United States v. John Clyde Walkingeagle

974 F.2d 551, 1992 U.S. App. LEXIS 20958, 1992 WL 213937

Opinions

OPINION

K.K. HALL, Circuit Judge:

John Walkingeagle, an American Indian, appeals his conviction under the Major Crimes Act, 18 U.S.C. §§ 1153, 3242 (the “Act”) of assault by striking, beating or wounding. Walkingeagle argues that the district court lost jurisdiction over lesser-included offenses when it entered a judgment of acquittal on the felony counts. We affirm.

I.

John Walkingeagle and his girlfriend, Melissa Garcia, were at Garcia’s uncle’s house on the Cherokee Indian Reservation in western North Carolina. When Garcia’s uncle and Walkingeagle began to argue, Garcia left the house. Walkingeagle pursued her and became physically abusive and belligerent. He pushed her, pulled her hair, poured beer over her head, and tried to force her to drink. Finally, he kicked her and hit her in the face, lacerating her lip.

Walkingeagle was charged with assault and battery in Cherokee tribal court. Subsequently, federal prosecutors indicted him for assault with a dangerous weapon (his fist) with intent to do bodily harm, 18 U.S.C. § 113(c) (1988), and assault resulting in serious bodily injury (a lacerated lip), 18 U.S.C. § 113(f). After Walkingeagle was indicted, the simple assault charge in the tribal court was voluntarily dismissed without prejudice.

Walkingeagle was tried before a jury. At the close of the government’s case, Walkingeagle moved for a judgment of acquittal on both counts pursuant to Fed. R.Crim.P. 29(a). The court granted the motion from the bench, finding the evidence insufficient to sustain conviction on the crimes charged.¹ Over Walkingeagle’s objection, the court instructed the jury on the lesser-included offense of assault by striking, beating, or wounding, in violation of 18 U.S.C. § 113(d).

The jury returned a verdict of guilty, and the court sentenced Walkingeagle to six months of imprisonment. This appeal followed.

II.

We must decide whether the district court retained jurisdiction over the lesser-included offense after it granted judgment of acquittal on the statutory felony counts. Jurisdiction over certain specified felonies committed by Indians on Indian lands was conferred on the federal courts in 1885 when Congress passed the Act. Jurisdiction over non-enumerated crimes was not expressly conferred on the federal courts and ordinarily remains in the Indian tribal courts.

The question of jurisdiction over lesser-included offenses under the Act arose in Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973). The Supreme Court interpreted § 3242 of the Act, which states that “[a]ll Indians committing any offense listed in the first paragraph of and punishable under section 1153 (relating to offenses committed within Indian country) of this title shall be tried in the same courts and in the same manner as are all other persons committing such offense within the exclusive jurisdiction of the United States.” Based on the clear language of the statute, the Court held that Congress intended for Indians to benefit from a lesser-offense instruction in the same way as non-Indians charged with the same offenses. Id. 412 U.S. at 210-212, 93 S.Ct. at 1997.

Keeble settled the threshold question of whether the federal courts can ever have jurisdiction over non-enumerated offenses in prosecutions under the Act. See also United States v. Bowman, 679 F.2d 798 (9th Cir.1982), cert. denied, 459 U.S. 1210, 103 S.Ct. 1204, 75 L.Ed.2d 445 (1983); United States v. John, 587 F.2d 683 (5th Cir.), cert. denied, 441 U.S. 925, 99 S.Ct. 2036, 60 L.Ed.2d 399 (1979); Felicia v. United States, 495 F.2d 353 (8th Cir.), cert. denied, 419 U.S. 849, 95 S.Ct. 88, 42 L.Ed.2d 79 (1974). Walkingeagle distinguishes Keeble by arguing that the trial court in that case charged the jury on the felony count along with the lesser offense. He concedes that the district court has jurisdiction over the lesser-included offense if the greater offense is also submitted to the jury, but he argues that the court has no jurisdiction over the lesser offense if it enters a judgment of acquittal on the charged felony counts.

Although Keeble was decided in the context of an Indian defendant’s request for an instruction on a lesser-included offense, the case turns on the language of § 3242’s procedural provision that trials under the Act shall be conducted in the same way as other federal criminal trials. Thus, a federal court has jurisdiction over a non-enumerated offense if, as a matter of federal trial procedure, the court is permitted to instruct the jury on the lesser-included, non-enumerated offense.

As a matter of procedure, a court may submit an uncharged lesser-included offense to the jury; Fed.R.Crim.P. 31(c) clearly establishes this procedure. Though this rule was originally intended to aid prosecutors whose proof of the charged offense failed, defendants more often invoke the procedure as a means of giving the jury a less serious alternative. See 8A Moore’s Federal Practice If 31.03[1] (2d ed. 1991). Though couching his argument in terms of jurisdiction, Walkingeagle actually wants us to make Rule 31(c) a one-way street, open only to him but not to the government. See Kelly v. United States, 370 F.2d 227, 229 (D.C.Cir.1966) (“Although the [lesser-included offense] doctrine may also be invoked by defendant, his right to invoke it does not extend beyond the right of the prosecutor.”), cert. denied, 388 U.S. 913, 87 S.Ct. 2127, 18 L.Ed.2d 1355 (1967). In other words, he would have us fashion a new rule of procedure for the federal courts that deal with the Act. We believe that when Congress granted jurisdiction over major felonies committed by Indians, it granted jurisdiction over all offenses included within those felonies to the extent that federal trial procedure would allow the jury to return a verdict on the lesser offenses. Our reasoning is based on the reality that a lesser-included offense is an offense that is necessarily committed upon the commission of another offense, i.e., it is “impossible to commit the greater without also having committed the lesser.” United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981). Because of the relationship between an offense and any lesser-included offenses, a jury may convict on a lesser-included offense if all the elements are proven after it determines that the evidence is insufficient on the greater offense. Consequently, there is no loss of jurisdiction over the lesser offense as a result of the jury’s evaluation of the evidence in relation to the greater offense.

Keeble shows that there is no loss of jurisdiction over the lesser-included offense where the jury finds the evidence of the “major crime” insufficient, likewise there is no loss of jurisdiction when the judge performs the same function. For purposes of jurisdiction over the lesser-included offense, we see no significance in who makes the initial determination on the sufficiency of the evidence as to the greater offense— the judge or the jury. The district court’s jurisdiction is conferred by a valid indictment charging a violation of the Act. We hold that, at trial, this jurisdiction may be exercised “in the same manner” as any other federal criminal trial.

The district court properly submitted the lesser-included offense of assault by striking, beating, or wounding to the jury, notwithstanding that it granted acquittal on the felony counts. Consequently, the judgment is affirmed.

AFFIRMED.

Footnotes

1

. Specifically, the court found that a single blow to Garcia’s mouth by defendant's hand did not make the hand a “dangerous weapon," or “an object used in a manner likely to endanger life or inflict serious bodily harm.” The court also found that the laceration of Garcia’s lip “failed to rise to the level of a ‘serious bodily injury,’ in that it was not ‘more than slight and [not] of a grave and serious nature.’’’ United States v. Walkingeagle, No. B-CR-91-105, slip op. at 2 (W.D.N.C. Oct. 3, 1991).