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United States v. McGirt.

No. 22-7048. Attempted Second Degree Murder—US Sentencing Guidelines—Aggravated Assault and Battery—Crime of Violence.

June 20, 2023

McGirt was tried in state court in 1997 on charges of first-degree rape, lewd molestation, and forcible sodomy. He was convicted on all counts, and the court sentenced him to two 500-year terms and one term of life without parole. The US Supreme Court overturned McGirt’s state conviction, and federal prosecutors brought the case to a grand jury, which indicted him on two counts of aggravated sexual abuse and one count of abusive sexual contact based on the same 1996 allegations. The government’s case rested primarily on the testimony of the victim, B.C., her mother, Kuswane, and her grandmother Blackburn. There was no incriminating physical evidence, so the defense focused almost exclusively on challenging the reliability of the testimony provided by B.C., Kuswane, and Blackburn. The defense introduced 28 excerpts from the transcripts of the testimony of those witnesses at the 1997 state-court preliminary hearing and trial to demonstrate inconsistencies with the witnesses’ 2020 federal court testimony. Defense counsel proposed a jury instruction pursuant to Fed. R. Evid. 801(d)(1)(A) that the government witnesses’ prior sworn inconsistent statements could be used to both assess their credibility and as substantive evidence of what the witnesses said earlier in the state trial. Over defense counsel’s objections, the district court gave its own instruction limiting the jury’s use of prior inconsistent statements to impeachment. McGirt was convicted of two counts of aggravated sexual abuse in Indian country and one count of abusive sexual contact in Indian country and was sentenced to concurrent life sentences on each count.

On appeal, McGirt argued that the district court erred by instructing the jury that the government witnesses’ prior inconsistent statements could be used solely for impeachment. The weight of authority treats a prior assertion of a fact as inconsistent with a present assertion of a lack of memory for purposes of Rule 801(d)(1)(A), and there is substantial circuit caselaw under the rule admitting prior testimony of witnesses who could not recall the event at trial. Thus, the only issue before the Tenth Circuit was whether the jury instruction error was harmless. Here, the defense theory was that Kuswane made up the abuse allegations and McGirt lacked the opportunity to commit the crimes because he was seldom alone with B.C. On cross-examination, defense counsel sought to emphasize internal inconsistencies in the witnesses’ direct testimony, suggesting that the witnesses remembered little of what happened in 1996 and were fabricating much of what they said they did remember. The internal inconsistencies and weaknesses in the witnesses’ testimony demonstrate the significance of the district court’s decision to prohibit the jury from considering the witnesses’ prior inconsistent statements as substantive evidence. Allowing the jury to consider the witnesses’ prior inconsistent statements as substantive evidence would have helped McGirt’s defense strategy by creating an alternate narrative of the week in question by providing the only (or stronger) evidence of particular facts. Further, if used substantively, the prior testimony could also impeach the testimony of other witnesses. While the jury could have convicted McGirt even if the court had permitted it to use the prior testimony for substantive purposes, under the test outlined in Kotteakos v. United States, 328 U.S. 750, 765 (1946), there is grave doubt about whether the district court’s error substantially influenced the verdict. Accordingly, the government did not meet its burden of establishing harmlessness.

After his appeal was fully briefed, McGirt filed a motion for leave to file a pro se supplemental brief raising two additional arguments challenging the federal court’s jurisdiction: (1) that the statutes under which he was indicted and convicted, 18 USC §§ 2241 and 2244, are unconstitutional as applied to him; and (2) that his prosecution violates treaties between the federal government and the Mvskoke (Muskogee Creek) Nation. However, under the Major Crimes Act, an Indian who commits a felony under chapter Title 18, § 109A—as relevant here, aggravated sexual abuse and abusive sexual contact with another person—within Indian country is subject to the same law and penalties as other persons. And the Major Crimes Act and its legislative history express a clear congressional intent to abrogate or modify any treaty provisions to the contrary.

The convictions were reversed and the case was remanded for a new trial. McGirt’s pro se motion to file a supplemental brief was granted.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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