United States v. Ruiz

Opinion

Appellate Case: 24-2128 Document: 77 Date Filed: 05/05/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS May 5, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 24-2128 v. (D.C. No. 1:22-CR-00365-DHU-1) (D. N.M.) JOEL RUIZ,

Defendant - Appellant.

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Plaintiff - Appellee, No. 24-7030 v. (D.C. No. 6:22-CR-00106-RAW-1) (E.D. Okla.) DENNIS HEBERT,

Defendant - Appellant. _________________________________

ORDER _________________________________

Before HOLMES, Chief Judge, HARTZ, TYMKOVICH, MATHESON, BACHARACH, PHILLIPS, McHUGH, MORITZ, EID, CARSON, ROSSMAN, and FEDERICO, Circuit Judges. _________________________________

These matters are before us on United States’ Petition for Rehearing En Banc filed

in 24-2128, Mr. Ruiz’s Response to United States’ Petition for Rehearing En Banc filed

in 24-2128, United States’ Reply to Ruiz’s Response to the Petition for Rehearing En Appellate Case: 24-2128 Document: 77 Date Filed: 05/05/2026 Page: 2

Banc filed in 24-2128, Petition of the United States for Rehearing En Banc filed in

24-7030, Mr. Hebert’s Response to United States’ Petition for Rehearing En Banc filed

in 24-7030, and Government’s Reply in Support of Petition for Rehearing En Banc filed

in 24-7030.

The Clerk’s Office circulated these filings to all active judges of the court. Polls

were called in each appeal, and a majority of the active judges voted to rehear these

matters en banc. We therefore GRANT the petitions, VACATE the court’s November

18, 2025 and January 28, 2026 judgments, STAY issuance of the mandates, and

REOPEN these matters. See Fed. R. App. P. 40(c); see also 10th Cir. R. 40.2(E) (noting

the effect of the grant of rehearing en banc). We also PARTIALLY PROCEDURALLY

CONSOLIDATE these matters for purposes of supplemental briefing and oral argument

before the en banc court.

Although these entire cases will be reheard en banc, we direct the parties to

address the following questions in supplemental briefs:

• Under the General Crimes Act, 18 U.S.C. § 1152, is a defendant’s non-

Indian status an essential element that the indictment must allege and on

which the government must bear the initial burden of production? Or is a

defendant’s non-Indian status an affirmative defense that the defendant

must raise and bear the initial burden of production?

• Does the government or the defendant bear the ultimate burden of

persuasion on non-Indian status?

2 Appellate Case: 24-2128 Document: 77 Date Filed: 05/05/2026 Page: 3

• How should the “Indian canon” of statutory interpretation, see Ramah

Navajo Chapter v. Lujan, 112 F.3d 1455, 1460 (10th Cir. 1997), affect our

analysis?

• If the en banc court determines that defendants must raise non-Indian status

as an affirmative defense and bear the initial burden of production, should

we remand Mr. Hebert’s and Mr. Ruiz’s cases for retrial?

Within thirty days of the date of this order, the United States shall file a single

consolidated supplemental brief that may be no more than thirty double-spaced pages in a

13- or 14-point font.

Within thirty days of service of the United States’ supplemental brief, Mr. Ruiz

and Mr. Hebert must file supplemental response briefs that may each be no longer than

twenty double-spaced pages in a 13- or 14-point font. To the extent possible, Mr. Ruiz

and Mr. Hebert should coordinate their supplemental briefing to avoid duplication.

Mr. Ruiz and Mr. Hebert are reminded that they may join in and adopt by reference

and/or adopt by reference a part of another party’s brief. See Fed. R. App. P. 28(i).

Within fourteen days of service of the supplemental response briefs, the United

States may file a single consolidated supplemental reply brief that may be no longer than

fifteen double-spaced pages in a 13- or 14-point font.

Sixteen paper copies of the foregoing briefs must be received in the Clerk’s Office

within five business days of each brief’s electronic filing.

3 Appellate Case: 24-2128 Document: 77 Date Filed: 05/05/2026 Page: 4

This matter will be scheduled for oral argument before the en banc court at 2:00

p.m. MDT on Monday, August 17, 2026 in Denver, Colorado. Mr. Ruiz and Mr. Hebert

will argue first and are, collectively, allotted thirty minutes of argument time. The United

States will argue second and is allotted thirty minutes of argument time. We discourage

requests for extensions of the briefing deadlines.

Entered for the Court,

Per Curiam