Appellate Case: 24-5052 Document: 47-1 Date Filed: 05/18/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 18, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-5052
GARRIN MICHAEL THOMPSON,
Defendant - Appellant. _________________________________
Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:22-CR-00118-JFH-1) _________________________________
Gregory M. Acton, Acton Law Office, PC, Albuquerque, NM, for Defendant-Appellant.
Elliot P. Anderson, Assistant United States Attorney (Clinton J. Johnson, United States Attorney, with him on the brief), United States Attorney’s Office, Northern District of Oklahoma, Tulsa, OK, for Plaintiff-Appellee. _________________________________
Before PHILLIPS, MURPHY, and EID, Circuit Judges. _________________________________
EID, Circuit Judge. _________________________________
Garrin Michael Thompson sexually abused his ten-year-old daughter in the
bathtub and bed of a hotel room in Texas. When she disclosed the incident to some
of her peers, three others came forward about their own sexually abusive experiences
with Thompson. After a three-day trial, a jury convicted Thompson of transportation Appellate Case: 24-5052 Document: 47-1 Date Filed: 05/18/2026 Page: 2
of a minor with intent to engage in criminal sexual activity, aggravated sexual abuse
of a minor in Indian Country, and coercion and enticement of a minor.
Thompson now appeals, arguing that there was insufficient evidence to prove
all the elements of the transportation of a minor and sexual abuse of a minor charges.
On the transporting a minor charge, Thompson claims that the government needed,
and failed, to prove that his “dominant purpose” for transporting his daughter to
Texas was engaging in sexual activities with her. And as for the sexual abuse charge,
Thompson argues that the government failed to prove the necessary element that he
was a non-Indian.
We affirm. First, the government did not need to prove that Thompson’s
“dominant purpose” for transporting his daughter to Texas was engaging in sexual
activities with her to convict him on the transportation charge. Rather, the statutory
provision under which Thompson was charged, 18 U.S.C. § 2423(a), required only
that the government prove that Thompson transported his daughter to Texas “with
intent” that she engage in illicit sexual activity. The government adduced sufficient
evidence for the jury to make that finding. Second, the government’s evidence—
unchallenged testimony from two of Thompson’s family members—sufficed to prove
beyond a reasonable doubt that Thompson was a non-Indian. We reject Thompson’s
contention that the government was required to disprove his Indian status through
documentary evidence or through similarly corroborated testimonial evidence.
2 Appellate Case: 24-5052 Document: 47-1 Date Filed: 05/18/2026 Page: 3
I.
In March 2022, Thompson drove his ten-year-old daughter, A.T., from their
home in Catoosa, Oklahoma, to Tyler, Texas, where A.T. was scheduled to compete
in a gymnastics meet. A.T.’s mother and Thompson’s wife, Holly—who usually
accompanied Thompson and A.T. to meets—was unable to travel because she was ill
with ulcerative colitis and had a colonoscopy scheduled for the day after the meet.
As a result, A.T. was left alone with Thompson for the duration of the trip.
The day before the competition, the pair checked into a hotel. Hoping to
swim, they changed into their bathing suits but decided to return to their room after
discovering the hot tub was closed. Thompson asked A.T. if she wanted to get into
the bathtub with him. She told him she “didn’t really want to do it,” but he insisted.
R. Vol. I at 382. Thompson then stripped naked, got into the tub, and told A.T. to
“just take [her bathing suit] off and get in.” Id. at 383. Eventually, A.T. took off her
suit and joined Thompson in the tub.
Thompson positioned A.T. on top of his stomach and “just . . . la[id] there” for
a moment. Id. at 384. He then placed his bare hand on her vagina, washed it with a
washcloth, and kissed A.T. around her neck. A.T. offered to wash his hair to get out
of the situation. After she did that, the two exited the tub and dried off, but
Thompson did not get dressed. When A.T. tried to put on her pajamas, Thompson
told her, “we don’t need that . . . you don’t need it.” Id. at 387. A.T. later joined
Thompson in bed because the couch was occupied by their luggage. Thompson
positioned her on top of him, placed his hands on her vagina, and began kissing her
3 Appellate Case: 24-5052 Document: 47-1 Date Filed: 05/18/2026 Page: 4
body. The abuse continued until A.T. asked Thompson if he was ready to go to bed,
at which point he released her.
The next morning, after A.T. competed at her meet, Thompson drove her back
to Oklahoma and instructed her not to tell her mother what had happened. A.T.,
however, told a friend, and then her sisters, about the abuse approximately one month
later.
A.T.’s disclosure prompted three others to come forward about their own
abusive experiences with Thompson.
S.T.—A.T.’s half sister and Thompson’s daughter from a prior marriage—
revealed that Thompson often “tickled” her on her inner thigh, lower stomach, and
groin during her early childhood in Broken Arrow, Oklahoma. She further testified
that when she was five or six years old, Thompson lured her into his bedroom, where
he told her to undress and get on the bed before performing oral sex on her. Each
time the abuse occurred, S.T.’s mother was out of the house.
C.S.—A.T.’s half sister and Holly’s daughter from her prior marriage—
similarly revealed that Thompson frequently touched her vagina, both clothed and
unclothed, when her mother was gone. She also claimed Thompson had sexually
touched her when she was seven or eight years old and the two were alone in a car.
