                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 01 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-30274

              Plaintiff - Appellee,              D.C. No. 4:10-cr-00023-SEH-1

  v.
                                                 MEMORANDUM*
GENTRY CARL LABUFF,

              Defendant - Appellant.


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

                             Submitted June 8, 2011**
                                Portland, Oregon

Before: FISHER, GOULD, and PAEZ, Circuit Judges.

       Gentry Carl LaBuff (“LaBuff”) appeals his conviction of one count of

robbery/aiding and abetting robbery, in violation of 18 U.S.C. §§ 1153 and 2111.

On appeal, LaBuff contends that there was insufficient evidence to prove that he is


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
an “Indian person” under § 1153. We review the sufficiency of the evidence de

novo, United States v. LeVeque, 283 F.3d 1098, 1102 (9th Cir. 2002), and consider

whether, “after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

       Under Section 1153, “[a] ‘defendant’s Indian status is an essential element .

. . which the government must allege in the indictment and prove beyond a

reasonable doubt.’” United States v. Cruz, 554 F.3d 840, 845 (9th Cir. 2009)

(quoting United States v. Bruce, 394 F.3d 1215, 1229 (9th Cir. 2005)). To meet its

burden, the government must prove both that the defendant has a sufficient “degree

of Indian blood” and has “tribal or federal government recognition as an Indian.”

Id. (quoting Bruce, 394 F.3d at 1223–24). The first prong of the test requires

“some” Indian blood. Bruce, 394 F.3d at 1223. Thus, “evidence of a parent,

grandparent, or great-grandparent who is clearly identified as an Indian is generally

sufficient to satisfy this prong.” United States v. Ramirez, 537 F.3d 1075, 1082

(9th Cir. 2008) (quoting Bruce, 394 F.3d at 1223). Here, LaBuff does not contest

that he has a sufficient degree of Indian blood. Thus, we turn to whether the

government established that LaBuff was recognized as an Indian.


                                          2
      In Bruce, we outlined four factors that govern the second prong; those four

factors are, “in declining order of importance . . . 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 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).

      At trial, the government presented the testimony of Helen Butterfly

(“Butterfly”), a health records lab technician at the Blackfeet Community Hospital.

Butterfly testified that on the basis of LaBuff’s classification as an Indian

descendant of a tribal member, he was eligible to receive healthcare services at the

hospital, which is operated by the federal government and whose non-emergency

services are limited to enrolled tribal members and other non-member Indians.

Butterfly further testified that since May 1979, LaBuff received healthcare services

from the Blackfeet Community Hospital. Because the evidence showed that

LaBuff repeatedly accessed healthcare services “reserved only to Indians,” we

conclude that the government sufficiently established the second Bruce factor.

      Similarly, we conclude that because LaBuff frequently received healthcare

services on the basis of his descendent status of an enrolled member, he enjoyed

the “benefits” of his tribal affiliation, as required by Bruce’s third factor.


                                            3
      In addition to establishing the second and third Bruce factors, the

government also presented evidence that on multiple occasions, LaBuff was

arrested, prosecuted, and convicted under the jurisdiction of the tribal courts. As

we observed in Bruce, the assumption and exercise of tribal criminal jurisdiction is

strong evidence of tribal recognition. 394 F.3d at 1227. At the time he was

prosecuted, LaBuff did not challenge the authority of tribal authorities to arrest him

or the exercise of tribal criminal jurisdiction. Therefore, viewing the evidence in

the light most favorable to the government, we conclude that, contrary to LaBuff’s

contention, the evidence was sufficient for any rational fact-finder to have found,

beyond a reasonable doubt, that he is an “Indian person.”

      AFFIRMED.




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