Lead Opinion
On Nоvember 23, 1996, a jury found the defendant, Ricco Prentiss, guilty of one count of arson in violation of 18 U.S.C. §§ 81 and 1152. In this appeal, Mr. Pren-tiss raises the following six arguments: (1) the district court lacked subject matter jurisdiction because the government failed to allege or establish, as a prerequisite to federal jurisdiction, the Indian or non-Indian status of the defendant and victim; (2) the indictment was insufficient because it failed to allege his Indian or non-Indian status and the Indian or non-Indian status of the victim; (3) there was insufficient evidence in this case to support his conviction because the government failed to prove the Indian or non-Indian status of the defendant or victim; (4) the district court erroneously allowed the government to mischaracterize evidence and appeal to gender bias in closing arguments; (5) the district court erred in giving an Allen instruction that did not refer to the government’s burden of proof; and (6) the district court erred when it required Mr. Prentiss to pay restitution for the burned dwelling.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and find that Mr. Prentiss’s indictment was insufficient because it failed to allege the Indian or non-Indian status of the defendant and victim, essential elements of a conviction for arson under 18 U.S.C. §§ 81 and 1152. Because the conviction was based upon an indictment which failed to allege an essential element, it violated Mr. Prentiss’s Fifth Amendment right to be tried upon charges found by a grand jury. Accordingly, we vacate Mr. Prentiss’s conviction.
I. BACKGROUND
Mr. Prentiss and his wife of seven years, Cynthia Dórame, lived in a home owned by Domingo Vigil. In the early morning hours of November 23, 1996, firefighters responded to a fire at Mr. Vigil’s house, located on the Tesuque Indian Pueblo in Indian country. When firefighters arrived on the scene, Mr. Prentiss was home caring for his three young children and the two children of a family friend, Karen Cata. Eventually, the fire was extinguished.
Immediately upon extinguishing the fire, the firefighters became suspicious about its origin. Testimony established that in basic firefighting courses, a firefighter learns that one rarely finds fires in multiple locations within a single building. See Rec. vol. Ill, at 166. In this case, firefighters encountered two “virtually identical” fires in the closets of two separate, non-adjacent back bedrooms. Id. Each fire consisted of a pile of clothing approximately two-and-a-half feet high with flames flickering one-and-a-half feet in height. The fires burned only on the surface of the piles of clothing, so firefighters
Upon further investigation, firefighters discovered additional suspicious circumstances regarding the cause of the fire. They noticed a hole in the wall of a hallway, approximately four to five feet above the floor and directly above an electrical wall outlet. See id. at 175, 266. Immediately above the hole, a line of soot extended toward the ceiling. The fire investigator testified that the line of soot evinced direct flame impingement, as though someone had held a series of matches in the hole. See id. at 273-75. The electrical wall outlet below the hole also showed evidence of soot patterns reflecting flame impingement. See id. at 270-71. Fire investigators found several burned matches in the wall on top of the electrical outlet box. See id. at 176, 273-75. The outlet showed no sign of the sparking and arcing that one would have expected had the electrical socket itself failed. See id. at 274-75.
After the fire was extinguished, Mr. Prentiss made several inconsistent statements to firefighters. For example, the government presented evidence that Mr. Prentiss told fire investigators that he was watching a boxing match on HBO immediately before the fire. See Rec. vol. Ill, at 177, 228. However, records from HBO revealed that the boxing match had ended approximately two hours before the fire was reported. See id. at 178, 314-15.
Mr. Prentiss was indicted for one count of arson on June 4, 1997, and the case went to trial on October 30, 1997. At trial, the government argued that Mr. Prentiss attempted to start a fire in the wall socket and disguise it as a problem in the house’s electrical system, and that, failing at this attempt, he started fires in the closets.
At the close of the government’s case-in-chief, the parties stipulated that Mr. Vigil’s home was located within the exterior boundaries of the Tesuque Indian Pueblo, north of Santa Fe, New Mexico, and that Mr. Vigil was a member of the Tesuque Pueblo. The court read the following stipulations to the jury:
The residence located at Route 11, Box 50 TP Tesuque Pueblo, New Mexico, [at] which [the] Defendant Ricco Devon Prentiss resided on November 22 and 23, 1996, is within the confines of the Tesuque Pueblo in Indian Country.
[T]he above described residence [is] owned by Domingo Vigil who is a member of the Tesuque Pueblo.
