concluding that there was no impermissible constructive amendment of the indictment, where “the conviction is narrower, rather than broader, than the indictment”
How later courts described this case
- concluding that there was no impermissible constructive amendment of the indictment, where “the conviction is narrower, rather than broader, than the indictment”
- providing that a variance occurs when “the evidence offered at trial proves facts materially different from those alleged in the indictment” (quoting United States v. Hartz, 458 F.3d 1011, 1020 (9th Cir. 2006))
- finding no prejudice merely because “the indictment charged a single continuous conspiracy” but at trial “the facts show[ed] two separate conspiracies with a gap between 2 them”
- “The CCTA, however, does not make cigarettes ‘contraband’ under federal law simply because they are contraband under state law.”
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 10-30185
v.
D.C. No.
2:09-cr-00191-
C. MARVIN WILBUR, AKA Marvin
Wilbur, Sr., MJP-1
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 10-30186
v. D.C. No.
2:09-cr-00191-
JOAN C. WILBUR, MJP-2
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 10-30187
v. D.C. No.
2:09-cr-00191-
APRIL M. WILBUR, MJP-3
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 10-30188
Plaintiff-Appellee, D.C. No.
v. 2:09-cr-00191-
BRENDA R. WILBUR, MJP-4
Defendant-Appellant.
OPINION
3711
3712 UNITED STATES v. WILBUR
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted
June 8, 2011—Seattle, Washington
Filed April 6, 2012
Before: Stephen Reinhardt, William A. Fletcher, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge William A. Fletcher;
Partial Concurrence and Partial Dissent by Judge Rawlinson
UNITED STATES v. WILBUR 3717
COUNSEL
James E. Lobsenz, CARNEY BADLEY SPELLMAN, P.S.,
Seattle, Washington, for the appellants.
Helen J. Brunner, Richard Edward Cohen, Mary K. Dimke, J.
Tate London, OFFICE OF THE UNITED STATES ATTOR-
NEY, Seattle, Washington, for the appellee.
OPINION
W. FLETCHER, Circuit Judge:
Marvin, Joan, April, and Brenda Wilbur (collectively “De-
fendants” or “the Wilburs”) were indicted for an eight-year
conspiracy to violate the Contraband Cigarette Trafficking
Act (“CCTA”) by trafficking in “contraband cigarettes.” They
were also indicted for several substantive counts of violating
the CCTA and several counts of money laundering based on
transfers of their earnings from the allegedly contraband ciga-
rettes. Contraband cigarettes, as defined in relevant part by
the CCTA, are cigarettes “which bear no evidence of the pay-
ment of applicable State or local cigarette taxes in the State
or locality where such cigarettes are found.” 18 U.S.C.
§ 2341.
The Wilburs moved to dismiss the indictment. They argued
that the state of Washington retroceded its cigarette taxation
to the Swinomish Tribe during the period of a cigarette tax
contract it entered into with the Swinomish Tribe. They
argued that the only cigarette taxes applicable to their activi-
ties were thus tribal taxes, not the “State or local cigarette
3718 UNITED STATES v. WILBUR
taxes” referred to in the CCTA. The Wilburs also argued that
their indictment was based on ambiguous tax laws and there-
fore violated due process, and that their right to trade in
untaxed cigarettes is guaranteed by the Treaty at Point Elliott.
The district court denied the motion to dismiss the indictment.
The Wilburs then pled guilty to the eight-year conspiracy to
violate the CCTA, conditioned on their right to appeal the dis-
trict court’s denial of their motion to dismiss.
For the reasons that follow, we agree with the Wilburs that
during the period from 2003 to 2005, when they were licensed
to sell tobacco by the Swinomish Tribe, there were no “appli-
cable State or local cigarette taxes” under the CCTA. We also
agree with the Wilburs that the five-year statute of limitations
for CCTA violations bars any charges based on activity from
1999 to 2003. We conclude, however, that after their tribal
tobacco license expired in 2005, the Wilburs’ activities ceased
to be covered by the Swinomish cigarette tax contract
(“CTC”), and that the state’s retrocession therefore ceased to
apply. The unstamped cigarettes the Wilburs transported and
sold during this period were thus “contraband” under the
CCTA. We reject the Wilburs’ due process and treaty argu-
ments.
We affirm in part, reverse in part, and remand for resen-
tencing consistent with this opinion.
I. Background
The CCTA makes it unlawful to knowingly “ship, trans-
port, receive, possess, sell, distribute, or purchase contraband
cigarettes.” 18 U.S.C. § 2342(a). The CCTA defines contra-
band cigarettes as:
a quantity in excess of 10,000 cigarettes, which bear
no evidence of the payment of applicable State or
local cigarette taxes in the State or locality where
such cigarettes are found, if the State or local gov-
UNITED STATES v. WILBUR 3719
ernment requires a stamp, impression, or other indi-
cation to be placed on packages or other containers
of cigarettes to evidence payment of cigarette taxes,
and which are in the possession of any person . . . .
18 U.S.C. § 2341(2). Thus, “[a] violation of the state cigarette
tax law is a predicate to a CCTA violation.” United States v.
Gord, 77 F.3d 1192, 1193 (9th Cir. 1996).
The Washington cigarette tax laws at issue in this case are
complicated, especially as they apply to Indian tribes. We first
provide an overview of the relevant Washington cigarette tax
scheme. We then describe the specific facts and procedural
history of this case.
A. Washington Cigarette Tax Scheme
Washington imposes a sales tax, a use tax, and a separate
cigarette tax on cigarettes. Rev. Code of Wash. (“RCW”)
§§ 82.08.020 (retail sales tax), 82.12.020 (use tax),
82.24.020(1) (cigarette tax). To enforce its cigarette tax,
Washington requires that cigarette packages bear a stamp
demonstrating compliance with Washington law. According
to RCW § 82.24.030(1):
The stamps must be affixed on the smallest container
or package that will be handled, sold, used, con-
sumed, or distributed, to permit the department to
readily ascertain by inspection, whether or not such
tax has been paid or whether an exemption from the
tax applies.
See also Wash. Admin. Code (“WAC”) § 458-20-
186(201)(a). The stamps must either represent that the tax has
been paid or indicate that the cigarettes are exempt from the
tax.1 RCW § 82.24.030(2). Cigarette wholesalers are responsi-
1
As we discuss below, cigarettes are exempt from tax if they are sold
by a tribal retailer to a member of the same tribe.
3720 UNITED STATES v. WILBUR
ble for affixing stamps. Id. Wholesalers must be licensed by
the state. Id. § 82.24.040(1). Various rules govern wholesal-
ers’ obligations concerning when and how to affix the stamps.
See id. § 82.24.040.
Cigarette retailers are generally prohibited from possessing
unstamped cigarettes within the state of Washington. Id.
§ 82.24.050(1). Retailers must obtain cigarettes from licensed
wholesalers. Id. § 82.24.050(2). Unauthorized receipt, ship-
ment, and sale of unstamped cigarettes by non-wholesalers is
a crime under Washington law. Id. § 82.24.110.
In general, only licensed wholesalers can transport unstam-
ped cigarettes within the state. WAC § 458-20-186(401).
Licensed wholesalers can transport unstamped cigarettes only
in their own vehicles, unless they give prior notice to the
liquor control board. Id. Anyone other than a licensed whole-
saler who intends to transport unstamped cigarettes in the
state must first give notice to the liquor control board. RCW
§ 82.24.250(1); WAC § 458-20-186(402). Anyone other than
a licensed wholesaler transporting unstamped cigarettes must
be transporting them to a licensed wholesaler or to a person
or organization that has given notice to the liquor control
board of their intended possession of unstamped cigarettes.
RCW § 82.24.250(2)-(3), (7).
There has been a long-standing dispute about the state’s
power to tax cigarette sales by tribal retailers on Indian reser-
vations to non-Indians. In Washington v. Confederated Tribes
of the Colville Indian Reservation, 447 U.S. 134, 159-60
(1980), the Supreme Court held that the state could impose a
cigarette tax on cigarette sales by Indian retailers on reserva-
tions to non-Indians. The Court reasoned that the incidence of
a tax on sales to non-Indians falls on the non-Indian customer,
not on the Indian retailer. It held that the state can impose the
“minimal burden[ ]” on the Indian retailer of only selling
stamped cigarettes to non-Indians. Id. at 159.
UNITED STATES v. WILBUR 3721
As the Court recognized in Colville, one of the underlying
issues in the cigarette taxing dispute between the state and the
tribes is the ability of the tribes to impose their own cigarette
tax. Id. at 154-55. The tribes had argued that if the state could
enforce its cigarette tax, the tribes would be forced to drop
their own tax or else their tribal retailers would be forced to
sell at higher prices than off-reservation sellers. The state
argued that because the tribal taxes were often significantly
lower than the state taxes, what the tribes really wanted was
to allow tribal retailers to undercut off-reservation retailers.
This would seriously undermine the state’s cigarette tax
regime because non-Indian cigarette purchasers could travel
to the reservations in order to avoid the state tax. Id.
After Colville, in an attempt to resolve this underlying
issue, Washington passed legislation authorizing the Gover-
nor to enter into cigarette tax contracts (“CTC”) with various
tribes. RCW §§ 43.06.450, 43.06.460. A CTC is typically an
agreement by the state to retrocede its cigarette taxes to the
tribe for transactions covered by a CTC in exchange for the
tribe’s agreement to impose a cigarette tax equal to the state’s
and to use the proceeds to fund essential tribal government
services. This case concerns the state’s tax retrocession under
the CTC it signed with the Swinomish Tribe.
The CTC legislation provides that “[a]ll cigarette tax con-
tracts shall meet the requirements for cigarette tax contracts
under this section.” Id. § 43.06.455(1). The tax contracts
“shall be in regard to retail sales in which Indian retailers
make delivery and physical transfer of possession of the ciga-
rettes . . . within Indian country.” Id. § 43.06.455(2). For this
and all other statutory provisions, there are three definitions
of “Indian retailer.” These are:
(i) a retailer wholly owned and operated by an
Indian tribe,
(ii) a business wholly owned and operated by a
tribal member and licensed by the tribe, or
3722 UNITED STATES v. WILBUR
(iii) a business owned and operated by the Indian
person or persons in whose name the land is
held in trust[.]
