United States v. Walker

Docket Number22-5076
Decision Date30 October 2023
PartiesUNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENNETH DALE WALKER, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:21-CR-00374-JFH-1)

Keith J. Hilzendeger, Assistant Federal Public Defender (Jon M Sands, Federal Public Defender, with him on the briefs) Office of the Federal Public Defender, District of Arizona Phoenix, Arizona for Defendant - Appellant.

Elizabeth M. Dick, Assistant United States Attorney (Clinton J. Johnson, United States Attorney, and Leena Alam, Assistant United States Attorney, on the brief), Office of the United States Attorney, Northern District of Oklahoma, Tulsa, Oklahoma, for Plaintiff -Appellee.

Before HARTZ, KELLY, and MATHESON, Circuit Judges.


Kenneth Dale Walker appeals his conviction and sentence for assault resulting in serious bodily injury within Indian country, in violation of 18 U.S.C. §§ 1151, 1152, and 113(a)(6). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

A. Factual History [1]

On July 14, 2021, Mr. Walker was at the home of his adult niece, Victoria Dirickson, in Collinsville, Oklahoma, where he lived "off and on." ROA, Vol. III at 100. Mr. Walker asked Ms. Dirickson for a set of house keys. She declined because "[i]t was [her] only day off, and [she] really didn't feel like getting out and making a copy" of the keys. Id. at 102. Mr. Walker became "[r]eally aggravated," and an argument ensued in the living room. Id.

Ms. Dirickson was sitting in a recliner when Mr. Walker "headbutted" her, causing the recliner to tip back. Id. at 105. Ms. Dirickson "hit [her] head on the side table that was on the side of the couch." Id. Then, while "on top of" Ms. Dirickson, Mr. Walker "tried gouging [her] eyes out" with his thumbs. Id. He also choked her and grabbed her hair. Ms. Dirickson's breath "was cut very short to where [her] vision was starting to get a little blurry." Id. at 108. During the fight, the necklace Ms. Dirickson was wearing broke, "le[aving] a mark on [her] neck." Id. at 105. The altercation ended when Ms. Dirickson's boyfriend pulled Mr. Walker off of her.

Ms. Dirickson and her boyfriend then drove to a police station and filed a report. She discussed the attack with the officers, who took photos of her injuries. The photos showed marks under her eyes and on her neck from her necklace. Ms. Dirickson later checked herself into a hospital. The hospital intake documents noted she was in the "first trimester [of] pregnancy." Id. at 345.

B. Procedural History

We provide a brief procedural overview here and later discuss additional procedural details as relevant to our analysis.

A grand jury in the Northern District of Oklahoma indicted Mr. Walker on one count of assault resulting in serious bodily injury within Indian country, in violation of 18 U.S.C. §§ 1151, 1152, and 113(a)(6). The indictment alleged that Mr. Walker was a non-Indian and Ms. Dirickson was an Indian. The trial commenced on January 18, 2022. Two days later, the jury found Mr. Walker guilty.

At sentencing, the district court applied a two-level upward variance, imposed an 84-month sentence, and included a special anger management condition for his supervised release. The court also denied Mr. Walker's request that his sentence run concurrently with an anticipated state-court sentence.

Mr. Walker timely appealed.


On appeal, Mr. Walker argues that the district court:

(A) Lacked subject matter jurisdiction because the court erred in admitting (1) Ms. Dirickson's Certificate of Degree of Indian Blood ("CDIB") and tribal registration cards; and (2) Ms. Dirickson's and Sergeant Travis Linzy's testimony regarding Mr. Walker's status as a non-Indian.
(B) Abused its discretion in admitting the testimony of a medical expert, Dr. William Smock, because (1) the Government's expert disclosure under Federal Rule of Criminal Procedure 16 was untimely and the testimony therefore should have been excluded as a sanction, and (2) Dr. Smock's testimony improperly vouched for Ms. Dirickson's credibility.
(C) Abused its discretion in failing to give a unanimity-of-means jury instruction.
(D) Abused its discretion in failing to consider sentencing disparities arising from a possible sentence in a state case.
(E) Plainly erred in imposing an anger management condition of supervised release due to (1) insufficient notice, and (2) improper delegation of authority to the Probation Office.

