United States v. Gus Other Medicine

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 09-30020
Plaintiff-Appellee, D.C. No.
v.  1:08-cr-00049-
GUS E. OTHER MEDICINE, RFC-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Argued and Submitted
November 2, 2009—Portland, Oregon
Filed February 26, 2010
Before: Raymond C. Fisher and Richard A. Paez,
Circuit Judges, and Barry Ted Moskowitz, District Judge.*
Opinion by Judge Fisher
*The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
3185
UNITED STATES v. OTHER MEDICINE 3187
COUNSEL
William W. Mercer, United States Attorney, and Lori Harper
Suek (argued), Assistant United States Attorney, Billings,
Montana, for the plaintiff-appellee.
3188 UNITED STATES v. OTHER MEDICINE
Kelly J. Varnes, Hendrickson Law Firm, P.C., Billings, Mon-
tana, for the defendant-appellant.
OPINION
FISHER, Circuit Judge:
The Major Crimes Act, 18 U.S.C. § 1153, provides federal
jurisdiction for the prosecution of Native Americans for 15
discrete crimes. Defendant-appellant Gus E. Other Medicine
was indicted for the severe beating of his nine-year-old step-
son and conditionally pled guilty to “felony child abuse,” a
crime Congress recently added to the Major Crimes Act.
Other Medicine challenges the use of state law to define and
punish this offense and also argues that the offense is uncon-
stitutionally vague. We reject both arguments. Although fed-
eral criminal law includes a misdemeanor for assault on a
minor, no federal law defines and punishes felony child
abuse. Nor is felony child abuse vague as applied to Other
Medicine’s admitted conduct. We therefore hold that the dis-
trict court properly denied Other Medicine’s motion to dis-
miss the indictment.
I.
Other Medicine is a Native American who lived on the
Crow Indian Reservation in Montana. In January 2008, school
personnel observed bruises and abrasions on Other Medi-
cine’s nine-year-old stepson A.C.’s face, head, ears and neck.
A.C. first offered a rehearsed explanation about falling out of
bed. School personnel pressed further, and A.C. eventually
admitted that Other Medicine had struck him with a belt. A
medical exam revealed large contusions on A.C.’s legs, hips,
chest, back and buttocks, and a school nurse described the
injuries as the worst case of child abuse she had seen in her
25 years at the school.
UNITED STATES v. OTHER MEDICINE 3189
Federal authorities charged Other Medicine with two
counts of felony child abuse under the Major Crimes Act, 18
U.S.C. § 1153, and Mont. Code Ann. § 45-5-212. Other Med-
icine moved to dismiss the superseding indictment for lack of
jurisdiction, arguing that the Major Crimes Act does not pro-
vide jurisdiction over a charge defined using state law when
a federal offense is available and that “felony child abuse” is
unconstitutionally vague. The district court denied the motion,
and Other Medicine entered a conditional guilty plea. The dis-
trict court sentenced Other Medicine to 30 months’ imprison-
ment to be followed by three years of supervised release, and
Other Medicine timely appealed.
We have jurisdiction under 28 U.S.C. § 1291. We review
de novo the denial of Other Medicine’s motion to dismiss,
United States v. Fuller, 531 F.3d 1020, 1024 (9th Cir. 2008)
(statutory grounds); United States v. Gallenardo, 579 F.3d
1076, 1081 (9th Cir. 2009) (constitutional grounds), and we
affirm.
II.
[1] The Major Crimes Act permits the federal government
to prosecute Native Americans in federal courts for a limited
number of enumerated offenses committed in Indian country
that might otherwise go unpunished under tribal criminal jus-
tice systems. See United States v. Burnside, 831 F.2d 868, 870
(9th Cir. 1987) (citing Keeble v. United States, 412 U.S. 205
(1973)). The Major Crimes Act states in full:
(a) Any Indian who commits against the person or
property of another Indian or other person any of the
following offenses, namely, murder, manslaughter,
kidnapping, maiming, a felony under chapter 109A,
incest, assault with intent to commit murder, assault
with a dangerous weapon, assault resulting in serious
bodily injury (as defined in section 1365 of this
title), an assault against an individual who has not
3190 UNITED STATES v. OTHER MEDICINE
attained the age of 16 years, felony child abuse or
neglect, arson, burglary, robbery, and a felony under
section 661 of this title within the Indian country,
shall be subject to the same law and penalties as all
other persons committing any of the above offenses,
within the exclusive jurisdiction of the United States.
(b) Any offense referred to in subsection (a) of this
section that is not defined and punished by Federal
law in force within the exclusive jurisdiction of the
United States shall be defined and punished in accor-
dance with the laws of the State in which such
offense was committed as are in force at the time of
such offense.
18 U.S.C. § 1153 (emphasis added). Indian country includes
“all land within the limits of any Indian reservation.” Id.