Id, at 327.
After the defense presented its case, arguing that one of the children started the fires, the jury heard closing arguments. The government asked the jury to infer that Mr. Prentiss’s motive for committing arson was his frustration with the lack of control over his own life. Mr. Prentiss, the government urged, burned the house because of this frustration and to elicit attention. See Rec. vol. IV, at 520-23.
The case was submitted to the jury at the conclusion of the two-day trial. After approximately seven hours of deliberatiоn over two days, the jury indicated it would be unable to reach a unanimous verdict. See Rec. vol. I (Pleadings), doc. 49. The district judge conferred with counsel, then gave the jury an Allen charge, instructing the jury to continue with deliberations (without surrendering honest conviction) and attempt to arrive at a verdict. See Rec. vol. I (Trial Transcript), at 4-6; Allen v. United States,
II. ANALYSIS
Mr. Prentiss presents his first two arguments — lack of subject matter jurisdiction and sufficiency of the indictment — as separate issues. However, the underlying assertion is the same for each issue: the indictment failed to allege Mr. Prentiss’s Indian or non-Indian status and the Indian
A. Sufficiency of Indictments Generally
We review a challenge to the sufficiency of an indictment de novo. See United States v. Dashney,
Accordingly, we have held that “[a]n indictment is sufficient if it contains the elements of the offense charged, putting the defendant on fair notice of the charges against which he must defend, and if it enables a defendant to assert [a double jeopardy defense].” United States v. Poole,
First, it informs the defendant of the nature and cause of the accusation as required by the Sixth Amendment of the Constitution. Second, it fulfills the Fifth Amendment’s indictment requirement, ensuring that a grand jury only return an indictment when it finds probable cause to support all the necessary elements of the crime.
Gayle,
it is not enough that the grand jury concludes that the defendant should be prosecuted for violating a particular statute; rather, the indictment must also allege every element of the offense. Only in this way is any assurance furnished that the grand jury found probable cause to believe that the defendant in fact committed acts constituting the offense in question.
United States v. Deisch,
To be sufficient, an indictment must allege each material element of the offense; if it does not, it fails to charge that offense. This requirement stems from one of the central purposes of an indictment: to ensure that the grand jury finds probable cause that the defendant has committed each element of the offense, hence justifying a trial, as required by the Fifth Amendment.
United States v. Cabrera-Teran,
Mr. Prentiss challenges the sufficiency of his indictment after a jury found him guilty of arson. “[Ajfter a verdict or plea of guilty, every intendment must be indulged in support of the indictment or information and such a verdict or plea cures mere technical defects.... ” Clay v. United States,
Reviewing the indictment in this case, the government does not argue that the indictment contains “words of similar import,” Brown,
For the reasons set forth below, we hold that the Indian status of the defendant and victim are essential elements under 18 U.S.C. § 1152, which must be alleged in the indictment and established by the government at trial. Because Mr. Prentiss’s indictment did not allege these elements, it is insufficient. Mr. Prentiss was, therefore, deprived of his Fifth Amendment right to a grand jury finding of all elements of the charged offense.
B. The Indian Status of the Defendant and Victim are Essential Elements under 18 U.S.C. § 1152.
The statute at issue in this case is the “Indian Country Crimes Act,” codified at 18 U.S.C. § 1152.
Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to Indian Country.
This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.
18 U.S.C. § 1152. Further, contrary to the express language of the statute, the Supreme Court, interpreting the predecessor of the Indian Country Crimes Act,
Federal criminal jurisdiction is limited by federalism concerns; states retain primary criminal jurisdiction in our system. See U.S. Const, amend. X. Accordingly, resolution of whether the Indian status of the defendant and victim are elements or exceptions requires an analysis of the interaction between 18 U.S.C. § 81, which defines the crime of arson under federal law, 18 U.S.C. § 7, which defines the special maritime and territorial jurisdiction of the United States, and 18 U.S.C. § 1152. Analyzing these federal criminal statutes, it is apparent that, in order to state a crime under 18 U.S.C. § 1152, the government must allege more than that the crime occurred within Indian country.
Title 18 U.S.C. § 81, the statute under which Mr. Prentiss was charged, makes it a crime, “within the special maritime and territorial jurisdiction of the United States ... [to] willfully and maliciously set[ ] fire to or burn[ ], or attempt[ ] to set fire to or burn any building.” Under this statute, the fact that the crime occurred within the jurisdiction of the United States is an element of the crime that must be alleged in the indictment and established at trial.
