Wilbur

Opinion by Judge WILLIAM A. FLETCHER; Partial Concurrence and Partial Dissent by Judge RAWLINSON.

OPINION

Marvin, Joan, April, and Brenda Wilbur (collectively “Defendants” 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 cigarettes. Contraband cigarettes, as defined in relevant part by the CCTA, are 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.” 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 activities were thus tribal taxes, not the “State or local cigarette taxes” referred to in the CCTA. The Wilburs also argued that…

concurring in part and dissenting in part:

I agree that there was no violation of the defendants’ due process rights when the *1183 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 inherent power to enforce its cigarette tax laws against the defendants. 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 Control BdL, 132 Wash.App. 280 , 130 P.3d 897 , 900 (2006) (preserving 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…

James E. Lobsenz, Carney Badley Spellman, P.S., Seattle, WA, for the appellants.

Helen J. Brunner, Richard Edward Cohen, Mary K. Dimke, J. Tate London, Office of the United States Attorney, Seattle, WA, for the appellee.

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.

W. FLETCHER, Circuit Judge:

Marvin, Joan, April, and Brenda Wilbur (collectively "Defendants" 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 cigarettes. Contraband cigarettes, as defined in relevant part by the CCTA, are 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." 18 U.S.C. § 2341 .

The Wilburs moved to dismiss the indictment. They argued that the state of Washington…