No Criminal UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT. Plaintiff and Appellant, Defendant and Appellee.

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1 Case: Page: 1 Date Filed: 01/06/2009 Entry ID: No Criminal UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT UNITED STATES OF AMERICA, vs. Plaintiff and Appellant, JOHN GRAHAM, a/k/a John Boy Patton, Defendant and Appellee. Appeal from the United States District Court for the District of South Dakota Western Division The Honorable Lawrence L. Piersol United States District Court Judge APPELLANT S BRIEF MARTY J. JACKLEY United States Attorney MARK E. SALTER Assistant United States Attorney P.O. Box 2638 Sioux Falls, SD (605) Attorneys for Appellant.

2 Case: Page: 2 Date Filed: 01/06/2009 Entry ID: SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT This is a Government appeal from a final decision of the district court dismissing a single-count indictment charging Defendant John Graham with first degree murder within Indian country. Although the indictment did not allege Graham was an Indian, his co-defendant is an Indian and was previously convicted of the murder in an earlier trial. The district court held that the provisions of 18 U.S.C. 2 could not serve to extend criminal liability to Graham. The Government respectfully disagrees and believes 2 is a statue of general applicability whose plain and unambiguous terms extend liability to Graham for what is undeniably a murder cognizable under federal law. The presentation of oral argument would enhance each party s ability to advance its arguments and would assist the Court in its consideration of the issues. Accordingly, the government respectfully requests that the Court allow oral argument (15 minutes per side) to further address the issues presented by this appeal. -i-

3 Case: Page: 3 Date Filed: 01/06/2009 Entry ID: TABLE OF CONTENTS SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT... i TABLE OF AUTHORITIES... iii JURISDICTIONAL STATEMENT...1 STATEMENT OF THE ISSUE...1 STATEMENT OF THE CASE...2 STATEMENT OF THE FACTS...3 SUMMARY OF THE ARGUMENT...8 ARGUMENT: THE PLAIN AND UNAMBIGUOUS PROVISIONS OF 18 U.S.C. 2 EXTEND CRIMINAL LIABILITY TO GRAHAM FOR AIDING AND ABETTING LOOKING CLOUD IN AQUASH S MURDER WHICH OCCURRED WITHIN INDIAN COUNTRY....8 CONCLUSION...17 CERTIFICATE OF COMPLIANCE...18 CERTIFICATE OF SERVICE...18 ADDENDUM -ii-

4 Case: Page: 4 Date Filed: 01/06/2009 Entry ID: TABLE OF AUTHORITIES CASES: Hugi v. United States, 164 F.3d 378 (7th Cir. 1999)...11 New York ex rel. Ray v. Martin, 326 U.S. 496 (1946)...16 State v. Daniels, 16 P.3d 650 (Wash. App. 2001)...16 State v. Norman, 229 N.W.2d 55 (1975)...14 United States v. Antelope, 430 U.S. 641 (1977)...15 United States v. Ashley, 255 F.3d 907 (8th Cir. 2001)...7 United States v. Beck, 250 F.3d 1163 (8th Cir. 2001)...9 United States v. Cotton, 535 U.S. 625 (2002)...11 United States v. Dodge, 538 F.2d 770 (8th Cir. 1976)...10, 15, 16 United States v. Dunlap, 28 F.3d 823 (8th Cir. 1994)...9 United States v. Goings, 527 F.2d 183 (8th Cir. 1975)...16 United States v. Keeney, 241 F.3d 1040 (8th Cir. 2001)...8 United States v. Lester, 363 F.2d 68 (6th Cir. 1966)...1, 12, 13 United States v. Looking Cloud, 419 F.3d 781 (8th Cir. 2005)...2, 3, 4 United States v. McBratney, 104 U.S. 621 (1881)...15, 16 United States v. Norquay, 905 F.2d 1157 (8th Cir. 1990)...15 United States v. Pemberton, 405 F.3d 656 (8th Cir. 2005) iii-

