FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

U N I T E D S TA T E S O F A ME R I C A , Plaintiff-Appellee
,

v.

E D G AR M I K E A LVI R E Z , J R ., Defendant-Appellant. No. 11-10244

D.C. No. 3:10-cr-08049-DGC-1

OPINION

Appeal from

the United States District Court f or the District of Arizona D avid G. Cam

p bell, District Judge, Presiding

Argued and Subm itted June 12, 2012 San Francisco, California

Filed March 14, 2013 W ithdrawn April 15, 2013 Resubm itted July 15, 2016 Filed August 1, 2016

Before: Dorothy W . Nelson, Johnnie B. Rawlinson, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge RawlinsonU N I T E D S TA T E S V

. A LVI R E Z 2

SUMMARY *

Criminal Law

The panel reversed a conviction for assault resulting in serious bodily injury on an Indian reservation, in violation o f 18 U.S.C. §§ 1153 and 113(a)(6), and rem anded.

The panel held that the district court abused its discretion when it determ ined that a Certificate o f Indian Blood offered into evidence by the governm ent in order to establish Indian

s t a tu s , an e s s e n t i a l e le me n t o f § 1 1 5 3
, w a s a self-authenticating d ocum ent under Fed. R

. Evid. 902(1). The panel held that this error was not harm less.

The panel held that the d i s tr ict court did not abuse its discretion in d enying the defen d ant’s m otion in limine to exclude r e ferences to polygraph evidence, where the d e fe n d a n t , w h o e l e c t e d n o t t o p r e s e n t h i s

m ultiple-interrogation defe n s e as a legal strategy, was not denied the opportunity to present his defense.

The panel h e ld that the district court cannot show plain

error in the district court’s application of enhancem ent under U.S.S.G. § 2A2.2 for infliction of perm anent o r life-threatening injury.

The panel held that double jeopardy does not bar retrial after reversal in this case b ecause the erroneously-adm itt e d

* This summ ary c o n s ti tu tes no part of the o pinion of the court. It h as been prepared by court staff for the convenience of the reader.U N I T E D S TA T E S V

. A LVI R E Z 3

Certificate o f Indian Blood was nevertheless sufficient evidence to support the conviction.

C OUNSEL

Dan i e l L. Kaplan (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office o f the Federal Public Defender, P hoenix, Arizona, for Defendant-Appellant.

Heather H. Sechrist (argued), Assistant United St at e s Attorney; United States Attorney’s Office, Phoenix, Arizona; for Plaintiff-Appellee.

OPINION

RAW LINSON, Circuit Judge:

Edgar Al v irez, Jr. (Alvirez) appeals his jury conviction and sentence for assault resulting in serious bodily injury on an Indian reservation, in violation of 18 U.S.C. §§ 1153 and 113(a)(6).

We h a ve jurisdiction pursuant to 28 U.S.C. § 1291 t o review the d istrict court’s judgm ent. W e conclude that the district co urt abused its discretion when it adm itted the unauthenticated Certificate of Indian Blood as evidence to

m eet the elem ents of the governing statute. Accordingly, we

reverse A lvirez’s conviction an d rem and for further proceedings. Because other issues raised by A lvirez will likely arise in the event of a retrial, we address them now inU N I T E D S TA T E S V

. A LVI R E Z 4

the interest o f judicial economy. See United States v. Wiggan , 700 F.3d 1204, 1216 (9th Cir. 2012).

I. BACKGROUND

A. The Assault

On Novem

ber 3, 2009, at the hom e o f Mary Grace Alvirez (Mary Grace), Dram etria Havatone ( Havatone) discussed the fact that Alvirez, Mary Gr a c e ’s son, was not assisting his m other financially. H avatone initiated this conversation in the presence of Alvirez, Mary Grace, Brittany Davis (Davis), Alvirez’s girlfr i e nd and Havatone’s cousin, and Denisha S iyuja (Siyuja). As the discussion progre s s ed,

a physical altercation ensued. D avis and Siyuja punched and kicked Havatone as they f orcibly and physically rem oved her from the house.

Having forced Havatone outside, Davis and S iyu ja continued the physical assault, ev entu ally k n o ckin g H avatone to the ground. While Ha v a t o ne w as prone on the concrete, Alvirez stepped on Havatone’s ankle.

