U.S. v. Brisk
| Citation | 171 F.3d 514 |
| Decision Date | 23 March 1999 |
| Docket Number | 97-2581,97-1829,97-4006 and 98-1301,97-1325,Nos. 97-1298,97-2059,s. 97-1298 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Patricia M. BRISK, Lucy A. Beauprey, Isabel M. Cloud, Leona Sanapaw, Barbara Wheelock, James B. Brisk, Jr., and Mary Jane Denny, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Thomas P. Schneider (submitted), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee in Nos. 97-1298, 97-1325, 97-1829 and 97-4006.
Mario Gonzales (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee in No. 97-2059.
Karine Moreno-Taxman, Mario Gonzales (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee in No. 97-2581.
Thomas P. Schneider, Mario Gonzales (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee in No. 98-1301.
Patrick K. Cafferty, Racine, WI, Patricia M. Brisk, Lexington, KY, for Defendant-Appellant Brisk.
Robert J. Palmer, May, Oberfell & Lorber, South Bend, IN, Lucy A. Beauprey, Lexington, KY, for Defendant-Appellant Beauprey.
Kathleen T. Zellner, Zellner & Associates, Naperville, IL, for Defendant-Appellant Cloud.
Catherine M. Canright (argued), Superior, WI, for Defendant-Appellant Sanapaw.
Edward John Hunt (argued), Milwaukee, WI, for Defendant-appellant Wheelock.
Christopher Lowe, Milwaukee, WI, James B. Brisk, Jr., Pekin, IL, for Defendant-Appellant Brisk, Jr.
Robert J. Dvorak (argued), Milwaukee, WI, for Defendant-Appellant Denny.
Before CUMMINGS, BAUER, and DIANE P. WOOD, Circuit Judges.
This is a consolidated appeal by seven defendants convicted of assorted drug offenses. They contend, inter alia, that (1) the district court lacked subject matter jurisdiction over their case, (2) the prosecutor's use of peremptory challenges was discriminatory, and (3) the prosecutor deprived them of a fair trial by making improper comments during his closing argument. We affirm each of the challenged convictions and sentences.
On the Menominee Reservation near Green Bay, Wisconsin, drug trafficking was a family affair. All seven of the defendants whose appeals were consolidated in this case are members of the same family. Patricia M. Brisk ("Brisk"), Isabel M. Cloud ("Cloud"), Leona Sanapaw ("Sanapaw"), and Barbara Wheelock ("Wheelock") are sisters. James B. Brisk, Jr. ("Brisk, Jr."), and Lucy A. Beauprey ("Beauprey") are Brisk's children. Mary Jane Denny ("Denny") is Brisk's niece.
On October 24, 1995, a grand jury for the Eastern District of Wisconsin returned an indictment charging the appellants, as well as several others, with numerous drug-related offenses. In an unrelated case, on April 26, 1996, the government filed a sealed juvenile information against Brisk, Jr., charging him with engaging in a sexual act with a person incapable of declining participation, in violation of 18 U.S.C. §§ 2, 1153, 2242(2)(B).
Pursuant to separate plea agreements, Beauprey, Brisk, and Brisk Jr. each pled guilty to one count of conspiracy to distribute and possession with intent to distribute cocaine, and one count of conspiracy to distribute and possession with intent to distribute marijuana, both in violation of 21 U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. § 2. Brisk, Jr. also pled guilty to the charge in the juvenile information.
The remaining appellants elected to proceed to trial before a jury. During jury selection, which began on October 28, 1996, the government exercised four of its six peremptory challenges to remove women from a venire that consisted of eighteen women and thirteen men. Several defendants objected that the government's use of peremptories was discriminatory. However, the judge did not rule on the issue until after the trial was over.
At trial, several witnesses testified to numerous drug transactions that involved the appellants. The evidence showed that cocaine was purchased in Milwaukee, Chicago, and northern Illinois and brought to the reservation. It was then packaged at the homes of various defendants. During his closing argument, the prosecutor asserted that drugs had been packaged in front of the young children of some of the defendants. The defendants objected that there was no evidence that the children had been present. The district judge instructed the jury to rely on its own recollection of the evidence and to disregard any comments that weren't supported by the evidence.
