US v. Burns
| Citation | 725 F. Supp. 116 |
| Decision Date | 15 November 1989 |
| Docket Number | 89-CR-153 and 89-CR-154.,No. 89-CR-146 to 89-CR-151,89-CR-146 to 89-CR-151 |
| Parties | UNITED STATES of America, v. James BURNS, Defendant. UNITED STATES of America, v. Roderick COOK, Defendant. UNITED STATES of America, v. Rudolph HART and Renee Hart, Defendants. UNITED STATES of America, v. Anthony LAUGHING and Gerald Laughing, Defendants. UNITED STATES of America, v. David MAINVILLE, Defendant. UNITED STATES of America, v. William SEARS, Defendant. UNITED STATES of America, v. Eli TARBELL, Defendant. UNITED STATES of America, v. Paul TATLOCK and Tarek Tatlock, a/k/a Paul Tatlock, Jr., Defendants. |
| Court | U.S. District Court — Northern District of New York |
Frederick J. Scullin, Jr., U.S. Atty., Syracuse, N.Y., for U.S.; John Brunetti, Asst. U.S. Atty., of counsel.
Vaughn Aldrich, Hogansburg, N.Y., for defendants Paul Tatlock, Mainville, Sears, Cook and James Burns.
John Piasecki, Malone, N.Y., for defendant Paul Tatlock, Jr. a/k/a Tarek Tatlock.
Emil M. Rossi, Syracuse, N.Y., for defendants Tarbell, Rudolph and Renee Hart, and Anthony Laughing; Michael J. Vavonese, of counsel.
Wiles & Fahey, Syracuse, N.Y., for defendant Renee Hart; Joseph E. Fahey, of counsel.
Domina Gerrard Copple & Stratton, Omaha, Neb., for defendant Gerald Laughing; John Peebles, of counsel.
All of the defendants in these criminal matters have been indicted on federal charges of either conducting an illegal gambling business, 18 U.S.C. § 1955, the unlawful use and possession of gambling devices within Indian territory, 15 U.S.C. §§ 1175 and 1176, or knowingly advancing or profiting from unlawful gambling activity within Indian country, 18 U.S.C. § 1166(b). Various other charges have been asserted against a number of the defendants arising out of the efforts of the State Police to arrest certain defendants or seize property pursuant to warrants. This memorandum-decision addresses some of defendants' pre-trial motions to dismiss the indictment which, though denied by this court in a bench decision on November 6, 1989, warrant further elaboration. These motions will be discussed in turn.
(1) 89-CR-148. William John Sears has been separately indicted for one count of knowingly possessing and using gambling devices consisting of slot machines within Indian country on or about December 16, 1987, in violation of 15 U.S.C. §§ 1175 and 1176.
(2) 89-CR-149. Roderick Alex Cook has been separately indicted for one count of knowingly possessing and using gambling devices consisting of slot machines within Indian country on or about December 16, 1987, in violation of 15 U.S.C. §§ 1175 and 1176.
(3) 89-CR-150. Paul A. Tatlock and Paul ("Tarek") Tatlock have been indicted together. There are five counts in the superseding indictment only four of which assert claims against Paul ("Tarek") Tatlock Jr. Count I asserts that Paul A. Tatlock possessed and used gambling devices consisting of slot machines within Indian country on or about December 16, 1987, in violation of 15 U.S.C. §§ 1175 and 1176. Count II asserts both Paul A. Tatlock and Paul ("Tarek") Tatlock Jr. acting in concert together violated 15 U.S.C. §§ 1175 and 1176 by unlawfully using and possessing slot machines within Indian country on June 7, 1989. Count III charges both defendants with the operation of an illegal gambling business from April 10th to July 20, of 1989, in violation of 18 U.S.C. § 1955(a); it is asserted that the gambling operation was prohibited by New York Penal Law §§ 225.05 and 225.30(1)(2)(3) —a necessary element of a § 1955 claim. Count IV asserts that both Tatlock defendants acted in concert on July 7, 1989, to knowingly profit from the operation of black jack tables within Indian country in violation of 18 U.S.C. § 1166(b) as well as New York Penal Law § 225.05. Count V charges the Tatlocks with acting in concert to unlawfully use and possess slot machines within Indian country on July 7, 1989, in violation of 15 U.S.C. §§ 1175 and 1176.
(4) 89-CR-153. David Mainville has had a superseding indictment issued against him which alleges three independent counts. Count I alleges that Mainville owned and operated an illegal gambling business from on or about June 6th to July 20th of 1989, in violation of 18 U.S.C. § 1955(a); this count of the indictment asserts that Mainville's gambling operation was prohibited by New York Penal Law §§ 225.05 and 225.30(1)-(3). Count II alleges that Mainville did knowingly advance or profit from unlawful gambling activity within Indian country on July 7, 1989, in violation of 18 U.S.C. § 1166(b) as well as New York Penal Law § 225.05. Count III alleges that on or about July 7, 1989, Mainville unlawfully used and possessed slot machines within Indian country in violation of 15 U.S.C. §§ 1175 and 1176.
(5) 89-CR-147. James Joseph Burns has been indicted on one count of knowingly using and possessing slot machines within Indian country on December 16, 1987, in violation of 15 U.S.C. §§ 1175 and 1176.
