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United States v. Houser



A non-Indian convicted of second-degree murder of an Indian on an Indian reservation challenged his conviction based on alleged criminal procedure violations of the federal district court. He also brought a post-Lopez challenge to congressional power under the Indian commerce clause to legislate against crimes by non-Indians in Indian territory. The Ninth Circuit upheld the conviction, rejecting the criminal procedure challenges and holding that Congress’s power to legislate against crimes by non-Indians in Indian territory was valid under the Indian commerce clause. The court held that the Indian commerce clause was very different from the interstate commerce clause at issue in Lopez.

Donald Houser, a non-Indian, shot and killed an Indian woman with whom he had previously been romantically involved. Houser claimed that when the victim attempted to take the gun away from him, it accidentally fired. Houser was convicted by a jury of second degree murder in the U.S. District Court of Idaho.

Houser challenged his conviction on the following four grounds: (1) the district court erred in instructing the jury that it could infer malicious aforethought from his use of a deadly weapon; (2) the district court erred in instructing the jury that it could convict Houser if it found that he had killed “with extreme disregard for human life”; (3) the district court erred by failing to instruct the jury that it must find Houser acted “willfully” to convict; and (4) Congress lacked the power under the Indian Commerce Clause to proscribe crimes by non-Indians.[1]

The court first addressed the issue of the jury instruction which allowed an inference of malice aforethought based on the use of a deadly weapon. Although the Ninth Circuit had previously overturned a conviction based on a jury instruction allowing such permissive inference, in this situation the Ninth Circuit felt that other instructions offset any damage, and there was no indication that the district court judge indicated a preference for a particular verdict.

Houser next challenged the jury instruction allowing a finding of malice aforethought if the jury concluded that Houser killed recklessly and with extreme disregard for human life. Houser contended that “extreme disregard” should apply only to acts endangering the populace at large, not for acts aimed at an individual. However, the Ninth Circuit pointed to other cases where extreme disregard was held to apply to reckless acts toward a solitary victim.

Houser’s third challenge involved the district court’s failure to instruct the jury that it must find his act “willful” in order to convict him of second-degree murder. The Ninth Circuit held that the “malice aforethought” mental state requirement for a second-degree murder conviction could be inferred from a reckless act with extreme disregard for human life, and therefore no separate finding of willfulness was required. Because the court previously held that such an inference was acceptable, it held the jury instructions were valid.

Houser was tried for murder in federal court under 18 U.S.C. § 1152, which extends general criminal law of the United States to Indian country. Section 1152 is commonly employed when a non-Indian commits a crime against an Indian. Houser argued that Congress did not have the authority under the Indian commerce clause of the U.S. Constitution to legislate against crimes by non-Indians. Houser pointed to United States v. Lopez,[2] which held that Congress did not have the authority under the commerce clause to regulate firearms near schools. The Ninth Circuit ruled that the federal interstate commerce clause and the Indian commerce clause are very different in their history and scope. While the interstate commerce clause is concerned with maintaining free trade among the States, the Indian Commerce Clause gives Congress plenary power to legislate the affairs of Indians. The Ninth Circuit held that this power extended to the punishment of crimes by non-Indians against Indians.

[1]United States v. Houser, 130 F.3d 867, 868 (9th Cir. 1997).

[2]514 U.S. 549 (1995).

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