FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EDGAR MIKE ALVIREZ, JR.,

Defendant-Appellant.

No. 11-10244

D.C. No.

3:10-cr-08049-DGC-1

OPINION

Appeal from the United States District Court

for the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and Submitted June 12, 2012

San Francisco, California

Filed March 14, 2013

Withdrawn April 15, 2013

Resubmitted July 15, 2016

Filed August 1, 2016

Before: Dorothy W. Nelson, Johnnie B. Rawlinson,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Rawlinson
2 UNITED STATES V. ALVIREZ

SUMMARY*

Criminal Law

The panel reversed a conviction for assault resulting in

serious bodily injury on an Indian reservation, in violation of

18 U.S.C. §§ 1153 and 113(a)(6), and remanded.

The panel held that the district court abused its discretion

when it determined that a Certificate of Indian Blood offered

into evidence by the government in order to establish Indian

status, an essential element of § 1153, was a

self-authenticating document under Fed. R. Evid. 902(1). 

The panel held that this error was not harmless.

The panel held that the district court did not abuse its

discretion in denying the defendant’s motion in limine to

exclude references to polygraph evidence, where the

defendant, who elected not to present his

multiple-interrogation defense as a legal strategy, was not

denied the opportunity to present his defense.

The panel held that the district court cannot show plain

error in the district court’s application of enhancement under

U.S.S.G. § 2A2.2 for infliction of permanent or

life-threatening injury.

The panel held that double jeopardy does not bar retrial

after reversal in this case because the erroneously-admitted

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. ALVIREZ 3

Certificate of Indian Blood was nevertheless sufficient

evidence to support the conviction.

COUNSEL

Daniel L. Kaplan (argued), Assistant Federal Public

Defender; Jon M. Sands, Federal Public Defender; Office of

the Federal Public Defender, Phoenix, Arizona, for

Defendant-Appellant.

Heather H. Sechrist (argued), Assistant United States

Attorney; United States Attorney’s Office, Phoenix, Arizona;

for Plaintiff-Appellee.

OPINION

RAWLINSON, Circuit Judge:

Edgar Alvirez, 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 have jurisdiction pursuant to 28 U.S.C. § 1291 to

review the district court’s judgment. We conclude that the

district court abused its discretion when it admitted the

unauthenticated Certificate of Indian Blood as evidence to

meet the elements of the governing statute. Accordingly, we

reverse Alvirez’s conviction and remand for further

proceedings. Because other issues raised by Alvirez will

likely arise in the event of a retrial, we address them now in
4 UNITED STATES V. ALVIREZ

the interest of judicial economy. See United States v.

Wiggan, 700 F.3d 1204, 1216 (9th Cir. 2012).

I. BACKGROUND

A. The Assault

On November 3, 2009, at the home of Mary Grace

Alvirez (Mary Grace), Drametria Havatone (Havatone)

discussed the fact that Alvirez, Mary Grace’s son, was not

assisting his mother financially. Havatone initiated this

conversation in the presence of Alvirez, Mary Grace, Brittany

Davis (Davis), Alvirez’s girlfriend and Havatone’s cousin,

and Denisha Siyuja (Siyuja). As the discussion progressed,

a physical altercation ensued. Davis and Siyuja punched and

kicked Havatone as they forcibly and physically removed her

from the house.

Having forced Havatone outside, Davis and Siyuja

continued the physical assault, eventually knockingHavatone

to the ground. While Havatone was prone on the concrete,

Alvirez stepped on Havatone’s ankle.

Hualapai Nation Police Officer Michael Williams(Officer

Williams) was dispatched to the scene. Finding Havatone

lying in the road, Officer Williams asked Havatone if she

needed medical assistance, to which she responded

affirmatively. Officer Williams called paramedics, who

drove Havatone to the Hualapai Mountain Medical Center. 

She was subsequently transferred to the Kingman Regional

Medical Center, where Dr. Emmett McEleney (Dr.

