Acunia v. United States

• Citation: 404 F.2d 140
• Decision Date: 21 November 1968
• Docket Number: No. 22579.,22579.
• Parties: James ACUNIA, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

404 F.2d 140 (1968)

James ACUNIA, Appellant, v. UNITED STATES of America, Appellee.

No. 22579.

United States Court of Appeals Ninth Circuit.

November 21, 1968.

Tom O'Toole (argued) Asst. Federal Defender, Tom Karas, Phoenix, Ariz., for appellant.

Lawrence Turoff (argued) Asst. U. S. Atty., Edward E. Davis, U. S. Atty., John Moran, Asst. U. S. Atty., Phoenix, Ariz., for appellee.

Before BROWNING and ELY, Circuit Judges, and VON DER HEYDT, District Judge.

ELY, Circuit Judge:

Acunia was convicted of having committed, on an Indian reservation, an act of incest upon his daughter. His appeal presents the question of whether, under the Assimilative Crimes Act, 18 U.S.C. § 13, it was proper to refer to the law of Arizona for definition of, and punishment for, the crime of incest as such crime was listed in 18 U.S.C. § 1153 at the time of the alleged offense, November 9, 1965.

Jurisdiction of the District Court was predicated on 18 U.S.C. § 3231, and ours rests upon 28 U.S.C. §§ 1291, 1294, and 1915.

The District Court ruled that the offense charged in the indictment constituted a violation of 18 U.S.C. § 1153. Although at the time of the alleged offense no federal statute contained a definition or prescribed a punishment for the crime of incest, the District Court determined that the Assimilative Crimes Act, 18 U.S.C. § 13, required reference to state law to supply the definition and punishment for the crime.

18 U.S.C. § 1152, specified in the indictment, subjects non-Indians to the federal criminal law for offenses committed in Indian territory. The section also covers Indians who commit offenses in Indian country but makes an exception important to this case.

"Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.

"This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively."

18 U.S.C. § 1152 (Emphasis added.) The district judge correctly concluded from undisputed evidence that Acunia was an Indian, and the alleged victim was also an Indian. Since the incest charged was "committed by one Indian against the person * * * of another Indian," the District Court also correctly decided that Acunia had committed no offense under section 1152.¹ Nevertheless, relying on section 1153, which was not specified in the indictment, the District Court entered a judgment of conviction pursuant to the jury's verdict of guilty.

Section 1153, at the time of the alleged offense, provided:

"Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, rape, incest, assault with intent to kill, assault with a dangerous weapon, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

"As used in this section, the offense of rape shall be defined in accordance with the laws of the State in which the offense was committed, and any Indian who commits the offense of rape upon any female Indian within the Indian country, shall be imprisoned at the discretion of the court.

"As used in this section, the offense of burglary shall be defined and punished in accordance with the laws of the State in which such offense was committed."

The Government concedes that at the time of the alleged offense the federal statutes did not include a definition or prescribe a penalty for the crime of incest specified in section 1153. Nevertheless, it argues that Congress intended that the Assimilative Crimes Act, 18 U.S.C. § 13, should fill the loophole. We cannot agree.

Assuming that the indictment properly charged a violation of section 1153,² the statute as to the crime charged and as it read at the time of the alleged offense was unenforceable. The section purported to proscribe ten crimes, nine of which were defined and for which there were penalty provisions either by express reference to state law in section 1153 or by other sections of Title 18. Incest, however, was left alone — listed in section 1153 but without definition or provision for penalty.

18 U.S.C. § 13, The Assimilative Crimes Act, provides:

"Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment."

The Supreme Court, in upholding the constitutionality of the statute, has declared the statute's purpose to be to conform the criminal law of federal enclaves to that of local law except in cases of specific federal crimes. United States v. Sharpnack, 355 U.S. 286, 289-295, 78 S.Ct. 291, 2 L.Ed.2d 282 (1958). See also Annot., 2 L.Ed.2d 1686. Nevertheless, it is clear that Congress did not intend that the Assimilative Crimes Act should apply to situations wherein, under the second paragraph of 18 U.S.C. § 1152, the extension to Indian country of the general laws of the United States for federal enclaves is specifically removed.

Although the Assimilative Crimes Act is among the general laws which the first paragraph of section 1152 extends to Indian territory, Williams v. United States, 327 U.S. 711, 713, 66 S.Ct. 778, 90 L.Ed. 962 (1946), section 1152 does not extend to "offenses committed by one Indian against the person or property of another Indian * * *." The Assimilative Crimes Act was applied to sustain a conviction for violation of gambling laws in United States v. Sosseur, 181 F.2d 873 (7th Cir. 1950), but this was only because the gambling offense there involved was held not to be an offense by one Indian against another. Id. at 876. The court explained:

"We think it is clear that unless there is present one of the three conditions provided by § 1152 ¶ 2 to exempt an Indian from liability for offenses under the general laws of the United States to which he is subject by virtue of § 1152 ¶ 1, that section is effective to render him amenable to such general laws, including or as enlarged by the Assimilative Crimes Act."

Id. at 875 (Emphasis added.)

The ten crimes specified in section 1153 as it read at the time of the alleged offense are federal crimes only when committed by one Indian against the person or property of another Indian. Definitions and penalties for seven...