10th Circuit Court of Appeals Roundup – October 31 – November 6

10th Circuit Court of Appeals Roundup – October 31 – November 6

Carol Berry
11/8/11

During the week of October 31 – November 6 there were two court cases that were heard by the U.S. 10th Circuit Court of Appeals that have an affect on Indian country.

Crime? It’s in the Eye of the Beholder

It was an unusual kind of weaponry, but appeals court justices weren’t impressed and they upheld a lower court’s conviction and sentencing of a Colorado man.

The status of saliva as a weapon of choice for Daniel Solomon Lehi came into question November 3 in the U.S. 10th Circuit Court of Appeals, where a three-judge panel heard his unsuccessful argument that his sentence exceeded those of other defendants “who spit on other persons” or physically assaulted police officers.

Lehi appealed his felony conviction for forcibly assaulting a federal officer in Towaoc, headquarters of the Ute Mountain Ute Tribe, in May 2010 after his aunt reported that he was drunk and causing trouble.

Bureau of Indian Affairs (BIA) Lieutenant Dale American Horse responded, struggling with Lehi, handcuffing him, and placing him in a patrol car, but said that during the struggle Lehi spat in his face and “I could feel a lot of it get into my left eye,” he is quoted as saying in court records. “It started getting blurry.”

The District Court found Lehi committed a forcible assault involving physical contact based on the spitting incident, even though he contended that spitting did not constitute physical contact that would support a felony assault conviction.

Under federal law, all forcible assaults against federal officers involving physical contact are felony assaults, the appeals court noted. American Horse is a federal police officer employed by the BIA.

The lower court explained that it imposed the maximum sentence for Lehi because he was on supervised release at the time he assaulted American Horse and because Lehi’s criminal history began when he started drinking at about age 15 “and that has really characterized all of the different problems that he has been getting into since he has been an adult,” the court said.

“And one thing that’s almost invariable with his criminal history is that he gets drunk, someone calls the police, and then he fights the police when he is being arrested. And that’s exactly what happened to Officer American Horse here too,” the court added, observing that Lehi doesn’t seem to realize the consequences of his alcohol abuse.

The appeals court upheld Lehi’s 33-month sentence because it was within federal sentencing guidelines and because other cases he cited to support his argument were unpersuasive in the court’s eyes.

Murderer’s Appeal Request Denied

Andrew John Yellowbear, a Northern Arapaho tribal member, filed a request November 3 in the U.S. 10th Circuit Court of Appeals that represents his latest attempt to circumvent a life sentence for first-degree murder.

Yellowbear was convicted in 2006 in the death of his 22-month-old daughter, Marcela Hope Yellowbear, after prolonged abuse. The child’s mother, Macalia Blackburn, also a Northern Arapaho tribal member, was sentenced to 60 years in prison as an accessory.

Yellowbear initially had asked the lower court to set aside his conviction, contending only tribal or federal courts had jurisdiction because, the crime took place in Indian country, a contention the courts denied.

The challenge concerning tribal boundaries went to the Wyoming Supreme Court, which ruled that Riverton, Wyoming—the site of the crime—was no longer Indian country, although it is surrounded by the Wind River Reservation of the Northern Arapaho and Eastern Shoshone tribal nations. The federal appeals court also rejected Yellowbear’s argument over jurisdiction.

The Northern Arapaho Tribe issued a statement supporting Yellowbear’s jurisdictional argument but noting that its interest was in maintaining the legal integrity of its reservation boundaries and that it was not seeking to defend Yellowbear.

Less than a year later, in U.S. District Court in Wyoming, Yellowbear challenged his imprisonment, arguing that “the district judge fell asleep during the hearing” on a petition that could nullify his conviction.

He was unsuccessful, because the court concluded that Yellowbear failed to show “that an erroneous legal judgment would be left uncorrected if his motion was not granted” and noted that his jurisdictional claim had been rejected by the Wyoming Supreme Court.

Currently, Yellowbear asked a three-justice panel of the 10th Circuit to allow his appeal of the Wyoming District Court’s ruling, but his request was denied because he failed to make “a substantial showing of the denial of a constitutional right” and to raise issues that would justify further litigation.

Yellowbear was ordered to pay any remaining balance of the appellate filing fee and all additional outstanding motions were denied.

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