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Appeals court backs tougher sentence in domestic violence case

Tuesday, February 16, 2016

Terry Lee Harlan is serving a 41-month sentence for domestic violence at MCFP Springfield in Missouri. Photo from Bureau of Prisons

The 8th Circuit Court of Appeals on Tuesday upheld the conviction and 41-month sentence of a man who beat his then-girlfriend on the Omaha Reservation in Nebraska while the woman's sister and a minor were in the home.

Terry Lee Harlan, 53, was found guilty of being a "habitual offender" under 18 U.S.C. § 117. The law recognizes prior tribal domestic violence convictions even if the defendant wasn't provided with an attorney in tribal court.

But unlike another repeat offender whose case is now pending in the U.S. Supreme Court, Harlan did not raise a constitutional challenge to the use of his prior tribal convictions. Instead he questioned whether one of his tribal cases should have been admitted at all.

According to the 8th Circuit's decision, Harlan was convicted in Omaha tribal court of simple assault in 2002. He argued that that he pleaded guilty to an attempted assault, not to an actual assault, but the 8th Circuit said the crime still qualifies as "any assault" under Section 117.

"An assault is an attempt, which, if consummated, would result in a battery," Judge William J. Riley wrote for the court, quoting from a prior 8th Circuit case.

Indianz.Com SoundCloud: 8th Circuit oral arguments in US v. Harlan

Had the 2002 case been thrown out, Harlan presumably would not have been prosecuted under Section 117. The law only comes into play when a person has been convicted in tribal court on "at least 2 separate prior occasions" although the 8th Circuit decision does not mention his other one.

Incidentally, the victim in the tribal case is the sister of the victim in the federal case, which arose in March 2014 when Harlan was accused of causing serious injuries to his then-girlfriend. She was so troubled by the attack that she fled the home without shoes or a sweater during cold weather in order to flag down police, according to the 8th Circuit.

Harlan contended that the evidence against him was "inconsistent and insufficient" because his victim had been impaired by alcohol and drugs on the day in question. He also said the government's main witnesses -- the victim's sister and a minor -- did not see him inflict any injuries on the victim.

But Riley said the jury was presented with more than enough evidence to find Harlan guilty. The victim testified in "vivid detail" about the attack and a police officer and an Indian Health Service physician assistant at the Winnebago Service Unit, which serves the Omaha Tribe and the Winnebago Tribe in Nebraska, believed she had been punched about eight times, grabbed and kicked while she was down, the decision stated.

On one last issue, Harlan challenged the length of his 41-month sentence, saying his numerous health problems should have resulted in a less harsh punishment. But the 8th Circuit noted that the sentence was actually on the lower end of the guidelines and was imposed after the judge in the case said he failed to accept responsibility and failed to show remorse for the victim.

Harlan is serving his time in MCFP Springfield, which is described as an administrative security federal medical center in Missouri. His release date is June 2017, according to the Bureau of Prisons.

8th Circuit Court of Appeals Decision:
US v Harlan (February 16, 2016)