FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL BRYANT, JR.,

Defendant-Appellant.

No. 12-30177

D.C. No.

1:11-cr-00070-JDS-1

OPINION

Appeal from the United States District Court

for the District of Montana

Jack D. Shanstrom, Senior District Judge, Presiding

Argued and Submitted

July 10, 2014—Portland, Oregon

Filed September 30, 2014

Before: Harry Pregerson, Richard A. Paez,

and Paul J. Watford, Circuit Judges.

Opinion by Judge Paez;

Concurrence by Judge Watford
2 UNITED STATES V. BRYANT

SUMMARY*

Criminal Law

The panel reversed the district court’s denial of a motion

to dismiss an indictment charging the defendant, an Indian,

with two counts of domestic assault by a habitual offender, in

violation of 18 U.S.C. § 117(a).

Applying United States v. Ant, 882 F.2d 1389 (9th Cir.

1989), the panel held that, subject to the narrow exception

recognized in case law for statutes that serve merely as

enforcement mechanisms for civil disabilities, tribal court

convictions may be used in subsequent prosecutions only if

the tribal court guarantees a right to counsel that is, at

minimum, coextensive with the Sixth Amendment right. 

Because the defendant’s tribal court domestic abuse

convictions would have violated the Sixth Amendment had

they been obtained in federal or state court, the panel

concluded that it is constitutionally impermissible to use

them to establish an element of the offense in a subsequent

prosecution under § 117(a), which is an ordinary recidivist

statute and not a criminal enforcement scheme for a civil

disability.

Concurring, Judge Watford wrote separately to highlight

why Ant warrants reexamination.

* 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. BRYANT 3

COUNSEL

Steven C. Babcock (argued), Assistant Federal Defender, and

Anthony R. Gallagher, Federal Defender, Federal Defenders

of Montana, Billings, Montana, for Defendant-Appellant.

Leif Johnson (argued), Assistant United States Attorney,

Michael W. Cotter, United States Attorney, and Michael S.

Shin, Assistant United States Attorney, United States

Attorney’s Office, Billings, Montana, for Plaintiff-Appellee.

OPINION

PAEZ, Circuit Judge:

Michael Bryant, Jr., an Indian, was indicted on two counts

of domestic assault by a habitual offender, in violation of

18 U.S.C. § 117(a).1

In support of the charges, the

government relied on two prior tribal court convictions for

domestic abuse. These convictions were uncounseled and at

least one resulted in a term of imprisonment. The Sixth

Amendment guarantees indigent defendants in state and

federal criminal proceedings appointed counsel in any case

where a term of imprisonment is imposed. Scott v. Illinois,

440 U.S. 367, 369, 373–74 (1979). But the Sixth Amendment

does not apply to tribal court proceedings. United States v.

First, 731 F.3d 998, 1002 (9th Cir. 2013), petition for cert.

1 Although we are mindful that the term “Native American” or

“American Indian” may be preferable, we use the term “Indian”

throughout this opinion because that is the term used throughout the

United States Code. We also use the term “tribal,” as that is the term used

in 18 U.S.C. § 117(a).
4 UNITED STATES V. BRYANT

filed, ___ U.S.L.W. ___ (U.S. Mar. 20, 2014) (No. 13-9435). 

In this case, we must decide whether, in a prosecution under

§ 117(a), the government may use prior tribal court

convictions that, although not obtained in violation of the

Constitution, do not comport with the Sixth Amendment right

to counsel to prove an element of the offense. We hold that

United States v. Ant, 882 F.2d 1389, 1395 (9th Cir. 1989),

prohibits the use of such convictions in a § 117(a)

prosecution. We therefore reverse the district court’s denial

of Bryant’s motion to dismiss the indictment.

I. BACKGROUND

In June 2011, Michael Bryant, Jr. was indicted on two

counts of domestic assault by a habitual offender, in violation

of 18 U.S.C. § 117(a). Section 117(a) criminalizes the

commission of “domestic assault within . . . Indian country”

by any person “who has a final conviction on at least 2

separate prior occasions in Federal, State, or Indian tribal

court proceedings for offenses that would be, if subject to

Federal jurisdiction[,] . . . assault . . . against a spouse or

intimate partner.” Count I charged that in February 2011,

Bryant assaulted C.L.O., his previous girlfriend, “after having

been convicted of at least two separate prior domestic

assaults.” Count II charged that in May 2011, Bryant

assaulted his new live-in girlfriend, D.E., “after having been

convicted of at least two separate prior domestic assaults.”2

The prior domestic assaults the government relied upon were

domestic abuse convictions obtained in the Northern

Cheyenne Tribal Court.

