USA. v. Roberts

Decision Date03 August 1999
Docket NumberNo. 98-7057,98-7057
Citation185 F.3d 1125
Parties(10th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. HOLLIS EARL ROBERTS, Defendant-Appellant
CourtU.S. Court of Appeals — Tenth Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA. D.C. No. 95-CR-35-S

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Susan G. James, Susan G. James & Associates, Montgomery, Alabama, for Defendant-Appellant.

Sheldon J. Sperling (Bruce Green, United States Attorney, and Linda A. Epperley, Assistant United States Attorney, with him on the briefs), First Assistant United States Attorney, Muskogee, Oklahoma, for Plaintiff-Appellee.

Before PORFILIO, MCWILLIAMS, and BALDOCK, Circuit Judges.

PORFILIO, Circuit Judge.

On June 9, 1995, Hollis Earl Roberts was charged in the United States District Court for the Eastern District of Oklahoma with two counts of aggravated sexual abuse in violation of 18 U.S.C. § 2241; one count of sexual abuse, in violation of 18 U.S.C. § 2242, and five counts of abusive sexual contact, in violation of 18 U.S.C. § 2244. At all relevant times, Mr. Roberts was Principal Chief of the Choctaw Nation of Oklahoma, as well as a member of the tribe, and the three victims were employees and members of the Choctaw Nation. A jury trial began on June 2, 1997, and four days later, the jury found Mr. Roberts guilty on three counts. The district court ordered Mr. Roberts detained pending sentencing, and later sentenced him to three concurrent prison terms. Mr. Roberts' motion in the district court challenging jurisdiction under 28 U.S.C. § 2255, as well as his motion with this court seeking to stay this appeal, have been denied. On appeal, Mr. Roberts argues the district court lacked subject matter jurisdiction because the alleged offenses did not occur in Indian Country; the government failed to prove an essential element of the offense, namely, that the offense occurred in Indian Country; the district court improperly admitted testimonial evidence; the prosecutor engaged in improper conduct; and the district court improperly applied the sentencing guidelines. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm all aspects of the conviction and sentence.

I.

Mr. Roberts served as Principal Chief of the Choctaw Nation of Oklahoma for 19 years, holding "the supreme executive power of this Nation." Constitution of the Choctaw Nation of Oklahoma, art. VI, § 1. The Constitution further provides the Chief "shall fix and prescribe salaries and allowances for all elected or appointed officials and employees of the Choctaw Nation except the members of the Tribal Council and the Tribal Court," id. at art. VII, § 3, and "shall have the power to remove any official appointed by him except for members of the Tribal Court and the Tribal Council." Id. at art. VII, § 8. Trial testimony established the Choctaw Nation payroll was $22 million per annum; the total annual income of the tribe was $125 million; and the Chief's salary was $120,000 plus benefits in 1995.

At trial, more than ten women, all members and employees of the Choctaw Nation, described how, during his tenure as Principal Chief, Mr. Roberts forced unwanted sexual acts on them, usually in his office at the Tribal Complex. Angella Jean Gilbert, Misty Grammar, and Kobi Dawn Russ testified to specific acts of abusive sexual contact and aggravated sexual assault, and the other women testified to extrinsic acts. The defense presented seven witnesses, all tribal employees, to support the defendant's theories the women had engaged in consensual sex with Mr. Roberts or their allegations were part of a political ploy to unseat him as Principal Chief. The jury returned guilty verdicts on Count I, abusive sexual contact against Angella Jean Gilbert, in violation of 18 U.S.C. § 2244; Count II, aggravated sexual abuse against Angella Jean Gilbert, in violation of 18 U.S.C. § 2241(a)(1); and Count VI, abusive sexual contact against Kobi Dawn Russ, in violation of 18 U.S.C. § 2244; and not guilty verdicts on the other four counts.

II.

