                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                               January 10, 2008
                                     PUBLISH                 Elisabeth A. Shumaker
                                                                 Clerk of Court
                     UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                    No. 07-6061

 SHAN GACHOT,

          Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Western District of Oklahoma
                          (D.C. No. CR-06-178-01-RAW)


Submitted on the briefs: *

Linda A. Epperley, Office of the United States Attorney, Muskogee, Oklahoma
for the Plaintiff–Appellee.

Robert W. Buchholz, Robert W. Buchholz, LLC, Addison, Texas for the
Defendant–Appellant.



Before TACHA, MCKAY, and LUCERO, Circuit Judges.


LUCERO, Circuit Judge.



      *
       At the parties’ request, the case is unanimously ordered submitted without
oral argument pursuant to Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G).
      Shan Gachot appeals his conviction following entry of a guilty plea to

operating an illegal gambling business in violation of 18 U.S.C. § 1955. He

contends that the district court lacked jurisdiction over two counts in an original

indictment, later superceded by an information alleging a different crime. We

consider two issues: May Gachot raise a jurisdictional challenge to the dismissed

indictment, and did the district court have jurisdiction over the crime to which

Gachot pleaded guilty. We conclude that the first issue is moot and that the

second lacks merit. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM

Gachot’s conviction.

      On August 1, 2006, a federal grand jury indicted Gachot, a member of the

Kiowa Indian tribe, on three separate counts stemming from his involvement in

the operation of a cockfighting facility within Indian Country land in Caddo

County, Oklahoma. The first two counts of the indictment were based on

Oklahoma state law, which criminalizes the keeping of a place of cockfighting,

and servicing or facilitating a cockfight. See Okla. Stat. tit. 21, §§ 1692.3-

1692.4. According to the indictment, the federal government asserted the

authority to enforce these crimes in Indian Country via the Indian Country Crimes

Act (“ICCA”), 18 U.S.C. §§ 1151 & 1152, and the Assimilative Crimes Act




                                         -2-
(“ACA”), 18 U.S.C. § 13. 1 The third count of the indictment was based solely on

federal law and alleged that Gachot had sponsored or exhibited an animal in an

animal fighting venture. See 7 U.S.C. § 2156.

      After pleading not guilty to all counts, Gachot moved to dismiss the

indictment for lack of jurisdiction. Citing the “Indian against Indian exception”

to the ICCA, 18 U.S.C. § 1152, Gachot contended that the government cannot

prosecute victimless crimes committed by Indians in Indian Country, and that the

district court thus lacked jurisdiction. After a hearing on the issue, the district

court rejected Gachot’s argument and denied the motion to dismiss. Five days

later, Gachot and the government reached a plea agreement. Pursuant to the

agreement, the government dismissed the original indictment in exchange for

Gachot’s plea of guilty to a one count information alleging that he had operated

an illegal gambling business in violation of 18 U.S.C. § 1955. Based on the plea

agreement, the information was filed, Gachot pleaded guilty to the information,

and the district court sentenced Gachot to one year of probation. Gachot brings

this timely appeal. 2

      1
        The ICCA extends federal criminal law to Indian territories, and the ACA
assimilates state criminal law into federal law for the purposes of federal enclaves
and territories. See 18 U.S.C. §§ 13(a) & 1152.
      2
        Gachot filed his notice of appeal on February 28, 2007, which was after
the district court’s announcement of the sentence but fifteen days before its entry
of judgment. Despite his premature filing, however, we have jurisdiction to hear
the case. See Fed. R. App. P. 4(b) (“A notice of appeal filed after the court
announces a decision, sentence, or order—but before the entry of a judgment or

                                         -3-
      Gachot presents only one argument: The district court lacked jurisdiction

over the original indictment. To this end, Gachot discusses at length the details

and history of Indian sovereignty and the ICCA. He raises, however, no

arguments directly related to the district court’s jurisdiction pursuant to 18 U.S.C.

§ 1955, the statute under which he was actually convicted. Because the

indictment that Gachot challenges was dismissed at the time Gachot entered his

guilty plea, his arguments as to the original indictment are entirely moot. 3 See

United States v. Powers, 168 F.3d 943, 948 (7th Cir. 1999) (refusing to consider

arguments related to a superceded indictment); United States v. Reed, 167 F.3d

984, 994 (6th Cir. 1999) (holding that the dismissal of contested counts in an

indictment mooted the defendants’ challenges to them); cf. Menna v. New York,

423 U.S. 61, 63 (1975) (“Where the State is precluded . . . from haling a

defendant into court on a charge, federal law requires that a conviction on that

charge be set aside even if the conviction was entered pursuant to a counseled

plea of guilty.”) (emphasis added).




order—is treated as filed on the date of and after the entry.”); see also United
States v. Green, 847 F.3d 622 (10th Cir. 1988) (en banc) (holding that a notice of
appeal filed before final judgment was entered in a criminal case is sufficient to
confer jurisdiction in this court).
      3
        We do not decide here whether Gachot could have preserved his challenge
to the district court’s jurisdictional ruling by entering a conditional guilty plea
pursuant to Fed. R. Crim. P. 11(a)(2).

                                         -4-
      We recognize, of course, that Gachot cannot waive a challenge to the

district court’s jurisdiction over a crime to which he actually pleaded. See United

States v. Broce, 488 U.S. 563, 569 (1989). Thus, although Gachot does not

present arguments regarding § 1955, we remain mindful of our “oblig[ation] to

inquire sua sponte whenever a doubt arises as to the existence of federal

jurisdiction.” Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977).

We have no such doubt. Section 1955 is a nationally applicable federal criminal

statute predicated on the Commerce Clause, see United States v. Boyd, 149 F.3d

1062, 1065-66 (10th Cir. 1998), and, unlike the ICCA, it contains no exceptions

related to crimes committed in Indian Country.

      Because the “[ICCA] and its exceptions do not extend or restrict the

application of general federal criminal statutes to Indian reservations,” Gachot’s

arguments regarding the ICCA, even if valid, have no bearing on the jurisdiction

of a federal court under § 1955. United States v. Drapeau, 414 F.3d 869, 878 (8th

Cir. 2005); see also United States v. Mitchell, 502 F.3d 931 (9th Cir. 2007)

(“[B]y virtue of decisional law, federal court jurisdiction extends to intra-Indian

violations of federal criminal laws of general, nationwide applicability.”); United

States v. Barquin, 799 F.2d 619, 621 (10th Cir. 1986) (accepting that “tribal

members are subject to general federal criminal statutes unless a particular Indian

right or policy is infringed by enforcement of the law”); United States v. Burns,

725 F. Supp. 116, 121 (N.D.N.Y. 1989) (section 1955 applies to Indian

                                        -5-
reservations “of [its] own accord”); United States v. Menominee Indian Tribe of

Wis., 694 F. Supp. 1373, 1375 (E.D. Wis. 1988) (section 1955 applies to Indian

Country even though it incorporates state law by reference).

      AFFIRMED.




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