 

2

 The February 2011 and May 2011 assaults both occurred at Bryant’s

residence, which was located within the Northern Cheyenne Indian

Reservation.
UNITED STATES V. BRYANT 5

Bryant filed a motion to dismiss the indictment. He

argued that using his tribal court convictions to satisfy an

element of § 117(a) violates his Fifth and Sixth Amendment

rights because (1) he was not appointed counsel during his

tribal court proceedings and (2) only Indians may be

prosecuted under § 117(a) on the basis of a prior conviction

that does not comport with the Sixth Amendment. The

government did not contest Bryant’s representation that he

lacked the assistance of counsel during his prior tribal court

proceedings and that his convictions would have violated the

Sixth Amendment had they been obtained in state or federal

court. The district court denied the motion in a brief oral

ruling. Bryant then entered a guilty plea pursuant to a

conditional plea agreement that preserved his right to appeal

the district court’s ruling on the motion to dismiss. The

district court sentenced Bryant to forty-six months’

imprisonment on each count, to run concurrently.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review a final judgment of the

district court pursuant to 28 U.S.C. § 1291. We review de

novo a district court’s denial of a motion to dismiss an

indictment on constitutional grounds. United States v.

Chovan, 735 F.3d 1127, 1131 (9th Cir. 2013); United States

v. McCalla, 545 F.3d 750, 753 (9th Cir. 2008).

III. DISCUSSION

Bryant argues that using his prior tribal court convictions

as the predicate offenses in a § 117(a) prosecution violates the

Sixth Amendment right to counsel and the Fifth Amendment

guarantee of due process because these convictions were

obtained through procedures that, if utilized in state or federal
6 UNITED STATES V. BRYANT

court, would violate the Sixth Amendment. As an initial

matter, the government argues that Bryant failed to make an

evidentiary showing that his tribal court convictions were

uncounseled. The government also argues that tribal court

proceedings are not governed by the Sixth Amendment and

convictions that were not obtained in actual violation of the

Constitution may be used in subsequent prosecutions.3

We may easily dispose of the government’s first

argument. In district court, Bryant repeatedly represented

that he lacked counsel during the relevant tribal court

proceedings. Yet, the government never objected that Bryant

had not met his evidentiary burden on this point, even when

Bryant characterized the issue as “undisputed.” Accordingly,

the issue is waived, United States v. Carlson, 900 F.2d 1346,

1349–50 (9th Cir. 1990), and we assume that Bryant did not

have the benefit of counsel during his prior tribal court

domestic abuse proceedings.4

The merits of this case pose a more difficult question. 

The United States Constitution guarantees criminal

3

In its supplemental brief addressing the impact of First on this case, the

government argued that it could rely on Bryant’s tribal court convictions

for another reason: at least two of his tribal court domestic abuse

convictions did not result in a term of imprisonment, and therefore, did

comport with the Sixth Amendment. The government has since conceded

that Bryant does not have two prior tribal court domestic abuse

convictions that did not result in a sentence of incarceration.

4 Moreover, there is no serious doubt that Bryant was not appointed

counsel during his tribal court domestic abuse proceedings. The Law and

Order Code of the Northern Cheyenne Tribe, Title 5, Chapter III, Rule 22

provides that a defendant in a criminal case has the right to “defend

himself . . . by . . . [an] attorney at his own expense.” The Tribe does not

guarantee a right to appointed counsel in any case.
UNITED STATES V. BRYANT 7

defendants the right to assistance of counsel for their defense. 

U.S. Const. amend. VI; see also Gideon v. Wainwright,

372 U.S. 335, 342–45 (1963). The right to appointed counsel

for indigent criminal defendants is a “logical corollary” of

this guarantee. Powell v. Alabama, 287 U.S. 45, 72 (1932).

In a line of cases beginning with Powell, the Supreme

Court has set forth when the right to appointed counsel is

triggered. See id. at 68–69, 71–72 (holding that the

Fourteenth Amendment provides capital defendants with a

right to appointed counsel because the due process right to be

heard encompasses a right to be heard by counsel). In

Johnson v. Zerbst, 304 U.S. 458, 463 (1938), the Court

recognized that the Sixth Amendment guarantees indigent

criminal defendants the right to appointed counsel in federal

proceedings. The Court subsequently held that the Sixth

Amendment right to appointed counsel applies to the states as

well through the Fourteenth Amendment. Gideon, 372 U.S.

at 342–45.

