U.S. v. Prentiss, 98-2040

• Decision Date: 24 February 2000
• Docket Number: No. 98-2040,98-2040
• Citation: 206 F.3d 960
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RICCO PRENTISS, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

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206 F.3d 960 (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
RICCO PRENTISS, Defendant-Appellant. No. 98-2040 UNITED STATES COURT OF APPEALS TENTH CIRCUIT February 24, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. D.C. No. CR-97-344-JC

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Copyrighted Material Omitted

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Kevin K. Washburn, Assistant United States Attorney (John J. Kelly, United States Attorney, with him on the brief), Albuquerque, New Mexico for Plaintiff-Appellee.

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

Before BALDOCK, HENRY, and LUCERO, Circuit Judges.

HENRY, Circuit Judge.

On November 23, 1996, a jury found the defendant, Ricco Prentiss, guilty of one count of arson in violation of 18 U.S.C. §§ 81 and 1152. In this appeal, Mr. Prentiss raises the following six arguments: (1) the district court lacked subject matter jurisdiction because the government failed to allege or establish, as a prerequisite to federal jurisdiction, the Indian or non-Indian status of the defendant and victim; (2) the indictment was insufficient because it failed to allege his Indian or non-Indian status and the Indian or non-Indian status of the victim; (3) there was insufficient evidence in this case to support his conviction because the government failed to prove the Indian or non-Indian status of the defendant or victim; (4) the district court erroneously allowed the government to mischaracterize evidence and appeal to gender bias in closing arguments; (5) the district court erred in giving an Allen instruction that did not refer to the government's burden of proof; and (6) the district court erred when it required Mr. Prentiss to pay restitution for the burned dwelling.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and find that Mr. Prentiss's indictment was insufficient because it failed to allege the Indian or non-Indian status of the defendant and victim, essential elements of a conviction for arson under 18 U.S.C. §§ 81 and 1152. Because the conviction was based upon an indictment which failed to allege an essential element, it violated Mr. Prentiss's Fifth Amendment right to be tried upon charges found by a grand jury. Accordingly, we vacate Mr. Prentiss's conviction.

1.BACKGROUND

Mr. Prentiss and his wife of seven years, Cynthia Dorame, lived in a home owned by Domingo Vigil. In the early morning hours of November 23, 1996, firefighters responded to a fire at Mr. Vigil's house, located on the Tesuque Indian Pueblo in Indian country. When firefighters arrived on the scene, Mr. Prentiss was home caring for his three young children and the two children of a family friend, Karen Cata. Eventually, the fire was extinguished.

Immediately upon extinguishing the fire, the firefighters became suspicious about its origin. Testimony established that in basic firefighting courses, a firefighter learns that one rarely finds fires in multiple locations within a single building. See Rec. vol. III, at 166. In this case, firefighters encountered two "virtually identical" fires in the closets of two separate, non-adjacent back bedrooms. Id. Each fire consisted of a pile of clothing approximately two-and-a-half feet high with flames flickering one-and-a-half feet in height. The fires burned only on the surface of the piles of clothing, so firefighters

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concluded that no accelerant had been used.

Upon further investigation, firefighters discovered additional suspicious circumstances regarding the cause of the fire. They noticed a hole in the wall of a hallway, approximately four to five feet above the floor and directly above an electrical wall outlet. See id. at 175, 266. Immediately above the hole, a line of soot extended toward the ceiling. The fire investigator testified that the line of soot evinced direct flame impingement, as though someone had held a series of matches in the hole. See id. at 273-75. The electrical wall outlet below the hole also showed evidence of soot patterns reflecting flame impingement. See id. at 270-71. Fire investigators found several burned matches in the wall on top of the electrical outlet box. See id. at 176, 273-75. The outlet showed no sign of the sparking and arcing that one would have expected had the electrical socket itself failed. See id. at 274-75.

After the fire was extinguished, Mr. Prentiss made several inconsistent statements to firefighters. For example, the government presented evidence that Mr. Prentiss told fire investigators that he was watching a boxing match on HBO immediately before the fire. See Rec. vol. III, at 177, 228. However, records from HBO revealed that the boxing match had ended approximately two hours before the fire was reported. See id. at 178, 314-15.

Mr. Prentiss was indicted for one count of arson on June 4, 1997, and the case went to trial on October 30, 1997. At trial, the government argued that Mr. Prentiss attempted to start a fire in the wall socket and disguise it as a problem in the house's electrical system, and that, failing at this attempt, he started fires in the closets.

