U.S. v. Butler, 76-1044

Decision Date02 September 1976
Docket NumberNo. 76-1044,76-1044
Citation541 F.2d 730
PartiesUNITED STATES of America, Appellee, v. Darelle Dean BUTLER, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Joseph Beeler, Miami, Fla., for appellant; Bruce Ellison, Wounded Knee Legal Defense/Offense Committee, Rapid City, S. D., filed appearance; Ray Archuleta, Serra, Perlson & Metcalf, San Francisco, Cal., on briefs.

R. D. Hurd, Asst. U. S. Atty., Sioux Falls, S. D., for appellee; William F. Clayton, U. S. Atty., and David R. Gienapp, Asst. U. S. Atty., Sioux Falls, S. D., filed appearance; Jonathan J. Anderson, Legal Intern, Sioux Falls, S. D., on briefs.

Before LAY and WEBSTER, Circuit Judges, and URBOM *, Chief District Judge.

LAY, Circuit Judge.

Darelle Dean Butler, an Indian, challenges his conviction for the possession of a firearm by a felon under state law, SDCL § 23-7-3, pursuant to the Assimilated Crimes Act, 18 U.S.C. § 13.

On September 5, 1975 Butler was observed by FBI agents on the Rosebud Sioux Reservation in South Dakota. He was known as an individual with prior felony convictions and was observed at the time to be wearing a .45 caliber revolver in a hip holster. On this basis he was arrested and charged with unlawful possession of the weapon.

Butler was originally indicted under a federal statute of general application, the National Firearms Act, 18 U.S.C. App. § 1202(a)(1) 1 and charged with receipt and possession of a firearm. A superseding indictment retained that charge as Count I and added a second count charging a violation of South Dakota law, SDCL § 23-7-3, under the Assimilated Crimes Act. The defendant moved to dismiss the first count for lack of jurisdiction and the second count for duplicity. The motions were denied, but the government voluntarily dismissed Count I before trial. The defendant then moved to dismiss Count II for lack of jurisdiction, but this motion was also denied. The defendant was tried and convicted for illegal possession of a weapon by a felon under South Dakota law as made applicable by the Assimilated Crimes Act.

On appeal Butler asserts a denial of equal protection and challenges the legality of the search, the sentencing process, and the jurisdiction of the federal district court to try him under the Assimilated Crimes Act (denoted ACA).

I. Equal Protection.

Butler argues that he has been denied equal protection of law, because the crime of possessing a firearm by a felon when committed on a federal enclave, carries a greater penalty than if committed elsewhere in the state. We disagree. In United States v. Big Crow, 523 F.2d 955 (8th Cir. 1975), we held the federal statutory scheme, which imposed a maximum penalty of five years for the commission of an assault by an Indian, but a maximum penalty of only six months when committed by a non-Indian, was in violation of equal protection of the laws under the Due Process Clause of the Fifth Amendment. Butler's situation is clearly distinguishable from that of Big Crow. First, Butler's two year sentence under the ACA was no greater than what he would have received under 18 U.S.C. App. § 1202(a) or 18 U.S.C. § 922(h). Secondly and more importantly, his prosecution under the ACA was not peculiar to his race. Any felon, whether White, Black or Indian, could be prosecuted under the ACA for possession of a firearm. Under these circumstances there can be no claim of invidious discrimination.

II. Search and Seizure.

Butler also argues that the firearm was the fruit of an unlawful search and seizure. There can be no doubt in this case that the search was legal. The FBI agents were in the process of serving several arrest warrants when Butler, a known felon, entered the immediate vicinity wearing the firearm in a hip holster. Both requirements of the plain view doctrine were met: (1) the agents had a legal right to be in that position; and (2) the firearm was in plain view. See, e. g., United States v. Webb, 533 F.2d 391 (8th Cir. 1976); and United States v. Williams, 523 F.2d 64 (8th Cir. 1975), cert. denied, 423 U.S. 1090, 96 S.Ct. 884, 47 L.Ed.2d 101 (1976).

III. The Sentencing Process.

The sentence was alleged to be tainted, because the district court considered the fact that Butler had been recently indicted for murder. The record demonstrates that the district court had knowledge of Butler's recent indictment, but there was no showing that it affected the court's sentence. In fact the record is to the contrary.

IV. Federal Jurisdiction Under the Assimilated Crimes Act.

The Assimilated Crimes Act reads:

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.

