CLE SEMINAR. Indian Country and the Assimilative Crimes Act. Hosted at: Federal Public Defender's Office. Speaker: AFPD Conor Huesby.

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1 CLE SEMINAR Indian Country and the Assimilative Crimes Act Hosted at: Federal Public Defender's Office Speaker: AFPD Conor Huesby Portland, Oregon Live on May 23, :00pm to 1:00pm Eugene, Oregon A copy of the video recording of the CLE is available. contact the CJA Panel Team via at zzorml_panel_staff@fd.org Medford, Oregon Via video conference on May 23, :00pm to 1:00pm

2 INDIAN COUNTRY: THE ASSIMILATIVE CRIMES ACT Conor Huseby

3 GOALS 1. To give you a cliff notes version and understanding of a complicated topic. II. To not put you to sleep while doing so.

4 QUIZ #1 Scenario 1: An Indian defendant commits a felony assault against an Indian victim in Indian country. Q: Can the federal government charge the defendant? A: Yes, because of the Major Crimes Act. 18 USC 1153.

5 QUIZ #2 Scenario 2: An Indian defendant commits a misdemeanor assault against an Indian victim in Indian country. Q: Can the federal government charge the defendant? A: No! Because the crime is not a major crime, and under the Indian Country Crimes Act (18 USC 1152) there is an explicit exception for Indian-on- Indian crimes.

6 QUIZ #3 Scenario 3: An Indian defendant vandalizes a non- Indian s property in Indian country. He is punished for criminal mischief under the tribal code. Q: Can the federal government charge the defendant? A: No! Because the Indian Country Crimes Act contains an explicit exception that prohibits federal jurisdiction when the defendant has been punished by the local law of the tribe.

7 QUIZ #4 Scenario 4: An Indian defendant commits an attempt to elude in Indian country. He is not prosecuted in tribal court. Q: Can the federal government charge the defendant with attempt to elude? A: Maybe, under the Assimilative Crimes Act (18 U.S.C 13), but it s complicated.

8 MAKING INDIAN COUNTRY JURISDICTION FUN Wrap yourself in the flag of tribal sovereignty.!!!!

9 SUPER LENITY When dealing with Indian law issues, the normal rules of statutory construction do not apply. Instead, [w]e have consistently admonished that federal statute and regulations relating to tribes and tribal activities must be construed generously in order to comport with... traditional notions of [Indian] sovereignty and with the federal policy of encouraging tribal independence. Ramah Navajo School Board v. Bur. of Revenue, 458 U.S. 832, 846 (1982).

10 WHAT IS THE ASSIMILATIVE CRIMES ACT? I8 U.S.C. 13: Whomever commits an act within a federal enclave listed in 18 U.S.C. 7, which is not punishable under any enactment of Congress, but which would be punishable if committed in the State, Territory, Possession or District surrounding the enclave, shall be guilty of like offense and subject to a like punishment.

11 HOW IS THE ASSIMILATIVE CRIMES ACT APPLIED TO INDIAN COUNTRY? The Indian Country Crimes Act, 18 U.S.C. 1152, states that the general laws of United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to Indian country.

12 PURPOSE OF THE ACA Understanding the purpose of the ACA is essential to understanding one of the reasons why it should not apply to Indian Country. Congress passed the original ACA out of concern that minor crimes committed in federal enclaves, such as dockyards or forts, were going unpunished because: (1) The federal criminal code only covered a few major crimes, and (2) No other sovereign had any jurisdiction to punish offenses in those areas. 40 Annals of Cong. 929 (1823); 41 Annals of Cong. 528 (1824).

13 PURPOSE OF THE ACA Within these forts and military installments there existed a need to fill the gaps in the law so as not to create lawless enclaves where a wide swath of minor crimes would escape punishment altogether. See Lewis v. United States, 523 U.S. 155, (1998). The ACA is a gap filler.

14 REASON #1 THE ACA DOES NOT APPLY TO INDIAN COUNTRY 1. Its application is precluded by the Major Crimes Act, 18 U.S.C If the federal government, could simply assimilate any state crime committed in Indian country for federal prosecution, what is the point of the Major Crimes Act, which limits federal prosecution for Indian-on-Indian crime to a list of specifically enumerated felonies? Lewis v. United States: The Supreme Court held that assimilation under the Assimilative Crimes Act is not proper where federal statutes reveal an intent to occupy so much of the field as would exclude the use of the particular state statute at issue, where its application would interfere with the achievement of federal policy, or where state law has been displaced by specific laws enacted by Congress. 523 U.S. 155, (1998).

15 REASON #1 THE ACA DOES NOT APPLY TO INDIAN COUNTRY 1. Its application is precluded by the Major Crimes Act, 18 U.S.C The MCA occupies the field of federal jurisdiction over crimes committed in Indian Country. Assimilation of a victimless state crime, already punishable under tribal law, through the ACA would interfere with the federal policy of maintaining Indian sovereignty free from state jurisdiction to the greatest extent possible. See e.g., McClanahan, 411 U.S. at 168 ( The policy of leaving Indians free from state jurisdiction and control is deeply rooted in the nation s history. )

16 REASON #2 THE ACA DOES NOT APPLY TO INDIAN COUNTRY 2. Plain language: Indian country is not one of the places described by 18 U.S.C. 7 to which the ACA applies. 18 U.S.C. 7 lists the places to which the ACA applies including: The high seas or vessels on the high seas.!!!

17 PLACES WITHIN 7 Vessels on the Great Lakes.!!!!

18 PLACES WITHIN 7 Aircraft.!!!!

19 PLACES WITHIN 7 Spaceships.!!!!

20 PLACES WITHIN 7 An island or rock containing guano deposits- i.e. rocks covered in bird shit.!!!!

21 PLACES WITHIN 7 Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof... An Indian reservation is not acquired for the use of the United States. Read the treaty granting the land the tribe, as it will almost surely not say the land is being granted to the United States.

22 PLACES WITHIN 7 If Congress listed places as specific as rocks covered in bird shit, then they could have listed an Indian reservation if they d wanted to. Dean and Honeycutt, two 2017 USSC cases, have great language that where Congress, in other statutes, uses specific language, courts should not give other statutes without the specific language the same construction. We assume Congress knows how to say what it means.

23 COUER D ALENE TRIBE. HAMMOND- 384 F.3D 674 (9TH CIR. 2004) F: In Couer D Alene, the government argued that language in a gasoline taxation statute stating that it applied to United states military reservations and OTHER RESERVATIONS allowed them to tax gasoline sold in Indian country. H: The phrase other reservations was not clear enough to include an Indian reservation and it would be a leap to assume that Congress intended to abrogate tribal sovereignty without expressly stating so.

24 REASON #3 THE ACA DOES NOT APPLY TO INDIAN COUNTRY 3. Because ambiguous statutes must be interpreted in favor of tribal sovereignty, the Indian County Crimes Act cannot be interpreted in a manner that makes the ACA one of the general laws applicable to Indian country. Remember, absent a clear expression from Congress, courts are not to intrude into tribal sovereignty. The phrase general laws is not a clear statement from Congress. When Congress has wanted laws to apply to Indian Country, they have explicitly said so: The Indian Gaming Regulatory Act, Violence Against Women Reauthorization Act, The Major Crimes Act.

25 BRYAN V. ITASKA COUNTY, 426 U.S. 373 (1973) F: The state of Minnesota tried to tax the sale of a mobile home in Indian country, arguing that language applying to Indian country state civil laws... of general application to private persons or private parties included tax laws. 28 U.S.C H: Because in other laws, Congress expressly referenced when state regulatory laws applied to Indian country, and did not do so in 28 U.S.C. 1306, there was no express statement from Congress and the negative inference was that Congress did not intend tax laws to apply to Indian country.

26 REASON #4 THE ACA DOES NOT APPLY TO INDIAN COUNTRY 4. It is inconsistent with Congress intent in enacting the ACA. Remember- the ACA was intended to fill the gaps on federal enclaves where, were it not for the existence of the ACA, people could commit minor crimes with impunity.!!!!

27 REASON #4 THE ACA DOES NOT APPLY TO INDIAN COUNTRY As opposed to naval yards or national parks where there generally is no criminal code (and a gap exists), Indian country has tribal codes which punish tribal members. Rather, than being acting as a gap filler, the ACA becomes another paternalistic way for the federal government to say our laws are better than your laws.

28 REASON #5 THE ACA DOES NOT APPLY TO INDIAN COUNTRY 5. In this case SPECIFICALLY, there is no role for the ACA to play. If you re worried about the more sweeping arguments about the ACA, you can always argue that in THIS CASE, because a tribal law exists criminalizing the identical conduct, there is no role of the ACA to play. See 9th Circuit Reply in US v. Johnny Smith for examples of cases where the ACA really had a role to play.

29 BONUS ARGUMENT #1 TO BE AWARE OF FOR CERTAIN CASES Remember, the Indian Country Crimes Act, through which the ACA is applied to Indian country, has an exception for an Indian committing any offense in the Indian country who has been punished by the local law of the tribe... Because statutes effecting tribal sovereignty must be construed broadly in favor of Native Americans, there is an argument that if the defendant has been punished in any way for his or her conduct by the tribe, even if it is not for the same offense charged in federal court, the ICCA precludes prosecution.