The charged conduct occurred at the Choctaw Nation Tribal Complex, a property which is owned by the United States in trust for the Choctaw Nation. The Major Crimes Act, 18 U.S.C. § 1153, confers on the United States exclusive jurisdiction over certain offenses, including those alleged against Mr. Roberts, committed in Indian Country, and the district court accordingly premised jurisdiction in this case on its finding the alleged criminal acts occurred within Indian Country. Although his counsel acknowledged at oral argument the United States owns the Tribal Complex property, Mr. Roberts contends trust status does not suffice to establish Indian Country; certain irregularities invalidated the process by which the Department of the Interior attempted to take the land into trust; and the Secretary of the Interior (Secretary) lacks authority to take this, or any land, into trust for an Indian tribe. The district court found these arguments unpersuasive, as do we.

We review de novo Mr. Roberts' several challenges to the district court's exercise of jurisdiction, see United States v. Brown, 164 F.3d 518, 521 (10th Cir. 1998), and first consider his most fervent argument that the property's trust status does not establish Indian Country. With exceptions not relevant to this case, 18 U.S.C. § 1151 defines Indian Country as:

(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

Mr. Roberts argues here, as he did below, the Tribal Complex satisfies none of the three categorical definitions of Indian Country. Following Mr. Roberts' motion to dismiss for lack of subject matter jurisdiction, the district court held a hearing. The government presented the testimony of Tom Williams, Director of Real Estate Services for the Choctaw Nation; Glendel Rushing, Bryan County Assessor; and Mary Downing, Realty Specialist for the Bureau of Indian Affairs (BIA). Mr. Roberts presented the testimony of Dennis Springwater, Acting Deputy Area Director for the BIA. Based on their testimony, the district court derived the facts summarized here.

The Choctaw Nation Tribal Complex serves as headquarters of the Nation, and between sixty and seventy employees work there. In addition to the various administrative functions conducted at the headquarters, the Choctaw Nation operates bingo games on the Tribal Complex property. The building is located in Durant, Oklahoma, and formerly housed the Oklahoma Presbyterian College for girls. In 1976, the property was deeded to the United States of America in trust for the Choctaw Nation of Oklahoma so long as the premises are used for the purposes of the Choctaw Nation. See United States v. Roberts, 904 F. Supp. 1262, 1264-65 (E.D. Okla. 1995) (conducting an extensive review of the chain of title). The Red River Valley Historical Association operates its headquarters and museum in buildings located at the Tribal Complex pursuant to a lease with the Choctaw Nation. Since 1976, both the BIA and Choctaw Nation have treated the property as trust land, as has the State of Oklahoma which considers it beyond the state's taxation jurisdiction and does not list it on the state ad valorem tax rolls. See id. Based on the evidence and the Indian Country case law, the district court held this trust land, even though not a formally declared reservation, was Indian Country. See id. at 1265-68. We believe the court's conclusion was well-founded in precedent.

The United States' acquisition of the Tribal Complex property in trust for the Choctaw Nation occurred pursuant to the Indian Reorganization Act (IRA) which provides, in part:

The Secretary of the Interior is hereby authorized, in his discretion, to acquire, through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments . . . for the purpose of providing land for Indians.

. . . .

Title to any lands or rights acquired pursuant to sections . . . 465 [and others] shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation.

25 U.S.C. § 465. The Supreme Court has had several occasions to comment on the jurisdictional status of tribal trust land. In Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 511, 111 S. Ct. 905, 910 (1991), the Supreme Court held the tribe's sovereign immunity from state taxes applied to cigarette sales on tribal trust land, even though that land did not constitute a "formally designated 'reservation.'" The Court explained:

The State contends that the Potawatomis' cigarette sales do not, in fact, occur on a "reservation." . . . [No] precedent of this Court has ever drawn the distinction between tribal trust land and reservations that Oklahoma urges. . . . We [have] stated that the test for determining whether land is Indian country does not turn upon whether that land is denominated "trust land" or "reservation." Rather, we ask whether the area has been " 'validly set apart for the use of the Indians as such, under the superintendence of the Government.'"

Id. (citing United States v. John, 437 U.S. 634, 650, 98 S. Ct. 2451 (1978) (Major Crimes Act provides a...

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