UNITED STATES of America, Plaintiff-Appellee, v. Robert Billy GIPE, Defendant-Appellant.
No. 80-1777
United States Court of Appeals, Ninth Circuit
Argued and Submitted May 11, 1981. Decided March 26, 1982.
672 F.2d 777
VI. Conclusion
This case presents a question of first impression with little if any helpful authority. A review of the record indicates that Judge Conti‘s desire to review and authorize expenses for investigators before the expenses were incurred was known to Mangan. His refusal to approve expenses incurred without prior request and in excess of the $150 limit in this casе does not mandate a reversal. The order of the district court is AFFIRMED.
REINHARDT, Circuit Judge, concurring in the result:
I agree that we are compelled to affirm the order of the district court, but I do so with great reluctance. The result is harsh. Drastic economic consequences arе visited upon an investigator, now deceased, who appears to have acted in good faith at all times. Other district judges might have handled the matter in a different manner and reached a more equitable result. Nevertheless, after considering all of the particular facts and circumstances of this case, I cannot say that the district court abused its discretion. Cf., 7 Administrative Office of the United States Courts, Guide to Judiciary Policies and Procedures, Guidelines for the Administration of the Criminal Justice Act, § A, ch. 3, § 3.02 transmittal 8 (May 15, 1980).
Roger K. Dokken, Asst. U. S. Atty., Phoenix, Ariz., for plaintiff-appellee.
Before CHOY, HUG and POOLE, Circuit Judges.
PER CURIAM:
Appellant Gipe appeals from his conviction for possessing intoxicating liquors in “Indian country” in violation of
Gipe admits to possessing and selling beer at Fort Courage, a shopping area located on fee-patented land within the boundaries of an Indian reservation. He maintains, however, that Fort Courage is “a non-Indian community” and thus by statutory definition not Indian country. After an extensive evidentiary hearing, the district court concluded that Fort Courage is nоt a non-Indian community. The court explicitly labeled this conclusion a jurisdictional finding lying entirely within the competence of the court, and not a factual issue to be determined by the trier of the fact. Gipe submitted the case to the court on the basis of the record developed at the evidentiary hearing, and the court, without re-examining the non-Indian community issue under the beyond-a-reasonable-doubt standard, found him guilty as charged.
We are persuaded that the issue indeed constitutes an element of the crime of possession of intoxicants in Indian country and is neither a jurisdictional issue, as the district court believed, nor a statutory exception that must be proved by the defendant. The district court‘s characterization of the issue as jurisdictional apparently resulted from its failure to distinguish territorial jurisdiction cases, where the exercise of federal jurisdiction over a specific geographic area is necessary to vest jurisdiction in fedеral court. See, e.g., Rodman v. Pothier, 264 U.S. 399, 44 S.Ct. 360, 68 L.Ed. 759 (1924). In such cases, the court may determine as a matter of law the existence of federal jurisdiction over the geographic area, but the locus of the offense within that area is an issue for the trier of fact. United States v. Jones, 480 F.2d 1135, 1138 (9th Cir. 1973). Herе, the court need not have determined the status of Fort Courage in order to establish its jurisdiction and therefore should not have resolved the question as a matter of law. See Mazurie, 487 F.2d at 16 (distinguishing the non-Indian community determination from “the frequently encountered question of whether state or federal jurisdiction exists over certain crimes which is determined by the place where they are committed“).
The structure and wording of
Due process requires that eaсh fact necessary to constitute a crime be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). In order to convict Gipe, the Government must prove beyond a reasonable doubt that Fort Courage was not a non-Indian community.
REVERSED and REMANDED for proceedings consistent with this opinion.
POOLE, Circuit Judge, dissenting.
I must respectfully dissent because I believe that the proper characterization of Fort Courage is essentially a jurisdictional issue, a question of law to be decided by the court and subject to de novo rеview here. Jurisdiction is always a question of law to be determined by the district court. E.g., United States v. Jones, 480 F.2d 1135, 1138 (2d Cir. 1973) (and cases cited therein). The majority concludes that we have a fact issue and therefore an element of the offense of possession because that is how it reads in
Although the statute generally forbids all such possession “in the Indiаn country,” it excludes from the definition of “Indian country” all “fee-patented lands in non-Indian communities,“* and also excludes “rights-of-way through Indian reservations.” The problem is that we are dealing with legislation in which Congress chose to impose jurisdiction discrеtely, not uniformly.
