U.S. v. Doe
| Decision Date | 20 July 2009 |
| Docket Number | No. 08-1137.,No. 08-1184.,08-1137.,08-1184. |
| Citation | 572 F.3d 1162 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jane DOE, a female juvenile, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. John Doe, a male juvenile, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
David E. Johnson, Writing and Research Attorney, Office of Federal Public Defender, (Raymond P. Moore, Federal Public Defender, Denver, CO; Edward A. Pluss, Assistant Federal Public Defender, Denver, CO; William L. Herringer, Greenberg & Herringer, LLC, Durango, CO, with him on the briefs), Denver, CO, for Appellants.
John Milton Hutchins, Assistant United States Attorney, (Troy A. Eid, United States Attorney; Todd Parker Norvell, Assistant United States Attorney, with him on the brief), Denver, CO, for Appellee.
Before BRISCOE, BALDOCK, and HOLMES, Circuit Judges.
After segmented bench trials, the district court found Native American juveniles "S.W." and "R.K." (together, "defendants") guilty of an act of juvenile delinquency under 18 U.S.C. § 5031-37. The delinquent act was arson under 18 U.S.C. § 1153 and defined by 18 U.S.C. § 81. The district court sentenced S.W. to eighteen months' confinement and three years' supervision. The district court sentenced R.K. to three years' probation and twelve months' home detention. Defendants jointly appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.
Defendants' appeals center on the definition of "person" in 18 U.S.C. § 1153(a)'s phrase: "Any Indian who commits against the person or property of another Indian or other person any of the following offenses ...." (emphasis added). First, defendants argue that context and statutory construction dictate that "person" is restricted to only living individuals. Second, and alternatively, defendants contend that at its broadest, "person" can only include living individuals or corporations, public and private. Under this definition, defendants argue that there was insufficient evidence to establish that the arson victim was a corporation. Third, defendants argue that the district court abused its discretion by permitting the prosecution to reopen its cases to present evidence related to the corporate status of the arson victim. Fourth, defendants argue that the charging information was insufficient because it failed to provide sufficient identification of the arson victim and its status.
In April 2007, defendants broke into the Ute Mountain Presbyterian Church. While inside, defendants vandalized the church and started a fire. In December 2007, the government charged defendants with acts of juvenile delinquency. The information stated defendants' tribal membership, identified defendants as juveniles, and charged that defendants "willfully and maliciously set fire to or burned a building, namely, the Ute Mountain Presbyterian Church, located within the exterior boundaries of the Ute Mountain Ute Indian Reservation." R. Vol. I Doc. 2 at 1. The government later filed a superseding information that added a charge of aiding and abetting, but did not change any other description. Defendants denied the allegations.
On February 5, 2008, the district court began R.K.'s trial. Although the government presented seven witnesses, no evidence was presented regarding the ownership of the church. After the prosecution rested, R.K. moved for a judgment of acquittal, arguing that the prosecution failed to identify the victim of the arson, which was an element of the charged crime. Ultimately, the district court agreed with R.K. and found, "there is no proof of who owned this church, and ... there ... has been no offense committed because there is an element missing." R. Vol. IIA at 100-01. The prosecution requested an overnight chance "to review the situation and possibly move to reopen the case." R. Supp. Vol. I at 2.
The next morning, February 6, 2008, the prosecution moved to reopen its case. R.K. objected and characterized the motion as an attempt to get "two bites at the apple." Id. at 6. The district court granted the motion to reopen because of "the overriding interest in justice." Id. at 9. The district court also granted R.K.'s request for a continuance to allow for discovery regarding the ownership of the church.
Also on February 6, 2008, the district court began S.W.'s trial. The prosecution presented nine witnesses. Edward Rousset, the pastor of the Ute Mountain Presbyterian Church, testified that the church had few members. R. Vol. II at 65. When asked "who owns the building," Pastor Rousset responded, Id. at 66. Later during direct examination, Pastor Rousset confirmed that "the building of the church is actually owned by the Presbyterian church[.]" Id. at 68. Pastor Rousset also confirmed that the insurance policy on the building was "paid to the church[.]" Id. at 71. On cross examination, however, Pastor Rousset acknowledged that he did not know how the Presbyterian church obtained title to the building. Id. at 69. The prosecution then rested "with some hesitation and reservation." Id. at 71.
