[00:00:01] Speaker 04:
All right, I will go ahead and call the next case as counsel is getting settled in.

[00:00:07] Speaker 04:
It is United States versus Amanda Smith, number 245096.

[00:00:15] Speaker 04:
Mr. Gifford, you may proceed.

[00:00:20] Speaker 02:
Thank you, Your Honor.

[00:00:22] Speaker 02:
We'll be requesting to reserve two minutes of time to respond to the government's argument as well.

[00:00:31] Speaker 02:
I've raised four issues before the court and the fourth one having two subparts.

[00:00:37] Speaker 02:
The first one is that the district court erred when it did not grant a new trial based off this circuit's unpublished ruling in the United States v. Shell in which that court found that the use of assimilating the Oklahoma statute for the purpose of child abuse was

[00:00:55] Speaker 02:
Improper this decision did not come out until shortly after my client miss Amanda Smith was sentenced in this matter.

[00:01:04] Speaker 04:
Council was that argument available to her before the trial in this case?

[00:01:09] Speaker 04:
Couldn't she have made that same argument then?

[00:01:12] Speaker 02:
Yes, you are if if you know, I guess if I had analyzed it and thought of raising that issue and again, I didn't foresee that issue because Number one it been a common practice the way we'd always practiced Been charged that way.

[00:01:27] Speaker 02:
It's where the government's always charged it when the new issue came up where somebody raised it around the same time the court issued it it seems it would be fair that that Miss Smith should be able to benefit from it again.

[00:01:39] Speaker 02:
This is during is within

[00:01:42] Speaker 02:
within the 14 days of her conviction becoming final at that time, and 10 days afterwards, we raised the issue of the law of the 10th Circuit.

[00:01:53] Speaker 02:
Again, when you look at it, would the government be prejudiced in it?

[00:01:57] Speaker 02:
There are several things.

[00:01:59] Speaker 02:
One, is there neglect on my part?

[00:02:04] Speaker 02:
Yes, I can make arguments on areas of the law that have not changed yet, but I have to be able to foresee them.

[00:02:10] Speaker 02:
So when someone changes the law, then I, as her attorney, have to have a duty to raise that obligation to the court, which I did under the Shell case.

[00:02:17] Speaker 04:
In this case, by that change in the law, which would have changed the... Well, counsel, I mean, we all understand that Shell's unpublished, so it isn't quite a change in the law, is it?

[00:02:32] Speaker 02:
Well, I think it has changed the charging decisions by the United States government.

[00:02:37] Speaker 02:
The 10th Circuit has expressed, at least in an unpublished decision, that the use of the assimilation of the child abuse statute, as happened here, would not be appropriate to use.

[00:02:47] Speaker 02:
But it wouldn't.

[00:02:47] Speaker 04:
The case isn't binding on us, correct?

[00:02:51] Speaker 04:
Yes, Your Honor.

[00:02:52] Speaker 04:
And it wouldn't have been binding on the district court either.

[00:02:57] Speaker 02:
Correct.

[00:02:58] Speaker 02:
Correct.

[00:02:58] Speaker 02:
I mean, but it would be...

[00:03:00] Speaker 02:
Obviously, it would be a wise argument for the district court to consider the law as the 10th Circuit, even though it's an unpolished decision by another panel to at least take into consideration as to how the 10th Circuit may view the use of that statute.

[00:03:16] Speaker 02:
Your Honor, moving on to the second issue, and it's easier to discuss than it was actually to brief it, is the use of

[00:03:26] Speaker 02:
whether or not the federal government now has jurisdiction over non-natives who commit crime in Indian country after the US Supreme Court's decision in Castro Huerta.

[00:03:37] Speaker 02:
Castro Huerta was about states' rights and the state's ability to prosecute crimes committed by non-Indians in Indian country within the state's borders.

[00:03:49] Speaker 02:
And that's what Castro Huerta was about.

[00:03:52] Speaker 02:
What Castro-Huerta did not analyze, discuss, or even mention at all is the federal government has jurisdiction that's limited.

[00:04:04] Speaker 02:
And Congress wrote a statute at Title 18, Section 1152, in which they use the language of within the sole and exclusive jurisdiction of the United States.

[00:04:16] Speaker 02:
Now, there's general laws in the United States, such as, you know, bank robbery is a federal crime.

