Case: 09-30193 10/05/2009 Page: 1 of 17 ID: 7083757 DktEntry: 18 No. 09-30193 In the United States Court of Appeals for the Ninth Circuit UNITED STATES OF AMERICA, Plaintiff-Appellee, vs. JAMES H. GALLAHER, JR., Defendant-Appellant. On Appeal From the United States District Court for the Eastern District of Washington District Court No. CR-05-224-LRS The Honorable Lonny R. Suko Chief United States District Court Judge Defendant-Appellant s Reply Brief Stephen R. Hormel Hormel Law Office 2206 North Pines Road Spokane Valley, WA 99206 Telephone:(509) 926-5177 Facsimile: (509) 926-4318 Attorney for Gallaher
Case: 09-30193 10/05/2009 Page: 2 of 17 ID: 7083757 DktEntry: 18 TABLE OF CONTENTS I. Issue Presented for Review........... 1 II. Argument.................... 1 III. Conclusion.................. 11 Certificate of Compliance.............. 12 Certificate of Related Cases............ 12 Certificate of Service............... 13 i
Case: 09-30193 10/05/2009 Page: 3 of 17 ID: 7083757 DktEntry: 18 CASES TABLE OF AUTHORITIES Cisneros v. Alpine Ridge Group, 508 U.S. 10 (1993).............. 7,8 United States v. Mazurie, 419 U.S. 544 (1974)............. 2,3 Student Loan Fund of Idaho, Inc. v. U.S. Dep t of Educ., 272 F.3d 1155 (9th Cir. 2001)......... 8 United States v. Kennedy, 618 F.2d 557 (9th Cir. 1980).......... 5 United States v. Lomayoama, 86 F.3d 142 (9th Cir. 1996).......... 2 United States v. Massingale, 500 F.2d 1224 (4th Cir. 1974)........ 10 United States v. Novak, 476 F.3d 1041 (9th Cir. 2007)......... 7 United States v. Watson, th 496 F.2d 1125 (4 Cir. 1973)......... 5,6 United States v. Martinez, 505 F.Supp. 1024 (D.N.M. 2007)......... 3 United States v. Provenzano, 423 F. Supp. 662 (S.D.N.Y. 1976)...... 9,10 ii
Case: 09-30193 10/05/2009 Page: 4 of 17 ID: 7083757 DktEntry: 18 STATUTES 18 U.S.C. 1111................. 2,5,8 18 U.S.C. 1153................ 2,6,7,8 18 U.S.C. 3282................... 1 18 U.S.C. 3598................ passim 18 U.S.C. 3599................... 4 OTHER AUTHORITIES Federal Criminal Law and Tribal Self-Determination, 84 N.C.L. Rev. 799, 831 (2006)......... 3 iii
Case: 09-30193 10/05/2009 Page: 5 of 17 ID: 7083757 DktEntry: 18 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, ) U.S.C.A. No. 09-30193 ) Plaintiff-Appellee, ) D.C. No. CR-05-224-LRS v. ) ) JAMES H. GALLAHER, JR., ) ) Defendant-Appellant. ) ) I. ISSUE PRESENTED FOR REVIEW Whether an indictment charging first degree murder must be brought within the 5 year limitation period under 18 U.S.C. 3282 (Offenses not capital) when federal jurisdiction is predicated on the alleged crime occurring in Indian Country and Congress had eliminated the death penalty pursuant to 18 U.S.C. 3598 for offenses committed in Indian Country. II. ARGUMENT ON REPLY This Circuit is faced with an issue of first impression involving the interplay between the penalty provision in the enabling statute for First Degree 1
Case: 09-30193 10/05/2009 Page: 6 of 17 ID: 7083757 DktEntry: 18 Murder (18 U.S.C. 1111(b)), and a subsequent Congressional act doing away with the death penalty for any offense where Federal jurisdiction is predicated on Indian country (18 U.S.C. 3598). The Government s power to prosecute Mr. Gallaher is drawn from the Major Crimes Act in 18 U.S.C. 1153. This Circuit has held that [t]he Indian Major Crimes Act... governs an area where Congress has traditionally held plenary and exclusive power. United States v. th Lomayaoma, 86 F.3d 142, 146 (9 Cir. 1996). Congress receives this power through the Indian Commerce Clause. Id. The Supreme Court of the United States has historically held that Congress has the power to delegate its legislative authority to tribal governments. United States v. Mazurie, 419 U.S. 544, 556-57 (1974). Mazurie involved Congress s grant of authority to tribal governments to regulate liquor within Indian country. Id. at 547 ( In 1953 Congress passed localoption legislation allowing Indian tribes 2
Case: 09-30193 10/05/2009 Page: 7 of 17 ID: 7083757 DktEntry: 18... to regulate the introduction of liquor into Indian country... ). Id. at 547 (emphasis added). Similarly, what Congress has done here by enacting 3598 is, first, eliminate the death penalty for any offense for which Federal jurisdiction is predicated on Indian country. Congress then delegated to this county s Native American tribes localoption legislation authority to reinstate the death penalty. 1 The district court in the Memorandum Opinion and Order in United States v. Martinez, 505 F.Supp.2d 1024, 1032 (D.N.M. 2007), expressed reluctance to empower 3598 with more authority then Congress language has given it (GB at 18), when confronted with the defendant s motion to dismiss based on the same reason 2 raised in this appeal. This concern is misdirected. The district court would not empower 3598 with more 1 It appears only one tribe, the Sac and Fox Nation of Oklahoma, has reinstated the death penalty. Kevin K Washborn, Federal Criminal Law and Tribal Self- Determination, 84 N.C.L. Rev. 799, 831 (2006). 2 GB refers to the Brief for Appellee. 3
