256 F.3d 971 (10th Cir. 2001), 98-2040, US v. Prentiss

Docket Nº:98-2040
Citation:256 F.3d 971
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RICCO DEVON PRENTISS, Defendant-Appellant.
Case Date:July 12, 2001
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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256 F.3d 971 (10th Cir. 2001)



RICCO DEVON PRENTISS, Defendant-Appellant.

No. 98-2040

United States Court of Appeals, Tenth Circuit

July 12, 2001


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Norman C. Bay, United States Attorney (Richard A. Friedman, Appellate Section, Criminal Division, Jason Bowles and Fred J. Federici, Assistant United States Attorneys, with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

Michael A. Keefe, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant.




After a divided panel vacated the defendant's conviction for committing arson in Indian country, in violation of 18 U.S.C. §§ 81 and 1152, see United States v. Prentiss, 206 F.3d 960, 962 (10th Cir. 2000), this court granted rehearing en banc on the following questions: (1) whether the Indian/non-Indian statuses of the victim and the defendant constitute elements of the crime, and, if so, (2) whether the failure of an indictment to allege these elements deprives the court of subject matter jurisdiction or instead is subject to harmless error review.

A majority of this court agrees with the panel opinion's conclusion that the Indian

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and non-Indian statuses of the victim and the defendant are elements of the crime of arson in Indian country under 18 U.S.C. §§ 81 and 1152. Judge Henry's opinion (joined by Judges Seymour, Ebel, Briscoe, Lucero, and Murphy) sets forth the reasons for this view. However, in contrast to the original panel, a majority of this court further concludes that the indictment's failure to allege the Indian/non-Indian statuses of the victim and the defendant did not deprive the district court of subject matter jurisdiction and is therefore subject to review for harmless error. In so holding, the majority overrules the contrary holdings in United States v. Brown, 995 F.2d 1493, 1504 (10th Cir. 1993) and United States v. Smith, 553 F.2d 1239, 1240-42 (10th Cir. 1977). Judge Baldock's opinion (joined by Chief Judge Tacha and Judges Brorby, Kelly, Briscoe, and Murphy) explains the reasons for this conclusion.

As a result, we REMAND this case to the decisional panel for further proceedings. On remand, the panel will be required to determine whether the failure of the indictment to allege the Indian/non-Indian statuses of the victim and the defendant was harmless beyond a reasonable doubt.

Judge Baldock (joined by Chief Judge Tacha and Judges Brorby and Kelly) dissents from the majority's conclusion that the Indian/non-Indian statuses of the victim and the defendant constitute elements of the crime of arson in Indian country. Judge Henry (joined by Judges Seymour, Ebel, and Lucero) dissents from the majority's conclusion that the indictment's failure to allege the status of the victim and the defendant is subject to harmless error analysis.

HENRY, joined by SEYMOUR, EBEL, LUCERO, BRISCOE, and MURPHY, Circuit Judges.


The relevant facts are fully set forth in the panel opinion. See Prentiss, 206 F.3d at 962-63. A federal grand jury returned an indictment charging Mr. Prentiss with committing arson in Indian country in the following terms:

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.

Mr. Prentiss challenged his conviction on appeal by arguing that the indictment was insufficient because it failed to allege two essential elements of the offense: the Indian/non-Indian statuses of the victim and the defendant. A majority of the panel agreed, holding that "the Indian statuses 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." Prentiss, 206 F.3d at 966. Because the deficiency in the indictment was not subject to harmless error analysis, the panel vacated Mr. Prentiss's conviction.

Judge Baldock filed a vigorous dissent. See id. at 977-80 (Baldock, J., dissenting). He assumed, without deciding, that the Indian/non-Indian statuses of the victim and the defendant are elements. Nevertheless, Judge Baldock reasoned, Mr. Prentiss had failed to establish that he was prejudiced by the indictment's failure to allege them.