Johnson and Gideon involved felonyprosecutions, but the

Court later clarified that the right to appointed counsel for

indigent defendants attaches in all criminal cases “where loss

of liberty is . . . involved,” regardless of how a crime is

classified. Argersinger v. Hamlin, 407 U.S. 25, 37 (1972). 

In Scott, the Court further refined the right, holding that

indigent defendants are entitled to appointed counsel only in

those cases where a term of imprisonment is actually

imposed, and not in every case where a term of imprisonment

could be imposed. 440 U.S. at 369, 373–74. Finally, in

Alabama v. Shelton, 535 U.S. 654, 658, 662, 674 (2002), the

Court concluded that imposition of a suspended sentence

constitutes a term of imprisonment that triggers the Sixth

Amendment right to appointed counsel.
8 UNITED STATES V. BRYANT

However, the Sixth Amendment right to appointed

counsel does not apply in tribal court proceedings, First,

731 F.3d at 1002; United States v. Percy, 250 F.3d 720, 725

(9th Cir. 2001); Tom v. Sutton, 533 F.2d 1101, 1102–03 (9th

Cir. 1976), because the Constitution is generally inapplicable

to tribal courts, Santa Clara Pueblo v. Martinez, 436 U.S. 49,

56 (1978); Talton v. Mayes, 163 U.S. 376, 382–83 (1896).5

Consequently, Bryant’s prior uncounseled tribal court

convictions that resulted in terms of imprisonment are not

unconstitutional, and Bryant does not contend otherwise. 

Rather, Bryant argues that, because his convictions would

have been unconstitutional had they been obtained in state or

federal court, they may not be used to prove his guilt in a

§ 117(a) prosecution.

We agree that Bryant’s prior tribal court domestic abuse

convictions would have violated the Sixth Amendment had

they been obtained in state or federal court. Under

Argersinger and Scott, indigent criminal defendants have a

right to appointed counsel in any state or federal case where

a term of imprisonment is imposed. Scott, 440 U.S. at 369,

5

“As separate sovereigns pre-existing the Constitution, tribes have

historically been regarded as unconstrained by those constitutional

provisions framed specifically as limitations on federal or state authority.” 

Santa Clara Pueblo, 436 U.S. at 56. Congress nonetheless has plenary

authority to impose limits on tribal self-government. Id. Acting under its

plenary authority, Congress has required tribal courts to provide a limited

right to counsel in criminal tribal court proceedings through the Indian

Civil Rights Act (“ICRA”), which mandates that criminal defendants in

tribal court be permitted to retain counsel at their own expense, and the

Tribal Law and Order Act of 2010, which requires tribes to provide

indigent defendants with appointed counsel in those cases where the tribal

court imposes a term of imprisonment that exceeds one year. See First,

731 F.3d at 1002 & n.3. Indian tribes are, or course, free to grant

additional rights through their own laws. See id. at 1003 & n.4.
UNITED STATES V. BRYANT 9

373–74; Argersinger, 407 U.S. at 37. We must examine

another line of cases, however, to determine whether

convictions arising from proceedings that neither violate the

Sixth Amendment nor provide an equivalent right to counsel

may be used to prove an element of the offense in a later

federal prosecution.

In a series of cases following Gideon, the Supreme Court

addressed whether prior convictions obtained in violation of

the Sixth Amendment right to counsel may be used in

subsequent proceedings. In the first few such cases, the Court

consistently held that uncounseled convictions obtained in

violation of Gideon could not be used in subsequent

proceedings to (1) prove the prior felony conviction element

of a recidivist statute, Burgett v. Texas, 389 U.S. 109, 111,

114–16 (1967), (2) impose a higher sentence based on a prior

conviction, United States v. Tucker, 404 U.S. 443, 447, 449

(1972), or (3) impeach a defendant’s credibility, Loper v.

Beto, 405 U.S. 473, 476, 482–83 (1972) (plurality opinion).

