AZ Shooter's Bloodline Faces En Banc Scrutiny
(CN) - The full 9th Circuit will decide whether an Arizona man who allegedly helped shoot up a home on an Indian reservation had the proper bloodline to meet federal jurisdiction.
Damien Zepeda had been charged with the 2008 shooting of Dallas Peters at his home on the Ak-Chin Reservation near Phoenix
The nine-count indictment against Zepeda said he was an Indian, giving the federal government jurisdiction over the crime under the Major Crimes Act.
To prove this at trial, prosecutors submitted a certificate certifying that Zepeda was an enrolled member in Gila River Indian Community, a federally recognized tribe. It further confirmed that Zepeda had a "'Blood Degree' of '1/4 Pima [and] 1/4 Tohono O'Odham' for a total of 1/2'." The Tohono O'odham nation has a reservation in southern Arizona near Tucson.
A jury convicted Zepeda on all charges including assault with a deadly weapon and use of a firearm during a crime of violence. On appeal he argued that the certificate of enrollment was not enough to meet federal jurisdiction.
The 9th Circuit reversed eight of the convictions, 2-1, in September.
"We are not free to speculate that Zepeda's Tohono O'odham blood is derived from the Tohono O'odham Nation of Arizona," Judge Richard Paez wrote for the majority.
"The Tribal Enrollment Certificate was insufficient to establish that Zepeda is an Indian for the purposes of federal jurisdiction under § 1153 because the government introduced no evidence that Zepeda's bloodline is derived from a federally recognized tribe," he added.
In upholding Zepeda's conspiracy conviction, the court found that that the statute on which it was based "applies equally to everyone everywhere within the United States, including Indians in Indian country."
In a brief dissent Judge Paul Watford suggested that the majority had set the bar too high, writing that "a rational jury could certainly infer that the reference in Zepeda's tribal enrollment certificate to '1/4 Tohono O'Odham' is a reference to the federally recognized Tohono O'odham Nation of Arizona."
Chief Judge Alex Kozinski noted late Monday that a majority of nonrecused active judges had voted to rehear the case en banc.
The September opinion can no longer be cited as precedent by or to any court of the 9th Circuit.