Hu a l a p ai N atio n P o lice O f

f icer Mich ael W illiam s (O f f i c e r Wi l liam s) was dispatched to the scene. Finding H avatone lying in the road, Officer W illi a ms asked Havatone if she needed m edical assistance, to whic h s h e responded affirm at ively. Officer W illiam s called param edics, who drove Havatone to th e Hualapai Mountain Medical Center. She was subsequently transferre d to the Kingm an Regional Medical C enter, where Dr. Emm ett McEleney (Dr. McEleney), an orthopedic surgeon, repaired her broken ankle by inserting nine screws and a m etal plate.U N I T E D S TA T E S V

. A LVI R E Z 5

B. The Investigation

Officer W illiam s initially obtained statem ents from Mary Grace, D avis, and Alvirez (first interview). Onc e Officer W illiam s learn e d that Havatone’s ankle was broken, he reclassified the crim e from a sim ple assault to an aggravated

a ssault, which required referral to the Federal Bur e au of Investigation (FBI).

On Novem

ber 9, 2 009, FBI Special Agent Margo Barber (Agent Barber) and Detective Sam Tsosie (Detective T sosie) of the Hualapai Nation Police Departm ent, interviewed Alvirez outside his hom e (second intervie w). During the second interview, the investigators asked Alvirez if he would subm it to a polygraph test. Alvirez acknowledged that he knew what a polygraph tes t was and agreed to subm it to the
test.

On January 26, 2010, A gent B arber and Detective Tsosie arrived at Alvirez’s h om e to continue the investigation. Agent Barber asked Alvirez if he rem em bered stating that he would be w illing to undergo a polygraph exam ination. A lv irez ack

n o w led g e d the conversation and stated that h e w a s still willing to subm it to the polygraph test. A gent B arber and Detective Tsosie drove Alvirez to th e police station to have FBI Special Agent Brian Fuller (Agent Fuller) adm inister the polygraph exam ination.

Agent F uller advised Alvirez of his Miranda 1 rights before adm inistering the polygr ap h exam ination. While Agent Barber and Deputy Tsosie were present, Agent Fuller reviewed the polygraph consent form s w ith Alvirez. During

1 Miranda v. Arizona , 384 U.S. 436 (1966).U N I T E D S TA T E S V

. A LVI R E Z 6

the p olygraph exam , only Agent F uller was presen t an d Alvirez denied jumping on Havatone’s leg and breaking it.

Agent Fuller initiated the p ost-polygraph interview (third interview) by inform ing Alvirez that his result s s i gnaled deception. After receiving the inform ation regarding deception, Alvirez adm itted to stepping har d on Havatone’s leg. Imm ediately following Alvirez’s o ral statem ent, Agent Fuller typed and presented the written statem ent to Alvirez. A lv irez signed the typed statem ent, acknowledging th at it w a s given voluntarily and that it was “true, accurate, and correct.” A g ent B arb er and Detective Tsosie then rejo in ed A g e nt F u ller and Alvirez f

or the continued post-polygraph interview conducted by Agent Barber. Alvirez was subsequently charged with assault resulting in serious bodily injury.

C. Pre-Trial Motion Hearing and Trial

Prior to trial, Alvirez filed a m otion in limine to exclude any reference to his polygraph exam ination. The governm ent responded tha t i t h ad no intention of referring to the polygraph exam ination, unless Alvirez “opened the door” by suggesting that his confession was coerce d or that the governm en t acted im

properly. The district court confirm ed the governm ent’s intention of om itting any refe r e n c e to the polygraph test. The court d e term ined that even though pol y g r aph exam inations are n ot “per se inadm issible,” this circuit was still “leery of polygraph evidence.”

The district court then heard argum ents from both parties regarding what could be considered “openin g the door” for adm ission of polygraph evidence. The defense stated that it

m ight want to clarify the am ount of tim e Agent Fuller spent with Alvirez before Alvirez confessed. The court restated theU N I T E D S TA T E S V

. A LVI R E Z 7

defense’s proposed argum e nt that Alvirez on two p revious occasions denied assaulting Havatone and c o n fessed during th e third interview, where three officers were p resent, and after b eing alone with one o f the officers for an hour and a half. The governm ent took the position that th e defense’s described clarification would “open the d oor” to introduction of the polygraph evidence.

After hear i n g from both sides, the district court recognized that the d efense should be able to m ake the described argum ent as p art of its case. However, the district
court also acknowledged that it would be unfair to allow the defense to state its argum ent without allowing the governm ent to give “an accurate picture of what happened,” including adm inistration of the polyg r aph exam ination. Ultim ately, the district court stated its preference to avoid any

m ention of the polygraph, but deferred ruling on the adm issibility of polygraph evidence until the issue “play[ed]
out in the courtroom .” The d istrict court cla rified that its ruling was in no way intended to lim it the d e fe n s e’s presentation o f it s c ase. The district court then denied the

m otion in limine

. During trial, Officer W illiam s testified that a d oc ume n t presented by the governm ent was a Ce rtificate o f Indian B lood (Certificate), although initially he did not reco g n ize th e docum ent. Officer W illiam s identifi ed the Certificate as a way to determ ine a person’s q uantum of Indian b lood and whether the perso n was a registered m em b er of a tribe. Officer W illiam s testified from exam ining the docum ent that the Certificate was issued by the Colo r a d o River Indian Tribes (CRIT), and that he f elt a raised seal o n the docum ent.U N I T E D S TA T E S V