McEleney), an orthopedic surgeon, repaired her broken ankle

by inserting nine screws and a metal plate.
UNITED STATES V. ALVIREZ 5

B. The Investigation

Officer Williams initially obtained statements from Mary

Grace, Davis, and Alvirez (first interview). Once Officer

Williams learned that Havatone’s ankle was broken, he

reclassified the crime from a simple assault to an aggravated

assault, which required referral to the Federal Bureau of

Investigation (FBI).

On November 9, 2009, FBI Special Agent Margo Barber

(Agent Barber) and Detective Sam Tsosie (Detective Tsosie)

of the Hualapai Nation Police Department, interviewed

Alvirez outside his home (second interview). During the

second interview, the investigators asked Alvirez if he would

submit to a polygraph test. Alvirez acknowledged that he

knew what a polygraph test was and agreed to submit to the

test.

On January 26, 2010, Agent Barber and Detective Tsosie

arrived at Alvirez’s home to continue the investigation. 

Agent Barber asked Alvirez if he remembered stating that he

would be willing to undergo a polygraph examination. 

Alvirez acknowledged the conversation and stated that he was

still willing to submit to the polygraph test. Agent Barber and

Detective Tsosie drove Alvirez to the police station to have

FBI Special Agent Brian Fuller (Agent Fuller) administer the

polygraph examination.

Agent Fuller advised Alvirez of his Miranda1rights

before administering the polygraph examination. While

Agent Barber and Deputy Tsosie were present, Agent Fuller

reviewed the polygraph consent forms with Alvirez. During

 

1 Miranda v. Arizona, 384 U.S. 436 (1966).
6 UNITED STATES V. ALVIREZ

the polygraph exam, only Agent Fuller was present and

Alvirez denied jumping on Havatone’s leg and breaking it.

Agent Fuller initiated the post-polygraph interview (third

interview) by informing Alvirez that his results signaled

deception. After receiving the information regarding

deception, Alvirez admitted to stepping hard on Havatone’s

leg. Immediately following Alvirez’s oral statement, Agent

Fuller typed and presented the written statement to Alvirez. 

Alvirez signed the typed statement, acknowledging that it was

given voluntarily and that it was “true, accurate, and correct.” 

Agent Barber and Detective Tsosie then rejoinedAgent Fuller

and Alvirez for 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 motion in limine to exclude

any reference to his polygraph examination. The government

responded that it had no intention of referring to the

polygraph examination, unless Alvirez “opened the door” by

suggesting that his confession was coerced or that the

government acted improperly. The district court confirmed

the government’s intention of omitting any reference to the

polygraph test. The court determined that even though

polygraph examinations are not “per se inadmissible,” this

circuit was still “leery of polygraph evidence.”

The district court then heard arguments from both parties

regarding what could be considered “opening the door” for

admission of polygraph evidence. The defense stated that it

might want to clarify the amount of time Agent Fuller spent

with Alvirez before Alvirez confessed. The court restated the
UNITED STATES V. ALVIREZ 7

defense’s proposed argument that Alvirez on two previous

occasions denied assaulting Havatone and confessed during

the third interview, where three officers were present, and

after being alone with one of the officers for an hour and a

half. The government took the position that the defense’s

described clarification would “open the door” to introduction

of the polygraph evidence.

After hearing from both sides, the district court

recognized that the defense should be able to make the

described argument as part of its case. However, the district

court also acknowledged that it would be unfair to allow the

defense to state its argument without allowing the

government to give “an accurate picture of what happened,”

including administration of the polygraph examination. 

Ultimately, the district court stated its preference to avoid any

mention of the polygraph, but deferred ruling on the

admissibility of polygraph evidence until the issue “play[ed]

out in the courtroom.” The district court clarified that its

ruling was in no way intended to limit the defense’s

presentation of its case. The district court then denied the

motion in limine.