Generally, 18 U.S.C. § 7, which defines the special maritime and territorial jurisdiction of the United States, provides the specific jurisdictional element the government must allege and prove in order to establish federal jurisdiction. Accordingly, under § 7, the government must establish the essential jurisdictional element, e.g., that the federal crime occurred in a federal prison or on a federal military installation. See United States v. Roberts,
However, Indian country is not simply a “place within the sole and exclusive jurisdiction of the United States,” and 18 U.S.C. § 7 does not extend federal jurisdiction to crimes committed in Indian country. See, e.g., United States v. Wheeler,
Although the first paragraph of § 1152 appears to broadly grant complete and exclusive federal jurisdiction over Indian country, the coverage of § 1152 is far more limited than the first paragraph suggests. For crimes involving Indians, Congress was forced to consider the competing interests of three sovereigns — the United States, the Indian tribes, and the states. Thus, respecting tribal sovereignty, Congress extended federal jurisdiction under § 1152 only to areas it believed implicated its own sovereignty, leaving state sovereignty matters to the states and tribal sovereignty matters to the tribes.
These concerns are reflected by the Supreme Court’s holding in United States v. McBratney,
Accordingly, under § 1152, contrary to the language of the statute but consistent with constitutional, sovereignty, and trustee concerns, crimes within Indian country that did not involve an Indian are, therefore, state crimes, see, e.g., McBratney,
This holding is consistent with the Supreme Court’s historical treatment of 18 U.S.C. § 1152 in cases stating that the government must prove the Indian status of the defendant and victim. The Supreme Court has referred in passing to the Indian status of the defendant and victim as “exceptions.” However, when specifically speaking to the issue, the Court has expressly stated that the government has the burden of proving thе Indian status of the defendant and victim.
For example, in Smith v. United States,
Relying on these cases, circuit courts have held that the Indian status of the defendant and victim are essential elements that must be alleged in the indictment. For example, in United States v. Torres,
The court held that “[i]n order to prosecute under 18 U.S.C. § 1152, the Government must prove, as a jurisdictional requisite, that the crime was in violation of a federal enclave law, and that the crime occurred between an Indian and a non-Indian within Indian country.” Id. at 454. Specifically, the court ruled “it is apparent that for purposes of 18 U.S.C. § 1152, the jury must determine, as a question of fact, the victim’s status as an Indian or non-Indian.” Id. at 457. The court noted past confusion about whether the Indian status of the defendant and victim are elements, and corrected its past reference to the Indian status of the defendant and victim as defenses:
In United States v. Sosseur,181 F.2d 873 , 875 (7th Cir.1950), this court referred to the three exceptions contained in the second paragraph of 18 U.S.C. § 1152 as “defenses.” Though the use of the term “defenses” appears to confuse the burden of proof on the issue of nonlndian status under 18 U.S.C. § 1152, the court cleared that confusion when it later, in the same opinion, referred to the three exceptions as “three conditions.” Indeed, for purposes of 18 U.S.C. § 1152, the Government must satisfy the first “condition” and prove that the “crime was interracial.” F. Cohen, Handbook of Federal Indian Law, 301 n. 157 (1982). See also United States v. Wheeler,435 U.S. at 324-25 ,98 S.Ct. at 1086-87 .9
Similarly, in United States v. Heath,
Further, the conclusion that the Indian status of the defendant and victim are essential elements of a § 1152 conviction is consistent with other federal criminal statutes which have essential jurisdictional elements. See, e.g., United States v. Spinner,
The government argues that if it is required to prove the Indian status of the defendant, the requirement would “abruptly halt almost all prosecutions of non-IndF ans whо commit crimes against Indians in Indian country.” Aple’s Br. at 7. It contends that the government will be in the “untenable, if not impossible, position of having to prove a negative beyond a reasonable doubt.” Id. We are not, persuaded by this argument. Our review of the cases suggests that the government typically, alleges and proves the inter-raciality of the offenses charged and tried under § 1152. Such a review also reveals a substantial history of successful prosecutions pursuant to the statute. Where the indictments contain the Indian status of the defendant and victim, prosecutions within Indian country have not “abruptly hault[ed].” See, e.g., United States v. Romero,
Aside from the fact that the indictment in this, case fails to allege the Indian status of both, the defendant and the victim, the government’s argument implies that the prosecution is never required to prove a negative. However, the government is, on occasion, required to prove a negative at trial. See, e.g., 8 U.S:C. § 1326 (criminalizing the re-entry into the United States after deportation and thereby requiring the government to prove a negative: that the defendant did not receive permission to fe-enter the United States from the Attorney General); United States v. Martinez-Morel,
We acknowledge that there is some support for the government’s argument that the Indian status of the defendant and victim are exceptions to the federal court’s jurisdiction, rather than elements. As the government notes, in United States v. Hester,
Relying on McKelvey v. United States,
By repeated decisions it has come to be a settled rule in this jurisdiction that an indictment or other pleading founded on a general provision defining the elements of an offense, or оf a right conferred, need not negative the matter of an exception made by a proviso or other distinct clause, whether in the same section or elsewhere, and that it is incumbent on one who relies on such an exception to set it up and establish it.