. A LVI R E Z 8

Defense counsel objected to Officer W illiam s’ attem pted authentication of the C ertificate, challenging Officer W illiam s’ statem ent as hearsay, because Officer W illiam s had no affiliation with the C RIT sufficient to authenticate the Certificate. The governm ent responded that the Ce rtificate

was a self-authenticating docum ent. When defense counsel

was unable to identify a reason th a t the Certificate was not self-authenticating, the judge o verruled the defense o bjection and adm itted the Certificate into evidence.

During Havatone’s testim ony, she identifi ed h er o wn Cert i ficate of Indian Blood. Havatone testified that the Ce rt i fi cate signified that she was an enrolled m em ber of an Indian tribe. Havatone a d d e d that she could feel the raised Hualapai reservation seal on her Certificate. In addition, she
sta t e d that Alvirez was “a Hualapai m em ber of our reservation.” The court also adm itted Havatone’s Certificate into evidence.

Havatone then testified abo u t h e r assault. She recalled that after being dragged outside o f Mary Grace’s house, she

was lying on her stom ach. Alvirez cam e outside and stepped

on her ankle while she w as lying on the concrete. H avatone described fe eling extrem e pain in her leg, and hearing her ankle crack.

Dr. McEleney testified that the fracture to Havatone’s ankle w as severe, necessitati n g s tabilization with surgical grade stainless steel, r e s u lting in the potential long-term effect of post tr aum atic o steoarthritis. The doctor explained that posttraum atic osteoarthritis occurs after p hysical traum a to a lim b, and usually develops earlier than n orm al arthritis. He a l s o testified that the hardware installed in H avatone’ sU N I T E D S TA T E S V

. A LVI R E Z 9

ankle m ay need to be replaced m ore frequ e n t l y than if the hardware had been installed in another area of the body.

After the jury found Alvirez guilty as charged, the district
court im posed a sentence of thirty-seven m onths

. Alvirez filed a tim ely notice of appeal.

II. STANDARDS OF REVIEW

The decision to adm it evidence is reviewed for an abuse of discretion. See McCollough v. J o h n s on, Rodenburg & Lauinger, L

LC
, 637 F.3d 939, 9 53 (9th Cir. 2011). A district court’s acceptance of evidence as authentic is also reviewed for abuse of discretion. See United S tates v. E strada-Eliverio
, 583 F.3d 669, 672 (9th Cir. 2009).

Generally, we review the ruling on a m otion in limine for abuse of discretion. See United S tates v. Ross
, 206 F.3d 896, 898 (9th Cir. 2000). H owever, we review de n ovo whether the ruling precludes the presentation of a defense. See id. at 898–99.

Crim inal sentences are generally reviewed for an abuse o f discretion and are not reversed, unless there is a “procedural

error or substantive unreasonableness.” United States v. Gonzale z -Aparicio
, 663 F.3d 419, 426 (9th Cir. 2011), as amended (citation o m itted). The “interpr e t a t ion and application of the Guidelines is usually reviewed de

novo.

. . . ” Id. (citations o m itted). When the defendant has failed to object, review is for p l ai n e rror. See United States v. Charles , 581 F.3d 927, 932 (9th Cir. 2009).U N I T E D S TA T E S V

. A LVI R E Z 10

W e review a district court’s findings of fact to support a sentencing enhancem ent for clear error. See United States v. Pearson , 274 F.3d 1225, 1234 (9th Cir. 2001).

III. DISCUSSION

A. Determination of Indian Status

Indian status is an essential elem ent of 18 U.S.C. § 1153, “which the governm ent m ust allege in the indictment and
prove b eyond a reasonable doubt.” United States v. Zepeda
, 792 F.3d 1103
, 1 110 (9th C ir. 2015) (en banc) (citation

om itte d). W e apply a two-prong test to determ ine if this elem ent has been m et. See id

. First, the governm ent m ust prove that the defendant has “som e quantum of Indian blood, whether or not that blood derives from a m em ber of a federally recognized tribe,” and second, the governm ent m ust establish that the defendant has “m em bership in, o r affiliation with, a federally recognized tribe.” Id . at 1113.