5 Case: Page: 5 Date Filed: 01/06/2009 Entry ID: United States v. Rector, 538 F.2d 223 (8th Cir. 1976)...10 United States v. Roan Eagle, 867 F.2d 436 (8th Cir. 1989)...13 United States v. Rogers, 45 U.S. 567 (1846)...16 United States v. Ruffin, 613 F.2d 408 (2d Cir. 1979)...12 United States v. Sigalow, 812 F.2d 783 (2d Cir. 1987)...1, 9, 13 United States v. Standefer, 610 F.2d 1076 (3d Cir. 1979) (en banc)...1, 12, 14 United States v. Stands, 105 F.3d 1565 (8th Cir. 1997)...9 United States v. Weaver, 290 F.3d 1166 (9th Cir. 2002)...14 STATUTES: 18 U.S.C passim 18 U.S.C. 2(b) U.S.C U.S.C , 2, 5, 10, U.S.C , 15, U.S.C passim 18 U.S.C , 10, U.S.C. 7214(a)(2) U.S.C iv-

6 Case: Page: 6 Date Filed: 01/06/2009 Entry ID: OTHER AUTHORITY: H.R. Rep. No , 94th Cong., 2nd Sess. 3, reprinted in 1976 U.S.C.C.A.N S. Rep. No. 1020, 82nd Cong. 1st Sess.)...12 Federal Rule of Evidence 404(b)...3 Federal Rule of Criminal Procedure 12(b)(3)(B)...5 -v-

7 Case: Page: 7 Date Filed: 01/06/2009 Entry ID: JURISDICTIONAL STATEMENT 1 John Graham, a/k/a John Boy Patton, was charged with one count of first degree murder in violation of 18 U.S.C. 1153, 1111 and 2. The district court had jurisdiction over the case by virtue of 18 U.S.C This is a Government appeal from the district court s order entered on October 3, 2008, dismissing the indictment. CR 327. The Government filed a timely notice of appeal on October 31, CR 340. This Court has appellate jurisdiction under the provisions of 28 U.S.C STATEMENT OF THE ISSUE I. WHETHER THE DISTRICT COURT ERRED BY DISMISSING THE INDICTMENT BASED UPON ITS VIEW THAT GRAHAM COULD NOT BE CONVICTED FOR AIDING AND ABETTING AN INDIAN IN COMMITTING A MURDER WITHIN INDIAN COUNTRY UNLESS THE GOVERNMENT ALLEGED GRAHAM, HIMSELF, WAS AN INDIAN. 18 U.S.C. 2 United States v. Sigalow, 812 F.2d 783 (2d Cir. 1987) United States v. Standefer, 610 F.2d 1076 (3d Cir. 1979) (en banc) United States v. Lester, 363 F.2d 68 (6th Cir. 1966) 1 References to the docket entries found in the district court clerk s record will be cited as CR followed by the appropriate docket number. The October 2, 2008, motion hearing transcript will be cited as MH followed by the relevant page number. The addendum to this brief will be cited as ADD followed by the relevant page number. -1-

8 Case: Page: 8 Date Filed: 01/06/2009 Entry ID: STATEMENT OF THE CASE A federal grand jury returned a one-count indictment on March 20, 2003, charging Graham and Fritz Arlo Looking Cloud with the first degree murder of Annie Mae Aquash in violation of 18 U.S.C. 1153, 1111 and 2. CR 1. The grand jury returned a superseding first degree murder indictment on April 24, CR 16. The superseding indictment removed language from the original charge that alleged the two shot Aquash in the preparation of a kidnaping[.] See CR 1, Looking Cloud was tried separately because Graham was living in Canada and opposing extradition. See CR 107, 116; see also United States v. Looking Cloud, 419 F.3d 781, 785 n.3 (8th Cir. 2005) (explaining Graham s absence from Looking Cloud s trial). A jury convicted Looking Cloud for his role in Aquash s murder on February 6, CR 113. Graham was extradited from Canada and arrested by federal officials on December 6, See CR - unnumbered entry of 12/6/07 (noting Graham s arrest). He was arraigned on December 7, 2007, entered a plea of not guilty and was detained pending his trial. CR Since this distinction between the two 2003 indictments is not material to this appeal, the superseding indictment will be referred to simply as the indictment or the 2003 indictment unless the context indicates otherwise. A copy is attached hereto as ADD

