                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 07-30251
               Plaintiff-Appellant,
               v.                            D.C. No.
                                          CR 05-2099 RHW
ROGER FIANDER,
                                             OPINION
              Defendant-Appellee.
                                      
       Appeal from the United States District Court
         for the Eastern District of Washington
       Robert H. Whaley, District Judge, Presiding

                   Argued and Submitted
            April 7, 2008—Seattle, Washington

                  Filed October 23, 2008

    Before: Stephen Reinhardt, A. Wallace Tashima, and
          M. Margaret McKeown, Circuit Judges.

                Opinion by Judge Tashima




                           14839
                 UNITED STATES v. FIANDER           14841


                       COUNSEL

Jane M. Kirk, Assistant United States Attorney, Yakima,
Washington, for the plaintiff-appellant.

Jack W. Fiander, Towtnuk Law Offices, Ltd., Yakima, Wash-
ington, for the defendant-appellee.


                       OPINION

TASHIMA, Circuit Judge:

  Roger Fiander, a member of the Confederated Tribes and
Bands of the Yakama Nation, was charged with several other
14842              UNITED STATES v. FIANDER
defendants in a multi-count indictment with numerous viola-
tions related to trafficking in contraband cigarettes. The
charges included violations of the Contraband Cigarette Traf-
ficking Act (“CCTA”), 18 U.S.C. § 2342(a); conspiracy to
violate the CCTA, 18 U.S.C. §§ 2, 371, and 2342(a); conspir-
acy to violate the Racketeer Influenced and Corrupt Organiza-
tions Act (“RICO”), 18 U.S.C. § 1962(d); and money
laundering, 18 U.S.C. §§ 1956 and 1957. Fiander agreed to
plead guilty to Count One of the indictment, conspiracy to
violate RICO, and the government agreed to move to dismiss
the numerous other counts. Shortly thereafter, however, we
decided United States v. Smiskin, 487 F.3d 1260 (9th Cir.
2007), holding that the application of the CCTA to Yakama
Indians violated the Yakama Treaty of 1855. We therefore
upheld the dismissal of an indictment against two members of
the Yakama Nation. Pursuant to Smiskin, after briefing, the
district court dismissed the indictment. The government
timely appealed. We have jurisdiction pursuant to 18 U.S.C.
§ 3731 and 28 U.S.C. § 1291, and we now reverse.

                              I.

   The district court’s decision to dismiss the indictment is
reviewed de novo. United States v. Jackson, 480 F.3d 1014,
1016 (9th Cir. 2007). “ ‘Generally, an indictment is sufficient
if it sets forth the elements of the charged offense so as to
ensure the right of the defendant not to be placed in double
jeopardy and to be informed of the offense charged.’ ” United
States v. Fernandez, 388 F.3d 1199, 1217-18 (9th Cir. 2004)
(quoting United States v. Rodriguez, 360 F.3d 949, 958 (9th
Cir. 2004)), modified by 425 F.3d 1248 (9th Cir. 2005).

                              II.

   Fiander was a member of an organization called the
Mahoney Enterprise, which trafficked in contraband ciga-
rettes between Idaho and Washington. Louie Mahoney owned
and operated JKL Enterprises on the Coeur d’Alene Indian
                   UNITED STATES v. FIANDER               14843
reservation in Idaho. JKL Enterprises ordered cigarettes from
Washington wholesalers using the tribal tobacco license and
retail addresses of Christine Mahoney-Meyer and Margaret
Jose. JKL Enterprises then took cigarette orders from Wash-
ington tribal retailers. Fiander’s role was to deliver cigarette
orders to two retailers on the Yakama Indian Reservation in
Washington. Fiander picked up checks from the retailers in
Washington, drove to Idaho to pick up the cigarettes, and
transported the cigarettes to Washington.

