United States of America, Plaintiff-appellee, v. Victor Francisco, Defendant-appellant, 536 F.2d 1293 (9th Cir. 1976)

This case comes to us on appeal from the district court's denial of appellant's motion to dismiss the indictment and his motions for judgment of acquittal. Appellant contends that the indictment which had charged him with armed burglary in the nighttime, in violation of Title 18, United States Code, Section 1153, and Arizona Revised Statute, Section 13-302 had failed to allege a federal offense. Appellant also claims that the evidence failed to establish the requisite elements of armed burglary in the nighttime. We reject both of these claims and agree with the orders of the district court which denied his motions.

I. Facts.

The indictment of the Grand Jury charged the appellant Francisco, an Indian, with entering a dwelling house within Indian Country¹  in April 1975 with the intent to commit petty larceny, and that while committing said burglary, the appellant was armed with a deadly weapon a butcher knife in violation of 18 U.S.C. § 1153²  and Ariz.Rev.Stat. § 13-302.³ 

On October 17, 1975, the appellant filed a motion to dismiss the indictment, contending that the indictment failed to allege a federal offense. Francisco claims that armed burglary in the nighttime is an offense not within burglary as defined in 18 U.S.C. § 1153. According to Francisco, when section 1153 prescribes that the definition and penalty for burglary shall be provided by state law, it was incorporating the state law only to the extent that it existed in 1949, the date of the reenactment of section 1153. In 1949, section 43-901 of the Arizona Code, defined burglary as including only first degree (nighttime) and second degree burglary (daytime).⁴  According to the appellant's construction, only those definitions of burglary can be construed as being within the burglary provision of 18 U.S.C. § 1153. And, since the relevant Arizona statute was amended in 1967 to include armed burglary in the nighttime, appellant claims it is not an assimilated crime under 18 U.S.C. § 1153. Therefore, appellant concludes the indictment failed to allege a federal offense when it charged him with committing armed burglary in the nighttime. The trial court did not agree and denied the motion to dismiss the indictment.

During his jury trial, appellant moved for a judgment of acquittal at the end of the Government's case in chief, contending that the Government had produced no evidence to establish the requisite elements of armed burglary in the nighttime. This motion also was denied. At the completion of all the evidence, Francisco renewed his motion for judgment of acquittal, but the motion was again denied. Finally, on October 23, 1975, a trial by jury convicted Francisco of armed burglary in the nighttime as charged in the indictment.

We hold that the appellant's motions were properly denied by the district court, and we therefore affirm the conviction.

II. The Issue: Static or Prospective Incorporation.

At the time of the alleged offense, the Major Crimes Act, 18 U.S.C. § 1153, enumerated thirteen crimes which specifically constituted federal crimes when committed by one Indian against the person or property of another Indian or other person. The definition and penalties for the specified crimes of murder, manslaughter, carnal knowledge of a female under the age of sixteen years, assault with intent to kill, arson, robbery and larceny are found in various sections of Title 18. See 18 U.S.C. §§ 1111, 1112, 2032, 113, 81, 2111, and 661 respectively. Congress expressly provided that there be reference to state law for the definition of rape, assault with intent to commit rape, incest, assault with a dangerous weapon, assault resulting in serious bodily injury, and burglary. Congress also expressly provided that there be reference to state law for the punishment of incest, assault with a dangerous weapon, assault resulting in serious bodily injury, and burglary. For the crimes of rape and assault with intent to commit rape committed by an Indian, section 1153 provides that the defendant shall be imprisoned at the discretion of the court when the victim is a female Indian. But when the victim is a female non-Indian, sections 2031 and 113 are the relevant penalty provisions for said crimes, respectively.⁵ 

The heart of the appellant's claim is his assertion that Congress intended that section 1153 incorporate state law as it existed at the date of its enactment. The Government, on the other hand, contends section 1153 incorporation is of state law as it exists at the time of the offense. If the appellant is right, his motion to dismiss the indictment should have been granted because armed burglary in the nighttime did not exist under Arizona law in 1949, the most recent date of reenactment of section 1153. If the Government is right, the motion to dismiss was properly denied because, at the time of the offense, section 13-302 of the Ariz.Rev.Stat. provided a definition and penalty for armed burglary in the nighttime.

We believe the Government is right. Our view initially is based on practical considerations. A statute which incorporates subsequent amendments to federal law, as it does when the federal definitions and penalties are changed, but not changes of incorporated state law, is an awkward statute with which to work and fulfills badly, if at all, the notice function which lies at the heart of the constitutional doctrine of vagueness. This awkwardness is heightened when it is pointed out that "static incorporation" encounters problems with respect to the crime of incest which incorporated state law only as a result of a 1966 amendment. Under the appellant's theory state law applicable to the crime with which he is charged is that law which existed in 1949. A federal statute incorporating state law of different dates all antecedent to the commission of the offense is not, to say the least, a tidy statute. Such a construction should not easily be presumed to have been the intent of Congress.

The appellant's construction also is inconsistent with the Congressional intention to secure equal treatment of Indians and non-Indians. See United States v. Antelope, 523 F.2d 400 (9th Cir. 1975), cert. granted, --- U.S. ----, 96 S. Ct. 1100, 47 L. Ed. 2d 311, 44 U.S.L.W. 3471 (1976). Appellant and non-Indians ordinarily should be subject to the same law when both commit the same offense in the same state. A strong showing is necessary to require us to abandon this principle of equality.