9 Case: Page: 9 Date Filed: 01/06/2009 Entry ID: On September 23, 2008, Graham filed a motion to dismiss the indictment. CR 300, 301. The Government opposed the motion, and the district court heard oral argument on October 2, CR 319, 326. The district court granted the motion on October 3, 2008 three days before Graham s trial was scheduled to begin. CR 327; see also CR 230 (setting 10/6/08 trial date). STATEMENT OF THE FACTS A. Background. In late 1975, leaders of the American Indian Movement (AIM) became convinced that AIM member Annie Mae Aquash was an informant for the Federal Bureau of Investigation (FBI). Looking Cloud, 419 F.3d at Fellow AIM members Fritz Arlo Looking Cloud, John Graham and Theda Clarke took Aquash captive in Denver. Id. at 785. They bound her wrists and tied her to a board before placing her in the hatchback compartment of a Ford Pinto and transporting her to Rapid City, South Dakota. Id. at 790. While guarding Aquash, the Government believes Graham sexual abused her. See CR 256 (Government s notice of res gestae or, alternatively, Rule 404(b) evidence). 3 The Looking Cloud opinion includes a brief exposition of the more infamous incidents involving AIM and its members, including the 1973 occupation of the Village of Wounded Knee, South Dakota, as well as the murder of two federal agents by AIM member Leonard Peltier on the Pine Ridge Indian Reservation in Looking Cloud, 419 F.3d at 785 n

10 Case: Page: 10 Date Filed: 01/06/2009 Entry ID: After meeting with AIM members in Rapid City, Looking Cloud, Graham and Clarke took Aquash to two houses one located on the Rosebud Sioux Indian Reservation, and the other located on the Pine Ridge Indian Reservation. Id.; see also CR 240 (Government s Request for Notice of Alibi Defense). At both houses, they discussed her fate with others. Id. The three then took Aquash to a remote area of the Pine Ridge Indian Reservation. Id. As Aquash prayed, cried and begged for her life, the group executed her by shooting her in the head while she knelt. 4 Id. Aquash s body was discovered by a rancher the following February, but the investigation failed to yield an indictment until Looking Cloud and Graham were charged in See id. at 784. Following his conviction for the murder, Looking Cloud was sentenced to life imprisonment. 5 See id. (affirming Looking Cloud s conviction). At the time of his indictment, Graham was living in his native Canada. He avoided extradition until December of 2007 when Canadian authorities turned him over to United States officials after considerable effort by both governments. See id. n. 3; see also CR - unnumbered entry of 12/6/07 (noting Graham s arrest). 4 Clarke has not been indicted. 5 Looking Cloud claims Graham actually shot Aquash. Looking Cloud, 419 F.3d at

11 Case: Page: 11 Date Filed: 01/06/2009 Entry ID: B. The 2003 Indictment. follows: The indictment naming Looking Cloud and Graham alleged in relevant part as On or about the 12th day of December, 1975,... in Indian country... the defendants, Fritz Arlo Looking Cloud, an Indian, and John Graham...willfully, deliberately, maliciously, and with premeditation and malice aforethought, did unlawfully kill and aid and abet in the unlawful killing of Annie Mae Aquash... in violation of 18 U.S.C. 1111, 1153 and 2. CR 16; ADD 6. Both Graham and Aquash were members of Canadian Indian tribes. See CR 319 (Government response to motion to dismiss, stating Graham is a member of the Tutchone Tribe, and Aquash was a member of the Mi kmaq Tribe). Although both had ties to federally recognized Indian tribes, the 2003 indictment was silent concerning their Indian status. However, Looking Cloud is a member of a federally recognized tribe and was alleged to be an Indian in the 2003 indictment. See CR 319 (describing Looking Cloud as an enrolled member of the Oglala Sioux Tribe). These circumstances prompted Graham to file a pretrial motion to dismiss the indictment pursuant to Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure. CR 300, 301. The Government responded by arguing the failure to allege Graham s Indian status did not prevent the Government from seeking to prove at trial that he -5-

