United States v. Smith

• Citation: 925 F.3d 410
• Decision Date: 28 May 2019
• Docket Number: No. 17-30248,17-30248
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Johnny Ellery SMITH, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

925 F.3d 410

UNITED STATES of America, Plaintiff-Appellee,

v.Johnny Ellery SMITH, Defendant-Appellant.

No. 17-30248

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 10, 2018 Portland, Oregon

Filed May 28, 2019

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, 66 S.Ct. 778, 90 L.Ed. 962 (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.

I.

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 high-speed 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.

II.

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, 66 S.Ct. 778 (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, 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(a). The plain text of the ACA lacks any express reference to Indians or Indian country. The statute on its face also contains no limitation based on the status of the defendant, to include whether he is Indian or non-Indian. Instead, it begins with the all-encompassing term "[w]hoever" in regards to whom it might apply—so long as this person commits the offense "within or upon any of the places now existing or hereafter reserved or acquired as provided in [ 18 U.S.C. § 7 ]." Id .

Hence, the jurisdictional "hook" of the ACA is the situs of the offense, which hinges on the ACA’s reference to 18 U.S.C. § 7. This federal criminal statute defines areas within the "special maritime and territorial jurisdiction of the United States," 18 U.S.C. § 7, which are often referred to as "federal enclaves." See United States v. Markiewicz, 978 F.2d 786, 797 (2d Cir. 1992) ("[F]ederal enclave laws are a group of statutes that permits the federal courts to serve as a forum for the prosecution of certain crimes when they occur within the ‘[s]pecial maritime and territorial jurisdiction of the United States’, 18 U.S.C. § 7 ; this jurisdiction includes federal land, and property such as federal courthouses and military bases.") (alteration in original). If an offense is committed in a federal enclave and there is no federal statute defining that offense (i.e., an offense "not made punishable by any enactment of Congress"), the federal government may nonetheless prosecute the offense through the ACA by assimilating a "like offense" and "like punishment" from the law of the state in which the federal enclave is situated. See Lewis v. United States , 523 U.S. 155, 160, 118 S.Ct. 1135, 140 L.Ed.2d 271 (1998) ("The ACA’s basic purpose is one of borrowing state law to fill gaps in the federal criminal law that applies on federal enclaves.").

Our first question then is whether "Indian country"—or more specifically, the Warm Springs Indian Reservation where Smith’s offenses occurred—qualifies as one of these "places ... reserved or acquired as provided in [ 18 U.S.C. § 7 ]." See 18 U.S.C. § 13(a). Smith contends that Indian country does not fall within the meaning of 18 U.S.C. § 7 because the section lacks any reference to Indian country or Indian reservations. Despite the apparent absence of the term "Indian" however, 18 U.S.C. § 7(3) defines federal territorial jurisdiction to include "[a]ny lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof." Based on a plain reading of this text, any Indian reservation or land that is (1) "reserved or acquired for the use of the United States," and (2) "under the exclusive or concurrent jurisdiction thereof" falls within the ambit of 18 U.S.C. § 7.

Turning first to whether Indian country is "reserved or acquired for the use of the United States," we have stated that the meaning of this phrase in section 7(3)"is plain enough. Courts have demonstrated their faith in the words’ clarity by skipping over them without explication." United States v. Corey , 232 F.3d 1166, 1176 (...