U.S. v. Prentiss

• Decision Date: 06 December 2001
• Docket Number: No. 98-2040,98-2040
• Citation: 273 F.3d 1277
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RICCO DEVON PRENTISS, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1277

273 F.3d 1277 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RICCO DEVON PRENTISS, Defendant-Appellant.

No. 98-2040

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

December 6, 2001

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

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 briefs), Albuquerque, New Mexico, for Plaintiff-Appellee.

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

Before HENRY, BALDOCK, and LUCERO, Circuit Judges.

HENRY, Circuit Judge.

The defendant Ricco Prentiss was convicted after a jury trial of arson in Indian country, in violation of 18 U.S.C. 81 and 1152. A divided panel vacated the conviction, holding that: (1) the indictment failed to allege two essential elements of the offense (the Indian/non-Indian statuses of the victim and the defendant); and (2) that the indictment's deficiency was not subject to review for harmless error. See United States v. Prentiss, 206 F.3d 960, 966-77 (10th Cir. 2000) ("Prentiss I"). On rehearing en banc, a majority of this court agreed with the panel's conclusion that the status of the victim and that of the defendant are essential elements of the crime of arson in Indian country under 18 U.S.C. 81 and 1152. However, a majority further concluded that the indictment's failure to allege these elements was subject to review for harmless error. Thus, it remanded the case to this panel to determine "[w]hether it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" United States v. Prentiss, 256 F.3d 971, 985 (10th Cir. 2001) (en banc) ("Prentiss II") (quoting Neder v. United States, 527 U.S. 1, 15 (1999) (quoting Chapman v. California, 386 U.S. 18, 24 (1967))). Thus, the question before us is whether the omitted elements were "uncontested and supported by overwhelming evidence." Neder, 527 U.S. at 17.

Upon review of the record, we conclude that the evidence was not overwhelming and that the government has failed to establish beyond a reasonable doubt that the indictment's deficiencies "did not contribute to the verdict obtained." Id. Because this error was not harmless, we vacate Mr. Prentiss's conviction.

I. BACKGROUND

As noted in our prior opinion, 18 U.S.C. 1152 establishes federal jurisdiction over "interracial" crimes, those in which the defendant is an Indian and the victim is a non-Indian, or vice-versa. See Prentiss I, 206 F.3d at 966; see also Felix S. Cohen's Handbook of Federal Indian Law at 291 (Rennard Strickland et al. ed., 1982); Robert N. Clinton, Criminal Jurisdiction over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz. L. Rev. 503, 526-27 (1976). Although the indictment in this case did not specify the status of either the victim or the defendant, the government now points to evidence regarding both elements.

With regard to the victim, the government observes that the parties presented the following stipulation to the jury:

[1] the residence located at Route 11, Box 50 TP, Tesuque Pueblo, New Mexico, which defendant Ricco Devon Prentiss resided on November 22 and 23rd, 1996 is within the confines of the Tesuque Pueblo in Indian country[;] [2] the above described residence owned by Domingo Vigil who is a member of the Tesuque Pueblo[;] [sic] [3] this stipulation may be entered into evidence as a trial exhibit.

Rec. vol. III, at 327. The named residence was the one involved in the alleged arson.

After reading the stipulation, the trial judge asked, "So this takes from the jury the question of whether this occurred on Indian land; is that correct?' Id. (emphasis added). The prosecutor replied, "Yes, Your Honor, this is under 18 U.S.C. 1152." Id. The court then stated, "Well, okay, so part of the . . . instructions I'll give you . . . will say that this incident occurred within the exterior boundaries of the Tesuque Pueblo in Indian country, and that will bethat's one of the elements that the government has to prove, so that part of it has now been proved by this stipulation the parties entered into. So it's no longer a question that you all say, [']Well, was this Indian land or not?['] It was on Indian land." Id. at 327-28 (emphasis added).

The court's instructions to the jury adopted this approach. They stated:

[i]n order for you to find the defendant guilty of arson as charged in the indictment, you must be convinced that the government has proven beyond a reasonable doubt each of the following elements: (1) [t]he defendant set fire to or burned, or attempted to set fire to or burn, a building or structure[;] (2) [t]hat building was within the territorial jurisdiction of the United States[;] (3) [i]n setting the fire or in burning the building or structure, the defendant acted willfully or maliciously. You are instructed that the Tesuque Pueblo is within the territorial jurisdiction of the United States.