12 Case: Page: 12 Date Filed: 01/06/2009 Entry ID: was, in fact, an Indian under federal law. CR 319. The Government also claimed Graham s status as an Indian was not relevant to jurisdiction since he could be held liable as a principal if the jury determined he aided and abetted Looking Cloud in the murder. CR 319. The district court rejected both theories and granted Graham s motion to dismiss in an October 3, 2008, memorandum opinion and order. CR 327 (ADD 1-5). The district court determined Graham s status as an Indian was an essential element which required proof before the grand jury and an explicit allegation in the indictment. ADD at 3-5. The Government s aider and abettor theory yielded only a brief analysis by the district court which concluded the [c]itation of 18 U.S.C. 2 in the Superseding Indictment is not enough to cure the omission of the essential element of 18 U.S.C (the underlying substantive offense) that Graham is an Indian. ADD at 5. C. The 2008 Indictment. After the order dismissing the indictment was entered, the Government obtained a new indictment naming Graham and adding Richard Marshall who had been recently charged in a separate indictment for his role in Aquash s murder. 6 See district court 6 Marshall is a member of the Oglala Sioux Tribe who, the Government believes, furnished Looking Cloud, Graham and Clarke with the murder weapon when (continued...) -6-

13 Case: Page: 13 Date Filed: 01/06/2009 Entry ID: clerk s record for CR The 2008 indictment superseded Marshall s original indictment and contains three counts: Count I: Alleges only Graham is an Indian, citing 18 U.S.C. 1153; 7 Count II: Count III: Alleges only Aquash is an Indian, citing 18 U.S.C. 1152; 8 and Alleges Graham aided and abetted certain Indians, naming Looking Cloud, Clarke and Marshall and citing 18 U.S.C Count III of the 2008 indictment is substantially similar to the single count in the 2003 indictment which was dismissed. After the new indictment was returned, Graham moved to dismiss only Count III. The Government responded, and the motion remains pending. Additional facts will be added as necessary. 6 (...continued) they stopped at his home before killing Aquash. See CR 240 (request for notice of alibi describing stop at Marshall home). 7 Section 1153 makes certain enumerated offenses federal crimes when they are committed by an Indian within Indian country. It is generally referred to as the Major Crimes Act. United States v. Ashley, 255 F.3d 907, 910 n.3 (8th Cir. 2001). 8 Section 1152 extends federal enclave jurisdiction to offenses committed by non-indians in Indian country subject to certain exceptions. It is sometimes called the General Crimes Act. Ashley, 255 F.3d at 910 n.3. 9 The indictment, motion to dismiss Count III and supporting memorandum, and the Government s response for CR are the subject of the Government s motion to enlarge the appellate record e-filed January 5,

14 Case: Page: 14 Date Filed: 01/06/2009 Entry ID: SUMMARY OF THE ARGUMENT The plain and unambiguous provisions of 18 U.S.C. 2 extend criminal liability to a person who aids and abets in the commission of a crime even where he could not be convicted of the underlying crime. Section 2 is a statute of general applicability which applies without regard to the location of the offense and without regard to the Indian status of the person accused of aiding and abetting. The district court s order dismissing the indictment against Graham overlooked these principles. It was error to do so, and its decision should be reversed so that Graham may be tried for what is indisputably a federal offense arising under 18 U.S.C ARGUMENT I. THE PLAIN AND UNAMBIGUOUS PROVISIONS OF 18 U.S.C. 2 EXTEND CRIMINAL LIABILITY TO GRAHAM FOR AIDING AND ABETTING LOOKING CLOUD IN AQUASH S MURDER WHICH OCCURRED WITHIN INDIAN COUNTRY. A. Standard of review. This Court reviews de novo a district court s decision to grant a motion to dismiss an indictment. United States v. Keeney, 241 F.3d 1040, (8th Cir. 2001). -8-

15 Case: Page: 15 Date Filed: 01/06/2009 Entry ID: B. A defendant can be held liable as an aider and abettor even if he could not be convicted of the underlying offense. The text of 18 U.S.C. 2 provides as follows: (a) (b) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal. 18 U.S.C. 2. Liability for the actions of a principal requires only that the defendant was associated with the unlawful venture, participated in it as something the defendant wished to bring about, and sought by the defendant s own action to make it succeed. United States v. Stands, 105 F.3d 1565, 1577 (8th Cir. 1997) (quoting United States v. Dunlap, 28 F.3d 823, 826 (8th Cir. 1994)). Indeed, a defendant can be convicted under an aider and abettor theory without proof he participated in each and every element of the offense. United States v. Sigalow, 812 F.2d 783, 785 (2d Cir. 1987). This is true even where the defendant does not satisfy the jurisdictional elements of an offense. Id. at ; see also United States v. Beck, 250 F.3d 1163, (8th Cir. 2001) ( jurisdictional elements such as an interstate nexus in an arson -9-

