I'm not sure that either the majority or the dissent really deal with the centrally troubling part of this case.
The problem is a straightforward one, and -- sadly -- one that occasionally shows itself in various different circumstances. What do you do in a criminal prosecution if the government accidentally introduces insufficient evidence of something's undeniably true?
In this this case, the particular problem is that the government had to establish that the defendant was an "Indian" (in order to justify a federal prosecution), and indeed introduced evidence to that effect, but forgot to introduce evidence that the particular tribes to which defendant belonged were federally recognized. Those tribes are, in fact, federally recognized. No one disputes -- or could reasonably dispute -- the validity of those truths.
But there was no evidence of those undeniable facts below. Does that mean that the defendant gets to walk free -- even (as here) in his commission of an incredibly serious crime -- and never be charged again, since double jeopardy would then bar a successive attempt to prosecute him?
The Ninth Circuit says "Yes." Whereas the dissent would let the Court of Appeal take judicial notice of the federally recognized status of the tribes and hence affirm the conviction.
Both of these approaches seem to me to have serious problems. I'm somewhat sympathetic to the view of the dissent, since it avoids the problem of letting a criminal go free purely due to a blunder of the constable. (It's also worth a reminder that, unlike reversals in most cases, which merely require the prosecution to conduct a new trial, because the reversal here is for insufficiency of the evidence, this is in fact a case where the defendant gets off scot free.) But the majority's correct, in my view, that you can't do that. Yes, Federal Rule of Criminal Procedure 201 permits a court -- including an appellate court on appeal -- to take judicial notice regarding whether a particular tribe is federally recognized. But it also says that, in a criminal trial, the court is required to instruct the jury that it is not obligated to accept that judicially noticed fact as true, and there's a Sixth Amendment right to have the jury decide that "fact" notwithstanding the instruction. So I think that the majority's correct that you can't affirm the conviction here merely through resort to judicial notice.
At the same time, the majority's reversal of the conviction and (effective) preclusion of a retrial on double jeopardy grounds seems troubling as well. Not only does it seem inequitable to the victim and deleterious to society, but it also seems somewhat at odds with other criminal law doctrines which we repeatedly employ. For example, we constantly affirm convictions based on purported "harmless errors," including lots of errors that likely have far greater practical consequences than the one here. We do so because we don't like to alter results on the basis of an error which likely didn't affect the result. The theory posits that trials are chock full of errors, but only those that actually might change the result are the ones about which we care.
But the error here is surely as harmless as any error can possibly be. Was it wrong not to include some testimony and/or an instruction about whether the various tribes were federally recognized? Sure. Did that error change the result; in other words, would the result possibly have been different but for the error? No way. No freaking way. There's a zero percent probability that the defendant would have been able to successfully persuade a jury that the tribes here were not recognized by the federal government as required by the statute. If there were ever a mistake that we can confidently be assured didn't/wouldn't change things one iota, this is it.
Now, I recognize that there's arguably a qualitative distinction between "regular" trial errors and evidentiary omissions such as the one here. But I'm far from confident that this different should matter. If it's harmless, it's harmless. End of story.
Does that mean that, in the end, I agree with the dissent? (Albeit for different reasons.) No. I'm at least tentatively of the view that our concern for the Sixth Amendment -- as well as the potential (if only in theory) for permissible jury nullification -- means that we can't affirm convictions like these based upon a routine application of harmless error doctrine. The defendant should likely be entitled to a trial in which all of the elements of an offense are, in fact, set forth and established, and found to be so by a jury.
But at least in cases like this one, instead of a reversal of the conviction and a double jeopardy bar, I think it's plausible to hold that a remand for retrial should be permitted. That would avoid the subpar consequences of an effective acquittal while still preserving the defendant's Sixth Amendment right to be convicted by a jury -- one that's entitled to reject even judicially noticed facts were it to so elect.
I understand that this would require a reevaluation of existing double jeopardy principles, since (so the argument goes) a defendant is "entitled" to an acquittal if the problem is (as here) insufficiency of the evidence produced at trial. But I think this is a pretty good case in which to articulate and apply such a vision. At least when the omitted element involves facts subject to judicial notice, I don't see why the double jeopardy clause should apply. Just like we don't reverse convictions for other sorts of harmless error. We might still be compelled to order a retrial rather than permitted to affirm the conviction notwithstanding the error, but the relief to which the defendant would be entitled would be a retrial -- not a preclusive finding of "not guilty."
The problem here doesn't just exist in Indian cases. There are all sorts of analogues in other criminal cases as well; for example, federal bank robbery cases in which an element of the offense is that the bank is FDIC insured -- which virtually all of them are -- in which the prosecutor forgets to establish this element at trial. In my view, whenever the error involves the omission of a fact properly subject to judicial notice, the proper remedy on appeal should be a reversal and remand for retrial rather than merely the former.
In this particular case, the defendant doesn't entirely go free, since -- as it so happens -- one of his convictions (for conspiracy) applies to Indians and non-Indians alike. (Put this down as yet another reason why the crime of conspiracy continues to be a prosecutorial darling.) But he nonetheless gets entirely absolved of multiple incredibly serious counts. Which ain't right.
So ponder whether a third path for cases like this one might be worth considering.