U.S. v. Marcyes

• Decision Date: 26 July 1977
• Docket Number: Nos. 76-2686 and 76-2848,s. 76-2686 and 76-2848
• Citation: 557 F.2d 1361
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mary MARCYES and James Siddle, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Benjamin REED, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1361

557 F.2d 1361

UNITED STATES of America, Plaintiff-Appellee, v. Mary MARCYES and James Siddle, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Benjamin REED, Defendant-Appellant.

Nos. 76-2686 and 76-2848.

United States Court of Appeals, Ninth Circuit.

July 26, 1977.

John H. Clinebell, Tacoma, Wash., Irwin H. Schwartz, Federal Public Defender, Seattle, Wash., for defendants-appellants.

Robert M. Taylor, U. S. Atty., Jack A. Meyerson, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT, KILKENNY and ANDERSON, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

This is an appeal from an order of the district court affirming the magistrate's conviction, without a jury, of appellants on two counts for (1) possessing unmarked and unclassified and dangerous fireworks in violation of Washington state law, RCW 70.77, sections 485, 540 and 130, all in violation of federal law under the Assimilative Crimes Acts, 18 U.S.C. § 13 and 18 U.S.C. § 1152; and (2) assault and obstruction of a United States officer in violation of 18 U.S.C. § 1501.

The facts are largely undisputed and viewing them in the light most favorable to the government discloses that appellants were the operators of fireworks stands, selling to the public, on the Puyallup Indian Reservation, located in East Tacoma, Washington. On June 28, 1975, the United States Marshal for the Western District of Washington and several of his deputies approached the fireworks stands for the purpose of serving on appellants a restraining order and preliminary injunction issued earlier by the district court and also for the purpose of executing a search warrant issued by a U. S. Magistrate. In the course of performing these duties the marshals observed illegal fireworks and proceeded to seize the fireworks pursuant to the warrant. During the attempted seizure, the appellants assaulted, threatened and otherwise obstructed the marshals in the performance of their duties.

All three appellants waived their right to be tried before the district court and were tried by a magistrate. Before the magistrate Appellants Marcyes and Siddle were represented by counsel. Appellant Reed acted without counsel before the magistrate, but obtained counsel when the case was appealed to the district court, and was appointed counsel for this appeal. All three appellants filed pretrial motions to dismiss, arguing that the government had no authority to proceed under the Assimilative Crimes Act. The magistrate denied the motions and at trial the appellants presented no evidence on their behalf, nor did they question any of the government's witnesses, choosing instead to rely on the legal grounds raised by their motions to dismiss. Each appellant was found guilty as charged by the magistrate and the district court affirmed the convictions by memorandum decision. This appeal followed.

After oral argument, on March 25, 1977, we granted the motion of the National Association of Criminal Defense Lawyers to file their brief and appear as amicus curiae.

All appellants argue that the Assimilative Crimes Act is inapplicable to the present prosecution, and also that the search warrant was invalid and that they cannot be convicted for resisting the execution of an invalid warrant. Appellant Reed argues that he was not properly advised of his right to a jury trial and also that he was not adequately voir dired regarding the waiver of counsel.

ASSIMILATIVE CRIMES ACT

The Assimilative Crimes Act (ACA), 18 U.S.C. § 13, states:

Whoever within or upon any of the places now existing or hereafter reserved or acquired Appellants concede, on this appeal, that the ACA is a general law of the United States made applicable to Indian reservations by 18 U.S.C. § 1152 (Appellants' opening brief, p. 6). Their chief argument is that the ACA only incorporates the general criminal code or prohibitory laws of a state and cannot be utilized to enforce the penal provisions of state regulatory laws such as Washington's fireworks laws. Appellants also argue that Washington's laws cannot be assimilated because the government has adopted other standards regarding fireworks which they contend are controlling.

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.