Id. § 43.06.455(14)(b).
The legislation describes conditions a tribe must accept to
enter into a CTC. The CTC “shall provide that the tribal ciga-
rette tax rate be one hundred percent of the state cigarette and
state and local sales and use taxes.” Id. § 43.06.460. The Gov-
ernor is authorized to allow a three-year phase-in period dur-
ing which the tribal tax rate can be eighty percent of the state
tax rate. Id. The contract “shall provide” that retailers cannot
sell cigarettes to people under eighteen years old. Id.
§ 43.06.455(2). The contract “shall provide that all cigarettes
possessed or sold by a retailer shall bear a cigarette stamp.”
Id. § 43.06.455(4). These stamps can be tribal stamps, but the
tribes must establish procedures to ensure that the stamps rep-
resent tax-paid or tax-exempt status. Id. The contract “shall
provide” that Indian retailers can purchase cigarettes only
from licensed Washington wholesalers, tribal manufacturers,
or out-of-state wholesalers or manufacturers who have agreed
to comply with the terms of the CTC. Id. § 43.06.455(5).
Finally, “[t]ax revenue retained by a tribe must be used for
essential government services.” Id. § 43.06.455(8).
[1] The legislation also establishes the extent of the state’s
retrocession during the life of a CTC. The tribal cigarette tax
“shall” be “in lieu of all state cigarette taxes and state and
local sales and use taxes on sales of cigarettes in Indian coun-
try by Indian retailers.” Id. § 43.06.455(3). The retail sales tax
“does not apply to sales of cigarettes by an Indian retailer dur-
ing the effective period of a cigarette tax contract.” Id.
§ 82.08.0316. Similarly the use tax “shall not apply in respect
to the use of cigarettes sold by an Indian retailer during the
effective period of a cigarette tax contract.” Id. § 82.12.0316.
Finally, the separate cigarette taxes “do not apply to the sale,
use, consumption, handling, possession, or distribution of cig-
UNITED STATES v. WILBUR 3723
arettes by an Indian retailer during the effective period of a
cigarette tax contract.”2 Id. § 82.24.295. The same three defi-
nitions of “Indian retailer” described above apply to these sec-
tions. RCW § 43.06.455(14)(b).
On October 3, 2003, Washington and the Swinomish Tribe
(the “Tribe”) entered into a CTC pursuant to RCW
§§ 43.06.455 and 43.06.460 (the “Swinomish CTC” or the
“Contract”). The Swinomish CTC applies “to the retail sale of
cigarettes by Tribal retailers.” A Tribal retailer is defined in
the Contract as “a cigarette retailer wholly owned by the Swi-
nomish Tribe and located in Indian country or a member-
owned smokeshop located in Indian country and licensed by
the Tribe.” Thus, in defining “Tribal retailer” the Contract
adopted the first two definitions of “Indian retailer” from
RCW § 43.06.455(14)(b), but not the third.
The Tribe agreed to impose cigarette taxes “on all sales by
Tribal retailers” equal in amount to the state taxes. The Tribe
also agreed that all cigarettes sold by Tribal retailers “shall
bear a Tribal tax stamp,” and agreed on various procedures
concerning the stamps. Finally, the Tribe agreed that it, as
well as all member Tribal retailers, will purchase cigarettes
for resale only from wholesalers licensed by the state of Wash-
ington.3
The state in turn agreed to “retrocede[ ] from its tax during
the time this Contract is in effect.” It also agreed in the CTC:
2
The Washington Administrative Code similarly provides that non-
Indian purchasers can purchase cigarettes “without incurring liability for
state cigarette tax [under RCW Chapter 82.24]” from “one who is subject
to the terms of a valid cigarette tax contract with the state.” WAC § 458-
20-186(102)(c)(i). It also provides that the cigarette tax “does not apply to
cigarettes taxed by an Indian tribe in accordance with a [CTC].” WAC
§ 458-20-186(303)(b).
3
The Contract also contains provisions, not at issue in this case, that
allow for the Tribe to enter into a later memorandum of agreement with
the state allowing the tribe to purchase from out-of-state or self-certified
tribal wholesalers.
3724 UNITED STATES v. WILBUR
As to all transactions that conform with the require-
ments of this Contract, such transactions do not vio-
late state law, and the State agrees that it will not
assert that any such transactions violate state law for
the purpose of 18 U.S.C. § 2342 [the CCTA] or
other federal law specifically based on violation of
state cigarette laws.
After the Contract went into effect, the Swinomish Tribe
amended its tobacco tax and regulations of tobacco retailers
to comply with its obligations under the Contract. See Swi-
nomish Tribal Code §§ 15-03.010 et seq., 17-04.010 et seq.
(2003).
B. Factual Background and Procedural History
Defendants Marvin Wilbur and Joan Wilbur are husband
and wife and are enrolled members of the Swinomish Tribe.
Defendants April and Brenda Wilbur are Marvin and Joan’s
daughters-in-law. Marvin Wilbur is the owner of the Trading
Post, a store on the Swinomish reservation that specializes in
selling various tobacco products, including cigarettes. The
rest of the Wilburs have helped operate the Trading Post. In
operating the Trading Post, the Wilburs used three different
trusts: the Salish Trust, Skagit Trust, and Skagit Cigarette
Sales Trust. Neither the Trading Post, nor any of the trusts,
nor anyone associated with the Trading Post, was a licensed
Washington cigarette wholesaler.
Starting in approximately July 1999, Defendants began pur-
chasing and selling to the general public untaxed and unstam-
ped cigarettes. They continued doing so for the next eight
years. Throughout the course of their sale of unstamped ciga-
rettes, the Wilburs never pre-notified the Washington liquor
control board of the shipment of unstamped cigarettes, as
required by Washington law. On only one occasion did the
company shipping the cigarettes to the Wilburs pre-notify the
liquor control board.
UNITED STATES v. WILBUR 3725
After the state and the Tribe signed the Swinomish CTC on
October 3, 2003, Marvin and Joan Wilbur brought a suit
attempting to block the state and the Tribe from entering into
the Swinomish CTC, but the suit failed, see Wilbur v. Locke,
423 F.3d 1101 (9th Cir. 2005), abrogated in part on other
grounds by Levin v. Commerce Energy, Inc., 130 S. Ct. 2323
(2010). According to a declaration from Allan Olson, the gen-
eral manager of the Swinomish Indian Tribal Community, the
Tribe knew of Defendants’ sale of untaxed cigarettes at that
time.
At the time the Swinomish CTC went into effect, the Trad-
ing Post was licensed by the Tribe as a tobacco retailer. On
June 1, 2004, the Tribe wrote the Wilburs a letter, informing
them that a “recent visit to your store has indicated that you
are still selling un-stamped cigarettes contrary to” tribal law.
The letter ordered the Wilburs to “immediately cease all sales
of cigarettes not bearing a Swinomish Tribal Tax Stamp.” The
letter informed the Wilburs, “If you fail to come into compli-
ance with the requirements of the law by close of business on
June 8, 2004, your license to sell tobacco on the Swinomish
Reservation will be revoked and the Tribe will pursue both
criminal and civil penalties.” Defendants did not cease sales
of unstamped cigarettes, but there is no evidence in the record
that the Tribe took any action to revoke the license on June
8, 2004.
Early in 2005, the Wilburs attempted to renew the Trading
Post’s tribal tobacco license, which was due to expire on
March 31, 2005. On March 28, 2005, the Tribe wrote to the
Wilburs and informed them that they had not satisfied certain
requirements for obtaining a tobacco license, including vari-
ous audits and records of tax payments. The letter informed
the Wilburs that until they completed these requirements,
“you are not allowed to sell any tobacco products from the
Trading Post or any other location on the Reservation. Viola-
tion of this prohibition could result in civil penalties including
fines and could possibly prohibit you from obtaining a license
3726 UNITED STATES v. WILBUR
for future sales.” In response, the Wilburs’ attorney wrote to
the Tribe arguing that the “license requirement is preempted
by the State of Washington Compact and statutes implement-
ing the compact.” We have not been made aware of the
“Compact” to which the Wilburs’ attorney referred. The Wil-
burs continued to sell unstamped cigarettes from the Trading
Post. According to various members of the Tribe administra-
tion, the Trading Post never possessed a tribal license to sell
cigarettes after April 1, 2005.
Believing it did not have the resources to take action
against the Trading Post and the Wilburs, the Tribe contacted
the U.S. Attorney’s Office, which began an investigation.
After conducting several under-cover buys of unstamped cig-
arettes, federal agents executed a search warrant for the Trad-
ing Post on May 15, 2007. They were assisted by Tribal law
enforcement officers. J. Mark Keller, a Lieutenant with the
Washington State Liquor Control Board who was deputized
as a Special Deputy U.S. Marshall, led the search. The agents
confiscated approximately 3.6 million cigarettes in packaging
that did not bear evidence of state or tribal taxes. The agents
also seized over $100,000 in cash and bank accounts. See
United States v. Approximately 3,609,820 Cigarettes of
Assorted Brands, More or Less, No. C07-16032, 2009 WL
773868, at *1 (W.D. Wash., March 20, 2009) [hereinafter
Cigarettes].
On May 13, 2008, the Swinomish Tribe filed a civil forfei-
ture action in Swinomish Tribal Court seeking forfeiture of
the seized cigarettes in the event the United States released
the cigarettes from federal custody and control. The Tribe also
sought over $365,000 in unpaid tribal cigarette taxes on the
seized cigarettes.
On June 10, 2009, the United States filed an indictment
against the Wilburs. The United States filed a Second Super-
seding Indictment (“SSI”) on October 29, 2009. Count 1 of
UNITED STATES v. WILBUR 3727
the SSI charged Defendants with a conspiracy to traffic in
contraband cigarettes. Specifically, Count 1 charged:
Beginning on an exact date unknown, but at least
from in or about July 1999, and continuing through
on or about May 15, 2007, in Skagit County, within
the Western District of Washington, and elsewhere,
the Defendants . . . did willfully and knowingly con-
spire, combine, confederate and agree with each
other . . . to purchase, ship, transport, receive, pos-
sess, sell, and distribute contraband cigarettes, as that
term is defined in Title 18, United States Code, Sec-
tion 2341, in violation of Title 18, United States
Code, Section 2342(a).
