United States v. Prentiss

сourt’s denial district AFFIRM We relief. corpus habeas America,

UNITED STATES

Plaintiff-Appellee, PRENTISS, Defendant-

Ricco

Appellant.

No. 98-2040. of Appeals, States Court

Tenth Circuit. 24, 2000.

Feb. (1999) (denying sought pursue legal repeated stays to reme L.Ed.2d issue; dies; opinion of Ste- recognizing Supreme Court has not en certiorari on similar vens, J., ruling legal theory). generally pointing out denial is not dorsed this merits). Florida, - -, Knight (5) the arguments; gender closing bias in- an Allen giving erred in district court govern- refer to that did not struction proof; and dis- burden of ment’s Mr. required court erred when trict restitution for the burned pay Prentiss to dwelling. jurisdiction pursuant to 28 exercise

We Mr. and find that Prentiss’s U.S.C. indictment was insufficient because or allege failed to Indian victim, essen- status of the defendant for un- conviction arson tial elements §§ 81 and 1152. Because der indict- conviction was based allege failed an essential ment which element, Mr. Fifth it violated Prentiss’s Washburn, Assistant United Kevin K. upon charges tried Amendment (John Attorney Kelly, J. grand jury. Accordingly, found brief), Attorney, him on the with vacate Mr. Prentiss’s conviction. New Mexico for Plaintiff- Albuquerque,

Appellee. I. BACKGROUND Keefe, A. Assistant Federal Michael years, Mr. and wife of Prentiss his seven Defender, Albuquerque, New Mexi- Public Dórame, Cynthia lived in a home owned Defendant-Appellant. co for Domingo early morning In the Vigil. firefighters hours November BALDOCK, HENRY, and Before house, fire responded Vigil’s to a at Mr. LUCERO, Judges. Circuit Indian Tesuque located on the Pueblo firefighters arrived country. Indian When HENRY, Judge. Circuit scene, car- on the Mr. was home Prentiss 23, 1996, a jury found On November young three children and the his Prentiss, defendant, guilty Ricco of one friend, family of a Karen two children count arson violation Eventually, the fire extin- Cata. appeal, Pren- §§ 81 Mr. guished. (1) arguments: six following tiss raises fire, Immediately upon subject extinguishing court lacked matter district suspicious government became about firefighters because the failed establish, origin. prerequisite Testimony or to its established allege courses, firefighting firefighter jurisdiction, or non-Indi- basic (2) victim; rarely that one finds in multi- the defendant and learns fires status of single building. within a ple the indictment was insufficient because it locations Ill, or In this fire- failed non-Indian Rec. vol. his “virtually Indian or two identi- fighters status and the non-Indian status encountered (3) victim; separate, there was insufficient cal” fires the closets two non-adjacent Each convic- back bedrooms. support evidence in this case to his pile clothing approxi- government tion failed to fire consisted because mately high feet prove the Indian or non-Indian status of two-and-a-half victim; flickering the district flames one-and-a-half feet erroneously fires burned on the sur- height. court allowed the clothing, firefighters so piles face of appeal to mischaracterize evidence and concluded that no accelerant had been Pueblo. The the following court read stip- used. jury: ulations to the The residence located at investigation, Route

Upon firefighters further Pueblo, Box Tesuque 50 TP suspicious discovered additional circum- New Mexico, cause regarding stances of the fire. [at] [the] Defendant They in the noticed a hole wall of a hall- Ricco Devon Prentiss resided on way, approximately four to five feet above November is with directly the floor and above an electrical Tesuque confines wall outlet. See id. at 266. Immedi- Pueblo in Country. ately hole, a line of above the soot extend- [T]he above described residence ed toward the The fire ceiling. investiga- by Domingo [is] owned Vigil who is tor line testified that the of soot evinced a member the Tesuque Pueblo. direct flame impingement, though some- Id, at 327. one had held a of matches in series the After the presented defense its hole. See id. at 273-75. The electrical arguing that the one of children started wall outlet below the hole also showed fires, the jury heard closing argu- evidence of patterns reflecting soot flame ments. government The asked the jury to impingement. at 270-71. See id. Fire infer that Mr. Prentiss’s motive for com- investigators found several burned mitting arson was his frustration with the top matches in the wall on the electrical lack of control his own over life. Mr. 176, outlet box. at See id. 273-75. The Prentiss, government urged, burned outlet sign sparking showed no and the house because of this frustration and arcing that one have expected would had IV, to elicit attention. Rec. vol. at the electrical itself socket failed. See id. 520-23. at 274-75.

After the case was submitted to the extinguished, jury fire was Mr. at two-day Prentiss made conclusion of the trial. several inconsistent state- After ments to For firefighters. example, approximately seven hours of deliberation government over presented days, jury evidence that Mr. two indicated it would investigators Prentiss told fire he was be unable to reach a unanimous verdict. watching a boxing (Pleadings), match HBO immedi- See Rec. vol. I doc. 49. The ately Ill, before See Rec. counsel, the fire. vol. at judge district with conferred then However, records from gave HBO jury charge, instructing Allen boxing revealed that the match had ended jury continue deliberations (without approximately conviction) two hоurs before the fire surrendering honest reported. was See id. 314-15. attempt and at a to arrive verdict. See (Trial 4-6; Transcript), Rec. vol. I Al- Mr. Prentiss indicted for one count len United of arson on June the case (1896). 41 L.Ed. 528 After over an trial, went to trial on October 1997. At deliberation, hour of continued that Mr. argued Prentiss guilty. returned a verdict of attempted to start a fire the wall socket disguise it problem as a the house’s II. ANALYSIS that, system, electrical failing at this attempt, he fires in started the closets. Mr. his presents argu- Prentiss first two matter subject

At ments —lack of the close of government’s case-in- chief, sufficiency parties sepa- of the indictment —as stipulated Vigil’s Mr. rate the underlying home was issues. as- located the exterior Pueblo, sertion each Tesuque boundaries of the is the same for issue: Fe, Mexico, north of Santa New and that indictment failed to Mr. Prentiss’s Vigil Mr. Tesuque was a member Indian or non-Indian and the Indian status Cir.1992) (en (11th victim, banc); United of the (10th for his federal ar- elements necessary § 1152.1 under 18 U.S.C. Cir.1993). conviction two requirement son This serves Mr. Prentiss’s we will treat Accordingly, fundamental functions: challenge as a challenges together First, it informs the defendant indictment. sufficiency the ‍‌​​​‌‌​‌​​​‌​​‌‌​​‌‌​‌‌‌‌‌​​​‌​​​​​‌‌‌​‌​‌​​‌​​​‍nature and accusation cause required by Amendment Sixth Sufficiency of Indictmеnts Gener- A. Second, Fifth it fulfills the Constitution. ally requirement, Amendment’s indictment to the challenge suffi We review ensuring return de novo. See ciency of an indictment probable indictment when finds Dashney, 117 F.3d support necessary all the ele- cause to Cir.1997). 7(c)(1) Rule ments of crime. pro Federal of Criminal Procedure Rules the information vides indictment or “[t]he 485; Gayle, F.2d at see also United be a concise and definite writ plain, shall Hooker, facts ten statement of essential consti Cir.1988) (“The of notice de requirement Under this tuting charged.” the offense Sixth Amend rives from defendant’s “[cjonvictions rule, longer are no reversed nature right ment to be informed of minor and technical deficiencies because re and cause of the accusation.... [The accused[, prejudice and] which did quirement of inclusion of all elements the] development salutary has a [t]his been Amendment, ... from Fifth derives law.” Russell v. United the criminal grand jury have requires which that 82 S.Ct. all considered and found elements to be (1962). However, L.Ed.2d sub “the present.”); Radetsky, v. United States to safeguards stantial those (10th Cir.) F.2d that a (holding crimes cannot be eradicated under serious paramount “is of im sufficient indictment guise departures of technical from the ... portance” “required to avoid [a] rules.” Id. found, on perhaps facts not or conviction held Accordingly, we have to, presented grand jury not even is sufficient if it “[a]n indictment contains defendant]”), denied, indicted cert. [the charged, put the elements of the offense U.S. 50 L.Ed.2d 81 on ting fair notice of part grounds, overruled on other Unit defend, charges which he must Daily, ed n. States v. 1004 & [a it enables a defendant to assert double Const, (10th Cir.1990); U.S. amend. V jeopardy v. defense].” United States (“No person shall held answer for Poole, 929 F.2d crime, un capital, or otherwise infamous omitted). (quotations Focusing on the is less or presentment indictment disputed sue in this criminal “[a] Const, Jury.”); Grand amend. VI upheld conviction not be if the indict will (“In prosecutions, all criminal the accused it is based does set enjoy shall to be informed of forth essential elements of the of accusation.”). Gayle, fense.” v. 967 F.2d nature and cause of Pueblo, Tesuque County, 1. His stales: Santa Fe indictment Mexico, State and District of New the De- 18 U.S.C. 1152: Crime on an Indian Res- PRENTISS, fendant, RICCO DEVON did ervation; maliciously willfully and set at- fire and 18 U.S.C. 81: Arson. dwelling. tempt set fire to a INDICTMENT Jury charges: In violation 1152 and 18 The Grand § 81. day On and 23rd or about 22nd I, November, the confines of the Rec. vol. doc inquiry failing to the Fifth indictment’s defect in Narrowing charge Amendment, jurisdictional). offense аs grand enough is not