In Lewis v. United States, 445 U.S. 55, 66–67 (1980), the

Court held, for the first time, that a prior conviction that

violated the Sixth Amendment could be used in a subsequent

prosecution. In Lewis, the defendant was convicted under a

predecessor felon-in-possession-of-a-firearm statute. Id. at

57–58. He challenged the government’s use of a prior

conviction obtained in violation of Gideon to prove he was a

felon. Id. The Court acknowledged Burgett, Tucker, and

Loper, but did not read those cases to stand for the

proposition that “an uncounseled conviction is invalid for all

purposes.” Id. at 66–67. It concluded that Lewis’s prior

uncounseled conviction could be used in a subsequent

prosecution because the conviction was providing a basis for

imposing only a firearms prohibition—an “essentially civil
10 UNITED STATES V. BRYANT

disability,” albeit one that was “enforceable by a criminal

sanction.” Id. at 67.

Not long after Lewis, the Court considered whether an

uncounseled conviction that did not result in

imprisonment—and therefore did not run afoul of the Sixth

Amendment—could be used in a subsequent prosecution

under a recidivist statute. See Baldasar v. Illinois, 446 U.S.

222, 223–24 (1980), overruled by Nichols v. United States,

511 U.S. 738 (1994). In a splintered decision, five justices,

in three separate opinions, ruled that it could not. Lower

courts struggled to interpret and apply Baldasar, see Nichols,

511 U.S. at 745, and, ultimately, the Court revisited a similar

question in Nichols. In Nichols, the defendant pled guilty to

conspiracy to possess cocaine with intent to distribute, in

violation of 21 U.S.C. § 846. Id. at 740. When calculating

Nichols’s criminal history points during sentencing, the

district court considered a prior uncounseled state court

conviction for which Nichols received a fine but was not

incarcerated. Id. The Court held that an uncounseled prior

conviction valid under Scott—as Nichols’s was—“may be

relied upon to enhance the sentence for a subsequent offense,

even though that sentence entails imprisonment.” Id. at

746–47.

The Supreme Court has never addressed whether a

conviction obtained in a forum not governed by the

Constitution under procedures that do not comport with the

Sixth Amendment right to counsel may be used in a

subsequent prosecution. Our court, however, has twice

addressed this issue. In Ant, we considered whether an

uncounseled tribal court guilty plea to charges of assault and

battery, which resulted in a six-month term of imprisonment,

could be introduced as evidence of guilt in a subsequent
UNITED STATES V. BRYANT 11

federal prosecution for manslaughter arising out of the same

incident. 882 F.2d at 1390–91. We held that it could not,

reasoning that “if Ant’s earlier guilty plea had been made in

a court other than in a tribal court, it would not be admissible

in the subsequent federal prosecution absent a knowing and

intelligent waiver” of his right to counsel. Id. at 1394. This

fact rendered the plea “constitutionally infirm” and

inadmissible in a later federal prosecution. Id. at 1395.

More recently, in First, we considered whether a prior

uncounseled tribal court conviction that resulted in a term of

imprisonment could be used as the predicate offense in a

prosecution under 18 U.S.C. § 922(g)(9). 731 F.3d at

1000–01, 1003. Section 922(g)(9) makes it unlawful for a

person convicted of a misdemeanor domestic violence

offense to possess a firearm. Noting the similarity between

§ 922(g)(9) and the statute in Lewis, we concluded that “it is

of no moment that First’s misdemeanor conviction was

obtained without complying with the Sixth Amendment,”

because the government sought to use the conviction only to

enforce a civil firearms disability. Id. at 1008–09. In so

holding, we discussed Ant, stating as follows:

We do not question Ant’s continued vitality. 

Ant stands for the general proposition that

even when tribal court proceedings comply

with ICRA and tribal law, if the denial of

counsel in that proceeding violates federal

constitutional law, the resulting conviction

may not be used to support a subsequent

federal prosecution. Lewis, however,
12 UNITED STATES V. BRYANT

demonstrates that the federal firearms statute

is an exception from this general rule.

Id. at 1008 n.9 (internal citations omitted).

We agree that, as a general rule, Ant holds that a

conviction obtained in a tribal court that did not afford a right

to counsel equivalent to the Sixth Amendment right may not

be used in a subsequent federal prosecution. Accordingly, we

hold that, subject to the narrow exception recognized in Lewis

and First for statutes that serve merely as enforcement

mechanisms for civil disabilities, tribal court convictions may

be used in subsequent prosecutions only if the tribal court

guarantees a right to counsel that is, at minimum, coextensive

with the Sixth Amendment right. Section 117(a) is an

ordinary recidivist statute and not a criminal enforcement

scheme for a civil disability. Accordingly, the general rule

announced in Ant applies. Because Bryant’s tribal court

domestic abuse convictions would have violated the Sixth

Amendment right to counsel had they been obtained in

federal or state court, using them to establish an element of

the offense in a subsequent § 117(a) prosecution is

constitutionally impermissible. See Ant, 882 F.2d at

1394–95.