The SSI also charged Defendants with six counts of traffick-
ing in contraband cigarettes in violation of the CCTA on vari-
ous dates during the alleged eight-year conspiracy. Finally,
the SSI charged Defendants with one count of conspiracy to
launder money and thirteen counts of money laundering based
on Defendants’ transfer of the money obtained through the
sale of the allegedly contraband cigarettes.
Defendants moved to dismiss the indictment. They argued
that the cigarettes were not “contraband” under the CCTA
because, at least during the time the Swinomish CTC was in
effect, there were no “applicable State or local taxes.” 18
U.S.C. § 2341(2). Specifically, they argued that during the
time the Swinomish CTC was in effect, the state retroceded
its taxation of cigarettes by “Indian retailers,” and that the
Trading Post was an Indian retailer under both RCW
§ 43.06.455(14)(b)(ii) during the time it had a tobacco license
from the Tribe, and RCW § 43.06.455(14)(b)(iii) during the
entire period covered by the indictment. Defendants also
argued that the indictment was based on ambiguous tax stat-
utes and so violated due process, and that Washington was
barred from taxing Defendants’ cigarette sales by the Treaty
at Point Elliott.
3728 UNITED STATES v. WILBUR
The district court concluded that the Swinomish CTC pro-
vides only a “limited exception to the state’s cigarette taxation
rules” for “sales that conform to its requirements.” The Court
relied primarily on the Contract’s provision that “all transac-
tions that conform with the requirements of this Contract . . .
do not violate state law, and the State agrees that it will not
assert that any such transactions violate state law for the pur-
pose of [the CCTA].” It concluded that “[i]mplicit in this
statement is that the tax retrocession applies only to sales that
conform to the Contract.” Because the cigarettes in this case
were unstamped and thus did not conform to the Contract, the
district court held that the state had not retroceded its taxation,
and thus that the cigarettes were contraband under the CCTA.
The district court had no need to address points in time at
which the Trading Post might have qualified as an “Indian
retailer” under Washington statute or a “Tribal retailer” under
the Swinomish CTC.
The district court also rejected Defendants’ other argu-
ments. It concluded that under our decision in United States
v. Baker, 63 F.3d 1478 (9th Cir. 1995), the indictment did not
violate due process because the Wilburs can be presumed to
have knowledge of cigarette taxing requirements, and the due
process cases on which the Wilburs relied required knowledge
of the criminal violation whereas the CCTA does not. The
district court also rejected Defendants’ treaty argument, con-
cluding that although the members of the Swinomish Tribe
who signed the Treaty at Point Elliott “would not have
intended to submit to be restricted in their trade in tobacco,”
our holding in Baker foreclosed any argument that the state
cigarette taxes at issue constituted such a restriction. The dis-
trict court therefore denied the motion to dismiss the indict-
ment.
After the denial of their motion to dismiss the indictment,
Defendants conditionally pled guilty to Count 1 of the indict-
ment (the conspiracy count). The other counts were dis-
missed. The district court sentenced Marvin Wilbur to twelve
UNITED STATES v. WILBUR 3729
months and one day of incarceration. It sentenced Joan Wil-
bur to five months of incarceration, followed by five months
of electronic home monitoring. It sentenced April and Brenda
Wilbur to ninety days of electronic home confinement. It also
ordered restitution in the amount of $10.9 million, the calcu-
lated amount of tax loss for the entire eight-year conspiracy,
to be paid to the state of Washington.
Defendants timely appealed.
II. Standard of Review
We review de novo the district court’s decision not to dis-
miss an indictment based on its interpretation of a federal stat-
ute. United States v. Gomez-Rodriguez, 96 F.3d 1262, 1264
(9th Cir. 1996) (en banc). We review the district court’s find-
ings of fact with regard to a motion to dismiss an indictment
for clear error. See United States v. Lazarevich, 147 F.3d
1061, 1065 (9th Cir. 1998). We “presume the allegations of
an indictment to be true for purposes of reviewing a district
court’s ruling on a motion to dismiss.” United States v.
Smiskin, 487 F.3d 1260, 1263 n.5 (9th Cir. 2007).
III. Discussion
On appeal, Defendants raise the same CCTA, due process,
and treaty arguments they raised before the district court.
Defendants also argue that the state did not have the power to
tax Defendants under Washington law. We address these
arguments in turn.
A. Conspiracy to Violate the CCTA
Defendants argue that because there were no state or local
taxes applicable to the cigarettes they were selling, they could
not have conspired to violate the CCTA. To analyze this
claim, we divide the eight years during which the Wilburs
sold unstamped cigarettes into three periods. During the first
3730 UNITED STATES v. WILBUR
period, from July 1999 to October 2003, Washington had not
entered into a CTC with the Swinomish Tribe. During the sec-
ond period, from October 2003 to March 2005, the Swinom-
ish CTC was in effect, and the Trading Post was licensed to
sell tobacco by the Tribe. During the final period, from April
2005 to the time of the raid in May 2007, the Swinomish CTC
was in effect, and the Trading Post was not licensed to sell
tobacco by the Tribe. For the reasons that follow, we conclude
that Defendants’ actions violated the CCTA during the first
and third period, but not the second. We then discuss the
implications of our conclusion for the indictment and guilty
plea.
1. Before the Swinomish CTC
[2] The first period extends from 1999, the beginning of
the alleged conspiracy, to 2003, when the Swinomish CTC
was signed. During this period, none of Washington’s retro-
cession provisions applied. During this period there clearly
was an “applicable State . . . cigarette tax[ ],” 18 U.S.C.
§ 2341(2), and the unstamped cigarettes received, possessed,
and sold by the Wilburs were therefore “contraband” under
the CCTA.
There is a five-year statute of limitations on CCTA prose-
cutions. 18 U.S.C. § 3282(a). The United States did not file
the indictment against Defendants until June 10, 2009, more
than five years after the Swinomish CTC went into effect.
Criminal prosecution for any substantive violations of the
CCTA that took place during the period before the Swinomish
CTC fall outside the statute of limitations. The government,
however, has alleged a continuing eight-year conspiracy
beginning in 1999 and extending through 2007. In order for
the conspiracy to have occurred during the statute of limita-
tions period, only one overt act in furtherance of the conspir-
acy must have occurred during that period. See United States
v. Fuchs, 218 F.3d 957, 961 (9th Cir. 2000). We discuss
UNITED STATES v. WILBUR 3731
below the implications of the statute of limitations for Defen-
dants’ indictment for activity during this period.
2. After the Swinomish CTC When the Trading Post
Was Licensed
[3] The second period extends from the signing of the Swi-
nomish CTC in 2003 to the revocation of the Trading Post’s
tribal tobacco license in 2005. During this period the Swinom-
ish CTC was in effect, and the Trading Post was licensed by
the Tribe to sell tobacco. During this period the Trading Post
qualified both as an “Indian retailer” under RCW
§ 43.06.455(14)(b)(ii) and as a “Tribal retailer” under the
Swinomish CTC.
[4] The unambiguous language of both the applicable
Washington statutes and the Swinomish CTC compels the
conclusion that there were no state cigarette taxes applicable
to the Wilburs during this period. First, Washington’s ciga-
rette tax statutes provide for retrocession on all transactions
covered by the Swinomish CTC while the Trading Post was
licensed by the Tribe. Under Washington law, the retail sales
tax on cigarettes “does not apply to sales of cigarettes by an
Indian retailer during the effective period of a cigarette tax
contract.” Id. § 82.08.0316. The use tax on cigarettes “shall
not apply in respect to the use of cigarettes sold by an Indian
retailer during the effective period of a cigarette tax contract.”
Id. § 82.12.0316. Finally, the state’s cigarette taxes “do not
apply to the sale, use, consumption, handling, possession, or
distribution of cigarettes by an Indian retailer during the
effective period of a cigarette tax contract.” Id. § 82.24.295.
These statutes unambiguously provide that so long as the Swi-
nomish CTC was in effect, the Trading Post was covered by
the Swinomish CTC, and the Trading Post was an “Indian
retailer,” the state taxes on cigarettes did not apply to the
Trading Post’s transactions.
There is no dispute that, starting in October 2003, the Swi-
nomish CTC was in effect. Further, at least while licensed by
3732 UNITED STATES v. WILBUR
the Tribe, the Trading Post was an “Indian retailer.” For pur-
poses of the relevant Washington statutes, an “Indian retailer”
is defined under state law as:
(i) a retailer wholly owned and operated by an
Indian tribe,
(ii) a business wholly owned and operated by a
tribal member and licensed by the tribe, or
(iii) a business owned and operated by the Indian
person or persons in whose name the land is
held in trust[.]
Id. § 43.06.455(14)(b). The Trading Post qualified as an
Indian retailer under (ii) because it was owned and operated
by Marvin Wilbur, a member of the Swinomish Tribe, and
because it was licensed by the Tribe.
Second, the Swinomish CTC supports the conclusion that
the state retroceded from its cigarette taxes for the Trading
Post’s transactions while the Swinomish CTC was in effect,
and while the Trading Post possessed a tribal tobacco license.
The Swinomish CTC applies “to the retail sale of cigarettes
by Tribal retailers.” Like “Indian retailers” under the Wash-
ington statutes, “Tribal retailers” is defined in the Swinomish
CTC to include “a member-owned smokeshop located in
Indian country and licensed by the Tribe.” The Swinomish
CTC further provides that “the State retrocedes from its tax
during the time this Contract is in effect.” The Swinomish
CTC thus provides that the state retroceded from its cigarette
taxes, at least so long as the Trading Post qualified as a
“Tribal retailer” under the CTC.
[5] Because the state retroceded its taxes, there were no
“applicable State or local cigarette taxes” that the Wilburs
failed to pay, and the cigarettes they sold during this period
were not contraband under the CCTA. Because the cigarettes
UNITED STATES v. WILBUR 3733
were not contraband under the CCTA, the Wilburs could not
have conspired to violate the CCTA during this period.