Hester,
We would be guided by the Supreme Court’s assumption in Westmoreland if we thought that it still represented the view of the Supreme Court, but we do not think that it does. We believe that the current view is more accurately reflected in McKelvey.
Hester,
Beyond McKelvey, the court cited a policy reason for reaching its conclusion. The court reasoned that “[i]t is far more manageable for the defendant to shoulder the burden of producing evidence that he is a member of a federally recognized tribe than it is for the Government to produce evidence that he is not a member of any one of the hundreds of such tribes.” Id. at 1043.
We are not persuaded by the reasoning of Hester,
Second, a close reading of McKelvey reveals that it only holds that an exception need not be alleged in an indictment. It does not, however, provide any guidance on how to determine whether a fact is an element or an exception. McKelvey merely notes that an exception may be “in the same section or elsewhere.”
Further, even accepting the court’s presumption in Hester — that the location of the relevant language in a statute provides some guidance on whether a fact is an element or an exception — it is not dispositive of the issue.
Where a statute defining an offence contains an exception, in the enacting clause of the statute, which is so incorporated with the language defining the offence that the ingredients of the offence cannot be accurately and clearly described if the exception is omitted, the rules of good pleading require that an indictment founded upon the statute must allege enough to show that the accused is not within the exception ... as it is universally true that no indictment is sufficient if it does not accurately and clearly allege all the ingredients of which the offense is composed.
(further noting that an indictment that does not allege “every ingredient ... may be quashed on motion, or the judgment may be arrested, or be reversed on error”).
Hester’s formalistic statutory analysis, as well as references by other courts to the Indian status of the defendant and victim as “exceptions,” neglects the complex considerations of sovereignty and guаrdianship Congress faced when drafting the statute. McKelvey addressed a simple situation where a “pleading [is] founded on a general provision defining the elements of an offense, or of a right conferred” with “the matter of an exception made by a proviso or other distinct clause.” McKelvey,
Conversely, 18 U.S.C. § 1152 is a statute which is part of a complex jurisdictional scheme involving the interaction of three statutes: (1) 18 U.S.C. § 81, which defines what would be considered the “common law” elements of arson, adding a jurisdictional element, which is (2) generally defined in 18 U.S.C. § 7 but, in the context of a crime within Indian country, is (3) defined by 18 U.S.C. § 1152, with its tri-sovereignty and federal guardianship concerns. Statutes in pari materia must be construed with reference to each other, see Sullivan v. Finkelstein,
Finally, we question Hester’s policy of shifting the burden of production and requiring a criminal defendant to come fоrward with evidence of his Indian or non-Indian status because it is “uniquely within the defendant’s knowledge.” Such a burden shift in a criminal case raises Fifth Amendment questions. See Patterson v. New York,
Considering these reasons, we decline to adopt Hester. Rather, we adopt the Seventh Circuit’s approach in Toms and hold that the Indian status of the defendant and victim are essential elements under 18 U.S.C. § 1152 that must be alleged in the indictment and established by the prosecution at trial beyond a reasonable doubt. Accordingly, as Mr. Prentiss’s indictment did not allege the Indian status of the defendant or victim and these elements do not otherwise appear by “words of similar import,” we hold that the indictment is insufficient.