We reject the government’s arguments to the contrary. 

The government contends this case is controlled by Nichols,

not Ant. But Nichols involved a prior conviction that did

comport with the Sixth Amendment, 511 U.S. at 740, 746–47,

whereas this case involves prior convictions obtained under

procedures that, if utilized in state or federal court, would

have violated the Sixth Amendment. Ant is the relevant

authority.
UNITED STATES V. BRYANT 13

The government also argues that Ant is no longer good

law because it relied on Baldasar, which Nichols overruled. 

Ant cited Baldasar only once, and for the general proposition

that an uncounseled conviction could not be used to prove an

element of a recidivist statute. Ant, 882 F.2d at 1394. 

Nichols did overrule Baldasar’s holding that an uncounseled

conviction valid under Scott could not be used in a

subsequent prosecution. Nichols, 511 U.S. at 746–47. But

even after Nichols, uncounseled convictions that resulted in

imprisonment generally could not be used in subsequent

prosecutions. See id. But see Lewis, 445 U.S. at 66–67. 

Because Ant involved the latter scenario, see 882 F.2d at

1390–91, it remains good law notwithstanding its citation to

Baldasar.

Moreover, for us to overrule our own precedent, a

Supreme Court decision “must have undercut the theory or

reasoning underlying the prior circuit precedent in such a way

that the cases are clearly irreconcilable.” Miller v. Gammie,

335 F.3d 889, 900 (9th Cir. 2003) (en banc); see also

Gonzales v. Dep’t of Homeland Sec., 508 F.3d 1227, 1235

(9th Cir. 2007) (explaining that where a Supreme Court case

did not actually address the issue raised in a prior Ninth

Circuit case, a three-judge panel remained bound by circuit

precedent notwithstanding the implications of the subsequent

Supreme Court case). Nichols and Ant are easily reconcilable

because Nichols involved an uncounseled conviction valid

under the Sixth Amendment, whereas Ant involved prior

tribal court proceedings that, in state or federal court, would

not have been valid under the Sixth Amendment. 

Accordingly, we read Nichols and Ant to stand for the

proposition that, subject to the limited exception recognized

in Lewis and First, the Sixth Amendment permits using a

prior conviction in a later prosecution only if, in the prior
14 UNITED STATES V. BRYANT

proceeding, the defendant was afforded, at a minimum, the

same right to counsel as guaranteed by the Sixth Amendment. 

Nothing in Nichols mandates adopting the government’s

position that, as long as the conviction does not violate the

Constitution, it may be used in a later prosecution.

We recognize that our holding places us in conflict with

two other circuits. See United States v. Shavanaux, 647 F.3d

993 (10th Cir. 2011); United States v. Cavanaugh, 643 F.3d

592 (8th Cir. 2011). Shavanaux and Cavanaugh held that a

prior uncounseled tribal court conviction could be used as a

predicate offense for a § 117(a) prosecution. Shavanaux,

647 F.3d at 997; Cavanaugh, 643 F.3d at 603–04. The

Shavanaux court reasoned that, because the Sixth

Amendment does not apply in tribal court, using a tribal court

conviction in a subsequent prosecution cannot violate the

Sixth Amendment. 647 F.3d at 996–98. The Cavanaugh

court read Nichols as establishing a bright-line rule that so

long as a conviction did not violate the Constitution, it could

be used in a subsequent proceeding. 643 F.3d at 603–04. 

Shavanaux and Cavanaugh cannot be reconciled with Ant,

and we are bound by Ant.6

6

In fact, both the Eighth Circuit and the Tenth Circuit recognized that

their holdings were at odds with Ant. Shavanaux, 647 F.3d at 997–98;

Cavanaugh, 643 F.3d at 604–05.

