United States v. Simpkins

90 F.4th 1312

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 24, 2024
• Docket: 22-7048
• Status: Published

Opinion

Appellate Case: 22-7048 Document: 010110989078 Date Filed: 01/24/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS January 24, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-7048

MONTELITO SANCHEZ SIMPKINS,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:21-CR-00220-DCJ-1) _________________________________

Nicole Dawn Herron, Research and Writing Specialist (Scott Graham, Federal Public Defender; Douglas G. Smith, II, Assistant Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Muskogee, Oklahoma, for Defendant- Appellant.

Lisa C. Williams, Special Assistant United States Attorney (Christopher J. Wilson, United States Attorney, with her on the brief), Muskogee, Oklahoma, for Plaintiff- Appellee. _________________________________

Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges. _________________________________

MORITZ, Circuit Judge. _________________________________

A jury convicted Montelito Simpkins of sexually abusing a minor and

engaging in abusive sexual contact in Indian country. On appeal, Simpkins argues Appellate Case: 22-7048 Document: 010110989078 Date Filed: 01/24/2024 Page: 2

that the government presented insufficient evidence for a reasonable jury to find that

he is not an Indian—an essential element of his offenses under the Indian Country

Crimes Act, 18 U.S.C. § 1152. The government concedes that it offered no evidence

of Simpkins’s non-Indian status at trial, yet it argues that he cannot obtain relief

because he invited the error by omitting this element from his proposed jury

instructions. But we must assess the sufficiency of the evidence against the legal

elements of the offenses, not against the elements listed in the jury instructions.

Additionally, Simpkins preserved his sufficiency challenge by bringing a general

motion for acquittal at trial. And because the evidence was insufficient to prove

Simpkins’s non-Indian status, we must reverse his convictions and remand for the

district court to enter a judgment of acquittal.

Background

In August 2021, the government charged Simpkins with sexual abuse of a

minor and abusive sexual contact, in violation of 18 U.S.C. §§ 2243(a) and

2244(a)(3). Because the offenses occurred on an Indian reservation, the government

indicted Simpkins under 18 U.S.C. § 1152. That statute extends the general laws of

the United States to Indian country, yet it applies only if either the victim or the

defendant—but not both—is an Indian. Id.; see also United States v. Walker, 85 F.4th

973, 979 (10th Cir. 2023). The indictment alleged that Simpkins’s victims were

Indians, but it did not address whether he was non-Indian.

In October 2021, Simpkins proceeded to trial. At the close of the government’s

case, Simpkins moved for judgment of acquittal under Federal Rule of Criminal

2 Appellate Case: 22-7048 Document: 010110989078 Date Filed: 01/24/2024 Page: 3

Procedure 29(a). Simpkins gave no specific grounds to support his oral motion, and

the district court summarily denied it without asking him to elaborate or requesting a

response from the government. After testifying in his own defense, Simpkins

renewed his general motion for acquittal, which the district court again summarily

denied.

The district court then instructed the jury. Relevant here, the jury instructions

did not include Simpkins’s non-Indian status as an element of either charged offense,

an omission that neither party objected to and that was consistent with the parties’

proposed instructions. The jury ultimately found Simpkins guilty on both counts. At

sentencing, the district court imposed an eight-year prison term and a ten-year term

of supervised release. Simpkins appeals.

Analysis

Simpkins raises various challenges to his convictions and sentence, but we

begin and end with his sufficiency challenge. To convict Simpkins under § 1152, the

government needed to prove, among other things, that (1) he is not an Indian and

(2) his victims are Indians. See United States v. Prentiss, 256 F.3d 971, 980 (10th

Cir. 2001) (en banc) (holding that “the Indian/non-Indian statuses of the victim and

the defendant are essential elements of [any] crime” prosecuted under § 1152 that the

government must prove beyond reasonable doubt), overruled in part on other

grounds by United States v. Cotton, 535 U.S. 625 (2002). Simpkins argues on appeal

that the government offered insufficient evidence to prove his non-Indian status. But

3 Appellate Case: 22-7048 Document: 010110989078 Date Filed: 01/24/2024 Page: 4

before turning to the merits of that argument, we must first consider our standard of

review.

I. Standard of Review

Simpkins contends that our review is de novo. See United States v. Johnson,

821 F.3d 1194, 1201 (10th Cir. 2016) (noting that we review preserved sufficiency

challenges de novo). The government, for its part, invokes the invited-error doctrine

and urges us not to review Simpkins’s sufficiency challenge at all. “The invited-error

doctrine prevents a party who induces an erroneous ruling from being able to have it

set aside on appeal.” United States v. Jereb, 882 F.3d 1325, 1338 (10th Cir. 2018)

(quoting United States v. Morrison, 771 F.3d 687, 694 (10th Cir. 2014)). And

according to the government, the doctrine bars Simpkins from challenging the

sufficiency of the evidence to establish his non-Indian status because he proposed a

jury instruction that omitted this essential element. After all, the government

observes, we regularly apply the invited-error doctrine when defendants challenge

jury instructions on appeal that they themselves proposed below. See, e.g., id. at

1335–41; United States v. Hunter, 739 F.3d 492, 493–94 (10th Cir. 2013); United

States v. Sturm, 673 F.3d 1274, 1280–81 (10th Cir. 2012).