The appellant, with some reason, believes that he has made such a showing. He relies on United States v. Gomez, 250 F. Supp. 535 (D.N.M. 1966) which unambiguously supports his position. We believe that Gomez was incorrectly decided. To demonstrate its error it is necessary to point out that its holding rests on a premise which has been rejected by this court in Acunia v. United States, 404 F.2d 140 (9th Cir. 1968). The premise is that, but for the words "shall be defined and punished in accordance with the laws of the State in which such offense was committed," appearing in the last paragraph of section 1153, the Assimilative Crimes Act, as amended in 1948, 18 U.S.C. § 13, would have incorporated state law as of the place and time of the commission of the offense. Building on this premise Gomez concluded that the insertion of the quoted words was intended to preclude operation of the Assimilative Crimes Act and in doing so indicated an intent to secure "static incorporation." We held in Acunia that "the Assimilative Crimes Act was not applicable (to the offense of incest as enumerated in section 1153 when committed by an Indian against an Indian) because removed along with other general laws by the second paragraph of section 1152 . . . ." 404 F.2d at 143.⁶  Our holding demonstrates that within this circuit it cannot be stated that the Assimilative Crimes Act would have been applicable generally to section 1153 crimes not otherwise defined by federal statutes. In this manner the foundation on which Gomez rests collapses.

It follows that the words quoted above appearing in the last paragraph of section 1153 were not inserted to oust the Assimilative Crimes Act. Their purpose was to incorporate state law. Unfortunately, however, the incorporation leaves unresolved the precise issue before us. Our resolution of this issue is justified for the reasons already mentioned as well as by its congruity with the policy of the Assimilative Crimes Act which incorporates the state law existing at the time of the commission of the offense. This prospective incorporation was held constitutionally proper in United States v. Sharpnack, 355 U.S. 286, 78 S. Ct. 291, 2 L. Ed. 2d 282 (1958). Moreover, the Court stated that prospective incorporation amounted to recognition by Congress of its "underlying policy of 123 years' standing . . . " and amounted to "a practical accommodation of the mechanics of the legislative functions of State and Nation in the field of police power where it is especially appropriate to make the federal regulation of local conduct conform to that already established by the State." Id., at 292-93 and 294, 78 S. Ct. at 295. Our use of this policy as an aid to interpretation of the critical words of section 1153 is not made illegitimate by our rejection in Acunia of the application of the Assimilative Crimes Act to certain offenses enumerated in section 1153. The latter was required by section 1152 which erects no bar to a reasonable interpretation of the critical language of section 1153.

To depart from this reasonable interpretation and to adopt the static interpretation of Gomez requires a return to the approach of United States v. Paul, 31 U.S. (6 Pet.) 141, 8 L. Ed. 348 (1832) which adopted static interpretation in interpreting the language of the original Assimilative Crimes Act, enacted in 1825.⁷  A series of subsequent reenactments indicated a Congressional intent to achieve by reenactment the substance of prospective incorporation which Congress explicitly adopted in the present Assimilative Crimes Act.⁸  This history subsequent to the decision in Paul, as well as a fundamental change in the relationship between the Nation and the States which renders the Marshall Court's concern with guarding the prerogatives of the Nation from erosion by the States less pressing, justifies our rejection of Paul's static incorporation.⁹ 

Finally, our interpretation of section 1153 is consistent with the Supreme Court's construction of similar statutes. For example, the Webb-Kenyon Act of March 1, 1913, 37 Stat. 699, 27 U.S.C. § 122, proscribed the shipment of intoxicating liquors into a State to be used "in violation of any law of such State . . . ." Subsequently, West Virginia enacted a prohibition law. The Court upheld the applicability of the Federal Act as it assimilated that subsequent state statute. Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311, 326, 37 S. Ct. 180, 61 L. Ed. 326 (1917). In a more recent case, United States v. Howard, 352 U.S. 212, 77 S. Ct. 303, 1 L. Ed. 2d 261 (1957), the Court was presented with the construction of the Federal Black Bass Act of May 20, 1926, as amended, 16 U.S.C. § 852 (1952). The Act in pertinent part prohibited the delivery of any black bass or other fish, from any State if "such transportation is contrary to the law of the State . . . from which such . . . fish . . . is to be transported . . . ." The Court held that the statute assimilates subsequent rules and regulations of the Florida Game and Fresh Water Fish Commission. Thus not only did the Court construe language similar to that at bar as assimilating subsequent state statutes, but also subsequent rules and regulations of the Commission.

III. Were the Motions For Judgment of Acquittal Properly Denied.

Appellant also attacks the sufficiency of the evidence. We therefore apply the general rule that the jury's verdict "must be sustained if there is substantial evidence, taking the view most favorable to the Government to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942), as quoted in Hamling v. United States, 418 U.S. 87, 124, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974). After applying this rule, we hold that based on the evidence before it, the jury was entitled to conclude that the Government had established the requisite elements of armed burglary in the nighttime. The motions for judgment of acquittal were properly denied. The motion to dismiss the indictment and the motions for judgment of acquittal were properly denied.

AFFIRMED.