During trial, Officer Williams testified that a document

presented by the government was a Certificate of Indian

Blood (Certificate), although initially he did not recognize the

document. Officer Williams identified the Certificate as a

way to determine a person’s quantum of Indian blood and

whether the person was a registered member of a tribe. 

Officer Williams testified from examining the document that

the Certificate was issued by the Colorado River Indian

Tribes (CRIT), and that he felt a raised seal on the document.
8 UNITED STATES V. ALVIREZ

Defense counsel objected to Officer Williams’ attempted

authentication of the Certificate, challenging Officer

Williams’ statement as hearsay, because Officer Williams

had no affiliation with the CRIT sufficient to authenticate the

Certificate. The government responded that the Certificate

was a self-authenticating document. When defense counsel

was unable to identify a reason that the Certificate was not

self-authenticating, the judge overruled the defense objection

and admitted the Certificate into evidence.

During Havatone’s testimony, she identified her own

Certificate of Indian Blood. Havatone testified that the

Certificate signified that she was an enrolled member of an

Indian tribe. Havatone added that she could feel the raised

Hualapai reservation seal on her Certificate. In addition, she

stated that Alvirez was “a Hualapai member of our

reservation.” The court also admitted Havatone’s Certificate

into evidence.

Havatone then testified about her assault. She recalled

that after being dragged outside of Mary Grace’s house, she

was lying on her stomach. Alvirez came outside and stepped

on her ankle while she was lying on the concrete. Havatone

described feeling extreme pain in her leg, and hearing her

ankle crack.

Dr. McEleney testified that the fracture to Havatone’s

ankle was severe, necessitating stabilization with surgical

grade stainless steel, resulting in the potential long-term

effect of posttraumatic osteoarthritis. The doctor explained

that posttraumatic osteoarthritis occurs after physical trauma

to a limb, and usually develops earlier than normal arthritis. 

He also testified that the hardware installed in Havatone’s
UNITED STATES V. ALVIREZ 9

ankle may need to be replaced more frequently than if the

hardware had been installed in another area of the body.

After the jury found Alvirez guilty as charged, the district

court imposed a sentence of thirty-seven months. Alvirez

filed a timely notice of appeal.

II. STANDARDS OF REVIEW

The decision to admit evidence is reviewed for an abuse

of discretion. See McCollough v. Johnson, Rodenburg &

Lauinger, LLC, 637 F.3d 939, 953 (9th Cir. 2011). A district

court’s acceptance of evidence as authentic is also reviewed

for abuse of discretion. See United States v. Estrada-Eliverio,

583 F.3d 669, 672 (9th Cir. 2009).

Generally, we review the ruling on a motion in limine for

abuse of discretion. See United States v. Ross, 206 F.3d 896,

898 (9th Cir. 2000). However, we review de novo whether

the ruling precludes the presentation of a defense. See id. at

898–99.

Criminal sentences are generally reviewed for an abuse of

discretion and are not reversed, unless there is a “procedural

error or substantive unreasonableness.” United States v.

Gonzalez-Aparicio, 663 F.3d 419, 426 (9th Cir. 2011), as

amended (citation omitted). The “interpretation and

application of the Guidelines is usually reviewed de

novo. . . .” Id. (citations omitted). When the defendant has

failed to object, review is for plain error. See United States

v. Charles, 581 F.3d 927, 932 (9th Cir. 2009).
10 UNITED STATES V. ALVIREZ

We review a district court’s findings of fact to support a

sentencing enhancement 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 element of 18 U.S.C. § 1153,

“which the government must allege in the indictment and

prove beyond a reasonable doubt.” United States v. Zepeda,

792 F.3d 1103, 1110 (9th Cir. 2015) (en banc) (citation

omitted). We apply a two-prong test to determine if this

element has been met. See id. First, the government must

prove that the defendant has “some quantum of Indian blood,

whether or not that blood derives from a member of a

federally recognized tribe,” and second, the government must

establish that the defendant has “membership in, or affiliation

with, a federally recognized tribe.” Id. at 1113.