The government makes two arguments why, despite the
seemingly unambiguous language quoted above, the ciga-
rettes the Wilburs sold during this period were contraband
under the CCTA. We find neither argument convincing.
First, the government argues that, as the district court con-
cluded below, “the State’s retrocession under the Tax Con-
tract applies only to sales that conform to its core
requirements.” In other words, the government argues that if
a tribal cigarette retailer sells cigarettes without a tribal stamp,
the state’s cigarette tax retrocession does not apply. The gov-
ernment and the district court rely almost entirely on the Swi-
nomish CTC’s provision that, “[a]s to all transactions that
conform with the requirements of this Contract, such transac-
tions do not violate state law, and the State agrees that it will
not assert that any such transactions violate state law for the
purpose of [the CCTA].” The district court concluded, and the
government argues to us, that “[i]mplicit in this statement is
that the tax retrocession applies only to sales that conform to
the Contract. It also implies that sales which do not conform
to the Tax Contract are subject to state law and the CCTA.”
[6] This argument ignores the clear retrocession language
in the statute. Even had the governor wanted to agree to make
Washington’s tax retrocession for the Swinomish Tribe condi-
tional on the actions of individual cigarette retailers, the gov-
ernor cannot by contract repeal statutes that explicitly make
the state’s cigarette taxes inapplicable to “Indian retailers”
”during the effective period of a cigarette tax contract.” RCW
§§ 82.08.0316, 82.12.0316, 82.24.295. Regardless of the Wil-
burs’ failure to collect the tribal tax from their customers,
Washington law is clear in stating that the state’s cigarette
taxes do not apply to the Trading Post during the time the
Swinomish CTC was in effect and the Trading Post had a
tribal tobacco license.
3734 UNITED STATES v. WILBUR
The argument also misunderstands the nature of CTCs.
CTCs are agreements between the state of Washington and
the Indian tribes. In a CTC, each government agrees to make
certain changes to its laws in exchange for the other govern-
ment’s agreement to make changes to its laws. In the Swi-
nomish CTC, Washington agreed to retrocede its cigarette
taxes during the time the Swinomish CTC was in effect. In
return, the Swinomish Tribe agreed to impose cigarette taxes
equal in amount to the state cigarette taxes. The Swinomish
Tribe further agreed to require that all cigarettes sold by
Tribal retailers bear a tribal tax stamp.
The Contract places no obligations on anyone other than
the state of Washington and the Tribe. It provides that “[n]o
third party shall have any rights or obligations under this Con-
tract.” Any obligation on individual retailers comes not from
the Contract, but from the tribal laws enacted pursuant to the
Contract. The state’s contractual retrocession is not condi-
tional on the actions of non-parties. To the extent the Con-
tract’s provision that “transactions that conform with the
requirements of this Contract . . . do not violate state law”
implies that the tax retrocession is conditional, it is condi-
tional on the Tribe passing the laws required by the Contract.
Second, the government argues that even if the cigarettes
sold by the Trading Post during this period were not contra-
band based on their lack of a tribal stamp, they were contra-
band because neither Defendants, nor anyone else, provided
pre-notification of their transport to the liquor control board.
Washington law regulates the transportation of unstamped
cigarettes. For example, it provides:
No person other than: (a) A licensed wholesaler in
the wholesaler’s own vehicle; or (b) a person who
has given notice to the [liquor control] board in
advance of the commencement of transportation
shall transport or cause to be transported in this state
UNITED STATES v. WILBUR 3735
cigarettes not having the stamps affixed to the pack-
ages or containers.
RCW § 82.24.250(1). Washington law also regulates the pos-
session of unstamped cigarettes in the state. Id.
§ 82.24.250(3), (7). Other than licensed wholesalers and the
United States government, organizations must give notice to
the Washington liquor control board before receiving unstam-
ped cigarettes in the state. Id. § 82.24.250(7). Cigarettes pos-
sessed or transported by a non-wholesaler without pre-
notification are “contraband” under Washington law. Id.
§ 82.24.250(4). The government argues that because Wash-
ington never waived these pre-notification provisions, and
because the cigarettes sold and possessed by the Trading Post
were transported and possessed without following these pre-
notification provisions, the cigarettes were “contraband”
under the CCTA.
[7] It is clear that the Wilburs violated these pre-
notification requirements, that the state never waived these
pre-notification requirements, and that the cigarettes were
therefore “contraband” under Washington law. See id.
§ 82.24.250(4). The CCTA, however, does not make ciga-
rettes “contraband” under federal law simply because they are
contraband under state law. Cigarettes are only contraband
under the CCTA if they “bear no evidence of the payment of
applicable State or local cigarette taxes in the State or locality
where such cigarettes are found.” 18 U.S.C. § 2341(2). If
there are no “applicable State or local cigarette taxes,” ciga-
rettes are not contraband, regardless of whether they were
transported in violation of state law.
The government correctly notes that we have held in cases
not involving CTCs that a violation of Washington’s pre-
notification requirement is sufficient to make cigarettes con-
traband. See, e.g., United States v. Fiander, 547 F.3d 1036,
1039 (9th Cir. 2008); United States v. Gord, 77 F.3d 1192,
1194 (9th Cir. 1996). In Gord, we held that even if no state
3736 UNITED STATES v. WILBUR
taxes were due on certain unstamped cigarettes because they
were intended for sale only to tribal members, the cigarettes
were still “contraband” under the CCTA if the cigarettes were
possessed or transported without state pre-approval. The gov-
ernment notes that in Gord, because the cigarettes were tax-
exempt, there were technically no “applicable State or local
cigarette taxes” and yet we still found the cigarettes “contra-
band.”
[8] Our holding in Gord does not support the government’s
argument. There was no CTC involved in that case. Because
there was no CTC, the defendants were required to affix a
Washington state tax stamp, even if that tax stamp simply rep-
resented that the cigarettes were tax-exempt. Further, and
more important, state cigarette taxes were applicable in Gord.
Under the part of the Washington Administrative Code that
governs the tax-exempt sale of cigarettes to tribal members
absent a CTC, if Washington’s pre-notification provisions are
not followed for cigarettes intended for sale to tribal mem-
bers, then “the person making or attempting . . . delivery will
be held liable for payment of the cigarette tax and penalties.”
WAC § 458-20-192(9)(a)(iii). The applicability of the state
cigarette tax was the basis for our decision in Gord. Gord, 77
F.3d at 1194. Unlike in Gord, in this case there was a CTC
in effect, the stamps at issue were tribal rather than state
stamps, and there were no state taxes owed. We conclude that
in this case, unlike in Gord, Defendants’ violation of Wash-
ington’s pre-notification requirement did not make the ciga-
rettes “contraband” under the CCTA.
[9] We therefore hold that during the period in which the
Swinomish CTC was in effect, and the Trading Post was
licensed to sell tobacco by the Tribe, Defendants’ actions did
not violate the CCTA.
3. After the Trading Post’s Swinomish Tobacco
License Expired
[10] The third and final period extends from April 2005,
when the Trading Post’s tribal license to sell tobacco expired,
UNITED STATES v. WILBUR 3737
to the end of the alleged conspiracy in 2007. During this
period, the Swinomish CTC no longer applied to the Wilburs’
transactions. The Swinomish CTC states: “[T]his Contract
shall apply to the retail sale of cigarettes by Tribal retailers.”
As we discussed above, a “Tribal retailer” is defined in the
CTC as “a cigarette retailer wholly owned by the Swinomish
Tribe and located in Indian country or a member-owned
smokeshop located in Indian country and licensed by the
Tribe.” The Trading Post was not owned by the Tribe, and
thus the only way it was a “Tribal retailer” under the Contract
is if it was licensed by the Tribe. Once the Trading Post lost
its license in April 2005, it was no longer a Tribal retailer and
the Contract no longer applied to its sales.
[11] Although one might think that this would resolve the
legal issue for this third period, the Washington statutes com-
plicate matters. Washington’s statutory retrocession provi-
sions all provide for retrocession for “Indian retailers.” RCW
§ 82.08.0316 (retail sales tax “does not apply to sales of ciga-
rettes by an Indian retailer during the effective period of a cig-
arette tax contract”); id § 82.12.0316 (use tax “shall not apply
in respect to the use of cigarettes sold by an Indian retailer
during the effective period of a cigarette tax contract”); id.
§ 82.24.295 (cigarette taxes “do not apply to the sale, use,
consumption, handling, possession, or distribution of ciga-
rettes by an Indian retailer during the effective period of a cig-
arette tax contract”). The definition of “Indian retailer” under
the Washington statutes sweeps more broadly than the defini-
tion of “Tribal retailer” under the Swinomish CTC.
For the purpose of all relevant statutory provisions, Wash-
ington law defines “Indian retailer” as:
(i) a retailer wholly owned and operated by an
Indian tribe,
(ii) a business wholly owned and operated by a
tribal member and licensed by the tribe, or
3738 UNITED STATES v. WILBUR
(iii) a business owned and operated by the Indian
person or persons in whose name the land is
held in trust[.]
Id. § 43.06.455(14)(b). Although the first two definitions
match the Swinomish CTC, the third definition is not in the
Swinomish CTC. Defendants argue that they qualify as an
“Indian retailer” under this third definition, and that the state
has retroceded from its cigarette tax as applied to them
regardless of whether they are a “Tribal retailer” under the
Swinomish CTC. The government contends, on the other
hand, that we should read the statutory definition of “Indian
retailer” as authorizing the Governor to enter into CTCs
defining “Indian” or “Tribal” retailer as including all three, or
fewer than all three, of these definitions, and limiting the
state’s retrocession to only retailers as defined in the relevant
CTC.
[12] We agree with the government. The definition of “In-
dian retailer” is phrased in the disjunctive. “Indian retailer” is
defined as a retailer “owned and operated by an Indian tribe,”
a retailer “owned and operated by a tribal member and
licensed by the tribe,” or “a business owned and operated by
the Indian person or persons in whose name the land is held
in trust.” Id. In negotiating a CTC, the Governor and the tribe
have the option of deciding which of these definitions to
incorporate. In the Swinomish CTC, they chose to incorporate
only the first two.
