U.S. v. Cook

• Decision Date: 07 January 1991
• Docket Number: 105,Nos. 76,106 and 107,D,s. 76
• Parties: UNITED STATES of America, Appellee, v. Roderick Alex COOK, Eli Tarbell, Anthony Laughing and Gerald Laughing, James Joseph Burns, Defendants, Roderick Alex Cook, Eli Tarbell and Anthony Laughing, Defendants-Appellants. UNITED STATES of America, Appellee, v. Peter BURNS, Sr., Defendant-Appellant. ockets 90-1070, 90-1072, 90-1168 and 90-1179.
• Court: U.S. Court of Appeals — Second Circuit

Page 1026

922 F.2d 1026

UNITED STATES of America, Appellee, v. Roderick Alex COOK, Eli Tarbell, Anthony Laughing and Gerald

Laughing, James Joseph Burns, Defendants,

Roderick Alex Cook, Eli Tarbell and Anthony Laughing,

Defendants-Appellants.

UNITED STATES of America, Appellee, v. Peter BURNS, Sr., Defendant-Appellant.

Nos. 76, 105, 106 and 107, Dockets 90-1070, 90-1072, 90-1168

and 90-1179.

United States Court of Appeals Second Circuit.

Argued Sept. 10, 1990.

Decided Jan. 7, 1991.

John A. Piasecki, Malone, N.Y. (Vaughn N. Aldrich, Hogansburg, N.Y., of counsel), for defendant-appellant Cook.

John A. Cirando, Syracuse, N.Y. (D.J. Cirando and Patrick J. Haber, Syracuse, N.Y., of counsel, Mary B. Ruddy, law student, on the brief), for defendants-appellants Tarbell, Laughing and Burns.

Ezra Friedman, Dept. of Justice, Washington, D.C. (Frederick J. Scullin, Jr., U.S. Atty. N.D. New York, Syracuse, N.Y., of counsel), for appellee.

Raymond E. Kerno and Elliot I. Susser, Lake Success, N.Y. (Lysaght, Lysaght & Kramer, Lake Success, N.Y., of counsel), filed a brief for amicus curiae James Burns.

Before WINTER and MINER, Circuit Judges, and LASKER, Senior District Judge. ^*

MINER, Circuit Judge:

Defendants-appellants Eli Tarbell, Anthony Laughing and Peter Burns, Sr. appeal from convictions entered on January 16, 1990, February 26, 1990 and February 27, 1990, respectively, in the United States District Court for the Northern District of New York. Tarbell pled guilty to the unlawful use and possession of gambling devices in Indian country. 15 U.S.C. Sec. 1175 (1988). Laughing and Burns pled guilty to violations of section 1175 and to the operation of illegal gambling businesses. 18 U.S.C. Sec. 1955 (1988). Defendant-appellant Roderick Alex Cook was found guilty, following a jury trial, of violating section 1175.

In pre-trial motions to dismiss their indictments, appellants raised important issues relating to the interpretation and application of several statutes. They claimed that the district court lacked subject matter jurisdiction because the offenses for which they were prosecuted did not occur in Indian country, as required by section 1175. Appellants maintained that 25 U.S.C. Sec. 232 (1988) granted exclusive prosecutorial jurisdiction to the State of New York, precluding the federal prosecutions in their cases. They also argued that both 15 U.S.C. Sec. 1175 and 18 U.S.C. Sec. 1955 were preempted by the enactment of the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. Sec. 2701 et seq. (1988), and of 18 U.S.C. Sec. 1166 (1988), which provides criminal penalties for violations of the IGRA; that the IGRA's grace period applies to the activities of Tarbell, Laughing and Burns; and that even if the IGRA did not preempt the statutes at issue, the government failed to prove that their activities violated state law, an essential element of an offense under section 1955. Other contentions were that section 1175, as applied, violates equal protection principles and that the government must prove that Tarbell and Laughing knew their conduct violated the law.

In denying the motions, Judge McCurn rejected all arguments advanced by appellants. The same arguments are advanced on this appeal. In addition, appellant Cook challenges the sufficiency of the evidence presented to the jury, particularly with respect to the government's proof that he operated "slot machines." Appellants Laughing and Burns challenge their sentences. They object to the four level increase in offense levels for "role in the offense." Laughing objects to Judge McCurn's refusal to grant him a two level reduction in sentence for "acceptance of responsibility." We affirm the district court in all respects.

BACKGROUND

Roderick Alex Cook was convicted after a jury trial of the use and possession of gambling devices in Indian country under 15 U.S.C. Sec. 1175. The conviction stems from the events of December 16, 1987, when the New York State police raided Cook's establishment, the Night Hawk Cafe, and seized 62 slot machines. The conviction of Eli Tarbell for the same offense arose in consequence of the events of December 16, 1987, when the police entered his restaurant, Bear's Den, and seized 77 slot machines. On September 14, 1988 and June 6, 1989, the police again raided the restaurant and seized an additional 82 slot machines.