To satisfy the first prong, the government need only prove

that the defendant has “some” Indian blood as a descendant

of an Indian parent, grandparent, or great-grandparent. 

United States v. Bruce, 394 F.3d 1215, 1223–24 (9th Cir.

2005) (citations omitted). We utilize a four-factor test to

assess proof of the second prong. See id. at 1224. These

factors, listed in decreasing order of importance, are: 

“1) enrollment in a federally recognized tribe; 2) government

recognition formally and informally through receipt of

assistance available only to individuals who are members, or

are eligible to become members, of federally recognized

tribes; 3) enjoyment of the benefits of affiliation with a

federally recognized tribe; and 4) social recognition as

someone affiliated with a recognized tribe through residence
UNITED STATES V. ALVIREZ 11

on a reservation and participation in the social life of a

federally recognized tribe.” Zepeda, 792 F.3d at 1114.

1. Evidence of “Some” Indian Blood

A person who has a parent, grandparent, or greatgrandparent “who is clearly identified as Indian” will

generally satisfy the requirement that a defendant has “some”

Indian blood. Bruce, 394 F.3d at 1223–24. A Certificate of

Indian Blood or an enrollment certificate may also establish

a person’s quantum of Indian blood. See id.

The government elicited through Officer Williams’

testimony that Mary Grace, Alvirez’s mother, resided on the

Hualapai Indian Reservation. Although this evidence was

unrefuted, it is questionable whether it was adequate to meet

the required showing of “some” Indian blood. Id. (discussing

cases where the quantum of blood was part of the evidence). 

We need not resolve this question because we reverse on

different grounds.

2. Tribal or Federal Government Recognition

The second prong of the Indian status element required

the government to establish that Alvirez is acknowledged by

a federally recognized tribe or by the government as an

Indian. See id. at 1224. Tribal enrollment in a federally

recognized 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 government moved to admit Alvirez’s Certificate to

meet the second prong of the Indian status element. The

Certificate indicated that Alvirez was an enrolled member of
12 UNITED STATES V. ALVIREZ

the CRIT and that his blood quantum is one-fourth CRIT,

three-eighths Hualapai, and one-eighth Havasupai. 

Additionally, Agent Barber testified to Alvirez’s residency on

the Hualapai reservation, and Havatone testified to Alvirez

being a member of the Hualapai reservation.

As in Zepeda, the government 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 determination of federal

recognition of a tribe is a question of law to be determined by

the judge. See id. at 1114; see also United States v. RezaRamos, 816 F.3d 1110, 1122 (9th Cir. 2016). We explained

that the government “should present to the judge evidence

that the tribe was recognized at the time of the offense, but

the judge may also consult other evidence that is judicially

noticeable or otherwise appropriate for consideration.” RezaRamos, 816 F.3d at 1122 (quoting Zepeda, 792 F.3d at 1114)

(internal quotation marks omitted).

The district court admitted the Certificate as a selfauthenticating document. On appeal, Alvirez challenges the

district court’s admission of the Certificate as a selfauthenticating document. The government responds that

Alvirez waived his right to raise this issue on appeal. We

reject the government’s waiver argument. When the district

court judge “makes a definitive ruling” admitting evidence,

there is no need to renew the objection to preserve the

claimed error. United States v. Sepulveda-Barraza, 645 F.3d

1066, 1070 (9th Cir. 2011) (quoting Fed. R. Evid. 103(b)). 

During trial, defense counsel objected to admission of the

Certificate as hearsay and because the proponent of the

Certificate was not affiliated with the issuing Tribe. The

government responded that the Certificate was a self-
UNITED STATES V. ALVIREZ 13

authenticating document. After visually examining the

Certificate, the district court asked defense counsel for a

reason underlying her position that the Certificate was not a

self-authenticating document. When defense counsel could

not readily articulate a reason, the district court overruled the

objection. Because the district court made this definitive

ruling on the admissibility of the Certificate and because it

was clear, in context, that Alvirez’s objection was that the

document had not been properly authenticated, Alvirez

preserved his objection to the authentication of the

Certificate. See id.