   Fiander was charged under the CCTA, which provides that
it is “unlawful for any person knowingly to ship, transport,
receive, possess, sell, distribute, or purchase contraband ciga-
rettes or contraband smokeless tobacco.” 18 U.S.C. § 2342(a).
Contraband cigarettes are defined by reference to state law:

    [T]he term “contraband cigarettes” means a quantity
    in excess of 10,000 cigarettes, which bear no evi-
    dence of the payment of applicable State or local
    cigarette taxes in the State or locality where such
    cigarettes are found, if the State or local government
    requires a stamp, impression, or other indication to
    be placed on packages or other containers of ciga-
    rettes to evidence payment of cigarette taxes, and
    which are in the possession of any person other than
    a person otherwise authorized to possess such ciga-
    rettes. 18 U.S.C. § 2341(2).

   In order to enforce its cigarette tax, Washington law
requires cigarettes sold in the state to have a stamp showing
either that the tax was paid or that the cigarettes were tax-
exempt. Wash. Rev. Code §§ 82.24.030(1) & (2). It is illegal
to transport unstamped cigarettes in the state unless autho-
rized to possess unstamped cigarettes. Wash. Rev. Code
§ 82.24.250.

    [A] “person authorized . . . to possess unstamped
    cigarettes” means:
14844              UNITED STATES v. FIANDER
    (a) A wholesaler, licensed under Washington state
    law;

    (b)   The United States or an agency thereof; [and]

    (c) Any person, including an Indian tribal organi-
    zation, who, after notice has been given to the board
    as provided in this section, brings or causes to be
    brought into the state unstamped cigarettes, if within
    a period of time after receipt of the cigarettes as the
    department determines by rule to be reasonably nec-
    essary for the purpose the person has caused stamps
    to be affixed in accordance with RCW 82.24.030 or
    otherwise made payment of the tax required by this
    chapter in the manner set forth in rules adopted by
    the department.

Wash. Rev. Code § 82.24.250(7).

   [1] “Under federal law the state may not tax Indians or
Indian tribes in Indian country.” Wash. Admin. Code § 458-
20-192. However, “Washington law requires that cigarettes
destined for sale to Indians be pre-approved by the Washing-
ton State Department of Revenue.” Grey Poplars Inc. v.
1,371,100 Assorted Brands of Cigarettes, 282 F.3d 1175,
1178 (9th Cir. 2002). Washington law further prohibits the
transportation of unstamped cigarettes other than by “[a]
licensed wholesaler in the wholesaler’s own vehicle,” or by a
person who has given notice to the liquor control board “in
advance of the commencement of transportation.” Wash. Rev.
Code § 82.24.250(1); see Wash. Rev. Code § 82.24.010
(defining “board” to mean “the liquor control board”).
Because Fiander did not provide notice to the state prior to
transporting the cigarettes, the cigarettes he transported were
contraband within the meaning of the CCTA. See Smiskin,
487 F.3d at 1263 (concluding that the cigarettes were unau-
thorized under state law and contraband under the CCTA
                    UNITED STATES v. FIANDER               14845
because the Smiskins did not provide prior notice to the State
of Washington).

                               III.

   [2] “Federal laws of general applicability are presumed to
apply with equal force to Indians,” subject to three excep-
tions. United States v. Baker, 63 F.3d 1478, 1484 (9th Cir.
1995). One exception is that, if a statute of general applicabil-
ity “is silent on the issue of applicability to Indian tribes,” it
will not apply if its application would “ ‘abrogate rights guar-
anteed by Indian treaties.’ ” Id. (quoting Donovan v. Coeur
d’Alene Tribal Farm, 751 F.2d 1113, 1115 (9th Cir. 1985)).
Smiskin held that the application of the CCTA, a law of gen-
eral applicability, violated the right to travel guaranteed by the
Yakama Treaty. Smiskin, 487 F.3d at 1266.