After the close of the prosecution's case, S.W. moved for judgment of acquittal, asserting arguments similar to those R.K. had raised. In light of Pastor Rousset's testimony, S.W. also moved for a continuance to pursue discovery regarding the church's ownership. The prosecution took no position on the requested continuance. The district court granted the continuance and ordered briefing on the elements of 18 U.S.C. § 1153.
In its briefing before the district court, the prosecution identified the Ute Mountain Presbyterian Church as the victim of the arson. The prosecution argued that the Ute Mountain Presbyterian Church, which it considered to be an association or society, falls within the definition of "person" under 18 U.S.C. § 1153 as defined by 1 U.S.C. § 1—"the word[] `person' ... include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals." S.W. countered by arguing that the context of 18 U.S.C. § 1153 restricted "person" to only individuals, or individuals and corporations.
On March 13, 2008, the district court held a status conference on both cases. During this conference, the prosecution moved to reopen its case against S.W. S.W. objected. The district court granted the request to reopen "in the interest of justice and the truth-finding function." R. Vol. VI at 9. Counsel for R.K. agreed that "if the Court wants to go forward on [S.W.'s] case, then make findings of fact and then make—then rule that's what the law is on the case, after that ... we may very well be willing to accept [that] finding of fact and ruling of law, even if it's adverse to us ... I don't see any reason why the evidence would be substantially different in [R.K.'s] case or the Court's rulings on the law would be different." Id. at 6.
Three days later, on March 17, 2008, the district court reconvened S.W.'s trial. The government presented four additional witnesses. The additional testimony addressed ownership of the church building and included the submission of leases covering periods before and after the arson, and the building's insurance policy. S.W. testified for the defense. After closing arguments, the district court found that "the Presbytery of Western Colorado is clearly a nonprofit corporation, according [to] all the documentation." R. Vol. IV at 71. Additionally, the district court found that the Ute Mountain Presbyterian Church "is ... a body or a building that was built by the Presbyterian church, the United Presbytery of Western Colorado, and is financed and run by and owned by the Presbytery of Western Colorado." Id. at 72. To support these findings, the district court relied on: (1) the lease in effect at the time of the arson that was signed by the Presbytery of Western Colorado; (2) the insurance policy naming the Presbytery of Western Colorado as the "owner or holder of the insurable interest in the Ute Mountain Presbyterian Church"; (3) the payment to the Presbytery of Western Colorado of the insurance proceeds resulting from the arson; and (4) "that the entire course of conduct by everyone involved here treats this piece of property, namely the church building ..., as the property of the Presbytery of Western Colorado." Id. at 73. Based on these findings,1 the district court found there was "adequate proof that [S.W.] committed arson against the property of a person, namely the Presbytery of Western Colorado, a body corporate." Id. at 75.
On April 7, 2008, the district court reconvened R.K.'s trial. The parties stipulated that evidence from the second segment of S.W.'s trial would be treated as evidence in R.K.'s trial. The district court made similar factual findings as were made in S.W.'s trial.
After disposition hearings were held for S.W. and R.K. and judgments were filed, defendants filed timely appeals. We granted defendants' joint motion to consolidate the appeals.
There are four issues on appeal: (1) the proper definition of "person" in 18 U.S.C. § 1153's language "[a]ny Indian who commits against the person or property of another Indian or other person any of the following offenses ..."; (2) whether the prosecution provided sufficient evidence to prove beyond a reasonable doubt that the owner of the Ute Mountain Presbyterian Church was a "person" under this definition; (3) whether the district court abused its discretion in allowing the prosecution to reopen its case and present evidence concerning the ownership of the Ute Mountain Presbyterian Church; and (4) whether the information, which did not set out who owned the Ute Mountain Presbyterian Church, sufficiently charged defendants with a violation of 18 U.S.C. § 1153.
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