                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 08 2011

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-35127

              Plaintiff - Appellee,              D.C. Nos.    4:08-cv-00029-SEH
                                                              4:03-cr-00145-SEH-1
       v.

RONNIE LYNN SMITH,                               MEMORANDUM *

              Defendant - Appellant.

                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                        Argued and Submitted June 9, 2011
                                Portland, Oregon

Before: FISHER, GOULD and PAEZ, Circuit Judges.

      Ronnie Lynn Smith appeals the district court’s denial of his motion to

vacate, set aside or correct his sentence under 28 U.S.C. § 2255. We affirm.

      1. Indian status. Smith was convicted of assault with a dangerous weapon

in violation of 18 U.S.C. §§ 113(a)(3) and 1153 for the stabbing of Lee Harrison

Tuttle, an Indian person. To convict Smith under § 1153, the jury was required to


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
find beyond a reasonable doubt that Smith was an Indian. See 18 U.S.C. § 1153(a)

(subjecting “[a]ny Indian” who commits one of 14 major crimes to the criminal

laws and penalties applicable in areas of exclusive federal jurisdiction). Smith

argues under United States v. Bruce, 394 F.3d 1215 (9th Cir. 2005), United States

v. Cruz, 554 F.3d 840 (9th Cir. 2009), and United States v. Maggi, 598 F.3d 1073

(9th Cir. 2010), that the government presented insufficient evidence of his Indian

status.1 We disagree.

      “The generally accepted test for Indian status considers ‘(1) the degree of

Indian blood; and (2) tribal or government recognition as an Indian.’” Bruce, 394

F.3d at 1223 (quoting United States v. Keys, 103 F.3d 758, 761 (9th Cir. 1996)).

“[F]our factors . . . govern the second prong; those four factors are, ‘in declining

order of importance, evidence of the following: 1) tribal enrollment; 2) government

recognition formally and informally through receipt of assistance reserved only to

Indians; 3) enjoyment of the benefits of tribal affiliation; and 4) social recognition



      1
       We reject the government’s argument that Teague v. Lane, 489 U.S. 288
(1989), precludes us from applying Bruce, Cruz and Maggi, which were decided
after Smith’s trial. Teague bars the retroactive application of new procedural rules
under certain circumstances. See 489 U.S. at 310. It does not apply to new
substantive rules, including “decisions that narrow the scope of a criminal statute
by interpreting its terms.” Schriro v. Summerlin, 542 U.S. 348, 351 (2004).
Because Bruce, Cruz and Maggi interpret the substantive scope of § 1153, the
Teague bar is inapplicable.

                                           2
as an Indian through residence on a reservation and participation in Indian social

life.’” Cruz, 554 F.3d at 846 (quoting Bruce, 394 F.3d at 1224).

      The government presented sufficient evidence of Smith’s Indian blood to

satisfy Bruce’s first prong. We have held this requirement satisfied by as little as

1/8 (12.5%) Indian blood. See Maggi, 598 F.3d at 1080; Bruce, 394 F.3d at 1223.

Here, the government presented evidence that Smith has 25/128 (19.5%)

Assiniboine and Sioux blood, well in excess of the 1/8 we approved in Bruce and

Maggi. We acknowledge that Smith’s § 2255 motion attached a letter from the

Fort Peck Tribes Enrollment Office stating that Smith “does not meet the required

blood quantum of 1/8 for Associate Membership [in the Fort Peck tribes], nor 1/4

Full Enrollment.” But this evidence was not presented at trial, and even if it had

been, a rational trier of fact could have chosen to credit the more specific, higher

figure established by the government’s evidence.

      The government also presented sufficient evidence of tribal or government

recognition of Smith as an Indian to satisfy Bruce’s second prong. There was

evidence that Smith at one time enjoyed formal tribal enrollment, the most

important indicator of tribal recognition of a defendant’s Indian status. See Cruz,

554 F.3d at 846. As early as 1990, Smith was enrolled as an associate member of

the Assiniboine and Sioux tribes, a status available to persons of “one-eighth (1/8)


                                           3
or more but less than one-quarter (1/4), Assiniboine and/or Sioux blood born to

any member of the Assiniboine and Sioux Tribes.” Sioux & Assiniboine Ord. No.

1, § 1(e). Although Cruz and Maggi held that “descendant status” in the Blackfeet

tribe, available to the children of formally enrolled Blackfeet members, was

insufficient to show tribal enrollment, see Cruz, 554 F.3d at 847; Maggi, 598 F.3d

at 1082, Smith’s membership in the Sioux and Assiniboine tribes was more formal

than Cruz and Maggi’s descendant status. Smith was actually enrolled as a tribe

member by virtue of his own quantum of Indian blood. He was not a mere

descendant eligible for tribal affiliation by virtue of a parent’s enrollment alone.