16 Case: Page: 16 Date Filed: 01/06/2009 Entry ID: prosecution are not truly jurisdictional because they do not affect a court s constitutional or statutory power to adjudicate a case). In this case, the indictment cited, among other statutes, 18 U.S.C. 1153, which criminalizes certain enumerated offenses when they are committed by an Indian within Indian country. The offense of murder, described in 18 U.S.C. 1111, is included among the 1153 offenses. Accordingly, Looking Cloud s status as an Indian and his final conviction indisputably establish Aquash s murder as a case arising under the provisions of It is, therefore, an offense committed against the United States to which the aider and abettor provisions of 2 must apply. Graham s Indian status is not jurisdictionally significant to this analysis for two reasons. First, 2 is a statute of general applicability and is not dependent upon the situs of the underlying offense. See United States v. Rector, 538 F.2d 223, 225 (8th Cir. 1976) (18 U.S.C. 2 is applicable to the entire criminal code) (citations omitted); see also United States v. Dodge, 538 F.2d 770, 776 (8th Cir. 1976) (both Indians and non-indians can be liable for conspiring together to impede law enforcement officials operating in Indian country because 18 U.S.C and 371 are statutes of general applicability). Second, 1153 and a defendant s Indian status, in a strict sense, do not truly confer jurisdiction because they do not affect the court s statutory or constitutional -10-

17 Case: Page: 17 Date Filed: 01/06/2009 Entry ID: power to adjudicate the case. United States v. Pemberton, 405 F.3d 656, 659 (8th Cir. 2005) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)). Instead, [s]ubject matter jurisdiction in every federal criminal prosecution comes from 18 U.S.C That s the beginning and the end of the jurisdictional inquiry. Id. (quoting Hugi v. United States, 164 F.3d 378, 380 (7th Cir. 1999)). Section 3231, in turn, grants federal courts exclusive jurisdiction over all offenses against the laws of the United States[] a category which includes 18 U.S.C. 1153, 1111 and 2. Accordingly, the ability to extend criminal liability to Graham as an aider and abettor does not, under the particular facts of this case, turn upon the Government s ability to proceed against Graham as an Indian under Instead, it is the elementary application of 2 which operates to extend liability to Graham for the established 1153 murder of Aquash. The district court, however, erroneously concluded Graham could not be held liable as an aider and abettor unless the Government alleged he was an Indian in the indictment. ADD at 5; see also MH However, this analysis is inconsistent with the plain and unambiguous provisions of 18 U.S.C. 2 and with the weight of decisional authority, both of which support a fundamental and incontrovertible legal principle a defendant may be held liable as an aider and abettor even though he could not be convicted of the underlying offense. -11-

18 Case: Page: 18 Date Filed: 01/06/2009 Entry ID: Indeed, in 1951, Congress broadened 2 by amending it to impose criminal liability for those who cause an act to be done that would be a violation of federal law if directly performed by him or another. See United States v. Lester, 363 F.2d 68, 73 (6th Cir. 1966) (citing 65 Stat. 717 (1951)). Passages from the amendment s legislative history confirm that 2 s reach extends to aiders and abettors who could not be convicted of the underlying offense: This section is intended to clarify and make certain the intent to punish aiders and abettors regardless of the fact they may be incapable of committing the specific violation they are charged to have aided and abetted. United States v. Standefer, 610 F.2d 1076, 1085 (3d Cir. 1979) (en banc) (citing S. Rep. No. 1020, 82nd Cong. 1st Sess.); United States v. Ruffin, 613 F.2d 408, 414 (2d Cir. 1979) ( If there were any question about Congress intent to enlarge the scope of 18 U.S.C. [ ] 2 it was removed by the Senate Report accompanying the proposed amendment... ). In this regard, the amendments to 2 are as practical as they are legal. Because some federal criminal statutes limit their applicability to certain types of individuals, such as government officials, the amendments expressly allow the Government to extend criminal liability to those who participate in a criminal venture but who otherwise might escape prosecution by claiming the underlying statute does not apply -12-