To satisfy the first prong, the governm ent need only prove that the d efe n d a n t h as “som e” Indian b lood as a d escendant of an Indian parent, grandparent, or great-grandparent. United States v. Bruce
, 394 F.3d 1215, 1223–24 (9th Cir. 2005) (citations om itted). W e ut i l i z e a four-factor test to

asses s p r o o f of the second prong. See id. at 1224. These factors, listed in decreasing order of im portance, are: “1) enrollm ent in a federally recognized tribe; 2) governm ent recognition f

orm a l l y and inform ally through receipt o f assistance available only to individuals who are m em bers, o r

are eligible to becom e m em bers, of fed erally recognized tribes; 3) enjoym ent o f the benefits of affiliation wi th a federally recognized tribe; and 4) social recogni t i o n as

som eone affiliated with a recognized tribe through residenceU N I T E D S TA T E S V

. A LVI R E Z 11

o n a reservation and participation in the social life o f a federally recognized tribe.” Zepeda , 792 F.3d at 1114.

1. Evidence of “Som e” Indian Blood

A person who has a parent, grandpare nt, or greatgrandparent “who is clearly identified as Indian” will generally satisfy the requirem ent that a d efendant has “som e” Indian blood. Bruce , 394 F.3d at 1223–24. A Certificate o f Indian Blood or an enrollm ent certificate m ay also establish a person’s quantum of Indian blood. See id.

Th e governm ent elicited through Officer W illiam s’ testim ony that Mary Grace, Alvirez’s m other, resided on the Hu a lapai Indian Reservation. Although this evidence wa s unrefuted, it is questionable whether it was adequate to m eet the required showing of “som e” Indian blood. Id. (discussing

cases where the quantum of blood w as part of the evidence). W e need not resolve this que s t ion because w e reverse on different grounds.

2. Tribal or Federal Governm ent Recognition

The second prong of the Indi an s tatus elem ent required the governm ent to establish that Alvirez is acknowledged by

a federally recognized tribe o r by the gove rnm ent as an Indian. See id. at 1224. Tribal en ro l lme n t in a federally

reco g n i z ed tribe is one of the four types of evidence considered by courts in assessing the required Indian status. See Zepeda , 792 F.3d at 1114.

The governm ent m oved to adm it Alvirez’s Certificate to

m eet the second prong of the Indian status elem ent. The Certificate indicated that Alvirez w as an enrolled m em ber o fU N I T E D S TA T E S V

. A LVI R E Z 12

the C RIT and th a t h is b lood quantum is one-fourth CRIT,
t h r e e

- e i g h t h s H u a l a p a i
, a n d o n e

- e i g h t h H a v a s up a i

. A d d itionally, Agent Barber testified to A lv irez’s r esid en cy o n the Hualapai reservation, and H avatone testified to Alv i r e z being a m em

ber of the Hualapai reservation.

As in Zepeda
, the governm ent presented no evidence during Alvirez’s trial that any of the tribes listed on his Certificate was a federally recognized tribe. See id

. at 1110. In Zepeda
, we clarified that the determ ination of federal recognition o f a tribe is a question of law to b e d eterm ined by the judge. See id

. at 1114; see also Unite d Sta t es v. RezaRamos , 816 F.3d 1110, 1122 (9th Cir. 2016). W e explained that the g overnm ent “should present to the judge evidence that the tribe was recognized at the tim e o f th e offense, but the j ud g e m ay also consult other evidence that is judicially noticeable or o therwise appropriate f or consideration.” RezaRamos
, 816 F .3d at 1 122 (quoting Zepeda
, 792 F.3d at 1 114) (internal quotation m arks om itted).

The district court adm itted the Certificate as a selfauthenticating docum ent. On appeal, Alvirez challenges the district court’s adm ission of the Certificate a s a selfauthenticating docum ent. The governm ent responds that Alvirez waived his right to raise this issue on app e a l. W e reject the governm ent’s waiver argum ent. When the district
court judge “m akes a definitive rul i n g ” adm itting evidence, there is no n eed to renew the objection to preserve the claim ed error. United States v. Sepulveda-Barraza
, 645 F.3d 1 066, 1 070 (9th Cir. 2011) (quoting Fed. R. Evid. 103(b ) ). During trial, defense counsel objected to adm ission o f the Certificate as hearsay and because the proponent of the Ce rt i ficate was not affiliated with the issuing Tribe. Th e govern me nt responded that the Certificate was a self-U N I T E D S TA T E S V

. A LVI R E Z 13

auth enticating docum ent. After visually exam ining the Certificate, the district court asked defense counsel for a

reason underlying h er position that the Certificate was not a self-authenticating docum ent. When defense c o unsel could
not readily articulate a reason, the district court overruled the objection. Because the district court m ade this definitive ruling o n the adm issibility of the Certificate and because it

was clear, in context, that Alvirez’s objection was that the docum ent h ad not been properly authenticated, Alvirez preserved his objection to the authentication of the Certificate. See id

.