Compare Blackfeet Const. art. II, am. III., § 1 (specifying that individuals born

after 1962 must have 1/4 Blackfeet blood to be enrolled as members, without

provision for any “descendant” membership), with Sioux & Assiniboine Ord. No.

1, § 1(d) & (e) (providing that “[e]ach child of one-fourth (1/4) or more

Assiniboine and/or Sioux blood born after [October 1, 1960] to any member of the

Assiniboine and Sioux Tribes” qualifies for full membership, and that “[e]ach child

of one-eighth (1/8) or more but less than one-quarter (1/4), Assiniboine and/or

Sioux blood born to any member of the Assiniboine and Sioux Tribes” qualifies for

associate membership).




                                           4
      We recognize that Smith relinquished his tribal enrollment in 1996. This

decision does not definitively show, however, that Smith or the tribe ceased to

consider Smith an Indian person. See Cruz, 554 F.3d at 850 (holding that Bruce

requires an analysis of Indian status from the perspective of the individual as well

as from the perspective of the tribe). A tribal investigator, Tom Atkinson, testified

he had known Smith for most of his life, that Smith had lived on the reservation

that entire time and that, as far as Atkinson knew, Smith held himself out to be an

Indian person. A rational jury could have concluded that because Smith was once

formally enrolled in the tribe and continued to hold himself out as an Indian even

after his enrollment ended, both Smith and the tribe continued to view Smith as an

Indian despite his unexplained decision to relinquish his formal enrolled status.

      We therefore conclude there was no deficiency of proof on the Indian status

element.

      2. Counsel’s failure to dispute Smith’s Indian status. Smith contends trial

counsel and appellate counsel provided ineffective assistance by failing to

challenge the sufficiency of the evidence that he is an Indian. We disagree. Smith

was tried before Bruce, Cruz and Maggi were decided, and pre-Bruce authority

gave counsel little indication that a challenge to the evidence of Indian status might

prove successful. See Keys, 103 F.3d at 761 (affirming an Indian status finding


                                          5
without extensive discussion). Counsel’s failure to raise a legal argument that

lacked obvious merit did not constitute ineffective assistance. See United States v.

Ratigan, 351 F.3d 957, 965 (9th Cir. 2003) (holding that the “failure to recognize

every possible legal argument” did not render counsel’s performance

constitutionally deficient).

      3. Counsel’s failure to request a clarifying jury instruction. Smith argues

trial counsel rendered ineffective assistance by failing to request a jury instruction

clarifying the definition of the term “Indian.” He argues that the jury should have

been instructed to apply the standard set forth in Bruce and Cruz, including the

basic two-prong Indian status test and the four subfactors used to evaluate the

second prong. But we decline to fault counsel for not proposing jury instructions

whose content was not developed until well after trial. See Strickland v.

Washington, 466 U.S. 668, 690 (1984) (“[A] court deciding an actual

ineffectiveness claim must judge the reasonableness of counsel’s challenged

conduct on the facts of the particular case, viewed as of the time of counsel’s

conduct.”). Although it might have been preferable to provide the jury with a

clarifying instruction on the meaning of the term “Indian” – especially in light of

the jury note expressing confusion as to the significance of Smith’s relinquishment

of tribal enrollment – there was little useful clarification that counsel, operating


                                           6
pre-Bruce, could have proposed. We therefore conclude counsel performed

adequately.

       4. Voir dire statement. In questioning prospective jurors during voir dire,

the district court stated:

       I want to follow up on this topic that I addressed initially with you
       concerning ethnic background of persons and other topics of that sort.
       The defendant in this case is in fact a Native American. A very
       substantial number of the persons whose [sic] appear and give testimony
       at this trial may be Native Americans as well. . . . Do any of you feel that
       you have such strong views on the subject of ethnic background or tribal
       affiliation or matters of that sort that you could not serve as a fair and
       impartial juror in this case?

(Emphasis added.)

       Smith contends the court’s remark that he was a Native American “had the

effect of relieving the government of its burden of proving . . . that Smith is an

Indian.” We disagree. Given the context of the district court’s statement, the

prospective jurors likely understood the court’s remark as part of an inquiry into

potential prejudice, not as a comment on forthcoming evidence. Moreover, at the

close of trial, the court instructed the jury not to “read into . . . anything the court

may have said or done any suggestion as to what verdict you should return.”

Although this instruction was rather general, it was sufficient to cure any potential

misimpression arising from the court’s comment. See United States v. McGill, 604



                                             7
F.2d 1252, 1255 (9th Cir. 1979) (holding that a judge’s comment on the issues in

the case, although “not technically correct,” could be cured by instruction).

      AFFIRMED.




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