United States v. Roderick Alex Cook, Eli Tarbell, Anthony Laughing and Gerald Laughing, James Joseph Burns, Roderick Alex Cook, Eli Tarbell and Anthony Laughing, United States of America v. Peter Burns, Sr.United States v. Roderick Alex Cook, Eli Tarbell, Anthony Laughing and Gerald Laughing, James Joseph Burns, Roderick Alex Cook, Eli Tarbell and Anthony Laughing, United States of America v. Peter Burns, Sr.
John A. Cirando, Syracuse, N.Y. (D.J. Cirando and Patrick J. Haber, Syracuse, N.Y., of counsel, Mary B. Ruddy, law student, on the brief), for defendants-appellants Tarbell, Laughing and Burns.
Ezra Friedman, Dept. of Justice, Washington, D.C. (Frederick J. Scullin, Jr., U.S. Atty. N.D. New York, Syracuse, N.Y., of counsel), for appellee.
Raymond E. Kerno and Elliot I. Susser, Lake Success, N.Y. (Lysaght, Lysaght & Kramer, Lake Success, N.Y., of counsel), filed a brief for amicus curiaе James Burns.
Before WINTER and MINER, Circuit Judges, and LASKER, Senior District Judge.*
MINER, Circuit Judge:
Defendants-appellants Eli Tarbell, Anthony Laughing and Peter Burns, Sr. appeal from convictions entered on January 16, 1990, February 26, 1990 and February 27, 1990, respectively, in the United States District Court for the Northern District of New York. Tarbell pled guilty to the unlawful use and possession of gambling devices in Indian country.
In pre-trial motions to dismiss their indictments, appellants raised important issues relating to the interpretation and application of several statutes. They claimed that the district court lacked subject matter jurisdiction because the offenses for which they were prosecuted did not occur in Indian country, as rеquired by
In denying the motions, Judgе McCurn rejected all arguments advanced by appellants. The same arguments are advanced on this appeal. In addition, appellant Cook challenges the sufficiency of the evidence presented to the jury, particularly with respect to the government‘s proof that he operated “slot machines.” Appellants Laughing and Burns challenge their sentences. They object to the four level increase in offense levels for “role in the offense.” Laughing objects to Judge McCurn‘s refusal to grant him a two level reduction in sentence for “acceptance of responsibility.” We affirm the district court in all respects.
BACKGROUND
Roderick Alex Cook was convicted after a jury trial of the use and possessiоn of gambling devices in Indian country under
Peter Burns, Sr., co-owner of Burns Casino, was also convicted of violating
All of appellants’ alleged gambling establishments were located in the town of Bombay, Franklin County, New York. That area is home to appellants’ Indian tribe, the St. Regis Akwesasne Mohawk Indians.
Prior to trial, appellants moved to dismiss the indictments on the ground that the court lacked subject matter jurisdiction because the offenses for which they were indicted did not occur in Indian country as defined by
Tarbell, Laughing and Burns entered conditional pleas of guilty, after their motions to dismiss the indictments were denied by Judge McCurn. Only Cook proceeded to trial.
At trial, the government introduced evidence, including the testimony of an employee of the Bureau of Indian Affairs (BIA), that the events occurred in Indian country. Also, the written decision of Judge McCurn disposing of the pre-trial motions was received by the trial judge (Van Graafeiland, J.).
After the government rested, Cook moved for a directed verdict of acquittal on the ground that the government failed to prove that he owned slot machines as defined by the statute. In response to Cook‘s assertion that expert testimony must be presented establishing that the slot machines each contained a “drum or reel with insignia” or that upon application of an element of chance, money or property was dispensed, the judge stated: “The machine is right here before the jury. It‘s very obvious what it is. I think very few people haven‘t seen a slot machine at some time or other, and this is obviously a slot machine.” The court denied the motion.
On the issue of Indian country, the judge asked the defense if it had any evidence demonstrating that the St. Regis lands were not in Indian country. Besides the introduction of the Treaty of 1796, for the purpose of showing that the St. Regis Indians were not within Indian country, no other evidence was presented. The court then ruled from the bench that the area at issue was located in Indian country.