Alvirez contends that docum ents issued by Indian Tribes
cannot be self-authenticating because the tribe s are not political subdivisions as described in Fed. R. Ev id. 9 02(1). 2 Additionally, A lvirez arg u e s that the governm ent could not authenticate the docum ent through Officer W il l i am s’

2 Fed. R. of Evid. 902(1) (2010) provides:

Self-authentication

. . . (1) Dom estic public docum ents under seal. A docum ent bearing a seal purporting to be that of the United States, o r of any State, district, Comm onwealth, territory, or insular possession thereof, or the Panam a C anal Zone, or the Trust Territory of the Pacific Islands, or of a political sub d iv ision, departm ent, officer, o r agency thereof, and a signature purporting to be an attestation or execution.U N I T E D S TA T E S V

. A LVI R E Z 14

testim ony because Officer W illiam s d i d n o t m eet the requirem ent set forth in Fed. R. Evid. 902(2). 3 W e agree.

Authe n t ication is a prerequisite to the adm ission o f evidence, satisfied by establishing that the proferred item is i n fa c t wh at it purports to be. See Orr v. Bank of Am.
, 285 F.3d 764, 773 (9th C ir. 2002), as ame n ded

. Authentication establishes the genuinenes s of evidence and is a special aspect of relevancy. See id. at 773 n.7. Evidence

m ay be authenticated by present ing testim ony f rom an individual who has sufficient fam iliarity with the p r o ffered evidence to identify the evidence and inform the court of the circum stances under which the evidence wa s created. See United States v. Pelisamen
, 641 F. 3 d 399, 411 (9th Cir. 2011). In sum , the individual who authenticates the evidence seeks to convince the court that the proffered evidence is genuinely what it purports to be. See Las Vegas Sands, LLC

v. N ehme
, 632 F. 3 d 5 2 6, 532–33 (9th Cir. 2011). However, certain docum ents are characterized as self-authenticating, requiring no extrinsic evidence of genuineness to be adm itted into evidence. See United S tates v. Mateo-Mendez
, 215 F.3d

3 Fed. R. of Evid. 902(2) (2010) provides:

Self-authentication

. . . (2) Dom estic public docum ents not under seal

. A docum ent purporting to bear the signature in the official capacity of an offi c er or em ployee of any entity included in p aragraph ( 1) hereof, having no seal, if a public o fficer having a seal and having official duties in the district or political subdivision of th e o ffi cer o r

em ployee certifies under se a l that the signer has the official capacity and that the signature is genuine.U N I T E D S TA T E S V

. A LVI R E Z 15

1039, 1043 (9th Cir. 2000) (expla i n ing self-authentication). Pursuant to Fed. R. E vid. 902(1), self-authentication requires

a s e al from an entity listed in the rule and a signature o f attestation or execution. 4 See F ed. R

. Evid. 902(1). Federal Rule o f Evidence 902(1) specifically lists the entiti e s that

m ay issue self-authenticating docum ents and In d ian tribes are not am ong those listed. See Fed. R. Evid. 902(1) (listing the United States; a S tate of the United States; a comm onwealth, territory, or insular possession of the United States; the Panam a Canal Zone; and the Trust T erritory of the Pacific Islands); see al

s o United States v. Weiland
, 420 F .3d 1062, 1072 (9th Cir. 2005) (explaining that a party m ay not circumvent the requirem ents o f authentication when the plain language o f a rule lists the requ i r e m ents necessary for authentication).

The plain l an g uage of Rule 902(1) specifically lists the entities that m ay issue self-authenticating docum ents. The Rule is not am

biguo u s an d must be applied as written. See Gardenhire v. IRS (I

n re Gardenhire)
, 209 F.3d 1145, 1152 (9th C ir. 2 000). Because Indian tribes are not listed am ong the entities that m ay produce self-authenticating docum ents, 5

4 An attestor certifies that a do c u m e n t i s what it purports t o be. See Mateo-Mendez
, 215 F .3d at 1 043. An executor confirm s preparation o f the d o c u m e n t

. See Christopher B. Mueller and Laird C. Kirkpatrick, Authentication and Identification: Rules 901 t o 903, 5 Federal Evidence § 9:30 (3d ed.) (June, 2012), available at Westlaw FEDEV § 9:30.