19 Case: Page: 19 Date Filed: 01/06/2009 Entry ID: to them. See id. (listing examples of criminal statutes applicable to certain individuals). This view is consistent with Congress effort to reject[] any distinction between a principal and an aider and abettor. Id. at Therefore, [i]t has been beyond controversy... at least since the 1951 amendment to 18 U.S.C. 2(b) that the accused may be convicted as a causer, even though not legally capable of personally committing the act forbidden by a Federal Statute... Lester, 363 F.2d at 73. In Lester, for example, the Sixth Circuit Court of Appeals affirmed the convictions of two private citizens for aiding and abetting in a conspiracy to deprive a victim of his civil rights. Although the defendants, themselves, could not act under color of law, they could be convicted of aiding and abetting in a conspiracy with police officers to do so even though the police officers were ultimately acquitted. Lester, 363 F.2d at 73-74; see also Sigalow, 812 F.2d at (defendant can be convicted as an aider and abettor without proof that he participated in each and every 10 Among its other applications, 2 has been routinely applied to extend criminal liability to Indian offenders who aid and abet other Indians charged with committing crimes enumerated in 18 U.S.C See, e.g., United States v. Roan Eagle, 867 F.2d 436, 445 (8th Cir. 1989) (rejecting argument that district court was required to instruct jury that specific intent was required to aid and abet first degree murder). In fact, application of 18 U.S.C. 2 to the Major Crimes Act is entirely consistent with the statute s underlying purpose, which is to insure equal treatment for Indian and non-indian offenders who commit certain offenses in Indian Country. H.R. Rep. No , 94th Cong., 2nd Sess. 3, reprinted in 1976 U.S.C.C.A.N

20 Case: Page: 20 Date Filed: 01/06/2009 Entry ID: element of the offense[] including jurisdictional elements); United States v. Weaver, 290 F.3d 1166, 1174 (9th Cir. 2002) (affirming the equity skimming convictions for two defendants who did not satisfy the jurisdictional element of at least two transactions but who aided and abetted others who did satisfy the element); State v. Norman, 229 N.W.2d 55, 56 (1975) (adult can aid and abet possession of alcohol by minor). The Third Circuit Court of Appeals reached a similar conclusion in Standefer. There, the defendant was a private citizen who argued he could not be held liable as an aider and abettor for violating 18 U.S.C. 7214(a)(2), which prohibits only government officials from accepting unauthorized gifts. However, the en banc court rejected the claim and held that despite [the defendant s] private status... [ ] 7214(a)(2) is made applicable to [him] through 18 U.S.C. 2(a)... Standefer, 610 F.2d at Finally, the district court s decision to dismiss the 2003 indictment against Graham cannot be affirmed based upon the application of different Indian country jurisdictional principles. Although federal cases have long held that the Government 11 The Third Circuit also rejected the defendant s argument that he could not be convicted as an aider and abettor for a particular 7214(a)(2) violation where the defendant was acquitted of the underlying count at an earlier trial. Standefer, 610 F.2d at

21 Case: Page: 21 Date Filed: 01/06/2009 Entry ID: lacks jurisdiction over offenses in Indian country which involve a non-indian offender and a non-indian victim, this case presents different circumstances. 12 See, e.g., United States v. Antelope, 430 U.S. 641, 644 n.4 (1977) (although 18 U.S.C ostensibly extends federal jurisdiction to crimes occurring in Indian country, United States v. McBratney, 104 U.S. 621 (1881), provides otherwise). In this case, Graham was not charged under 1152, and his Indian status would only be significant in the absence of the fact that Looking Cloud an Indian participated in the murder. Indeed, none of the decisions comprising the McBratney line of cases appear to have squarely addressed the question of extending criminal liability to a non-indian who aids and abets an Indian charged with committing an offense enumerated in 18 U.S.C See United States v. Norquay, 905 F.2d 1157, 1162 (8th Cir. 1990) (assuming in dicta defendant s non-indian accomplice could be tried only in state court based upon McBratney); cf. Dodge, 538 F.2d at (8th Cir. 1976) (analyzing Indian country burglary involving only non-indians); see also MH 23 (district court observing Dodge doesn t test the Government s aiding and abetting theory). McBratney, itself, involved the murder of a non-indian by another non- 12 As Counts I and II of the new 2008 indictment suggest, the Government believes evidence exists from which a jury could conclude either Graham or Aquash, or both, were Indians under federal law. However, the 2003 single-count indictment (like Count III of the 2008 indictment) does not allege either Graham or Aquash are Indians. -15-

