Supreme Court rules ban on double jeopardy doesn’t apply in Indian sexual assault case: In dissenting opinion, conservative Justice Neil Gorsuch attacks federal Indian courts as unconstitutional

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The Supreme Court ruled 6-3 on June 13 that a Navajo Indian man’s constitutional rights were not violated when he was prosecuted in a second federally established court after being convicted by another court in the same incident.

Although the Fifth Amendment states that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb,” under the dual sovereignty doctrine, a second prosecution is allowed if the defendant was tried first in a state or tribal court.

Navajo Indian Merle Denezpi of Shiprock, New Mexico, was arrested by a U.S. Bureau of Indian Affairs (BIA) police officer after a July 2017 sexual encounter with a Navajo woman identified as V.Y. Denezpi claimed it was consensual but V.Y. said it was not. Denezpi reportedly threatened to kill the woman if she reported the assault. A Sexual Assault Nurse Exam was completed on the woman which showed she suffered significant bruising and injuries; a test showed Denezpi’s DNA was present on the victim.

Denezpi was charged in the local Court of Indian Offenses in Towaoc, Colorado, with making terroristic threats, false imprisonment, and assault and battery, contrary to the Ute Mountain Ute Code. In December 2017, he entered an Alford plea guilty to the assault and battery charge, but maintained his innocence. In an Alford plea, a defendant does not acknowledge guilt but admits prosecutors can prove the case against him.

Courts of Indian Offenses, sometimes called CFR courts after the Code of Federal Regulations, were created by the BIA, a part of the U.S. Department of the Interior, to administer criminal justice for those tribes that lack their own criminal courts.

In exchange, the prosecutor dropped the other two charges. The court sentenced Denezpi to time served–140 days behind bars.

But in June 2018, Denezpi was indicted on the same underlying facts by a federal grand jury for aggravated sexual assault under 18 U.S. Code Section 2241. In March 2019, a federal jury convicted him after a week-long trial in Durango, Colorado. U.S. District Court Judge Robert E. Blackburn sentenced Denezpi to 30 years in prison followed by 10 years of supervised release.

Denezpi “wrongly believed that he could commit a violent assault, silence the victim with threats, and lie his way out of accountability,” U.S. Attorney Jason Dunn said at the time. “Thanks to the work of our prosecutors and law enforcement partners, he was proven wrong.”

In his petition to the high court, Denezpi argued the charges he “faced in the CFR court—coupled with the manner in which those charges were resolved—further support a finding that the CFR court is a quasi-federal court for Double Jeopardy purposes.”

The caption on the pleadings in the court, United States of America v. Merle Denezpi, supports “the conclusion that the CFR court is a federal court for purposes of double jeopardy analysis,” the petition stated.

Denezpi was “twice prosecuted in the name of the ‘United States of America’ for unitary conduct.” The second prosecution should have been dismissed and the U.S. Court of Appeals for the 10th Circuit erred in affirming that ruling, the petition stated.

Justice Amy Coney Barrett wrote the June 13 majority opinion (pdf) in Denezpi v. U.S., court file 20-7622.

The decision did not break down along the usual liberal versus conservative ideological lines.

Conservative Barrett’s opinion was joined by the conservatives, Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and liberal Justice Stephen Breyer.

The dissent, by conservative Justice Neil Gorsuch, was joined in part by liberal Justices Sonia Sotomayor and Elena Kagan.

Barrett affirmed the ruling of the 10th Circuit.

“Denezpi’s single act led to separate prosecutions for violations of a tribal ordinance and a federal statute. Because the Tribe and the Federal Government are distinct sovereigns, those ‘offence[s]’ are not ‘the same.’ Denezpi’s second prosecution therefore did not offend the Double Jeopardy Clause.”

In his dissent, Gorsuch attacked the legitimacy of the Court of Indian Offenses, pointing out it was never authorized by Congress.

That court is “a curious regime,” Gorsuch wrote, adding that federal officials have acknowledged the court rests on a ‘shaky legal foundation.’”

“One might wonder how an executive agency can claim the exclusive power to define, prosecute, and judge crimes—three distinct functions the Constitution normally reserves for three separate branches.”

“Denezpi has not questioned whether the Court of Indian Offenses is statutorily authorized … [or] whether the Constitution permits executive officials rather than a judge and jury to try him for crimes. Accordingly, those questions—long lingering and incredibly still unanswered—remain for another day,” Gorsuch wrote.

“Federal authorities brought charges against Mr. Denezpi in his first prosecution in the name of the United States. Those who prosecuted him were employed and controlled by the federal government. He was sentenced by a magistrate whom the federal government had the right to appoint and remove. And for his crime, Mr. Denezpi was incarcerated in a federal detention center. Federal agency officials played every meaningful role in his case: legislator, prosecutor, judge, and jailor.”

The Epoch Times reached out for comment to Denezpi’s counsel and U.S. Solicitor General Elizabeth Prelogar for comment but had not received any replies as of press time.

This article by Matthew Vadum appeared June 14, 2022, in The Epoch Times.