United States v. Smith, 052819 FED9, 17-30248
|Opinion Judge:||Callahan, Circuit Judge.|
|Party Name:||United States of America, Plaintiff-Appellee, v. Johnny Ellery Smith, Defendant-Appellant.|
|Attorney:||Conor Huseby (argued), Assistant Federal Public Defender, Office of the Federal Public Defender, Portland, Oregon, for Defendant-Appellant. Paul T. Maloney (argued), Assistant United States Attorney; Kelly A. Zusman, Appellate Chief; Billy J. Williams United States Attorney; United States Attorne...|
|Judge Panel:||Before: Raymond C. Fisher, Richard R. Clifton, and Consuelo M. Callahan, Circuit Judges. FISHER, Circuit Judge, concurring.|
|Case Date:||May 28, 2019|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Argued and Submitted October 10, 2018 Portland, Oregon
Appeal from the United States District Court No. 3:16-cr-00436-BR-1 for the District of Oregon Anna J. Brown, District Judge, Presiding
Conor Huseby (argued), Assistant Federal Public Defender, Office of the Federal Public Defender, Portland, Oregon, for Defendant-Appellant.
Paul T. Maloney (argued), Assistant United States Attorney; Kelly A. Zusman, Appellate Chief; Billy J. Williams United States Attorney; United States Attorney's Office, Portland, Oregon; for Plaintiff-Appellee.
Veronica C. Gonzales-Zamora, Brownstein Hyatt Farber Schreck LLP, Albuquerque, New Mexico; Barbara L. Creel, Southwest Indian Law Clinic, University of New Mexico School of Law, Albuquerque, New Mexico; for Amicus Curiae Southwest Indian Law Clinic.
Before: Raymond C. Fisher, Richard R. Clifton, and Consuelo M. Callahan, Circuit Judges.
The panel affirmed a conviction for two counts of fleeing or attempting to elude a police officer in violation of Oregon Revised Statutes § 811.540(1), as assimilated by 18 U.S.C. § 13, the Assimilative Crimes Act (ACA), and 18 U.S.C. § 1152, the Indian Country Crimes Act (ICCA).
The panel held that the ACA applies to Indian country, by operation of both 18 U.S.C. § 7 (concerning land "reserved or acquired for the use of the United States" and "under the exclusive or concurrent jurisdiction thereof") and the ICCA (concerning "federal enclave" laws).
The panel held that the ACA, when invoked in Indian country, is subject to the exceptions set forth in the ICCA, namely: (1) "offenses committed by one Indian against the person or property or property of another Indian," (2) "any Indian committing any offense in the Indian country who has been punished by the local law of the tribe," or (3) "any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively." The panel held that the Indian-on-Indian exception in the ICCA does not preclude application of the ACA to all "victimless" crimes, and certainly not to the offense in this case. Noting that the ICCA excludes from federal prosecution only Indian defendants who have already been punished by their tribe, the panel rejected the defendant's contention that because he could have been punished in tribal court for the same conduct, his prosecution under the ACA was a needless and unlawful intrusion into tribal sovereignty.
The panel rejected the defendant's claim that 18 U.S.C. § 1153, the Major Crimes Act (MCA), precludes the government from prosecuting any "state crimes" in Indian country that are not listed in the MCA, such as Smith's offense of fleeing and attempting to elude the police as defined under Oregon law.
Concurring, Judge Fisher agreed with the majority that the ACA applies to "Indian country" subject to the ICCA's three exceptions. Observing that there are two ways to arrive at that result, he wrote that he has some reservations about the majority's chosen approach - that the ACA applies to Indian country on its own terms subject to the ICCA's exceptions.
Callahan, Circuit Judge.
Defendant-appellant Johnny Ellery Smith appeals from his district court conviction, by guilty plea, of two counts of fleeing or attempting to elude a police officer in violation of Oregon Revised Statutes (ORS) § 811.540(1), as assimilated by 18 U.S.C. § 13, the Assimilative Crimes Act (ACA), and 18 U.S.C. § 1152, the Indian Country Crimes Act (ICCA). Smith argues that the federal government lacked jurisdiction to prosecute him for his violation of state law in Indian country because the ACA does not apply to Indian country. While previous decisions may state otherwise, Smith argues that these cases merely assumed the applicability of the ACA to Indian country and did not directly address it, and thus do not control. Second, Smith contends that even if the ACA applies generally to Indian country, federal prosecution under the ACA was barred in his case because he could have been prosecuted under tribal law for the same offense. Third, Smith asserts that 18 U.S.C. § 1153, the Major Crimes Act (MCA), "occupies the field of federal court jurisdiction over Indian country violations of state laws" and thus precludes federal prosecution of his assimilated state crime.