30 BONUS ARGUMENT #2 TO BE AWARE OF FOR CERTAIN CASES Remember that the Indian Country Crimes Act also has an exception for offenses committed against the person or property of another another Indian... There is an argument, that the Indian-on-Indian exception of the ICCA also applies to victimless crimes committed in Indian country. See: United States v. Quiver, 241 U.S. 602 (1916); Amicus brief in US v. Johnny Smith at p. 5.

31 THE EMPIRE STRIKES BACK- GOVERNMENT ARGUMENTS The government, of course, will have arguments against the proposition that the ACA does not apply to Indian country.!!!!

32 GOVERNMENT ARGUMENTS Everybody else is doing it, so why can t we? It is true, that there are a number of cases in which the Assimilative Crimes Act is applied to Indian Country. However, the vast majority of those cases are cases in which the jurisdictional issues were never raised. The rules of precedent are governed by the party presentation principle, which relies on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present. Greenlaw v. United States, 554 U.S. 237, 243 (2008). [W]hen questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us. Hagans v. Lavine, 415 U.S. 528, 535 n.5 (1974).

33 GOVERNMENT ARGUMENTS The Ninth Circuit has already decided that the Assimilative Crimes Act is one of the general laws applicable to Indian country. United States v. Marcyes, 557 F.2d 1361 (9th Cir. 1977). A: Kind of. But: 1. The defendant never actually raised the jurisdictional issue- only amicus did. 2. The discussion of the incredibly complex jurisdictional issue takes place in a single footnote, and 3. The footnote cites to United States v. Williams, 327 U.S. 711 (1946).

34 ORIGINAL SIN- UNITED STATES V. WILLIAMS Virtually every case the government will cites relies on Williams, or relies on cases which rely on Williams. Williams, addressed whether a non-indian could be charged under the Assimilative Crimes Act with an Arizona state law against statutory rape, when there already existed a federal statute prohibiting the same conduct. The Court, assumed without deciding that the Assimilative Crimes Act is one of the general laws applicable to Indian country through the Indian Country Crimes Act.

35 ORIGINAL SIN- UNITED STATES V. WILLIAMS Since Williams, courts around the country, generally in dicta, cite Williams and then cite each other.!!!!

36 ORIGINAL SIN- UNITED STATES V. WILLIAMS As the court recognized, in Pueblo of Santa Ana v. Hodel, 663 F.Supp. 1300, (D. D.C. 1987), the [Williams] Court never directly addressed whether the Act should apply to Indian lands. Rather, the Court presumed that it applied, but then focused its analysis upon the preemptive application of the federal statutory rape law and concluded that the more lenient federal law superseded the state law. Id. In fact, no court has carefully scrutinized whether Congress intended that the ACA be applied to Indian lands. Id. at 1309.

37 GOVERNMENT ARGUMENTS The only gap in the law which must exist for the ACA to apply is a gap in federal law. It does not matter if some other sovereign also has jurisdiction. A: That is inconsistent with the original purpose of the ACA, which was to avoid the establishment of lawless enclaves.

38 GOVERNMENT ARGUMENTS The Major Crimes Act is an Act which expands criminal jurisdiction, not limits it, and places no limits on the Assimilative Crimes Act or Indian Country Crimes Act. A: Yes, the MCA is a perfect example of proper expansion of criminal jurisdiction into Indian country because the MCA explicitly says it applies to Indian country.

39 GOVERNMENT ARGUMENTS When the government says expanding criminal jurisdiction into Indian country is no big deal, rely on the sanctity of tribal sovereignty, but also remember Bond v. United States, 134 S. Ct (2014). In Bond, the Supreme Court precluded federal prosecution under a chemical weapons statute for a jealous wife who left a mildly caustic substance in a place her husband s lover might touch it. [W]e will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction. Id. The Court relied on the "well-established principle that it is incumbent upon the federal courts to be certain of Congress intent before finding that federal law overrides the usual constitutional balance of federal and state powers. Id. at 2089 (citing Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)).

40 WHEN ALL ELSE FAILS Return to wrapping yourself in the flag of tribal sovereignty, because many of the cases the government will rely on will not involve issues of tribal sovereignty.!!!!

41 IF YOU LOSE Remember that a defendant convicted of a crime under the Assimilative Crimes Act must be subjected to a like punishment. Like punishment means a defendant can only be sentenced to time which would have been within the actual discretion available to the state court judge, not to the theoretical statutory maximum sentence in state court.

42 Conor Huseby- OSB #06373 Assistant Federal Public Defender 101 SW Main Street, Suite 1700 Portland, OR Tel: (503) , Fax: (503) Attorney for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON UNITED STATES OF AMERICA, Case No. 3:16-CR BR vs. Plaintiff, DEFENDANT S MOTION AND MEMORANDUM OF LAW TO DISMISS FOR LACK OF JURISDICTION JOHNNY ELLERY SMITH, Defendant. Comes now the defendant, Johnny Ellery Smith, by and through his attorney Conor Huseby, and moves this Court to dismiss the indictment against him on the grounds that the government lacks jurisdiction to charge Mr. Smith in federal court for a violation of a state-law prohibiting eluding the police alleged to have been committed by an Indian in Indian country. This motion is supported by the Memorandum of Law below, and any arguments or authorities to be presented at a hearing on this motion. RELEVANT FACTS The defendant, Johnny Ellery Smith, is charged by way of indictment with two counts of Fleeing or Attempting to Elude Police Officers in violation of Or. Rev. Stat (1). The allegations are that Mr. Smith, an Indian male, fled from the police on the Warm Springs Indian Reservation. The basis for federal jurisdiction over the state offenses is purported to be through the Assimilative Crimes Act (ACA)(18 U.S.C. 13) and the Indian Country Crimes Act (ICCA) (18 U.S.C. 1152). Page 1 - DEFENDANT S MOTION AND MEMORANDUM OF LAW TO DISMISS FOR LACK OF JURISDICTION

43 SUMMARY OF ARGUMENT While Courts have continued to assume that the Assimilative Crimes Act applies to Indian country as one of the general laws embraced by the ICCA, the question has never been definitively resolved after an adequate adversarial presentation. On its face, the ACA does not apply to Indian country because Indian country is not one of the places described within the ACA to which the ACA applies. Even assuming the ACA is ambiguous as to whether it applies in Indian country, because ambiguous statutes must be construed generously in favor of preserving tribal sovereignty and statutes should not be read to diminish tribal sovereignty absent a clear statement from Congress, the ICCA should not be construed to apply federal jurisdiction over crimes committed by Indians in Indian country that are otherwise within the exclusive jurisdiction of the tribes. Additionally, because the Major Crime Act provides an exclusive list of state law crimes punishable in Indian country, the MCA precludes application of the ACA to non-major crimes in Indian country. Finally, even if the ACA does apply to Indian country, it does not apply to victimless crimes or any other crime that does not involve a non- Indian based on the Supreme Court s construction of the ICCA exceptions in United States v. Quiver, 241 U.S. 602 (1916). STATEMENT OF LAW I. The History of Federal Criminal Jurisdiction in Indian Country A. The Treaty Period ( ) Shortly after the Revolutionary War, Congress extended federal jurisdiction to non-indians committing crimes against Indians 1 in Indian territory as part of the overall federal policy of providing a buffer between the non-indian and Indian populations. Hon. William C. Canby, Jr., American Indian 1 While the term Indian has never been an accurate term, it is used throughout because it has become a term of art from historical use in Federal Indian law, history, and statutes. Barbara L. Creel, The Right To Counsel for Indians Accused of Crime: A Tribal and Congressional Imperative, 18 Mich. J. Race & L. 317, 318 n. 1 (2013). Page 2 - DEFENDANT S MOTION AND MEMORANDUM OF LAW TO DISMISS FOR LACK OF JURISDICTION

44 Law in a Nutshell 151 (6th ed. 2014) [hereinafter Canby] (citing 1 Stat. 138 (1790); 1 Stat. 743 (1799); 2 Stat. 139 (1802)). The earliest treaties between tribes and the United States allocated criminal jurisdiction based upon tribal sovereignty and the citizenship of the defendant or victim. Robert N. Clinton, Development of Criminal Jurisdiction Over Indian Lands: The Historical Perspective, 17 Ariz. L. Rev. 951, (1975) [hereinafter Development]. In 1817, Congress significantly expanded federal criminal jurisdiction over Indian lands in passing the 1817 revision of the Trade and Intercourse Act, Act of Mar. 3, 1817, Ch. 92, 3 Stat. 383, the earliest embodiment of what is now known as the Indian Country Crimes Act (ICCA), codified at 18 U.S.C Canby at ; Clinton, Development, 17 Ariz. L. Rev at The 1817 Act was the first time that Congress extended federal criminal jurisdiction to Indian defendants for crimes committed in Indian territory. Clinton, Development, 17 Ariz. L. Rev at 959. The Act provided that any Indian or non-indian person who committed a crime within any town, district, or territory, belonging to any nation or nations, tribe or tribes, of Indians would be subject to trial and punishment by federal or territorial courts based upon the law governing crimes in places under the exclusive jurisdiction of the United States. Id. Consistent with prevailing policy of permitting tribes to retain control over intra-tribal offenses, the 1817 Act expressly did not apply to crimes committed by one Indian against another. Id. The 1817 Act was incorporated into the first permanent Indian Trade and Intercourse Act in Act of June 30, 1934, ch. 161, 4 Stat The successors to the ICCA were enacted as jurisdictional implementations of treaties which prescribed limited federal control over the lands reserved for the Indians, and these treaties generally reserved tribal sovereignty and jurisdiction over intratribal matters. Robert N. Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz. L. Rev. 503, 522 (1976) [hereinafter Jurisdictional Maze]. At the same time the federal government was making limited inroads into punishing crimes committed in Indian country, the Supreme Court characterized Native American tribes as being Page 3 - DEFENDANT S MOTION AND MEMORANDUM OF LAW TO DISMISS FOR LACK OF JURISDICTION