Alvirez contends that documents issued by Indian Tribes

cannot be self-authenticating because the tribes are not

political subdivisions as described in Fed. R. Evid. 902(1).2

Additionally, Alvirez argues that the government could not

authenticate the document through Officer Williams’

 

2

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

Self-authentication

. . .

(1) Domestic public documents under seal. A

document bearing a seal purporting to be that of the

United States, or of any State, district, Commonwealth,

territory, or insular possession thereof, or the Panama

Canal Zone, or the Trust Territory of the Pacific

Islands, or of a political subdivision, department,

officer, or agency thereof, and a signature purporting to

be an attestation or execution.
14 UNITED STATES V. ALVIREZ

testimony because Officer Williams did not meet the

requirement set forth in Fed. R. Evid. 902(2).3 We agree.

Authentication is a prerequisite to the admission of

evidence, satisfied by establishing that the proferred item is

in fact what it purports to be. See Orr v. Bank of Am.,

285 F.3d 764, 773 (9th Cir. 2002), as amended. 

Authentication establishes the genuineness of evidence and

is a special aspect of relevancy. See id. at 773 n.7. Evidence

may be authenticated by presenting testimony from an

individual who has sufficient familiarity with the proffered

evidence to identify the evidence and inform the court of the

circumstances under which the evidence was created. See

United States v. Pelisamen, 641 F.3d 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. Nehme, 632 F.3d 526, 532–33 (9th Cir. 2011). However,

certain documents are characterized as self-authenticating,

requiring no extrinsic evidence of genuineness to be admitted

into evidence. See United States v. Mateo-Mendez, 215 F.3d

 

3

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

Self-authentication

. . .

(2) Domestic public documents not under seal. A

document purporting to bear the signature in the official

capacity of an officer or employee of any entity

included in paragraph (1) hereof, having no seal, if a

public officer having a seal and having official duties in

the district or political subdivision of the officer or

employee certifies under seal that the signer has the

official capacity and that the signature is genuine.
UNITED STATES V. ALVIREZ 15

1039, 1043 (9th Cir. 2000) (explaining self-authentication). 

Pursuant to Fed. R. Evid. 902(1), self-authentication requires

a seal from an entity listed in the rule and a signature of

attestation or execution.4See Fed. R. Evid. 902(1). Federal

Rule of Evidence 902(1) specifically lists the entities that

may issue self-authenticating documents and Indian tribes are

not among those listed. See Fed. R. Evid. 902(1) (listing the

United States; a State of the United States; a commonwealth,

territory, or insular possession of the United States; the

Panama Canal Zone; and the Trust Territory of the Pacific

Islands); see also United States v. Weiland, 420 F.3d 1062,

1072 (9th Cir. 2005) (explaining that a party may not

circumvent the requirements of authentication when the plain

language of a rule lists the requirements necessary for

authentication).

The plain language of Rule 902(1) specifically lists the

entities that may issue self-authenticating documents. The

Rule is not ambiguous and must be applied as written. See

Gardenhire v. IRS (In re Gardenhire), 209 F.3d 1145, 1152

(9th Cir. 2000). Because Indian tribes are not listed among

the entities that may produce self-authenticating documents,5

4 An attestor certifies that a document is what it purports to be. See

Mateo-Mendez, 215 F.3d at 1043. An executor confirms preparation of

the document. See Christopher B. Mueller and Laird C. Kirkpatrick,

Authentication and Identification: Rules 901 to 903, 5 Federal Evidence

§ 9:30 (3d ed.) (June, 2012), available at Westlaw FEDEV § 9:30.

