                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             AUG 19 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No.   13-10340

              Plaintiff-Appellant,                D.C. No.
                                                  4:12-cr-00516-CKJ-BPV-1
 v.

LJO, JUVENILE MALE,                               MEMORANDUM*

              Defendant-Appellee.


                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                      Argued and Submitted August 12, 2016
                            San Francisco, California

Before: HAWKINS and GRABER, Circuit Judges, and SELNA,** District Judge.

      The United States appeals the district court’s judgment of acquittal. The district

court held that it lacked jurisdiction over this juvenile delinquency case under the

Indian Major Crimes Act, 18 U.S.C. § 1153, because the government had presented


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
             The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
insufficient evidence at trial to establish that LJO’s Indian blood derived from a

federally recognized tribe, citing United States v. Zepeda, 705 F.3d 1052 (9th Cir.

2013). Intervening authority requires that we reverse and remand for the district court

to consider the effect of the superseding en banc opinion in United States v. Zepeda,

792 F.3d 1103 (9th Cir. 2015) (en banc), cert. denied, 136 S. Ct. 1712 (2016). The

district court should also decide in the first instance whether to take judicial notice of

the Tohono O’odham Constitution for purposes of determining whether the

government proved beyond a reasonable doubt that LJO has “some quantum of Indian

blood.” Id. at 1113.

      REVERSED AND REMANDED.




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