognition.

[00:15:37] Speaker 03:
So at the end of the day, in this case, we've got Adam King, a man with no identifiable blood quantum, no blood relatives who are tribal, no legitimate tribal affiliation, just the conjured up one, and then

[00:15:51] Speaker 03:
his own admissions in court when he filed that motion to dismiss in state court and said, two things happened here.

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In state court, he said, you can't prosecute me.

[00:15:59] Speaker 03:
I'm tribal.

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And in tribal court, he said, you can't prosecute me.

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I wasn't tribal.

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And then the explanation for that that was offered by Ms.

[00:16:06] Speaker 03:
Anna Zegasti and by defense counsel was he just didn't understand that the relevant inquiry was, well, were you tribal at the time of the offense?

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If that was the case, if he finally understood that, he did not at that point come forward and say, oh, well, I have other reasons to support my motion.

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And that was presented to the jury.

[00:16:25] Speaker 03:
That was presented to the jury.

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But this is a man who did not assert any tribal affiliation prior to 2023.

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So there is ample evidence here.

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And I cited the Walker case in my brief.

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And Walker isn't about sufficiency, but admissibility.

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What kind of a person can testify about the lack of or the presence of Indian heritage?

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Close family members, like the two sisters here, like the intimate partner that Mr. King had lived with for the past seven years, are exactly the kind of people who can prove this negative.

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So Mr. King, even when he had the chance in state court, he moved to dismiss and said, you can't prosecute me.

[00:17:00] Speaker 03:
I'm tribal.

[00:17:02] Speaker 03:
And then never came back and said, and here's how I will prove that I was tribal in 2021.

[00:17:06] Speaker 03:
He never came forward with anything on that.

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His status is proved.

[00:17:13] Speaker 03:
The evidence that the jury heard was more than enough for a reasonable jury to say, look, if this person had Indian blood or Indian affiliation, some of these people would have known about it.

[00:17:23] Speaker 03:
His full blood sisters would have known, right?

[00:17:25] Speaker 03:
His girlfriend of the past seven years would have known.

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Nobody had seen anything.

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And that's more than just, I never thought about it before.

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That's people who would have seen or would have known and just said, we can't prove it.

[00:17:36] Speaker 03:
We can't prove any Indian heritage.

[00:17:39] Speaker 03:
The minor victim's Indian status, likewise, I think, is much clearer than the appellant brings it out to be.

[00:17:46] Speaker 03:
And first, I'll say that Drury is, I think, dispositive of this question.

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In Drury, the court was looking at minor children who were not enrolled until after some of the abuse had happened in that case.

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And when the court looked at the indicia of tribal recognition in their lives, the very first thing the court identified was they received tribal health care before they were enrolled.

[00:18:09] Speaker 03:
And this court said, and admittedly, sometimes a non-Indian child can get tribal health care.

[00:18:14] Speaker 03:
But that's not how these kids got tribal health care.

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They got health care because they were presumed to be eligible in their own right.

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The minor victim in this case was documented to be eligible in her own right.

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And I do want to clarify something that the point the appellant makes about 25 USC 1680C.

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There is no such thing under that statute as a child getting treatment just because they present with an Indian adult.

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An Indian adult cannot show up with a kid and say, I'm an Indian.

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Give my kid health care.

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The child has to have, under that statute, the child has to have a demonstrable link to the Indian community.

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So it needs to be a biological child or an adopted child or a guardianship situation.

[00:19:00] Speaker 03:
What happened here?

[00:19:02] Speaker 00:
But the biological link alone is enough?

[00:19:07] Speaker 03:
The biological link was enough in Drury, and that is how the minor victim in this case qualified.

[00:19:13] Speaker 03:
Because when Emily Anna Zagaski enrolled her child with Cherokee-Nathan Health Services, she had to prove

[00:19:19] Speaker 03:
her relation to the child.

[00:19:20] Speaker 03:
She did not present adoption papers.

[00:19:23] Speaker 03:
She did not present a guardianship order.

[00:19:25] Speaker 03:
She presented the birth certificate to show that this is my biological descendant.