To be sure, the invited-error doctrine could bar Simpkins from challenging the

jury instructions on the ground that they failed to identify his non-Indian status as an

essential element of the charged crimes. See Jereb, 882 F.3d at 1335–41. But a

challenge to the sufficiency of the evidence is a separate claim of error that “does not

rest on how the jury was instructed.” Musacchio v. United States, 577 U.S. 237, 243

4 Appellate Case: 22-7048 Document: 010110989078 Date Filed: 01/24/2024 Page: 5

(2016). Indeed, when faced with a sufficiency challenge, a court asks only “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. (second emphasis added) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)). In other words, the court “must decide whether there was sufficient evidence

presented at trial for a reasonable jury, properly instructed, to have found [the

essential elements of the crime] beyond a reasonable doubt.” United States v. Wyatt,

964 F.3d 947, 951 (10th Cir. 2020) (emphasis added). The reason for this standard is

simple: “allow[ing] a conviction to stand where the defendant’s conduct ‘fails to

come within the statutory definition of the crime,’ or despite insufficient evidence to

support it, would violate the Due Process Clause.” United States v. Hillie, 14 F.4th

677, 683 (D.C. Cir. 2021) (quoting Griffin v. United States, 502 U.S. 46, 59 (1991)).

Because a court must assess a sufficiency challenge against the legal elements of the

crime, not against the elements listed in the jury instructions, Simpkins did not

“induce[] the [district] court to rely on a particular erroneous proposition of law” by

offering a jury instruction that omitted an element. Jereb, 882 F.3d at 1338 (quoting

Morrison, 771 F.3d at 694). So any error in the jury instructions does not affect our

sufficiency review—even if Simpkins invited the instructional error.

Resisting this conclusion, the government urged us at oral argument to

disregard the relevant language in Musacchio as dicta. Indeed, Musacchio directly

addressed only “how a court should assess a sufficiency challenge when a jury

instruction adds an element to the charged crime and the [g]overnment fails to

5 Appellate Case: 22-7048 Document: 010110989078 Date Filed: 01/24/2024 Page: 6

object,” holding that such a challenge “should be assessed against the elements of the

charged crime.” 577 U.S. at 243 (emphasis added). Here, by contrast, the jury

instructions omitted an essential element, and the government says Simpkins invited

that error.1 But we see no reason why a different result should follow here. As in

Musacchio, assessing Simpkins’s sufficiency challenge against the legal elements of

the charged crimes “flows from the nature of a court’s task in evaluating a

sufficiency-of-the-evidence challenge.” Id.; cf. also Wyatt, 964 F.3d at 950–52

(measuring sufficiency against legal elements of crime where jury instructions

omitted essential element, although defendant did not invite that instructional error).

We also consider ourselves “bound by Supreme Court dicta almost as firmly as by

the Court[’]s[] outright holdings, particularly when the dicta is recent and not

enfeebled by later statements” and when it “squarely relates to the holding[] itself.”

Schell v. Chief Just. & Justs. of Okla. Sup. Ct., 11 F.4th 1178, 1191 (10th Cir. 2021)

(alterations in original) (quoting Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1125

(10th Cir. 2015)). We therefore reject the government’s argument that the invited-

error doctrine bars Simpkins’s sufficiency challenge.

The government next contends that even if the invited-error doctrine does not

apply, we should review Simpkins’s sufficiency challenge only for plain error.2 See

1 We pause to note that the government is at least as much at fault for this instructional error. Neither party’s proposed instructions included the essential element of Simpkins’s non-Indian status, and at no point did the government alert the district court of that omission. 2 We reject the government’s cursory suggestion that Simpkins’s appellate “argument is simply an attack on the failure to properly allege the elements of the 6 Appellate Case: 22-7048 Document: 010110989078 Date Filed: 01/24/2024 Page: 7

United States v. Cooper, 654 F.3d 1104, 1117 (10th Cir. 2011) (explaining that plain-

error standard “governs our review of . . . forfeited [sufficiency] claims”).

Repackaging its invited-error argument, the government asserts that Simpkins

forfeited his sufficiency challenge because his two motions for acquittal “were

predicated on . . . the jury instruction [he] proposed,” which omitted the element of

his non-Indian status. Aplee. Br. 26. But neither motion specifically attacked the

sufficiency of the evidence on the elements listed in the proposed instruction. Both

motions were general, asserting only that Simpkins moved for judgment of acquittal

under Rule 29. And we have held that “a general motion for acquittal that does not

identify a specific point of attack” challenges “the sufficiency of each essential

element of the government’s case.” Cooper, 654 F.3d at 1117 (quoting United States

v. Kelly, 535 F.3d 1229, 1234–35 (10th Cir. 2008)). Simpkins therefore preserved his

sufficiency challenge to the essential element of his non-Indian status.

