United States v. Edward Torres ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30140
Plaintiff-Appellee, D.C. No.
4:18-cr-00004-BMM-1
v.
EDWARD ANTHONY TORRES, AKA MEMORANDUM*
Anthony Pac, AKA Eddie Durate, AKA
Eddie Torres,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted June 4, 2019**
Portland, Oregon
Before: MURGUIA and HURWITZ, Circuit Judges, and STATON,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Josephine L. Staton, United States District Judge for
the Central District of California, sitting by designation.
Edward Torres stabbed F.P. multiple times during a fight on the Blackfeet
Indian Reservation in Montana. A grand jury indicted Torres for one count of
assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1152 and
113(a)(6). Section 1152 extends the “general laws of the United States” to “Indian
country,” but excepts crimes committed by one Indian against another Indian. The
Supreme Court has further excluded from federal jurisdiction crimes committed by
a non-Indian against a non-Indian. United States v. McBratney, 104 U.S. 621, 624
(1881). “In sum, when McBratney is read together with the exception in § 1152,
the general laws of the United States extend to Indian country under § 1152 only
when an Indian perpetrator commits a crime against a non-Indian victim, or a non-
Indian perpetrator commits a crime against an Indian victim.” United States v.
Reza-Ramos, 816 F.3d 1110, 1120 (9th Cir. 2016).
Torres moved to dismiss the indictment under Federal Rule of Criminal
Procedure 12(b)(2), arguing the district court lacked subject matter jurisdiction
because neither he nor F.P. is an Indian person. The district court denied the
motion and the case proceeded to trial. At the close of the government’s case-in-
chief, Torres moved for judgment of acquittal pursuant to Rule 29 because, Torres
argued, the government failed to provide sufficient evidence proving that F.P. is an
Indian person under § 1152. The district court denied the motion. Torres renewed
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his motion after the close of his case-in-chief, which the district court again denied.
The jury convicted Torres of assault resulting in serious bodily injury.
Subject matter jurisdiction is generally a matter of law to be decided by the
judge. United States v. Gomez, 87 F.3d 1093, 1096 (9th Cir. 1996). However,
when the issue of jurisdiction is “intermeshed with questions going to the merits,
the issue should be determined at trial” by a jury. United States v. Nukida, 8 F.3d
665, 670 (9th Cir. 1993) (citation omitted). This is especially true when “the
jurisdictional requirement is also a substantive element of the offense charged.”
Id. (citation omitted).
Torres was charged under 18 U.S.C. § 113(a)(6), which requires as an
element of the offense that the assault occur within the “jurisdiction of the United
States.” To prove the jurisdictional element, the government needed to establish
that the assault was committed by a non-Indian against an Indian. See 18 U.S.C.
§ 1152; Reza-Ramos, 816 F.3d at 1119-21. The district court did not err by
allowing the ultimate issue of F.P.’s Indian status to be decided by the jury. See
Gomez, 87 F.3d at 1096-97; Nukida, 8 F.3d at 669-70. The district court
appropriately “presume[d] the truth of the allegations in the charging instruments”
that F.P was “an Indian person” in denying the Rule 12 motion, United States v.
Jensen, 93 F.3d 667, 669 (9th Cir. 1996), while preserving Torres’ Sixth
Amendment right to a jury trial on the elements of the offense.
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We review de novo the district court’s denial of a motion to acquit under
Federal Rule of Criminal Procedure 29. United States v. Sandoval-Gonzalez, 642
F.3d 717, 727 (9th Cir. 2011). “We must determine ‘whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.’”
Id. (quoting United States v. Mosley, 465 F.3d 412, 415 (9th Cir. 2006)).
Torres argues that insufficient evidence existed after the government’s case-
in-chief to determine F.P. was an Indian. Indian status is determined by a multi-
factor test: specifically, that a degree of Indian blood exists and that various
factors—tribal enrollment; government recognition formally and informally
through receipt of assistance reserved only to Indians; enjoyment of benefits of
tribal affiliation; social recognition as an Indian through residence on a reservation
and participation in Indian social life—indicate tribal or government recognition as
an Indian. United States v. Bruce, 394 F.3d 1215, 1223-24 (9th Cir. 2005). The
government presented sufficient evidence to show that F.P. is an Indian person
under this test. See id. at 1225-27; see also United States v. LaBuff, 658 F.3d 873,
877-79 (9th Cir. 2011); Reza-Ramos, 816 F.3d at 1121-22.
AFFIRMED.
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