45 domestic dependent nations with many of the attributes of sovereignty. Cherokee Nation v. Georgia, 30 U.S. 1 (1831). In the second Marshall Trilogy decision, the Supreme Court further announced that the states could not exercise jurisdiction over matters in Indian country absent congressional authorization. Worcester v. Georgia, 31 U.S. 515 (1832) (holding that Georgia criminal laws have no force in Cherokee nation). B. The Statutory Period The prevailing assumption that tribes possessed exclusive jurisdiction over crimes solely involving Indians continued until Congress passed the Major Crimes Act in response to the Supreme Court s decision in Ex parte Kan-gi-shun-ca (Crow Dog), 109 U.S. 556 (1883). Canby, supra at 150. In Crow Dog, the Court held that federal courts did not possess jurisdiction to try an Indian for the murder of another Indian in Indian country because the ICCA expressly excluded intra-indian offenses and no other statute provided the basis for federal jurisdiction. The Crow Dog court emphasized that federal courts are courts of special and limited jurisdiction, whose authority is not to be assumed without clear warrant of law. 109 U.S. at 571. The Crow Dog court made clear that criminal laws from another sovereign could not be applied to tribal members by inference and argument as such laws are disconnected from tribal customs and are developed in political bodies that may be hostile to tribal interests. Id. 2 After pointing to the federal government s uniform policy of leaving intra-indian offenses to be dealt with by each tribe for itself, the Court concluded that a departure from that policy requires a clear expression of the intention of [C]ongress. Id. 2 It is a case where, against an express exception in the law itself, that law, by argument and inference only, is sought to extended over aliens and strangers; over the members of a community, separated by race, by tradition, by the instructs of a free though savage life, from the authority and power which seeks to impose upon them the restraints of an external and unknown code.... [and tries them] not by their peers, nor by the customs of their people, nor the law of their land, but by superiors of a different race, according to the law of a social state of which they have an imperfect conceptions, and which is opposed to the traditions of their history, to the habits of their lives, to the strongest prejudices of their savage nature; one which measures the red man s revenge by the maxims of the white man s morality. Crow Dog, 109 U.S. at 406. Page 4 - DEFENDANT S MOTION AND MEMORANDUM OF LAW TO DISMISS FOR LACK OF JURISDICTION

46 In response to Crow Dog, Congress spoke clearly in passing the Major Crimes Act (MCA), which established federal jurisdiction over seven enumerated crimes 3 committed by Indians in Indian country, regardless of the tribal affiliation of the victim. 23 Stat. 362, 385 (1885). Because the MCA covered intra-indian crimes, it was the first systematic intrusion by the federal government into the internal affairs of the tribes. Canby at 151. The Supreme Court in United States v. Kagama upheld the MCA based upon the dependent status of the tribes and the duty of the federal government to protect tribal interests. 118 U.S. 375, 382, 384 (1886). Even after the Major Crimes Act, the tribes continued to exercise very substantial jurisdiction over Indians in Indian country. Canby at 151. According to Judge Canby, after the MCA, non-major crimes committed by Indians were within the exclusive jurisdiction of the tribes, and remain so today absent a jurisdictional transfer through Public Law 280. Id. After the Major Crimes Act, Congress made its earliest efforts toward terminating the federal government s relationship with Native American tribes. These first efforts were embodied in the General Allotment Act of 1887, which allotted tribal lands to individual members, sold off surplus lands, and brought allotted lands within the jurisdiction of state courts. Congress ultimately prevented state jurisdiction from attaching to allotted lands through the Indian Reorganization Act of Clinton, Development, at 966. In its attempt to stabilize tribal governments through the Reorganization Act, the Act seemed to usher in a renewed reliance by the federal government on tribal institutions as the primary vehicle for Indian governance, reversing the trend initiated by the MCA. Id. at 968. C. The Termination Era & Public Law 280 The policies of the Indian Reorganization Act were short-lived, and soon after, Congress renewed its efforts at assimilation. In 1940, Congress embarked upon terminating the federal government s 3 The present version of the MCA lists fifteen enumerated crimes. United States v. Other Medicine, 596 F.3d 677 (9th Cir. 2010). Page 5 - DEFENDANT S MOTION AND MEMORANDUM OF LAW TO DISMISS FOR LACK OF JURISDICTION

47 special relationship with Native American tribes, thereby radically altering the law enforcement roles traditionally exercised by the federal government and the tribes. Clinton, Development, at 968. With the intent to completely assimilate Indian reservations into the states, Id. at 969, Congress subsequently terminated the federal government s relationship with over 100 tribes, producing uniformly disastrous social and economic consequences. Canby at While early termination efforts occurred on a piecemeal basis, Public Law 280 represents the broadest enactment of the Termination Era. In 1953, Congress passed what came to be known as Public Law 280, which transferred federal criminal jurisdiction to six mandatory states, including Oregon ch , 67 Stat. 588, PL The transfer expressly excluded the Warm Springs Reservation, see 18 U.S.C. 1162, because the Warm Springs Reservation had a tribal law-and-order organization that function[ed] in a reasonably satisfactory manner, [and the Confederated Tribes] objected to being subjected to State jurisdiction. H.R. Rep. No , at 7 8 (1953) (quoting Orme Lewis, Ass. Sec. of the Interior); accord Presidential Signing Statement by Dwight D. Eisenhower, PL PS (1953). Where Public Law 280 transferred federal criminal jurisdiction to the state, the statute expressly provided that the ICCA and MCA no longer applied. 18 U.S.C. 1162(c). By the close of the 1960s, Congress s termination policy was largely regarded as a failure, and the assimilationist ideal began to fade. Canby at 30. In 1968, Congress passed the Indian Civil Rights Act of 1968 (ICRA), 82 Stat. 77, codified at 25 U.S.C et seq. Among other things, the ICRA extended many of the protections of the Bill of Rights to the tribes and amended Public Law 280 to require tribal consent prior to any future assumption of state jurisdiction over its land. Clinton, Development, at 970. Although Congress repealed Public Law 280 in 1968, the repeal did not affect the original jurisdictional transfers to mandatory states. United States v. Hoodie, 588 F.2d 292, (9th Cir. 1978). However, the 1968 amendments to Public Law 280 permitted states to retrocede criminal Page 6 - DEFENDANT S MOTION AND MEMORANDUM OF LAW TO DISMISS FOR LACK OF JURISDICTION

48 jurisdiction in Indian Country back to the Federal Government. Act of Apr. 11, 1968, Title IV, 403, 82 Stat. 79, codified at 25 U.S.C (1968). 4 In 1981, Oregon retroceded all criminal jurisdiction exercised by the State of Oregon over the Umatilla Indian Reservation back to the federal government. 46 Fed. Reg (1981). In 1979, Oregon retroceded its jurisdiction over the Burns Paiute Reservation back to the federal government. 44 Fed. Reg (1979). As a result, Oregon does not exercise adjudicatory or legislative criminal jurisdiction over Indian defendants who commit crimes on the Warm Springs, Umatilla, and Burns Paiute reservations except where expressly provided in federal law. D. The Self-Determination Era In 1975, Congress passed the Indian Self-Determination and Education Assistance Act, 25 U.S.C et seq, which authorized certain government agencies to enter into contracts through which the tribes would assume responsibility for administering federal Indian programs. Canby, supra at 32. Two years later, the newly established American Indian Policy Review Commission called for a firm rejection of assimilationist policies, reaffirmation of the status of tribes as permanent, self-governing institutions, and increased financial aid to the tribes. Canby, at 33. Despite Congressional efforts to empower tribal institutions, in 1990, the Supreme Court in Duro v. Reina held that tribal courts had been divested all authority to try non-members for crimes, whether they were Native American or not. 495 U.S. 676 (1990). In response, Congress passed the so-called Duro Fix, which legislatively overturned Duro, expressly granting tribal courts the authority to prosecute non-member Indians, while recognizing and affirming the inherent powers of Indian tribes... to exercise criminal jurisdiction over all Indians. 25 U.S.C (1990). 4 The United States is authorized to accept a retrocession by any State of all or any measure of the criminal or civil jurisdiction, or both, acquired by such State pursuant to the provisions of section 1162 of title 18, section 1360 of title 28, or section 7 of the Act of August 15, 1953 (67 Stat. 588), as it was in effect prior to its repeal by subsection (b) of this section. 25 U.S.C Page 7 - DEFENDANT S MOTION AND MEMORANDUM OF LAW TO DISMISS FOR LACK OF JURISDICTION

