United States v. Robert Billy Gipe

672 F.2d 777, 1982 U.S. App. LEXIS 20669

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 26, 1982
• Docket: 80-1777
• Status: Published

Opinions

PER CURIAM:

Appellant Gipe appeals from his conviction for possessing intoxicating liquors in “Indian country” in violation of 18 U.S.C. § 1156.¹ Because the district court did not apply the beyond-a-reasonable-doubt standard in determining the existence of one of the facts necessary to constitute the crime, we reverse and remand.

Gipe admits to possessing and selling beer at Fort Courage, a shopping area located on fee-patented land within the boundaries of an Indian reservation. He maintains, however, that Fort Courage is “a non-Indian community” and thus by statutory definition not Indian country. After an extensive evidentiary hearing, the district court concluded that Fort Courage is not a non-Indian community. The court explicitly labeled this conclusion a jurisdictional finding lying entirely within the competence of the court, and not a factual issue to be determined by the trier of the fact. Gipe submitted the case to the court on the basis of the record developed at the evidentiary hearing, and the court, without re-examining the non-Indian community issue under the beyond-a-reasonable-doubt standard, found him guilty as charged.

Section 1156 establishes penalties for anyone who, aside from certain exceptions, “possesses intoxicating liquors in the Indian country.” The same statutory section states that: “The term ‘Indian country’ as used in this section does not include fee-patented lands in non-Indian communities . . . and this section does not apply to such lands ... in the absence of a treaty or statute extending the Indian liquor laws thereto.” 18 U.S.C. § 1156. The few courts which have addressed the “non-Indian community” provision of § 1156 and related statutes have displayed a remarkable diversity in characterizing the issue. The Eighth Circuit described the issue as a legal conclusion and did not hesitate to redetermine the issue on the basis of the facts presented to the district court. United States v. Morgan, 614 F.2d 166, 170 (8th Cir. 1980). The Tenth Circuit, in invalidating convictions under the statute as unconstitutionally vague, characterized the issue as an element of the crime. United States v. Mazurie, 487 F.2d 14, 16 (10th Cir. 1973), rev’d on other grounds, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975). The Supreme Court, in reversing the Tenth Circuit’s vagueness ruling, denoted the issue a “statutory exception” but explicitly declined to resolve whether the prosecution or the defense bears the burden of proof in establishing the status of the site. United States v. Mazurie, 419 U.S. 544, 550-51 n.9, 95 S.Ct. 710, 714-15 n.9, 42 L.Ed.2d 706 (1975).

We are persuaded that the issue indeed constitutes an element of the crime of possession of intoxicants in Indian country and is neither a jurisdictional issue, as the district court believed, nor a statutory exception that must be proved by the defendant. The district court’s characterization of the issue as jurisdictional apparently resulted from its failure to distinguish territorial jurisdiction cases, where the exercise of federal jurisdiction over a specific geographic area is necessary to vest jurisdiction in federal court. See, e.g., Rodman v. Pothier, 264 U.S. 399, 44 S.Ct. 360, 68 L.Ed. 759 (1924). In such cases, the court may determine as a matter of law the existence of federal jurisdiction over the geographic area, but the locus of the offense within that area is an issue for the trier of fact. United States v. Jones, 480 F.2d 1135, 1138 (9th Cir. 1973). Here, the court need not have determined the status of Fort Courage in order to establish its jurisdiction and therefore should not have resolved the question as a matter of law. See Mazurie, 487 F.2d at 16 (distinguishing the non-Indian community determination from “the frequently encountered question of whether state or federal jurisdiction exists over certain crimes which is determined by the place where they are committed”).

The structure and wording of § 1156 indicate that the prosecution should bear the burden of proof as to the status of the site. Because possession of intoxicants is prohibited by § 1156 only in Indian country, the locus of the act of possession constitutes an element of the crime. The statutory definition of “Indian country” excludes fee-patented lands in non-Indian communities. We are therefore persuaded that the Government bears the burden of proving that the site of the offense was not a non-Indian community as part of its proof that the offense occurred in Indian country. Cf. United States v. Vuitch, 402 U.S. 62, 70, 91 S.Ct. 1294, 1298, 28 L.Ed.2d 601 (1971) (“It is a general guide to the interpretation of criminal statutes that when an exception is incorporated in the enacting clause of a statute, the burden is on the prosecution to plead and prove that the defendant is not within the exception”).

Due process requires that each fact necessary to constitute a crime be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). In order to convict Gipe, the Government must prove beyond a reasonable doubt that Fort Courage was not a non-Indian community.

REVERSED and REMANDED for proceedings consistent with this opinion.

1 . The full text of 18 U.S.C. § 1156 provides:

Whoever, except for scientific, sacramental, medicinal or mechanical purposes, possesses intoxicating liquors in the Indian country or where the introduction is prohibited by treaty or an Act of Congress, shall, for the first offense, be fined not more than $500 or imprisoned not more than one year, or both; and, for each subsequent offense, be fined not more than $2,000 or imprisoned not more than five years, or both.

The term “Indian country” as used in this section does not include fee-patented lands in non-Indian communities or rights-of-way through Indian reservations, and this section does not apply to such lands or rights-of-way in the absence of a treaty or statute extending the Indian liquor laws thereto.