DISCUSSION
I. Jurisdictional claims
After a jury trial conducted by Judge Van Graafeiland, Cook was convicted of using slot machines in Indian country, in violation of
It shall be unlawful to ... possess, or use any gambling device ... within Indian country as defined in [
18 U.S.C. Sec. 1151 ].
(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government ..., (b) all dependent Indian communities within the borders of the United States ... and (c) all Indian allotments, the Indian titles to which have not been extinguished....
To determine whether a particular Indian tribe is a dependent community, it is necessary to examine the (1) nature of the area; (2) the relationship of the inhabitants in the area to the Indian tribes and the federal government; and (3) the established practice of government agencies toward that area. United States v. Martine, 442 F.2d 1022, 1023-24 (10th Cir.1971); see State of Alaska v. Native Village of Venetie, 856 F.2d 1384, 1390-91 (9th Cir.1988); United States v. Azure, 801 F.2d 336, 338-39 (8th Cir.1986); United States v. Levesque, 681 F.2d 75, 77-78 (1st Cir.), cert. denied, 459 U.S. 1089, 103 S.Ct. 574, 74 L.Ed.2d 936 (1982). “The phraseology in issue thus seems intended to afford federal criminal jurisdiction over [offenses] committed by Indians in communities which ... are both Indian in character and federally dependent.” Levesque, 681 F.2d at 77.
On the issue of Indian country, the trial judge initially received into evidence the Treaty of 1796--entered into between the United States, the State of New York and the St. Regis Mohawks--which established a six-mile tract of land for the occupancy of the St. Regis Indians. See St. Regis Tribe of Mohawk Indians v. State, 5 N.Y.2d 24, 29, 177 N.Y.S.2d 289, 291, 152 N.E.2d 411, 412 (1958), cert. denied, 359 U.S. 910, 79 S.Ct. 586, 3 L.Ed.2d 573 (1959). Additionally, evidence on the nature of the area, the inhabitants and the relationship between the federal government and the Indians was provided by Dean A. White, an employee of the BIA.
White testified that the six-mile area is inhabited by approximately 3,000 St. Regis Mohawk Indians. He further testified that the tribe is a federally recognized tribe. See 51 Fed.Reg. 25,115 (1986) (tribe recognized as having a “special relationship” with the United States). The BIA provides the St. Regis tribe with monies for education, housing and training programs, social services and the administration of the tribal government. Loans to both the tribe and its individual members are guaranteed by the BIA. Finally, the BIA is involved in the planning and funding of roads within the reservation and is charged with maintaining the integrity of the lands and resources. We think that there was ample evidence from which Judge Van Graafeiland properly could conclude that the St. Regis tribe is a dependent community. See United States v. Sandoval, 231 U.S. 28, 47-48, 34 S.Ct. 1, 6-7, 58 L.Ed. 107 (1913).
Cook also takes issue with the failure of Judge Van Graafeiland to submit the question of whether the area at issue was a dependent Indian community and with his instruction to the jury to that effect. The jury was instructed that it need only decide whether the offenses charged in the indictment occurred.
In cases where the exercise of federal jurisdiction over a geographic area is necessary to vest jurisdiction in the federal courts, the court may determine as a matter of law the existence of such jurisdiction. United States v. Jones, 480 F.2d 1135, 1138 (2d Cir.1973) (the issue of acceptance of federal jurisdiction over VA hospital was properly decided by the judge not the jury); see also United States v. Gipe, 672 F.2d 777, 779 (9th Cir.1982). Determinations of whether the site of an offense is Indian country have been held to be for the court alone. United States v. Sohappy, 770 F.2d 816, 822 n. 6 (9th Cir.1985), cert. denied, 477 U.S. 906, 106 S.Ct. 3278, 91 L.Ed.2d 568 (1986); United States v. Deon, 656 F.2d 354, 357 (8th Cir.1981); United States v. Morgan, 614 F.2d 166, 170-71 (8th Cir.1980); Levesque, 681 F.2d at 78 (“Whether the crime occurred in Indian country was thus a jurisdictional fact susceptible of determination without reference to any of the facts involved in determining ... guilt or innocence.“). In this case the question of whether the St. Regis territory is Indian country was one properly decided by Judge Van Graafeiland without submission of the issue to the jury.