it challenges Mr. Prentiss the suffi that the defendant should be concludes ciency of his indictment after a jury found violating a particular prosecuted “[Ajfter him guilty of arson. a verdict or statute; rather, the indictment must plea guilty, every intendment must be allege every also element offense. indulged support indictment Only way in this assurance fur- information and such verdict or plea ” grand jury proba- nished that the found cures mere Clay technical defects.... cause to believe that the defendant ble (10th United constituting in fact committed acts the Cir.1963). post-verdict there is a “[WJhere question. offense challenge to an indictment asserting Deisch, offense, States v. 20 F.3d 145— of an United absence element it has Cir.1994). been held the will be sufficient if it contains similar import’ ‘words sufficient, To be an indictment must in question.” element United allege each material element of the of- (quoting 995 F.2d at 1505 fense; not, if it charge does fails Vogt, States v. 910 F.2d requirement This stems offense. Cir.1990)). However, if challenged even purposes one of the central of an from verdict, after a “the failure of the indict indictment: to ensure that ment to allege all the essential elements of probable finds cause the defen- an offense ... ais defect dant has committed each element of the dismissal, requiring despite citation of the offense, trial, justifying hence as re- underlying statute in the indictment.” Id. by the Fifth Amendment. quired Crockett, (citing United States Cabrera-Teran, (10th Cir.1987)). 626, 629 type & n. 3 This added). (emphasis by cannot fundamental defect be cured omission of an is element “such a the prejudice absence of to the defendant Federal critical omission” that the Rules of or a instruction.2 it to require Criminal Procedure “be noted Brown, by appellate sponte.” Reviewing an court sua the in indictment this F.2d at 1504 United not (citing argue States v. does (5th Meacham, Cir.1980) 503, 509 626 F.2d indictment contains “words of similar im- (stating that language port,” of Fed. 995 F.2d at and we see 12(b)(2) possible no requires interpretation R.Crim.P. failure of the Indian charge indictment to be noticed of the and victim appear offense defendant body by appellate any district courts and courts sua in form in the of the indictment. fact, In sponte)); Showp, see also the indictment fails to United (3d Cir.1979) victim (stating altogether, 608 F.2d let alone the Indian sta- Therefore, general rule that must notice an tus of the victim. courts issue States, holding Clymore 2. id. at earlier case. v. United See 1504-05. Brown's was See (10th years Cir.1999) discussed two in United (noting not later 164 F.3d 573 n. " Bolton, (10th 68 F.3d Cir. binding opinion that the earlier ‘constitutes 1995). Bolton, held that the court constraining precedent subsequent circuit though was indictment valid even omitted panels absent en banc reconsideration or element, an essential because the defendant superseding by contrary decision the Su- prejudiced, the indictment cited the [Thus,] preme Court.... when faced with an statute, proper- relevant and the district court conflict, panel intra-circuit should follow ly jury. id. instructed the earlier, subsequent precedent settled over a ” because, to We follow Brown the extent that (quoting Haynes v. deviation therefrom.’ panel a more recent decision conflicts with Williams, 900 n. 4 Cir. prior standard of review enunciated in 1996) (internal omitted))). citations authority, by Tenth Circuit we are bound non-Indian; i.e., an Indian and the crime the Indian status of whether 18 must be what courts have termed “interra- elements under victim are essential cial.”4 The statute states: § 1152. U.S.C. provid- Except expressly otherwise below, set forth we hold the reasons For law, by ed general laws Unit- of the defendant Indian status punishment ed of- elements under are essential victim any place within the fenses committed which must be U.S.C. jurisdiction sole and exclusive gov- and established the indictment except District of Co- Mr. Because Prentiss’s at trial. ernment lumbia, Country. shall extend Indian elements, it allege these did not of- This section shall extend to was, Prentiss there- Mr. insufficient. one fenses committed Indian