   “The Right to Travel provision of the Yakama Treaty of
1855 secures to Yakama tribal members the right to travel
upon the public highways.” Id. at 1262. Like Fiander, the
defendants in Smiskin were members of the Yakama Nation
who were suspected of transporting unstamped cigarettes
from Idaho to smoke shops on Indian reservations in Wash-
ington. They were charged with substantive violations of the
CCTA by failing to comply with Washington’s requirement
to give notice to the liquor control board prior to transporting
unstamped cigarettes within the state. The district court held
that the pre-notification requirement violated the Yakama
Treaty and dismissed the indictment.

   On the government’s appeal, we relied on Cree v. Flores,
157 F.3d 762 (9th Cir. 1998), which held that the State of
Washington’s imposition of fees on truck drivers for Yakama
logging companies violated the Yakama Treaty’s guarantee of
the “ ‘right to transport goods to market over public highways
without payment of fees for that use.’ ” Smiskin, 487 F.3d at
1265 (quoting Cree, 157 F.3d at 769). We cited the finding
made in Cree that the parties to the Treaty intended the Yaka-
14846                  UNITED STATES v. FIANDER
mas to retain “ ‘the right to travel the public highways without
restriction for purposes of hauling goods to market.’ ” Id. at
1266 (quoting Yakama Indian Nation v. Flores, 955 F. Supp.
1229, 1248 (E.D. Wash. 1997), aff’d by Cree, 157 F.3d 762).
Washington’s pre-notification requirement was a restriction
on the right to travel, in violation of the Yakama Treaty. Id.
Thus, “the Smiskins’ alleged transportation and possession of
unstamped cigarettes without providing notice to the State
cannot be the basis for prosecution under the CCTA.” Id. at
1272.

   [3] Fiander’s CCTA prosecution relies on the same pre-
notification requirement that was addressed in Smiskin. Thus,
pursuant to Smiskin, Fiander cannot be prosecuted for a sub-
stantive violation of the CCTA. The government protests,
however, that Fiander pled guilty to conspiracy to violate
RICO under 18 U.S.C. § 1962(d) and that he can be liable for
the RICO conspiracy charge even if he cannot be charged
with the substantive CCTA offense.1

   [4] The government’s argument rests on Salinas v. United
States, 522 U.S. 52 (1997),2 which held that a defendant who
was acquitted of the substantive racketeering charge nonethe-
less could be convicted of conspiracy to violate RICO.

   The RICO statute, 18 U.S.C. § 1962(d), to which Fiander
pleaded guilty, provides, in full, that “[i]t shall be unlawful
for any person to conspire to violate any of the provisions of
subsection (a), (b), or (c) of this section.” The indictment
charged Fiander and his coconspirators with a conspiracy to
violate 18 U.S.C. § 1962(c), which provides:
  1
     The defendants in Smiskin were not charged with RICO conspiracy,
but only with substantive violations of the CCTA. See United States v.
Smiskin, 2005 WL 1288001, at *1 (E.D. Wash. May 31, 2005).
   2
     The government did not cite Salinas in its supplemental briefing to the
district court, but Fiander acknowledges that the government did argue
below that this case is distinguishable from Smiskin because Fiander was
charged with and pled guilty to conspiracy.
                  UNITED STATES v. FIANDER              14847
    It shall be unlawful for any person employed by or
    associated with any enterprise engaged in, or the
    activities of which affect, interstate or foreign com-
    merce, to conduct or participate, directly or indi-
    rectly, in the conduct of such enterprise’s affairs
    through a pattern of racketeering activity or collec-
    tion of unlawful debt.

18 U.S.C. § 1962(c). Racketeering activity is defined to
include any act that is indictable under the CCTA. Id.
§ 1961(1)(B). A pattern of racketeering activity “requires at
least two acts of racketeering activity.” Id. § 1961(5).

   In Salinas, Mario Salinas was charged with one count of
violating RICO, one count of conspiracy to violate RICO, and
two counts of bribery in connection with a scheme in which
Salinas, a sheriff deputy, assisted the sheriff in allowing a
prisoner “contact visits” in exchange for money and goods.
522 U.S. at 55. Salinas was acquitted of the substantive RICO
count, but convicted of the RICO conspiracy and bribery
counts. Id.

