United States v. Zepeda

Brief for the National Association of Criminal Defense Lawyers and the Ninth Circuit Federal Public and Community Defenders as Amici Curiae in Support of Defendant-Appellant.

Brief filed: 04/07/2014


United States v. Zepeda

9th Circuit Court of Appeals; Case No. 10-10131

Prior Decision

Decision below Case No. 2:08-cr-01329-ROS-1 (Hon. Roslyn O. Silver) (D. Ariz.).


The Major Crimes Act requires the government to prove that the defendant has both ancestral and political affiliation with a federally-recognized tribe. Indian status is an element of the offense that the government must allege in the indictment and prove to a jury. Zepeda’s conviction must be reversed. The jury instruction was plain error. No rational jury could conclude that Zepeda satisfies the ancestral requirement of Section 1153. The government failed to demonstrate at trial that the Tohono O’Odham Nation of Arizona is a federally-recognized tribe. The government failed to demonstrate that Zepeda’s heritage derives from the Tohono O’Odham Nation of Arizona.

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Charles A. Rothfeld, Paul W. Hughes, Michael B. Kimberly, Breanne A. Gilpatrick, Mayer Brown LLP, Washington ,DC; David M. Porter, Sacramento, CA.