5 The g overnm ent argues that tribes are “polit i c a l subd i visions” of the United States and thus captured by the text of Rule 902(1). W e d i sagree. Tribes are “sovereigns or quasi sovereigns,” Kiowa Tribe of Okla. v. Mfg. Tech., Inc.
, 523 U.S. 751, 757 (1998), not one o f the political entities into which the f

edera l governm ent is divided, see Santa Clara Pueblo v. Martinez
, 4 36 U.S. 49, 56 (1978) (“A s separate sovereigns p re-existing the Constitution, tribes have historically been regarded as unconstrainedU N I T E D S TA T E S V

. A LVI R E Z 16

the district court abused its discretion in adm itting the Certificate pursuant to Federal Rule of Evidence 902(1) as a

se l f- authenticating docum ent. See United States v. Nguyen
, 4 65 F.3d 1128, 1130 (9th C ir. 2006) 6 (articulating th a t a district court abuses its discretion when it adm its e v i d e nce “based on an erroneous view of the law”) (citation and internal quotation m arks om itted). 7

Alvirez’s Indian status is at the heart o f this m atter. Indeed, a “defendant’s Indian status is an essential elem ent o f

a § 1153 offense which the go v e rnment m ust allege in the indictm ent and prove b eyond a reaso n ab l e doubt.” Bruce
, 394 F.3d at 1229 (citat i o n s om itted). Adm ission of the C ertif icate allowed the g overnm ent to establish b oth elem ents of Indian status. First, the quantum blood i nform ation indicated that Alvirez m et the “s o m e” Indian blood requirem ent. Id. at 1223; see also Re z a

- Ra mos , 816 F.3d at 1121. Second, the Certificate established that Alvirez was an enrolled m em

ber of the C RIT. See Bruce
, 394 F.3d at 1224;

see also Zepeda
, 792 F.3d at 1116. Absent adm ission of the

by those constitutional provisions fram ed specifically as lim itations o n federal or state authority.”).

6 At oral argum ent, the governm ent conceded th a t Fe deral Rule o f Evidence 9 02(4) is inapplicable to this case because, in this case, th ere

was no “custodian that certified that th i s w as a docum ent” from tribal records. Therefore, we do not address whether the d ocum ent could have been adm i tted under Rule 902(4).

7 For the sam e reason, the Certificate was not self-authenticating under Rule 902(2). That rule allow s for the authentication of d ocum ents “purporting t o bear the signature in t he o fficial capacity of an offi ce r or

em ployee of any entity i ncluded in” Rule 9 02(1). Fed. R

. Evid. 902(2). Because t ribes are not am ong the e n t i t i e s included in Rule 902(1), Rule 902(2) is inapplicable.U N I T E D S TA T E S V

. A LVI R E Z 17

Certificate, it is questionable whether the governm ent would have established Alvirez’s Indian status to the satisfaction o f the jury because the only other evidence of Indian status was Havatone’s and Agent B arber’s testim ony that Alvirez lived

on the reservation, and Havatone’s testim ony th a t Alvirez

was a m em

ber of the Hualapai Tribe, a differe n t tr i b e than reflected in the Certificate. Consequently, it was m ore likely
than not that the adm ission o f the Certificate m ateri a ll y affected the verdict. See Wiggan
, 700 F.3d at 1215. Because the error was not harm less, we vacate Al virez’s conviction and rem and for proceedings consistent with the reasoning in this opinion.

B. De nial of Alvirez’s Motion In Lim ine to Exclud e References to Polygraph Evidence

Citing Cr a n e v. Kentucky
, 476 U.S. 683, 690 (1986), Alvirez asserts that the district court erred when it denied his

m otion in limine to exclude r eferences to the polygraph evidence, b ecause it “deprived him of his constitutional right
to present a com

plete d efense.” As discussed above, when the district court denied Alvirez’s m otion in limine
, it acknowledged the defense’s potential argum ent that Alvirez

was coerced into a confessio n dur i ng the third interview. Prior to adm inistering the polygraph, FBI Agent Fuller verified Alvirez’s willingness t o t al k to him and advised Alvirez of his Miranda rights. Agent Fuller asked Alvirez if he h ad b e e n drinking, whether he was w ell rested, and wh e ther he was taking m edications. Alvirez responded tha t he had not drunk alcoholic b everages, but that he was taking phenobarbital and blood p ressure m edication. Alvirez also stated that he was tire d due to a lack of sleep the p revious night. Howev e r , Agent Fuller testified that he did not noteU N I T E D S TA T E S V

. A LVI R E Z 18

any weariness or im

pairm ent, and that Alvirez indicated “he was okay to take the test.”

The governm ent stated that it had no intention of referring
to Alvirez’s polygraph exam ination or its results in its casein-chief. However, once the governm ent learned that Alvirez planned to pursue the defense that m ultiple interrogations and alleged coercion led to h is co n fession, the prosecution responded that the defense would be opening the door for the prosecution to discuss th e polygraph exam ination and its results. The d istrict court denied Alvirez’s m otion in limine seeking to exclude polygraph evidence. H owever, the district
court specifically noted that its ruling was in no way intended
to deprive Alvirez of his right to p resent a com plete defense.

