The opinion of the court was delivered by: Ralph R. Erickson, Chief Judge United States District Court
ORDER ON MOTION TO DISMISS THE INDICTMENT
Before the Court is Defendant Roman Cavanaugh, Jr.'s motion to dismiss the indictment. Cavanaugh raises three issues: (1) the indictment is fatally defective for failure to list an essential element of the offense; (2) Section 117(a) of Title 18, United States Code, is unconstitutional as it exceeds Congress's power; and (3) Section 117(a) of Title 18, United States Code, violates the United States Constitution by permitting the use of uncounseled tribal court convictions to be offered as substantive evidence to prove an essential element of a federal charge. The Court held a hearing and took arguments from the parties on November 24, 2009. The Court, having considered the briefs filed by the parties, the evidence at the hearing, and the arguments of counsel, now issues this memorandum opinion and order.*fn1
The indictment is sufficiently pled such that it would allow Defendant Cavanaugh to prepare a defense and plead double jeopardy to any future prosecution for the alleged domestic assault charge; therefore, Defendant's motion to dismiss on the ground that the indictment fails to allege an essential element is DENIED. See United States v. Mallen, 843 F.2d 1096, 1103 (8th Cir. 1988). Unlike the Interstate Commerce Clause, which generally impacts state regulation, the Indian Commerce Clause permits Congress to broadly regulate in the field of Indian affairs, and Congress was within its power to enact 18 U.S.C. § 117 as it applies to Indian country; therefore, Defendant's motion to dismiss on the ground of an invalid exercise of Congress's power is DENIED. See United States v. Lara, 541 U.S. 193 (2004). Finally, 18 U.S.C. § 117 as it applies in this case allows for the use of uncounseled tribal court convictions to prove an essential element of the federal crime in violation of the United States Constitution; therefore, Defendant's motion to dismiss the indictment on the ground it violates due process and the Sixth Amendment right to counsel is GRANTED. See United States v. Ant, 882 F.2d 1389 (9th Cir. 1989).
I. SUFFICIENCY OF THE INDICTMENT
Cavanaugh contends the indictment is fatally defective because it does not allege an essential element of the offense - that is, the prior assault convictions were committed "against a spouse or intimate partner." The United States maintains that the indictment fully and fairly apprises Cavanaugh of the charge against him, and if Cavanaugh believes the indictment lacks specificity the appropriate relief is through a bill of particulars.
The indictment in this case charges as follows: On or about July 7, 2008, in the District of North Dakota, in Indian country, and within the exclusive jurisdiction of the United States, ROMAN CAVANAUGH JR., a person who shares a child in common with and has cohabitated with Amanda L. Luedke [sic] as a person similarly situated to a spouse, did commit a domestic assault against Amanda L. Luedtke, which assault resulted in substantial bodily injury.
This domestic assault was committed after ROMAN CAVANAUGH JR. was convicted on at least two separate prior occasions in Spirit Lake Tribal Court for the following offenses that would be, if subject to Federal jurisdiction, any assault, sexual abuse, and serious violent felony:
1. Domestic Abuse, Spirit Lake Tribal Court, Fort Totten, North Dakota, conviction entered on or about January 14, 2008;
2. Two counts of Domestic Abuse, Spirit Lake Tribal Court, Fort Totten, North Dakota, conviction entered on or about April 6, 2005; and
3. Domestic Abuse, Spirit Lake Tribal Court, Fort Totten, North Dakota, conviction entered on or about March 21, 2005:
In violation of Title 18, United States Code, Section 117(a)(1).
Rule 7(c), Fed. R. Crim. P., provides that an indictment must be "a plain, concise, and definite written statement of the essential facts constituting the offense charged." An indictment is sufficient if it allows a defendant to prepare a defense and plead double jeopardy to any future prosecution. United States v. Mallen, 843 F.2d 1096, 1103 (8th Cir. 1988). Even so, an indictment is insufficient as a matter of law if it does not allege an essential element of the crime charged. United States v. Jenkins-Watts, 574 F.3d 950, 968 (8th Cir. 2009). When determining whether an essential element has been omitted, a court must not insist that a particular word or phrase appear in the indictment. United States v. Redzic, 569 F.3d 841, 845 (8th Cir. 2009); Mallen, 843 F.2d at1102. Rather, an indictment is sufficiently pled if the element is alleged "in a form" that substantially states the element. Id.
The essential elements of the charged offense include: (1) a domestic assault, which is defined in 18 U.S.C. § 117(b); (2) committed within Indian country; and (3) by a person who has at least two prior convictions for assault, sexual abuse, or a serious violent felony against a spouse or intimate partner. Cavanaugh contends that to meet the pleading requirement of the third element, the indictment must specifically allege that the predicate convictions involve a spouse or intimate partner and that the failure to do so renders the indictment fatally flawed.
The indictment specifically alleges Cavanaugh has at least two prior convictions for "domestic abuse" that would be, if subject to Federal jurisdiction, considered an assault, sexual abuse, or serious violent felony.*fn2 The indictment further lists the court of conviction as well as the date of conviction. It does not allege, however, that the predicate convictions occurred between Cavanaugh and a spouse or intimate partner. Nonetheless, a conviction for domestic abuse necessarily implies an offense against a family or household member, including persons involved in a romantic or sexual relationship. See Cross v. Bruton, 249 F.3d 752, 753 n.2 (8th Cir. 2001) (definition of "domestic abuse" under Minnesota law is an offense against persons who are presently residing together or have resided together in the past or persons involved in a significant romantic or sexual relationship); Black's Law Dictionary (8th ed. 2004) (defining domestic violence/abuse as violence between members of a household; an assault or other violent act committed by one member of a household against another).
While the Court agrees the United States would be required to establish at trial that Cavanaugh has at least two prior convictions for assault, sexual abuse, or a serious violent felony against a spouse or intimate partner, the Court finds the allegations are sufficiently clear to allow Cavanaugh to prepare a defense and to plead double jeopardy to any future prosecution for the alleged domestic assault occurring on or about July 7, 2008. Mallen, 843 F.2d at 1103 (concluding the indictment is sufficient when it allows a defendant to prepare a defense and plead double jeopardy to any future prosecution). Accordingly, Cavanaugh's motion to dismiss the indictment for failure to allege an essential element is DENIED.
II. CONGRESS'S POWER TO ENACT 18 U.S.C. § 117
Cavanaugh contends 18 U.S.C. § 117 is an unconstitutional exercise of power by Congress because it exceeds the powers granted to Congress under the Interstate Commerce Clause. The United States argues in its brief that the Necessary and Proper Clause grants Congress the authority to enact the statute at issue. At the hearing, the United States conceded the Necessary and Proper Clause is not an appropriate basis of authority in this case, but that the enactment is constitutional because it falls within Congress's power under the Indian Commerce Clause.
The United States Constitution grants Congress broad general powers to legislate with respect to Indian tribes. United States v. Lara, 541 U.S. 193, 200 (2004). The United States Supreme Court describes the powers as "plenary and exclusive." Id. The sources of the power are traditionally found in the Indian Commerce Clause, U.S. Const. Art. I, § 8, cl. 3, and the Treaty Clause, Art. II, § 2, cl. 2. Id. (citations omitted). The Supreme Court has said the function of the Indian Commerce Clause "is to provide Congress with plenary power to legislate in the field of Indian affairs." Id. (citations omitted). In contrast, the "treaty power" does not literally authorize ...