The State of New York shall have jurisdiction over offenses committed by or against Indians on Indian reservations within the State of New York to thе same extent as the courts of the State have jurisdiction over offenses committed elsewhere within the State.
Appellants invite us to interpret the statute as a complete surrender of all jurisdiction to the State of New York. The district court found that prior to the enactment of
Our analysis “must begin with the language of the statute itself.” Bread Political Action Committee v. Federal Election Commission, 455 U.S. 577, 580, 102 S.Ct. 1235, 1237, 71 L.Ed.2d 432 (1982) (quoting Dawson Chemical Co. v. Rohm & Haas Co., 448 U.S. 176, 187, 100 S.Ct. 2601, 2608-09, 65 L.Ed.2d 696 (1980)). Moreover, “[j]urisdictional statutes are to bе construed with precision and with fidelity to the terms by which Congress has expressed its wishes.” Palmore v. United States, 411 U.S. 389, 396, 93 S.Ct. 1670, 1675, 36 L.Ed.2d 342 (1973) (quoting Cheng Fan Kwok v. Immigration & Naturalization Serv., 392 U.S. 206, 212, 88 S.Ct. 1970, 1974, 20 L.Ed.2d 1037 (1968)).
The text of
Appellants also cite a host of cases in support of the contention that
The plain language of the statute leads us to conclude that
Appellants Laughing and Burns contеnd that the Indian Gaming Regulatory Act (IGRA),
The issue in this case is not whether the IGRA and
The congressionally declared purpose of the IGRA is to promote tribal economic development and self-sufficiency in addition to shielding the tribes from the influences of organized crime through the enactment of a statutory scheme regulating the operation of gaming by Indian tribes.
Class I gaming, defined as ceremonial or traditional gaming, which includes social games for nominal prizes, remains within the exclusive control of the Indian tribe.
The statutory mechanism providing for the enforcement of the IGRA establishes exclusive federal jurisdiction over criminal prosecutions for violations of state laws made applicable to Indian lands, unless criminal jurisdiction has been transferred to the state.
The United States shall have exclusive jurisdiction over criminal prosecutions of violations of State gambling laws that are made applicable under this section to Indian country.
Whoever ... is guilty of any act or omission involving gambling, whether or not conducted or sanctioned by an Indian tribe, which, although not made punishable by any enactment of Congress, would be punishable if committed ... within the jurisdiction of the State in which the act ... occurred, under the laws governing the licensing, regulation, or prohibition of gambling in force at the time of such act ... shall be guilty of a like offense and subject to a like punishment.
The fact that the two statutеs provide criminal penalties for the same activity, however, is not determinative in this case. For a repeal by implication, the provisions of one must be repugnant to the other. This is not the case. While it is true that both provisions punish gambling operations that violate state law, the scope of
Cook also maintains that
III. Claim that offenses do not violate New York law
Even if
Appellants maintain that New York law is civil/regulatory because New York allows some gambling activity and possession of some gambling devices under certain circumstances, see
Tarbell, Laughing and Burns further argue that even if the IGRA did not repeal
Notwithstanding any other provision of this paragraph, the term “class II gaming” includes, during the 1-year period beginning on October 17, 1988, any gaming described in subparagraph (B)(ii) that was legally operated on Indian lands on or before May 1, 1988, if the Indian tribe having jurisdiction over the lands on which such gaming was operated requests the State, by no later than the date that is 30 days after October 17, 1988, to negotiate a Tribal-State compact under
section 2710(d)(3) of this title.