[00:04:22] Speaker 02:
It doesn't matter where it happens.

[00:04:24] Speaker 02:
The federal government can prosecute it.

[00:04:26] Speaker 02:
Drug trafficking as well.

[00:04:27] Speaker 02:
You don't need 18 USC 1152 to prosecute those federal crimes.

[00:04:31] Speaker 02:
Those federal crimes are applicable everywhere.

[00:04:35] Speaker 02:
In 1152, it doesn't matter.

[00:04:36] Speaker 02:
Those are general federal crimes.

[00:04:41] Speaker 02:
It talks about the crimes that are within the sole exclusive jurisdiction of the United States.

[00:04:47] Speaker 02:
And with that being said, once Castro-Worta gave the state of Oklahoma concurrent jurisdiction, thinking about the state's rights, then it took away the federal government's rights to prosecute these cases.

[00:04:59] Speaker 02:
Federal courts are courts of limited jurisdiction.

[00:05:01] Speaker 02:
When Congress writes a statute, it's presumed that they know what they're saying when they wrote it.

[00:05:06] Speaker 04:
Could I just stop you there?

[00:05:07] Speaker 04:
Could you say that again about

[00:05:10] Speaker 04:
Castro Huerta taking away the federal court's jurisdiction?

[00:05:19] Speaker 04:
Can you just say that again?

[00:05:20] Speaker 04:
I'm not sure I followed your statement.

[00:05:23] Speaker 02:
So Castro Huerta was about the state's right to prosecute non-natives in Indian country.

[00:05:30] Speaker 02:
And they gave the state that right.

[00:05:32] Speaker 02:
And that was the first time since, I think, 1892, I believe, that they had that ability to do that.

[00:05:40] Speaker 02:
With Casual Warta, given that concurrent jurisdiction to the state, well, now the federal government, when it prosecutes these crimes under 1152, 1152 discusses or states that these crimes have to be within the sole and exclusive jurisdiction in the United States.

[00:05:59] Speaker 02:
So now that Oklahoma has jurisdiction, the state has jurisdiction, the federal government no longer has something that's within a sole and exclusive jurisdiction.

[00:06:09] Speaker 02:
It's now shared.

[00:06:10] Speaker 02:
So unintentionally, when they gave the state of Oklahoma concurrent jurisdiction, the federal government being courts of limited jurisdiction as guided under 1152, that has to be under the sole exclusive jurisdiction, the federal courts lost jurisdiction over non-natives committing crimes against natives in Indian country.

[00:06:32] Speaker 04:
All right, so if I'm understanding what you just said,

[00:06:38] Speaker 04:
Does that mean no more prosecutions in federal court under 1152?

[00:06:45] Speaker 02:
Until Congress goes back and amends their own statute, because again... That's probably a yes or no question.

[00:06:56] Speaker 02:
I'm sorry.

[00:06:58] Speaker 04:
You can explain it.

[00:07:00] Speaker 04:
So, okay.

[00:07:01] Speaker 04:
So, if the U.S.

[00:07:03] Speaker 04:
Attorney's Office has a case arising in Indian country,

[00:07:09] Speaker 04:
The defendant is non-Indian.

[00:07:15] Speaker 04:
The victim is Indian.

[00:07:18] Speaker 04:
They can't charge that in federal court after Castro Huerta.

[00:07:22] Speaker 04:
That's how you're reading that case.

[00:07:24] Speaker 02:
Yes, Your Honor.

[00:07:25] Speaker 04:
Although the Supreme Court never really said that, did they?

[00:07:29] Speaker 02:
No, no, they never did.

[00:07:30] Speaker 02:
And it was not before them.

[00:07:31] Speaker 02:
And in fact, I even went back and read the read the entire argument transcript of Castro Orta.

[00:07:37] Speaker 02:
And again, in the final opinion, you know, they use the language that the federal and state governments will have concurrent jurisdiction.

[00:07:43] Speaker 02:
But what it didn't do is it didn't address that the language of within the sole exclusive jurisdiction in the United States.

[00:07:50] Speaker 04:
OK, well, that's that's a rather dramatic contraction of of federal court jurisdiction.

[00:07:59] Speaker 04:
Correct?

[00:08:00] Speaker 04:
Absolutely.