Alvirez n ow argues that he chose not to raise the m u ltiple interrogation de fe nse f

or fear that the prosecution would introduce the polygraph exam ination evidence, which would be unduly prejudici a l

. According to Alvirez, the district court’s ruling deprived him o f an o pportunity to p resent a

com plete defense, as was the case in C rane

.

In Crane
, the defend ant was convicted of m urder. See Crane
, 4 76 U .S. at 686. When he was initia l l y arr ested, the defendant was sixteen y ears old. See id. at 684. A fter being indicted, the defendant m oved to suppress h is confession. See id. at 684–85. During the evidentiary hearing, th e defendant testified that he had been h eld for hours in a windowless room , surrounded b y up to s i x p o lice officers, repeatedly denied his requests to contac t his m other, and forced into m aking the confession

. S ee id. at 6 85. The trial court denied the m otion. See id.U N I T E D S TA T E S V

. A LVI R E Z 19

During his opening statem ent, defense counsel stated that there were a num

ber o f reasons the defend an t ’ s confession should not be considered trustworthy o r credible. See id. In response to this statem ent, the prosecution m oved in limine to exclude the defense’s introduction of evidence relating to the circum stances underlying the defendant’s confession. See id.
at 685–86. The prosecution argued that the circum s t an c e s related to the voluntariness of the statem ent, and that the
court had alr ea dy r e solved that issue. See id. at 686. The

c o urt g ranted the prosecution’s m otion. See id. Th e Kentucky Suprem e Court upheld the trial court’s ruling. See id.

The United States S uprem e Court reversed, h olding that the defendant’s d

ue p rocess rights under th e Fo urteenth Am endm ent and the C onfrontation Clause were violated. See id. at 690. The Court held that the m anner in which a confession is elicited is im portant to d e term ine the “reliability and credibility” of the confession. Id. at 691. The Suprem e Court noted that ev e n voluntary statem ents m ay not be conclusive of guilt. Se e id. at 689. Excluding evidence relevant to the credibil i ty o f the confession was a clear violation of the defendant’s right to present a defense and denied him a fair trial. See id. at 690–91.

In this circuit, it is well-established that a polygraph

exam ination may n ot be adm itted to prove the veracity o f

s ta t e ments m ade during the exam ination. See United States

v. Bowen
, 857 F.2d 1 337, 1 34 1 ( 9th Cir. 1988). However, polygraph evidence m ay be adm issible as “an o perative f act.” Id. During the hearing on the m otion in limine
, the district
court expressed the view that polygraph tests should rarely be

m entioned during trial. The d istrict court expressed that i ts “instinct [was] it shouldn’t com e in.

. . . ” However, theU N I T E D S TA T E S V

. A LVI R E Z 20

d istrict court clarified that it w ould not lim it Alvire z ’s d efense, as he should be able to present “whatever d e fe ns e you can.” Nevertheless, the court f orewarned Alvirez that his strategy m ig ht result in a reference to the polygraph test by the governm ent. The district court’s denial of the m otion in limine did not prevent Alvirez f rom calling k ey witnesses, from p resenting specific inform ation in support o f his defense, or fro m refuting an essential elem ent of the governme n t ’s case. See United States v. Pineda-Doval
, 614 F .3d 1019, 1033 & n .7 (9th Cir. 20 1 0) (explaining that procedures violating a defendant’s right to present a defense involved evid e n tiary rules that “underm ined fundam ental elem ents o f the defendant’s defense”). In sum , A lvirez’s constitutional right to p resent a com plete defense was honored. See id. Unlike the defendant in Crane
, Alvirez was not denied the opportunity to present his defense. Rather, he elected not to present his defense as a legal strategy. See
, e.g. , United States v. Main
, 443 F.2d 900, 901 (9th Cir. 1 971) (articulating that defense counsel’s inform ed judgm ent n ot to present an intoxication defense, a s a matter of strategy, did not deprive defendant of a fair trial).

C. Application of the Sentencing Guidelines

Alvirez contends that the district court plainly erred in its calculation of his sentencing by applying a s e v en-levelU N I T E D S TA T E S V

. A LVI R E Z 21

enhancem ent under U.S.S.G. § 2A2.2 8
, 9 for infliction o f a perm anent or life-threatening bodily injury. The governm ent counters that Alvirez waived his right to appeal the enhancem ent when h e failed to o bject to the p re

- sentence report or the calculated sentencing range.

A defendant does not waive his right to appeal a di s tr i ct court’s leg a l d eterm inations sim ply because he failed to object. See United States v. Jimenez
, 25 8 F.3d 1120, 1123 (9th Cir. 2001). Instead, we review for plain error. See id. at 1124.