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The exercise of criminal jurisdiction in Indian country affects three sovereigns: states, Indian tribes, and the federal government. See Negonsott v. Samuels, 507 U.S. 99, 102 (1993) (noting that "[c]riminal jurisdiction over offenses committed in 'Indian country' 'is governed by a complex patchwork of federal, state, and tribal law'") (citation omitted) (quoting Duro v. Reina, 495 U.S. 676, 680 n.1 (1990)). As a result, identifying the statuses of the defendant and the victim is often essential in determining what court may hear the case. Thus, states may exercise jurisdiction when the defendant and the victim are both non-Indians. See United States v. McBratney, 104 U.S. 621, 623-24 (1881) (concluding that, under the terms of its admission to the union, Colorado acquired criminal jurisdiction over non-Indians in Indian country within its borders). Tribes may exercise jurisdiction over Indians. See 25 U.S.C. § 1301(2) (recognizing and affirming "the inherent power of Indian tribes . . . to exercise criminal jurisdiction over all Indians"); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212 (1978) (holding that "Indian tribes do not have inherent jurisdiction to try and to punish non-Indians").

Because "Congress has . . . constitutional power to prescribe a criminal code applicable in Indian country," United States v. Antelope, 430 U.S. 641, 648 (1977), federal criminal jurisdiction is somewhat broader. Congress may establish federal crimes that may be prosecuted against citizens throughout the nation, including Indian country. Alternatively, it may create crimes that proscribe only particular conduct occurring within Indian country. See Robert N. Clinton, Criminal Jurisdiction over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz. L. Rev. 503, 520 (1976).

The statutes at issue here belong to the latter type. Section 81 establishes the crime of arson "within the . . . territorial jurisdiction of the United States." See 18 U.S.C. § 81. The first paragraph of § 1152 provides that "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 . . . shall extend to the Indian country." 18 U.S.C. § 1152. It thus extends § 81's prohibition of arson to Indian country. However, the second paragraph of § 1152 provides:

This section shall not extend [1] to offenses committed by one Indian against the person or property of another Indian, nor [2] to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or [3] to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.1

Read in conjunction with the Supreme Court's decision in McBratney, § 1152 establishes federal jurisdiction over interracial crimes only (i.e., when the defendant is an Indian and the victim is a non-Indian, or vice versa). See Cohen, supra, at 291 (stating that "the basic purpose of [§ 1152] is to punish interracial crimes"); Clinton,

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supra, at 526 (stating that "[t]he combined impact of . . . McBratney and the express intra-Indian crime exclusion indicates that section 1152 jurisdiction is limited to interracial crimes").

Section 1152 does not expressly allocate the burden of alleging and proving the statuses of the victim and the defendant--facts necessary to establish federal jurisdiction. Accordingly, we must decide whether those facts constitute: (1) elements of arson in Indian country-- "constituent parts of [the] crime," United States v. Gonzalez-Lopez, 911 F.2d 542, 547 (11th Cir. 1990) (quoting Black's Law Dictionary 467 (5th ed. 1979)) that must be "charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt," Jones v. United States, 526 U.S. 227, 232 (1999), or (2) affirmative defenses that must be asserted by the defendant.2 If these facts are elements, then the government's allegation that the defendant committed arson in Indian country is insufficient to allege a federal crime under §§ 81 and 1152. In contrast, if the statuses of the victim and the defendant are affirmative defenses, the mere allegation that the arson occurred in Indian country suffices.

We begin our analysis by considering the victim's status. Then, we turn to the defendant's status. Finally, we consider the rules of statutory interpretation applicable to § 1152.

A. Status of the Victim

Two Supreme Court decisions indicate that the status of the victim is an element.3 In Lucas v. United States, 163 U.S. 612 (1896), the government alleged in the indictment that the victim was a non-Indian and offered evidence at trial to support that allegation. The Court held that the trial judge erred by instructing the jury that it could presume that the victim was not an Indian because he was "a man who is a negro by blood." Id. at 615-16. It reasoned that "the status of the deceased [was] a question of fact, to be determined by the evidence " and that "[t]he burden of proof was on the government to sustain the...

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