49 In July 2011, Congress passed the Tribal Law and Order Act, which increased the sentencing authority of tribal courts, recognizing that tribal justice systems are often the most appropriate institutions for maintaining law and order in Indian Country. PL (a)(2). One of the stated purposes of the act is to empower tribal governments with the authority, resources, and information necessary to safely and effectively provide public safety in Indian country. Id. 202(b)(3). II. Because the Assimilative Crimes Act Does not Apply to Indian County on its Face, Because Congress Has Not Clearly Expressed Its Intent to Apply The Assimilative Crimes Act To Indian Country Through The Indian Country Crimes Act, and Because The Major Crimes Act Precludes the Application of the Assimilative Crimes Act in Indian Country, the Government Lacks Jurisdiction to Prosecute Mr. Smith in This Case The government lacks jurisdiction to prosecute Mr. Smith for Attempt to Elude through the ACA in this case for three primary reasons. First, the ACA on its face does not apply to Indian country because tribal lands were not acquired for the use of the United States. 18 U.S.C. 7(3) (1948). Second, even if the ACA were ambiguous in its applicability to Indian country, Congressional intent indicates Congress never intended the ACA to allow for the application of non-major state law crimes in Indian country. Third, because the Major Crimes Act controls when state law crimes can be applied to Indian country, the MCA precludes the application of the ACA to Indian country. A. Principles of Federal Indian Law Require a Clear Statement of Congressional Intent to Intrude Upon a Tribes Sovereign Prerogative to Define Crimes for Native Americans in Indian Country Before turning to interpretation of the Assimilative Crimes Act, the Court must keep in mind principles of Federal Indian Law requiring a clear statement of Congressional intent to intrude upon a tribe s sovereign rights to regulate their own domestic affairs. Tribal criminal jurisdiction over tribal members, as an aspect of Tribal sovereignty, predates the Constitution and does not depend upon it. Talton v. Mayes, 163 U.S (1896). Although Congress has plenary authority to abrogate tribal sovereignty, the federal role in regulating the tribes as a separate people with their own political institutions is the foundation for federal criminal jurisdiction over Indians in Indian country. LaPier v. Page 8 - DEFENDANT S MOTION AND MEMORANDUM OF LAW TO DISMISS FOR LACK OF JURISDICTION

50 McCormick, 986 F.2d 303, 305 (9th Cir. 1993) (quoting United States v. Antelope, 430 U.S. 641, 646 (1977)). While Tribes do not enjoy full territorial sovereignty, they continue to retain those aspects of sovereignty that are needed to control their own internal relations, and to preserve their own unique customs and social order. Duro, 495 U.S. at The power of a tribe to prescribe and enforce rules of conduct for its own members does not fall within that part of sovereignty which the Indian implicitly lost by virtue of their dependent status. Id. at 686 (citations and internal quotation marks omitted). Because criminal laws serve as an expression of social values and community norms, and the tribes have not been divested of the authority to promulgate and punish criminal offenses for Native American residents, federal statutes that purport to intrude into tribal sovereignty must be construed narrowly. Quiver, 241 U.S. at ( [T]he relations of the Indians, among themselves the conduct of one toward another is to be controlled by the customs and laws of the tribe, save when Congress expressly or clearly directs otherwise. ). B. The Plain Language of the Indian Country Crimes Act and the Assimilative Crimes Act Indicates the Assimilative Crimes Act Does Not Apply in This Case In order for the Assimilative Crimes Act (ACA) to apply State law definitions of crimes to Indian defendants, state law must go through two levels of incorporation. First, state criminal law is assimilated into federal enclave law via the ACA: Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, or on, above, or below any portion of the territorial sea of the United States not within the jurisdiction of any State, Commonwealth, territory, possession, or district 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 (1948). Next, federal enclave law is applied to Indian Country through the Indian Country Crimes Act (ICCA): Page 9 - DEFENDANT S MOTION AND MEMORANDUM OF LAW TO DISMISS FOR LACK OF JURISDICTION

51 Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country. This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively. 18 U.S.C (1948). 18 U.S.C. 7 is the provision defining which places the ACA applies to. The ACA does not apply to Indian country on its face, as the only area referred to in Section 7 that could possibly include Indian lands [a]ny lands reserved or acquired for the use of the United States, and the under the exclusive or concurrent jurisdiction thereof does not apply because tribal lands were not acquired for the use of the United States. 18 U.S.C. 7(3) (1948); see, e.g. Treaty between the United States and the Confederated Tribes and Band of Indians in Middle Oregon, art. 1, Mar. 8, 1859, 12 Stat. 963 (ceding certain lands to the United States while reserving lands for exclusive use by tribes); Treaty between the United States and the Walla-Walla, Cayuses, and Umatilla Tribes and Bands of Indians in Washington and Oregon Territories, art. 1, Mar. 8, 1859, 12 Stat. 945 (same). It would a leap to presume that Congress meant to include Indian country by implication after providing an exhaustive list of areas to which federal enclave law directly applies. Cf. Coeur D Alene Tribe of Idaho v. Hammond, 384 F.3d 674, 695 (9th Cir. 2004) (describing the assertion that Congress intended United States military and other reservations to apply to Indian reservations without stating so specifically as a leap ). Regardless, if federal enclave crimes extend to Indian country of their own force, the ICCA provision extending federal enclave crimes to Indian country would be mere surplusage, and the provision providing exceptions to the application of federal enclave law would be the only portion of the ICCA that has any meaningful effect. See United States v. Bendtzen, 542 F.3d 722, 727 (9th Cir. 2008) Page 10 -DEFENDANT S MOTION AND MEMORANDUM OF LAW TO DISMISS FOR LACK OF JURISDICTION

52 (citations omitted) ( It is a well-established principle of statutory construction that legislative enactments should not be construed to render their provisions mere surplusage. ). In sum, because an Indian Reservation does not meet the definition of [a]ny lands reserved or acquired for the use of the United States, and the under the exclusive or concurrent jurisdiction thereof - the ACA does not apply to Indian country. C. Even if the Assimilative Crimes Act is Ambiguous on its Face, Congressional Intent Indicates Congress Never Intended to Give States Legislative Authority Over Crimes Committed by Native American Defendants in Indian Country Analysis of Congressional intent indicates the ACA should not be applied to allow the federal government to prosecute state law crimes committed by Native American Defendants in Indian country. In order for the ACA to apply to Indian country, it must be done through the ICCA. The ICCA does not extend the ACA to Indian country. The ICCA speaks in terms of extending to Indian country the general laws of the United States as to the punishment of offenses committed in [federal enclaves]. 18 U.S.C While general laws of the United States construed broadly would tend to sweep in the ACA the scope of the term general laws must be informed by the legislative intent behind the ICCA and the current federal policy empowering tribal governments to regulate non-major offenses of Indians committed in Indian country. Because the standard principles of statutory construction do not have their usual force in cases involving Indian law, and the unique trust relationship between the United States and Indian tribes requires ambiguous statutes to be construed in favor of Indian tribes, United States v. Errol D., Jr., 292 F.3d 1159, 1163 (9th Cir. 2002), the general laws of the United States should not be construed to embrace the ACA. Further evidence that the ACA does not extend to Indian country is found in its legislative history and that of the ICCA. Congress passed the predecessor to the ICCA as part of the 1817 Trade and Page 11 -DEFENDANT S MOTION AND MEMORANDUM OF LAW TO DISMISS FOR LACK OF JURISDICTION

53 Intercourse Act, 5 while the original ACA was not passed until eight years later. 6 When the ICCA was passed, the ACA did not exist, and so like punishment as is provided by the laws of the United States did not include state law definitions of crimes. When the ICCA was recodified after the ACA s passage, the ICCA still required that the laws of the United States provide the punishment for the charged crime. Act of June 30, 1834, ch. 161, 26, 4 Stat Up until the passage of the Major Crimes Act, it was generally understood that tribes possessed the power of regulating their internal and social relations and the Supreme Court in Kagama observed that until the MCA, criminal matters internal to the tribe had thus far not [been] brought under the laws of the Union or of the state within whose limits they resided. 118 U.S. at Congress passed the original ACA out of concern that minor crimes committed in federal enclaves, such as dockyards or forts, were going unpunished because (1) the federal criminal code only covered a few major crimes, and (2) no other sovereign had any jurisdiction to punish offenses in those areas. 40 Annals of Cong. 929 (1823); 41 Annals of Cong. 528 (1824). By its text, the original ACA only applied to any fort, dock-yard, navy-yard, arsenal, armory, or magazine, the site whereof is ceded to, and under the jurisdiction of, the United States, or on the site of any lighthouse, or other needful building belonging to the United States. Act of Mar. 3, 1825, ch. 65, 1, 4 Stat Within these forts and military installments there existed a need to fill the gaps in the law so as not to create lawless enclaves where a wide swath of minor crimes would escape punishment altogether. See Lewis v. United States, 523 U.S. 155, (1998). 8 5 Act of Mar. 3, 1817, Ch. 92, 3 Stat Act of Mar. 3, 1825, vol. 7 p. 393, 4 Stat At its next reenactment, the ACA simply referred to any place which has been, or shall hereafter be, ceded to, and under the jurisdiction of the United States. Act of Apr. 5, 1866, ch. 24, 2, 14 Stat. 12. In the following reenactment, the ACA covered any place, jurisdiction over which has been retained by the United States or ceded to it by a State, or which has been purchased with the consent of a State for the erection of a fort, magazine, arsenal, dockyard, or other needful building or structure. Act on July 7, 1898, ch. 576, 2, 30 Stat The drafter of the ACA justified the application of state law by the fact that those living in federal enclaves who occupied the land before it was ceded would not view it as any hardship that the great class of minor offenses should continue to be punished in the same manner as they had been before the cession. United States v. Press Pub. Co., 219 U.S. 1, (1911). Page 12 -DEFENDANT S MOTION AND MEMORANDUM OF LAW TO DISMISS FOR LACK OF JURISDICTION