A literal reading of the statute ("any act or omission") would seem to indicate that appellants' regulatory/prohibitory distinction is unavailing. However, there is support for their contention in the case law. In Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 64 S.Ct. 622, 88 L.Ed. 814 (1944), the Supreme Court, in footnote 8, indicated that a strong argument exists that Congress did not intend to include the penal provisions of a state regulatory system within the ACA. The rationale for this argument is obvious; a state could thereby enforce its regulatory system on the federal jurisdiction by making criminal any failure to comply with those regulations (i. e., licenses, permits, etc.). Appellants argue that this result is even stronger when applied to an Indian reservation because a state would thereby be able to implement all of its regulatory provisions on Indian reservations and thereby destroy the strong concept of tribal sovereignty carried on in such cases as Bryan v. Itasca County, 426 U.S. 373, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976), and Santa Rosa Band of Indians v. Kings County, 532 F.2d 655 (9th Cir. 1975).

We first note that the extent and scope of appellants' argument is misdirected since the Supreme Court has struck down attempts to impose state tax and license fees on Indians on a reservation. Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976). Moreover, whatever persuasiveness appellants' argument may have is lost if the Washington statutory scheme is considered prohibitory rather than regulatory. We conclude that Washington's fireworks law is a prohibitory rather than a regulatory law. Even though the Washington scheme allows for limited exceptions (i. e., public displays, RCW § 70.77.290; movies, RCW § 70.77.535), its intent is to prohibit the general possession and/or sale of dangerous fireworks and is not primarily a licensing law.

The possession of fireworks is not the same situation encountered in other regulatory schemes such as hunting or fishing, where a person who wants to hunt or fish merely has to pay a fee and obtain a license. The purpose of such statutes is to regulate the described conduct and to generate revenues. In contrast, the purpose of the fireworks laws is not to generate income, but rather to prohibit their general use and possession in a legitimate effort to promote the safety and health of all citizens. Moreover, by allowing appellants to operate their stands on the reservation or in any federal enclave would entirely circumvent Washington's determination that the possession of fireworks is dangerous to the general welfare of its citizens.

We also note that Congress' purpose in enacting the ACA was to fill in the gaps in the criminal law applicable to federal enclaves created by the failure of Congress to pass specific criminal statutes. United States v. Sharpnack, 355 U.S. 286, 78 S.Ct. 291, 2 L.Ed.2d 282 (1958); Williams v. United States, 327 U.S. 711, 66 S.Ct. 778, 90 L.Ed. 962 (1946). Thus, the ACA establishes uniformity in a state's prohibitory laws where such conduct is not made penal by federal statutes. Our holding today upholds this policy by insuring that Washington's Appellants' next argument is that, even if the penal provisions of a state's regulatory scheme are incorporated, the Washington fireworks laws may not be assimilated because Congress has provided other standards which are controlling and preempt the field. Appellants point to the Consumer Product Safety Act (C.P.S.A.), 15 U.S.C. § 2051, et seq., and the Federal Hazardous Substances Act (F.H.S.A.), 15 U.S.C. § 1261, et seq. While we agree with appellants that the Government can assimilate state law under the ACA only if no act of Congress makes such conduct punishable, United States v. Williams, supra, their argument misses the point since the C.P.S.A. and the F.H.S.A. deal with the labeling, transportation and other minimum safety standards which apply to those fireworks which are otherwise legally capable of being possessed under state law. Neither C.P.S.A. nor the F.H.S.A. prohibit the possession of the type of fireworks encountered here.

fireworks laws will be uniformly applied to all citizens white or non-white, on or off the reservation. ¹

The F.H.S.A. was enacted to proscribe interstate commerce in certain ultrahazardous substances and to ensure that other hazardous substances not totally banned were properly labeled, describing the substance and the possible hazard to be expected therefrom. 15 U.S.C. § 1263. In dealing with common fireworks, it is clear that Congress did not totally ban interstate dealings in such items, but rather required that they be properly labeled. 15 U.S.C. § 1261(q)(1)(ii). The legislative history of the F.H.S.A. discloses Congressional intent not to restrict states from otherwise prohibiting fireworks:

"Moreover, the limited preemption amendment relates only to labeling and would not preclude States or localities from prohibiting altogether an article, such as fireworks, which would not be banned under the Federal act if properly labeled."

1966 U.S.Code Cong. & Admin.News, pp. 4095, 4097.

The C.P.S.A. was enacted to protect the public against unreasonable risks of...