[00:08:01] Speaker 04:
I absolutely agree.

[00:08:02] Speaker 04:
Has any court accepted that argument?

[00:08:07] Speaker 04:
This is a novel argument.

[00:08:10] Speaker 02:
Your Honor, to my knowledge, this has never been raised.

[00:08:13] Speaker 02:
No one has ever brought this up.

[00:08:15] Speaker 02:
I've raised it in, I guess, two district court cases.

[00:08:20] Speaker 02:
And how did that go?

[00:08:22] Speaker 02:
Oh, it just said, usually just in one line, Castro-Huerta says,

[00:08:26] Speaker 02:
uh, the federal and state government shall have concurrent jurisdiction, but nowhere it's never addressed.

[00:08:31] Speaker 02:
What about this language about the federal government for these types of cases can do these cases within the sole and exclusive jurisdiction in the United States.

[00:08:39] Speaker 02:
And if we're, if we're adopting, you know, state law and I do discuss the, uh, you know, I, I do an analysis, my brief talking about dissimilated crimes that act and how this court's handled that and how it interprets federal enclaves, but really it just kind of goes back to the very simple question of, you know,

[00:08:55] Speaker 02:
What, where in the law we have within a sole exclusive jurisdiction in the United States for under 1152.

[00:09:02] Speaker 02:
As of now, there's not a single.

[00:09:05] Speaker 02:
There's not a single crime that is now within the sole and exclusive jurisdiction of the United States.

[00:09:09] Speaker 02:
It now all belongs to the state and the federal government.

[00:09:13] Speaker 02:
And so if the federal government wants to, you know, unless the federal government wants to prosecute, if it's a bank robbery, yes, they'll always have jurisdiction.

[00:09:21] Speaker 02:
Child pornography, yes.

[00:09:23] Speaker 02:
Those laws are already written.

[00:09:24] Speaker 02:
Those are federal statutes that apply everywhere.

[00:09:26] Speaker 02:
And that, but except for anything outside of that,

[00:09:29] Speaker 02:
1152, they're gonna be limited to those crimes that are gonna be within a sole exclusive jurisdiction.

[00:09:35] Speaker 04:
Okay, let me just ask you, it seems though that this argument goes to your client's conviction under 1152, right?

[00:09:47] Speaker 04:
And this is a different argument than your argument about the aiding and abetting because the aiding and abetting

[00:09:59] Speaker 04:
against her was for the offense charged against Joel Smith under 1153.

[00:10:08] Speaker 04:
So they're really separate arguments, correct?

[00:10:12] Speaker 04:
Yes, they're separate.

[00:10:14] Speaker 04:
And as to the aiding and abetting, what I wanted to ask you about that is under your view,

[00:10:26] Speaker 04:
And we're leaving aside your 1152 argument for now.

[00:10:32] Speaker 04:
May a non-Indian ever be charged for aiding and abetting an Indian defendant in an 1153?

[00:10:42] Speaker 04:
prosecution.

[00:10:44] Speaker 04:
Is that ever possible?

[00:10:45] Speaker 04:
Are you saying that can never happen?

[00:10:48] Speaker 02:
It cannot because they simply, under 1153, there's no jurisdiction for a non-Indian to be prosecuted under 1153.

[00:10:56] Speaker 04:
Let me put the question more generally.

[00:11:02] Speaker 04:
For a defendant to be convicted of an aiding and abetting offense, does the prosecution have to prove

[00:11:12] Speaker 04:
each and every element of that offense against that defendant.

[00:11:17] Speaker 04:
Obviously, the government would have to prove every element against the primary defendant, but does the government have to prove every element of the offense against the aiding and abetting defendant, assuming that there is proof of aiding and abetting?

[00:11:37] Speaker 04:
I don't know if that was clear at all, but you tell me if you understood my question.

[00:11:44] Speaker 02:
I think I do, Your Honor.

[00:11:45] Speaker 02:
I think if there's arguing that Mrs. Smith is guilty by aiding and abetting her husband, they have to prove every element of her husband's case against her as far as that he's native, that he committed these offenses, as well as proving that she aided and abetted.

[00:12:04] Speaker 04:
But well, but OK, maybe another way of putting it, do they have to prove that she is an Indian to aid and abet the 1153 charge against him?