Case: 09-30193 10/05/2009 Page: 8 of 17 ID: 7083757 DktEntry: 18 authority then Congress gave it. By enacting 3598, Congress did away with the death penalty, and delegated exclusive power to Native American tribes to determine whether the entire death penalty chapter, including in all procedural safeguards from Chapter 228, would apply to their people and lands. In order to reinstate the death penalty, the tribes must elect that this chapter have effect over land and persons subject to its criminal jurisdiction. 18 U.S.C. 3598 (emphasis added). Congress delegated authority over the entire chapter to the tribes, including the specific procedural safeguards applicable only to capital offenses. See Cf., 18 U.S.C. 3599 (appointment of qualified counsel, compensation, and investigative/expert services). The plain language of 3598 demonstrates that Congress was aware that it was also eliminating procedural safeguards that attach to capital offenses. This is the significant difference that separates this case from those cases relied on by the Government where 4
Case: 09-30193 10/05/2009 Page: 9 of 17 ID: 7083757 DktEntry: 18 the death penalty was declared unconstitutional by a court. GB at 21-22. The cases sited by the Government do point to the Grave Nature of First Degree Murder to support their holdings. GB at 21-22. But, these cases came in the wake of the death penalty being ruled unconstitutional by a court, not because Congress has taken some action to eliminate death as a potential penalty for any offense, as it did when it enacted 3598. This Court adopted the mode of analysis from th United States v. Watson, 496 F.2d 1125 (4 Cir. 1973). See, United States v. Kennedy, 618 F.2d 557, 558 n. 3 th (9 Cir. 1980). Watson s holding hinged on the distinction drawn between Congressional action that eliminated the death penalty, and a court s holding the death penalty unconstitutional. Watson at 1127-28. Watson recognized that 18 U.S.C. 1111 still authorizes the imposition of the death penalty and Congress has not repealed it. More importantly, the court went on to state: Nor has Congress amended any 5
Case: 09-30193 10/05/2009 Page: 10 of 17 ID: 7083757 DktEntry: 18 of the statutes creating special procedural rules in capital cases in response to the Furman decision. Id. at 1127. By enacting 3598, Congress did both in relation to offenses committed in Indian country: (1) it effectively repealed the death penalty by its terms for any offense committed in Indian country; and (2) it eliminated all procedural statutes tied to the death penalty in Chapter 228. Contrary to the Government s position that the plain language of 3598 supports its interpretation, a review of the entire text of the statute supports Gallaher s position. GB at 16-18. Absent from the Government s recitation of 3598 are the following words: Notwithstanding sections 1152 and 1153... GB at 16. Again, this omission is significant. Section 1153 (Major Crimes Act) adopts the penalties for the crimes listed in that section, including murder. It states: Any Indian who commits... murder... within the Indian country... shall be subject to the same law and penalties, as all other 6
Case: 09-30193 10/05/2009 Page: 11 of 17 ID: 7083757 DktEntry: 18 persons committing any of the above offenses... within the exclusive jurisdiction of the United States. 18 U.S.C. 1153(a) (emphasis added). Section 3598's reference to 1153 has some intended meaning, otherwise Congress would not have included the notwithstanding language in the statute. The Supreme Court has indicated as a general proposition that statutory notwithstanding clauses broadly sweep aside potentially conflicting laws. th United States v. Novak, 476 F.3d 1041, 1046 (9 Cir. 2007) (quoting Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18 (1993)). The Supreme Court held: As we have noted previously in construing statutes, the use of such a notwithstanding clause clearly signals the drafter s intention that the provisions of the notwithstanding section override conflicting provisions of any other section. Likewise, the Courts of Appeals generally have interpreted similar notwithstanding language to... supersede all other laws, stating that [a] clearer statement is difficult to imagine. Novak, 476 F.3d at 1046 (quoting Cisneros, 508 U.S. at 18). Additionally, this Court has held: [T]he 7
