United States v. Webster

• Decision Date: 13 August 2015
• Docket Number: No. 14–1819.,14–1819.
• Citation: 797 F.3d 531
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Robert D. WEBSTER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

797 F.3d 531

UNITED STATES of America, Plaintiff–Appellee

v.Robert D. WEBSTER, Defendant–Appellant.

No. 14–1819.

United States Court of Appeals, Eighth Circuit.

Submitted: May 14, 2015.

Filed: Aug. 13, 2015.

Rehearing Denied Oct. 19, 2015.

Edouardo Zendejas, argued, Omaha, NE, for appellant.,

Michael P. Norris, AUSA, argued, Omaha, NE, for appellee.

Before WOLLMAN, SMITH, and BENTON, Circuit Judges.

Opinion

BENTON, Circuit Judge.

A jury convicted Robert Dion Webster, an Indian, of aggravated sexual abuse of a child, in violation of 18 U.S.C. § 2241(c) as extended by 18 U.S.C. § 1152. Webster appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Section 2241(c) outlaws aggravated sexual abuse of a child younger than 12 “in the special maritime and territorial jurisdiction of the United States.” 18 U.S.C. § 2241(c). It is a chapter 109A felony.

Section 1152 “provides federal jurisdiction for crimes occurring within Indian country between an Indian and a non-Indian.” United States v. Graham, 572 F.3d 954, 956 n. 3 (8th Cir.2009). It states:

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.

18 U.S.C. § 1152 (“Indian Country Crimes Act” or “General Crimes Act”).

A grand jury indicted Webster in December 2012, alleging: “Between on or about May 20, 2007 and on or about July 20, 2007, ... on and within the Omaha Indian Reservation in Indian Country, [Webster], an Indian male, did knowingly engage in a sexual act with A.C., a child who had not attained the age of 12 years, to wit: contact between the defendant's penis and the child's anus....” The indictment did not allege A.C. was a non-Indian or that Webster had not faced tribal punishment. Webster did not move to dismiss the indictment.¹

At the May 2013 trial, Webster stipulated that he is an Indian (“an enrolled member of the Omaha Tribe”) and A.C. is a non-Indian, who was eight during the alleged date-range. At oral argument, Webster's counsel said he stipulated to A.C.'s non-Indian status because “the indictment was pled like an [§ ] 1153 case.”

The district court² excluded references to a tribal complaint filed against Webster in the Omaha Tribal Court. Webster's counsel acknowledged, “It's been dismissed because of the federal—United States government bringing a case.”

The jury heard recordings of Webster's jail phone calls. The government provided a transcript to the court and Webster (but not the jury); Webster said he stipulated to the recordings based on the transcript. After the government played an excerpt, Webster's counsel said, “I think there were some things in there that were said that weren't on the transcript that was approved.” The record does not indicate what was played or how it differed from the transcript.

At the close of evidence, Webster moved for acquittal, arguing the government did not prove the absence of tribal punishment. The court denied the motion. The jury returned a guilty verdict in one hour. Two weeks later, Webster moved again for acquittal, challenging the government's failure to prove A.C.'s non-Indian status.

At sentencing, A.C. asked to testify. The court declined but received a letter from A.C. The court did not read the letter into the record or give a copy to the parties. It sentenced Webster to 30 years' imprisonment, the mandatory minimum. Two months after noticing his appeal, Webster moved the district court to produce A.C.'s letter. The court denied the motion.

II.

A.

Challenging the sufficiency of the evidence, Webster claims a variance between the evidence and the indictment's date-range.

“Whether a variance exists, and, if so, whether that variance prejudiced [Webster] are questions of law that we review de novo.” United States v. Villarreal, 707 F.3d 942, 962 (8th Cir.2013). “Where the indictment ‘fully and fairly’ apprises the defendant of the allegations against which he must defend, prejudice is absent and any variance is harmless error.” Id. “[T]he use of ‘on or about’ in an indictment relieves the government of proving that the crime charged occurred on a specific date, so long as it occurred within a reasonable time of the date specified.” United States v. Kenyon, 397 F.3d 1071, 1078 (8th Cir.2005). “And even if the proof at trial does not show that the crime occurred within a reasonable time of the date specified in the indictment, a variance between the date in the pleading and the proof is not fatal if the proof shows that the acts charged were committed within the period of the statute of limitations and prior to the date of the indictment, as long as the date is not a material element of the offense, and the defendant is not prejudiced.” Id. (brackets omitted).