C. Harmless Error
The government argues that, assuming that the Indian status of the defendant and victim are elements, we need not reverse Mr. Prentiss’s conviction because the omission of the elements was harmless. The government asserts that the error was harmless because the indictment’s citation of 18 U.S.C. § 1152 fairly appraised Mr. Prentiss of the charges against him. Further, the government argues Mr. Prentiss waived his right to grand jury presentment by stipulating at trial that a victim, Mr. Vigil, was an Indian, thereby making it “an empty and formalistic exercise to send this case back to a grand jury to find probable cause” on this element. Aple’s Br. at 27. Finally, the government argues that the defendant did not suffer any prejudice from the omission because, if the victim is an Indian as stipulated, then federal jurisdiction exists in any event: if the evidence established the defendant is not an Indian, there is federal jurisdiction under 18 U.S.C. § 1152; if the evidence established the defendant is an Indian, there is federal jurisdiction under 18 U.S.C. § 1153.
We first addressed this issue in United States v. Smith,
The court held that the indictment was insufficient, vacating the judgment and verdict entered by the district court and rejecting the government’s argument that the error was harmless.
Nor can we accept the government’s contention that the defect in the ... indictment was harmless since the evidence clearly established the commission of an assault in the case at bar and since there has been no showing of prejudice to the defendant.... [T]he absence of prejudice to the defendant does not cure what is necessarily a jurisdictional defect in the indictment.
Id. at 1242 (emphasis added). Thus, the evidence submitted to the jury that the defendant committed an “assault with intent to rob,” was irrelevant, because the necessary elements of the crime were never presented to a grand jury as required by the Fifth Amendment.
Again, in United States v. Brown,
On appeal, the government argued that the error was harmless because the defendant did not suffer any prejudice as a result of the omission. The court rejected this argument, hоlding that the “failure of the indictment to allege all the essential elements of an offense ... is a jurisdictional defect requiring dismissal” and “[t]he absence of prejudice to the defendant does not cure what is necessarily a substantive, jurisdictional defect in the indictment.” Id. at 1505; see also United States v. Spruill,
These cases demonstrate that the failure to allege an essential element of a crime is a fatal error. While indictments first challenged after trial are reviewed under a more liberal standard, see Clay v. United States,
It is not “an empty and formalistic exercise to send a case back to a grand jury to find probable cause.” Aple’s Br. at 27. At common law, “the most valuable function of the grand jury was not only to examine into the commission of crimes, but to stand between the prosecutor and the accused, and to determine whether the charge was founded upon credible testimony or was dictated by malice or personal ill will.” Hale v. Henkel,
Further, we reject the government’s argument that, because a stipulation to a fact at trial acts as a waiver of the right to a trial by petit jury on the stipulated issue, it also acts as a retroactive waiver of the right to be charged only on facts presented to a grand jury. First, Mr. Prentiss did not stipulate to the Indian status of the defendant, thus the government’s argument, even if correct, would not resolve this case. In any event, “[w]aiver of indictment is an act clothed in formality,” and there is nothing in the record to suggest Mr. Prentiss was “informed of the nature of and the cause for the accusation” and waived his right to a grand jury “knowingly, intelligently and voluntarily.” United States v. Ferguson,
Moreover, we have not found, nor does the government cite, a single case that suggests stipulating to a fact before a petit jury waives the right to be tried only on facts presented to the grand jury. Rather, the cases suggest that the evidence before the petit jury — whether overwhelming evidence of guilt as in Smith or a stipulation as in the present case — does not cure the complete omission of the element in the indictment, because if the element was not presented to a grand jury, there is “nothing for a petit jury to ratify.” Hooker,
The government is correct that “by stipulating to elemental facts, a defendant waives his right to a jury trial on that element.” Aple’s Br. at 27 (quoting United States v. Mason,
III. CONCLUSION
For the reasons set forth above, we find that Mr. Prentiss’s indictment did not allege the essential elements of the charged offense. Mr. Prentiss was, therefore, deprived of his Fifth Amendment right to be tried only on charges presented in an indictment returned by a grand jury. Accordingly, we VACATE Mr. Prentiss’s arson conviction and remand the case for further proceedings. Because we reverse Mr. Prentiss’s conviction based on the sufficiency of his indictment, we need not reach the other issues presented in his appeal.
Notes
. His indictment stales:
18 U.S.C. § 1152: Crime on an Indian Res-
ervation; 18 U.S.C. § 81: Arson.
INDICTMENT
The Grand Jury charges:
On or about the 22nd and 23rd day of November, 1996, within the confines of the Tesuque Pueblo, in Santa Fe County, in the State and District of New Mexico, the Defendant, RICCO DEVON PRENTISS, did willfully and maliciously set fire and attempt to set fire to a dwelling.