[00:19:30] Speaker 03:
I am Cherokee.

[00:19:30] Speaker 03:
This is my Cherokee child.

[00:19:32] Speaker 00:
Just as in Drury... And you would say, I know you're relying on that case, but could you just explain the rationale as to why that's probative of Indian status?

[00:19:44] Speaker 03:
Because it is recognition.

[00:19:45] Speaker 03:
It is both a benefit that is essentially reserved to Indians with exceptions.

[00:19:51] Speaker 03:
But Drury says we're not going to consider the exceptions if they weren't in play.

[00:19:55] Speaker 03:
We're not concerned about how an adopted baby from China might get health care.

[00:19:59] Speaker 03:
We want to know how did this child get health care and why.

[00:20:02] Speaker 03:
And so here she received a benefit reserved to Indians.

[00:20:05] Speaker 03:
She also received, and this is the prong three of the Prentiss test, a benefit of tribal affiliation.

[00:20:11] Speaker 03:
And the LaBeouf case that we cited in our brief points out that, look, health care to a child is both a benefit reserved to Indians and a benefit of tribal affiliation, more generally speaking.

[00:20:23] Speaker 03:
So it is probative there because for the first 18 months of her life, the victim was treated at the Indian hospital.

[00:20:29] Speaker 03:
And then in 2019, she was enrolled with Cherokee Nation Health Services on the basis of being a blood descendant of a Cherokee mother.

[00:20:37] Speaker 03:
So it was not just on her mother's benefit.

[00:20:39] Speaker 03:
She herself had the same kind of connection that Drew re-held as sufficient for recognition.

[00:20:47] Speaker 00:
I wanted to ask you how the Cherokee Nation's involvement in the custody proceedings could be relevant to the Indian status issue.

[00:21:01] Speaker 03:
The Cherokee Nation's involvement was after the abuse came to light, but it was immediately after the abuse came to light.

[00:21:07] Speaker 03:
And that, I think, is informative in helping the jury understand the other evidence before them.

[00:21:12] Speaker 03:
Because the DHS witness testified that they learned about the abuse on August 23rd,

[00:21:19] Speaker 03:
And days later, on August 27, the tribe was involved in custody.

[00:21:23] Speaker 03:
So the fact that the tribe immediately steps in and asserts jurisdiction over this child informs that earlier provision of health care services to the minor victim before she was enrolled.

[00:21:34] Speaker 03:
The tribe recognized this girl.

[00:21:36] Speaker 03:
When this case came to light, the tribe stepped in because they had already recognized her through the provision of health care services.

[00:21:42] Speaker 03:
And then the guardianship involvement only served to confirm that recognition.

[00:21:48] Speaker 03:
Drury also mentioned the post-abuse custody things as relevant.

[00:21:51] Speaker 03:
And again, we are looking at were they recognized before.

[00:21:55] Speaker 03:
But here, this shows that she was recognized before.

[00:21:58] Speaker 03:
The tribe knew her.

[00:22:00] Speaker 03:
They didn't say, well, we don't know how you're related to Emily.

[00:22:02] Speaker 03:
And as I asked you, they knew.

[00:22:05] Speaker 03:
I will want to make one more point that in Drury, the court had more facts to work with.

[00:22:11] Speaker 03:
The court said, OK, these kids, they've received Indian health care.

[00:22:13] Speaker 03:
They went to an Indian camp.

[00:22:14] Speaker 03:
There were a couple other in Disha.

[00:22:17] Speaker 03:
But one is sufficient.

[00:22:18] Speaker 03:
The question here is, did this tribe at any time recognize this minor victim?

[00:22:23] Speaker 03:
And they did when they gave her health care services.

[00:22:27] Speaker 03:
The law protects all Indian children, not just the ones that are raised in highly participatory environments that put a priority on being involved with the tribe day to day.

[00:22:37] Speaker 03:
And so here,

[00:22:38] Speaker 03:
And this is the difficult thing we do when we prove cases involving small kids who haven't been enrolled yet.