We do not find Smith's arguments persuasive. To the extent that this issue was not settled by the Supreme Court decision in Williams v. United States, 327 U.S. 711 (1946), and our decision in United States v. Marcyes, 557 F.2d 1361 (9th Cir. 1977), we confirm that the ACA applies to Indian country, through the operation of 18 U.S.C. § 7 and § 1152. The district court had jurisdiction over Smith's offenses under the ACA and the ICCA, and accordingly we affirm his convictions.
Smith is an enrolled Indian member of the Confederated Tribes of Warm Springs. In September 2016, Smith fled in his vehicle from Warm Springs police officers when they tried to initiate a traffic stop, leading the officers on a highspeed pursuit. During this chase, Smith drove at speeds exceeding 77 miles per hour, crossed over the fog line multiple times, and traveled in the opposing lane of traffic for approximately 100 yards. He eventually turned onto an unpaved dirt path, at which point the officers stopped their pursuit for safety reasons.
Less than two months later, Smith again fled from Warm Springs police officers when they attempted to conduct a traffic stop after observing him speeding. During this pursuit, Smith drove up to 120 miles per hour, failed to stay in the proper lane, drove into the opposite lane of travel, and at one point, slammed on his brakes, causing a pursuing patrol vehicle to rear-end his vehicle. Eventually the officers forced Smith's vehicle off the road, where he exited his vehicle and attempted to flee on foot, but was ultimately stopped and arrested. Both incidents occurred on the Warm Springs Indian Reservation within the State of Oregon.
Smith was charged in federal district court with two counts of fleeing or attempting to elude a police officer, in violation of ORS § 811.540(1), as assimilated by the ACA and the ICCA. Smith was not charged in tribal court for fleeing or attempting to elude a police officer based on these incidents.
Smith filed a motion to dismiss the indictment on the ground that the government lacked jurisdiction to charge him in federal court for a state law violation alleged to have been committed by an Indian in Indian country. The district court denied the motion, after which Smith pled guilty to the two counts in the indictment, while reserving his right to appeal the district court's decision on the jurisdictional issue.
We review de novo jurisdictional issues over criminal offenses. United States v. Begay, 42 F.3d 486, 497 (9th Cir. 1994).
Smith's primary jurisdictional challenge to his convictions is that the ACA does not apply to Indian country, despite the line of cases that have suggested or stated otherwise. The original, and most commonly cited, precedent for the proposition that the ACA applies to Indian country is Williams, wherein the Supreme Court stated: It is not disputed that this Indian reservation is "reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof," or that it is "Indian country" within the meaning of [the ICCA]. This means that many sections of the Federal Criminal Code apply to the reservation, including . . . the Assimilative Crimes Act . . . .
327 U.S. at 713 (footnotes omitted) (quoting 18 U.S.C. § 451, the predecessor to 18 U.S.C. § 7). In Marcyes, we relied on Williams in rejecting an argument raised by amicus curiae against the applicability of the ACA to Indian country, which was virtually identical to the challenge Smith raises here: Amicus' argument that the [Supreme Court in Williams] merely assumed [the ACA's] applicability without deciding the question is belied by the court's own words . . . .
We would also note that the Williams court's ultimate decision . . . would never had been reached had the court felt that the A.C.A. did not apply to any crime committed upon Indian lands. Our own review of the language of 18 U.S.C. § 13 and 18 U.S.C. § 1152 convinces us that the district court was correct in holding that the A.C.A., by its own terms and through § 1152, is applicable to Indian country.
557 F.2d at 1365 n.1 (emphasis added). In several other decisions, we have upheld or asserted the applicability of the ACA in Indian country.1 Other circuits are in accord.2
These prior decisions indicate that the ACA applies to Indian country. Smith alleges, however, that the jurisdictional question was never directly at issue in those other cases but merely assumed, such that we are not bound by those decisions. We do not need to address that contention. Because the jurisdictional question is now directly before us, we expressly hold that the ACA applies to Indian country, based both on precedent and our own analysis of the ACA and the ICCA.
A. The Assimilative Crimes Act
As with all questions of statutory interpretation, we turn first to the text of the statute. The ACA states in part: Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in [18 U.S.C. § 7] . . . 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,...
To continue readingFREE SIGN UP