In violation of 18 U.S.C. § 1152 and 18 U.S.C. § 81.
Rec. vol. I, doc 1.
. See id. at 1504-05. Brown's holding was not discussed two years later in United States v. Bolton,
We follow Brown because, to the extent that a more recent panel decision conflicts with the standard of review enunciated in prior Tenth Circuit authority, we are bound by the earlier case. See Clymore v. United States,
. The Indian Country Crimes Act is also referred to as the "General Crimes Act” or the "Federal Enclaves Act of 1834.” However, "[d]uring most of its history the statute has had no descriptive title.” Felix S. Cohen’s Handbook of Federal Indian Law 287, n. 50 (Rennard Strickland, et al. eds.1982) (hereinafter Cohen). More importantly, Cohen notes that the various descriptive titles of the statute should not "be read to mean that the Act applies to all crimes in Indian country.” Id. Rather "the Act applies only in limited circumstances, principally to certain interracial crimes.” Id.
. We note that it is technically inaccurate to refer to the jurisdictional limitation of § 1152 as an "interracial” requirement. "Federal regulation of Indian tribes ... is governance of once-sovereign political communities; it is not to be viewed as legislation of a racial group consisting of Indians.” United States v. Antelope, 430 U.S. 641, 646,
.The predecessor to § 1152, R.S. § 2145, provided:
Except as to crimes the punishment of which is expressly provided for in this Title [title 28], the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to Indian Country.
R.S. § 2146 stated:
The preceding section shall not be construed to extend to any Indiаn committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.
In 1875, Section 2146 was amended to add further limit federal jurisdiction to "crimes committed by one Indian against the person or property of another Indian.” Act of Feb.
. We note that the statute places two additional limitations on federal court jurisdiction over Indian country. First, federal jurisdiction under this statute does not extend to any "Indian committing any offense in the Indian country who has been punished by the local law of the tribe.” 18 U.S.C. § 1152. Second, federal jurisdiction does not extend to "any case where treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.” Id. However, as these limitations are not implicated under the facts of this case, we do not address them in this opinion.
. See Robert N. Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through A Jurisdictional Maze, 18 Ariz. L.Rev. 503, 525 n. 102 (1976) (explaining the holding of United States v. Ramsey, 271 U.S. 467, 469,
The authority of the United States under § 2145 [the predecessor of § 1152] to punish crimes occurring within the State of Oklahoma, not committed by or against Indians, was ended by the grant of statehood, [citing McBratney and Draper ]. But authority in respect of crimes committed by or against Indians continued after the admission of the state as it was before ... in virtue of the long-settled rale that such Indians are wards of the nation in respect of whom there is developed upon the Federal Government "the duty of protection, and with it the power.”
Id. at 469,
. The view that crimes between Indians within Indian country are exclusively tribal matters has, to a limited degree, changed. The Indian Major Crimes Act, 18 U.S.C. § 1153, extends federal jurisdiction over fourteen specific offenses committed by Indians in Indian country. The Indian Major Crimes Act "was passed in response to congressional displeasure over the Supreme Court's decision in Ex parte Crow Dog, [
. Torres,
. Hester may be of questionable precedential value, as other Ninth Circuit cases strongly suggest that the Indian and non-Indian status of the defendant and victim are jurisdictional elements that must be alleged in an indictment. Cf. United States v. Heath,
. A legislature cannot, for example, define murder as the unlawful killing of another person and then shift the burden of proof to the defendant to establish that he did not act with malice aforethought, by the simple expedient of placing the element in a separate paragraph and calling it an exception, affirmative defense, or mitigating circumstance. See, e.g., Mullaney v. Wilbur,
. The government concedes that a "defendant does not have the same inherent advantages for establishing the status of the victim.” Aple's Br. at 22 n. 8. "As a practical matter, the government may be in a stronger position to obtain cooperation with the victim or the victim's family for the purpose of proving a victim's status, when relevant. It is reasonable then to require the government ... to prove thе status of the victim.” Id. (emphasis in original).
. 18 U.S.C. 1153 provides that:
Any Indian who commits against the person ... of another Indian or other person any of the following [fourteen major] offenses ... within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.