At the close of the government's case-in-chief, the parties stipulated that Mr. Vigil's home was located within the exterior boundaries of the Tesuque Indian Pueblo, north of Santa Fe, New Mexico, and that Mr. Vigil was a member of the Tesuque Pueblo. The court read the following stipulations to the jury:

[1.] The residence located at Route 11, Box 50 TP Tesuque Pueblo, New Mexico, [at] which [the] Defendant Ricco Devon Prentiss resided on November 22 and 23, 1996, is within the confines of the Tesuque Pueblo in Indian Country.

[2.] [T]he above described residence [is] owned by Domingo Vigil who is a member of the Tesuque Pueblo.

Id. at 327.

After the defense presented its case, arguing that one of the children started the fires, the jury heard closing arguments. The government asked the jury to infer that Mr. Prentiss's motive for committing arson was his frustration with the lack of control over his own life. Mr. Prentiss, the government urged, burned the house because of this frustration and to elicit attention. See Rec. vol. IV, at 520-23.

The case was submitted to the jury at the conclusion of the two-day trial. After approximately seven hours of deliberation over two days, the jury indicated it would be unable to reach a unanimous verdict. See Rec. vol. I (Pleadings), doc. 49. The district judge conferred with counsel, then gave the jury an Allen charge, instructing the jury to continue with deliberations (without surrendering honest conviction) and attempt to arrive at a verdict. See Rec. vol. I (Trial Transcript), at 4-6; Allen v. United States, 164 U.S. 492 (1896). After over an hour of continued deliberation, the jury returned a verdict of guilty.

II. ANALYSIS

Mr. Prentiss presents his first two arguments--lack of subject matter jurisdiction and sufficiency of the indictment--as separate issues. However, the underlying assertion is the same for each issue: the indictment failed to allege Mr. Prentiss's Indian or non-Indian status and the Indian

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or non-Indian status of the victim, which are necessary elements for his federal arson conviction under 18 U.S.C. § 1152.¹ Accordingly, we will treat Mr. Prentiss's challenges together as a challenge to the sufficiency of the indictment.

A. Sufficiency of Indictments Generally

We review a challenge to the sufficiency of an indictment de novo. See United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir. 1997). Rule 7(c)(1) of the Federal Rules of Criminal Procedure provides "[t]he indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." Under this rule, "[c]onvictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused[, and] [t]his has been a salutary development in the criminal law." Russell v. United States, 369 U.S. 749, 763 (1962). However, "the substantial safeguards to those charged with serious crimes cannot be eradicated under the guise of technical departures from the rules." Id.

Accordingly, we have held that "[a]n indictment is sufficient if it contains the elements of the offense charged, putting the defendant on fair notice of the charges against which he must defend, and if it enables a defendant to assert [a double jeopardy defense]." United States v. Poole, 929 F.2d 1476, 1478 (10th Cir. 1991) (quotations omitted). Focusing on the issue disputed in this case, "[a] criminal conviction will not be upheld if the indictment upon which it is based does not set forth the essential elements of the offense." United States v. Gayle, 967 F.2d 483, 485 (11th Cir. 1992) (en banc); United States v. Brown, 995 F.2d 1493, 1505 (10th Cir. 1993). This requirement serves two fundamental functions:

First, it informs the defendant of the nature and cause of the accusation as required by the Sixth Amendment of the Constitution. Second, it fulfills the Fifth Amendment's indictment requirement, ensuring that a grand jury only return an indictment when it finds probable cause to support all the necessary elements of the crime.

Gayle, 967 F.2d at 485; see also United States v. Hooker, 841 F.2d 1225, 1230 (4th Cir. 1988) ("The requirement of notice derives from the defendant's Sixth Amendment right to be informed of the nature and cause of the accusation . . . . [The requirement of the] inclusion of all elements . . . derives from the Fifth Amendment, which requires that the grand jury have considered and found all elements to be present."); United States v. Radetsky, 535 F.2d 556, 562 (10th Cir.) (holding that a sufficient indictment "is of paramount importance" and "required . . . to avoid [a] conviction on facts not found, or perhaps not even presented to, the grand jury that indicted [the defendant]"), cert. denied, 429 U.S. 8201 (1976), overruled in...