                                                                           FILED
                           NOT FOR PUBLICATION                              APR 09 2013

                                                                        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. 11-10405

              Plaintiff - Appellee,              D.C. No. 3:11-cr-08009-JAJ-1

  v.
                                                 MEMORANDUM *
PMB, JUVENILE MALE,

              Defendant - Appellant.



                    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


        *
             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).
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


                                            2
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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