United States of America v. Pmb, Juvenile Male

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PMB, JUVENILE MALE,
Defendant - Appellant.
No. 11-10405
D.C. No. 3:11-cr-08009-JAJ-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
John A. Jarvey, District Judge, Presiding
Submitted September 11, 2012**
San Francisco, California
Before: WALLACE, THOMAS and BERZON, Circuit Judges.
PMB, a juvenile defendant, appeals from his judgment of conviction for two
counts of aggravated sexual abuse, in violation of 18 U.S.C. §§ 1153, 2241(a), and
2246(2)(A), and 5031–37. Because the parties are familiar with the factual history
FILED
APR 09 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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of this case, we need not recount it here. We vacate the convictions and remand
the case to the district court for entry of a judgment of acquittal.
To establish a defendant’s legal status as an Indian under 18 U.S.C. § 1153,
the government must prove that the defendant has some degree of Indian blood
“from a federally recognized tribe,” United States v. Maggi, 598 F.3d 1073, 1080
(9th Cir. 2010), and “tribal or government recognition as an Indian,” United States
v. Bruce, 394 F.3d 1215, 1223 (9th Cir. 2005) (internal quotation marks omitted).
“Indian status is an element of the offense that must be alleged in the indictment
and proved beyond a reasonable doubt.” United States v. Zepeda, 705 F.3d 1052,
1056 (9th Cir. 2013) (quoting Maggi, 598 F.3d at 1077) (internal quotation marks
omitted).
We must determine “whether, viewing all evidence in the light most
favorable to the government, any rational juror could have found beyond a
reasonable doubt that [PMB] was an Indian, on the basis of the slim evidence as to
both prongs of the Bruce test.” Id. at 1058. We are bound by this Court’s
conclusion in Zepeda that “a Certificate of Enrollment in an Indian tribe” is not
“sufficient evidence for a rational juror to find beyond a reasonable doubt that the
defendant is an Indian for the purposes of § 1153 where the government offers no
evidence that the defendant’s bloodline is derived from a federally recognized

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tribe.” Id. at 1054. Though PMB’s sister testified that she is an enrolled member
of the Navajo Nation Indian Tribe and that she lived with PMB and their parents
on the Navajo Nation Indian Reservation, this does not constitute evidence of
federal recognition. “Because ‘there is no evidence that [PMB] has any blood from
a federally recognized Indian tribe,’ we conclude that no rational juror could have
found [PMB] guilty beyond a reasonable doubt . . . and his convictions must be
vacated.” Id. at 1065 (internal citation omitted).
Given our resolution of this issue, we need not reach any other question
presented by the parties.
VACATED and REMANDED.

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