[00:12:15] Speaker 02:
Oh, yes, that's the only way they would be able to have jurisdictions that they show that.

[00:12:19] Speaker 04:
OK, so now I'm looking for your best case for that.

[00:12:24] Speaker 02:
Yes, Your Honor, and I want to point out just one analogy.

[00:12:29] Speaker 02:
If I aided and abetted a service member on active duty in a crime and they get court-martialed, the United States, the Uniform Code of Military Justice has no jurisdiction over a civilian

[00:12:41] Speaker 02:
the military court martial.

[00:12:43] Speaker 02:
So if I aided and abetted that person, I can't be court-martialed because there's no jurisdiction over me as a non-active duty member.

[00:12:52] Speaker 02:
Now, they can allege that somebody aided and abetted the service member, but they can't ever prosecute me in a military courtroom because there's no jurisdiction over me.

[00:13:02] Speaker 02:
And that's the exact analogy on that.

[00:13:04] Speaker 02:
On the

[00:13:05] Speaker 02:
As far as my case law on the aiding and abetting, again, I have to look out of circuits on that.

[00:13:13] Speaker 04:
Well, I don't want to take up too much of your time if it's not at your fingertips.

[00:13:18] Speaker 04:
I take it there's something in your brief.

[00:13:20] Speaker 02:
There is your honor at page 15 page 15 of my brief.

[00:13:24] Speaker 02:
I cite I cite to United States B Graham.

[00:13:28] Speaker 02:
It's a 2009 8th circuit case at 572 F 3rd 954 and they discussed this exact same scenario.

[00:13:36] Speaker 02:
It is also discussed in the 7th circuit or in

[00:13:40] Speaker 02:
Uh, it also, I'm sorry.

[00:13:42] Speaker 02:
Also in another eighth circuit case of, uh, United States would be Norquay N O R Q U A 905 F second to 1157.

[00:13:51] Speaker 02:
And that's Penn site, 1159 through 63 and 1998 circuit case.

[00:13:55] Speaker 02:
And they, in that case, also cites to a Seventh Circuit case from 1984, United States v. Torres, 733, F-second, 449, found at 453, note one.

[00:14:07] Speaker 02:
And again, I discussed that in sight to those at page 15 of my brief at document 41.

[00:14:14] Speaker 03:
Can I ask you a question about this whole issue?

[00:14:19] Speaker 03:
So the government's taken the position that

[00:14:23] Speaker 03:
But because the special verdict form found your client guilty as a principle, that this issue is just a non-issue basically.

[00:14:33] Speaker 03:
And as I read your reply brief, you didn't really grapple with the special verdict form idea.

[00:14:39] Speaker 03:
And it almost read to me that this argument

[00:14:46] Speaker 03:
sort of depends on what we do with your argument and your reply that was sort of that this arguments depending on what we do with your section two of your brief argument.

[00:15:00] Speaker 02:
Yes, Your Honor.

[00:15:03] Speaker 02:
Basically, the verdict form was very straight to the point, but because they charged aiding and abetting, there was no special verdict to say she's guilty by aiding and abetting her husband in count one.

[00:15:15] Speaker 02:
versus he was guilty of this crime because he aided and abetted her under her statute.

[00:15:22] Speaker 02:
So I do fall under that as well.

[00:15:25] Speaker 02:
Your Honors, I see that I'm out of time and I

[00:15:30] Speaker 02:
While I ask for the reserve time, I'll forgo that.

[00:15:33] Speaker 02:
There's one more issue.

[00:15:34] Speaker 02:
If I just, with the court's permission, if I can have a brief 30 seconds to address that last issue before the court and reverse victim impact statements.

[00:15:41] Speaker 04:
All right.

[00:15:42] Speaker 04:
We'll do a brief 30 seconds.

[00:15:45] Speaker 02:
Yes, sir.

[00:15:45] Speaker 04:
Or a real 30 seconds.

[00:15:47] Speaker 04:
Yes.

[00:15:48] Speaker 04:
Okay.

[00:15:49] Speaker 02:
My brief discusses the victim impact statements.

[00:15:52] Speaker 02:
Why that's important is it was given to me the night before.

[00:15:55] Speaker 02:
I did not have the opportunity to respond to them, prepare for them.

