United States v. Sylvester Burnside

Sylvester Burnside, an American Indian, pled guilty to a superseding information which charged involuntary sodomy, a violation of the Major Crimes Act, 18 U.S.C. Sec. 1153 and A.R.S. Secs. 13-1406 and 13-1401. The victim was an Indian minor who did not consent to the act. The offense occurred on the Navajo Indian Reservation in the State of Arizona. Burnside appeals the denial of his motion to dismiss upon the ground that the federal district Court lacked jurisdiction over the offense charged. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 .

This appeal is concerned solely with a question of law. As such, it is proper to conduct a de novo review of the lower court’s decision. U.S. v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc) cert. denied 469 U.S. 824 , 105 S.Ct. 101 , 83 L.Ed.2d 46 (1984).

Burnside claims that Arizona law Sec. 13-1401(3) does not entitle the crime as involuntary sodomy and therefore the crime is not proscribed by 18 U.S.C. Sec. 1153 . It is the contention of the appellant that the Major Crimes Act does not provide a proper basis for a prosecution of sodomy since it permits the government to rely upon the state laws for sexual assault and dangerous…