fore, of his Fifth Amendment deprived person property of another Indi- jury finding ele- to a of all an, any committing any nor offense. ments of country offense who has Defen- B. The Indian Status of the punished by been the local law of the dant are Essential El- and Victim tribe, where, by treaty or to case ements 1152. stipulations, the exclusive over is or such offenses secured case The statute issue this respectively. to the Indian tribes Act,” Country is the “Indian Crimes codi Further, jurisdic contrary at 18 1152.3 fied This U.S.C. statute, essentially express language makes a crime tional statute Court, occurring country Supreme predeces a federal interpreting Act,5 Country the crime occurred between sor of the Indian Crimes Country noting Act re- The Indian Crimes is also context word interracial "inter-sovereign” to as "General Crimes or the ferred Act” means tribes " dependent Act of 1834.” "Federal Enclaves considered 'domestic nations' "[d]uring history of its has sovereign authority most statute that exercise inherent descriptive had no title.” Felix S. Cohen’s over their members territories.” Fletcher Federal Indian Law n. Handbook Striсkland, (Rennard eds.1982) (herein- et al. Cir.1997). Cohen). importantly, after More Cohen notes descriptive that the various titles the statute 1152, 2145, predecessor § § 5.The to R.S. should not "be read to mean that the Act provided: applies country.” to crimes in all Indian Except punishment as crimes applies only in Rather "the Act limited cir- expressly provided cumstances, which is for in this Title principally to certain interracial 28], general [title laws United crimes.” Id. punishment to the States as of crimes com- any place mitted in within the sole and technically 4. We note it is inaccurate States, jurisdiction of exclusive the United jurisdictional § refer to limitation of 1152 Columbia, except the District of shall ex- requirement. an as "interracial” "Federal Country. tend to Indian regulation governance of Indian tribes ... §R.S. 2146 stated: communities; once-sovereign political isit preceding section shall not con- legislation to be racial viewed any committing strued to extend to Indian group consisting v. of Indians.” United States any 641, 646, 1395, country in offense the Indian has who Antelope, 430 U.S. 97 S.Ct. 51 tribe, (1977) omitted). punished by local been law of (quotations L.Ed.2d 701 where, by treaty stipulations, or case being Rather than limited interracial crime, jurisdiction Equal exclusive over such offenses which would raise Protection concerns, is or be secured to jurisdiction the Indian tribes the statute limits to "in- respectively. ter-sovereign” crimes between and Indian 1875, However, Section 2146 was amended to add and a non-Indian. courts and jurisdiction generally further limit federal to "crimes scholars refer to the limitation by person consistency, interracial. For the committed one Indian sake interracial, property will also refer to the limitation as or Act of another Indian.” Feb. v. McBratney, specific jurisdictional held 104 the element the gov 624, 621, 26 L.Ed. ernment prove U.S. dis must order to jurisdiction. establish federal infra, Accordingly, cussed a crime between two 7,§ non-Indians was not a federal crime under must establish element, essential Thus, § e.g., § 18 U.S.C. U.S.C. that the federal crime occurred in federal generally applies only to interracial prison is, or on federal crimes; military installation. by crimes Roberts, See United Indian, versa, against an or vice that occur (10th Cir.1999) (citing United within country.6 Indian Hernandez-Fundora, States v. jurisdiction Federal criminal is lim (2d (assault Cir.1995) ain federal concerns; ited states retain federalism prison); Wamen, United States v. jurisdiction in primary sys criminal our (assault on a Const, tem. See X. U.S. amend. Accord installation)). military While the court ingly, resolution of whether the Indian may determine, law, as a matter of status of the defendant and victim are ele jurisdiction existence of federal a geo over exceptions requires analysis ments or graphic area, whether the locus of the § of the interaction between 18 U.S.C. offense is within that area is an essential defines crime of arson under element that must be resolved the trier law, 7,§ federal which defines of fact. See id. special juris maritime and territorial country is not diction of United and U.S.C. simply “place within the sole and exclu Analyzing these criminal federal jurisdiction States,” sive the United statutes, that, apparent in order jur 7 does extend federal state a crime under 18 U.S.C. isdiction to crimes committed government must than allege more See, country. e.g., United States Wheel country. crime occurred within Indian er, 435 U.S. Title 18 U.S.C. the statute under (“statutes (1978) L.Ed.2d 303 establishing which Mr. charged, Prentiss was makes it jurisdiction federal criminal over crimes crime, special “within the maritime and involving recognized Indians have Indi jurisdiction territorial of the United States members”); jurisdiction an tribe’s over its willfully maliciously [to] fire set[ ] McBratney, ], to or set attempt[ burn[ ] to fire to or (1881) (holding jur L.Ed. 869 statute, burn any building.” Under this isdiction of a crime committed the fact that the crime oсcurred country between two non-Indians was the United is an ele- crime); Draper state rather than ment of the crime that must the indictment and at trial. established (“the 41 L.Ed. 419 reservation 7, Generally, jurisdic § 18 not within U.S.C. de the sole and exclusive States, special fines the maritime and territorial tion of the United as the indictment States, jurisdiction provides of the United fails to commit- charge crime was 80, 18, 1875, 316, any 18 Slat. 318. ch. Sections tion under this statute does not extend to committing any 2145 and were 2146 later codified at 25 "Indian offense in Indian 217, by country punished §§ been U.S.C. 218 then recodified who has local at Second, (1948). § law § of the tribe.” 18 U.S.C. depth 18 U.S.C. an in 1152. For jurisdiction "any federal does not extend to development account of the and evolution of statute, Cowboy, treaty stipulations, case where the exclusive see United States v. Cir.1982). jurisdiction 1228, such or over offenses is respectively.” to Indian tribes secured However, 6. places impli- We note that the statute two addi- as these limitations are jurisdiction tional limitations on federal cated court under the facts of this do not First, country. jurisdic- opinion. over address Indian federal them in Indian”). two non- it held that a crime between Congress, had Court by an ted jurisdic- country was a feder- federal criminal Indians in Indian to extend wanted сountry, simply have could of predecessor to Indian al crime under tion § 7 include' to Indian 624, § 18 U.S.C. 26 L.Ed. amended 1152. See id. Instead, Congress exercised country. to the 869. little attention paid The Court sovereignty, par- for tribal respect 1152, § “broad relying predecessor text only affecting Indians” ticularly matters sov- interplay between state instead on jurisdiction over Indian limited and federal government á the federal ereignty vis vis Cohen, su- crimes. country interracial In to sov- and Indian tribes. addition 3, 290. note that, concerns, suggest later cases ereignty fra government considered as the federal paragraph first Although the tribes, the non- of the Indian guardian broadly grant complete and appears ward status of non-Indian defendant jurisdiction over Indian exclusive federal coverage § 1152 far victim divests the federal country, paragraph sug- prosecution protec- than the them or limited first interest more Indians, tion, involving Con- of the crime despite For crimes occurrence gests. competing to consider the gress country.7 forced Indian sovereigns interests of three United —the tribes, 1152, and the Indian states. under con Accordingly, Thus, sovereignty, tribal Con- respecting of the statute but trary language jurisdiction federal under gress constitutional, extended sovereignty, consistent with implicated § 1152 to areas believed concerns, crimes within Indian trustee leaving state sovereignty, its own sover- are, country that did not involve an Indian to the and tribal eignty matters states therefore, crimes, see, McBrat e.g., state sovereignty matters to the tribes. 869, ney, 26 L.Ed. crimes 104 U.S. are and a non-Indian between Indian by are These concerns reflected the Su- crimes, exclusively crimes be holding in preme Court’s United are, exception, Indians some tween with McBratney, 104 U.S. L.Ed. 869 (1881). of tribal rather than state or McBratney, contrary matters law In to the statute, federal law.8 language Supreme 559; Clinton, Draper Id. at S.Ct. see also 7. See Robert N. Criminal Jurisdiction 240, 17 Journey Through United S.Ct. A A Jur- Over Indian Lands: (reversing Maze, L.Ed. 419 federal murder L.Rev. 525 n. isdictional Ariz. because, though conviction even (1976) (explaining holding of country, within did occurred Indian the crime Ramsey, U.S. and a non- Martin, not occur between and Indian (1926)). Ramsey, 70 L.Ed. 1039 two Indian); Ray rel. New York ex murdering white were men L.Ed. 66 S.Ct. country. Osage within See 271 Indian 261(1946) (upholding state court conviction Addressing U.S. at for murder of a non-Indian jurisdiction, Court issue of federal stated: country). within Indian authority The predecessor pun- § 2145 1152] [the with- The view crimes between Indians occurring ish crimes State country exclusively tribal mat- Oklahoma, by not committed or In- has, degree, changed. ato limited ters statehood, dians, by grant of was ended Act, Major Crimes [citing McBratney Draper But au- ]. spe- extends federal over fourteen thority respect committed crimes offenses Indians in Indian cific committed against Indians continued after the admis- country. Major Act "was Indian Crimes of as was before in sion the state it ... passed response congressional displea- in long-settled virtue of the rale such In- Supreme Court's in Ex sure over the decision 556, 396, respect dians wards ‍‌​​​‌‌​‌​​​‌​​‌‌​​‌‌​‌‌‌‌‌​​​‌​​​​​‌‌‌​‌​‌​​‌​​​‍of the nation in of Dog, are 27 parte Crow U.S. 3 S.Ct. [109 (1883)] developed holding whom there is Federal L.Ed. 1030 that neither duty protection, jurisdiction Government "the and federal nor territorial courts had power.” try an Indian murder of another Indian with the for