The lеgislative history demonstrates, however, that the grace period is intended to govern currently operated games such as video bingo, bingolet, bingo 21 and other similar devices, which became Class III devices upon the enactment of the statute. S.Rep. No. 446, 100th Cong., 2d Sess., reprinted in 1988 U.S.Code Cong. & Admin.News 3071, 3077, 3080. Through the application of the grace period, the tribes operating such games could continue their operation so long as they request the state to enter into negotiations, thereby preventing a shutdown in operations where the games were not prohibited by federal law and were permitted under state law. Appellants’ activities, however, violated both federal and state law.
The assertion that the grace period applies to slot machines makes little sense when the statutory requirements for legal operation are examined. The operation of slot machines is only lawful if carried on in a state that “permits such gaming for any purpose by any person, organization or entity....”
V. Sufficiency of the evidence
Cook was charged with the illegal possession of gambling devices in Indian country.
(1) any so-callеd “slot machine” or any other machine or mechanical device an essential part of which is a drum or reel with insignia thereon, and (A) which when operated may deliver, as a result of the application of an element of chance, any money or property, or (B) by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property.
Expert testimony is only admissible when such testimony is helpful to the trier of fact. Fed.R.Evid. 702. Such testimony is unnecessary where the jury is capable of comprehending the facts and drawing the correct conclusions from them. Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962). Indeed, the judge in his discretion may exclude expert testimony when it is not helpful to the jury. United States v. Schatzle, 901 F.2d 252, 257 (2d Cir.1990).
Here, it cannot be said that the layperson would fail to recognize a slot machine without the introduction of expert testimony. The accessibility of major gambling arenas such as Las Vegas, Nevada, and Atlantic City, Nеw Jersey, has brought home the reality of gambling, and in particular, slot machines. The recognition of an ordinary “one arm bandit” is well within the ability of the average person.
At trial, three officers testified about the slot machines at the Night Hawk Cafe. One officer recounted that before the police took the slot machines off the premises, Cook opened each with a key and removed money from within the cash boxes. The officer who was responsible for inventorying the contraband, revealed that there were 62 slot machines in all, exhibit 12 being one of the 62 seized by the police. Finally, although the slot machine was not operated for the jury on account of Cook‘s objection, it remained in the courtroоm for the jury to view throughout the trial and went into the deliberation room as an exhibit. We find no error in the trial judge‘s decision to deny the motion because the evidence was sufficient for a rational trier of fact to conclude that Cook operated slot machines.
VI. Reduction for Acceptance of Responsibility
Judge McCurn properly denied Laughing a reduction of sentence for acceptance of responsibility. The reduction was not withheld, as Laughing contends, because he entered a conditional plea and continued to challenge federal jurisdiction. Judge McCurn simply determined that Laughing never had indicated his acceptance of responsibility apart from the guilty plea. Indeed, at the sentencing, Laughing said: “I will go to my grave saying I did nothing wrong.” This does not manifest the acceptance of factual guilt referred to in United States Sentencing Commission, Guidelines Manual (U.S.S.G.) Sec. 3E1.1 Application note 2. See United States v. Royer, 895 F.2d 28, 30 (1st Cir.1990) (“acceptance of responsibility necessitates candor and authentic remorse“). Judge McCurn‘s determination has an adequate foundation and therefore cannot be disturbed. U.S.S.G. Sec. 3E1.1 Application note 5; see also United States v. Irabor, 894 F.2d 554, 557 (2d Cir.1990).
VII. Other claims
We have considered appellants’ remaining contentions and find them to be without merit.
CONCLUSION
For the foregoing reasons, the judgments of the district court are affirmed.
LASKER, Senior District Judge, dissenting:
I respectfully dissent.