(6) 89-CR-146. Anthony Laughing and Gerald Laughing have been indicted together. There are nine counts in the superseding indictment, three of which assert claims against both defendants. Count I charges Anthony Laughing with use and possession of gambling devices consisting of slot machines within Indian country on or about June 6, 1989, in violation of 15 U.S.C. §§ 1175 and 1176. Count II charges Anthony and Gerald Laughing with the operation of an illegal gambling business from December 27, 1988 to July 20, 1989, in violation of 18 U.S.C. § 1955; it is asserted that the gambling operation was prohibited by New York Penal Law Sections 225.05 and 225.30(1)(2) and (3)—a necessary element of a Section 1955 claim. Count III asserts that Anthony and Gerald Laughing, acting in concert, knowingly profited from unlawful gambling activity consisting of the operation of black jack and dice tables on or about July 8, 1989, in violation of 18 U.S.C. § 1166(b) and 18 U.S.C. § 2, and New York Penal Law Section 225.05. Count IV charges Anthony and Gerald Laughing with use and possession of gambling devices consisting of slot machines within Indian country on or about July 8, 1989, in violation of 15 U.S.C. §§ 1175 and 1176. Count V asserts that Anthony Laughing removed merchandise to prevent the seizure of said merchandise on or about July 20, 1989, in violation of 18 U.S.C. § 2232(a). Count VI charges that Anthony Laughing knowingly conducted an illegal gambling business from August 19, 1989 to September 21, 1989, in violation of 18 U.S.C. § 1955 and New York Penal Law Sections 225.05 and 225.30(1)(2) and (3). Count VII charges Anthony Laughing with use and possession of gambling devices consisting of slot machines within Indian country on or about August 21, 1989, in violation of 15 U.S.C. §§ 1175 and 1176. Count VIII asserts that Anthony Laughing knowingly advanced or profited from unlawful gambling activity on August 21, 1989, in violation of 18 U.S.C. § 1166(b) and 18 U.S.C. § 2, and New York Penal Law Section 225.05. Count IX charges Anthony Laughing with forcibly resisting and interfering with officers of the New York State Police acting in cooperation with special agents of the FBI in executing an arrest warrant, in violation of 18 U.S.C. § 111(a)(1) and 18 U.S.C. § 1114.
(7) 89-CR-151. Eli Tarbell has been indicted on three separate counts of use and possession of gambling devices consisting of slot machines within Indian country on December 16, 1987, September 14, 1988, and June 6, 1989, in violation of 15 U.S.C. §§ 1175 and 1176.
(8) 89-CR-154. Rudolph and Renee Hart are indicted together. Count I of the superseding indictment charges that Harts with conducting an illegal gambling business from February 24, 1989 to July 20, 1989, in violation of 18 U.S.C. §§ 1955(a) and New York Penal Law Sections 225.05 and 225.30(1)(2) and (3). Count II asserts that the Harts knowingly advanced and profited from unlawful gambling activity within Indian country on July 7, 1989, in violation of 18 U.S.C. § 1166(a) and 18 U.S.C. § 2, and New York Penal Law Section 225.05. Count III charges the Harts with use and possession of gambling devices consisting of slot machines within Indian country on July 7, 1989, in violation of 15 U.S.C. §§ 1175 and 1176.
The fundamental question raised by defendants' motions is whether state and/or federal jurisdiction exists over the subject matter contained in the indictments. The court concludes that the state and federal courts have concurrent criminal jurisdiction over the matters at hand.
Defendants challenge the subject matter jurisdiction of this court over the charges brought. Defendants maintain that the reservation is a sovereign territory, the jurisdiction over which is governed by treaties with the United States. They cite the Treaty of Fort Harmar of 1789, entered into by the United States and the Six Nations of the Iroquois confederacy.1 According to the defendants, the Iroquois ceded jurisdiction only over robbery and murder to the United States, and in five subsequent treaties with the United States, made no further grant of any authority over the Indian nations either to the United States or the State of New York.
In addition, defendants seem to contend that the federal court lacks jurisdiction over any crime not enumerated in 18 U.S.C. § 1153(a). Federal jurisdiction over these crimes is contained in 18 U.S.C. § 1152.
Defendants also claim that Congress has ceded exclusive criminal jurisdiction over Indian country in the State of New York to the state, pursuant to 25 U.S.C. § 232, thus divesting the United States of jurisdiction over the charges.
It should be noted at the outset that the sovereignty retained by native American tribes is limited. United States v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978). It may be divested by federal law or when...
To continue reading
Request your trial
-
United Keetoowah Band of Cherokee Indians v. State of Okl. ex rel. Moss
...471 U.S. 759, 759, 105 S.Ct. 2399, 2399, 85 L.Ed.2d 753 (1985) (same). We are mindful of the views expressed in United States v. Burns, 725 F.Supp. 116 (D.N.Y.1989), aff'd sub nom. United States v. Cook, 922 F.2d 1026 (2d Cir.1991), but find their analyses distinguishable. There the defenda......
-
U.S. v. Cook
...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 d......
-
Bowen v. Doyle
...Circuit have held that § 233 is to be read in a manner consistent with P.L. 280 and the principles of Bryan. In United States v. Burns, 725 F.Supp. 116, 125 (N.D.N.Y.1989), the court explained: The grant of civil and criminal authority to New York in 25 U.S.C. §§ 232 and 233 is very similar......
-
U.S. v. Yannott
...and its exceptions do not affect the application of general federal criminal statutes to Indian reservations. See United States v. Burns, 725 F.Supp. 116, 121 (N.D.N.Y.1989). In this case, defendant was charged with violating 18 U.S.C. Sec. 922(g), possession of a firearm by a convicted fel......