Rec. vol. I, doc. 47, Inst. 8D.

Aside from the stipulation, the only other evidence noted by the government as to the Indian status of the alleged victims is brief testimony that Mr. Vigil and Cynthia Dorame were members of the Tesuque Pueblo. See Aple's Br., filed July 28, 1998, at 20 (stating that "Lieutenant Vigil of the Tesuque Pueblo Police Department testified that both Prentiss's wife, Cynthia Dorame, who lived in the house, and Domingo Vigil, who owned the house, were members of the Pueblo" and that Ms. Dorame testified that she was a member of the Pueblo).

As to the status of Mr. Prentiss, the government relies solely on the testimony of Lieutenant Vigil. He stated that Mr. Prentiss was not a member of the Tesuque Pueblo.

II. DISCUSSION

In light of this evidence, the government maintains, the indictment's failure to allege the Indian/non-Indian statuses of the victim and the defendant did not contribute to the jury's determination that Mr. Prentiss violated 18 U.S.C. 81 and 1152. In order to prevail on that argument, the government is required to demonstrate that, in light of the evidence presented at trial, "no jury could reasonably find" that the victim of the crime was not an Indian and that Mr. Prentiss was not a non-Indian. See Neder, 527 U.S. at 16. In other words, "the[se] omitted element[s] [must be] uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error." Id. at 17; see also United States v. Mojica-Baez, 229 F.3d 292, 311 (1st Cir. 2000) (concluding that an indictment's failure to allege an element of an offense was harmless because "[t]here is no question that the petit jury would have found [the omitted element]" had it been asked to do so), cert. denied, 121 S. Ct. 2215 (2001).¹

The government's argument turns on the meaning of the term "Indian" under 1152. As the parties note, that term is not defined in the statute or in related statutes addressing criminal jurisdiction in Indian country. See Cohen, supra, at 24 (stating that "[s]everal important Indian statutes, such as the federal criminal jurisdiction statutes, . . . use the word 'Indian' without further definition."); Clinton, supra at 513 (stating that "the question of Indian status for purposes of criminal jurisdiction is perplexing" and that "[n]o statutory definition currently exists to guide courts and practitioners in determining Indian status under the federal criminal jurisdiction statutes").

In the absence of a statutory definition, this circuit has applied a two-part test for determining whether a person is an Indian for the purpose of establishing federal jurisdiction over crimes in Indian country. We have concluded that, "[f]or a criminal defendant to be subject to 1153, the court must make factual findings that the defendant '(1) has some Indian blood; and (2) is recognized as an Indian by a tribe or by the federal government.'" Scrivner v. Tansy, 68 F.3d 1234, 1241 (10th Cir. 1995) (quoting United States v. Lawrence, 51 F.3d 150, 152 (8th Cir. 1995)).² That two-part test has been applied by many other courts. See, e.g., United States v. Keys, 103 F.3d 758, 761 (9th Cir. 1996) (applying two-part test in order to determine the status of the victim in a prosecution under 1152); United States v. Torres, 733 F.2d 449, 456 (7th Cir. 1984) (concluding that jury instruction setting forth that test was "in accord with present Federal law" regarding "what constitutes an Indian for purposes of 18 U.S.C. 1153"); United States v. Broncheau, 597 F.2d 1260, 1263 (9th Cir. 1979) (applying 1153 and stating that "the term 'Indian" . . . has been judicially explicated over the years" and that the two-part test has been "generally followed by the courts"); St. Cloud v. United States, 702 F. Supp. 1456, 1460 (D.S.D. 1988) (applying two-part test); State v. Sebastian, 701 A.2d 13, 23-27 (Conn. 1997) (applying two part test and stating that "[g]enerally, the first so-called racial prong of this test must be met as well as the second, non-racial prong"); Lapier v. McCormick, 790 P.2d 983, 986 (Mont. 1990) ("expressly adopt[ing]" the two-part test, rejecting the defendant's argument that he was an Indian, and concluding that, as a result, the state court had jurisdiction over a criminal prosecution ); see generally Cohen, supra, at 24 ("Lacking criteria other than the words of the statute, the courts have taken the position in this situation that the term 'Indian' means an individual who has Indian blood and who is regarded as an Indian by his or her tribe or Indian community."). A leading scholar has expressed support for this approach. See Clinton, supra, at 520 ("[T]he inquiry in all cases where Indian status is in issue for jurisdictional purposes should be whether the person has some demonstrable biological identification as an Indian and has...