[00:22:43] Speaker 03:
But what have we got?

[00:22:44] Speaker 03:
We have the tribe recognizing her with health care services.

[00:22:47] Speaker 03:
That is sufficient.

[00:22:49] Speaker 00:
Could I come back to Mr. King for just a minute on the status?

[00:22:54] Speaker 00:
I didn't ask you about the recognition part of the test.

[00:23:00] Speaker 00:
Do you want to address that at all and how it compares with Hebert?

[00:23:05] Speaker 00:
We have blood.

[00:23:05] Speaker 00:
We have recognition.

[00:23:06] Speaker 03:
We have blood.

[00:23:07] Speaker 03:
We have recognition.

[00:23:09] Speaker 03:
So in addition of recognition, he was not raised, and we'll start at the bottom and work up, but his sister testified that they were not raised as social participants in any tribal life.

[00:23:21] Speaker 03:
There was no other indication that he had received a benefit from a tribe that was reserved only for Indians.

[00:23:29] Speaker 03:
He had certainly not been enrolled with any tribe.

[00:23:31] Speaker 03:
Enrollment is the first one.

[00:23:32] Speaker 03:
He was not enrolled with any tribe until he enrolled with the Delaware tribe after the fact.

[00:23:36] Speaker 03:
And that turned out to be ill founded.

[00:23:38] Speaker 03:
But prior to 2023, he never attempted to enroll or did.

[00:23:42] Speaker 03:
So the government wins here if either prong is missing, if there's no blood, quantum, or there's no recognition.

[00:23:51] Speaker 03:
And here, the evidence is, based on the people who were closest to him, neither one of those was satisfied.

[00:24:00] Speaker 03:
I want to, if I may, just touch briefly on the multiplicitous charges in this case.

[00:24:06] Speaker 03:
And the government concedes that the charges, the Indian status charges and the non-Indian status charges, were multiplicitous, which is permissible under this court's rule, as long as there's no risk of duplicitous judgments or jury confusion.

[00:24:22] Speaker 03:
And here, there was no risk of that.

[00:24:24] Speaker 03:
The judge instructed the jury quite clearly and said, I'm giving you four charges.

[00:24:29] Speaker 03:
Don't pay attention to the number of charges.

[00:24:31] Speaker 03:
Pay attention to what they say.

[00:24:33] Speaker 03:
One set is if you find Mr. King to be an Indian.

[00:24:36] Speaker 03:
The other one is if you find the government prove that he's not an Indian.

[00:24:40] Speaker 03:
And the judge said, if you're finding Indian status, side things, you can't check yes or no on yes on three or four and vice versa.

[00:24:48] Speaker 00:
Why, though, isn't it a problem that, given that he was charged in the alternative,

[00:24:58] Speaker 00:
given that under that approach, he was either Indian or non-Indian.

[00:25:03] Speaker 00:
And then he had to go to trial, understanding that both of those were possible.

[00:25:10] Speaker 00:
And then the government presented its trial evidence to show he was not an Indian.

[00:25:15] Speaker 00:
Why doesn't that put him in a very difficult position coming into trial?

[00:25:20] Speaker 00:
And why wouldn't it run the risk of confusing the jury to think that it had to convict him of one or the other one

[00:25:27] Speaker 00:
it's entirely possible that the government could fail its proof on Indian status either way.

[00:25:35] Speaker 03:
Absolutely.

[00:25:36] Speaker 03:
And the jury, the verdict form that the judge prepared and that the government proposed was designed to allow the jury to do exactly that.

[00:25:42] Speaker 03:
If they felt the government had not carried either burden, it was entirely possible they'd find not guilty all the way down because the government hadn't resolved the issue clearly.

[00:25:50] Speaker 03:
If you look at the prosecutor's closing argument,

[00:25:53] Speaker 03:
We charged him the alternative because Mr. King had muddied the waters.

[00:25:57] Speaker 03:
He had asserted in different courts that he was both Indian and not Indian at the relevant time, and we did not know what defense he would put on.

[00:26:06] Speaker 03:
And so we charged both.