This interpretation comports with Washington’s purpose in
enacting the CTC scheme, which was both “to further the
government-to-government relationship between the state of
Washington and Indians,” and to “enhance enforcement of the
state’s cigarette tax law.” Id. § 43.06.450. Under this interpre-
tation, so long as the Indian retailer had a tobacco license
from the tribe, the state would retrocede its cigarette taxes,
leaving enforcement to the tribe. This would give the tribe
independence over its law enforcement, part of the
UNITED STATES v. WILBUR 3739
“government-to-government” relationship envisioned by the
CTC scheme. If, however, a tribe found that a certain busi-
ness, like the Trading Post, was so intransigent that the tribe
could not enforce its laws, it could revoke or refuse to renew
the tribal license. Revocation or expiration of the license
would remove the business from the protection of the CTC
and subject it to state, and potentially federal, enforcement.
The ability to revoke or refuse to renew a license, and thereby
trigger state or federal enforcement, ensures that the enforce-
ment of state and tribal cigarette tax law is not undermined by
a lack of tribal enforcement capacity.
Though not enacted until after termination of the Wilburs’
charged conduct, RCW § 82.24.020(5) provides additional
support for our interpretation. RCW § 82.24.020(5) makes
explicit the intent of the Washington legislature that where the
state “enters into a cigarette tax contract or agreement with a
federally recognized Indian tribe . . . , the terms of the con-
tract or agreement take precedence over any conflicting provi-
sions of this chapter while the contract or agreement is in
effect.” If the cigarette tax contract includes a definition of
“tribal retailer” that is narrower than the statutory definition
of “Indian retailer,” the narrower definition controls. State v.
Comenout, 267 P.3d 355, 358 (Wash. 2011) (en banc).
[13] We therefore conclude that the state did not retrocede
its taxes during the third period. During this period, the
Defendants’ actions violated the CCTA.
4. Implications for Indictment and Conviction
The only charge in the indictment to which Defendants
pled guilty was one continuous conspiracy to violate the
CCTA stretching from 1999 through 2007. Based on our
interpretation of the CCTA and the relevant Washington laws,
there is a gap in the middle of that period during which
Defendants’ actions did not violate the CCTA. Two issues
arise concerning the implications of this gap. First, we must
3740 UNITED STATES v. WILBUR
determine whether, based on the gap, Defendants actually
committed two separate conspiracies rather than one continu-
ous conspiracy and, if so, whether prosecution for the first
conspiracy is barred by the statute of limitations. Second, we
must determine whether the gap creates a variance or con-
structive amendment of the indictment such that the conspir-
acy charge should be dismissed in its entirety.
a. Multiple Conspiracies and the Statute of Limitations
Defendants argue that, based on the gap in the conspiracy,
they actually committed two separate conspiracies rather than
one continuous conspiracy. Defendants therefore argue that
prosecution for the first conspiracy is barred by the statute of
limitations. We agree.
[14] Actions that cannot be prosecuted because of the stat-
ute of limitations can be considered as part of an ongoing con-
spiracy so long as one overt act in furtherance of the
conspiracy occurred during the limitations period. See United
States v. Fuchs, 218 F.3d 957, 961 (9th Cir. 2000). The ques-
tion here is whether the Wilburs’ conspiracy ran continuously
from 1999 through 2007, or whether the Wilburs engaged in
two separate conspiracies, one before the Swinomish CTC
went into effect from 1999 through 2003, and the other after
their Swinomish tobacco license expired in 2005.
[15] The general rule is that a “conspiracy continues until
there is affirmative evidence of abandonment, withdrawal,
disavowal or defeat of the object of the conspiracy.” United
States v. Recio, 371 F.3d 1093, 1096 (9th Cir. 2004) (internal
quotation marks omitted). There are relatively few cases in
which defendants have argued that gaps in their activity dem-
onstrated abandonment or withdrawal from the conspiracy
such that the government was required to charge two separate
conspiracies. See, e.g., United States v. Krasn, 614 F.2d 1229
(9th Cir. 1980); United States v. Payne, 635 F.2d 643 (7th Cir.
UNITED STATES v. WILBUR 3741
1980); Continental Baking Co. v. United States, 281 F.2d 137
(6th Cir. 1960).
The most similar case to the one before us is Continental
Baking, decided by the Sixth Circuit. The government
indicted the Continental Baking Company for a continuous
conspiracy based on the “fixing and stabilization of uniform
and non-competitive prices of bakery products in the Mem-
phis, Tennessee area.” 281 F.2d at 141. For a period of
slightly over two years in the middle of the alleged conspir-
acy, however, the Director of the Office of Price Stabilization
set a price ceiling on bakery products. Id. at 154. Defendants
argued that this “terminated any conspiracy entered into prior
thereto, and therefore any continuing conspiracy necessarily
began as of the termination of the governmental control.” Id.
The Sixth Circuit rejected this argument, concluding that
“[e]ven if the price freeze were to be considered as interrupt-
ing an existing conspiracy, if the conspiracy were resumed
upon the termination of the price freeze, the intervening
period is more properly characterized as a period of suspen-
sion of activities rather than a termination resulting in two
separate conspiracies.” Id. We adopted the Sixth Circuit’s rea-
soning in a case with very similar facts. Krasn, 614 F.2d at
1236.
[16] We conclude that Continental Baking and Krasn are
distinguishable. In this case, there was “affirmative evidence”
that there was a “termination” rather than a “suspension” of
the conspiracy during the 2003-2005 period. In Continental
Baking, the legal change that interrupted the conspiracy did
not affect the legality of what the defendants were conspiring
to do. Rather, by establishing a fixed price ceiling, the legal
change made it impossible for them to achieve their object. In
this case, however, the signing of the Swinomish CTC and
subsequent state retrocession of its cigarette taxes did not pre-
vent the Wilburs from achieving their object. Rather, it made
the pursuit of that object legal under federal law. During the
two years in which the Swinomish CTC was in effect and the
3742 UNITED STATES v. WILBUR
Trading Post had its Swinomish tobacco license, the Wilburs
could not have conspired to violate the CCTA because the
purpose of their alleged conspiracy, to sell tax-free cigarettes,
did not violate the CCTA. The Wilburs may have been
engaged in a conspiracy to violate tribal law, but a violation
of tribal cigarette tax law is not criminalized by the CCTA.
We therefore conclude that the fact that the Wilburs could
achieve their desired end without violating the CCTA during
the second period is “affirmative evidence” that the Wilburs
terminated their conspiracy during the period in which the
Swinomish CTC was in effect and they possessed a Swinom-
ish tobacco license.
[17] No overt act in furtherance of the conspiracy ending
in 2003 occurred within the five-year statute of limitations for
CCTA offenses. The government argues that the Wilburs
waived a statute of limitations defense by not raising it in the
district court. The statute of limitations is an affirmative
defense and, generally, is waived if not raised in the trial
court. See United States v. LeMaux, 994 F.2d 684, 689 (9th
Cir. 1993). However, a defendant’s failure to raise a statute of
limitations defense in the trial court does not result in waiver
if raising the defense would have been futile. United States v.
Manning, 56 F.3d 1188, 1195 (9th Cir. 1995). Defendants
were charged in the indictment with a single continuing con-
spiracy, the last overt act of which occurred in 2007, well
within the five-year statute of limitations period. Because
there was no available statute of limitations defense to the
conspiracy charged, to which they conditionally pled guilty,
the Wilburs have not waived the defense. Prosecution for the
first conspiracy, between 1999 and 2003, is barred by the stat-
ute of limitations. The conviction in the second conspiracy,
between 2005 and 2007, the period after the Trading Post’s
tobacco license was revoked, is valid.
b. Constructive Amendment and Variance
[18] Constructive amendment and variance are based on
the “rule that after an indictment has been returned its charges
UNITED STATES v. WILBUR 3743
may not be broadened through amendment except by the
grand jury itself.” Stirone v. United States, 361 U.S. 212, 215-
16 (1960). A constructive amendment of an indictment “oc-
curs when the charging terms of the indictment are altered,
either literally or in effect, by the prosecutor or a court after
the grand jury has last passed upon them.” United States v.
Hartz, 458 F.3d 1011, 1020 (9th Cir. 2006) (internal quotation
marks omitted). A variance “occurs when the charging terms
of the indictment are left unaltered, but the evidence offered
at trial proves facts materially different from those alleged in
the indictment.” Id. (internal quotation marks omitted). The
distinction is important because a constructive amendment
always requires reversal, whereas a variance only requires
reversal if it prejudices the defendant’s substantial rights. Id.
[19] We conclude that neither of these doctrines applies.
Courts find “a constructive amendment where there is a com-
plex of facts distinctly different from those set forth in the
charging instrument.” United States v. Von Stoll, 726 F.2d
584, 586 (9th Cir. 1984) (internal quotation marks omitted).
Constructive amendment does not apply in this case because
no facts are in dispute, and the government has not offered
proof of facts different from those set forth in the indictment.
The only issue is the legal consequence of the undisputed
facts.
Further, constructive amendment only applies to the broad-
ening, rather than the narrowing, of indictments. In United
States v. Miller, the Supreme Court rejected a claim of con-
structive amendment where the complaint was “not that the
indictment failed to charge the offense for which he was con-
victed, but that the indictment charged more than was neces-
sary.” 471 U.S. 130, 140 (1985). In that case, Miller was
indicted for various fraudulent acts in connection with a bur-
glary at his place of business. Id. at 131. Proof at trial con-
cerned only one of the many alleged fraudulent acts. Id. at
132. The Court specifically rejected the argument that “it con-
stitutes an unconstitutional amendment to drop from an indict-
3744 UNITED STATES v. WILBUR
ment those allegations that are unnecessary to an offense that
is clearly contained within it.” Id. at 144.
In Miller, the Court relied on its earlier decision in Ford v.