The Shavanaux court rejected Ant as wrongly decided. 647 F.3d at

997–98. It disagreed with Ant’s “threshold determination that an

uncounseled tribal conviction is constitutionally infirm,” believing that

this determination was a consequence of having “overlook[ed]” the Talton

line of cases establishing that tribal courts are not governed by the

Constitution. Id. But Ant did not overlook this case law. Although Ant

did not cite Talton, it recognized repeatedly that tribal court proceedings

are limited only by the ICRA and tribal law. See 882 F.2d at 1391–92,

1395. In describing Ant’s guilty plea as “constitutionally infirm,” the Ant
UNITED STATES V. BRYANT 15

As we did in First, we reiterate Ant’s continued vitality. 

See 731 F.3d at 1008 n.9. Under Ant, the government may

not rely on tribal court convictions as predicate offenses in

§ 117(a) prosecutions unless the tribal court afforded the

same right to counsel as guaranteed by the Sixth Amendment

in federal and state prosecutions. See 882 F.2d at 1394–95.

Bryant’s relevant tribal court convictions do not meet this

standard. Consequently, the charges against him must be

dismissed.7

court used a convenient shorthand termto refer to the fact that Ant’s guilty

plea, although not obtained in violation of the Constitution, was obtained

through procedures that, had they been employed in state or federal court,

would have been unconstitutional. Read in context, the term does not

suggest that Ant’s holding is based on the faulty premise that the

Constitution applies to tribal court proceedings.

The Cavanaugh court distinguished Ant, because in Ant, the

subsequent federal proceeding arose out of the same incident as the tribal

court proceeding and the government sought to use a guilty plea that did

not comport with the Sixth Amendment to prove, not merely the fact of a

prior conviction, but the truth of the matter asserted in the plea. See

643 F.3d at 604–05. This is a distinction without a difference. As the

Cavanaugh dissent explained, the key factor in both Ant and Cavanaugh

was the government’s reliance on prior tribal court proceedings, that, if

governed by the Constitution, would have violated the Sixth Amendment

right to counsel to prove an element of the offense. Id. at 607 (Bye, J.,

dissenting).

7

 Bryant also argues that using his tribal court convictions as predicate

offenses is a violation of the Fifth Amendment’s guarantee of equal

protection because only Indians are subject to prosecution based on prior

convictions that do not comport with the Sixth Amendment right to

counsel. Given the result we reach, we need not address Bryant’s equal

protection argument.
16 UNITED STATES V. BRYANT

IV. CONCLUSION

We hold that the § 117(a) charges against Bryant must be

dismissed because at least one of his predicate tribal court

domestic abuse convictions was uncounseled and resulted in

a term of imprisonment.

REVERSED.

WATFORD, Circuit Judge, concurring:

I agree with the majority that United States v. Ant,

882 F.2d 1389 (9th Cir. 1989), remains binding and controls

the outcome of this case. I write separately to highlight three

reasons why, in my view, Ant warrants reexamination.

1. The Supreme Court’s decision in Nichols v. United

States, 511 U.S. 738 (1994), doesn’t squarely overrule Ant,

but it does call Ant’s reasoning into question. Nichols held

that an uncounseled misdemeanor conviction valid under

Scott v. Illinois, 440 U.S. 367 (1979)—because no term of

imprisonment was imposed—may be used “to enhance the

sentence for a subsequent offense, even though that sentence

entails imprisonment.” 511 U.S. at 746–47. The Court’s

holding undermines the notion that uncounseled convictions

are, as a categorical matter, too unreliable to be used as a

basis for imposing a prison sentence in a subsequent case. 

Nichols suggests that so long as a prior conviction isn’t

tainted by a constitutional violation, nothing in the Sixth

Amendment bars its use in subsequent criminal proceedings.
UNITED STATES V. BRYANT 17

That principle is hard to square with the result we reach

today by applying Ant. It’s true that Michael Bryant’s prior

domestic abuse convictions would have been obtained in

violation of the Sixth Amendment had he been tried in state

or federal court, since he lacked appointed counsel and

appears to have received a term of imprisonment following

those convictions. See Scott, 440 U.S. at 373–74. But the

fact remains that his prior convictions were not obtained in

violation of the Sixth Amendment because they occurred in

tribal court, where the Sixth Amendment doesn’t apply. 

United States v. Percy, 250 F.3d 720, 725 (9th Cir. 2001). It

seems odd to say that a conviction untainted by a violation of

the Sixth Amendment triggers a violation of that same

amendment when it’s used in a subsequent case where the

defendant’s right to appointed counsel is fully respected. As

the Tenth Circuit stated, “Use of tribal convictions in a

subsequent prosecution cannot violate ‘anew’ the Sixth

Amendment, because the Sixth Amendment was never

violated in the first instance.” United States v. Shavanaux,

647 F.3d 993, 998 (10th Cir. 2011) (citation omitted). The

contrary rule we adopted in Ant would make sense if

uncounseled convictions were deemed insufficiently reliable

to warrant giving them any weight in subsequent criminal

proceedings. But, as I’ve noted, Nichols undercuts the

proposition that uncounseled convictions are categorically

unreliable.