[00:26:08] Speaker 03:
By the time we got to the end of the trial and he had decided not to testify, in closing argument, the prosecutor told the jury, he's not Indian.

[00:26:15] Speaker 03:
There's no evidence that he's Indian.

[00:26:18] Speaker 03:
And she said this quite clearly, the government has carried its burden to prove to you that he was non-Indian at the time.

[00:26:23] Speaker 03:
So ignore charges one and two, they're not in play anymore.

[00:26:26] Speaker 03:
Look at three and four, and not just as a default, well, if he's not Indian, he must be non-Indian.

[00:26:31] Speaker 03:
But she said very clearly, we have carried our burden to show you that he is not Indian.

[00:26:35] Speaker 03:
Why not just dismiss the first charge?

[00:26:38] Speaker 03:
We could have, Your Honor.

[00:26:39] Speaker 03:
It just didn't come up in the heat of the moment.

[00:26:40] Speaker 03:
But effectively, the government did.

[00:26:42] Speaker 03:
We abandoned those charges.

[00:26:43] Speaker 03:
We didn't ask the jury to enter a finding of guilt on those.

[00:26:51] Speaker 03:
If there are no further questions, I would ask the court to affirm.

[00:26:55] Speaker 03:
Thank you.

[00:26:57] Speaker 01:
Yes, Your Honor.

[00:26:58] Speaker 01:
Thank you.

[00:26:59] Speaker 01:
I'll actually touch upon the multiplicity issue first right off the bat, which I'm glad it was brought up.

[00:27:05] Speaker 01:
So there is an interesting problem here.

[00:27:09] Speaker 01:
Council has said that they could have dismissed the charges.

[00:27:14] Speaker 01:
A Rule 29 motion was actually filed at the close of government's evidence, and the district judge denied it.

[00:27:20] Speaker 01:
and allowed both charges to proceed forward.

[00:27:22] Speaker 00:
As to all four charges?

[00:27:22] Speaker 01:
As to all four charges.

[00:27:25] Speaker 01:
The district judge allowed all four to proceed, which under the Rule 29 standard means there's enough evidence for a jury to find beyond a reasonable doubt that he is an Indian.

[00:27:37] Speaker 00:
Let me just ask you, in the government's case in chief, did they elect which way to go on the evidence?

[00:27:45] Speaker 00:
Was it clear at that point they were going for non-Indian?

[00:27:49] Speaker 01:
I think one could interpret it as they were trying to ask questions that would go that way, but they were also very intentionally not asking certain questions.

[00:28:01] Speaker 01:
Backtracking a little bit prior to trial during the pretrial conference where this issue was raised, I believe counsel for the government at that time said a Rule 29 would be appropriate on what they said the Indian status charges because they were intending to proceed on the non-Indian theory, but these were just a backup in case Mr. King changed theories again, which I want to address very quickly.

[00:28:28] Speaker 01:
His state court motion said

[00:28:30] Speaker 01:
State can't prosecute me because I'm a member of the Delaware tribe.

[00:28:35] Speaker 01:
Then, and we also have to keep in mind, it's his attorney filing these, not him personally.

[00:28:42] Speaker 01:
His state attorney probably did not do adequate legal or factual research to understand what the standard is, because when he gets a tribal court attorney, the tribal court attorney says,

[00:28:53] Speaker 01:
you weren't enrolled at the time of the offense, here's a motion to dismiss.

[00:28:58] Speaker 01:
Court says, yeah, he was enrolled at the time of the offense.

[00:29:01] Speaker 01:
And then he withdraws his state court motion.

[00:29:04] Speaker 01:
That's the context of this gambit that the government has referred to a few times.

[00:29:09] Speaker 01:
Mr. King at no point made alternative claims to Indian status that it seemed to be worried about within these motions.

[00:29:18] Speaker 00:
Could I just ask you, is it your position

[00:29:21] Speaker 00:
that it's improper to charge $1,152 and $1,153 in the alternative in the first place.

[00:29:30] Speaker 01:
Yes, Your Honor, it is.

[00:29:31] Speaker 00:
Why is that?