54 There is no need to fill the gaps in criminal jurisdiction over tribal members in Indian country. Judge Canby aptly summarized the absence of a gap in criminal jurisdiction for Indian defendants: The Indian who commits a crime in Indian country is subject to the comprehensive criminal jurisdiction of the tribe and, for a few specified crimes, of the federal government under the Major Crimes Act. There is no criminal law vacuum for the Indian (as there was for the non-indian) and therefore no need to import a body of criminal law by way of the General Crimes Act and Assimilative Crimes Act. To do so merely displaces tribal law that is far more appropriate for governing the conduct of the Indian. Canby at 181; id. at 176 ( The primary need filled by the [ICCA] was that of a body of law to punish non-indian crime. ); see also United States v. Lara, 541 U.S. 193, (2004) (recognizing that tribes have continued to possess inherent sovereign power to exercise criminal jurisdiction over tribal members, subject only to Congressional restriction or expansion). In this case specifically, there is indisputably no gap to fill since attempt to elude is already criminalized by the Confederated Warm Springs tribes. See Warm Springs Tribal Code (Fleeing or Attempting to Elude a Police Officer). Furthermore, when Congress has determined that a gap in law enforcement on reservations exists, Congress has passed legislation expressly modifying criminal jurisdiction in Indian country rather than assuming that the ACA fills any gaps. See, e.g., Public Law 280, 67 Stat. 588, PL , codified at 18 U.S (1953) (transferring Federal criminal jurisdiction on Indian Lands to certain State governments); the Indian Gaming Regulatory Act, PL , 102 Stat 2467 (expressly assimilating State gambling offenses into federal law and applying them to Indian country); Act of Oct. 28, 1991, PL , 105 Stat. 646 (the so-called Duro fix expanding tribal jurisdiction to include Indian members of another tribe); Tribal Law and Order Act, PL (expanding tribal court jurisdiction to permit lengthier tribal sentences); Violence Against Women Reauthorization Act of 2013, sec. 904, 204, 127 Stat. at 120 (granting tribal courts jurisdiction over certain domestic violence crimes committed by non-indians). Page 13 -DEFENDANT S MOTION AND MEMORANDUM OF LAW TO DISMISS FOR LACK OF JURISDICTION

55 Further evidence of Congress intent not to apply the ACA to Indian country comes from the reenactment of Major Crimes Act, passed alongside the 1948 reenactment of the ICCA and ACA. 18 U.S.C (1948) (providing that the offenses of burglary and rape shall be defined and punished in accordance with the laws of the State in which such offenses were committed ). The reenactment of the MCA alongside the ACA and ICCA in 1948 indicates that Congress knew well how to express its intent directly when that intent was to subject reservation Indians to the full sweep of state laws. Bryan v. Itasca County, Minnesota, 426 U.S. 373, 389 (1976). It is also telling that while Congress reenacted the MCA, ICCA, and ACA at the same time even at the height of the termination era in the legislative history, Congress never mentioned applying state law to the tribes via double derivative incorporation through the ICCA and ACA, nor did it expressly include language to that effect. Finally, Congress clearly would not have intended to apply the ACA to Indian country by way of the ICCA because the prevailing federal policy at the time of its original passage involved insulating tribes from State interference. See Worcester, 31 U.S. at 561 (reinforcing the right of tribes to be free from State inference while affirming the exclusive right of the federal government to regulate relations between tribes and outsiders); Canby, supra at 155 ( For fifty years, Marshall s view [in Worcester] that state law and power could not intrude into Indian country held sway. ); see also McClanahan v. Ariz. State Tax Comm n, 411 U.S. 164, 168 (1973) ( The policy of leaving Indians free from state jurisdiction and control is deeply rooted in the nation s history. ); Pueblo of Santa Ana v. Hodel, 663 F.Supp. 1300, 1310 (D. D.C. 1987) ( The long-standing policy which insulated the Indians from state control, is patently incompatible with the proposition that Congress intended to utilize the ACA to enforce state criminal laws on Indian lands. ). Even if the text, legislative history, and underlying policies of the ACA and the ICCA do not evince an unambiguous intent not to apply state criminal law to Indian defendants, ambiguities in federal law must be construed generously in order to comport with [] traditional notions of sovereignty and Page 14 -DEFENDANT S MOTION AND MEMORANDUM OF LAW TO DISMISS FOR LACK OF JURISDICTION

56 with the federal policy of encouraging tribal independence. United States v. Gallaher, 624 F.3d 934, 938 (9th Cir. 2010) (quoting White Mountain Apache Tribe v. Bracker, 448 U.S. 136, (1980)); see also Washington v. Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. 463, 484 (1979) ( [A]mbiguities in legislation affecting retained tribal sovereignty are to be construed in favor of the Indians.... ). Tribal sovereignty, which historically gave state law no role to play within a tribe s territorial boundaries, must serve as a backdrop against which federal statutes are read. Oklahoma Tax Com n v. Sac and Fox Nation, 508 U.S. 114, (1993). Accordingly, because it is ambiguous at best that the ICCA applies the ACA to Indian country, this Court should decline to interpret the ICCA to impose the cultural values and policy interests of states on tribal defendants absent a clear statement by Congress. Cf. 18 U.S.C (assimilating State gambling offenses into federal law, mirroring the language of the ACA but expressly applying the provision to Indian country). D. The Assimilative Crimes Act Does Not Apply in This Case Because the Major Crimes Act Precludes Application of the Assimilative Crimes Act to an Attempt to Elude Charge Committed in Indian Country In Lewis v. United States, the Supreme Court held that assimilation under the ACA is not proper where federal statutes reveal an intent to occupy so much of the field as would exclude the use of the particular state statute at issue, or where its application would interfere with the achievement of federal policy, or where state law has been displaced by specific laws enacted by Congress. 523 U.S. at (internal citations omitted). First, assimilation of a victimless state crime, already punishable under tribal law, through the ACA would be contrary to the federal policy of maintaining Indian sovereignty free from state jurisdiction to the greatest extent possible. See e.g., McClanahan. 411 U.S. at 168 ( The policy of leaving Indians free from state jurisdiction and control is deeply rooted in the nation s history. ) Second, and more pertinently, the MCA is a federal statute which reveals an intent to occupy so much of a field as would exclude use of the particular state statute at issue. Lewis, 523 U.S. at 164. The Page 15 -DEFENDANT S MOTION AND MEMORANDUM OF LAW TO DISMISS FOR LACK OF JURISDICTION

57 MCA, 18 U.S.C. 1153, makes punishable 15 specifically enumerated federal major crimes, if committed by an Indian in Indian country. Moreover, the MCA specifically states that if the enumerated major crimes happen to not be defined and punishable under federal law, then the enumerated major crime shall be punishable under state law which is in force at the time. Thus, Congress has passed a very specific statute defining when the federal government may assimilate crimes committed in Indian country which violate state law. None of the enumerated crimes cover any conduct remotely similar to eluding the police. In other words, with the MCA, Congress has passed a law which completely occupies the field of assimilation of state law crimes in Indian country, and which specifically excludes from assimilation victimless crimes like attempt to elude. In Lewis, the Supreme Court rejected reading the ACA to assimilate state law where there was no gap to fill and where such application would [] leave residents of federal enclaves randomly subject to three sets of criminal laws... where their state counterparts would be subject only to [two]. 523 U.S. at 163. Here, there is no gap to fill, and as in Lewis, applying the ACA to attempt to elude on the Warm Springs Reservation would subject residents of Warm Springs, to three sets of criminal law (tribal, state, and federal), where their state counterparts would only be subject to one set of law (state law, because there is no federal law forbidding eluding the police). E. Even if the Assimilative Crimes Act Applies to Indian County, the Indian Country Crimes Act Does Not Apply to Victimless Crimes Committed by Indians on Indian Lands Even if this Court finds that the ACA applies to Indian country through the ICCA, the ACA nevertheless should not be construed to apply to victimless or public safety crimes committed by Indians on Indian lands. The Warm Springs tribe, as a sovereign entity, maintains jurisdiction over crimes committed by Indians and public offenses against the peace and dignity of the tribe, see Felix S. Cohen, Handbook of Federal Indian Law 146 (1942), unless that jurisdiction has been expressly withdrawn by Congress. See Ex parte Crow Dog, 109 U.S. 556 (1883); see also Canby at 189 ( In the Page 16 -DEFENDANT S MOTION AND MEMORANDUM OF LAW TO DISMISS FOR LACK OF JURISDICTION