Further doubt is cast on Ant’s vitality when we consider

the exception carved out in Lewis v. United States, 445 U.S.

55 (1980), and United States v. First, 731 F.3d 998 (9th Cir.

2013). In Lewis, the Supreme Court held that a felony

conviction obtained in violation of the Sixth Amendment

could nevertheless be used as a predicate for a

felon-in-possession charge. 445 U.S. at 67. The Court
18 UNITED STATES V. BRYANT

reasoned that the firearms prohibition relied “on the mere fact

of conviction,” not the reliability of that conviction, to

enforce through criminal sanctions what amounted to only “a

civil disability.” Id. We felt compelled to follow this

precedent in First, where we held that an uncounseled tribal

court conviction that would have violated the Sixth

Amendment if obtained in state or federal court could also be

used as a predicate for a similar firearms possession statute. 

731 F.3d at 1008–09.

The resulting asymmetry is striking. In Lewis and First,

the “mere fact of conviction,” even if unreliable and

unconstitutionally obtained, could be used to criminalize an

act that might otherwise be lawful—firearms possession. 

Lewis, 445 U.S. at 67; First, 731 F.3d at 1008–09. Here,

however, the “mere fact” of a domestic violence conviction

cannot be used to support punishment for an act that is

already criminal—domestic violence. That seems illogical. 

If anything, we would want to be more cautious about the use

of uncounseled prior convictions in prohibiting firearms

possession, because that prohibition impinges upon what

would otherwise be a fundamental right. We aren’t

impinging upon anyone’s rights when we prohibit (or

enhance penalties for) domestic violence, since no one has the

right to abuse a spouse or intimate partner to begin with. The

reason for holding that the Sixth Amendment is violated in

this case but not in Lewis and First isn’t easy to grasp.

2. So why are we refusing to recognize the validity of

Bryant’s prior domestic abuse convictions in this case, given

that the convictionsthemselves aren’t constitutionally infirm?

Presumably it’s because of concerns over the reliability of

those convictions. As discussed above, though, that concern

apparently doesn’t exist across the board with respect to
UNITED STATES V. BRYANT 19

uncounseled convictions obtained in state or federal courts. 

So aren’t we really saying that the right to appointed counsel

is necessary to ensure the reliability of all tribal court

convictions? If that’s true, we seem to be denigrating the

integrity of tribal courts, as discussed in the dissent in Ant. 

See 882 F.2d at 1397–98 (O’Scannlain, J., dissenting). The

implication is that, if the defendant lacks counsel, tribal court

convictions are inherently suspect and unworthy of the

federal courts’ respect. While in our adversarial system

we’ve concluded that the lack of counsel detracts from the

accuracy and fairness of a criminal proceeding, see Gideon v.

Wainwright, 372 U.S. 335, 342–44 (1963), respect for the

integrity of an independent sovereign’s courts should

preclude such quick judgment. See Wilson v. Marchington,

127 F.3d 805, 811 (9th Cir. 1997).

3. It’s perhaps unsurprising that our decision in this case

conflicts with decisions from two of our sister circuits. Faced

with almost identical scenarios—prior, uncounseled tribal

court convictions that would have violated the Sixth

Amendment in state or federal court and that were used as

predicate offenses under 18 U.S.C. § 117—the Eighth and

Tenth Circuits pointedly disagreed with us. See United States

v. Cavanaugh, 643 F.3d 592, 595, 604 (8th Cir. 2011); United

States v. Shavanaux, 647 F.3d 993, 995–98 (10th Cir. 2011). 

As our colleagues on the Eighth Circuit noted, “Supreme

Court authority in this area is unclear; reasonable decisionmakers may differ in their conclusions as to whether the Sixth

Amendment precludes a federal court’s subsequent use of

convictions that are valid because and only because they

arose in a court where the Sixth Amendment did not apply.” 

Cavanaugh, 643 F.3d at 605. Given this circuit split and the

lack of clarity in this area of Sixth Amendment law, the

Supreme Court’s intervention seems warranted.