United States v. Johnnie Lee Bowman, Jr.

679 F.2d 798, 1982 U.S. App. LEXIS 18275

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 17, 1982
• Docket: 81-1257
• Status: Published

Opinions

SCHROEDER, Circuit Judge:

Appellant, an Indian, was charged under the Major Crimes Act of 1885, 18 U.S.C. § 1153, with assault resulting in serious bodily injury to another Indian. He requested and was granted a jury instruction on the lesser included offense of assault by striking, beating, or wounding. The jury convicted him of the lesser included offense, judgment was entered and he was sentenced for that offense.¹ He now contends that the district court lacked jurisdiction to sentence him on any crime not enumerated in § 1153.²

We affirm because we conclude that the Supreme Court implicitly resolved the jurisdictional question against appellant’s position when it decided Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973). In that case the Eighth Circuit had reaffirmed its earlier holding that jurisdiction to convict of lesser included offenses could not be inferred from the Major Crimes Act, which was to be strictly construed.³ For that reason, the Court of Appeals concluded that the defendant was not entitled to a jury instruction regarding a lesser included offense. The Supreme Court reversed. It held that when the facts and the evidence merit such an instruction, the Indian defendant no less than any other is entitled, if he so requests, to have the jury instructed that it may convict him of the lesser included offense.

It is true, as the appellant and the dissent point out, that the Keeble majority did not expressly state that the court would then also have jurisdiction to enter judgment and sentence on the lesser included offense. Nevertheless, we can find nothing in the opinion that would permit us to reach any other conclusion. Appellant’s position would lead to the result that a defendant convicted by the jury on a lesser included offense must be released by the court for lack of jurisdiction, notwithstanding the propriety of its instruction to the jury that defendant could be convicted of that offense. The jury would have been misled by the instruction. In the absence of some indication by the Supreme Court that it considers that result appropriate, we decline to reach it.

There is more than ample support in Keeble and the prior history of that case for our conclusion that there is jurisdiction to sentence the defendant on a lesser included offense after he has requested and received an instruction on it. As noted, the Eighth Circuit had denied the requested instruction on the ground that the court was without jurisdiction over the lesser offense. See United States v. Keeble, 459 F.2d 757, 762 (8th Cir. 1972); Kills Crow, supra. Thus the Supreme Court in reversing that decision could not have been oblivious to the arguments against jurisdiction over lesser offenses. Indeed, the dissenters in Keeble expressly interpreted the majority opinion as holding that the federal courts had jurisdiction to sentence on the lesser offense once the defendant had requested the instruction. 412 U.S. at 217, 93 S.Ct. at 2000 (Stewart, J., dissenting). The majority, quoting the language of 18 U.S.C. § 3242, stressed that Indians charged under the Major Crimes Act “shall be tried in the same courts, and in the same manner, as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.” Id. at 212, 93 S.Ct. at 1997 (emphasis added by the Supreme Court).⁴ Appellant’s position cannot prevail in view of the Supreme Court’s emphasis on parity of treatment.

The Court acknowledged the government’s argument that its holding might extend the reach of the Major Crimes Act. We also find this possibility troublesome. Pursuant to a principle of mutuality,⁵ the holding of Keeble that a lesser included offense instruction is available to the Indian defendant might result in greater availability of such an instruction to the government in prosecutions under the Major Crimes Act. Such a result might induce the government to “overcharge” under § 1153 to ensure punishment for a lesser offense not enumerated in that section.⁶ Clearly, such a prosecutorial policy would have the effect of expanding the Act’s “carefully limited intrusion of federal power into the otherwise exclusive jurisdiction of the Indian tribes to punish Indians for crimes committed on Indian land.” 412 U.S. at 209, 93 S.Ct. at 1996. In response to this danger, the Keeble majority observed that the D.C. Circuit had recently rejected the principle of mutuality. Id. at 214 n.14, 93 S.Ct. at 1998 n.14, citing United States v. Whitaker, 447 F.2d 314, 321 (1971). See also United States v. Johnson, 637 F.2d 1224, 1239 (9th Cir. 1980). We do not reach that issue and it has apparently not yet been addressed in this context by any circuit. See United States v. Campbell, 652 F.2d 760, 763 (8th Cir. 1981).

Since Keeble was decided, two circuits have considered the precise question before us. Both affirmed convictions for lesser included offenses. United States v. John, 587 F.2d 683, 688 (5th Cir. 1979); United States v. Felicia, 495 F.2d 353, 355 (8th Cir.), cert. denied, 419 U.S. 849, 95 S.Ct. 88, 42 L.Ed.2d 79 (1974). The Eighth Circuit concluded, as we do, that “a full and careful reading of Keeble” required rejection of the position which is now urged upon us by appellant. Id., 495 F.2d at 354. The Supreme Court has cited Felicia with apparent approval. United States v. John, 437 U.S. 634, 636 n.3, 98 S.Ct. 2541, 2542-43 n.3, 57 L.Ed.2d 489 (1978).

This is the first time that the question of Major Crimes Act jurisdiction over lesser included offenses has been squarely presented to this court. We have observed that it is difficult to reconcile such jurisdiction with the history of § 1153 and the congressional intent to confer only limited jurisdiction on the federal courts over the enumerated offenses. Johnson, supra, 637 F.2d at 1243-44. Were we writing on a cleaner slate, we might reach a different result than we do today. We are unable to do so and remain consistent with Keeble.

AFFIRMED.

1 . This appeal is from the district court’s denial of appellant’s motion to correct an illegal sentence pursuant to Fed.R.Crim.P. 35(a).

2 . 18 U.S.C. § 1153 provides:

Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, rape, carnal knowledge of any female, not his wife, who has not attained the age of sixteen years, assault with intent to commit rape, incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

3 . Kills Crow v. United States, 451 F.2d 323, 325 (8th Cir. 1971), cert. denied, 405 U.S. 999, 92 S.Ct. 1262, 31 L.Ed.2d 467 (1972).

4 . Section 3242 has since been amended in minor respects not relevant here.

5 . See, e.g., Kelly v. United States, 370 F.2d 227, 229 (D.C.Cir. 1966), cert. denied, 388 U.S. 913, 87 S.Ct. 2127, 18 L.Ed.2d 1355 (1967).

6 . The problem of overcharging could not arise if punishment on the lesser offenses were precluded; thus acknowledgment of the problem by the Supreme Court further supports our holding today.