Thus, 18 U.S.C. § 1153 extends federal jurisdiction over Indian country for fourteen enu
. The dissent would apply the harmless error rule, recently expanded in Neder v. United States,
First, on its face, Neder applies to petit, not grand, juries. Second, an error in a petit jury instruction is "simply an error in the trial process itself,” id. at -,119 S.Ct. at 1833 (quotation marks omitted), which can be assessed in the context of the trial. Conversely, errors in a grand jury indictment allow only a “guess as to what was in the minds of the grand jury at the time. See Russell v. United States,369 U.S. 749 , 770,82 S.Ct. 1038 ,8 L.Ed.2d 240 (1962). Third, the Court focused on whether an error in a petit jury instruction would "necessarily render a trial fundamentally unfair.” Neder, 527 U.S. at -,119 S.Ct. at 1833 . In the insufficient indictment context, the fact that a defendant received a fair trial and suffered no prejudice is "irrelevant.” United States v. Daniels,973 F.2d 272 , 275-76 (4th Cir.1992).
The dissent rightly notes that in an unpublished disposition, the Ninth Circuit distinguished between indictments challenged at trial and those challenged on appeal. See United States v. Woodruff, No. 98-10358,
Further, in a case decided after Neder, the Third Circuit rejected harmless error analysis when the indictment alleged the jurisdictional element in the second count, but failed to do so in the first. See United States v. Spinner,
. Because the victim of Defendant’s crime was an Indian and the crime occurred in Indian country, Defendant is subject to prosecution for arson under 18 U.S.C. § 81, regardless of his status. He is subject to prosecution by way of § 1152 if he is a non-Indian, or § 1153, the Indian Major Crimes Act, if he is an Indian. Section 81, the statute defining the substantive offense of arson, applies under both §§ 1152 & 1153. Thus, how Defendant could be prejudiced because of his status escapes me. See United States v. Heath, 509
Dissenting Opinion
dissenting.
Today, the Cоurt concludes that the Indian status of a defendant and victim are essential elements of the crime of arson under 18 U.S.C. §§ 81 & 1152, which the government must allege in the indictment and prove at trial. Court’s Op. at 965. The Court then concludes that despite a defendant’s failure to timely object to the indictment, the omission of these elements from the indictment “is a fundamental jurisdictional defect that is not subject to harmless error analysis.” Court’s Op. at 974. While the Court’s former conclusion is arguable at best, its latter conclusion, in my opinion, is simply wrong given the recent trend of Supreme Court authority. Accordingly, I dissent.
As the Court duly notes, the Indian Country Crimes Act, 18 U.S.C. § 1152,
Even so, I remain unconvinced that the Government’s failure to specifically allege these elements in the indictment constitutes constitutional error “so intrinsically harmful as to require automatic reversal ... without regard to ... [its] effect on the outcome.” Neder v. United States,
Although Defendant has not waived his right to challenge the indictment, we must liberally construe the indictment in favor of validity because he failed to challenge its sufficiency in the district court. See United States v. Bolton,
[A]fter a verdict ... every intendment must be indulged in support of the indictment ... and such a verdict ... cures mere technical defects unless it is apparent they have resulted in prejudice to the defendant. Prejudice to the defendant is, of course, a controlling consideration in determining whether an indictment ... is sufficient.
Clay v. United States,
Defendant in this case did not challenge the indictment’s sufficiency in the district court. Compare United States v. Du Bo,
Nevertheless, the Court concludes that “ ‘the failure of the indictment to allege all the essential elements of an offense is a jurisdictional defect requiring dismissal’ This type of fundamental defect cannot be cured by the absence of prejudice to the defendant....” Court’s Op. at 965-66 (internal ellipses and citations omitted) (quoting United States v. Brown,
In Neder,
The harmless-error doctrine “ ‘recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial.’ ” Neder,
In a case such as this one, where Defendant did not, and apparently could not, bring forth facts contesting his status as a non-Indian or the victim’s status as an Indian, asking whether the jury verdict would have been the same absent the error does not undermine the Fifth Amendment’s grand jury guarantee. See United States v. Harris, No. 90-5028,
. If Defendant would have challenged the indictment in a timely fashion, I submit the government would have filed a superceding indictment against Defendant correcting the original indictment’s alleged deficiencies and this case would not be before us, at least in its present posture.
. The Court has held other Fifth and Sixth Amendment rights subject to harmless-error analysis. See Arizona v. Fulminante,