United States v. Wilbur, 674 F.3d 1160

Background

Defendants Marvin, Joan, April, and Brenda Wilbur were Swinomish Tribal members indicted for an eight-year CCTA conspiracy and related money-laundering counts.
CCTA defines contraband cigarettes as those bearing no evidence of payment of applicable state/local taxes; a tax violation is a predicate to a CCTA offense.
Washington law implemented a cigarette tax contract (CTC) with the Swinomish Tribe in 2003, retroceding state taxes for transactions covered by the contract.
From 1999–2003 the Wilburs sold untaxed, unstamped cigarettes; from 2003–2005 they could be treated as tribal retailers under the Swinomish CTC, limiting state tax retrocession.
In 2005 the Trading Post lost tribal licensing, ending its status as a Tribal retailer under the CTC, thus retrocession did not apply thereafter.
District court denied a motion to dismiss; the Wilburs pled guilty to the conspiracy count with appeal limited to denial of the motion to dismiss.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether any state or local taxes were applicable during 1999–2003	Wilbur argued retrocession left no state taxes in that period.	Wilbur contends there were no applicable state taxes during contract period.	There were applicable state taxes pre-CTC; contraband for 1999–2003.
Whether the Swinomish CTC period (2003–2005) absolves the Wilburs of CCTA liability	During the CTC period, state taxes retroceded for Tribal retailers, rendering no contraband.	CTC created a narrow retrocession that still allowed contraband under certain conditions.	No contraband during this period; the Wilburs could not violate the CCTA while licensed as Tribal retailers.
Whether the post-2005 period (no tribal license) reimposed retrocession and contraband status	Retrocession did not apply once license lapsed; activities thereafter were contraband.	State law retrocession could apply through statutory definitions of Indian retailer.	Retrocession did not apply post-2005; activities were contraband, sustaining liability for later period.
Whether the conspiracy should be treated as one continuous conspiracy or two based on temporal gaps	The conspiracy spanned 1999–2007; statute of limitations issues do not bar the entire indictment.	There was a termination during 2003–2005; thus two conspiracies and statute-of-limitations problems.	Two conspiracies existed with a gap; first conspiracy barred by the five-year statute, second conspiracy valid.
Whether Treaty at Point Elliott or Washington law deprives state enforcement power	Treaty preserves tribal trading rights; federal law disfavors state taxation in treaty context.	Treaty and state law shield tribal traders from state taxes.	Treaty and state law do not deprive Washington of enforcement; CCTA does not unlawfully restrict treaty rights.

Key Cases Cited

United States v. Gord, 77 F.3d 1192 (9th Cir. 1996) (contraband status despite tribe-specific exemptions where pre-notification was lacking)
United States v. Baker, 63 F.3d 1478 (9th Cir. 1995) (due process in CCTA cases; knowledge of tax requirements not required for CCTA)
United States v. Recio, 371 F.3d 1093 (9th Cir. 2004) (conspiracy continues or terminates based on abandonment/defeat of object (predecessor rule))
Continental Baking Co. v. United States, 281 F.2d 137 (6th Cir. 1960) (interruption by government action can suspend but not terminate conspiracy)
United States v. Krasn, 614 F.2d 1229 (9th Cir. 1980) (price-freeze interruption treated as suspension, not termination)
United States v. Cruz, 127 F.3d 791 (9th Cir. 1997) (Cruz conspiracy rule; termination based on abandonment rejected by Recio II)
Miller v. United States, 471 U.S. 130 (1985) (indictment may charge broader conspiracy scope; downstream proof narrows case)
Columbia v. United States, 447 U.S. 134 (1980) (Colville; state taxation on tribal retail sales to non-members upheld)
Smiskin v. United States, 487 F.3d 1260 (9th Cir. 2007) (treaty rights and transportation pre-notification distinctions)
United States v. Fiander, 547 F.3d 1036 (9th Cir. 2008) (prior cases recognizing willfulness and CCTA interpretation)
United States v. Hartz, 458 F.3d 1011 (9th Cir. 2006) (variance/constr. amendment framework for indictments)
United States v. Miller, 471 U.S. 130 (Supreme Court 1985) (constructive amendment/variance principles as applied to indictments)