   Salinas challenged his conspiracy conviction on the ground
that “[t]here could be no conspiracy offense . . . unless he
himself committed or agreed to commit the two predicate acts
requisite for a substantive RICO offense under § 1962(c).” Id.
at 61. The theory of the prosecution was that Salinas commit-
ted a substantive violation of § 1962(c) by accepting two or
more bribes. Id. at 62-63. The jury acquitted him of the sub-
stantive RICO count, and Salinas argued that the jury had not
been instructed that “he must have committed or agreed to
commit two predicate acts himself.” Id. at 63. The Court
stated, however, that the RICO conspiracy statute contained
no requirement of an overt act or specific act and therefore
was “even more comprehensive than the general conspiracy
offense in [18 U.S.C.] § 371,” id., which requires a conspira-
tor to “do any act to effect the object of the conspiracy,” 18
U.S.C. § 371.
14848               UNITED STATES v. FIANDER
  The Court then discussed principles of conspiracy law, stat-
ing that “[a] conspirator must intend to further an endeavor
which, if completed, would satisfy all of the elements of a
substantive criminal offense, but it suffices that he adopt the
goal of furthering or facilitating the criminal endeavor.” Sali-
nas, 522 U.S. at 65. The Court concluded:

    It makes no difference that the substantive offense
    under § 1962(c) requires two or more predicate acts.
    The interplay between subsections (c) and (d) does
    not permit us to excuse from the reach of the con-
    spiracy provision an actor who does not himself
    commit or agree to commit the two or more predi-
    cate acts requisite to the underlying offense.

Id. Thus, even if Salinas had not himself accepted or agreed
to accept bribes, the evidence that he knew about and agreed
to facilitate the sheriff’s acceptance of bribes was sufficient to
support his RICO conspiracy conviction. Id. at 66.

   [5] Under Salinas, Fiander did not need to commit the sub-
stantive offense of contraband cigarette trafficking in order to
be guilty of the RICO conspiracy. Instead, it is sufficient that
he “knew about and agreed to facilitate the scheme.” Id.; see
also, e.g., United States v. Driver, 535 F.3d 424, 432 (6th Cir.
2008) (stating that a RICO conspiracy conviction could be
sustained, even if there was not sufficient evidence that the
defendant committed two predicate acts himself or agreed to
commit two predicate acts himself, as long as there was suffi-
cient evidence that he “agreed that someone would commit
two predicate acts”); United States v. Browne, 505 F.3d 1229,
1274 (11th Cir. 2007) (“ ‘Agreement to commit two predicate
acts, and not the actual commission of two predicate acts, is
the key issue in a RICO conspiracy charge.’ ” (quoting United
States v. Russo, 796 F.2d 1443, 1461 (11th Cir. 1986))), cert.
denied, 128 S. Ct. 2962 (2008); United States v. Delgado, 401
F.3d 290, 296 (5th Cir. 2005) (stating that the defendant,
charged with RICO conspiracy, “need not have committed or
                       UNITED STATES v. FIANDER                      14849
agreed to commit the two predicate acts,” but only needed to
“have known of and agreed to the overall objective of the
RICO offense”); Fernandez, 388 F.3d at 1230 (stating that the
prosecution was not required to prove that the defendant com-
mitted any overt act in order to sustain a RICO conspiracy
conviction); United States v. Cianci, 378 F.3d 71, 90-93 (1st
Cir. 2004) (explaining that a defendant may be convicted of
RICO conspiracy even if acquitted of the substantive crime).