969 (1) Thus, deceased, occurred both to the [Indian] unless the arson and (2) question an country, gone Indian and between should have to the jury within non-Indian, it and a is not a crime one Indian of fact and not of presumption.” federal law and federal courts suggest Other cases that when a crime jurisdiction no hear the case. The Country, have in occurs Indian the Indian sta- prove must more government tus the defendant and victim must be occurred within simply than the crime alleged in thе indictment because it is an otherwise, country; “there can See, indispensable jurisdiction. element States, Hugi crime.” no e.g. States, Westmoreland v. United 155 378, (explain- 545, 548-49, 243, U.S. 15 S.Ct. 39 L.Ed. jurisdictional in nature of elements (1895) (holding allegations the jurisdiction subject matter relation defendant was a white man and not a stating proof “that ele- [a Territory citizen of the Indian sufficiently proof any is no from ment] different negated applicability statutory crime”). other element of a federal Ac- States, exceptions); Pickett v. United cordingly, we hold that the Indian status of 456, 458, 265, U.S. 54 L.Ed. S.Ct. defendant and victim essential ele- (1910) (“The averments of the indictment § ments crime under U.S.C. it plain make that the crime was alleged that must be in the indictment and country, committed within ... not proven trial. State Indian Terri- [Oklahoma tory ... statehood] before [and] also holding This is consistent with the Su- in plaintiff averred that the error ... was treatment preme Court’s historical of 18 Indian, person not an slain ... and the not stating 1152 in cases Indian, exceptions an made [the government prove must Indian status do predecessor apply.”); 1152] victim. defendant and The Su- Kagama, in United States v. 118 U.S. passing Court has preme referred to the 30 L.Ed. 228 Indian status of the defendant and victim (“The However, out in indictment sets two counts “exсeptions.” when specifi- Indian, ... issue, an [the defendant] mur- cally speaking to the the Court has Indian, ... ... dered another within the expressly government stated that the has Reservation, Hoopa Valley limits of the proving the burden of the Indian status of co-defendant], charges and it also an [the the defendant and victim. Indian, abetting aiding and example, For Smith United murder.”). L.Ed. S.Ct. (1894), Court, cases, Supreme Relying on circuit interpreting these courts predecessor of stat- have held that Indian status of the 18 U.S.C. man “[t]hat [the ed was white defendant and victim are essential ele- victim] an govern- Indian was a fact which the ments that must in the indict- was Similarly, bound to establish.” ment. For United States v. example, Torres, n. in Lucas 454 & Cir.1984), appellants, 41 L.Ed. 282 both enrolled Tribe, again “[t]he Court stated that burden of the Menominee Indian were indict- on proof conspiracy to sustain ed to commit murder under §§ of the court evidence as 1117 and 1152. The indict- Cohen, change, supra original purpose note “the [of 1152] reservation.” Thus, “duplication respect autonomy some 300-01. there is tribal remains.” Id. at [Major importantly, and the 290. More Cohen notes that un- Act] between Crimes Indi- Act, Country Major Country Crimes Act cases where like the Crime "the Indian requires allegations is accused of Crimes Act additional one offenses listed Major proof Act was interracial.” Id. at Crimes added). despite (emphasis n. victim.” Id. at 301. 970 (1982). victim, Pe- n. 157 also United the Thomas 301 alleged Wheeler, 324-25, v. at Id. at a “non-Indian.” 458.

terson, was convictions, at ar- 1086-87.9 challenged their Appellants in fail- court erred the district guing Heath, Similarly, in United States v. jury that it must find instruct (9th Cir.1974), the Ninth Cir- of the victim. How- status non-Indian recognized jurisdictional of aspect cuit ever, appellants failed to ob- because Indian or non-Indian status parties’ trial, ject jury instructions § Noting the re- under U.S.C. “pláin claim for er- their court reviewed quirement jurisdiction ror.” Id. indictment, an court “conelude[d] of terming victim ‘enrolled member to prose- “[i]n held that order The court Indian Tribe’ Springs [in the Warm § the Govern- under 18 U.S.C. cute purposes indictment] was sufficient for of jurisdictional prove, requi- as ment must alleging pursuant Federal site, was in violation of a that the crime § v. U.S.C. 1152.” United States law, and that the crime enclave Cf James, an Indian and non- occurred between that, (stating purposes of a conviction country.” Id. Indian within Indian at 454. § have under “the indictment should apparent “it is Specifically, the court ruled allegations defendant] contained that [the § purposes that for of U.S.C. an Indian and that victim was was determine, fact, jury question as a must The defеndant] Indian. fact both [the as an Indian or non- victim’s status and the victim were Indians was estab- past Indian.” at 457. court noted grand jury lished in the and at proceeding confusion about whether the status doubt.”); beyond trial a reasonable elements, and victim are the defendant Harris, 90-5028, No. 1992 WL past and corrected its reference to the 1992) (un- Feb.21, 33210 at *3 Cir. Indian status of the defendant victim decision) indictment, published (holding as defenses: § incorrectly in- referenced Sosseur, In United States §of was stead sufficient where Cir.1950), this court re- that the victims “[t]he exceptions to the three contained ferred Indians, Osage were each and that of 18 paragraph in the second U.S.C. had Osage murders been committed on an Though the use “defenses.” allotment”). appears term “defenses” to con- Further, proof on the the conclusion that the fuse burden issue nonlndian status and victim are U.S.C. the defendant the court cleared that confusion essential elements conviction later, opinion, when the same re- consistent with other federal criminal stat- exceptions ferred the three “three utes which have essential ele- See, Indeed, for purposes e.g., Spinner, conditions.” of 18 ments. (3d Cir.1999) the Government must 180 F.3d 514 con- (vacating fraud, satisfy the and prоve first “condition” viction for access device because F. to allege “crime interracial.” Co- indictment failed interstate com- hen, Law, was, Handbook Federal Indian merce element of offense and there- Torres, status, (2) Ultimately, 458 n. 10. victim’s district convictions, finding the court that, affirmed appellants’ court overruled motion for a di- circumstances, totality of under the challenging sufficiency rected verdict plain failing the district court did not error in the evidence of the non-Indian status of the to instruct the that it to find that the had victim, (3) was read the indict- support victim was non-Indian. of its ment, which referred the victim as a non- holding, the court relied on the fact that Indian, immediately prior to deliberations. ample record "the contained evidence" of the

