Document Type

Article

Publication Date

1-7-1991

Abstract

Defendants-appellants Eli Tarbell, Anthony Laughing and Peter Burns, Sr. appeal from convictions entered on January 16, 1990, February 26, 1990 and February 27, 1990, respectively, in the United States District Court for the Northern District of New York. Tarbell pled guilty to the unlawful use and possession of gambling devices in Indian country. 15 U.S.C. § 1175 (1988). Laughing and Burns pled guilty to violations of section 1175 and to the operation of illegal gambling businesses. 18 U.S.C. § 1955 (1988). Defendant-appellant Roderick Alex Cook was found guilty, following a jury trial, of violating section 1175.

In pre-trial motions to dismiss their indictments, appellants raised important issues relating to the interpretation and application of several statutes. They claimed that the district court lacked subject matter jurisdiction because the offenses for which they were prosecuted did not occur in Indian country, as required by section 1175. Appellants maintained that 25 U.S.C. § 232 (1988) granted exclusive prosecutorial jurisdiction to the State of New York, precluding the federal prosecutions in their cases. They also argued that both 15 U.S.C. § 1175 and 18 U.S.C. § 1955 were preempted by the enactment of the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. § 2701 et seq. (1988), and of 18 U.S.C. § 1166 (1988), which provides criminal penalties for violations of the IGRA; that the IGRA's grace period applies to the activities of Tarbell, Laughing and Burns; and that even if the IGRA did not preempt the statutes at issue, the government failed to prove that their activities violated state law, an essential element of an offense under section 1955. Other contentions were that section 1175, as applied, violates equal protection principles and that the government must prove that Tarbell and Laughing knew their conduct violated the law.

In denying the motions, Judge McCurn rejected all arguments advanced by appellants. The same arguments are advanced on this appeal. In addition, appellant Cook challenges the sufficiency of the evidence presented to the jury, particularly with respect to the government's proof that he operated "slot machines." Appellants Laughing and Burns challenge their sentences. They object to the four level increase in offense levels for "role in the offense." Laughing objects to Judge McCurn's refusal to grant him a two level reduction in sentence for "acceptance of responsibility." We affirm the district court in all respects.

Comments

922 F.2d 1026 (1991)

UNITED STATES of America, Appellee,

v.

Roderick Alex COOK, Eli Tarbell, Anthony Laughing and Gerald Laughing, James Joseph Burns, Defendants, Roderick Alex Cook, Eli Tarbell and Anthony Laughing, Defendants-Appellants.

UNITED STATES of America, Appellee,

v.

Peter BURNS, Sr., Defendant-Appellant.

Nos. 76, 105, 106 and 107, Dockets 90-1070, 90-1072, 90-1168 and 90-1179.

United States Court of Appeals, Second Circuit.

Argued September 10, 1990.

Decided January 7, 1991.

New York Law School location: File #1043, Box #126

Download

Share

COinS