On November 6, 1996, a jury found that Cloud, Denny, Sanapaw, and Wheelock were each guilty of one count of conspiracy to distribute and possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. § 2. In addition, the jury found that Wheelock was guilty of five counts of knowingly and intentionally distributing cocaine, in violation of 21 U.S.C. § 841(a)(1), and 18 U.S.C. § 2. Appellants' sentences are reflected in the following chart:
Appellant Term of Imprisonment Supervised Release
Beauprey 84 mo. 4 yr
Brisk 115 mo. 3 yr
Brisk, Jr. 112 mo. 3 yr
Cloud 97 mo. 4 yr.
Denny 78 mo. 4 yr.
Sanapaw 97 mo. 4 yr.
Wheelock 125 mo. 8 yr.
Appellants raise three principal issues on appeal. First, Cloud, Denny, Sanapaw, and Wheelock argue that the district court lacked subject matter jurisdiction over their cases. Second, Denny and Wheelock argue that the government violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), by using peremptory challenges to discriminatorily strike women from the venire. Third, Cloud, Denny, Sanapaw, and Wheelock argue that the prosecutor deprived them of a fair trial by making improper and prejudicial comments during his closing argument. Sanapaw and Cloud raise additional issues. Attorneys for Beauprey, Brisk, and Brisk, Jr. seek to withdraw and have each filed an Anders Brief contending that there are no non-frivolous grounds for appeal. In accordance with Circuit Rule 51(a), Beauprey, Brisk, and Brisk, Jr. were informed of their attorneys' motions and each took advantage of the opportunity to respond.
Cloud, Denny, Sanapaw, and Wheelock claim that the lower court lacked subject matter jurisdiction over their cases. They argue that neither the Federal Enclave Act, 18 U.S.C. § 1152, nor the Major Crimes Act, 18 U.S.C. § 1153, gave the court jurisdiction, and that these two statutes are the only sources of federal jurisdiction over crimes committed in Indian country. We review the district court's determination of subject matter jurisdiction de novo.
The Federal Enclave Act extends federal enclave laws, i.e., "laws where the situs of the offense is an element of the crime," United States v. Begay, 42 F.3d 486, 498 (9th Cir.1994), to Indian country. 18 U.S.C. § 1152. However, the Enclave Act further provides that enclave laws "shall not extend [inter alia] to offenses committed by one Indian against the person or property of another Indian." 2 Id. In Ex Parte Crow Dog, the Supreme Court ruled that this intra-Indian exception precluded a district court from exercising subject matter jurisdiction over a murder case in which the Indian defendant had been charged under a federal enclave law. 109 U.S. 556, 562, 3 S.Ct. 396, 400, 27 L.Ed. 1030 (1883). In an attempt to allay the public concern aroused by Crow Dog, Congress enacted the Major Crimes Act, 18 U.S.C. § 1153, which excludes enumerated crimes from the Enclave Act's intra-Indian exception. 3 Keeble v. United States, 412 U.S. 205, 209, 93 S.Ct. 1993, 1996, 36 L.Ed.2d 844 (1973).
Taken together, the Enclave Act and the Major Crimes Act create a two- part inquiry for determining whether a federal court has subject matter jurisdiction over an enclave law case: first, the court must decide whether the case falls within the intra-Indian exception; and second, if it does, the court must decide whether the Major Crimes Act operates to take the case back out of the exception. See Negonsott v. Samuels, 507 U.S. 99, 102, 113 S.Ct. 1119, 1121, 122 L.Ed.2d 457 (1993) (). Appellants contend that their case falls within the intra-Indian exception because they are Indians who have been charged with committing offenses "against the person or property of another Indian." Furthermore, they point out that the Major Crimes Act does not exclude either conspiracy or controlled substance offenses from the intra-Indian exception. Therefore, they conclude that neither statute provides subject matter jurisdiction over their case.
We agree that neither statute provides jurisdiction, but for a different reason--the Enclave Act and the Major Crimes Act are inapposite. Both statutes deal exclusively with federal enclave laws, but enclave laws are not at issue in this case. Every circuit to consider the issue has held that the Enclave Act and Major Crimes Act do not control subject matter jurisdiction in non-enclave law cases. See, e.g., United States v. Yannott, 42 F.3d 999, 1004 (6th Cir.1994); United States v. Wadena, 152 F.3d 831, 841 (8th Cir.1998); Begay, 42 F.3d at 498. See also Richard W. Garnett, Once More into the Maze: United States v. Lopez, Tribal Self-Determination, and Federal Conspiracy Jurisdiction in Indian Country, 72 N.D.L.Rev. 433, 458 (1996) (). It is also clear that the two statutes are not the only sources of federal...
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