971 fore, defective); jurisdictionally tory United provides by citation a means which a Lindsay, v. 184 F.3d States inform can himself of the ele- (10th Cir.1999) (reversing offense”). federal bank ments of the for lack of that bank proof fraud conviction government argues that it is re- insured, of proof was FDIC because FDIC quired to the prove Indian status of the insurance “is an essential element of bank defendant, requirement “abrupt- the would McGuire, fraud”); States United v. ly prosecutions halt аll almost of non-IndF (3d Cir.1999) (“[A]n F.3d essential ans commit crimes who Indians of the. crime arson under element of. country.” Aple’s at 7. Br. It con- 844(i) property § is that the used in was government tends that the will be in the any affecting activity foreign interstate “untenable, if not impossible, position of jurisdictional element, commerce. This having prove negative beyond a rea- all any like other elements of criminal not, sonable persuaded doubt.” We are offense, beyond'a must be established rea argument. Our review of the cases doubt.”); Alfonso, United v. sonable States suggests government the typically, that al- (2d Cir.1998) (finding 143 F.3d leges proves inter-raciality and the conspiracy indictment for to commit rob offenses and charged tried under bery in violation of Act Hobbs sufficient Such also review reveals substantial necessary the where contained elements history prosecutions pursuant of successful offense, specifically including of that to the statute. Where the indictments robbery affected interstate commerce contain the Indian status of the defendant noting and further that the grand was victim, and prosecutions within Indian presented proof every oh element country have not “abruptly hault[ed].” offense, Act including Hobbs See, Romero, е.g., States United element); United States v. (10th Cir.1998) F.3d (noting Schultz, that “the indictment [under 1152] (“As repeatedly this Court has and consis expressly alleged that [the defendant] was stated, tently proof of FDIC insurance is Indian, his victims were non-Indi- element the bank essential ans, and that the occurred crimes, fraud false statement but it is Country”). also essential for establishment fed jurisdiction.”);

eral United v. Tan States from the the in Aside fact ner, (7th Cir.1972) this, dictment in case to allege fails (“The Government must show that the de both, the defendant and struction of the occurred [vessel] either victim, government’s im argument ‘high upon any seas’ or other plies required never prosecution body of water that both within the Unit prove govern a negative. admiralty jurisdic ed States’ and maritime is, occasion, required prove ment tion without See, negative e.g., at trial. 8 U.S:C. 1326 state.”). But see States particular United re-entry into the (criminalizing the United Coleman, F.2d Cir. 1981) (while deportation thereby States after re addressing Fifth amend quiring government prove nega issue, presentment affirming ment bank tive: the defendant did not receive robbery conviction where listed permission to fe-enter the underlying federal statute but did not General); Attorney from deposits the bank’s were in Martinez-Morel, F.D.I.C., by the sured because defen Cir.1997) (stating the еlements that “appraised dant this essential ele offense,” prejudiced prove “was not must order estab indictment,” violation, wording including lish a “inclusion in the statu- found in [the indictment] of defendant was the United States Hester, (quoting at 1042 McKel Attorney permission

“without 132). Thus, General”). vey, 260 U.S. at the of paragraph held that first the court sup- that there is some acknowledge We defining general provision 1152 is the argument that government’s the port for offense, the and the second the elements of the defendant and status of the Indian containing distinct clause paragraph a to federal court’s the exceptions are victim of the Indian status exceptions therefore, — As the rather than elements. jurisdiction, exceptions and victim are the defendant notes, in v. Hes- United States alleged to that do not have (9th Cir.1983), ter, de- F.2d the Further, that the court found indictment. of counts of was convicted eleven fendant holding rather than the McKelvey, the of involving pupils at sexually related crimes of like Lucas and West- holdings cases within boarding located Indian a school the the current view of moreland reflected Act, Country The Crimes country. Indian Court. Supreme jur- the federal provided by the guided Supreme would be We all for the convictions. isdictional basis assumption in Westmoreland Court’s alleged the case The indictment in it still the thought represented that we an and that the crime victim was Court, we do Supreme but view country. occurred within Indian it that not think that does. We believe it the Indian did not accurately view is more re- the current defendant. McKelvey. flected Thus, McKelvey Hester, on Relying at 1042. applying F.2d rejected 301 McKelvey, L.Ed. Ninth Circuit held that the Ninth Circuit attack on the indictment. See defendant’s of the defendant was an ex- Indian status id. at 1043. and, such, ception alleged it need not be McKelvey, poli- a Beyond the court cited proven indictment or trial. cy reaching for The reason its conclusion. held

McKelvey, Supreme Court that an man- “[i]t court reasoned that is far more need to criminal statute not exception ageable for the defendant to shoulder alleged in an indictment. that producing burden of evidence he is federally tribe recognized member of a By repeated decisions it has come to be it is for the Government to produce than in this that an settled rule that he is not a member of evidence pleading indictment other founded one of the hundreds such tribes.” Id. provision defining a general the ele- offense, an ments of or of con- ferred, negative need not the matter of reasoning persuaded by We are not Hester,10 exception by proviso an made or other it in decline follow clause, whether in the same sec- distinct case for several present reasons. elsewhere, First, § and that it is incum- that expressly tion or does state one relies on an excep- bent on who such the Indian status the defendant “exceptions” it. oth up tion to set and establish victim courts’ questionable precedential jurisdiction pursuant to 18 U.S.C. Hester be of Federal James, value, 1152”); strongly cases as other Ninth Circuit that, (stating suggest that Indian and non-Indian status for purposes the defendant and victim are a conviction under allegations that have elements must be indict- indictment should contained Heath, an Indian that [the defendant] ment. Cf. (9th Cir.1974) ("[W]e noting victim conclude that term- was an Indian and further evidence of the status of the de- the victim an 'enrolled member of presented had Springs Warm fendant and victim been [in Indian Tribe’ indict- jury). alleging purposes was sufficient ment] jurisdiction. require good pleading that an erwise exclusive general laws of provision statute’s founded the statute must allege “except enough other apply the United States show the accused is not law,” provided expressly exception wise refers as it is univer- true no paragraph, expressly sally second indictment is sufficient jurisdiction to accurately clearly confínes federal crimes com if it does not al- and a all lege ingredients mitted between non-Indi of which the Rather, purpose proviso composed. “[t]he an. offense is other, more specific is make it clear (further noting that an indictment country prevail criminal laws over “every not allege ingredient does ... may Cowboy, 1152.” section ‍‌​​​‌‌​‌​​​‌​​‌‌​​‌‌​‌‌‌‌‌​​​‌​​​​​‌‌‌​‌​‌​​‌​​​‍motion, quashed judgment be on or the 1228, 1284(10th Cir.1982). arrested, may be or be on reversed er- ror”). Second, reading McKelvey a close of an exception

reveals that it holds that statutory analysis, Hester’s formalistic alleged need in It not be an indictment. by as well as references other courts to the not, however, provide any guidance does Indian status of the defendant and victim how to a an on determine whether fact is “exceptions,” neglects complex con exception. or an mere- McKelvey element sovereignty guardian siderations of and ly may “uniquely because it is non-Indian status the and Indian status of defendant the knowledge.” Such

within the defendant’s elements, viсtim are we need not reverse in a case a criminal raises burden shift omis- Mr. conviction because the Prentiss’s questions. See Patter Fifth Amendment was harmless. The sion of the elements York, son New the was government asserts that error (1977) (holding L.Ed.2d citation harmless because the indictment’s every “must government prove ingre the § Mr. fairly appraised of 18 U.S.C. a beyond dient of an offense reasonable Fur- charges against of the him. Prentiss doubt,” the of and “it not shift burden ther, government argues the Mr. Prentiss by presuming to defendant proof the grand jury present- waived his to ingredient proof of the other ele victim, by stipulating at trial that a offense.”) any ments of In criminal the Indian, making Mr. was an Vigil, thereby important facts uniquely there are to empty it formalistic exercise “an defendant; knowledge within the of the for find grand jury send this case back to a to or example, the criminal “intent” mental probable Aple’s cause” element. on this any of state the defendant with argues Finally, government Br. the element, or, concretely, mens rea more any prej- that the defendant did not suffer present whether a defendant was at the because, the if the udice from omission crime, if of wit scene the there no stipulated, victim an Indian as then fed- is Further, policy argu nesses. Hester’s any if the eral exists event: to apply ment does not the the is not evidence established victim, uniquely fact that is not with Indian, jurisdiction un- an there knowledge defendant’s also 1152; if the es- der U.S.C. evidence alleged Mr. Prentiss’s indictment.12 Indian, is an there tablished the defendant reasons, jurisdiction under 18 U.S.C. Considering these we de is federal Rather, adopt adopt cline to Hester. 1153.13 government provides 12. that a "defen- 18 U.S.C. 1153 that: concedes have the inherent dant does not same advan- per- Any Indian who commits tages establishing for the status of victim.” person Indian or son ... another other matter, Aple's practical Br. at 22 n. 8. "As a following major] of- any of the [fourteen government may stronger position be in a country, ... the Indian shall fenses within cooperation to obtain victim or subject penalties law as the same proving family purpose victim's persons committing any for all other status, offenses, juris- It victim's when is reason- relevant. above exclusive require able States. then to diction United Thus, prove juris- (emphasis 1153 extends federal the status of victim.” country enu- original). over for fourteen diction reject government’s necessarily jurisdictional harm what is de- We from our the indictment. argument. less error It is clear fect complete cases that omission added). Thus, Id. at (emphasis essential element the crime—where the evidence submitted appear in elements do not otherwise defendant committed an “assault with in- import, indictment words of similar1 so rob,” irrelevant, tent to because the totally fails to the indictment necessary elements the crime were nev- federal crime criminal statute— presented er a grand jury required is a defect that fundamental the Fifth Amendment. subject analysis. harmless error Brown, Again, in United States v. notes, government correctly As the “where Cir.1993), we ad- challenge there to an in post-verdict is a Brown, dressed a similar situation. asserting the of an dictment absence ele pursuant defendant was indicted to 21 offense,

