U.S. v. Baker, s. 94-30125

• Citation: 63 F.3d 1478
• Decision Date: 06 October 1995
• Docket Number: Nos. 94-30125,94-30138 and 94-30144,s. 94-30125
• Parties: 95 Cal. Daily Op. Serv. 6562, 95 Daily Journal D.A.R. 11,233 UNITED STATES of America, Plaintiff-Appellee, v. Kenneth M. BAKER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ralph HALE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Kenneth BAKER; Ralph Hale, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1478

63 F.3d 1478

95 Cal. Daily Op. Serv. 6562, 95 Daily Journal

D.A.R. 11,233

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth M. BAKER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Ralph HALE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant, v. Kenneth BAKER; Ralph Hale, Defendants-Appellees.

Nos. 94-30125, 94-30138 and 94-30144.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 5, 1995.

Decided Aug. 21, 1995.

As Amended on Denial of Rehearing and Rejection of

Suggestions for Rehearing En Banc Oct. 6, 1995.

^*

Douglas Anderson, Missoula, MT, for defendant-appellant-cross-appellee Baker.

Douglas D. Sulkosky, Tacoma, WA, for defendant-appellant-cross-appellee Hale.

Chris A. McLean, Asst. U.S. Atty., Helena, MT, for plaintiff-appellee-cross-appellant U.S.

Ronald B. MacDonald, Datsopoulos, MacDonald & Lind, Missoula, MT, for amicus curiae Feist.

Keith R. Strong, Great Falls, MT, for amicus curiae Dorothy Clinkenbeard.

Michael J. Sherwood, Missoula, MT, for amicus curiae Larry Clinkenbeard.

Appeals from the United States District Court for the District of Montana.

Before: WRIGHT, FERGUSON and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

Appellants Kenneth M. Baker and Ralph Hale (defendants) were convicted in federal district court of one count each of conspiring to traffic in contraband cigarettes, in violation of 18 U.S.C. Sec. 2342 and 18 U.S.C. Sec. 371; two counts each of trafficking in contraband cigarettes, in violation of 18 U.S.C. Sec. 2342(a); one count each of conspiring to commit racketeering activity, in violation of 18 U.S.C. Sec. 1962(d); one count each of committing racketeering activity, in violation of 18 U.S.C. Sec. 1962(c); and 671 and 218 counts, respectively, of money laundering, in violation of 18 U.S.C. Sec. 1956(a)(1)(A)(i).

The defendants appeal their convictions and sentences. They contend that: (1) the Contraband Cigarette Trafficking Act (CCTA), 18 U.S.C. Sec. 2341 et seq., is not applicable to Indian traders; (2) even if the CCTA is applicable, the Act does not prohibit the activities for which they were prosecuted; (3) Washington's cigarette tax scheme--on which their CCTA violation was predicated--is invalid as applied to Indians because it (a) impermissibly intrudes upon rights of Indian sovereignty, (b) is preempted by the Indian Trader Statutes and (c) violates the Equal Protection Clause; (4) the government failed to prove the mens rea element required for conviction of violating the CCTA, conspiring to traffic in contraband cigarettes, and conspiring to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1962(d); (5) they were impermissibly prosecuted for multiplicitous conspiracy counts; (6) there was insufficient evidence to convict them of the charged crimes; (7) the tolling provision of the Speedy Trial Act, 18 U.S.C. Sec. 3161(h), which the district court applied in this case, violates the Sixth Amendment speedy trial guarantee; (8) the district court improperly informed the jury of the potential for appeal; (9) the district court improperly denied their requests for a "good faith" instruction and related request for The government cross-appeals, challenging the defendants' sentences. It argues the district court erred in calculating the defendants' base offense levels under the Sentencing Guidelines.

subpoenas; (10) the district court improperly refused to give proposed jury instructions; (11) the district court wrongfully denied Hale's motion for arrest of judgment and a new trial; and (12) the government engaged in sentencing manipulation.

We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm the defendants' convictions and sentences in their entirety.

FACTUAL BACKGROUND

On October 22, 1992, a grand jury returned a 2,836-count indictment charging 23 alleged coconspirators, among them the defendants Baker and Hale, with forming an enterprise for the purpose of smuggling contraband cigarettes from the State of Montana to the State of Washington, and with committing the substantive offenses of trafficking in contraband cigarettes and laundering the proceeds of contraband cigarette sales.

The indictment was based on the following facts: Stan Feist is the owner of Feist and Watson Enterprises, Inc., d/b/a Sheehan-Majestic, a Montana corporation engaged in the wholesale distribution of cigarettes, candy and specialty foods. Dorothy Clinkenbeard is an enrolled member of the Confederated Salish and Kootenai Indian Tribes, and she holds a wholesaler's license issued by that tribe. Together with her husband Larry Clinkenbeard, Dorothy co-owns the Busted Ass Ranch in Arlee, Montana. Dorothy also owns various other businesses located on the Flathead Indian Reservation in Montana, one of which is Joe's Smoke Ring--a gas station, casino and convenience store.