[00:29:32] Speaker 00:
Why should that not ever happen?

[00:29:34] Speaker 01:
And I see I am almost out of time, so I will try to answer quickly.

[00:29:37] Speaker 01:
The problem- It's probably not a shorthand.

[00:29:40] Speaker 01:
It's not, Your Honor.

[00:29:41] Speaker 01:
My reply brief touches on this idea, which is the government is trying to do with a single indictment what it could not do with consecutive indictments.

[00:29:53] Speaker 01:
Double jeopardy technically doesn't apply to a single trial unless you're talking about multiple convictions.

[00:30:00] Speaker 01:
Double jeopardy otherwise is concerned with consecutive trials.

[00:30:03] Speaker 01:
But multiplicity is born out of the idea of double jeopardy.

[00:30:08] Speaker 01:
If a charge is multiplicitous, convictions on that both would violate double jeopardy.

[00:30:14] Speaker 01:
So what the government has done is it has filed multiplicitous charges

[00:30:20] Speaker 01:
and basically said, well, if we lose on one because he raises a defense that defeats it, we automatically win on the other, which is what it would probably try to do if double jeopardy wouldn't prevent consecutive charges, where it would say, we'll charge him under 1152 first, and if he comes back and says he's an Indian and he's found not guilty, we'll just charge him with 1153 afterwards and we've got him dead to rights.

[00:30:48] Speaker 01:
The government is accomplishing that objective in a single trial by charging in the alternative in this manner.

[00:30:53] Speaker 01:
Mr. King is unable to raise a defense as to this particular element without convicting himself on the other charge.

[00:31:02] Speaker 01:
And that's the reason for the prejudice, Your Honor.

[00:31:05] Speaker 00:
Well, I'm sure we could talk about this more at length, but I think maybe we ought to call this.

[00:31:10] Speaker 02:
Have you ever encountered that before?

[00:31:12] Speaker 02:
I mean, this is the first time I've ever encountered that.

[00:31:15] Speaker 01:
Thank you, Your Honor, for asking that.

[00:31:17] Speaker 01:
No.

[00:31:18] Speaker 01:
This is a very creative charging scheme.

[00:31:21] Speaker 01:
I'm not only not aware of this ever happening, I can't even.

[00:31:26] Speaker 01:
I'm shocked that it did happen.

[00:31:27] Speaker 02:
Well, and I am troubled by what you've said, that it is really a runaround on the double jeopardy issue.

[00:31:35] Speaker 02:
Yes, Your Honor.

[00:31:35] Speaker 02:
By saying, well, one jeopardy if you're in one trial.

[00:31:38] Speaker 02:
But you couldn't do it in two.

[00:31:39] Speaker 02:
You're absolutely right.

[00:31:41] Speaker 01:
That's right, Your Honor.

[00:31:42] Speaker 01:
And that's the fundamental premise of our prejudice argument.

[00:31:46] Speaker 02:
We didn't focus too much on the absolute question, the fundamental question.

[00:31:51] Speaker 02:
Can you have a duplicitous charge?

[00:31:54] Speaker 02:
But to me, that's a big issue.

[00:31:56] Speaker 01:
I agree, Your Honor.

[00:32:00] Speaker 00:
Thank you, counsel.

[00:32:00] Speaker 00:
Thank you.

[00:32:02] Speaker 00:
That completes our arguments today.

[00:32:04] Speaker 00:
The case will be submitted.

[00:32:06] Speaker 00:
Counsel are excused.

[00:32:08] Speaker 00:
The court will be in recess until, what, 8.30 tomorrow?

[00:32:12] Speaker 00:
Oh, it's 9 a.m.

[00:32:12] Speaker 00:
tomorrow.

[00:32:12] Speaker 00:
Oh, it's 9 a.m.

[00:32:13] Speaker 00:
tomorrow.

[00:32:13] Speaker 00:
You're right.

[00:32:14] Speaker 00:
9 a.m.

[00:32:15] Speaker 00:
tomorrow.

[00:32:16] Speaker 00:
Thank you.