ment of it has held the been 856(a)(2), requires if will be sufficient indictment contains prosecution defendant: establish import’ ‘words of to the element in (1) similar (2) managed building; or controlled a question.” States v. owner, lessee, either agent, employ- (quoting ee, F.2d at or mortgagee; knowingly and (4th Cir.1990)). Vogt, rented, leased, intentionally made avail- after the ver challenged even able compensation, for use for the building dict, to allege “the failure purpose unlawfully storing, dis- all tributing, using the essential elements of an offense a controlled substance. jurisdictional is a defect id. requiring judge dismiss See at 1504. The trial instructed al.” Id. on the essential elements of the crime and the found the defendant in We first addressed this issue United indictment, however, guilty. The failed to Smith, (10th 553 1240 States v. F.2d allege the essential element that defen- Cir.1977). Smith, In the defendant was owner, lessee, dant agent, employ- was an indicted under 18 U.S.C. building ee or in mortgagee ques- defines “assault with intent to rob.” Id. at tion. the indictment charged government argued On that appeal, the with “attempted robbery.” defendant error was harmless because defen Thus, the issue was “whether an as- dant any prejudice did not suffer as a sault with intent to rob ... is adequately rejected result of the omission. The court charged by alleging an indictment an at- this argument, holding that the “failure of tempt to rob.” Id. at 1241. to allege indictment all the essential The court held that the indictment was jurisdiction elements of an offense ... is a insufficient, vacating judgment al requiring “[t]he defect dismissal” by verdict entered the district court and prejudice absence of to the defendant does government’s argument rejecting the substantive, not is necessarily cure what the error was harmless. in the indictment.” defect government’s Nor we accept can 1505; Id. at see also United States v. in (4th Cir.1997) the ... contention defect Spruill, 118 F.3d (“It indictment was harmless since the evi- is well established ... that failure to clearly dence established the commission recite an essential element of offense of an assault the case at and since bar in the is not to harm indictment amenable review.”); there showing prejudice has been no less v. Pe error (10th terman, to the absence F.2d defendant.... Cir. [T]he 1988) that, if prejudice (stating an essential element to does cure Arson), (including by merated but if the crime is committed an Indian. crimes indictment, grand jury proceeding. “a defen- cumvent “ is not right far charge ‘[deprivation to a of such a basic to answer required dant is more grand jury, nothing thus to be treated as brought by a too serious was not fifth express language of the than a variance and then dismissed violating the ” held person Spin shall be amendment that harmless error.’ United States v. ‘[n]o (3d Cir.1999) infa- ner, or otherwise capital, (quot for answer F.3d crime, presentment mous unless on v. United Stirone Jury’”); (1960)). United of a Grand L.Ed.2d Hooker, F.2d at 1232 Further, reject the govern Cir.1988) (“Neither petit instructions nor that, stipula argument ment’s because a satisfy can after the fact jury verdict trial tion to a fact at acts as waiver of right Fifth Amendment tried by petit jury stipu to a on the right trial jury.”). charges found issue, it also as a retroactive lated acts cases demonstrate These charged only right waiver of the failure to an essential element First, presented jury. to a grand facts a fatal error. While indictments stipulate Mr. Prentiss did trial reviewed challenged first after defendant, govern thus the standard, Clay v. under a more liberal see correct, would argument, ment’s even United event, any not resolve case. Cir.1963), re that standard nevertheless an act of indictment is clothed “[w]aiver quires necessary “the appear facts formality,” nothing and there is can be form or fair construction “in suggest record to Mr. Prentiss was found within the terms indictment.” nature formed of and cause Coleman, to a the accusation” waived his omitted); (quotation see grand jury “knowingly, intelligently and (“indictment also at 1505 voluntarily.” Ferguson, will be sufficient if it contains words of Cir.1985). (2d similar import question” the element Moreover, found, have we not nor does omitted)). (quotation cite, government single a case It empty is not “an and formalistic exer- suggests stipulating petit to a fact before a grand jury cise to a case to a to send back jury right only waives the to be tried on At probable Aple’s find cause.” Br. at 27. Rather, jury. presented grаnd to facts law, common “the most function valuable suggest cases before evidence only the grand jury to examine was petit jury overwhelming evi- —whether crimes, into the commission of but to stand in dence of as Smith or a guilt stipulation accused, prosecutor between the and the in the present case—does not cure the and to the charge determine whether was in complete omission of the element testimony founded credible or was indictment, because the element was not personal ill by dictated malice or will.” presented grand jury, to a there is “noth- Henkel, 43, 59, Hale v. U.S. S.Ct. Hooker, jury to petit ratify.” (1906). Incorporated L.Ed. F.2d at 1232. Founders, by Fifth Amendment “every there to is government is reason believe our The correct facts, grand jury “by stipulating constitutional was intended to to elemental a defen operate substantially pro- right jury like its English dant waives his to a trial on that Br. genitor.” Aple’s 350 element.” at 27 (quoting Costello v. United Unit Mason, U.S. L.Ed. 397 ed 472-73 (1956). (10th Cir.1996)). However, Applying analysis harmless error the failure of allege to total of an ele- the indictment to a federal crime omission essential by allow prosecution proof by would to cir- cannot be cured at trial means, jury con petit proceedings. cannоt further Because we reverse because present if it was first sider an element Mr. Prentiss’s conviction based on suf- grand jury ed to the indictment, ficiency of his we need not indictment. See at 1504. Mr. Brown presented reach the other issues his stipulation to the Indian status Prentiss’s appeal. does not cure the fact the victim jury grand did not consider the Indian BALDOCK, Judge, dissenting. Circuit vic of both the defendant status

