U.S. v. Weaselhead, 8:97CR45.

• Decision Date: 04 December 1997
• Docket Number: No. 8:97CR45.,8:97CR45.
• Citation: 36 F.Supp.2d 908
• Parties: UNITED STATES of America, Plaintiff, v. Robert Lee WEASELHEAD, Jr., Defendant.
• Court: U.S. District Court — District of Nebraska

36 F.Supp.2d 908

UNITED STATES of America, Plaintiff, v. Robert Lee WEASELHEAD, Jr., Defendant.

No. 8:97CR45.

United States District Court, D. Nebraska.

December 4, 1997.

Michael P. Norris, Assistant U.S. Attorney, Omaha, NE, for Plaintiff.

David R. Stickkman, Federal Public Defender, Omaha, NE, for Defendant.

ORDER

SHANAHAN, District Judge.

Before the court are (1) filing no. 10, the "Motion to Dismiss Indictment and Request for Evidentiary Hearing and Oral Argument," filed by the defendant, Robert Lee Weaselhead, Jr.; (2) filing no. 24, the "Amended Motion to Dismiss Indictment and Request for Evidentiary Hearing and Oral Argument," filed by the defendant, Robert Lee Weaselhead, Jr.; (3) filing no. 26, the "Motion to Suppress Statements and Request for Oral Argument and Evidentiary Hearing," filed by the defendant, Robert Lee Weaselhead, Jr.; (4) filing no. 32, the "Report and Recommendation" of Magistrate Judge Thomas D. Thalken; and (5) filing no. 33, the "Objections to the Report and Recommendation of Magistrate Judge Thomas D. Thalken," filed by the plaintiff, the United States of America.

In filing no. 32, Magistrate Judge Thomas D. Thalken recommends that the "Amended Motion to Dismiss Indictment and Request for Evidentiary Hearing and Oral Argument" (filing no. 24), filed by the defendant, Robert Lee Weaselhead, Jr., be granted, and the "Motion to Suppress Statements and Request for Oral Argument and Evidentiary Hearing" (filing no. 26), filed by the defendant, Robert Lee Weaselhead, Jr., be denied.

No objections have been made with respect to Magistrate Judge Thomas D. Thalken's recommendation that the "Motion to Suppress Statements and Request for Oral Argument and Evidentiary Hearing" (Filing no. 26), filed by Robert Lee Weaselhead, Jr., be denied. (filing no. 32). Notwithstanding the absence of any objection, the court, pursuant to NELR 72.4 and 28 U.S.C. § 636(b)(1)(C), has conducted an independent and de novo review of the record. The court accepts Magistrate Judge Thomas D. Thalken's "Report and Recommendation" (filing no. 32), with respect to Magistrate Judge Thomas D. Thalken's recommendation that the "Motion to Suppress Statements and Request for Oral Argument and Evidentiary Hearing" (Filing no. 26), filed by the defendant, Robert Lee Weaselhead, Jr., be denied.

The plaintiff, the United States of America has filed objections to the portion of Magistrate Judge Thomas D. Thalken's recommendation that the "Amended Motion to Dismiss Indictment and Request for Evidentiary Hearing and Oral Argument" (filing no. 24), filed by the defendant, Robert Lee Weaselhead, Jr. be granted. Pursuant to 28 U.S.C. § 636(b)(1)(C) and NELR 72.4, this court makes a "de novo determination of those portions of the report ... or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C) ("[w]hether a magistrate's report and recommendation is correct").

BACKGROUND

Robert Lee Weaselhead, Jr. (Weaselhead), is an enrolled member of the Blackfoot Indian Tribe of Montana. On March 20, 1997, Winnebago tribal police arrested Weaselhead for sexually assaulting a minor on the Winnebago Indian Reservation. On March 20, 1997 in the Winnebago Tribal Court, Weaselhead entered a plea of "no contest" to the charge of first degree sexual assault.

In exchange for Weaselhead's plea of "no contest," Winnebago Tribal prosecutors agreed to dismiss all other pending charges against Weaselhead including: (1) contributing to the delinquency of a minor; (2) child abuse; and (3) criminal trespass. An implicit understanding existed between tribal prosecutors and Weaselhead that the plea agreement encompassed not only charged conduct, but also, uncharged sexual misconduct conduct that allegedly occurred on February 27, 1997 and March 1, 1997. On March 20, 1997, the Winnebago Tribal Court accepted Weaselhead's plea and sentenced Weaselhead for his conviction of the March 15, 1997 sexual assault of a minor.