18 U.S.C. § 13 (emphasis added).

The defendant contends that the ACA was improperly applied in this case because his act was "made punishable by (an) enactment of Congress" within the meaning of the statute, so that resort to state law was not permissible. 2 The defendant argues under the reasoning of Williams v. United States, 327 U.S. 711, 66 S.Ct. 778, 90 L.Ed. 962 (1946) that 18 U.S.C. App. § 1202(a) (1) takes precedent over state law, and the latter cannot be allowed to expand the scope of the federal laws. 3

The district court 4 rejected this argument, reasoning that the ACA's language, "any enactment of Congress," was intended to refer only to federal enclave laws. See, e. g., 18 U.S.C. § 113. Construing § 1202(a)(1) as a general federal criminal statute, applicable to persons on or off federal enclaves, 5 and thus not specifically an enclave law, the district court found prosecution under the South Dakota statute proper.

We cannot accept such a narrow construction of the Assimilated Crimes Act. 6 This interpretation slights the plain meaning of the ACA and overlooks its legislative history and purpose.

Plain Meaning. The ACA makes state law applicable unless the "act or omission" is "made punishable by any enactment of Congress." Where a congressional enactment is not ambiguous there is no need for "indulging in uneasy statutory construction." Barrett v. United States, 423 U.S. 212, 96 S.Ct. 498, 501, 46 L.Ed.2d 450 (1976). See, also, Huddleston v. United States, 415 U.S. 814, 831, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974); Yates v. United States, 354 U.S. 298, 305, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957); and United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95-6, 5 L.Ed. 37 (1820). It is difficult to reason here that Congress intended the words "any enactment" to mean only federal enclave laws. The history of the ACA is to the contrary.

History. The predecessors to 18 U.S.C. § 13 made no reference to specific congressional enactment such as federal enclave laws but, rather, referred to "any laws." The immediate predecessor to the ACA referred to "any act or thing which is not made penal by any laws of Congress." Act of June 5, 1940, Ch. 241, 54 Stat. 234. An earlier version used the phrase "not specifically provided for, by any law of the United States." Federal Crimes Act of March 3, 1825, Ch. 65, § 3, 4 Stat. 115.

Purpose. The district court based its interpretation of the ACA upon a supposed purpose to equalize the rights and duties of persons on and off federal enclaves. We find no history or precedent to support this interpretation. The legislative history of the ACA demonstrates that its purpose was not to equalize, but to fill the voids in the criminal law applicable to federal enclaves created by the failure of Congress to pass specific criminal statutes. See United States v. Sharpnack, 355 U.S. 286, 288-89, 78 S.Ct. 291, 2 L.Ed. 282 (1958); Williams v. United States, 327 U.S. 711, 718-23, 66 S.Ct. 778, 90 L.Ed. 962 (1946); and United States v. Press Publishing Co., 219 U.S. 1, 31 S.Ct. 212, 55 L.Ed. 65 (1911). 7

Although the precise issue has not been discussed, other decisions have not applied state law under the ACA when a general federal statute punished the same conduct. See, e. g., United States v. Olvera, 488 F.2d 607 (5th Cir. 1973), cert. denied, 416 U.S. 917, 94 S.Ct. 1625, 40 L.Ed.2d 119 (1974). (Possession of a controlled substance under 21 U.S.C. § 844(a).)

We conclude that the district court erred in its construction of the Assimilated Crimes Act and that the plain meaning of that Act requires state law not be "assimilated" where "any enactment of Congress" punished the conduct. We turn then to the question of whether any enactment of Congress covers the acts of the defendant thereby precluding use of the ACA to apply state law.

The government's original indictment under § 1202(a), charging the defendant with both receipt and possession, indicates that the government had probable cause that the defendant was punishable under an enactment of Congress specifically punishing his precise conduct. However, the district court reasoned that the conduct of the defendant was not "made punishable by (an) enactment of Congress," specifically not by § 1202(a)(1), because of the additional requirement 8 of the federal statute that the defendant possess the firearm "in commerce or affecting commerce." 9

Whether a variance of proof changes the nature of the conduct was discussed in Williams v. United States, 327 U.S. 711, 66 S.Ct. 778, 90 L.Ed. 962 (1946). There the defendant was convicted for statutory rape under state law pursuant to the ACA. The federal crime of carnal knowledge required proof that the victim was under 16 years of age and that force was used by the offender and that the victim had not consented. Under Arizona law, a conviction was obtainable if the victim...

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