As examples,
Normally, acts performed outside the territorial boundaries of the United States are not within the reach of the criminal laws of our courts although they may be punishable elsewhere. E.g., United States v. Busic, 592 F.2d 13, 20 (2d Cir. 1978); In re Quinn, 525 F.2d 222, 223 (1st Cir. 1975); Hemphill v. Moseley, 443 F.2d 322 (10th Cir. 1971). See United States v. Schmucker-Bula, 609 F.2d 399, 402 (7th Cir. 1980). In the broadest sense, therefore, jurisdiction is always the predicate, not an element, of every offense.
The majority relies solely, and in my thinking unjustifiably, on United States v. Mazurie, 487 F.2d 14 (10th Cir. 1973). That case found determination of a situs as a non-Indian community to be an element of the offense to be proved beyond а reasonable doubt. The court held that the statute was unconstitutionally vague because the term “non-Indian community” was not sufficiently precise. The Supreme Court reversed, finding that the statute was not unconstitutionally vague and holding that the land at issue wаs not a non-Indian community. United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975). The Supreme Court did not reach the issue whether the government or the defendant had the burden of proof with respect to this issue. Id. at 550 n.9.
In our case, the proposed opinion‘s finding that this issue must be proved beyond a reasonаble doubt means that different juries might reach different conclusions with respect to the same tract of land. This possibility would appear to make the statute unconstitutionally vague, thereby conflicting with the Supreme Court‘s contrary determination.
Thе view that status as a non-Indian community is an issue of law is directly supported by United States v. Morgan:
This court, in reviewing the characteristics presented in this case to the district court in regard to the status of appellant‘s localities, is actually reviewing a legal cоnclusion made by the court, namely, whether or not such surroundings can be termed a non-Indian community, or part of same, under the federal statute employing such term as an exception. 614 F.2d 166, 170 (8th Cir. 1980).
This case has never been overturned and in my view accоrds this issue the proper treatment.
Involved here is essentially a territorial determination (Indian country as defined in
Counsel have not cited, nor have we found, a case where it has been contended that the question of acceptance of jurisdiсtion or the location of territorial boundaries should be determined by a jury. There are many cases in which it is clear that these questions have been determined by the court.
Id. Similarly, the opinion in this case cites no authority, except the Tenth Circuit‘s vacated decision in Mazurie, in contradiction.
Finally, the instant case simply is an inappropriate vehicle in which to address this subject. The issue does not arise out of a jury trial in which the judge took it away from the jury, but was the court‘s finding in a bench trial. The judge made no special finding that the prosecution had proved this “element” of the offense beyond a reasonable doubt; but under Rule 23(c) of the Federal Rules of Criminal Procedure, no special finding was required unless requested. United States v. Pace, 454 F.2d 351, 356 n.6 (9th Cir. 1972). Any reliance on United States v. Mazurie, supra, 487 F.2d 14, is misplaced. In that case the Tenth Circuit found that the distriсt judge could not have found that this purported element of the offense had been proved beyond a reasonable doubt because the term “non-Indian community” was unconstitutionally vague. See United States v. Mazurie, supra, 419 U.S. at 549. In this case the majority does not and cannot say that the district judge could not have found bеyond a reasonable doubt that the situs was not a “non-Indian community.”
I would affirm the conviction.
Notes
The full text of
Whoever, exсept for scientific, sacramental, medicinal or mechanical purposes, possesses intoxicating liquors in the Indian country or where the introduction is prohibited by treaty or an Act of Congress, shall, for the first offense, be fined not more than $500 or imprisoned not more than one year, or both; and, for each subsequent offense, be fined not more than $2,000 or imprisoned not more than five years, or both.
The term “Indian country” as used in this section does not include fee-patented lands in non-Indian communities or rights-of-way through Indian reservations, and this section does not apply to such lands or rights-of-way in the absence of a treaty or statute extending the Indian liquor laws thereto.