5 The government argues that tribes are “political subdivisions” of the

United States and thus captured by the text of Rule 902(1). We disagree. 

Tribes are “sovereigns or quasi sovereigns,” Kiowa Tribe of Okla. v. Mfg.

Tech., Inc., 523 U.S. 751, 757 (1998), not one of the political entities into

which the federal government is divided, see Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 56 (1978) (“As separate sovereigns pre-existing

the Constitution, tribes have historically been regarded as unconstrained
16 UNITED STATES V. ALVIREZ

the district court abused its discretion in admitting the

Certificate pursuant to Federal Rule of Evidence 902(1) as a

self-authenticating document. See United States v. Nguyen,

465 F.3d 1128, 1130 (9th Cir. 2006)6(articulating that a

district court abuses its discretion when it admits evidence

“based on an erroneous view of the law”) (citation and

internal quotation marks omitted).7

Alvirez’s Indian status is at the heart of this matter. 

Indeed, a “defendant’s Indian status is an essential element of

a § 1153 offense which the government must allege in the

indictment and prove beyond a reasonable doubt.” Bruce,

394 F.3d at 1229 (citations omitted). Admission of the

Certificate allowed the government to establish both elements

of Indian status. First, the quantum blood information

indicated that Alvirez met the “some” Indian blood

requirement. Id. at 1223; see also Reza-Ramos, 816 F.3d at

1121. Second, the Certificate established that Alvirez was an

enrolled member of the CRIT. See Bruce, 394 F.3d at 1224;

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

by those constitutional provisions framed specifically as limitations on

federal or state authority.”).

6 At oral argument, the government conceded that Federal Rule of

Evidence 902(4) is inapplicable to this case because, in this case, there

was no “custodian that certified that this was a document” from tribal

records. Therefore, we do not address whether the document could have

been admitted under Rule 902(4).

7 For the same reason, the Certificate was not self-authenticating under

Rule 902(2). That rule allows for the authentication of documents

“purporting to bear the signature in the official capacity of an officer or

employee of any entity included in” Rule 902(1). Fed. R. Evid. 902(2). 

Because tribes are not among the entities included in Rule 902(1), Rule

902(2) is inapplicable.
UNITED STATES V. ALVIREZ 17

Certificate, it is questionable whether the government would

have established Alvirez’s Indian status to the satisfaction of

the jury because the only other evidence of Indian status was

Havatone’s and Agent Barber’s testimony that Alvirez lived

on the reservation, and Havatone’s testimony that Alvirez

was a member of the Hualapai Tribe, a different tribe than

reflected in the Certificate. Consequently, it was more likely

than not that the admission of the Certificate materially

affected the verdict. See Wiggan, 700 F.3d at 1215. Because

the error was not harmless, we vacate Alvirez’s conviction

and remand for proceedings consistent with the reasoning in

this opinion.

B. Denial of Alvirez’s Motion In Limine to Exclude

References to Polygraph Evidence

Citing Crane v. Kentucky, 476 U.S. 683, 690 (1986),

Alvirez asserts that the district court erred when it denied his

motion in limine to exclude references to the polygraph

evidence, because it “deprived him of his constitutional right

to present a complete defense.” As discussed above, when

the district court denied Alvirez’s motion in limine, it

acknowledged the defense’s potential argument that Alvirez

was coerced into a confession during the third interview. 

Prior to administering the polygraph, FBI Agent Fuller

verified Alvirez’s willingness to talk to him and advised

Alvirez of his Miranda rights. Agent Fuller asked Alvirez if

he had been drinking, whether he was well rested, and

whether he was taking medications. Alvirez responded that

he had not drunk alcoholic beverages, but that he was taking

phenobarbital and blood pressure medication. Alvirez also

stated that he was tired due to a lack of sleep the previous

night. However, Agent Fuller testified that he did not note
18 UNITED STATES V. ALVIREZ

any weariness or impairment, and that Alvirez indicated “he

was okay to take the test.”