   [6] Because of Salinas’ broad interpretation of the RICO
conspiracy statute, we conclude that the allegations in the
indictment against Fiander are sufficient to survive dismissal.3
The indictment alleged that Fiander entered into an agreement
to commit the substantive offense of contraband cigarette traf-
ficking. At least several of his coconspirators, including
Mahoney, Mahoney-Meyer, and Jose, are not members of the
Yakama Nation; therefore, their conduct is “indictable” under
the CCTA.4 18 U.S.C. § 1961(1)(B). The indictment further
alleges, and the plea agreement indicates, that Fiander knew
about the objective of the enterprise and knowingly agreed to
facilitate it. The indictment alleges that Fiander collected pay-
ment from tribal retailers in Washington, took the payment to
Mahoney in Idaho, received the cigarettes, concealed them in
his vehicle for delivery to Washington, and collected delivery
fees. Fiander admitted that he had raised his delivery fees to
compensate for the risk of being discovered and having the
cigarettes and his vehicle seized.
  3
     “We presume the allegations of an indictment to be true for purposes
of reviewing a district court’s ruling on a motion to dismiss.” Smiskin, 487
F.3d at 1263 n.5.
   4
     The convictions of Mahoney-Meyer and Jose were affirmed on appeal,
in part because, as members of the Coeur d’Alene Tribe, which does not
have a treaty with a broad Right to Travel provision, as does the Yakama
Nation, Smiskin did not apply to their situation. See United States v.
Mahoney-Meyer, Nos. 07-30430, 07-30432, 2008 WL 4372957 (9th Cir.
Sept. 22, 2008).
14850              UNITED STATES v. FIANDER
   The indictment accordingly sufficiently alleges that Fiander
agreed to facilitate the commission of the crime of contraband
cigarette trafficking. Under Salinas, “it suffices that he adopt
the goal of furthering or facilitating the criminal endeavor.”
Salinas, 522 U.S. at 65. Fiander was “ ‘aware of the essential
nature and scope of the enterprise and intended to participate
in it.’ ” Fernandez, 388 F.3d at 1230 (quoting Howard v. Am.
Online Inc., 208 F.3d 741, 751 (9th Cir. 2000)). This leads to
the somewhat anomalous result that, although Fiander may
not be prosecuted for a substantive violation of the CCTA
because of his status as a member of the Yakama Nation, he
may be prosecuted for a RICO conspiracy in which the racke-
teering activity is contraband cigarette trafficking. Nonethe-
less, this conclusion is consistent with Salinas and well-
established conspiracy law.

   “It is elementary that a conspiracy may exist and be pun-
ished whether or not the substantive crime ensues, for the
conspiracy is a distinct evil, dangerous to the public, and so
punishable in itself.” Salinas, 522 U.S. at 65; see also United
States v. Feola, 420 U.S. 671, 693 (1975) (discussing the val-
ues served by conspiracy law, including “protection of society
from the dangers of concerted criminal activity”). Thus, we
have held that a conspiracy conviction may be sustained even
where the goal of the conspiracy is impossible. See, e.g.,
Rodriguez, 360 F.3d at 957 (where “the conspiracy arose out
of a federal law enforcement sting operation, . . . the non-
existent status of the target drug traffickers [was] inapposite”
because “[i]mpossibility is not a defense to [a] conspiracy
charge”); United States v. Bosch, 914 F.2d 1239, 1241 (9th
Cir. 1990) (rejecting the defendant’s argument that, because
the undercover agent never actually possessed cocaine, it was
“legally impossible . . . to conspire to aid and abet a nonexis-
tent offense”); United States v. Everett, 692 F.2d 596, 599
(9th Cir. 1982) (rejecting the defense of legal impossibility to
a conspiracy charge where the conspiracy was with an under-
cover agent).
                    UNITED STATES v. FIANDER               14851
   Our sister circuits are in accord. See, e.g., United States v.
Yang, 281 F.3d 534, 542 (6th Cir. 2002) (rejecting the defen-
dants’ argument that they could not be guilty of conspiring to
steal something that was not a trade secret, reasoning that “the
basis of the conspiracy charge is the agreement to commit the
unlawful act,” so it was “ ‘irrelevant that the ends of the con-
spiracy were from the very inception of the agreement objec-
tively unattainable’ ” (quoting United States v. Hsu, 155 F.3d
189, 203 (3d Cir. 1998))); United States v. Rodriguez, 215
F.3d 110, 116 (1st Cir. 2000) (in a drug importation conspir-
acy case, stating that “[t]he crime is the illegal agreement; if
there was such an agreement, it does not matter that the pur-
pose of the agreement was not achieved, or even that achiev-
ing that purpose was factually impossible”); United States v.
Trapilo, 130 F.3d 547, 552 n.9 (2d Cir. 1997) (stating that
where “an indictment alleges conspiracy, legal impossibility
affords a conspirator no defense” because the “ ‘crime of con-
spiracy is complete upon the agreement to violate the law’ ”
(quoting Everett, 692 F.2d at 600)).