tim, required Fifth Amendment. Today, the Court the In- concludes that only to be tried on right This constitutional dian of a defendant and victim are charges indictment re presented essential elements arson grand is not subject turned §§ 81 under 18 U.S.C. & which the analysis.14 error we Accordingly, harmless must in the indictment reject government’s argument that the prove at trial. Court’s atOp. omission the Indian status of the defen despite The then Court concludes that victim dant and from the indictment was timely object defendant’s failure to to the harmless. indictment, the omission of these elements jur- from the indictment “is a fundamental III. CONCLUSION subject isdictional defect that is not above, For reasons forth we find set analysis.” harmless error Op. Court’s at that Mr. not al- Prentiss’s did 974. While the former Court’s conclusion lege the essential elements best, conclusion, arguable its latter was, therefore, Mr. de- offense. Prentiss simply my oрinion, is wrong given the prived his Fifth Amendment Supreme authority. recent trend of Court in- charges presented tried on in an Accordingly, I dissent. returned by jury. dictment Ac- notes, duly Mr. ar- the Court cordingly, VACATE Prentiss’s As Act, Country son conviction and remand the case for Crimes Daniels, apply would er The dissent harmless evant.” United States 272, rule, 1992). recently expanded ror in Neder v. United Cir. 1180 n. 2. (1999), which the held unpub- L.Ed.2d 35 Court rightly 16, we do this (9th 1999) Cir. not Neder to Sept. WL 776213 at Cir. *1 case: Nevertheless, (unpublished). prece- our own dent, by which we are bound and with which First, face, applies petit, on its Neder agree, a does not allow for such distinc- Second, grand, juries. petit an error in a Smith, 1493; See F.2d 553 tion. 995 "simply jury instruction is an error in F.2d 1239. We are reluctant to extend the itself,” at -, process trial id. 119 S.Ct. at grand jury Neder rule to the context until the omitted), (quotation can 1833 marks Supreme Court so instructs us "or otherwise Con be assessed in the context of the trial. Bo, grand jurisprudence.” jury its Du alters versely, errors in a at 1180 n. “guess a to what allow was in Further, Neder, a decided in case after grand jury of the at the time. minds States, 749, rejected analysis Circuit harmless error Third v. See Russell United 369 U.S. alleged 770, 1038, (1962). when the indictment S.Ct. L.Ed.2d 82 8 240 count, Third, to do element the second but failed Court focused whether Spinner, the first. v. petit so in "nec error in instruction would Cir.1999). (3d F.3d 180 essarily fundamentally render a trial un Neder, at -, Spinner court noted the defect be at fair.” 527 U.S. time, even court sua raised at In the indictment con insufficient conviction, text, despite sponte, fact and reversed that a defendant received plea. prejudice guilty "irrel defendant’s fair trial suffered no challenge validity he failed to because prosecution for the provides arson, crimes, sufficiency which non-Indians its in the district court. See including Bolton, country. in Indian v. against Indians United States commit (10th Cir.1995). the Act also All must exceptions, participants of three trial As one “shall not ex- coverage that its accurate provides encouraged to seek fair and by one Indian very tend to offenses committed “The trial the first time around. person property another judicial system limited of our resources In the indictment Indian.” require challenges be made that such fire to a set dwell- alleged Defendant in order to possible the earliest moment Tesuque Pueblo violation ing avoid needless waste.” United States §§ 1152. The 81 & indict- of 18 U.S.C. Edmonson, F.2d Cir. Defendant’s alleged neither nor 1992). nearly ago words four decades Our status. For sake of victim’s Indian today: remain true brevity and because Court acknowl- ... every verdict intendment [A]fter а authority on the is- edges conflicting in- indulged must support sue, willing I to assume without decid- am ... dictment ... and such a verdict that the Indian status of a point at this unless it is cures mere technical defects are elements of the defendant victim apparent they prejudice have resulted in country of arson in Indian Prejudice to the de- the defendant. (rather §§ & than affirmative de- course, is, controlling con- fendant and, fenses), with consistent the Fifth an in- determining sideration in whether Amendment, in- should be sufficient. dictment dictment. Clay v. so, I unconvinced Even remain (10th Cir.1963). specifically allege failure to Government’s elements in the these indictment consti- challenge in this case Defendant did intrinsically constitutional error “so tutes sufficiency in the district indictment’s ‍‌​​​‌‌​‌​​​‌​​‌‌​​‌‌​‌‌‌‌‌​​​‌​​​​​‌‌‌​‌​‌​​‌​​​‍as to automatic require harmful reversal Bo, court. v. Du Compare United States regard ... without to ... effect on [its] (holding the outcome.” Neder United trial,” properly challenged that “if before S.Ct. L.Ed.2d failure to an element indictment’s (1999). Rather, to determine whether error), constitutes offense reversible the constitutional error in this re- case Woodruff, No. 98- reversal, quires apply I would the harm- *1 1999 WL 776213 at Cir. Chap- rule established in less-error first 1999) Sept.16, (unpublished) (refusing California, man v. 87 extend where failed to Du Bo 17 L.Ed.2d 705 re- S.Ct. indictment). timely challenge the Nor has Neder, cently reaffirmed challenged, appeal, he ever at trial or on ‘beyond 1837: “Whether it appears a rea- his or the victim’s status as complained sonable doubt that the error fact, an Indian. Defendant did not contribute to the verdict ob- (the stipulated that the victim of the arson ” tained.’ structure) owner of the was a member of dispute Pueblo.

