In recent years, the Tenth Circuit's premise for vacating Joel Ruiz's sentence has led the appellate court to reverse the sexual assault convictions of two other men because of inadequate evidence over their non-Indian status, the federal government argued in a Wednesday petition.
"The defendants' status as Indians or non-Indians has nothing to do with their culpability; indeed, had these defendants in fact been Indians, they could each have been prosecuted under [Section 1153 of] the Major Crimes Act" it said.
Last month, a Tenth Circuit panel determined prosecutors failed to prove that Ruiz is not himself Native American under its 2001 ruling in U.S. v. Prentiss.
In Prentiss, the appellate court determined that the Indian and non-Indian statuses of a victim and a defendant are essential elements of a crime under Section 1152 of the General Crimes Act that must be alleged in an indictment, according to U.S. Circuit Judge Timothy Michael Tymkovich in the unanimous published January opinion.
Ruiz was born in Mexico, however the panel found that that did not automatically mean he did not have Native American ancestry. Investigators' efforts of only determining that he is not in the same tribe as his alleged victim "fails to provide sufficient evidence to prove Ruiz's non-Indian status," the appellate court said.
Ruiz was indicted in March 2022 on two counts of engaging in a sexual act with a minor under the age of 12, according to court records. He was later found guilty on one count and sentenced by a New Mexico federal district court in August 2024 to 30 years in prison.
While the Tenth Circuit panel in January called it "nonsensical to have convictions vacated and overturned because, despite putting forth convincing evidence of a defendant's offense conduct, the government did not have ample evidence in its arsenal 'to prove a negative.'" The appellate court, the panel said, could not do anything else in this case.
"Our rule, perversely, turns the table on victims when the defendant most likely holds the evidence that proves his status," Judge Tymkovich wrote.
According to the panel, Ruiz was accused of luring cousins who were between the ages of 4 and 7 into his trailer with candy and then touching the girls' genitals. He lived on the Jicarilla Apache Reservation in New Mexico, according to court testimony.
In addition to proof of the alleged crimes, the General Crimes Act — which allows the federal government to prosecute crimes committed on reservations by non-American Indians against American Indians — requires evidence that the perpetrator is not an American Indian.
"As unrealistic as our current standard for proving a defendant's non-Indian status may seem, we must abide by our existing precedent unless and until we revisit our decision in Prentiss," wrote Judge Tymkovich, who called on the court "to reexamine and correct our current caselaw on the issue."
According to the federal government's Wednesday brief, the dangers posed by the Tenth Circuit's Prentiss decision have "increased exponentially" — especially in Oklahoma — since the U.S. Supreme Court's 2020 ruling in McGirt v. Oklahoma
.In that decision, the high court found that the boundaries of the Muscogee (Creek) Nation's 3 million acre reservation remain intact, and that the authority to prosecute crimes committed by Native Americans on tribal lands is held by federal and tribal governments alone under the Major Crimes Act.
"Prentiss's treatment of non-Indian status in Section 1152 cases thus threatens the safety of Indian victims and the general public," the U.S. argued.
The U.S. said that during Ruiz's January 2024 trial, the jury heard from two law enforcement witnesses who both testified that they concluded Ruiz was not a Native American. Because Ruiz's confession had been suppressed, it said, the witnesses were not allowed to tell the jury that Ruiz had disclaimed any affiliation with the Jicarilla Apache Nation.
Law enforcement's determination "was based partly, but not entirely, on Ruiz's Mexican birth," the U.S. argued.
The Tenth Circuit's decision in Prentiss, the federal government said, conflicts with Supreme Court precedent that statutory exceptions to liability are affirmative defenses, citing the 1922 ruling in McKelvey v. U.S.
In that case, the high court found that the rule applies where "the language of the section defining the offense is so entirely separable from the exception that the ingredients constituting the offense may be accurately and clearly defined without any reference to the exception," according to its brief.
That "deep-rooted principle," the U.S. argued, was reaffirmed last year in the Supreme Court's April decision in Cunningham v. Cornell University
, which reiterated that exemptions to a statute "ordinarily constitute affirmative defenses that are entirely the responsibility of the party raising them.""Because Prentiss's allocation of the burden of proof conflicts with this Supreme Court authority, this court should revisit its 2001 holding," it told the Tenth Circuit.
Counsel for Ruiz declined to comment on the federal government's petition on Thursday. Representatives for the government could not immediately be reached for comment.
Ruiz is represented by Violet N. D. Edelman of the Office of the Public Defender in Albuquerque, New Mexico.
The federal government is represented by Todd Blanche of the Office of the Deputy Attorney General and C. Paige Messec, Caitlin L. Dillon and Ryan Ellison of the Office of United States Attorney, District of New Mexico.
The case is United States v. Ruiz, case number 24-2128, in the U.S. Court of Appeals for the Tenth Circuit.
–Additional reporting by Elizabeth Daley. Editing by Michael Watanbe.
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