On March 20, 1997, a federal grand jury returned a single count indictment charging Weaselhead with engaging in sexual relations with a minor in violation of 18 U.S.C. §§ 2243 and 1153. Subsequently, on June 17, 1997, a federal grand jury returned a superseding three-count indictment charging Weaselhead with engaging in sexual relations with a minor¹ in contravention of 18 U.S.C. §§ 2243 and 1153. Count III of the "Superseding Indictment" (filing no. 18) has its genesis in the same conduct which was the basis of Weaselhead's no contest plea and conviction in the Winnebago Tribal Court. Counts I and II of the "Superseding Indictment" relate to sexual misconduct conduct that allegedly occurred on February 27, 1997 and March 1, 1997.

In response to the Indictment (filing no. 1), Weaselhead filed a "Motion to Dismiss [the] Indictment and Request for [an] Evidentiary Hearing and Oral Argument" (filing no. 10). Weaselhead subsequently filed an "Amended Motion to Dismiss [the] Indictment and Request for [an] Evidentiary Hearing and Oral Argument" (filing no. 24), in response to the Superseding Indictment (filing no. 18). In filing no. 24, Weaselhead alleges, inter alia, that (1) the subsequent federal prosecution of a nonmember Indian violates the Double Jeopardy Clause of the Fifth Amendment and (2) federal prosecutors are bound the March 20, 1997 plea agreement between Weaselhead and Winnebago tribal prosecutors.

ANALYSIS

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. While the exact scope of this clause has resisted repeated efforts at definition, it is axiomatic that successive prosecutions for the same unlawful conduct initiated by separate sovereigns do not offend the Constitution. United States v. Wheeler, 435 U.S. 313, 316, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); See generally, Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) (reaffirming the well-established principle that a federal prosecution does not bar a subsequent state prosecution of the same person for the same conduct); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959) (upholding successive state and federal prosecutions).

In Heath v. Alabama, 474 U.S. 82, 90, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985), the Supreme Court explained the dual sovereignty doctrine as follows: "[T]he dual sovereignty doctrine is founded on the common law conception of crime as an offense against the sovereignty of the government. When a in a single act violates the peace and dignity of two sovereigns by breaking the laws of each, [the defendant] has committed two distinct offences." See Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 2053, 135 L.Ed.2d 392 (1996) (reaffirming that successive prosecutions by separate sovereigns do not violate the Double Jeopardy Clause); United States v. Williams, 104 F.3d 213, 216 (8th Cir.1997).

Consequently, when the same act transgresses the laws of two sovereigns, "it cannot truly be averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which [the offender] is justly punishable." Heath, 474 U.S. at 88 106 S.Ct. 433, quoting Moore v. Illinois, 55 U.S. 13, 19, 14 How. 13, 14 L.Ed. 306 (1852); United States v. Pena, 67 F.3d 153, 155 (8th Cir.1995);

The "dual sovereignty" doctrine, however, is inapplicable, where nominally different prosecuting entities initiate successive prosecutions predicated on analogous conduct. Wheeler, 435 U.S. at 318, 98 S.Ct. 1079. The application of the dual sovereignty doctrine is, therefore, contingent upon the two prosecuting entities deriving their prosecutorial powers from independent sources of authority. Heath, 474 U.S. at 90, 106 S.Ct. 433; People of Puerto Rico v. Shell Co., 302 U.S. 253, 264-66, 58 S.Ct. 167, 82 L.Ed. 235 (1937).

"The derivation of tribal prosecutorial authority has confounded courts and generated a torrent of conflicting commentary." Negonsott v. Samuels, 507 U.S. 99, 102, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993) (noting the existence of a complex patchwork of federal, state and tribal law governing criminal jurisdiction over offenses committed in "Indian country"). In 1978, the Supreme Court unanimously determined that the Double Jeopardy Clause of the Fifth Amendment did not preclude a successive federal prosecution of a tribal member defendant under the Major Crimes Act.² Wheeler, 435 U.S. at 326, 98 S.Ct. 1079. Underlying this determination was the recognition that Indian tribes constitute separate sovereigns for the purpose of the double jeopardy clause of the Fifth Amendment. Wheeler, 435 U.S. at 329-30, 98 S.Ct. 1079. The Supreme Court reasoned that the exercise of criminal authority over tribal members, rather than being derived by delegated federal authority, was an aspect of non-divested inherent tribal sovereignty. Id.

Sixteen days prior to the Wheeler decision, the Supreme Court issued Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978). In Oliphant, the Supreme Court determined that Indian tribes could not exercise criminal jurisdiction over non-Indians in the absence of some affirmative congressionally delegated authority. Oliphant v. Suquamish Tribe, 435 U.S. 191, 210, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978). The Supreme Court predicated the Oliphant decision, inter alia, on the recognition that the tribe's dependent statutes implicitly divested tribal authority over non-Indians.³

In Duro v. Reina, the Supreme Court extended the judicial divestiture of sovereignty enunciated in Oliphant. The Supreme Court examined affirmative legislative enactments and determined that Indian tribes do not have criminal jurisdiction over nonmember Indians. Duro v. Reina, 495 U.S. 676, 684, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990). Although the Court...