Although Tesuque Defendant has not He did waived his indictment, challenge he was not of the right to we must evidence that a member liberally pueblo. construe the indictment in favor Rec. Vol. Ill at 209.1 Defen- See 1153, Act, § Major if he 1. Because the victim of Defendant’s crime or the Indian Crimes 81, defining an Indian is an and the occurred in Indian. Section the statute arson, country, subject prose- applies Defendant is substantive offense Thus, 81, § §§ cution for arson under 18 U.S.C. re- both 1152 & 1153. how Defendant gardless subject prose- prejudiced of his could his status es- status. He is because of Heath, non-Indian, by way capes cution if he is a me. See United States v. 361, 139 282, a lack of fair notice has never claimed 118 S.Ct. L.Ed.2d on dant remand him his 130 F.3d 947 charges against inability (relying on Johnson, 461, 1544, Jeopardy a Double defense. See 520 U.S. at to assert S.Ct. Op. Simply put, at 964. no basis to hold that the failure to instruct jury Court’s beforе us to conclude on an element of the charged exists on the record offense was error). any prejudice suffered not structural that Defendant has “ from the indictment. ‘Rever- whatsoever Neder, S.Ct. the Su- error, regardless of its effect on the sal of preme recognized that Court “most” con- encourages litigants to abuse judgment, can stitutional errors be harmless: “‘If judicial public bestirs the process the defendant had counsel and was tried ” v. to ridicule it.’ Johnson United impartial adjudicator, there is a 117 S.Ct. 520 U.S. strong presumption other consti- (1997) (quoting Traynor, R. L.Ed.2d 718 tutional have errors occurred are ” (1970)).2 Error 50 Riddle Harmless subject analysis.’ to harmless-error (internal omitted) Nevertheless, concludes that brackets (quoting Court Rose “ Clark, 570, 579, allege failure indictment to all v. ‘the 478 U.S. 106 S.Ct. (1986)). Despite the essential elements of offense is a 92 L.Ed.2d 460 the Fifth requiring requirement defect dismiss- Amendment’s the Gov- al’ of fundamental defect type prove every This ernment each and element of doubt, preju- be cured the absence of a crime beyond cannot reasonable In re 358, 364, atOp. Winship, dice to the defendant....” Court’s 397 U.S. 90 S.Ct. (internal (1970), ellipses and citations omit- 25 L.Ed.2d and the Sixth ted) v. (quoting requirement jury, United States 995 Amendment’s that a (10th Cir.1993)). In other than judge, requisite rather reach the words, Court, Louisiana, according finding guilty, to the the failure Sullivan v. indictment to the Indian sta- 508 U.S. 113 S.Ct. tus of Defendant and the victim constitutes L.Ed.2d 182 Court Neder error, that rare bird known as “structural” held that the failure to jury instruct the on subjecting judgment every the district court’s element anof offense “does not nec- essarily this case to “automatic” reversal. See render a criminal trial fundamen- Neder, tally at 1833. I’ve been there unfair or an unreliable vehicle for Neder, I way going determining guilt and done that. No am there or innocence.” again (emphasis until the doing Supreme original). me, I right Court tells me have to. See United To a defendant’s to have a Wiles, charged find each element of the offense Cir.1996) (en banc) J.) Baldock, (hold- (per beyond a doubt is no im- reasonable less portant right that the failure to instruct the on than a defendant’s to have present- an element of the offense in viola- each element of the same offense jury. tion of the Fifth and illogically, Sixth Amendments ed to the Yet deni- error), subject harm- reh’g, right constituted structural 106 al of the former (10th Cir.), analysis, F.3d 1516 vacated sub nom. less-error but denial of the latter Schleibaum, is not.3 1974) correcting (holding 20 & n. 5 Cir. Defendant indictment original prejudiced by alleged defendant was not his convic indictment’s deficiencies and us, though even case would at least in its tion under before incorrectly present posture. had characterized him as an Indi an and a violation of 1153 rather 3. The Court has held other Fifth and Sixth 1152). than rights subject to harmless-error Amendment Fulminante, challenged analysis. Defendant If would have in- Arizona fashion, timely 113 L.Ed.2d 302 dictment in a I submit the (erroneous superceding in violation would have filed a admission of evidence (which isn’t) ficiency correct without any If the indictment con- the Court jurisdictional upon labeling Govern- sideration of the error’s effect allege the Indian status ment’s failure verdict sends this case back for another victim, might his then I Defendant and trial-a on the retrial focused not agree Defendant’s conviction should victim, or the Defendant but on beyond be For it is dispute vacated. jury issues and which one has defenses jurisdiction without a court act over cannot already considered. properly although But courts subject-matter. one, In a where case such as Defen- elements of a crime as frequently refer to not, not, did apparently dant could see, “jurisdictional,” e.g., bring contesting forth his facts status as 1503-05, such as elements the victim’s status Defendant and victim are status of Indian, asking whether verdict the sеnse that in the would the same absent have been the error they elements (assuming absence of those Fifth does undermine the Amend- elements), un- no crime exists guarantee. ment’s See United §§ der & 1152. 18 U.S.C. See United Harris, 90-5028, No. 1992 WL Martin, Feb.21, 1992) (un- *3 Cir. Cir.1998). if the Even Government fails to published) (“jurisdictional error” in indict- elements, however, prove those we do improperly alleged ment which a violation say deprived court was district rather than held harm- subject matter to hear the doubt). beyond less a reasonable Accord- “Subject-matter jurisdiction case. in ev- I ingly, would hold that indictment’s ery prosecution federal criminal comes failure to the Indian status of De- from there can be fendant and the victim was harmless be- no III permits Congress Article doubt that yond a I dissent. reasonable doubt. to assign prosecutions federal criminal That’s the beginning federal courts. ‘jurisdictional’ inquiry.” end

Hugi v. United

(7th Cir.1999). “ ‘recog-

The harmless-error doctrine nizes principle central purpose EZRA, WEINSTEIN, BEN aof criminal trial is to decide the factual COMPANY, INC., AND question guilt of the defendant’s or inno- Plaintiff-Appellant, cence, promotes public respect for the process focusing criminal on the under- ” INCORPORATED, AMERICA ONLINE lying Neder, fairness of the trial.’ Defendant-Appellee. (internal omitted) S.Ct. ellipses at 1838 Arsdall, (quoting Van 475 U.S. at No. 99-2068. 1431). S.Ct. In this Defendant was Appeals, States Court tried impartial judge, before an under the Tenth Circuit. proof, correct standard of and with the assistance counsel. Defendant does not March suggest that he would introduce evi- dence bearing upon question of his

Indian status retrial. Reversal of

Defendant’s conviction based on the insuf- of against guarantee defendant’s Fifth Amendment exclusion of evidence ‍‌​​​‌‌​‌​​​‌​​‌‌​​‌‌​‌‌‌‌‌​​​‌​​​​​‌‌‌​‌​‌​​‌​​​‍in violation of defen- harmless); may self-incrimination dant's Sixth Amendment to confront Arsdall,

Delaware v. Van harmless). witnesses (1986) (erroneous 89 L.Ed.2d 674 notes an “in the exception be Congress ship drafting faced when section same or elsewhere.” McKelvey simple statute. addressed a sit “pleading uation where a founded on [is] a Further, accepting even provision general defining the elements of presumption court’s in Hester —that a offense, an or of conferred” with language in location the relevant a stat matter exception by “the of an made a provides guidance ute some whether or proviso other distinct clause.” McKel exception fact is an or an is element —it vey, U.S. at 132. There not dispositive issue.11 order to apparent controversy was no over whether determine whether a fact is an or element exception, an or an fact element let exception, the court must determine juris was an alone whether a fact essential ingredient it is an essential the crime. See id. dictional element. statutory When the is definition such the crime not be properly described Conversely, U.S.C. 1152 is a exception, without reference to the then jurisdic which of a part complex statute is ele exception constitutes an essential involving scheme tional interaction of ment of the offense. See United States (1) three statutes: 18 U.S.C. Cook, 173-74, Wall. 84 U.S. defines what would be considered the (1872). Supreme L.Ed. 538 As the Court arson, law” adding “common elements of in held Cook: (2) element, general which is but, defining ly Where a statute offence con- defined 18 U.S.C. country, exception, enacting tains an clause context statute, with incorporated which is so defined its language defining federal tri-sovereignty guardianship the offence and pari that the of the offence can- materia must ingredients concerns. Statutes other, accurately not each clearly and described be construed with reference to omitted, Finkelstein, if the see 496 U.S. exception rules Sullivan cannot, calling exception, legislature example, paragraph A and it an affir- define killing defense, murder person mitigating as the unlawful of another circumstance. mative proof to Wilbur, and then shift the burden of See, e.g., Mullaney v. he did act defendant establish that 703-04, 44 L.Ed.2d 508 95 S.Ct. simple expe- aforethought, by with malice law). (1975) (striking down such a placing separate dient of the element in a approach in Toms Circuit’s L.Ed.2d 563 Seventh and hold the interaction these it is and ele- victim essential that the Indian sta- which reveals statutes § 1152 that must under 18 ments ele- and victim are of the defendant tus indictment and estab- alleged Because exceptions. than ments rather prosecution beyond trial lished defendant and Indian status Mr. Accordingly, as reasonable doubt. establishing indispensable victim are indictment did Prentiss’s statutory in this victim of the defendant or Indian status scheme, they must be indict- ap- do not otherwise these elements trial. proven import,” we hold pear by “words similar Finally, question poli Hester’s indictment is insufficient. production the burden of cy shifting to come a criminal defendant requiring Harmless Error C. evidence of his Indian or forward with that, assuming argues

Notes

dissent notes that in that failure to submit an element of an offense disposition, the lished Ninth Circuit distin- petit subject error harmless guished challenged at between indictments analysis. Like the Circuit in Ninth challenged appeal. and those trial Bo, 98-10358, n. 2 States v. Du 1180 & Woodruff, No. 1999), apply

Case Details

Case Name: United States v. Prentiss

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Feb 24, 2000

Citation: 206 F.3d 960

Docket Number: 98-2040

Court Abbreviation: 10th Cir.