FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 07-30251 Plaintiff-Appellant,

D.C. No.

v.  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
COUNSEL

Jane M. Kirk, Assistant United States Attorney, Yakima,

Washington, for the plaintiff-appellant. 

Jack W. Fiander, Towtnuk Law Offices, Ltd., Yakima, Washington, 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

UNITED STATES v. FIANDER 14841
defendants in a multi-count indictment with numerous violations related to trafficking in contraband cigarettes. The

charges included violations of the Contraband Cigarette Trafficking Act (“CCTA”), 18 U.S.C. § 2342(a); conspiracy to

violate the CCTA, 18 U.S.C. §§ 2, 371, and 2342(a); conspiracy to violate the Racketeer Influenced and Corrupt Organizations 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 cigarettes between Idaho and Washington. Louie Mahoney owned

and operated JKL Enterprises on the Coeur d’Alene Indian

14842 UNITED STATES v. FIANDER
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 Washington 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 cigarettes 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 evidence 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 cigarettes to evidence payment of cigarette taxes, and

which are in the possession of any person other than

a person otherwise authorized to possess such cigarettes. 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 taxexempt. Wash. Rev. Code §§ 82.24.030(1) & (2). It is illegal

to transport unstamped cigarettes in the state unless authorized to possess unstamped cigarettes. Wash. Rev. Code

§ 82.24.250. 

[A] “person authorized . . . to possess unstamped

cigarettes” means: 

UNITED STATES v. FIANDER 14843
(a) A wholesaler, licensed under Washington state

law; 

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

(c) Any person, including an Indian tribal organization, 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 necessary 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 Washington 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 unauthorized under state law and contraband under the CCTA

14844 UNITED STATES v. FIANDER
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 exceptions. United States v. Baker, 63 F.3d 1478, 1484 (9th Cir.

1995). One exception is that, if a statute of general applicability “is silent on the issue of applicability to Indian tribes,” it

will not apply if its application would “ ‘abrogate rights guaranteed 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 general 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 Washington. 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 YakaUNITED STATES v. FIANDER 14845
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 prenotification requirement that was addressed in Smiskin. Thus,

pursuant to Smiskin, Fiander cannot be prosecuted for a substantive 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 nonetheless 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:

1The 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). 

2The 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. 

14846 UNITED STATES v. FIANDER
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 commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs

through a pattern of racketeering activity or collection 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 committed a substantive violation of § 1962(c) by accepting two or

more bribes. Id. at 62-63. The jury acquitted him of the substantive 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 conspirator to “do any act to effect the object of the conspiracy,” 18

U.S.C. § 371. 

UNITED STATES v. FIANDER 14847
The Court then discussed principles of conspiracy law, stating 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.” Salinas, 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 conspiracy provision an actor who does not himself

commit or agree to commit the two or more predicate 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 substantive 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 sufficient 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

14848 UNITED STATES v. FIANDER
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 committed 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 trafficking. 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 payment 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. 

4The 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). 

UNITED STATES v. FIANDER 14849
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 racketeering activity is contraband cigarette trafficking. Nonetheless, this conclusion is consistent with Salinas and wellestablished conspiracy law. 

“It is elementary that a conspiracy may exist and be punished 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 values 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 nonexistent 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 nonexistent 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 undercover agent). 

14850 UNITED STATES v. FIANDER
Our sister circuits are in accord. See, e.g., United States v.

Yang, 281 F.3d 534, 542 (6th Cir. 2002) (rejecting the defendants’ 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 conspiracy were from the very inception of the agreement objectively 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 conspiracy case, stating that “[t]he crime is the illegal agreement; if

there was such an agreement, it does not matter that the purpose of the agreement was not achieved, or even that achieving 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 conspiracy 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 consisting 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 elements of extortion” under state law. Id. at 676. Nonetheless,

the court reasoned that “conviction on a charge of RICO conspiracy 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 subUNITED STATES v. FIANDER 14851
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 conspiracy even though he cannot be prosecuted for a substantive

RICO offense based on the CCTA. See United States v. Rabinowich, 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 prerequisite to § 1962(d) liability.”) (internal quotation marks omitted); United States v. Tille, 729 F.2d 615, 619 (9th Cir. 1984)

(“Proof of an agreement the objective of which is a substantive 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 conspiracy even though it cannot prosecute him for the substantive

RICO offense of violating the CCTA is consistent with Salinas and with the goal of conspiracy law to address the “distinct 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

5We do not address a situation in which a conspiracy exists only among

tribal members of the Yakama Nation. 

14852 UNITED STATES v. FIANDER
remand for further proceedings. 

REVERSED and REMANDED.

UNITED STATES v. FIANDER 14853