[00:15:59] Speaker 02:
I didn't have transcripts from trial to even contradict them.

[00:16:03] Speaker 02:
and I was ineffective in being able to address and contradict those.

[00:16:07] Speaker 02:
For example, at trial, the victim impact statement by officer or deputy Burnett, she talks about certain things like this injury was hot to touch.

[00:16:16] Speaker 02:
That's at page 564 in the transcript at page 715.

[00:16:20] Speaker 02:
There's no mention of touching anything.

[00:16:23] Speaker 02:
There was other issues in which throughout the transcript, I could have contradicted each of these victim impact statements from their prior testimony.

[00:16:30] Speaker 02:
There was new information given in these victim impact statements that did not ever come out of trial.

[00:16:35] Speaker 02:
It was never listed anywhere else and given it to me the night before.

[00:16:38] Speaker 02:
And I did properly object.

[00:16:40] Speaker 02:
I filed an objection.

[00:16:41] Speaker 02:
I tried to object to the PSR writer and I was told...

[00:16:47] Speaker 00:
I'm going to interrupt your 30 seconds, but very, very quickly.

[00:16:51] Speaker 00:
Your point is well taken.

[00:16:52] Speaker 00:
My concern is that the district court said ultimately didn't rely on any of that.

[00:16:57] Speaker 00:
And so what are we, how should we be thinking about that?

[00:17:00] Speaker 00:
Even not withstanding the fact that you may not have had a meaningful amount of time to to rebut it.

[00:17:07] Speaker 02:
It was not excluded.

[00:17:10] Speaker 02:
While the court did say that, there should have been at least some ruling about that.

[00:17:14] Speaker 02:
It was turned over late.

[00:17:15] Speaker 02:
It should have been provided with the PSR so that could be a proper response to it.

[00:17:20] Speaker 02:
And even though the court says, I'm not going to consider it, the court never said, I'm excluding it or I'm granting your motion to it.

[00:17:29] Speaker 02:
And I asked for a continuance to reset the sentencing just so I could address those, and that was denied.

[00:17:37] Speaker 02:
With that being said, thank you for the extra 30 seconds, Your Honors.

[00:17:42] Speaker 04:
Thank you, Counsel.

[00:17:43] Speaker 04:
Ms.

[00:17:43] Speaker 04:
Alam?

[00:17:51] Speaker 01:
Your Honors, Lena Alam from the United States.

[00:17:54] Speaker 01:
I'd like to start by talking about aiding and abetting.

[00:17:58] Speaker 01:
The stand of her case from the Third Circuit cited in my brief from 1979 makes clear why Section 2

[00:18:06] Speaker 01:
allows prosecution of a non-Indian defendant who aids and abets an Indian who has violated the Major Crimes Act.

[00:18:17] Speaker 01:
Specifically, Standifer explains that in 1951, when Congress amended section two from someone who aids and abets is a principal to someone who aids and abets is punishable as a principal,

[00:18:34] Speaker 01:
Congress explained their reasons for doing that and said, this section is intended to clarify and make certain the intent to punish aiders and abetters, regardless of the fact that they may be incapable of committing the specific violation which they are charged to have aided and abetted.

[00:18:52] Speaker 01:
Not only did the Third Circuit apply that to uphold the conviction of someone who aided and abetted an IRS employee,

[00:19:03] Speaker 01:
In that case, the IRS employee was acquitted.

[00:19:06] Speaker 01:
And nonetheless, the Supreme Court addressed that issue and affirmed holding that not recognizing implicitly that section two allows a charge or a conviction against an aider and a better who may not be charged under the statute, but that conviction may stand even when the person to whom the statute applies directly, the principal,

[00:19:32] Speaker 01:
is acquitted.

[00:19:34] Speaker 01:
So because the Supreme Court has recognized that section two allows conviction of people who can't be charged under the statute, I think Graham in the Eighth Circuit is wrongly decided.

[00:19:48] Speaker 01:
And my brief discusses, I think at some length, why Graham came to this erroneous conclusion.

[00:19:53] Speaker 01:
Although Graham cites Standifer, it just holds that based on the Eighth Circuit's decision in Norquay,

[00:20:01] Speaker 01:
that an aider and abetter cannot be charged with aiding and abetting a crime under the Major Crimes Act.

