Friday, October 24, 2008
Ninth Circuit Revives Indian’s Charge in Cigarette Trafficking Case
Panel Says Defendant Immune From Transport Charge, but May Be Prosecuted for Conspiracy
By STEVEN M. ELLIS, Staff Writer
Members of the Yakama Indian tribe in Washington may be exempt from prosecution for trafficking in contraband cigarettes, but they face racketeering charges if they conspire with nonmembers to do so, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Recognizing that an 1855 treaty prevented the government from prosecuting Roger Fiander for transporting cigarettes without state tax stamps, the court nevertheless upheld Fiander’s conviction for conspiring to violate the Racketeer Influenced and Corrupt Organizations Act because some of his coconspirators in the illegal enterprise did not share his immunity.
Fiander, a member of the Confederated Tribes and Bands of the Yakama Nation located in south central Washington, was part of an organization which purchased cigarettes from wholesalers and then sold them to tribal retailers in Washington without paying the state’s cigarette tax. His role was to transport the cigarettes from the Coeur d’Alene Indian reservation in Idaho to the retailers.
The State of Washington, in order to enforce its cigarette tax, requires cigarettes to have a stamp showing payment of taxes or tax-exempt status, and Fiander was eventually charged in a multi-count indictment filed in the U.S. District Court for the Eastern District of Washington with transporting “contraband” cigarettes without stamps in violation of the federal Contraband Cigarette Trafficking Act.
In addition to several co-defendants, Fiander was also charged with conspiracy to violate the trafficking act and RICO, as well as money laundering, and he agreed to plead guilty to one county of conspiracy to violate RICO in exchange for dismissal of the remaining counts.
Shortly thereafter, however, the Ninth Circuit decided in United States v. Smiskin (2007) 487 F.3d 1260 that the application of the trafficking act to Yakama Indians transporting unstamped cigarettes violated the Yakama Treaty of 1855’s guarantee of the “right to transport goods to market over public highways without payment of fees for that use,” and U.S. District Judge Robert H. Whaley dismissed the indictment naming Fiander.
On the government’s appeal, Senior Judge A. Wallace Tashima agreed that Smiskin precluded prosecution of Fiander for a substantive violation of the trafficking act, but Tashima opined that “Fiander did not need to commit the substantive offense of contraband cigarette trafficking in order to be guilty of the RICO conspiracy,” and said Whaley’s order constituted reversible error.
Turning to principles of conspiracy law, Tashima said it was sufficient that Fiander knew about and agreed to facilitate the scheme, and that the allegations in the indictment survived dismissal.
“The indictment alleged that Fiander entered into an agreement to commit the substantive offense of contraband cigarette trafficking. At least several of his coconspirators…are not members of the Yakama Nation; therefore their conduct is ‘indictable’ under the CCTA.... The indictment further alleges, and the plea agreement indicates, that Fiander knew about the objective of the enterprise and knowingly agreed to facilitate it.”
Noting that “Fiander’s coconspirators agreed to commit violations of the CCTA that are indictable as substantive RICO offenses,” Tashima concluded that Fiander’s agreement to facilitate the commission of contraband cigarette trafficking by others whose acts were indictable under the trafficking left him open to the RICO conspiracy charge, and remanded the matter for further proceedings.
Judges Stephen Reinhardt and M. Margaret McKeown joined Tashima in his opinion.
The case is United States v. Fiander, 07-30251.
Copyright 2008, Metropolitan News Company