58 absence of federal statutes limiting it, tribal criminal jurisdiction over the Indian in Indian country is complete, inherent, and exclusive. ). The ICCA was intended to confer jurisdiction on the federal courts for crimes where either the victim or the perpetrator was a non-indian, while vesting in tribal government s jurisdiction over all controversies between Indians, or where a member of the [tribe] is the only party to the proceeding. In Re Mayfield, 141 U.S. 107, 116 (1891) (holding that federal courts lacked jurisdiction over a federal adultery offense committed by an Indian in Indian country, despite the fact that the tribe did not make adultery a crime). Crimes where the only party to the conduct is an Indian are matters wholly internal to the tribes and tribal jurisdiction over them is exclusive. Quiver, 241 U.S. at 606. In Quiver, the Supreme Court refused to allow federal prosecution of an Indian for the consensual crime of adultery under the ICCA. Id. While adultery did not fall into ICCA s Indian-against-Indian exception read literally, the Court nevertheless held that the federal court was without jurisdiction, recognizing that the Indian-against- Indian exception embodied a broader Congressional policy that the relations of the Indians among themselves the conduct of one toward another is to be controlled by the customs and laws of the tribe unless Congress expressly directs otherwise. Id. at To hold otherwise would subject Indians to many other [minor offenses] which it seems most reasonable to believe were not intended by Congress to be applied to them. Id. at 606. Importing the full panoply of state law governing victimless crimes and applying it to tribal Indians would be an enormous intrusion on tribal authority over Indian affairs. Canby, at 179; see also id. at (criticizing United States v. Sosseur and United States v. Thunder Hawk 9 for impos[ing] the requirements of state law quite unnecessarily upon an Indian in Indian country whose conduct is 9 In United States v. Thunder Hawk, 127 F.3d 705 (1997), the Eighth Circuit held that the ACA extended the offense of driving under the influence to a Native American defendant. The court pronounced that Thunder Hawk illustrates how the ACA fills gaps in the law because there was no specific federal law that criminalized the defendant s conduct. Id. at 707. However, the Eighth Circuit failed to mention whether tribal law punished driving under the influence and flatly rejected Quiver s holding that the ICCA does not apply to victimless crimes. Page 17 -DEFENDANT S MOTION AND MEMORANDUM OF LAW TO DISMISS FOR LACK OF JURISDICTION

59 more appropriately governed by the contrary provisions of tribal law ). The exceptions to the ICCA, viewed together, make clear that Congress intended to leave internal matters, including public safety offenses, to the tribe. See 18 U.S.C Those internal matters inescapably include both the power to prosecute a tribe s own members and the tribe s authority to control events that occur upon the tribe s own land insofar as that authority has not been withdrawn by Congress. Lara, 541 U.S. at 204. This view is consistent with the well-understood principle that [w]hen on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the State s regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest. Nevada v. Hicks, 533 U.S. 353, 362 (2001) (citation omitted). F. Williams v. United States Did Not Decide Whether the Assimilative Crimes Act Applies to Indian Country, and the Question Was Not Squarely Presented in United States v. Marcyes In Williams v. United States, 327 U.S. 711, (1946), the Supreme Court held that the Assimilative Crimes Act did not make an Arizona statutory rape statute applicable to Indian country because there already existed a federal statute punishing the specific acts to which the Arizona crime applied. The Williams court assumed, without deciding, that the ACA applied in Indian country, while holding that a broader state law definition of a crime could not be assimilated once Congress had defined the crime. Id. Lower courts continue to rely upon Williams for the proposition that the Assimilative Crimes Act applies to Indian lands. See, e.g. United States v. Marcyes, 557 F.2d 1361, 1365 n.1 (9th Cir. 1977); United States v. Sosseur, 181 F.2d 873, 874 (7th Cir. 1959); but cf. Pueblo of Santa Ana v. Hodel, 663 F.Supp. 1300, (D.D.C. 1987) ( [T]he [Williams] Court never directly addressed whether the 10 This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively. 18 U.S.C Page 18 -DEFENDANT S MOTION AND MEMORANDUM OF LAW TO DISMISS FOR LACK OF JURISDICTION

60 Act should apply to Indian lands. ); accord 1-9 Cohen s Handbook of Federal Indian Law 9.02(1)(c)(ii) (Nell Jessup Newton ed. 2012). However, the issue was not briefed by the parties in Williams, nor was the issue squarely presented in Marcyes, and therefore, neither of those decisions should bind this Court. In Marcyes, the Ninth Circuit held that Washington s fireworks laws were assimilated by the ACA and could be applied to Indian country because the laws at issue were prohibitory, rather than regulatory. 557 F.2d at While the appellants did not dispute that the ACA applied to Indians in Indian country as one of the general laws referenced in the ICCA, amicus curiae argued that the history and intent of the ACA precluded its application to Indian country. See id. at 1365 n. 1. In a footnote, the Marcyes court disagreed, concluding that the threshold question necessarily decided [in Williams] was whether the ACA even applied to Indian country. Id. The Marcyes court further relied on the Williams court s statement that because the Indian reservation was within exclusive federal jurisdiction, many sections of the Federal Criminal Code apply to the reservation, including not only the Assimilative Crimes Act.... Id. (quoting Williams, 327 U.S. at 713). While the Marcyes court speculated that the merits in Williams would never have been reached had the court felt that the ACA did not apply to any crime committed upon Indian lands, 557 F.2d at 1365 n.1, such an inference is insufficient to support a conclusion that the ACA s application to Indian lands is settled law, particularly in light of the relevant legislative history and the weighty tribal interests at stake. As the District Court in Santa Ana recognized, no court has carefully scrutinized whether Congress ever intended that the ACA should be applied to tribal lands. 663 F.Supp. at Writing about Williams, the court in Santa Ana noted, the Court never directly addressed whether the Act should apply to the Indian lands. Instead, the Court presumed that it applied, but then focused its analysis upon the preemptive application of the federal statutory rape law and concluded that the more lenient federal law superseded the state law. Id. Page 19 -DEFENDANT S MOTION AND MEMORANDUM OF LAW TO DISMISS FOR LACK OF JURISDICTION

61 Merely because courts have applied the law in a particular way for years, or even decades, does not mean the law has been applied correctly. For example, before the Court decided United States v. Booker, 543 U.S. 220 (2005), federal courts for decades operated under the assumption that the federal sentencing guidelines were mandatory. Moreover, as is the case with the ACA, where an issue has not been fully and squarely briefed and presented to a court, courts are less constrained to follow precedent. Johnson v. United States, 135 S.Ct. 2551, 2563 (2015)(quoting Hohn v. United States, 524 U.S. 236, 251 (1998)). Because subjecting tribal members to prosecution under state criminal laws involves a powerful intrusion into tribal sovereignty and self-government, the Court must scrutinize the ACA s application to Indian country anew. Congressional silence regarding the ACA s application to Indian country fails to provide sufficient evidence that Congress considered the issue and intended to subject tribal members to a broad swath of state criminal laws in federal court. Because Congress has largely left the primary statutes establishing federal criminal jurisdiction in Indian country intact since the Nineteenth Century, [i]t is impossible to assert with any degree of assurance that congressional failure to act represents affirmative congressional approval of courts applying the ACA to Indian country. See Alexander v. Sandoval, 532 U.S. 275, 292 (2001) (criticizing reliance on congressional failure to amend a provision as a tacit ratification of courts prior interpretations). CONCLUSION The ACA was simply never intended to apply to Indian country, and certainly was not intended to apply in this case, in which a specific tribal law prohibits eluding the police, and there is no gap filling role for the ACA to play. Rather, charging Mr. Smith in this case represents a gratuitous intrusion into tribal sovereignty without authority, and the Court should dismiss this case for lack of jurisdiction. RESPECTFULLY SUBMITTED this 23rd day of May, /s/ Conor Huseby Conor Huseby, Attorney for Defendant Page 20 -DEFENDANT S MOTION AND MEMORANDUM OF LAW TO DISMISS FOR LACK OF JURISDICTION

62 Conor Huseby- OSB #06373 Assistant Federal Public Defender 101 SW Main Street, Suite 1700 Portland, OR Tel: (503) Fax: (503) Attorney for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON. UNITED STATES OF AMERICA, Case No. 3:16-CR BR vs. Plaintiff, DEFENDANT'S SENTENCING MEMORANDUM JOHNNY ELLERY SMITH, Defendant. The defendant, Johnny Ellery Smith, through his attorney Conor Huseby, hereby submits the following sentencing memorandum for the Court's review in consideration of his sentencing before the Honorable Judge Anna Brown on Wednesday, November 1, 2017, at 11:00 a.m. Page 1-DEFENDANT'S SENTENCING MEMORANDUM

