United States v. Haggerty, 997 F.3d 292

On Columbus Day 2017, Justin Haggerty poured red paint on a statue honoring women of the Yselta Del Sur (Tigua) Indian Tribe on reservation land in El Paso County, Texas, and placed a wooden cross before it.
The tribe purchased the statue for $92,000; repair after the vandalism cost $1,800. Law enforcement connected Haggerty to the paint and wood purchases.
Haggerty was indicted under 18 U.S.C. §§ 1152 and 1363, proceeded to a stipulated‑facts bench trial, and was convicted; sentenced to 12 months and one day, plus three years supervised release.
At sentencing the court applied U.S.S.G. § 2B1.5 (cultural heritage resource) and increased the offense level based on the statue’s $92,000 purchase price, producing a Guidelines range of 12–18 months.
On appeal Haggerty raised two issues: (1) whether the government had to prove his non‑Indian status as an element under § 1152 (sufficiency challenge), and (2) whether the Guidelines enhancement should have used the $1,800 repair cost rather than the $92,000 commercial value.
The Fifth Circuit affirmed: (1) a defendant’s Indian status is an affirmative defense (defendant must plead and produce evidence, government retains ultimate burden), and (2) the district court permissibly used the statue’s commercial value under § 2B1.5.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendant’s Indian/non‑Indian status is an essential element of offenses prosecuted under § 1152	The United States: § 1152’s exceptions are affirmative defenses; government need not allege defendant is non‑Indian but retains ultimate burden to prove jurisdictional element	Haggerty: Non‑Indian status is an essential element that the Government must allege and prove; absence of proof of his non‑Indian status renders conviction unsupported	Held: Defendant’s Indian status is an affirmative defense (defendant bears pleading and production burdens); government retains ultimate burden of persuasion; because Haggerty did not raise it, conviction stands
Proper measure of “value” under U.S.S.G. § 2B1.5 for cultural heritage resource	The United States: commercial value (here the $92,000 purchase price) is a reasonable estimate of fair market value and may be used; Guidelines permit inclusion of commercial value and repair cost	Haggerty: Where a non‑archaeological resource is restored to prior condition, sentencing should use repair cost ($1,800) rather than total commercial value	Held: Court affirmed use of commercial value; § 2B1.5 allows consideration of commercial value, archaeological value, and repair cost and does not prioritize repair cost over commercial value; district court’s finding was not clearly erroneous

Hall v. United States, 286 F.2d 676 (5th Cir. 1960) (bench‑trial sufficiency‑preservation rule criticized in concurrence)
United States v. Hester, 719 F.2d 1041 (9th Cir. 1983) (held defendant’s Indian status is affirmative defense)
United States v. Prentiss, 256 F.3d 971 (10th Cir. 2001) (en banc) (held Indian/non‑Indian status are elements the government must allege and prove)
United States v. Brace, 145 F.3d 247 (5th Cir. 1998) (en banc) (preservation and subissue‑preservation principles)
Torres v. Lynch, 136 S. Ct. 1619 (2016) (distinguishing substantive and jurisdictional elements)
McKelvey v. United States, 260 U.S. 353 (1922) (exceptions in separate clause construed as affirmative defenses)
Lucas v. United States, 163 U.S. 612 (1896) (Government bears burden to prove victim’s non‑Indian status when contested)
Smith v. United States, 151 U.S. 50 (1894) (same principle regarding government’s burden to prove victim’s non‑Indian status)