[00:20:06] Speaker 01:
But Norquay doesn't hold that.

[00:20:08] Speaker 01:
Norquay in dicta mentions that the Indian defendant in Norquay, that his co-conspirator who was prosecuted in federal court, or in state court rather, could not have been prosecuted in state court.

[00:20:23] Speaker 01:
That wasn't the holding in Norquay, it was pure dicta.

[00:20:26] Speaker 01:
But Graham took that and ran with it

[00:20:29] Speaker 01:
without addressing the specific congressional purpose between changing the language in section two from is a principal to is punishable as a principal.

[00:20:39] Speaker 03:
So what is the federal jurisdictional hook into the defendant in this case on this count?

[00:20:52] Speaker 01:
It is, well, I guess it depends which count.

[00:20:57] Speaker 01:
But as to counts three and four, it's 1152.

[00:21:00] Speaker 01:
And for all the reasons stated in my brief, this defendant, Ms.

[00:21:06] Speaker 01:
Smith, was not convicted on counts one or two.

[00:21:09] Speaker 01:
This is just a question of whether she could have been charged and convicted as an aider and better to counts one and two.

[00:21:17] Speaker 01:
But the facts in the verdict form here make clear that that did not occur, which is why.

[00:21:22] Speaker 03:
I get that, but I'm still

[00:21:27] Speaker 03:
You know, it seems to me that the, I get the whole idea of Congress was trying to sweep people into this as aiders and abettors who were incapable of committing the crime themselves.

[00:21:40] Speaker 03:
But, you know, we have, we have other competing interests here of somebody who we generally wouldn't even be able to bring into federal court on this, you know, otherwise.

[00:21:55] Speaker 01:
Well, and again, obviously here we would for other reasons, but as to counts one and two, the jurisdiction, the federal court's jurisdiction arises because the crime took place on Indian country and here had an Indian victim.

[00:22:11] Speaker 01:
So that's the federal interest.

[00:22:13] Speaker 01:
And it was the crime itself was committed by a principal who was Indian.

[00:22:19] Speaker 01:
And that's where the source of that federal jurisdiction occurs.

[00:22:23] Speaker 03:
And for that- It almost sounds to me like you're arguing that his Indian status can be imputed to her as an aider in a better.

[00:22:32] Speaker 01:
I think his ability to be charged under a given statute can be imputed to her as an aider in a better.

[00:22:37] Speaker 01:
And I think that's precisely what Congress intended in clarifying section two.

[00:22:42] Speaker 03:
Okay, fair enough.

[00:22:42] Speaker 03:
I have another question about this.

[00:22:44] Speaker 03:
And that has to do with your argument that she was convicted under counts three and four as evidenced by the special verdict form.

[00:22:53] Speaker 03:
I mean, I'm not sure I got an answer to my question from your colleague, but I was looking at the reply brief and he doesn't seem to grapple with that position that you took.

[00:23:07] Speaker 03:
Can you opine on that?

[00:23:10] Speaker 01:
Sure.

[00:23:11] Speaker 01:
I think as Mr. Gifford I think recognizes he has to win on his Castro Huerta argument to avoid my response on his aiding and abetting argument.

[00:23:25] Speaker 01:
And let me just very briefly address the Castro Huerta argument.

[00:23:31] Speaker 01:
I think with all due respect, I think Mr. Gifford has misread Castro Huerta.

[00:23:36] Speaker 01:
It explicitly explains that

[00:23:40] Speaker 01:
quote, the phrase sole and exclusive jurisdiction in the General Crimes Act is, quote, only used in the description of the laws which are extended, end quote, to Indian country not to, quote, the jurisdiction extended over the Indian country.

[00:24:00] Speaker 01:
So the Supreme Court precisely recognized in Castro Huerta that when the phrase sole and exclusive jurisdiction is used in the General Crimes Act, it is extending the jurisdiction over federal enclaves, places within the sole and exclusive jurisdiction of the United States, to the Indian country.

[00:24:19] Speaker 01:
Not that Indian country must be in the sole and exclusive jurisdiction of the federal courts.

[00:24:25] Speaker 01:
And that's, I think, the crux of Castro Huerta.

[00:24:28] Speaker 01:
Moving back to the first issue in counsel's brief, I'm not going to address the untimeliness.

