Swinomish-Licensed Smokes Sellers Prevail (In Part) in the Ninth Circuit on CCTA Charges

Here are the materials in United States v. Wilbur:

CA9 Opinion (per Judge W. Fletcher, with partial dissent by Judge Rawlinson)

Wilbur Opening Brief

Federal Answering Brief

Wilbur Reply Brief

An excerpt:

For the reasons that follow, we agree with the Wilburs that during the period from 2003 to 2005, when they were licensed to sell tobacco by the Swinomish Tribe, there were no “applicable State or local cigarette taxes” under the CCTA. We also agree with the Wilburs that the five-year statute of limitations for CCTA violations bars any charges based on activity from 1999 to 2003. We conclude, however, that after their tribal tobacco license expired in 2005, the Wilburs’ activities ceased to be covered by the Swinomish cigarette tax contract (“CTC”), and that the state’s retrocession therefore ceased to apply. The unstamped cigarettes the Wilburs transported and sold during this period were thus “contraband” under the CCTA. We reject the Wilburs’ due process and treaty arguments.