U.S. v. Wilbur et al., No. 10-30185 (4-6-12) (W. Fletcher with Reinhardt; concurrence and dissent by Rawlinson).
The defendants were convicted of an 8-year conspiracy to violate the Contraband Cigarette Trafficking Act (CCTA). They sold cigarettes on the Swinomish Reservation and failed to pay state and federal taxes. On appeal, the 9th found that there were really several conspiracies; that some charges were barred by the statute of limitations; that there was a contract with the state for some years; but that from 2005 to 2007, cigarettes sold were "contraband" under the CCTA. The 9th rejected the treaty arguments raised by the defendant as well as the arguments over ambiguity in the tax laws and due process. Although this appeal would seem specialized, covering cigarettes on an Indian Reservation, the analysis over conspiracies, charging indictments, and variances in proof. The 9th, examining the conspiracies, found that the evidence proved two conspiracies, differing in time, with a gap. The defenses of statute of limitations and of variances were not waived. Rawlinson dissented from the holding for a statute of limitations and variance. She argues that a statute of limitations is an affirmative defense that was never raised (although, the majority found, it is in due process). She also would examine variance allegation here under plain error and she would find that there was an overarching conspiracy rather than two.