[00:24:34] Speaker 01:
I think that's fully briefed here.

[00:24:37] Speaker 01:
But my principal argument is that Shell was wrongly decided.

[00:24:44] Speaker 01:
And we touched on this a little bit in talking about Ms.

[00:24:48] Speaker 01:
Smith's co-defendant and the scope of the Oklahoma child abuse statute and the scope of the federal assault statute.

[00:24:59] Speaker 01:
Shell collapses the Lewis test into one element by holding that if the defendant's conduct is punishable by any enactment of Congress, then the state statute may not be assimilated.

[00:25:16] Speaker 01:
That's just not what Lewis stands for.

[00:25:18] Speaker 01:
And looking at this, Ms.

[00:25:21] Speaker 01:
Smith's conduct makes clear that her offense cannot be assimilated under either Lewis prompt.

[00:25:28] Speaker 01:
First, for the reasons we discussed, some of the abusive conduct in this case, the forcing the child to wear a diaper until injured, right?

[00:25:38] Speaker 01:
Maliciously torturing a child and causing injury is not assaulted conduct.

[00:25:44] Speaker 01:
It doesn't require an affirmative touching.

[00:25:49] Speaker 01:
And so for those reasons, the first prong of Lewis is not met by Ms.

[00:25:54] Speaker 01:
Smith's conduct.

[00:25:55] Speaker 01:
So it should be, that could be the end of the inquiry.

[00:25:59] Speaker 01:
But the more important argument here, and honestly in Shell as well, is that child abuse as covered by the Oklahoma child abuse statute is not what Congress intended to cover by adopting the federal assault statutes.

[00:26:16] Speaker 01:
And one of the reasons we know that is because in a parallel area of law in the major crimes act,

[00:26:25] Speaker 01:
In 2006, Congress added child abuse and neglect to the list of crimes that may be charged against Indian defendants under the Major Crimes Act.

[00:26:40] Speaker 01:
And then years later, Congress added

[00:26:44] Speaker 01:
any felony under section 113 to that same enumeration of offenses under the major crimes act.

[00:26:50] Speaker 01:
And when they did that, they did not remove the words felony child neglect and abuse because it understood as I think this court has held that there is no general federal child abuse or neglect statute.

[00:27:04] Speaker 01:
And so by leaving both of those things in there, Congress made clear that they understood felony child abuse and neglect

[00:27:13] Speaker 01:
and felonies under section 113 assaulted felonies to be different, even though 113A7 addresses, at least in part, some assaults against people under 16.

[00:27:27] Speaker 00:
Council, what role in this case is the government's position that Shell was wrongly decided have?

[00:27:36] Speaker 01:
It is one of, I think, four ways that we could prevail on that first count.

[00:27:42] Speaker 01:
but it is an extraordinarily important issue going forward for the reasons that Mr. Gifford, I think, expressed.

[00:27:50] Speaker 01:
The government has an interest in protecting Indian children, whether they be assaulted by Indians, in which case it would be chargeable under the Major Crimes Act, or whether assaulted by non-Indians, in which case under our reading, and I think a correct reading of Lewis,

[00:28:10] Speaker 01:
they could be charged under 1152 under the general crimes act.

[00:28:16] Speaker 01:
That said, because Shell specifically exempted child neglect and said that they were not considering that issue, and because 843.5 is plainly divisible, this court could affirm on the basis of the child neglect conviction alone and hold explicitly that Oklahoma statute 843.5

[00:28:40] Speaker 01:
may be assimilated, but I think that's implied by Shell.

[00:28:44] Speaker 01:
We think the broader holding that all of the abuse provisions of 843.5 may be assimilated.

[00:28:53] Speaker 00:
But you agree, and maybe I'm missing the point here, but you agree that to even engage with Shell as an unpublished

[00:29:06] Speaker 00:
decision and grapple with its holding and reasoning, we would have to agree that it is intervening law for purposes of the timeliness of the post-trial motions, right?

[00:29:20] Speaker 01:
I'm not sure that's true.

[00:29:23] Speaker 01:
Certainly, the way that Mr. Gifford has raised this argument is only in the district court's failure to consider those issues.

[00:29:33] Speaker 01:
However, Mr. Gifford could have raised the underlying arguments in shell before this court on direct appeal.