Our decision in United States v. Ramos-Arenas, 596 F.3d 783 (10th Cir. 2010),

a case the government invokes, does not suggest otherwise. There, the defendant

forfeited his sufficiency challenge because (unlike Simpkins) he twice moved for

acquittal on specific grounds and then advanced a different ground on appeal, arguing

for the first time that “intent to defraud” was an implicit element of his false-

offense[s]” in the indictment and is therefore subject to plain-error review. Aplee. Br. 24; see also United States v. Langford, 641 F.3d 1195, 1196 (10th Cir. 2011) (“The failure of an indictment to allege th[e] essential element [under § 1152 of a defendant’s Indian or non-Indian status], when raised for the first time on appeal, is reviewed for plain error.”). Plainly, Simpkins is not attacking the indictment—he challenges the sufficiency of the evidence to support his convictions. 7 Appellate Case: 22-7048 Document: 010110989078 Date Filed: 01/24/2024 Page: 8

impersonation offense that the government failed to prove. Id. at 786. And when a

defendant moves for acquittal “on specific grounds, all grounds not specified in the

motion are [forfeited].” Id. (quoting United States v. Kimler, 335 F.3d 1132, 1141

(10th Cir. 2003)). To be sure, in addressing whether the defendant preserved his

sufficiency challenge, we noted that he had requested and received a jury instruction

that did not include an intent element. See id. But we did not conclude that he

forfeited his sufficiency challenge for this reason; rather, we held that the plain-error

standard applied because his specific motions for acquittal did not “challenge the lack

of intent evidence.”3 Id.

In short, our caselaw makes clear that Simpkins’s general motions for acquittal

preserved a sufficiency challenge to each essential element of the government’s case,

including his non-Indian status. That Simpkins proposed a jury instruction omitting

this essential element did not transform his general motions into specific ones. Thus,

we review Simpkins’s sufficiency challenge de novo, and not for plain error. See

Cooper, 654 F.3d at 1117.

3 The government fares no better by citing United States v. Haggerty, 997 F.3d 292 (5th Cir. 2021). There, a defendant convicted of a crime under § 1152 challenged the sufficiency of the evidence to prove his non-Indian status, but it was an open question in the Fifth Circuit at that time whether a defendant’s Indian or non-Indian status was an essential element of a § 1152 offense. Id. at 296. So although the defendant had preserved a general sufficiency challenge, the Fifth Circuit was “skeptical that [it] c[ould] apply anything but plain[-]error review” to the underlying legal argument, made for the first time on appeal, that the offense “contain[ed] an additional element that ha[d] yet to be recognized in th[e] circuit.” Id. In this circuit, by contrast, we held en banc over two decades ago that a defendant’s Indian or non- Indian status is an essential element of any offense charged under § 1152. See Prentiss, 256 F.3d at 980. So Haggerty’s skepticism simply has no relevance here. 8 Appellate Case: 22-7048 Document: 010110989078 Date Filed: 01/24/2024 Page: 9

II. Merits

Turning to the merits of Simpkins’s sufficiency argument, he contends that the

evidence was insufficient to prove that he is not an Indian, an essential element of

both charged crimes under § 1152. See Prentiss, 256 F.3d at 980. We will look at the

evidence in the light most favorable to the government and ask whether “any rational

trier of fact could have found th[at] essential element[] . . . beyond a reasonable

doubt.” Musacchio, 577 U.S. at 243 (quoting Jackson, 443 U.S. at 319).

Although the statute does not define “Indian,” we have held that a person

qualifies as an Indian under § 1152 if they have “some Indian blood” and are

“recognized as an Indian by a tribe or by the federal government.” Walker, 85 F.4th

at 982 (quoting United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012)). “A

person satisfies the definition only if both parts are met; conversely[,] the

government can prove that a person is not Indian by showing that he fails either

prong.” Diaz, 679 F.3d at 1187. Here, the government concedes that it failed to prove

Simpkins is not an Indian. Indeed, the government completely overlooked this

element and introduced no evidence of Simpkins’s non-Indian status at trial. Because

the evidence was insufficient to prove this essential element, we must reverse

Simpkins’s convictions.4

4 Given this conclusion, we need not address Simpkins’s alternative argument that the evidence was insufficient to prove his victims’ Indian status. Nor do we consider his challenge to the jury instructions, his argument that the district court violated the Federal Rules of Evidence and his Sixth Amendment right to confrontation, or his argument that the district court imposed a substantively unreasonable sentence. 9 Appellate Case: 22-7048 Document: 010110989078 Date Filed: 01/24/2024 Page: 10

Conclusion

The invited-error doctrine does not bar Simpkins’s sufficiency challenge,

which he properly preserved by bringing a general motion for acquittal at trial.

Reviewing de novo, we conclude that the government failed to present any evidence,

much less sufficient evidence, for a rational jury to find beyond a reasonable doubt

that Simpkins is not an Indian. Because his non-Indian status is an essential element

of the charged § 1152 offenses, we must reverse Simpkins’s convictions and remand

for the district court to enter a judgment of acquittal.