Case: 09-30193 10/05/2009 Page: 12 of 17 ID: 7083757 DktEntry: 18 [n]otwithstanding any other provision of law clause demonstrates that Congress intended to supersede any previously enacted conflicting provisions. Novak, 476 F.2d at 1046 (citing Student Loan Fund of Idaho, Inc. th v. U.S. Dep t of Educ., 272 F.3d 1155, 1166 (9 Cir. 2001)). The notwithstanding language in 3598 demonstrates Congress s clear intent to supersede the adoption of the offense penalties contained in 1153, this includes superseding the death provision for First Degree Murder in 1111(b). [A]ny offense, including First Degree Murder, committed in Indian country is no longer subject to the death penalty, and therefore, is not a capital offense. The capital nature of these offenses may be reinstated only by legislative action of the individual tribes. Thus, the legislative history analysis propounded by the Government is misplaced when considering the entire text of 3598. GB at 18-21. The Government s interpretation conflicts with Congress s use of the notwithstanding clause. 8
Case: 09-30193 10/05/2009 Page: 13 of 17 ID: 7083757 DktEntry: 18 If there is any ambiguity in Congress s intent to supersede statutes tied to the death penalty, then the rule of lenity operates to support a holding in Gallaher s favor. See, Appellant s Opening Brief at 23-25. Finally, United States v. Provenzano, 423 F. Supp. 662 (S.D. N.Y. 1976) is appropriately relied upon by Gallaher. In the response, the Government tries to persuade this Court that Gallaher s reliance on Provenzano is misplaced. GB at 28 ( Defendant s reliance on Provenzano is somewhat surprising because it undercuts the Defendant s argument. ). The Government s response ignores the second part of Provenzano s analysis. In Provenzano, the district court concluded that due to the serious nature of the offense, the fact that the death penalty for the offense was found unconstitutional by a court, would not transform that offense from capital to non-capital. Provenzano, 423 F.Supp. at 666. Thus, the limitless statute of 9
Case: 09-30193 10/05/2009 Page: 14 of 17 ID: 7083757 DktEntry: 18 limitations would still apply under those circumstances. Id. However, the district court in Provenzana was confronted with one additional factor - Congress had eliminated the death penalty for the offense prior to the Government having charged the defendant. Id. Confronted with that fact, the district court wrote: as the Fourth Circuit noted in Watson, a court has a different role when determining the ramifications of a judicial holding that a death penalty provision is unconstitutional, from that when Congress has taken some action on the matter.... Congressional amendment to 1201 precluded the court from engaging in any of the analysis followed in Watson, and clearly removed kidnapping from the classification of a capital offense. Provenzano, 423 F.Supp. at 666 (quoting United States th v. Massingale, 500 F.2d 1224 (4 Cir. 1974) (emphasis added). Here, Congress removed First Degree Murder occurring in Indian country as a capital offense by enacting 3598. The capital nature of the offense may be reinstated only by tribal legislation. Therefore, 10
Case: 09-30193 10/05/2009 Page: 15 of 17 ID: 7083757 DktEntry: 18 the district court s order denying the motion to dismiss should be reversed. III. CONCLUSION Based on the foregoing, it is requested that the Court reverse the district court s order denying the motion to dismiss for violation of the statute of limitations. Respectfully submitted October 5, 2009 s/stephen R. Hormel Hormel Law Office 2206 North Pines Road Spokane Valley, WA 99206 Telephone: (509) 926-5177 Facsimile: (509) 926-4318 Attorney for Gallaher 11
Case: 09-30193 10/05/2009 Page: 16 of 17 ID: 7083757 DktEntry: 18 Certificate of Compliance Pursuant to Circuit Rule 32-1, I certify that the foregoing brief uses a proportionately-spaced font with a 14-point typeface, and contains 1,614 words. (Opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words; reply briefs must not exceed 7,000 words.) s/stephen R. Hormel Attorney for Appellant Certificate of Related Cases Counsel for James H. Gallaher, Jr., U.S.C.A. No. 09-30193, is not aware of any cases that raise the same issues, currently pending in this Court. Respectfully submitted October, 2009. s/stephen R. Hormel Attorney for Appellant 12
Case: 09-30193 10/05/2009 Page: 17 of 17 ID: 7083757 DktEntry: 18 Certificate of Service I, the undersigned, declare: On October 5, 2009, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in this case are registered CM/ECF users and that service of the brief will be accomplished by the appellate CM/ECF system. I certify that the foregoing is true and correct. Executed on October 5, 2009, at Spokane, Washington. s/stephen R. Hormel Attorney for Appellant 13