We reject these arguments and affirm.

A. Subject Matter Jurisdiction

Mr. Walker argues the district court erred in admitting evidence that the Government used to show that Ms. Dirickson is an Indian and Mr. Walker is a non Indian. He further argues that without this evidence, the court would have lacked subject matter jurisdiction under 18 U.S.C. § 1152. This argument fails for two independent reasons.

First, § 1152 requires proof of Ms. Dirickson's Indian status and Mr. Walker's non-Indian status as elements of the offense. Lack of such proof may support a challenge to the conviction for insufficient evidence but, under Tenth Circuit precedent, it would not eliminate the court's subject matter jurisdiction. Second, the district court did not err in admitting the evidence in question.

1. Section 1152-Indian and Non-Indian Statuses as Essential Elements of the Offense

Mr. Walker was prosecuted under 18 U.S.C. § 1152,[2] which provides:

Except as otherwise expressly provided by law, 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, except the District of Columbia, shall extend to the Indian country.
This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.

Section § 1152 applies when "the defendant is an Indian and the victim is a non Indian, or vice-versa." United States v. Prentiss, 256 F.3d 971, 974 (10th Cir. 2001) (en banc), overruled in part on other grounds by United States v. Cotton, 535 U.S. 625 (2002); see also 1 Cohen's Handbook of Federal Indian Law § 9.02[1][d], at 744 (Nell Jessup Newton ed., 2012 ed.); Robert N. Clinton, Criminal Jurisdiction over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz. L. Rev. 503, 52627 (1976).

In United States v. Prentiss, our en banc court held that "the Indian/non-Indian statuses of the victim and the defendant are essential elements of [a] crime" under Section 1152 that the government must prove beyond a reasonable doubt. 256 F.3d at 980.[3] The court said the "[e]lements of the crime of [assault resulting in serious bodily injury] under 18 U.S.C. §§ [113] &1152, such as the Indian/non-Indian statuses of Defendant and his victim, are jurisdictional only in the sense that in the absence of those elements, no federal crime exists." Id. at 982. Further, "[i]f the Government alleged, but failed to prove those elements, we would not say the district court was deprived of subject matter jurisdiction to hear the case; rather we would say Defendant was entitled to acquittal." Id.; see United States v. Tony, 637 F.3d 1153, 1158-59 (10th Cir. 2011).[4]

As we discuss below, the district court did not abuse its discretion in admitting evidence regarding Ms. Dirickson's Indian status and Mr. Walker's non-Indian status. But, under Prentiss, even if the district court erred, excluding this evidence would not have stripped the district court of subject matter jurisdiction.

2. Evidence Regarding Indian/Non-Indian Status

Mr. Walker argues the district court erred in admitting evidence and testimony concerning Ms. Dirickson's Indian status and Mr. Walker's non-Indian status.

"A district court has broad discretion to determine the admissibility of evidence, and we review the district court's ruling for abuse of discretion." United States v. Merritt, 961 F.3d 1105, 1111 (10th Cir. 2020) (citations omitted). "Under this standard, we will not disturb a trial court's decision unless we have a definite and firm conviction that the trial court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." Id. (alterations and quotations omitted). We discern no error in the district court's evidentiary rulings.

a. Additional procedural background

i. Evidence and testimony regarding Ms. Dirickson's Indian status

At trial, Ms. Dirickson testified that she was a member of the Cherokee Nation and that she carried a "CDIB card" (Certificate of Degree of Indian Blood) in her wallet. ROA, Vol. III at 95. She was then shown her CDIB card and her Cherokee Nation registration card, which she identified, and the Government moved to enter the two cards into evidence. Mr. Walker objected on authentication grounds. The district court overruled the objection.

ii. Testimony regarding Mr. Walker's non-Indian status

Ms. Dirickson also testified she was not "aware of" Mr. Walker's membership in an Indian tribe. Id. at 97. Sergeant Travis Linzy, a police officer with the City of Collinsville, testified he had prior contacts with Mr. Walker and that Mr. Walker "was not" a member of a federally recognized Native American tribe. Id. at 195. Mr. Walker objected to Sergeant Linzy's testimony (but not Ms. Dirickson's) on foundation grounds.[5] The district court overruled the objection.

b. Legal background

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