The lieutenant governor in 2009 of the Pueblo of Pojoaque, New Mexico, is challenging her conviction of knowingly leaving the scene of a car accident where she hit and killed a pedestrian, according to a petition, United States of America v. Linda Diaz, filed May 8 in the U.S. 10th Circuit Court of Appeals.
Diaz said the U.S. District Court for the District of New Mexico (District Court) erred in 2009 because it failed to prove beyond a reasonable doubt that the victim killed in Indian country was non-Indian, a contention the appeals court found erroneous, confirming federal court jurisdiction.
Diaz had been drinking April 3 and 4, 2009, when her car hit Philip Espinoza who was walking on the shoulder of U.S.Highway 285. She drank with family and friends at the Tropicana Nightclub and then went to a friend’s house where she may have consumed more alcohol, the court records state.
After she left her friend’s house, she was upset and crying when she called her sister, telling her she thought she hit “something,” although nothing was found when Diaz’ sister and adult daughter searched the highway.
The next morning she told her son she might have hit “an animal or maybe a person” and in a subsequent call to Pojoaque police said she had done something “very bad.” When the police lieutenant saw the car at her home, he noted it had a dented fender and a broken windshield and passenger side mirror.
Diaz was later indicted, tried and convicted of knowingly leaving the scene of an accident resulting in great bodily harm and the District Court sentenced her to 12 months and one day of prison, followed by a year of supervised release, court records show.
She appealed the victim’s non-Indian status, but the victim’s father produced evidence of researched family genealogy that showed neither he the victim’s mother had any Native American or Indian background, the court said.
The term “Indian” is not defined in the relevant law, the court noted, so the judges adopted a two-part test, the first of which requires that a person have “some Indian blood” and then that the person is “recognized as an Indian by a tribe or the federal government.” The victim did not have those characteristics, they found.
A three-judge panel of the 10th Circuit affirmed the lower court in Diaz’ conviction, denying issues she raised about the victim’s possible non-Indian status and other alleged lower-court errors.