United States v. Curtis A. Belgarde, United States of America v. Curtis A. Belgarde

300 F.3d 1177 UNITED STATES of America, Plaintiff-Appellant, v. Curtis A. BELGARDE, Defendant-Appellee. United States of America, Plaintiff-Appellee, v. Curtis A. Belgarde, Defendant-Appellant. No. 01-30243. No. 01-30244. United States Court of Appeals, Ninth Circuit. Argued and Submitted August 7, 2002. Filed August 27, 2002. Klaus P. Rochter (argued), Assistant United States Attorney, Billings, Montana, for the plaintiff-appellee-appellant. Michael Donahoe (argued), Assistant Federal Public Defender, Helena, Montana, for the defendant-appellee-appellant. Appeal from the United States District Court for the District of Montana; Donald W. Molloy, District Judge, Presiding. D.C. No. CR-00-00074-DWM. Before: NOONAN, HAWKINS and GOULD, Circuit Judges. Opinion by Judge GOULD; Concurrence by Judge NOONAN; Concurrence by Judge GOULD. GOULD, Circuit Judge. 1 The United States appeals the district court's dismissal of the indictment charging Curtis A. Belgarde with committing burglary in violation of 18 U.S.C. § 1153 and Montana's burglary statute. The district court granted Belgarde's motion to dismiss on the ground that the Montana Department of Family Services is not a "person"…

Opinion by Judge GOULD; Concurrence by Judge NOONAN; Concurrence by Judge GOULD.

The United States appeals the district court’s dismissal of the indictment charging Curtis A. Belgarde with committing burglary in violation of 18 U.S.C. § 1153 and Montand’s burglary statute. The district court granted Belgarde’s motion to dismiss on the ground that the Montana Department of Family Services is not a “person” within the meaning of 18 U.S.C. § 1153 . We have jurisdiction and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant Curtis A. Belgarde, an enrolled member of the Fort Berkholt Tribe, was indicted for committing burglary of a state-owned building situated on Tribal land. Specifically, he was charged with unlawfully entering the Department of Family Services building in Wolf Point, Montana, with the intent to commit theft in violation of 18 U.S.C. § 1153 (“the Major Crimes Act”) and M.C.A. § 45-6-204, Montana’s burglary statute.

The Major Crimes Act provides:

18 U.S.C. § 1153 . For purposes of the Major Crimes Act, burglary is defined according to state law and the elements it sets. As pertinent here, in Montana the burglary statute prohibits unlawful entry into an occupied…

concurring:

It is a familiar principle of law that a statute is not to be construed literally if such construction leads to an absurd result. Public Citizen v. United States Dep’t of Justice, 491 U.S. 440, 454-55 , 109 S.Ct. 2558 , 105 L.Ed.2d 377 (1989). Even where there has been reluctance to apply this principle, it has not been denied, e.g. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 , 102 S.Ct. 3245 , 73 L.Ed.2d 973 (1982). The difficulty lies in a court determining that a result is so palpably absurd that the literal reading leading to the result subverts the purpose of the legislature and so must be replaced by a nonliteral reading faithful to that purpose. Compare, e.g., Church of the Holy Trinity v. United States, 143 U.S. 457 , 12 S.Ct. 511 , 36 L.Ed. 226 (1892) with Crooks v. Harrelson, 282 U.S. 55, 59-60 , 51 S.Ct. 49 , 75 L.Ed. 156 (1930).

Despite the array of authority excluding governments from the meaning of “person,” it seems to me fundamentally subversive of this federal criminal law to construe it so as to leave either federal or state agencies on Indian reservations without federal or state protection against depredation. However, as this panel is…

concurring:

In the majority opinion, we hold that under Eml D., a state agency, as with a federal agency, is not a “person” for purposes of the Major Crimes Act. The holding of Eml D., which we are bound to follow, requires this conclusion for the reasons stated in the majority opinion. However, in my view, the decision by a divided Court in Errol D. was incorrect. I am persuaded by the Enrol D. dissent’s position, and think that this case underscores that it would be wise for our Court to reassess the issue en banc. Enrol D.’s necessary application here to cover state agencies demonstrates that its holding left a potential gap in jurisdiction under the Major Crimes Act.

What is this gap? The majority in Eml D. reasoned in part that the defendant in that case could be prosecuted under alternative statutes, 18 U.S.C. § 641 or 18 U.S.C. § 1152 . Here, Belgarde cannot be prosecuted under 18 U.S.C. § 641 because this case is concerned with state property, not federal property. Also a possible jurisdictional problem could exist for a charge under 18 U.S.C. § 1152 . Section 1152 states in part: “This section shall not extend to ... any Indian committing any offense in the Indian…