United States v. Haggerty

• Decision Date: 07 May 2021
• Docket Number: No. 20-50203,20-50203
• Citation: 997 F.3d 292
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Justin HAGGERTY, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

997 F.3d 292

UNITED STATES of America, Plaintiff—Appellee,

v.Justin HAGGERTY, Defendant—Appellant.

No. 20-50203

United States Court of Appeals, Fifth Circuit.

FILED May 7, 2021

Joseph H. Gay, Jr., Assistant U.S. Attorney, Neeraj Kumar Gupta, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff - Appellee

David Benjamin Gerger, Attorney, Gerger Hennessy & McFarlane, Houston, TX, Brent Evan Newton, I, Gaithersburg, MD, for Defendant - Appellant

Before Haynes, Higginson, and Oldham, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

After a stipulated-facts bench trial, Appellant Justin Haggerty was convicted of malicious injury of property located on "Indian country" in violation of 18 U.S.C. §§ 1152 and 1363. He was sentenced to 12 months and one day in prison, followed by three years of supervised release. He appeals his conviction and sentence. We AFFIRM.

I. BACKGROUND

According to the stipulated facts, on Columbus Day in 2017, Haggerty poured red paint on a statue of Nestora Piarote, an Indigenous woman, and placed a wooden cross in front of it. The statue was located in El Paso County, Texas, on land reserved to the Yselta Del Sur Indian Tribe (also known as the Tigua Indian Tribe). The tribe erected the statue to honor the women of their tribe and had unveiled it just three months earlier. It cost $92,000.¹ Law enforcement arrested Haggerty after linking him to the purchase of the wood and paint used in the crime. In addition, in the months preceding the crime, Haggerty had reposted or liked social media posts: (1) expressing concern that a statue of Christopher Columbus would be removed from Columbus Circle in New York City; (2) urging Catholics to unite to defend Columbus Day from being replaced by a "pagan" Indigenous Peoples’ Day; and (3) stating that Catholic history was being erased.²

Although the factual stipulation described Haggerty as physically appearing to be a "white male" based on surveillance footage, neither the stipulation nor the indictment described whether Haggerty was Indian or non-Indian.

After being arrested and indicted under 18 U.S.C. §§ 1152 and 1363, Haggerty pleaded not guilty and moved to dismiss the indictment on the ground that § 1363 is unconstitutionally vague. The district court denied his motion and Haggerty waived a jury trial with the government's consent and district court's approval. At the commencement of the bench trial, the district court admitted the above-described and agreed-upon stipulation of facts, and both the Government and Haggerty closed their cases without presenting additional evidence or argument.

Based on the factual stipulation, the district court convicted Haggerty. In calculating the Guidelines range for purposes of sentencing, the court applied an enhancement pursuant to U.S.S.G. § 2B1.5 because the offense involved damage to a cultural heritage resource: the statue. Relevant here, the court increased Haggerty's offense level by six because it valued the statue at $92,000. See U.S.S.G. §§ 2B1.5(b)(1)(B), 2B1.1(b)(1). Haggerty's total offense level was 13, yielding a Guidelines range of 12 to 18 months imprisonment. The court sentenced Haggerty to the low end of the range, 12 months and one day in prison, followed by three years of supervised release. Haggerty filed a timely notice of appeal.

In his appeal, Haggerty raises two issues.

First, Haggerty argues that because 18 U.S.C. § 1152 does not extend to offenses committed by Indian defendants against Indian victims, the Indian/non-Indian statuses of both the defendant and victim are essential elements of any offense prosecuted under § 1152 and therefore must be proven by the Government. Because the Government did not put forth sufficient evidence proving that Haggerty is a non-Indian, he argues there is insufficient evidence supporting his conviction.³

Second, Haggerty argues the district court erred at sentencing by incorrectly applying U.S.S.G. § 2B1.5. He claims the court should have used the repair cost of $1,800 as the "value" of the statue for purposes of applying the enhancement, rather than its $92,000 purchase price.

We take each issue in turn.

II. INDIAN/NON-INDIAN STATUS UNDER 18 U.S.C. § 1152

A. Standard of Review

Both Haggerty and the Government agree that Haggerty has preserved a general sufficiency-of-the-evidence challenge by pleading not guilty in advance of his bench trial, citing the rule first stated in Hall v. United States , 286 F.2d 676 (5th Cir. 1960). There, we held that when a defendant pleads not guilty before a bench trial , "[t]he plea of not guilty asks the court for a judgment of acquittal, and a motion to the same end is not necessary." Id. at 677 ; accord United States v. Rosas-Fuentes , 970 F.2d 1379, 1381 (5th Cir. 1992) ; United States v. Vargas , 673 F. App'x 393, 394 (5th Cir. 2016). The parties thus assert that Haggerty's sufficiency-of-the-evidence challenge relating to the purported lack of proof of his non-Indian status should be reviewed de novo.