63 I. RELEVANT FACTS. Mr. Smith, a member of the Warm Springs Tribe, was charged on November 1, 2016 with two counts of Fleeing or Attempting to Elude a Police Officer. More specifically, under the Assimilative Crimes Act (18 U.S.C. 13, hereinafter the /1 ACA 11 ), Mr. Smith was charged with a violation of Oregon Revised Statute (1). After the denial of his Motion to Dismiss, Mr. Smith pied guilty to both counts in the indictment on August 16, He is currently in the custody of the United States Marshals Service awaiting sentencing. II. LAW AND ARGUMENT. a. Under the Federal Sentencing Guidelines There is no "Analogous Offense" for Eluding or Attempting to Elude a Police Officer. When sentencing a person convicted of an assimilative crime, federal courts are 11 first required to determine if there is a sufficiently analogous offense guideline, and if so, apply the guideline that is most analogous." U.S.S.G. 2X5.1. Where no analogous offense exists, the court should impose an appropriate sentence under 18 U.S.C. 3553(b), "keeping in mind that the ACA requires the court to impose a 'like punishment. 111 United States v. Reyes, 48 F. 3d 435, 438 (9th Cir. 1995). In order to determine whether an offense is sufficiently analogous, the court should, 11 generally compare the elements of the defendant's crime to the elements of [the] federal offense... " United States v. Rakes, 510 F.3d 1280, 1288 (10th Cir. 2007). Page 2 - DEFENDANT'S SENTENCING MEMORANDUM

64 There is no analogous federal offense to Eluding or Attempting to Elude a Police Officer as defined in Or. Rev. Stat (1). First, it should be noted that this United States Attorney's Office, in regards to this defendant, charged with this crime has, previously conceded that there is no analogous federal offense to Eluding or Attempting to Elude a Police Officer. In case 3:12-CR HZ, Mr. Smith was charged with Eluding or Attempting to Elude a Police officer under the ACA, exactly as he has been in this case. In that case, Assistant United States Attorney Craig Gabriel, in a sentencing memorandum filed on August 21, 2013, wrote: "The U.S. Probation Office states in the Presentence Investigation Report that there is not a sufficiently analogous United States Sentencing Guideline under which to place this offense. The government agrees with that conclusion from the probation office." The U.S. Probation office in the present case also concludes there is no sufficiently analogous guideline for Or. Rev. Stat (1)(b)(A). PSR at 'fil9. The defense concurs with the position of the U.S. Probation Office. The only somewhat analogous federal statute or Guideline in this case, is found in U.S.S.G. 3Cl.2. Guideline 3Cl.2 directs courts to increase a person's Guideline score by two levels if the defendant "recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer." Mr. Smith has a criminal history score of 9, which establishes a Criminal History Category of IV. Applying the two levels the Guidelines have recommended are appropriate for a person who flees the police, the Guidelines, to the extent they provide any guidance to the Court, call for a sentence Page 3 - DEFENDANT'S SENTENCING MEMORANDUM

65 of 0-6 months on each count, though as argued below, under the "like punishment" clause of the ACA, Mr. Smith is not eligible for a sentence in excess of 60 days. b. Under the Assimilative Crimes Act, Mr. Smith is "Subject to a Like Punishment" for a Violation of Or. Rev. Stat (1) as he Would Receive Under Oregon's Sentencing Laws. "The ACA subjects persons committing offenses on federal enclaves to a 'like punishment' as an offender would receive in state court had the same offense been committed in the jurisdiction of the state that surrounds the enclave." United States v. Kaneakua, 105 F.3d 463, 466 (9th Cir. 1997); 18 U.S.C. 13. See also United States v. Sain, 795 F.2d 888, 890 (10th Cir. 1986)("The purpose of the Assimilative Crimes Act is to provide a method of punishing a crime committed on government reservations in the way and to the extent that it would have been punishable if committed within the surrounding jurisdiction."). In determining the contours of the term "like punishment" in the ACA, it is important to understand Congress' intent in enacting the ACA. As the Supreme Court explained: When these results of the statute are borne in mind, it becomes manifest that Congress, in adopting it [the ACA], sedulously considered the twofold character of our constitutional government, and had in view the enlightened purpose, so Jar as the punishment of crime was concerned, to interfere as little as might be with the authority of the states on that subject over all territory situated within their exclusive boundaries, and which hence would be subject to exclusive state jurisdiction but for the existence of a United States reservation. In accomplishing these purposes it is apparent that the statute, instead of fixing by its own terms the punishment for crimes committed on such reservations which were not previously provided for by a law of the United States, adopted and wrote in the state law, with the single difference that the offense, although punished as an offense against the United States, was nevertheless punishable only in the way and to the extent that it would have been punishable if the territory embraced by the reservation remained subject to the jurisdiction of the state. Page 4 - DEFENDANT'S SENTENCING MEMORANDUM

66 United States v. Press Pub. Co., 219 U.S. 1, 9-10 (1911)(emphasis added). Thus, Congress enacted the ACA with the intent to interfere as little as possible with state criminal sentencing when the federal government prosecutes an individual for violation of a state law. It is settled law that the phrase "like punishment" does not require this Court to entirely replace federal sentencing principles with state sentencing schemes. Federal courts are not required duplicate every nuance of the sentence that could have been imposed in state court. For example, federal courts need not follow state sentencing polices as they relate to the mechanics of parole or probation. See United States v. Smith, 574 F.2d 988, 992 (9th Cir. 1978); United States v. Reyes, 48 F.3d 435, 438 (9th Cir. 1995). Though the cases above indicate a degree of flexibility, primarily when it comes to issues like probation or parole (as opposed to custody time at sentencing), the "like punishment" requirement of the ACA is not a redundant provision. Rather, the "like punishment" requirement of the ACA requires a judge to impose a sentence that falls "within the range of discretion permitted to a state judge..." United States v. Garcia, 893 F.3d 250, 254 (9th Cir. 1989)(emphasis added). "[T]he Assimilative Crimes Act requires courts to impose sentences for assimilative crimes that fall within the minimum and maximum terms established by state law. However, within the range of discretion permitted by a state court judge, a federal judge should apply the federal sentencing guidelines to the extent possible." United States v. Leake, 908 F.2d 550, 553 (9th Cir. 1990)(emphasis added). Page 5 - DEFENDANT'S SENTENCING MEMORANDUM

67 Thus, the parameters of an ACA sentence are not simply the theoretical maximum and minimum sentences allowed for under state law, but the prescribed range of discretion actually available to a state court judge in that state. United States v. Harris, 27 F.3d 111 (4th Cir. 1994), illustrates this principle usefully. In Harris, the defendant was charged under the ACA with a violation of North Carolina's Driving While Impaired law. The offense of Driving While Impaired carried a maximum penalty of six months in jail under North Carolina law. Id. at 116. However, under North Carolina law, a trial court, on an initial violation of the statute, could only impose 24 hours in custody, unless the defendant violated his probation. Id. The federal magistrate judge imposed a sentence of seven days in custody and the defendant appealed, arguing that the seven day sentence violated the ACA' s requirement that the judge impose a "like punishment." Id. at 114. The Fourth Circuit reversed, holding that even though the theoretical maximum penalty under North Carolina's Driving While Impaired law was six months, the "mandatory [24 hour] restriction in a very real sense is the maximum sentence a state trial judge can impose under [North Carolina's Driving While Impaired law], unless the defendant later violates a condition of probation." Id. at 116 (emphasis added). An even more useful example comes from United States v. McManus, 236 Fed.Appx. 855 (4th Cir. 2007)(unpublished). In McManus, the defendant, like Mr. Smith in this case, was charged with eluding the police under the ACA. Id. at 855. Mr. McManus was sentenced to 15 months in prison, and appealed, arguing that under the like punishment clause of the ACA, though the theoretical maximum penalty under North Carolina law for eluding was 30 Page 6- DEFENDANT'S SENTENCING MEMORANDUM

68 months, a defendant with his criminal history in state court was only subject to a sentence of 10 months. Id. at 856. The court agreed, noting that while a sentence under the ACA does not need to mirror state sentencing in every aspect, "[ w ]e cannot conclude that a sentence which would be illegal under state law is nonetheless a 'like sentence' within the meaning of the ACA." Id. Regarding North Carolina's sentencing scheme, the court wrote, "[i]f we are not required to assimilate those portions of the North Carolina scheme, then federal courts could impose sentences that could not be imposed in state court." Id. (emphasis in original). In summary, while federal courts are not required to duplicate state sentences under the ACA identically, the "like punishment" provision places real restrictions on a federal court sentencing a defendant for a state law violation. Specifically, in imposing a "like punishment" under the ACA, this Court may only impose a sentence within the sentences actually available to a state court judge. In this case, as discussed below, the maximum sentence for violating Or. Rev. Stat (1) for Mr. Smith, is in "a very real sense" probation, with up to 30 days in jail on each count. In fact, the government in this case, in their efforts to defeat Mr. Smith's jurisdictional motion to dismiss, already all but conceded that Mr. Smith must receive a sentence within the sentences actually available had Mr. Smith been charged with these crimes in state court. In the government's response to Mr. Smith's motion to dismiss, the government wrote that Congress passed the ACA to "punish most minor offenses committed on federal enclaves in conformity with local law, thus achieving statewide uniformity, and deferring to the authority of Page 7 - DEFENDANT'S SENTENCING MEMORANDUM