   A situation similar to that presented here was addressed by
the Sixth Circuit. In United States v. Saadey, 393 F.3d 669
(6th Cir. 2005), the defendant was charged with conspiracy to
violate RICO through a pattern of racketeering activity con-
sisting of extortion in violation of state law. The Sixth Circuit
agreed with the defendant that the conduct charged could not
be “a predicate offense because it does not satisfy . . . the ele-
ments of extortion” under state law. Id. at 676. Nonetheless,
the court reasoned that “conviction on a charge of RICO con-
spiracy does not require the government to prove that any
predicate act was actually committed at all,” and that the fact
that the conduct charged could not constitute a predicate
offense accordingly was “immaterial” to the conviction. Id. at
677.

  [7] Similar to Saadey, where the conduct charged could not
constitute a substantive RICO offense because it did not
amount to extortion, Fiander cannot be charged with a sub-
14852                 UNITED STATES v. FIANDER
stantive RICO offense based on the CCTA. Nonetheless,
Saadey relied on Salinas to reason that, because the defendant
was charged with RICO conspiracy rather than a substantive
RICO violation, the government was not required to prove
that any predicate act of racketeering activity was committed
at all. Similarly, Fiander can be charged with RICO conspir-
acy even though he cannot be prosecuted for a substantive
RICO offense based on the CCTA. See United States v. Rabi-
nowich, 238 U.S. 78, 86 (1915) (“A person may be guilty of
conspiring, although incapable of committing the objective
offense.”); Smith v. Berg, 247 F.3d 532, 537 (3d Cir. 2001)
(“Salinas makes clear that § 1962(c) liability is not a prerequi-
site to § 1962(d) liability.”) (internal quotation marks omit-
ted); United States v. Tille, 729 F.2d 615, 619 (9th Cir. 1984)
(“Proof of an agreement the objective of which is a substan-
tive violation of RICO (such as conducting the affairs of an
enterprise through a pattern of racketeering) is sufficient to
establish a violation of section 1962(d).”).

    [8] Fiander’s coconspirators agreed to commit violations of
the CCTA that are indictable as substantive RICO offenses.
The indictment sufficiently alleges that Fiander knew of and
agreed to facilitate the objective of the RICO conspiracy and
it, therefore, should not have been dismissed. Our conclusion
that the government can prosecute Fiander for RICO conspir-
acy even though it cannot prosecute him for the substantive
RICO offense of violating the CCTA is consistent with Sali-
nas and with the goal of conspiracy law to address the “dis-
tinct evil” of a conspiracy to engage in a criminal enterprise.
Salinas, 522 U.S. at 65. Fiander’s agreement to facilitate the
commission of contraband cigarette trafficking by others
whose acts are indictable under the CCTA is chargeable under
§ 1962(d) for a RICO conspiracy.5 We therefore reverse the
order of the district court dismissing the indictment and
  5
    We do not address a situation in which a conspiracy exists only among
tribal members of the Yakama Nation.
                  UNITED STATES v. FIANDER   14853
remand for further proceedings.

  REVERSED and REMANDED.