§ 1151(a). The statute is both jurisdictional and substantive
but does not define the elements of the crimes it lists. See
United States v. Male Juvenile, 280 F.3d 1008, 1017 (9th Cir.
2002). The Major Crimes Act must be construed narrowly, in
favor of limited incursion on Native American sovereignty.
See United States v. Errol D., Jr., 292 F.3d 1159, 1163-64
(9th Cir. 2002).
[2] The Act originally allowed for prosecution of seven
offenses. See United States v. Tyndall, 400 F. Supp. 949, 950-
51 (D. Neb. 1975). Congress has added other crimes over
time, and in 2006 it added a fifteenth: “felony child abuse or
neglect.” 18 U.S.C. § 1153(a); Adam Walsh Child Protection
and Safety Act of 2006, Pub. L. No. 109-248, § 215, 120 Stat.
587, 617 (2006). The addition of this particular crime was
originally proposed in the Indian Child Protection and Family
Violence Prevention Amendments of 2006 “to close the gap
that exists in addressing the full range of crimes that may be
inflicted on children.” S. Rep. 109-255, at 5 (2006).
UNITED STATES v. OTHER MEDICINE 3191
Before the addition of felony child abuse or neglect, the
Major Crimes Act did provide jurisdiction to prosecute “as-
sault against an individual who has not attained the age of 16
years.” See Violent Crime Control and Law Enforcement Act
of 1994, Pub. L. No. 103-322, § 170201(e), 108 Stat. 1796,
2043 (1994); 18 U.S.C. § 1153(a) (2000). Because assault on
a minor is defined and punished by a federal misdemeanor
provision, however, federal prosecutors could pursue child
abuse cases on reservations only as misdemeanors. See 18
U.S.C. §§ 113(a)(5), 1153(b); see also United States v.
Dando, 287 F.3d 1007, 1008 (10th Cir. 2002) (using
§ 113(a)(5) to define the Major Crimes Act crime of assault
against an individual who has not attained the age of 16
years); cf. United States v. Bruce, 394 F.3d 1215, 1217 (9th
Cir. 2005) (using § 113(a)(5) to define assault on a “person
who had not attained the age of 16 years”). The addition of
felony child abuse or neglect allows prosecutors to reach
more serious cases of child abuse, as well as severe neglect
or sexual abuse not constituting assault.1
[3] The question before us is what source of law may be
used to define and punish felony child abuse. The government
may use state law only when federal law does not define and
punish the Major Crimes Act offense. See 18 U.S.C.
§ 1153(b); United States v. Maloney, 607 F.2d 222, 225 (9th
Cir. 1979). The text of the Major Crimes Act does not point
to a federal definition of felony child abuse. Other Medicine
suggests 18 U.S.C. § 113(a)(5), but that provision cannot
define and punish the offense because its substance is already
covered by another listed crime, as noted above, and
expressly defines a misdemeanor, which is categorically dis-
tinct from “felony child abuse or neglect.” 18 U.S.C.
§ 1153(a) (emphasis added). The law used to define an
1
The Senate Committee Report addressing the need to add the felony
incorrectly stated that “the federal government does not have jurisdiction
to investigate or prosecute acts of child physical abuse . . . unless they rise
to the level of serious bodily injury or death.” S. Rep. 110-45, at 5.
3192 UNITED STATES v. OTHER MEDICINE
offense under the Major Crimes Act must contain all descrip-
tors Congress used to label the crime. See Tyndall, 400 F.
Supp. at 952-53; see also United States v. Bear, 932 F.2d
1279, 1281-82 (9th Cir. 1991), superseded by statute on other
grounds, Sentencing Reform Act, 18 U.S.C. § 3351(a), as
recognized in Male Juvenile, 280 F.3d at 1024 (allowing use
of a state definition of burglary of a residence despite federal
definitions for several other categories of burglary); cf.
Maloney, 607 F.2d at 225-26 (permitting use of a federal defi-
nition that deviated from the common law but not from the
text of the Major Crimes Act). Nor do the rule of lenity or
canons of construction favoring Native Americans permit us
to overlook this mismatch; the distinction between a felony
and a misdemeanor is unambiguous. Without a federal law
defining and punishing felony child abuse, the government
may look to applicable state law to define the crime.
[4] Other Medicine, however, proposes a “federal law
first” rule that would require prosecutors to charge a crime
defined and punished by federal law when a defendant’s con-
duct fits such a crime, even if the defendant’s conduct also fits
a separate Major Crimes Act crime defined and punished by
state law. This argument fails under the plain language of the
Act. Section 1153(b) addresses the use of state law to define
and punish an “offense referred to in subsection (a) of this
section.” An “offense” is the legally defined crime, not the
underlying criminal conduct. See, e.g., Negonsott v. Samuels,
507 U.S. 99, 104 (1993) (“[C]onduct resulting in [a] convic-
tion for aggravated battery is punishable as at least two
offenses listed in the Indian Major Crimes Act . . . .”). Con-
gress deliberately added felony child abuse to the Major
Crimes Act. Section 1153(b) does not prevent prosecutors
from charging that crime in instances of child abuse that rise
to the level of a state-defined felony.