22 Case: Page: 22 Date Filed: 01/06/2009 Entry ID: Indian in Indian country with no question... as to the punishment of crimes committed by or against Indians... McBratney, 104 U.S. at 624; see also New York ex rel. Ray v. Martin, 326 U.S. 496, 500 (1946) (suggesting McBratney applies to crimes between whites and whites which do not affect Indians ); United States v. Goings, 527 F.2d 183, 185 (8th Cir. 1975) (McBratney held that state courts have exclusive jurisdiction of offenses committed solely between non-indians on Indian reservation ) (emphasis added). Here, even if neither Graham nor Aquash were Indians under federal law, 13 the offense could not credibly be described as one committed solely between non-indians. Looking Cloud s conviction, long since final on direct review, neutralizes any claim that this murder did not affect Indians. The murder is, by any account, an offense 13 The district court s decision to dismiss the 2003 indictment takes on a greater significance in light of the unresolved nature of the Indian status of Graham and Aquash. The Government believes either one may be an Indian for purposes of 1152 or 1153 if there is evidence that: 1) he/she is an Indian in the racial sense; and (2) he/she is enrolled or affiliated with a tribe that is recognized by the United States and is individually subject to United States jurisdiction. See State v. Daniels, 16 P.3d 650, (Wash. App. 2001) (citing cases and adapting test of United States v. Rogers, 45 U.S. 567 (1846), to Canadian Indian defendant). However, in preparation for the trial on the 2003 indictment, Graham submitted jury instructions which would have required the Government to establish the first prong of the Rogers test using only evidence that Graham possesses a quantum of American Indian blood. CR 297 (proposed inst. 2). Accordingly, if the district court would have accepted Graham s proposed instruction, he likely would have sought to escape liability for Aquash s murder, despite his Indian race, by claiming the only quantum of Indian blood he possesses relates to a Canadian Indian tribe. -16-

23 Case: Page: 23 Date Filed: 01/06/2009 Entry ID: cognizable under 1153, and there is no legal justification for failing to apply the plain and unambiguous provisions of 2 to extend criminal liability to Graham. CONCLUSION Based upon the foregoing, the Government respectfully requests that this Court reverse the district court s decision to dismiss the 2003 indictment against Graham and remand this case for trial. Respectfully submitted this 5th day of January, /s/ MARTY J. JACKLEY MARTY J. JACKLEY United States Attorney P.O. Box 2638 Sioux Falls, SD (605) /s/ MARK E. SALTER MARK E. SALTER Assistant United States Attorney P.O. Box 2638 Sioux Falls, SD (605)

24 Case: Page: 24 Date Filed: 01/06/2009 Entry ID: CERTIFICATE OF COMPLIANCE I hereby certify that this brief was prepared using Corel WordPerfect 12 and is 4,055 words in proportional spacing in 14-pt. type and is therefore in compliance with Fed. R. App. P. 32(a)(7). I further certify that I have provided to the Court and to each party separately represented by counsel a CD containing the full text of the brief. The CDs have been scanned for viruses using Trend Micro OfficeScan Corporate Edition 6.5 and are virus free. /s/ MARK E. SALTER MARK E. SALTER Assistant United States Attorney CERTIFICATE OF SERVICE The undersigned hereby certifies that service of the foregoing brief was made upon the Appellee by mailing by first class mail, postage prepaid, two true and correct copies thereof and one CD containing the brief to Appellee s attorney of record at the post office address as shown, on this 5th day of January, 2009: John R. Murphy Attorney at Law 328 E. New York St. #1 Rapid City, SD /s/ MARK E. SALTER MARK E. SALTER Assistant United States Attorney -18-

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