Even if there were a variance with this “on or about” date-range, it was not fatal. See id. There is no statute of limitations for § 2241(c). See 18 U.S.C. § 3299 (“Notwithstanding any other law, an indictment may be found ... at any time without limitation ... for any felony under chapter 109A....”). Webster does not argue that the evidence showed the alleged act happened after the December 2012 indictment. The date is not an element of § 2241(c). See United States v. Plenty Arrows, 946 F.2d 62, 65 & n. 1 (8th Cir.1991). And there is no prejudice because the “indictment ‘fully and fairly’ apprise[d]” Webster of the allegations—that he engaged in a specific sexual act with a specific person at a certain place. See Villarreal, 707 F.3d at 962.

B.

According to Webster, A.C.'s non-Indian status and the absence of tribal punishment are “elements” of § 1152. On appeal, he makes different arguments for each “element,” and this court addresses them separately.

1.

For A.C.'s non-Indian status, Webster argues, “Due to the failure by the government to allege the Indian status of the victim in the indictment, the indictment was fatally flawed.”

Webster first challenged the indictment about A.C.'s status two weeks after the May 2013 trial. Until December 1, 2014, “A challenge that an indictment fails to state an offense ... [could] be raised at any time while the case is pending.” See United States v. Buchanan, 574 F.3d 554, 565 (8th Cir.2009), citing Fed.R.Crim.P. 12(b)(3)(B) (eff.Dec.1, 2002).³ Even so: “An indictment that is challenged after jeopardy attaches, will be upheld ‘unless the indictment is so defective that by no reasonable construction can it be said to charge the offense.’ ” Buchanan, 574 F.3d at 565 (brackets omitted). “[W]e apply a more deferential standard of review,” United States v. White, 241 F.3d 1015, 1021 (8th Cir.2001), and “an indictment that is challenged after jeopardy has attached will be liberally construed in favor of sufficiency,” United States v. Davis, 103 F.3d 660, 675 (8th Cir.1996). “An indictment is sufficient if it fairly informs the accused of the charges against him and allows him to plead double jeopardy as a bar to a future prosecution.” United States v. Mallen, 843 F.2d 1096, 1102 (8th Cir.1988).

This court has not addressed whether § 1152 establishes offense elements. “Two Supreme Court decisions indicate that the status of the victim is an element.” United States v. Prentiss, 256 F.3d 971, 975, 980 (10th Cir.2001) (en banc) (holding “the Indian/non–Indian statuses of the victim and the defendant are essential elements”), abrogated on other grounds as recognized by United States v. Sinks, 473 F.3d 1315, 1321 (10th Cir.2007). Those cases—Smith v. United States, 151 U.S. 50, 14 S.Ct. 234, 38 L.Ed. 67 (1894), and Lucas v. United States, 163 U.S. 612, 16 S.Ct. 1168, 41 L.Ed. 282 (1896) —interpreted a predecessor to § 1152, although one with “nearly identical” language. Prentiss, 256 F.3d at 975 & n. 3. See also United States v. Torres, 733 F.2d 449, 457 (7th Cir.1984) (holding “the jury must determine, as a question of fact, the victim's status as an Indian or non-Indian”).

Even if the victim's status is an element of § 1152, the indictment's failure to allege A.C.'s status did not render it “so defective that by no reasonable construction can it be said to charge the offense.” Buchanan, 574 F.3d at 565. The indictment “fairly inform[ed]” Webster of the charge against him—that he engaged in a specific sexual act with a specific person at a certain place. See Mallen, 843 F.2d at 1102. The indictment was sufficient to allow Webster to plead double jeopardy. See id.

At oral argument, Webster's counsel said he stipulated to A.C.'s non-Indian status because “the indictment was pled like an [§ ] 1153 case”—where that status is irrelevant. See 18 U.S.C. § 1153(a) (“Any Indian who commits against the person or property of another Indian or other person ... a felony under chapter 109A....”). Because the government charged Webster with a chapter 109A felony, A.C.'s status did not affect Webster's defense in this case. See United States v. White Horse, 316 F.3d 769, 771, 772 (8th Cir.2003) (discussing “complementary nature of § 1152 and § 1153 ” in case of Indian defendant charged with sexually abusing his son, in violation of § 2241(c) as extended by § 1152 ); United States v. Martin, 777 F.3d 984, 993 (8th Cir.2015) (accepting as conclusive defendant's stipulation to Indian status for purposes of § 1153 ).

2.

For tribal punishment, Webster argues, “The evidence presented was not sufficient to prove that the defendant was not punished in tribal court.”

Webster moved for acquittal on this basis at the close of evidence. This court reviews...