[00:29:40] Speaker 01:
And frankly, to not have done so might have been ineffective.

[00:29:47] Speaker 01:
And so because this issue of whether federal child abuse may be assimilated is critical both

[00:29:58] Speaker 01:
in the general area of Indian law and to this case in particular.

[00:30:03] Speaker 00:
To maybe some future version of a component of this case, but it's not directly an issue before us unless we overlook timeliness, right?

[00:30:15] Speaker 01:
I think that's arguable, but at the end of the day, some explanation of whether

[00:30:24] Speaker 01:
Mr. Gifford should have raised the shell issue earlier or should have raised it before this court could be addressed by a holding that the underlying premise of shell is simply wrongly decided.

[00:30:40] Speaker 04:
But you said there were four ways, and that's one way.

[00:30:45] Speaker 04:
So could you briefly summarize the other three ways?

[00:30:48] Speaker 01:
Sure.

[00:30:48] Speaker 01:
The first is that the district court didn't abuse its discretion in finding that the fourth motion to dismiss or motion for new trial was untimely.

[00:31:01] Speaker 01:
It was filed more than two years after Ms.

[00:31:05] Speaker 01:
Smith's first motion was dismissed, nearly a year after the post trial motion was dismissed.

[00:31:11] Speaker 01:
The prejudice was clear.

[00:31:13] Speaker 01:
And for the reasons I think you discussed with Mr. Gifford, the reasons for delay were not sufficient to justify.

[00:31:23] Speaker 01:
And so the district court arguably did not abuse its discretion in declining to hear an untimely motion.

[00:31:29] Speaker 01:
The second is that Shell is wrongly decided.

[00:31:34] Speaker 01:
The third is that any Shell error is harmless because 843.5 is divisible, and Shell explicitly recognizes they're not addressing acts of omission like neglectful abuse.

[00:31:50] Speaker 01:
And here, Ms.

[00:31:50] Speaker 01:
Smith, unlike Mr. Shell, was charged with child neglect as well as child abuse.

[00:31:58] Speaker 01:
That's actually three ways.

[00:32:00] Speaker 01:
I think there are two prongs in the shell was wrongly decided, but we will leave it at that.

[00:32:08] Speaker 01:
And I think with my 43 seconds, I will just say that to the extent that the district court's decision to even read the letters sent by three trial witnesses before sentencing Ms.

[00:32:23] Speaker 01:
Smith could possibly exceed the vast discretion we give district courts to consider

[00:32:30] Speaker 01:
anything at sentencing.

[00:32:33] Speaker 01:
If it exceeded that discretion, it nonetheless did not violate Ms.

[00:32:38] Speaker 01:
Smith's rights because the district court explicitly said that it was not going to consider that to the extent that it did.

[00:32:48] Speaker 00:
Did the government represent that these letters were victim from victims?

[00:32:55] Speaker 00:
Should we understand that these are victim statements

[00:33:00] Speaker 00:
under 3771, like the understanding of crime victim, or were these letters more in service of information at sentencing and therefore, we would understand them under a different statutory cream?

[00:33:17] Speaker 01:
I think we should understand them under a different statutory thing.

[00:33:20] Speaker 01:
But did the government say they were victims?

[00:33:23] Speaker 01:
Did the government tell the district court these are victims?

[00:33:26] Speaker 01:
It's not clear.

[00:33:27] Speaker 01:
These were submitted not by, I think, the attorneys, but by the victim witness coordinators who sometimes collect letters and forward them on to the probation office, which then submits them to the court.

[00:33:38] Speaker 01:
And so all of that, it's not clear exactly how they were characterized, but certainly

[00:33:43] Speaker 01:
The district court didn't understand them to be victim impact letters, and for that reason, any error here is certainly harmless.

[00:33:51] Speaker 01:
For all those reasons, we would ask this court to affirm.

[00:33:56] Speaker 04:
Thank you.

[00:33:56] Speaker 04:
Thank you, counsel.

[00:33:58] Speaker 04:
The case will be submitted.

[00:34:00] Speaker 04:
Thank you for your argument this morning, Mr. Gifford.

[00:34:04] Speaker 04:
You may be excused.

[00:34:06] Speaker 04:
Ms.

[00:34:06] Speaker 04:
Alam will give you a half