United States, 273 U.S. 593 (1927). In that case, the defen-
dant was charged with conspiring to import liquor to the
United States in violation of both federal law and a treaty. 273
U.S. at 601. The treaty, however, created no offense against
the United States, and thus the conspiracy charge based on the
treaty could not be sustained. Id. at 602. The Court held that
ignoring the treaty charge did not constitute an improper
amendment of the indictment. It held that the constructive
striking out of the part of the indictment involving the treaty
“is merely a judicial holding that a useless averment is innoc-
uous and may be ignored.” Id. These cases indicate that our
conclusion that there was no conspiracy during the period of
2003 to 2005 does not require us to hold that there was an
impermissible constructive amendment of the indictment,
because the conviction is narrower, rather than broader, than
the indictment.
Variance contemplates a difference between the “evidence
offered at trial” and the facts “alleged in the indictment.”
Hartz, 458 F.3d at 1020. Like constructive amendment, vari-
ance does not apply in this case because the facts are not dis-
puted. There is a possible argument that variance applies
because the legal consequence of the facts alleged is different
from the legal consequence alleged in the indictment. Based
on the facts alleged, the indictment charged a single continu-
ous conspiracy. As discussed above, we conclude that the
facts show two separate conspiracies with a gap between
them. If variance did apply, Defendants’ substantial rights
arguably would be prejudiced if we were to find that Defen-
dants waived a statute of limitations defense as to the first
conspiracy spanning the years 1999 to 2003. However,
because we find the defense has not been waived, we need not
reach that question.
UNITED STATES v. WILBUR 3745
B. Due Process
Defendants argue that their indictment violates due process
because the tax law underlying the indictment was not clearly
settled. Defendants contend that Washington’s cigarette tax-
ing regime is unsettled and extremely complicated, especially
as it applies to Indian Tribes under a CTC. Defendants ask us
to take note of the rule that a criminal prosecution “is an inap-
propriate vehicle for pioneering interpretations of tax law.”
United States v. Dahlstrom, 713 F.2d 1423, 1428 (9th Cir.
1983) (internal quotation marks omitted). As this opinion has
likely demonstrated, Defendants are correct in their conten-
tion that the law is unsettled and complicated. We nonetheless
reject Defendants’ due process argument.
[20] First, the rule that tax laws must be settled in order to
form the basis of a criminal prosecution is based on the
requirement that criminal violations of the tax law be made
“willfully.” See, e.g., 26 U.S.C. § 7206(1)-(2). Such violations
must therefore involve “a voluntary, intentional violation of a
known legal duty.” United States v. Pomponio, 429 U.S. 10,
12 (1976); see also Ratzlaf v. United States, 510 U.S. 135,
141 (1994) (willfully means with “a purpose to disobey the
law”); Dahlstrom, 713 F.2d at 1428. All of the cases on which
Defendants rely, including the Fourth Circuit’s decision in
United States v. Critzer, 498 F.2d 1160, 1162 (4th Cir. 1974),
involved criminal prosecutions for willfully evading federal
income taxes. We held in Baker that, unlike criminal income
tax violations, the CCTA “does not . . . require knowledge
that the actions engaged in violate the law.” 63 F.3d at 1491.
Defendants agreed in their plea agreements that the mens rea
set forth in Baker controls for the CCTA, and that the “of-
fense of trafficking in contraband cigarettes is a general intent
crime.” Because the CCTA does not require knowledge by the
Wilburs that their actions were illegal, the due process argu-
ment available in prosecutions of federal income tax viola-
tions does not apply.
3746 UNITED STATES v. WILBUR
[21] Second, we have already rejected a due process chal-
lenge based on the complexity of the interaction between the
CCTA and Washington’s taxation and regulation of ciga-
rettes. Baker, 63 F.3d at 1492. We held in Baker that “[t]he
interaction between the CCTA and Washington’s tax scheme
. . . does not involve a complex regulatory scheme with the
potential of trapping unwary merchants trading in cigarettes.”
Id. We further held that “knowledge of cigarette taxing
requirements can be presumed among those who deal in ciga-
rettes in quantities exceeding 60,000.” Id. Although Baker did
not involve a CTC, which adds significant complexity and
uncertainty to this case, the Wilburs made no argument con-
cerning why Baker’s presumption of knowledge of cigarette
taxing requirements for large-scale retailers should not apply
to them, or how they have overcome the presumption. Indeed,
far from arguing that the presumption for large-scale retailers
does not apply to them, Defendants acknowledged this pre-
sumption in their plea agreements.
C. State Enforcement Power
Defendants’ final argument is that Washington does not
have the power to enforce its tax laws against them, either
because the taxes violate the Treaty at Point Elliott, or
because Washington lacks such power under its own state
law.
1. Treaty at Point Elliott
“A federal statute of general applicability that is silent on
the issue of applicability to Indian tribes will not apply to
them if . . . the application of the law to the tribe would abro-
gate rights guaranteed by Indian treaties.” Baker, 63 F.3d at
1485 (internal quotation marks omitted). The CCTA is a fed-
eral law of general applicability. Id. at 1484-85. Defendants
argue that the Swinomish Tribe reserved the right to trade cig-
arettes free from taxation at the time the Tribe signed the
UNITED STATES v. WILBUR 3747
Treaty at Point Elliott in 1855. The Treaty contains only one
clause related to trade:
The said tribes and bands further agree not to trade
at Vancouver’s Island or elsewhere out of the domin-
ions of the United States, nor shall foreign Indians be
permitted to reside in their reservations without con-
sent of the superintendent or agent.
Because rights not explicitly abrogated in a treaty are pre-
sumed to have been reserved by the tribe, see Minnesota v.
Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 195-96
(1999), Defendants argue that if the Swinomish had a right to
trade in tobacco at the time of the Treaty, they retain that right
today.
Defendants introduced the testimony of Dr. Daniel Boxber-
ger concerning trading activities of the Swinomish in the mid-
nineteenth century. Dr. Boxberger’s testimony was the only
evidence on this issue. Based on his testimony, the district
court made the following findings of fact:
1. Dr. Boxberger is the Chair of the Department
of Anthropology at Western Washington Uni-
versity and has an expertise in the area of the
economics of native peoples in Washington at
the time of treaties in the Nineteenth Century.
2. The native peoples who were the ancestors of
the Swinomish Tribe resided along the Puget
Sound. For the sake of simplicity the Court
refers to all such peoples as Swinomish.
3. Dr. Boxberger has studied the culture and his-
tory of the Swinomish and has an extensive
knowledge of the negotiations of the Treaty at
Point Elliott.
3748 UNITED STATES v. WILBUR
4. The Swinomish were actively engaged in trade
at the time of Treaty in 1855.
5. The Swinomish traded at many trading posts
with the Hudson’s Bay Company throughout
the Puget Sound area and at Vancouver’s
Island.
6. The Swinomish traded furs and other goods.
7. This trade was important to the Swinomish.
8. Tobacco was a form of currency in the mid-
Nineteenth Century.
9. The Hudson’s Bay Company traded tobacco
for furs with the Swinomish.
10. The Swinomish traded tobacco for other goods
with Indians and non-Indians.
11. At the time of Treaty there were no excise
taxes.
12. The Swinomish neither paid nor collected taxes
as part of their trade at the time of Treaty.
13. The Swinomish signatories did not understand
the Treaty at Point Elliott as restricting their
trading practices.
14. Neither the Swinomish nor the United States
negotiators anticipated any taxation on the
trade of goods at the time of Treaty.
15. The State of Washington did not exist in 1855.
The district court concluded from these factual findings that
“the Swinomish signatories to the Treaty at Point Elliott
UNITED STATES v. WILBUR 3749
would not have intended to submit to be restricted in their
trade in tobacco or other tribal products.”
The district court concluded, however, that the application
of the CCTA to Defendants “does not infringe on the rights
reserved in the Treaty at Point Elliott” because the state taxes
and the CCTA are not a restriction on their tobacco trade. The
district court primarily relied on our decision in Baker. Baker
involved the question of whether the Medicine Creek Treaty
of 1854 made the CCTA inapplicable to the Puyallup Tribe.
Baker, 63 F.3d at 1485. The Medicine Creek Treaty was
nearly identical to the Treaty at Point Elliott in relevant
respects. The only restriction on trade provided: “The said
tribes and bands finally agree not to trade at Vancouver’s
Island, or elsewhere out of the dominions of the United
States.” Id. We assumed in Baker that the parties to the Medi-
cine Creek Treaty “intended no other restrictions on Indian
trade.” We concluded, however, that the CCTA “is not an
impermissible restriction on a trading right guaranteed by the
Treaty.” Id. We held that “the CCTA does not restrict trading
in cigarettes; it makes it a crime to fail to pay applicable state
taxes on cigarettes subject to tax.” Id.
Defendants argue, correctly, that we “must interpret a treaty
right in light of the particular tribe’s understanding of that
right at the time the treaty was made.” Smiskin, 487 F.3d at
1267. However, in this case the district court’s conclusion that
the Swinomish “would not have intended to submit to be
restricted in their trade in tobacco” is nearly identical to our
assumption in Baker that the Puyallup “intended no . . .
restriction on Indian trade” other than their agreement not to
trade “at Vancouver’s Island.” In Baker, we held that crimi-
nalizing the “fail[ure] to pay applicable state taxes on ciga-
rettes subject to tax” does not restrict trading in cigarettes.
This holding applies as much to the Swinomish as it applied
to the Puyallup, for Defendants have suggested no reason that
the tax on cigarettes is a greater restriction on the Swinomish
than it was on the Puyallup.
3750 UNITED STATES v. WILBUR
Defendants also note that in Smiskin we distinguished
Baker, holding that the pre-notification requirement for the
transport of unstamped cigarettes violated the Yakama Treaty
of 1855. Smiskin, 487 F.3d at 1267-68. We conclude that
Defendants’ case is much closer to Baker than to Smiskin. In
Smiskin, the Yakama Treaty provided that the Yakamas had
“the right, in common with citizens of the United States, to
travel upon all public highways.” Id. at 1262 n.1. In a previ-
ous opinion, we had held that the Yakama Treaty prohibited
the state from issuing citations to Yakama truck drivers
employed by Yakama logging companies. Cree v. Flores, 157
F.3d 762 (9th Cir. 1998). Cree found that “travel was of great
importance to the Yakamas, that they enjoyed free access to
travel routes for trade and other purposes at Treaty time, and
that they understood the Treaty to grant them valuable rights
that would permit them to continue in their ways.” Smiskin,
487 F.3d at 1265 (quoting Cree, 157 F.3d at 769). We there-
fore concluded that the Treaty “must be interpreted to guaran-
tee the Yakamas the right to transport goods to market over
public highways without payment of fees for that use.” Id.