It is my view that the evidence below was insufficient as a matter of law to establish that the St. Regis Mohawk tribe is a “dependent Indian community.” In holding that there was “ample evidence” frоm which the district court properly could conclude that the St. Regis tribe is a dependent community, the majority cites United States v. Sandoval, 231 U.S. 28, 47-48, 34 S.Ct. 1, 6-7, 58 L.Ed. 107 (1913). There are several reasons why I believe Sandoval does not justify the result reached here. First, the Supreme Court‘s opinion in Sandoval, because it preceded the enactment of
[B]y an [sic] uniform course of action beginning as early as 1854 and continued up to the present time, the legislative and executive branches of the Governmеnt have regarded and treated the Pueblos of New Mexico as dependent communities entitled to its aid and protection, like other Indian tribes, and considering their Indian lineage, isolated and communal life, primitive customs and limited civilization, this assertion of guardianship cannot be said to be arbitrary but must be regarded as both authorized and controlling.
231 U.S. at 47. Accordingly, Sandoval, as cited by the majority, stands for the proposition that those Indian communities which the legislative and executive branches have treated, in a non-arbitrary way, as dependent communities should be treated by the courts as dependent communities. However, the Sandoval court does not provide guidelines as to what extent of government involvement is necessary to render a community “dependent.” The involvement in tribal affairs demonstrated by the federal government in Sandoval is qualitatively different from the relationship between the federal government and the St. Regis tribe as reflected by the record in this case.
It also must be noted that the Sandoval court‘s reference to the “primitive customs and limited civilization” of the Pueblo in the passage quoted above is a sample of the outmoded assumptions about Native American peoples upon which the Sandoval opinion is based--though such assumptions may have been general at the time. The attitudes expressed in Sandoval cannot be regarded as mere dicta, but, as the quotation above demonstrates, are integral to the holding of the case.
Nor do the cases which have established and apрlied the standard for what constitutes a dependent Indian community under
As the majority opinion correctly states, to determine whether a particular Indian tribe is a dependent community, it is necessary to examine (1) the nature of the area; (2) the relationship of the inhabitants in the area to the Indian tribes and the federal government; and (3) the established practice of government agencies toward that area.
The evidence in this case established that the area in question is inhabited by a federally recognized tribe of approximately 3,000 St. Regis Mohawk Indians. Dеan White, a representative of the Bureau of Indian Affairs (the BIA) testified that, “We provide service programs to the tribes. We provide funding for contracts to them, for various socio-economic programs that they run.... We provide funding for education programs, housing programs, training programs, Social Services programs and administration of tribal government programs.” He also stated that the BIA guarantees loans to the tribe and individual tribe members through banks and that the BIA is involved in planning and funding roads on the reservation.
However, this evidence does not by itself establish that the St. Regis tribe is a dependent community. The mere existence of federal programs which benefit a given community does not establish that that community‘s relationship with thе federal government can be characterized as one of dependency. In ordinary English usage, “dependent” means “relying on another for support” or “lacking the necessary means of support and receiving aid from others.” See, e.g., Webster‘s Ninth New Collegiate Dictionary (1985); Webster‘s Third New International Dictionary Unabridged (1963). In order to determine whether the St. Regis tribe relies on the federal government for support, it would seem to be necessary to ascertain at the very least what percentage of the tribe‘s expenses federal funding covers and how many and what percentage of tribe members actually participate in or benefit from federal programs.
I also dissent from the mаjority‘s decision to affirm the district court‘s refusal to grant Laughing, who pled guilty, a reduction in sentence under the Sentencing Guidelines for acceptance of responsibility. Section 3E1.1 of the Sentencing Guidelines states that a defendant is entitled to credit for acceptance of responsibility “if the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct....” It is true, as the majority points out, that Laughing did state “I will go to my grave saying I did nothing wrong.” However, Laughing also stated that
I take full responsibility as running the place. I never denied the fact that I am the owner of [the casino]. I believe that what may be against the law in New York State is not necessarily against the law on the reservation. We are a sovereign nation, whether [the Assistant United States Attorney] wants to believe it or not.
In light of that statement, I construe the defendant‘s statement that he did not believe that he had done anything wrong only as disagreeing with the law as he now understood it, but not failing to accept personal responsibility for his criminal conduct. Accordingly, he is entitled to a reduction for acceptance of responsibility and I would reverse and remand so that he might be resentenced.