8 Alvirez was sentenced o n May 27, 2011. Therefore, references t o the United States Sentencing Guidelines Manual ( U.S.S.G. or Guidelines) are to the Novem

b er 2010 Guidelines.

9 § 2A2.2. Aggravated Assault

(a) Base Offense Level: 14

(b) Specific Offense Characteristics

. . . (3) If the victim sustained bodily injury, i n c rease the offense level according to the seriousness of the injury:

Degree of Bodily Injury Increase in Level
(A) Bodily Injury add 3
(B) Serious Bodily Injury add 5
(C) Perm anent or LifeThreatening Bodily Injury add 7U N I T E D S TA T E S V

. A LVI R E Z 22

“Plain error i s ( 1 ) an error that (2) is plain, (3) affects substant i al rights, and (4) seriously affects the fairness, integrity or p u

b lic rep utatio n o f

ju d icial proceedings.” United States v. Blinkinsop
, 606 F.3d 1110, 1114 n.2 (9th C ir. 2 010) (citation om itted). An error is plain when it is “cl e ar ” o r “obvious.” Charles , 581 F.3d at 933 (citation om itted).

U n i t e d S t a t e s S e n t e n c i n g G u i d e l i n e S e c t i o n 2A2.2(b)(3)(C) al l o ws the district court to increase the defendant’s offense lev el by seven levels if the o ffense resulted in perm anent or life-threatening injury. T he district court’s factual findings underpin ning its application of a sentence enhancem ent ar e re v i ewed for clear error. See Pearson
, 2 74 F.3d at 1234–35. The district court credited Dr. McEleney’s testim ony that Havatone’s ankle required repair with surgical grade stee l and n i n e screws to stabilize it, that it m ay be necessary to replace this hardware m ore often, and that the long-term effects of this injury m ay cause posttraum atic osteoarthritis. The district court comm itted no clear error in equ a t in g these effects to a perm anent bodily injury. See i d

. (approving the d istrict court’s reliance on eviden c e from the trial to apply a sentencing enhancem ent). Because the district court properly applied the enhancem ent, Alvirez cannot show plain error. See United States v. TafoyaMontelongo , 659 F.3d 738, 744 (9th Cir. 2011).

D. Double Jeopardy

Alvirez urges us to enter a judgm ent of acquittal, r a th e r than rem and for a new trial, because there was insufficient evidence to establish his Indian status. The d ouble jeopardy clause does not bar retrial after a reversal b a s e d on the

erroneous adm ission o f evidence, however, if this evidence

was nevertheless sufficient to support the convictio n

. S eeU N I T E D S TA T E S V

. A LVI R E Z 23

Lockhart v. Nelson
, 488 U.S. 33, 40 (1988). As w e discussed above, here, a rational trier of fact could determ ine that th e evidence adduced at trial—includi n g the Certificate and
tes t i m ony from H avatone and Agent Barber—established both elem ents of Indian status: “som e” Indian blo o d
, and

m em bership or affiliation in a f ederally re co gnized tribe at the tim e o f the offense. See Bruce
, 394 F.3d at 1223; see also Reza-Ramos
, 8 16 F .3d at 1 121; Ze p e d a , 792 F.3d at 1113. 1 0 As “ any rational trier of fact could h ave found the essential elem ent[] [of Indian st atus] beyond a reasonable doubt,” sufficient evidence supports this elem ent and retrial d oes not offend the double jeopardy clause. J a c k s on v. V irginia , 443 U.S. 307, 319 (1979) (em phasis in the original).

IV. SUMMARY

In accordance with our recent en banc decision in Zepeda
, we conclude that the determ ination of federal recognition o f

a tribe is a question of law to be resolved by th e judge. W e also conclude that th e district court abused its discretion when it determ ined that the Certificate of Indian Blood offered into evidence by the g overnm ent was a se l f- authenticating docum ent under Federal Rule of Evidence 902(1 )

. Be cause the error was not h arm less, we reverse the conviction

. The district court di d n o t abuse its discretion when it denied the

m otion in limine
, thus it did not deny Al v i r e z his right to present a defense. Finally, the district court’s application o f the sentencing enhancem ent for p erm anent bodily injury was not clearly erroneous.

10 Although t

he Certificate i s dated January 18, 2011, a reasonable juror could determ ine t

hat the certified d ocum ent was printed b y the T ribe o n that date, and that Alvirez w as an Indian at th e t i m e o f the charged offense.U N I T E D S TA T E S V

. A LVI R E Z 24

C O N V I C T I O N R E V E R S E D A N D C A S E REMANDED.