The government stated that it had no intention of referring

to Alvirez’s polygraph examination or its results in its casein-chief. However, once the government learned that Alvirez

planned to pursue the defense that multiple interrogations and

alleged coercion led to his confession, the prosecution

responded that the defense would be opening the door for the

prosecution to discuss the polygraph examination and its

results. The district court denied Alvirez’s motion in limine

seeking to exclude polygraph evidence. However, the district

court specifically noted that its ruling was in no way intended

to deprive Alvirez of his right to present a complete defense.

Alvirez now argues that he chose not to raise the multiple

interrogation defense for fear that the prosecution would

introduce the polygraph examination evidence, which would

be unduly prejudicial. According to Alvirez, the district

court’s ruling deprived him of an opportunity to present a

complete defense, as was the case in Crane.

In Crane, the defendant was convicted of murder. See

Crane, 476 U.S. at 686. When he was initially arrested, the

defendant was sixteen years old. See id. at 684. After being

indicted, the defendant moved to suppress his confession. 

See id. at 684–85. During the evidentiary hearing, the

defendant testified that he had been held for hours in a

windowless room, surrounded by up to six police officers,

repeatedly denied his requests to contact his mother, and

forced into making the confession. See id. at 685. The trial

court denied the motion. See id.
UNITED STATES V. ALVIREZ 19

During his opening statement, defense counsel stated that

there were a number of reasons the defendant’s confession

should not be considered trustworthy or credible. See id. In

response to this statement, the prosecution moved in limine to

exclude the defense’s introduction of evidence relating to the

circumstances underlying the defendant’s confession. See id.

at 685–86. The prosecution argued that the circumstances

related to the voluntariness of the statement, and that the

court had already resolved that issue. See id. at 686. The

court granted the prosecution’s motion. See id. The

Kentucky Supreme Court upheld the trial court’s ruling. See

id.

The United States Supreme Court reversed, holding that

the defendant’s due process rights under the Fourteenth

Amendment and the Confrontation Clause were violated. See

id. at 690. The Court held that the manner in which a

confession is elicited is important to determine the “reliability

and credibility” of the confession. Id. at 691. The Supreme

Court noted that even voluntary statements may not be

conclusive of guilt. See id. at 689. Excluding evidence

relevant to the credibility of 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

examination may not be admitted to prove the veracity of

statements made during the examination. See United States

v. Bowen, 857 F.2d 1337, 1341 (9th Cir. 1988). However,

polygraph evidence may be admissible as “an operative fact.” 

Id. During the hearing on the motion in limine, the district

court expressed the view that polygraph tests should rarely be

mentioned during trial. The district court expressed that its

“instinct [was] it shouldn’t come in. . . .” However, the
20 UNITED STATES V. ALVIREZ

district court clarified that it would not limit Alvirez’s

defense, as he should be able to present “whatever defense

you can.” Nevertheless, the court forewarned Alvirez that his

strategy might result in a reference to the polygraph test by

the government. The district court’s denial of the motion in

limine did not prevent Alvirez from calling key witnesses,

from presenting specific information in support of his

defense, or from refuting an essential element of the

government’s case. See United States v. Pineda-Doval,

614 F.3d 1019, 1033 & n.7 (9th Cir. 2010) (explaining that

procedures violating a defendant’s right to present a defense

involved evidentiary rules that “undermined fundamental

elements of the defendant’s defense”). In sum, Alvirez’s

constitutional right to present a complete 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. 1971)

(articulating that defense counsel’s informed judgment not to

present an intoxication defense, as 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 seven-level
UNITED STATES V. ALVIREZ 21

enhancement under U.S.S.G. § 2A2.28, 9

for infliction of a

permanent or life-threatening bodily injury. The government

counters that Alvirez waived his right to appeal the

enhancement when he failed to object to the pre-sentence

report or the calculated sentencing range.