Anthony Laughing, owner of Tony's Vegas International ("TVI"), was convicted of, inter alia, conducting an illegal gambling business, in violation of 18 U.S.C. Sec. 1955, and the use and possession of slot machines in Indian country, in violation of 15 U.S.C. Sec. 1175. Among other gaming materials observed at TVI during a police raid on June 6, 1989, were 148 slot machines Peter Burns, Sr., co-owner of Burns Casino, was also convicted of violating 18 U.S.C. Sec. 1955 and 15 U.S.C. Sec. 1175. His gambling business included the operation of slot machines, black jack tables and roulette wheels.

7 black jack tables, 3 poker tables, 2 roulette wheels and 1 "craps" table.

All of appellants' alleged gambling establishments were located in the town of Bombay, Franklin County, New York. That area is home to appellants' Indian tribe, the St. Regis Akwesasne Mohawk Indians.

Prior to trial, appellants moved to dismiss the indictments on the ground that the court lacked subject matter jurisdiction because the offenses for which they were indicted did not occur in Indian country as defined by 18 U.S.C. Sec. 1151. They claimed that the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. Sec. 2701 et seq., and 18 U.S.C. Sec. 1166, which provides criminal penalties for violations of the IGRA, "preempted" the application of 15 U.S.C. Sec. 1175 and 18 U.S.C. Sec. 1955. After a hearing, Judge McCurn ruled as a matter of law that the events occurred in Indian country. Similarly, he rejected the claim that 15 U.S.C. Sec. 1175 and 18 U.S.C. Sec. 1955 were superceded by the IGRA and 18 U.S.C. Sec. 1166. United States v. Burns, 725 F.Supp. 116, 124 (N.D.N.Y.1989).

Tarbell, Laughing and Burns entered conditional pleas of guilty, after their motions to dismiss the indictments were denied by Judge McCurn. Only Cook proceeded to trial.

At trial, the government introduced evidence, including the testimony of an employee of the Bureau of Indian Affairs ("BIA"), that the events occurred in Indian country. Also, the written decision of Judge McCurn disposing of the pre-trial motions was received by the trial judge (Van Graafeiland, J.).

After the government rested, Cook moved for a directed verdict of acquittal on the ground that the government failed to prove that he owned slot machines as defined by the statute. In response to Cook's assertion that expert testimony must be presented establishing that the slot machines each contained a "drum or reel with insignia" or that upon application of an element of chance, money or property was dispensed, the judge stated: "The machine is right here before the jury. It's very obvious what it is. I think very few people haven't seen a slot machine at some time or other, and this is obviously a slot machine." The court denied the motion.

On the issue of Indian country, the judge asked the defense if it had any evidence demonstrating that the St. Regis lands were not in Indian country. Besides the introduction of the Treaty of 1796, for the purpose of showing that the St. Regis Indians were not within Indian country, no other evidence was presented. The court then ruled from the bench that the area at issue was located in Indian country.

DISCUSSION

I. Jurisdictional claims

After a jury trial conducted by Judge Van Graafeiland, Cook was convicted of using slot machines in Indian country, in violation of 15 U.S.C. Sec. 1175. Only he argues, on appeal, that the district court lacked subject matter jurisdiction because the St. Regis lands are not Indian country and should have submitted the issue to the jury in any event.

Section 1175 provides, in relevant part, that:

It shall be unlawful to ... possess, or use any gambling device ... within Indian country as defined in [18 U.S.C. Sec. 1151].

Section 1151 defines Indian country as:

(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government ..., (b) all dependent Indian communities within the borders of the United States ... and (c) all Indian allotments, the Indian titles to which have not been extinguished....

18 U.S.C. Sec. 1151 (emphasis supplied). The government contends that the activities for which Cook was prosecuted occurred in Indian country because the St. Regis tribe is within a "reservation" or, in the alternative To determine whether a particular Indian tribe is a dependent community, it is necessary to examine the (1) nature of the area; (2) the relationship of the inhabitants in the area to the Indian tribes and the federal government; and (3) the established practice of government agencies toward that area. United States v. Martine, 442 F.2d 1022, 1023-24 (10th Cir.1971); see State of Alaska v. Native Village of Venetie, 856 F.2d 1384, 1390-91 (9th Cir.1988); United States v. Azure, 801 F.2d 336, 338-39 (8th Cir.1986); United States v. Levesque, 681 F.2d 75, 77-78 (1st Cir.), cert. denied, 459 U.S. 1089, 103 S.Ct. 574, 74 L.Ed.2d 936 (1982). "The phraseology in issue thus seems intended to afford federal criminal jurisdiction over [offenses] committed by Indians in communities which ... are both 'Indian' in character and federally dependent." Levesque, 681 F.2d at 77.

                is a "dependent Indian community."    Cook argues that it is neither of those.  Both the government and Cook provided extensive evidence of the origins of the tribe in support of their contention that it is or is not within a "reservation."    We find it unnecessary to resolve the issue of whether the St. Regis tribe is within an Indian "reservation" because the evidence reveals that it is a dependent Indian community
                

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