(quoting Cree, 157 F.3d at 769). In Smiskin, we extended that
holding to the pre-notification requirement. We distinguished
Baker because the Medicine Creek Treaty “did not expressly
grant any right to the Puyallup Tribe,” and noted that the “am-
biguous treaty language stands in stark contrast to the text of
the Yakama Treaty.” Id. at 1267.
[22] Because of the similarity of the Treaty at Point Elliott
at issue in this case to the Medicine Creek Treaty at issue in
Baker, and because Defendants have given no reason why the
tax is a greater restriction on the Swinomish than it was on the
Puyallup, we reject Defendants’ treaty argument.
2. State Power to Enforce Tax
Defendants also argue that the “state of Washington lacks
jurisdiction to enforce [state cigarette taxes] against reserva-
tion Indian[s].” We disagree. As a matter of federal law, the
UNITED STATES v. WILBUR 3751
Supreme Court held in Colville “that the State may validly
require the tribal smokeshops to affix tax stamps purchased
from the State to individual packages of cigarettes prior to the
time of sale to nonmembers of the Tribe.” 447 U.S. at 159.
[23] Defendants suggest that Washington state law some-
how deprives Washington of the authority to apply its ciga-
rette taxes to Indian sales to non-Indians. As the district court
noted, however, the very state cases cited by Defendants
explicitly recognize and endorse Colville, and recognize state
authority to tax on-reservation sales of cigarettes to non-
Indians. See Bercier v. Kiga, 103 P.3d 232, 237 (Wash. App.
2004) (“Colville . . . allows state taxation of non-Indians and
nonmember Indians on reservations where tribal members are
exempt from taxation.”); Matheson v. Washington State
Liquor Control Bd., 130 P.3d 897, 900 (Wash. App. 2006)
(“[N]on-Indians and non-tribal Indians, those not enrolled
with the tribe where they are doing business, must pay tax on
cigarette retail sales on reservations.”). We recently affirmed
the continuing validity of Colville in Confederated Tribes and
Bands of the Yakama Indian Nation v. Gregoire, 658 F.3d
1078 (9th Cir. 2011).
Conclusion
[24] We hold that Washington law has retroceded all of its
cigarette taxes for all transactions that are covered by an
effective cigarette tax contract. For such transactions, there
are no “applicable State or local cigarette taxes,” and there is
thus no violation of the CCTA. The Wilburs’ activities during
the period in which the Swinomish CTC was in effect and the
Trading Post had a Swinomish tobacco license therefore did
not violate the CCTA.
We further hold that because the Wilburs’ actions did not
violate the CCTA once the Swinomish CTC went into effect
and for so long as they had a Swinomish tobacco license, the
Wilburs terminated the first conspiracy to violate the CCTA
3752 UNITED STATES v. WILBUR
in 2003. The conviction for their illegal activity that took
place between 1999 and 2003 must therefore be set aside as
barred by the statute of limitations.
We affirm Defendants’ conviction for the second conspir-
acy to violate the CCTA between 2005 and 2007. The indict-
ment supporting this conviction did not violate due process.
Further, neither the Treaty at Point Elliott nor Washington law
deprive Washington of the power to enforce its cigarette tax
laws against Defendants.
[25] We therefore affirm in part and reverse in part. We
remand for resentencing based solely on Defendants’ convic-
tion for actions during the period between the expiration of
their Swinomish tobacco license and the raid on the Trading
Post.
AFFIRMED in part; REVERSED in part; and
REMANDED.
RAWLINSON, Circuit Judge, concurring in part and dissent-
ing in part:
I agree that there was no violation of the defendants’ due
process rights when the government indicted and prosecuted
the defendants for violations of the Contraband Cigarette
Trafficking Act (CCTA). See United States v. Baker, 63 F.3d
1478, 1492 (9th Cir. 1995).
I also agree that neither the Treaty at Point Elliott nor any
Washington law deprives the State of Washington of its inher-
ent power to enforce its cigarette tax laws against the defen-
dants. See id. at 1485 (interpreting a similar treaty provision
and concluding that the CCTA did not impermissibly restrict
tribal trading); see also Matheson v. Wash. State Liquor Con-
trol Bd., 130 P.3d 897, 900 (Wash. App. 2006) (preserving
UNITED STATES v. WILBUR 3753
the State of Washington’s right to collect taxes on cigarette
sales under state law).
Although there is much on which we agree, on two points
I specifically and distinctly part company with the majority.
First, it is unquestioned that the defendants failed to even
mention the statute of limitations in the proceedings before
the district court, including in the plea agreements. Indeed, the
only issue reserved for appeal was the defendant’s due pro-
cess claim. Because the statute of limitations is an affirmative
defense, the defendants’ failure to raise the issue in district
court and/or preserve it for appeal in their plea agreements
constitutes a waiver. See United States v. Akmakjian, 647 F.2d
12, 14 (9th Cir. 1981) (“The Supreme Court has held that the
statute of limitations is an affirmative defense that is waived
unless raised at trial. . . .”) (citations omitted); see also United
States v. Littlefield, 105 F.3d 527, 528 (9th Cir. 1997) (hold-
ing that the defendant’s guilty plea foreclosed any subsequent
statute of limitations argument).1
1
The majority implies that it would have been futile for the Wilburs to
raise a statute of limitations argument. However, the case cited by the
majority in support of that premise, United States v. Manning, 56 F.3d
1188 (9th Cir. 1995), is inapposite. In Manning, the defendant was
charged with a violation of 18 U.S.C. § 1716, which proscribes murder by
a mail bomb. See id. at 1193. At the time of his indictment, violation of
§ 1716 was a capital offense, with no statute of limitations. See id. at 1195.
When we subsequently held that punishing offenses under § 1716 as a
capital crime was unconstitutional, the five-year statute of limitations
became applicable. See id. Because no statute of limitations applied to a
violation of § 1716 when it was a capital offense, there was no statute of
limitations defense to waive. See id. Unlike in Manning, a statute of limi-
tations has always been in effect for the Wilburs. Therefore, the futility
reasoning from Manning does not apply. The reasoning would apply if no
statute of limitations existed for the CCTA when the conspiracy began, but
a statute of limitations was later imposed, as in Manning. However, those
are not the facts of this case. The unusual facts presented in Manning sim-
ply do not support the majority’s attempt to import Manning’s limited
holding into the strikingly different facts of this case.
3754 UNITED STATES v. WILBUR
The majority opinion divides the charged conspiracy into
three periods: the period from 1999 to 2003, before the ciga-
rette tax contract (CTC) between the State of Washington and
the Swinomish Tribe was signed; the period from October,
2003, to March, 2005, when the CTC was in effect and the
Defendants were selling cigarettes pursuant to a license issued
by the Swinomish Tribe; and the period from April, 2005, to
May, 2007, when the CTC was in effect, but the Defendants
were not operating pursuant to a license issued by the Tribe.
See Majority Opinion, p. 3730. According to the majority,
criminal charges for the first period fall outside the statute of
limitations. See Majority Opinion, pp. 3730-31.2 Although the
majority acknowledges that because the government alleged
a conspiracy beginning in 1999 and continuing through 2007,
only one overt act in furtherance of the conspiracy must have
occurred during that period, the majority reasons “that there
were no state cigarette taxes applicable to the Wilburs” during
the period when the CTC was in effect and when the Wilburs
were licensed by the Tribe to sell cigarettes. Majority Opin-
ion, p. 3731.
I disagree with the majority’s reasoning on this point and
I agree with the district court that the Wilburs were not enti-
tled to retrocession of the state cigarette taxes that would oth-
erwise be due. It is undisputed that the Wilburs failed to pay
to the Tribe the taxes that would otherwise be due to the state.
See RCW § 43.06.455(3) (providing that the tribal cigarette
tax under a CTC was “in lieu of all state cigarette taxes”). But
the tribal cigarette taxes were in lieu of state cigarette taxes
only to the extent that the cigarette sales conformed to the
requirements of the CTC. See CTC, ¶ V.6. Paragraph V.1.a of
the CTC provided that cigarettes sold by tribal licensees
“shall bear a Tribal tax stamp” to signify that tribal taxes had
been paid in lieu of the otherwise applicable state cigarette
taxes. Cigarettes sold by the Wilburs bore no Tribal tax stamp
2
I reject this premise for the reasons articulated in n.1 above.
UNITED STATES v. WILBUR 3755
because the Wilburs paid no cigarette taxes to the Tribe,
despite being licensed by the Tribe under the CTC.
I decline to join the majority’s view that the mere existence
of the CTC between the State of Washington and the Tribe
enabled the Wilburs to completely escape their obligation to
pay taxes and thereby realize profits in the millions of dollars
at the expense of the Tribe. The express intent of the CTC
legislation was that cigarette taxes be paid, not avoided. The
majority’s interpretation of the Washington law effectuates
tax avoidance in contravention of the avowed legislative
intent. Indeed, the retrocession language in the statute is
explicitly conditioned on the payment of tribal taxes in lieu of
the payment of state taxes. The majority’s interpretation reads
this provision out of the legislation, thereby violating a cardi-
nal principle of statutory construction. See Lyon v. Chase
Bank USA, N.A., 656 F.3d 877, 890 (9th Cir. 2011) (caution-
ing that statutes should be interpreted to give effect to all pro-
visions).
The majority’s analysis then leads into a circuitous and gra-
tuitous discussion addressing the confluence of multiple con-
spiracies, constructive amendment, variance, and the statute
of limitations. See Majority Opinion, pp. 3740-44. I do not
agree that the majority’s analysis reflects the correct approach
to resolving this case. As mentioned above, I seriously doubt
whether the majority’s analysis is even viable under our pre-
cedent. See United States v. Krasn, 614 F.2d 1229, 1236 (9th
Cir. 1980) (“Krasn asserts that since the alleged error impli-
cates the statute of limitations, it may be raised for the first
time on appeal. This is contrary to the rule of this circuit.”)