Regardless, however, of whether Haggerty has preserved a general sufficiency-of-the-evidence challenge, there are serious reasons to think that Haggerty has not preserved the underlying legal argument that a defendant's Indian or non-Indian status is an essential element of any offense prosecuted pursuant to § 1152. For one, this court's precedent strongly suggests that even when a defendant preserves a general challenge to the sufficiency of the evidence, he must still independently preserve the legal "subissue" of whether an offense contains an additional element that has yet to be recognized in this circuit. See United States v. Brace , 145 F.3d 247, 255-58, 258 n.2 (5th Cir. 1998) (en banc).⁴

In addition, an indictment that fails to include all of the essential elements of the charged offense is defective and can be dismissed upon a defendant's motion for "failure to state an offense." FED. R. CRIM. P. 12(b)(3)(B)(v) ; accord United States v. Qazi , 975 F.3d 989, 993 (9th Cir. 2020) (citing 5 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 19.3(a)-(b) (4th ed. 2015) ). Absent good cause, such a motion must be made before trial if the basis for the motion is reasonably available and can be determined without a trial on the merits. FED. R. CRIM. P. 12(b)(3), (4)(c)(3). Here, Haggerty moved before trial to dismiss the Government's indictment on the ground that § 1363 is unconstitutional. But he chose not to attack the indictment for failure to state an offense, even though it was silent as to Haggerty's Indian or non-Indian status, and even though Haggerty's argument that his non-Indian status is an essential element of the offense was both "reasonably available" and "can be determined without a trial on the merits."

Instead, Haggerty waited until his appeal—after jeopardy had attached, and after he successfully argued for and received acceptance of responsibility credit because he sought a bench trial to "preserve issues that do not relate to factual guilt"—to make that same underlying legal argument for the first time. Thus, even though Haggerty does not purport to attack the sufficiency of the indictment on appeal, there is a serious question as to whether his failure to assert his underlying legal argument that his non-Indian status is an essential element precludes him from repackaging that argument into a sufficiency-of-the-evidence challenge on appeal.

At bottom, we are skeptical that we can apply anything but plain error review to a legal argument that is being made for the first time on appeal, especially when Haggerty passed on an available opportunity to make that same argument to the district court. See Montano v. Texas , 867 F.3d 540, 546 (5th Cir. 2017) ("[A] court of appeals sits as a court of review, not of first view." (citation omitted)); LeMaire v. La. Dept. of Transp. & Dev. , 480 F.3d 383, 387 (5th Cir. 2007) ("[A]rguments not raised before the district court are waived and cannot be raised for the first time on appeal."). Nevertheless, we pretermit a full discussion of the appropriate standard of review because we conclude that Haggerty's argument about Indian/non-Indian status fails even under de novo review, for the reasons we now explain. See United States v. Kieffer , 991 F.3d 630, 635 & n.4 (5th Cir. 2021).

B. Discussion

In relevant part, 18 U.S.C. § 1363 states that "[w]hoever, within the special maritime and territorial jurisdiction of the United States , willfully and maliciously destroys or injures any structure, conveyance, or other real or personal property" shall be liable. 18 U.S.C. § 1363 (emphasis added). Section 1363 is one of many "federal enclave laws" where, by definition, "the situs of the offense is an element of the crime," United States v. Begay , 42 F.3d 486, 498 (9th Cir. 1994). See United States v. Markiewicz , 978 F.2d 786, 797 (2d Cir. 1992) (cataloging some of the various federal enclave laws, including § 1363 ). Thus, a defendant is liable under § 1363 when he (1) willfully and maliciously destroys property (2) while located "within the special maritime and territorial jurisdiction of the United States." The former requirement is the "substantive element" of the offense, while the latter is the "jurisdictional element." See Torres v. Lynch , ––– U.S. ––––, 136 S. Ct. 1619, 1624-25, 1630-33, 194 L.Ed.2d 737 (2016) ("[T]he substantive elements of a federal statute describe the evil Congress seeks to prevent; the jurisdictional element connects the law to one of Congress's enumerated powers, thus establishing legislative authority."); see also United States v. Cowboy , 694 F.2d 1228, 1234 (10th Cir. 1982) ("[F]ederal enclave laws ... are criminal statutes enacted by Congress under its admiralty, maritime, and property powers, governing enclaves such as national parks."). "Both kinds of elements must be proved to [the factfinder] beyond a reasonable doubt." Torres , 136 S. Ct. at 1630.⁵

18 U.S.C. § 1152, known variously as the Indian...