United States v. Ruiz

── United States v. Ruiz ── Court: Court of Appeals for the Tenth Circuit Date: May 05, 2026 Category: General 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. ––––––––––––––––––––––––––––––––––– UNITED STATES OF AMERICA, 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. 199