The State of Montana permits wholesalers to sell tax exempt, unstamped cigarettes in unlimited quantities to Indians living on Indian reservations located within the state. In the early 1980s, Feist entered into an agreement with the Clinkenbeards to be their supplier of unstamped cigarettes.

Pursuant to the arrangement between Feist and the Clinkenbeards, Sheehan Majestic, beginning in mid-1982 and continuing until November 24, 1991, sold unstamped cigarettes to Joe's Smoke Ring in Montana. The unstamped cigarettes obtained from Sheehan Majestic were then transferred from Joe's Smoke Ring to the Busted Ass Ranch in Montana. From the Busted Ass Ranch, the cigarettes were transported by employees of the Clinkenbeards to various prearranged locations in Idaho. There, representatives of various retail smokeshops, all located on Indian reservations in Washington, took possession of the cigarettes and transported them to their Washington destinations.

Washington law provides that all cigarette packages possessed in that state must bear applicable stamps as proof of tax payment. Wash.Rev.Code Sec. 82.24.030. Although Indians are permitted to buy unstamped, tax-exempt cigarettes on Indian reservations located within the State of Washington, all deliveries of unstamped cigarettes to Indian reservations in Washington must be preapproved by the state's Department of Revenue. Wash.Amin.Code Sec. 458.20.192. Unapproved cigarettes are considered contraband. Wash.Admin.Code Sec. 458.20.192. None of the parties involved in the transactions relevant to this case obtained preapproval for bringing any unstamped cigarettes into the State of Washington.

Defendant Baker is an enrolled member of the Shoalwater Indian Tribe. He manages a retail smokeshop, The Shoppe, on the Puyallup Indian Reservation near Tacoma, Washington. Defendant Hale manages a smokeshop known as the Indian Trading Post, which is also located on the Puyallup reservation. Although Hale is not a Native-American, the owner of the Indian Trading Post, Jody Satiacum, is an enrolled member of the Puyallup Tribe and her business is licensed by that tribe. ¹ From the mid-1980s until Baker and Hale were indicted along with Feist, the Clinkenbeards and the other alleged coconspirators. The indictment charged various counts of trafficking in contraband cigarettes, RICO violations, conspiracy to violate RICO, conspiracy to traffic in contraband cigarettes, and money laundering. Some of the coconspirators were granted changes of venue and their cases were severed. ² Feist and the Clinkenbeards pleaded guilty to one count of conspiracy to violate RICO. ³ Charges against other coconspirators were dismissed pursuant to the plea agreements. Baker and Hale went to trial and were convicted on all counts. This appeal followed.

November 1991, Baker and Hale regularly bought unstamped cigarettes from the Clinkenbeards and transported the cigarettes, without obtaining preapproval, into the State of Washington.

DISCUSSION

1. Applicability of the CCTA to Indian Tribal Members

The defendants first contend that the CCTA does not apply to Indians. Because all the charges against the defendants depend on a predicate violation of the CCTA, their convictions must be reversed on all counts if in fact Indians are exempt from the provisions of the Act.

Whether a federal statute applies to Indians is a question of law which we review de novo. Confederated Tribes of Warm Springs Reservation v. Kurtz, 691 F.2d 878, 880 (9th Cir.1982), cert. denied, 460 U.S. 1040, 103 S.Ct. 1433, 75 L.Ed.2d 792 (1983).

The CCTA makes it "unlawful for any person knowingly to ship, transport, receive, possess, sell, distribute, or purchase contraband cigarettes." 18 U.S.C. Sec. 2342. For purposes of the Act, contraband cigarettes are defined as "a quantity in excess of 60,000 cigarettes, which bear no evidence of payment of applicable State cigarette taxes in the State where such cigarettes are found." 18 U.S.C. Sec. 2341(2). The Act excludes from this definition cigarettes which are in the possession of certain specifically identified categories of individuals. ⁴ Indians are not among the specifically exempted categories. Nonetheless, the defendants argue Congress did not intend the provisions of the Act to apply to Indians. ⁵ We reject this argument.

Federal laws of general applicability are presumed to apply with equal force to Indians. United States v. Farris, 624 F.2d 890, 893 (9th Cir.1980), cert. denied sub nom, Baker v. United States, 449 U.S. 1111, 101 S.Ct. 919, 920, 66 L.Ed.2d 839 (1981). See also United States Dep't of Labor v. OSHRC, 935 F.2d 182, 184 (9th Cir.1991) (quoting FPC v. Tuscarora Indian Nation, 362 U.S. A federal statute of general applicability that is silent on the issue of applicability to Indian tribes will not apply to them if: (1) the law touches "exclusive rights of self-governance in purely intramural matters;" (2) the application of the law to the tribe would "abrogate rights guaranteed by Indian treaties;" or (3) there is proof ...