[5] In sum, there is federal jurisdiction under the Major
Crimes Act to prosecute cases of physical assault on a child
either as a misdemeanor or — if the elements of a state-
UNITED STATES v. OTHER MEDICINE 3193
defined felony are present — as “felony child abuse.” Discre-
tion concerning which of several overlapping crimes to charge
rests with federal prosecutors. See United States v. Bat-
chelder, 442 U.S. 114, 123-24 (1979); United States v.
Edmonson, 792 F.2d 1492, 1497 (9th Cir. 1986). As we shall
discuss, the government properly charged Other Medicine
with felony child abuse here.
III.
[6] Other Medicine also argues that “felony child abuse” is
vague and therefore unenforceable under the Due Process
Clause of the Fifth Amendment. “ ‘It is a basic principle of
due process that an enactment is void for vagueness if its pro-
hibitions are not clearly defined.’ ” United States v. Kim, 449
F.3d 933, 941 (9th Cir. 2006) (quoting Grayned v. City of
Rockford, 408 U.S. 104, 108 (1972)).
Vague laws that do not infringe upon First Amend-
ment rights have two principle evils: (1) they do not
give a “person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he
may act accordingly”; and (2) they encourage arbi-
trary and discriminatory enforcement by not provid-
ing explicit standards for policemen, judges, and
juries.
Id. at 941-42 (quoting Grayned, 408 U.S. at 108-09) (footnote
omitted). “[V]agueness challenges to statutes that do not
involve First Amendment violations must be examined as
applied to the defendant.” Id. at 942 (citing, inter alia, Vill. of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
489, 495 n.7 (1982)).
[7] Using state criminal statutes to define crimes enumer-
ated in the Major Crimes Act provides “appropriate notice of
what was condemned by law.” Burnside, 831 F.2d at 870. The
specific question we face is whether felony child abuse has a
3194 UNITED STATES v. OTHER MEDICINE
sufficiently plain definition that Other Medicine could antici-
pate that his conduct — beating his nine-year-old stepson
severely and repeatedly — fell within that definition.
Although felony child abuse is not a common law crime, its
constituent characteristics are easily understood. “Felony”
limits the prohibited acts to “serious crime[s] usu[ally] pun-
ishable by imprisonment for more than one year or by death”
and expressly distinguishes misdemeanors. Black’s Law Dic-
tionary 694 (9th ed. 2009); accord 18 U.S.C. § 3559(a)(1)-(5)
(classifying felonies as offenses punishable by imprisonment
of “more than one year”). “Child abuse” limits the crime to
“[i]ntentional or neglectful physical or emotional harm
inflicted on a child.” Black’s Law Dictionary 11; accord 18
U.S.C. § 3509(a)(3) (“[T]he term ‘child abuse’ means the
physical or mental injury, sexual abuse or exploitation, or
negligent treatment of a child.”).
[8] Other Medicine’s conduct falls squarely within these
parameters. A reasonable person would anticipate that
severely beating a young child with a belt and causing the
kinds of injuries A.C. suffered would violate a law barring
intentional physical harm inflicted on a child in a manner seri-
ous enough to warrant imprisonment of a year or more. Under
Montana law, assault on a victim under 14 years of age by an
offender who is 18 years of age or older is a felony. Mont.
Code Ann. § 45-5-212. Assault is defined as “purposely or
knowingly caus[ing] bodily injury to another,” id. § 45-5-
201(1)(a), or “negligently caus[ing] bodily injury to another
with a weapon,” id. § 45-5-201(1)(b). Other Medicine’s con-
duct fits both definitions. Other Medicine cannot argue that he
lacked notice because the Montana statute is not titled “felony
child abuse.” Major Crimes Act crimes have long been inter-
preted to criminalize categories of conduct, rather than to
incorporate only crimes sharing the same title. See Burnside,
831 F.2d at 871.
[9] Punishing Other Medicine for felony child abuse or
neglect was not arbitrary. This was an extremely serious case
UNITED STATES v. OTHER MEDICINE 3195
of child abuse, the worst case that a school nurse had seen in
her 25-year career. Prosecutors properly exercised their dis-
cretion to indict Other Medicine for an appropriately serious
crime. Felony child abuse is not void for vagueness as applied
to Other Medicine. The district court’s order denying Other
Medicine’s motion to dismiss the indictment is affirmed.
AFFIRMED.