United States
v.
LJO

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITAug 19, 2016
No. 13-10340 (9th Cir. Aug. 19, 2016)

No. 13-10340

08-19-2016

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. LJO, JUVENILE MALE, Defendant-Appellee.


NOT FOR PUBLICATION

D.C. No. 4:12-cr-00516-CKJ-BPV-1 MEMORANDUM Appeal from the United States District Court for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding Argued and Submitted August 12, 2016 San Francisco, California Before: HAWKINS and GRABER, Circuit Judges, and SELNA, District Judge.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

The Honorable James V. Selna, United States District Judge for the Central District of California, sitting by designation. --------

The United States appeals the district court's judgment of acquittal. The district court held that it lacked jurisdiction over this juvenile delinquency case under the Indian Major Crimes Act, 18 U.S.C. § 1153, because the government had presented insufficient evidence at trial to establish that LJO's Indian blood derived from a federally recognized tribe, citing United States v. Zepeda, 705 F.3d 1052 (9th Cir. 2013). Intervening authority requires that we reverse and remand for the district court to consider the effect of the superseding en banc opinion in United States v. Zepeda, 792 F.3d 1103 (9th Cir. 2015) (en banc), cert. denied, 136 S. Ct. 1712 (2016). The district court should also decide in the first instance whether to take judicial notice of the Tohono O'odham Constitution for purposes of determining whether the government proved beyond a reasonable doubt that LJO has "some quantum of Indian blood." Id. at 1113.

REVERSED AND REMANDED.