69 the states over land within their borders." Govt. Resp. at 11 (quoting United States v. Mariea, 795 F.2d 1094, 1099 (1st Cir. 1986)(emphasis added). c. A "Like Punishment" For Violation of Or. Rev. Stat (1) is a Sentence of Probation. In Oregon, felony sentencing is governed by the Oregon Sentencing Guidelines. Each crime is assigned a crime seriousness ranking on a scale running from 1 for the least serious crimes, to 11 for the most serious crimes. Or. Admin. Rul (1). Additionally, each defendant is assigned a "Criminal History Score" ranging from I to A, with I being the least serious criminal history score and A being the most serious criminal history score. Or. Admin. Rul The "centerpiece of the sentencing guidelines is the 99-block Sentencing Guidelines Grid." State v. Davis, 315 Or. 484, 487 (1993). The crime seriousness ranking serves as the vertical axis of the scale, and the defendant's criminal history score serves as the horizontal access. Id. A court reaches a sentence by locating the block on the sentencing guideline grid where a defendant's criminal history score and the crime seriousness ranking intersect. Id. See also Attached Exhibit A, Oregon Felony Sentencing Grid. Eluding or Attempting to Elude a Police Officer, when committed in a motor vehicle, is a Class C felony. Or. Rev. Stat (3)(a). Class C felonies in Oregon are punishable by a maximum term of five years in prison. Or. Rev. Stat (3). However, the true maximum sentence for Eluding or Attempting to Elude a Police Officer is not five years. Rather, "consistently with Blakely... the relevant 'prescribed statutory maximum' under the Page 8 - DEFENDANT'S SENTENCING MEMORANDUM

70 Oregon sentencing guidelines is the presumptive sentence that the court determines based on the offender's criminal history and crime seriousness score." State v. Sawatzky, 195 Or. App. 159, 171 (2004). Under the Oregon sentencing guidelines, Eluding or Attempting to Elude a Police Officer under Or. Rev. Stat has been assigned a crime seriousness ranking of "2." Or. Admin. Rul (36). Under Oregon's 99-block felony sentencing guidelines grid, all level 2 felonies, which are not subject to a recidivist sentencing statute, are subject to a presumptive sentence of 18 months of probation. As explained in Or. Admin. Rul , "presumptive probation" grid blocks are crimes which fall "below the dispositional line" for which the "presumptive sentence shall be" a term of probation which may include custody, or a sentence of "straight jail." The amount of jail available to a person convicted of a level 2 felony is governed by Or. Admin. Rul Or. Admin. Rul (1)(a) sets the number of "sanction units" for a level 2 offense at 30. For a level 2 offense, the amount of time a judge may impose as a jail sanction to be served "immediately upon sentencing" under Or. Admin. Rul (2) is "no more than one-third of the jail sanction units described in section 1 of this rule..." Thus, for a level 2 offense, the amount of jail time that may be imposed at sentencing is 10 days (one-third of 30). Sentencing courts may impose jail terms longer than those proscribed by Or. Admin. Rul (2) under certain limited circumstances. Under Or. Admin. Rul (3)(a), a court may avoid the one-third rule and impose Page 9 - DEFENDANT'S SENTENCING MEMORANDUM

71 the full number of jail sanction units if the court finds that the jail for the county has available jail space. Thus, for a level 2 offense, upon a finding that the jail has available bed space, a defendant could receive a sentence of 30 days in jail at sentencing. The other way a court may impose a jail sanction on a level 2 offense in excess of 10 days is by way of a departure sentence. There are two types of departure sentences under Oregon law. The first type of departure sentence is "durational departure," i.e., "a sentence which is inconsistent with the presumptive sentence as to [the] term of incarceration, [the] term of supervised probation or [the] number of sanction units which may be imposed as a condition of probation." Or. Admin. Rul (8). For a durational departure in a presumptive probation grid block, Or. Admin. Rul (2) allows a court to impose a durational departure of sanction units up to the maximum number of sanction units. For a level two offender, who is in a 90/30 sanction units grid block, the maximum number of sanction units which a court could impose at sentencing is 90 days in jail. The second type of departure sentence is a "dispositional departure," i.e., "a sentence which imposes probation when the presumptive sentence is prison or [which imposes] prison when the presumptive sentence is probation." Or. Admin. Rul (7). For a level 2 offense, to impose a sentence of prison, rather than probation, the court would have to make a dispositional departure. Additionally, when making a dispositional departure from probation on a level 2 offense, "the term of incarceration shall be: (1) [u]p to six months for offenses classified in Crime Categories 1 and 2..."Or. Admin. Rul (1). After Page 10 - DEFENDANT'S SENTENCING MEMORANDUM

72 making a dispositional departure to six months on a level 2 offense, a court may make a durational departure to further increase custody time, however, "[s]uch a sentence shall not exceed double the maximum duration set forth in section (1) of this rule." Or. Admin. Rul (3). In other words, the so-called "double barreled" departure maximum for a given crime is double its dispositional departure. Additionally, under Or. Admin. Rul (3), in order for a court to impose both a dispositional and durational departure, the additional departure must be 11 supported by aggravating circumstances that are substantial and compelling and that are different from the factors used to support the initial departure." State v. Tracy, 116 Or. App. 329, 332 (1992); See also State v. Gibson, 183 Or. App. 25, 35 (2002)(trial court committed reversible error by imposing a double barreled departure without clearly explaining that it was relying on an independent aggravating factor to impose the durational component of the sentence). Whether a sentencing court is imposing a dispositional departure or a durational departure, there are statutory and constitutional restraints on a court's ability to do so. Under Or. Admin. Rul , "the sentencing judge shall impose the presumptive sentence provided by the guidelines unless the judge finds substantial and compelling reasons to impose a departure." The "substantial and compelling reasons" must be stated on the record. Id. However, the biggest statutory restraints on departure sentencing are found in Or. Rev. Stat to Or. Rev. Stat to were enacted in 2005 in response to the United States Supreme Court decisions in Apprendi v. New jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004). See State v. Davilla, 280 Or. App. 43, 57 Page 11 - DEFENDANT'S SENTENCING MEMORANDUM

73 (2016)(explaining that Or. Rev. Stat to ORS were enacted to meet the Constitutional requirements of Apprendi and Blakely). Under Or. Rev. Stat , "[i]n order to rely on an enhancement fact to increase the sentence that may be imposed in a criminal proceeding, the state shall notify the defendant of its intention to rely on the enhancement fact..." The state may provide notice either by pleading the enhancement fact in the accusatory instrument, or by providing notice to the defendant of the state's intention to rely on the enhancement fact no later than 60 days after the defendant was arraigned or 14 days before trial, whichever occurs earlier. Or. Rev. Stat (1)-(2). In addition to the notice requirement of Or. Rev. Stat , Or. Rev. Stat and Or. Rev. Stat state that for either an enhancement fact related to the offense or to the defendant, the court "shall submit the enhancement fact to the jury," unless the defendant admits to the enhancement fact or elects to waive his right to a jury determination of the enhancement fact. Under Or. Rev. Stat , if the defendant does not admit to the enhancement fact, the state must prove the enhancement fact to a jury, or upon a waiver by the defendant, to the court, "beyond a reasonable doubt." In summary, the statutory and constitutional restraints placed on departure sentencing in Oregon are as follows: The state must provide the defendant with notice of any aggravating factor that it intends to rely on to seek an upward departure sentence and prove that factor beyond a reasonable doubt to a jury unless the defendant waives his or her jury-trial right. The sentencing guidelines require the sentencing court to impose the presumptive Page 12 - DEFENDANT'S SENTENCING MEMORANDUM

74 sentence provided by the guidelines 'unless the judge finds substantial and compelling reasons to impose a departure[,]' and the court makes on-the-record findings explaining the substantial and compelling reasons for the departure. Davila, 280 Or. App. at 58 (internal citations omitted). Turning to Mr. Smith's case, a state sentencing court's discretion at sentencing would be bound by the following rules: 1. Although the theoretical statutory maximum for a C Felony is five years imprisonment, "consistently with Blakely... the relevant 'prescribed statutory maximum' under the Oregon sentencing guidelines is the presumptive sentence that the court determines based on the offender's criminal history and crime seriousness score." Sawatzky, 195 Or. App. at Pursuant to Or. Admin. Rul (36), Eluding or Attempting to Elude a Police Officer is assigned a crime seriousness ranking of Pursuant to Oregon's 99-block sentencing grid, a conviction on a level 2 offense subjects a person to a presumptive sentence of 18 months of probation with 30 jail sanction units available at sentencing. 4. Pursuant to Or. Admin. Rul (2), the maximum amount of jail Mr. Smith could receive at sentencing on a level 2 offense is one third the number of jail sanction units available (one-third of 30), unless under Or. Admin. Rul (3)(a), the court found on the record there was enough room in the jail, in which case Mr. Smith could receive a jail sentence equal to the full amount of sanction units, in his case 30 days. The defense would concede that this Court could likely make the jail space findings necessary to subject Mr. Smith to 30 days in jail. 5. Theoretically, pursuant to Or. Admin. Rul (1), a sentencing court could impose a dispositional departure on Mr. Smith of up to 6 months, and could then apply a durational departure on Mr. Smith adding another 6 months, bringing his maximum theoretical sentence on each count to 12 months pursuant to Or. Admin. Rul (3). 6. However, in order to impose departure sentence on Mr. Smith, the government first would have had to have provided notice to Mr. Smith, and the enhancement facts which formed the basis for the departure would have had to have been proven to a jury beyond a reasonable doubt, unless Mr. Smith admitted to them or waived his right to a jury determination. The government has not provided notice to Mr. Smith of any enhancement facts, Page 13 - DEFENDANT'S SENTENCING MEMORANDUM