A defendant does not waive his right to appeal a district

court’s legal determinations simply because he failed to

object. See United States v. Jimenez, 258 F.3d 1120, 1123

(9th Cir. 2001). Instead, we review for plain error. See id. at

1124.

8 Alvirez was sentenced on May 27, 2011. Therefore, references to the

United States Sentencing Guidelines Manual (U.S.S.G. or Guidelines) are

to the November 2010 Guidelines.

 

9

 § 2A2.2. Aggravated Assault

(a) Base Offense Level: 14

(b) Specific Offense Characteristics

. . .

(3) If the victim sustained bodily injury, increase 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) Permanent or LifeThreatening Bodily Injuryadd 7
22 UNITED STATES V. ALVIREZ

“Plain error is (1) an error that (2) is plain, (3) affects

substantial rights, and (4) seriously affects the fairness,

integrity or public reputation ofjudicial proceedings.” United

States v. Blinkinsop, 606 F.3d 1110, 1114 n.2 (9th Cir. 2010)

(citation omitted). An error is plain when it is “clear” or

“obvious.” Charles, 581 F.3d at 933 (citation omitted).

United States Sentencing Guideline Section

2A2.2(b)(3)(C) allows the district court to increase the

defendant’s offense level by seven levels if the offense

resulted in permanent or life-threatening injury. The district

court’s factual findings underpinning its application of a

sentence enhancement are reviewed for clear error. See

Pearson, 274 F.3d at 1234–35. The district court credited Dr.

McEleney’s testimony that Havatone’s ankle required repair

with surgical grade steel and nine screws to stabilize it, that

it may be necessary to replace this hardware more often, and

that the long-term effects of this injury may cause

posttraumatic osteoarthritis. The district court committed no

clear error in equating these effects to a permanent bodily

injury. See id. (approving the district court’s reliance on

evidence from the trial to apply a sentencing enhancement). 

Because the district court properly applied the enhancement,

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 judgment of acquittal, rather

than remand for a new trial, because there was insufficient

evidence to establish his Indian status. The double jeopardy

clause does not bar retrial after a reversal based on the

erroneous admission of evidence, however, if this evidence

was nevertheless sufficient to support the conviction. See
UNITED STATES V. ALVIREZ 23

Lockhart v. Nelson, 488 U.S. 33, 40 (1988). As we discussed

above, here, a rational trier of fact could determine that the

evidence adduced at trial—including the Certificate and

testimony from Havatone and Agent Barber—established

both elements of Indian status: “some” Indian blood, and

membership or affiliation in a federally recognized tribe at

the time of the offense. See Bruce, 394 F.3d at 1223; see also

Reza-Ramos, 816 F.3d at 1121; Zepeda, 792 F.3d at 1113.10

As “any rational trier of fact could have found the essential

element[] [of Indian status] beyond a reasonable doubt,”

sufficient evidence supports this element and retrial does not

offend the double jeopardy clause. Jackson v. Virginia,

443 U.S. 307, 319 (1979) (emphasis in the original).

IV. SUMMARY

In accordance with our recent en banc decision in Zepeda,

we conclude that the determination of federal recognition of

a tribe is a question of law to be resolved by the judge. We

also conclude that the district court abused its discretion when

it determined that the Certificate of Indian Blood offered into

evidence by the government was a self-authenticating

document under Federal Rule of Evidence 902(1). Because

the error was not harmless, we reverse the conviction. The

district court did not abuse its discretion when it denied the

motion in limine, thus it did not deny Alvirez his right to

present a defense. Finally, the district court’s application of

the sentencing enhancement for permanent bodily injury was

not clearly erroneous.

10 Although the Certificate is dated January 18, 2011, a reasonable juror

could determine that the certified document was printed by the Tribe on

that date, and that Alvirez was an Indian at the time of the charged

offense.
24 UNITED STATES V. ALVIREZ

CONVICTION REVERSED AND CASE

REMANDED.