(citations omitted). Undeterred, the majority ignores this pre-
cedent and proceeds with an analysis anchored in a question-
able statute of limitations premise.
In any event, the majority’s attempt to distinguish our deci-
sion in United States v. Krasn, 614 F.2d 1229 (9th Cir. 1980)
and the Sixth Circuit’s decision in Continental Baking Co. v.
3756 UNITED STATES v. WILBUR
United States, 281 F.2d 137 (6th Cir. 1960) is singularly
unpersuasive.
As a preliminary matter, the majority conducts its analysis
as if we were reviewing de novo. However, because not even
a whiff of a multiple conspiracy argument was raised in the
district court, we review for plain error. See Krasn, 614 F.2d
at 1235. When viewed in this context, there is no intellectu-
ally honest way to impute plain error to the district court. This
is especially true in view of our practice of recognizing plain
error “[o]nly in exceptional situations . . . .” Id.
The underpinning of the majority’s argument is its reliance
on our subsequently overruled conspiracy theory articulated
in United States v. Cruz, 127 F.3d 791 (9th Cir. 1997). In
Cruz, we developed the following conspiracy rule: “A con-
spiracy is deemed to continue until there is affirmative evi-
dence of abandonment, withdrawal, disavowal or defeat of the
object of the conspiracy.
. . .” Id. at 795 (citation and internal quotation marks omitted).
Cruz addressed a criminal conviction predicated on a con-
spiracy to distribute methamphetamine. See id. at 794. Before
Cruz joined the conspiracy, the drugs that were the object of
the conspiracy to distribute were seized by the government
and Cruz’s co-conspirator was arrested.3 See id. Cruz twice
moved for acquittal on the basis that the conspiracy had ended
before he became involved. See id. at 794-95. After the dis-
trict court denied Cruz’s motions, he appealed. See id.
On appeal, the Cruz panel applied the aforementioned
“conspiracy rule” and held that Cruz could not be prosecuted
for participating in the conspiracy. According to the Cruz
panel, the government’s seizure of the drugs terminated the
3
The co-conspirator subsequently cooperated with the government,
leading to the arrest of Cruz who, unaware of the seizure, came to retrieve
the drugs from the co-conspirator.
UNITED STATES v. WILBUR 3757
conspiracy. Under that rationale, no conspiracy existed when
Cruz became involved, and Cruz could not be convicted of
the conspiracy charge. See id. at 795.
Although the majority does not cite to Cruz directly, the
quoted language comes directly from Cruz. See Majority
Opinion, p. 3740 (“The general rule is that a conspiracy con-
tinues until there is affirmative evidence of abandonment,
withdrawal, disavowal or defeat of the object of the conspir-
acy. . . .”) (quoting United States v. Recio (Recio I), 371 F.3d
1093, 1096 (9th Cir. 2004)) (internal quotation marks omit-
ted); see also Recio I, 371 F.3d at 1096 (referring to the “Cruz
conspiracy rule, which held that a conspiracy continues until
there is affirmative evidence of abandonment, withdrawal,
disavowal, or defeat of the object of the conspiracy”) (quoting
Cruz, 127 F.3d at 795).
It is significant that the majority relies on Recio because the
United States Supreme Court expressly and explicitly
reversed the “Cruz conspiracy rule” in United States v. Recio
(Recio II), 537 U.S. 270 (2003) to the extent that the rule
relies on termination of the conspiracy based on government
conduct that defeats the object of the conspiracy. See id. at
274 (explaining that a conspiracy does not terminate merely
because government action has defeated the object of the con-
spiracy). This ruling by the Supreme Court eviscerates the
majority’s contention that the existence of the CTC and
licensing by the Tribe terminated the Wilburs’ conspiracy to
avoid paying the cigarette taxes required by law.
As the Supreme Court noted, the “essence of a conspiracy
is an agreement to commit an unlawful act . . . .” Id. (citations
and internal quotation marks omitted). The agreement to com-
bine for an unlawful cause is “a distinct evil” separate and
apart from the substantive crime that is the object of the con-
spiracy. Id. The conspiracy may be the subject of prosecution
whether or not the substantive crime is ever consummated.
See id. Indeed, the Supreme Court took exception to the con-
3758 UNITED STATES v. WILBUR
spiracy termination theory espoused in Cruz because a con-
spiracy “decreases the probability” that the co-conspirators
“will depart from their path of criminality.” Id. at 275 (cita-
tions omitted).
The Supreme Court’s expressed concern is exemplified in
this case because the Wilburs never once ceased their criminal
activity. Throughout the existence of the CTC and despite
being licensed by the Tribe, the Wilburs continuously con-
spired to avoid paying the cigarette taxes that were due under
the law.
The cases the majority seeks to distinguish are true to the
Supreme Court’s analysis in Recio II. Our decision in Krasn
involved a conspiracy to engage in price fixing in violation of
the Sherman Act. See 614 F.2d at 1231. The conspiracy was
interrupted by a nationwide price freeze. See id. at 1232. Fol-
lowing termination of the nationwide price freeze, the price
fixing conspiracy resumed. See id. Following his conviction
for conspiracy to violate the Sherman Act, Krasn appealed.
Krasn advanced essentially the same argument espoused by
the majority in this case—that the nationwide price freeze
resulted in an interruption of the conspiracy, thereby resulting
in two separate conspiracies, one before the price freeze and
one after the price freeze. See id. at 1236.
We rejected Krasn’s multiple conspiracies argument under
the plain error standard of review, the same standard that
applies to the Wilburs’ appeal if the issue is not waived.4 In
Krasn, we held that the price freeze was not a dividing line
delineating two separate conspiracies. Rather, because “the
cast of characters to the conspiracy, as well as its purpose,
remained the same in spite of the price freeze,” the interven-
ing period when the nationwide price freeze was in effect was
more appropriately characterized” as a period of suspension
4
I maintain that the multiple conspiracies argument was waived as part
and parcel of the statute of limitations waiver. See pp. 3753-54 above.
UNITED STATES v. WILBUR 3759
of activities rather than a termination resulting in two separate
conspiracies. Id. (quoting Continental Baking Co. v. United
States, 281 F.2d 137, 154 (6th Cir. 1960)).
Continental Baking, the case quoted in Krasn, also
involved a price fixing scheme. See 281 F.2d at 141. As in
Krasn, the price fixing conspiracy was interrupted by the
imposition of a nationwide price freeze. See id. at 154. As
noted in our Krasn decision, the Sixth Circuit rejected the
argument that the price freeze resulted in termination of the
pre-price freeze conspiracy. The Sixth Circuit reasoned that if
the conspiracy resumed after the price freeze was no longer
in effect, the same conspiracy existed, although the conspir-
acy may have been dormant during the duration of the price
freeze. See id. at 154; see also United States v. Payne, 635
F.2d 643, 646 (7th Cir. 1980) (“Periods of dormancy could
exist between transactions without disrupting or terminating
the arrangement . . . .”).
The majority seeks to distinguish Krasn and Continental
Baking by asserting that “[i]n this case, there was affirmative
evidence that there was a termination rather than a suspension
of the conspiracy” during the period when the CTC was in
effect and the Wilburs were licensed by the Tribe to sell ciga-
rettes. Majority Opinion, p. 3741 (internal quotation marks
omitted). The majority also reasons that, in contrast to the
price freeze in Continental Baking, the CTC legalized the
conspiratorial acts of the Wilburs rather than making the
object of the conspiracy impossible, as was the case in Conti-
nental Baking. See Majority Opinion, pp. 3741-42. However,
this reasoning ignores the Supreme Court’s admonition that
the object of the conspiracy is not the primary concern under-
lying conspiracy laws. Rather, the “distinct evil” targeted by
conspiracy laws is the concerted action undertaken through
agreement of the co-conspirators. Recio II, 537 U.S. at 274.
The majority’s rationale in no way negates the continued
agreement of the Wilburs to avoid payment of cigarette taxes.
Rather, as we emphasized in Krasn, “the cast of characters to
3760 UNITED STATES v. WILBUR
the conspiracy, as well as its purpose remained the same . . .
” 614 F.2d at 1236.
Truth be told, the distinction the majority proffers between
this case on the one hand and Krasn and Continental Baking
on the other hand is more semantic than meaningful. Saying
that the object of the conspiracy became legal under federal
law is the same as saying it was no longer possible for the
Wilburs to conspire to violate the law, the same scenario pre-
sented in Krasn and Continental Baker.
Keeping in mind our standard of review, assuming no
waiver, it is helpful to articulate precisely what the majority
is holding. To conclude that plain error occurred, the error
made by the district court must have been so obvious that the
court should have been able to avoid it without the error being
called to the court’s attention by way of objection. United
States v. Matus-Zayas, 655 F.3d 1092, 1098 (9th Cir. 2011).
The majority holds that, without the benefit of any objection,
the district court should have interposed the Wilburs’ statute
of limitations defense and ruled that there were two separate
conspiracies, even though the majority acknowledges that
there is no precedent so holding. See Majority Opinion, p.
3740. Rather, the majority seeks to explain away precedent to
the contrary. See id. at p. 3741. This is not the stuff of plain
error. See United States v. Gonzalez-Aparicio, 663 F.3d 419,
428 (9th Cir. 2011), as amended (“[A]n error cannot be plain
where there is no controlling authority on point . . .) (citation
and internal quotation marks omitted).
To summarize, because the Wilburs waived any statute of
limitations defense and because the conspiracy continued for
the entire period alleged in the indictment, I would affirm the
convictions on that basis alone. I would not delve into the
conjoined multiple conspiracies/statute of limita-
tions/variance/amendment bramble into which the majority
ventures. Nevertheless in my view, reliance on the discredited
Cruz conspiracy termination analysis, the lack of supporting
UNITED STATES v. WILBUR 3761
authority for the majority’s multiple conspiracies conclusion
and the majority’s failure to apply the plain error standard
leads the majority to a holding I cannot join. I respectfully
dissent.