On several of these occasions, Thompson lured C.S. into a room or car by promising
to buy her something in exchange. Like S.T., C.S. never told anyone about the abuse
until A.T. came forward.
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A.J.—Thompson’s brother-in-law from his prior marriage, and a minor at the
time of the following incidents—claimed that Thompson showed him a pornographic
movie while Thompson’s ex-wife was sleeping. A.J. explained that Thompson
removed his pants and masturbated, and then invited A.J. to do the same. A few
months later, again while Thompson’s ex-wife was sleeping, Thompson asked A.J. if
he would like to engage in oral sex with him. After A.J. declined, Thompson showed
A.J. several sex toys and explained how he used them on his ex-wife, A.J.’s sister.
Thompson later showed A.J. nude photographs of A.J.’s sister.
During an ensuing investigation of these incidents, the FBI learned that
Thompson had placed hidden cameras inside his home and in other areas. According
to the FBI, one video, taken from a camera hidden inside a closet, depicts one of
Thompson’s daughters undressing to take a shower and returning a few minutes later
to get dressed. A second video shows Thompson hiding a camera in the guest
bathroom of their home. And a third video includes footage of one of Thompson’s
daughters changing her shirt in the bathroom of a vacation beach house.
In September 2022, a federal grand jury in the United States District Court for
the Eastern District of Oklahoma charged Thompson with three crimes:
(1) transportation of a minor—A.T.—with intent to engage in criminal sexual
activity, in violation of 18 U.S.C. § 2423(a); (2) aggravated sexual abuse of a
minor—S.T.—in Indian Country, in violation of 18 U.S.C. §§ 1151, 1152, and
2241(c); and (3) coercion and enticement of a minor—A.J.—in violation of 18 U.S.C.
5 Appellate Case: 24-5052 Document: 47-1 Date Filed: 05/18/2026 Page: 6
§ 2422(b). 1 A jury convicted Thompson on all three counts. The district court
sentenced Thompson to life imprisonment for each of the three counts, to run
concurrently.
Thompson timely appealed, challenging the sufficiency of the evidence to
support the jury’s verdicts on Counts One and Two.
II.
In examining a sufficiency-of-the-evidence challenge, “we review the entire
record in the light most favorable to the government to determine whether the
evidence is such that a reasonable jury could find the defendant guilty beyond a
reasonable doubt.” United States v. Sapp, 53 F.3d 1100, 1103 (10th Cir. 1995)
(quotation omitted). We must affirm if “any rational trier of fact could have found
the essential elements of the crime . . . beyond a reasonable doubt.” United States v.
Emmons, 24 F.3d 1210, 1217 (10th Cir. 1994) (quotation marks omitted) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “We do not use this evaluation as a
chance to second-guess the jury’s credibility determinations, nor do we reassess the
jury’s conclusions about the weight of the evidence presented.” United States v.
Smith, 133 F.3d 737, 742 (10th Cir. 1997) (quotation omitted). Still, the evidence
supporting a jury’s verdict must be more than “a mere modicum,” Jackson, 443 U.S.
at 320 (cleaned up); the evidence “must be substantial, raising more than a mere
suspicion of guilt,” Smith, 133 F.3d at 742. But the evidence “need not conclusively
1 Thompson was not charged with sexually abusing C.S. 6 Appellate Case: 24-5052 Document: 47-1 Date Filed: 05/18/2026 Page: 7
exclude every other reasonable hypothesis and it need not negate all possibilities
except guilt” to suffice. United States v. Johnson, 42 F.3d 1312, 1319 (10th Cir.
1994) (quotation omitted).
III.
We start with Thompson’s challenge to the sufficiency of the evidence to
support the jury’s guilty verdict on Count One, transporting a minor to engage in
illegal sexual activity in violation of 18 U.S.C. § 2423(a). Thompson contends that
his conviction “must be reversed” because the government’s evidence failed to prove
that his “‘dominant’ or his ‘efficient and compelling purpose’ for taking his daughter
to the Texas gymnastics competition was to engage in unlawful sex.” Aplt. Br. at
11–12. 2
We disagree. Thompson misreads what § 2423(a) requires. And the
government’s evidence permitted the jury to find beyond a reasonable doubt what
§ 2423(a) does require—that Thompson took his minor daughter, A.T., to Texas
“with intent” that she engage in illegal sexual activity.
A.
The version of § 2423(a) under which Thompson was charged speaks only of
2 The jury was not given a “dominant purpose” instruction; it was instructed to find whether, “[a]t the time of the transportation, [Thompson] intended that A.T. would engage in unlawful sexual activity.” R. Vol. I at 286. Thompson did not object to this instruction. See Aplt. Br. at 11 n.3. Nevertheless, we review his sufficiency challenge de novo. See United States v. Simpkins, 90 F.4th 1312, 1315 (10th Cir. 2024) (“A challenge to the sufficiency of the evidence is a separate claim of error that does not rest on how the jury was instructed.” (cleaned up)). 7 Appellate Case: 24-5052 Document: 47-1 Date Filed: 05/18/2026 Page: 8
“intent,” not of “purpose.” The statute read, and still reads, “[a] person who
knowingly transports an individual who has not attained the age of 18 years in
interstate or foreign commerce . . . with intent that the individual engage . . . in any
sexual activity for which any person can be charged with a criminal offense, shall be”
guilty. 18 U.S.C. § 2423(a).
Section 2423(a) has not concerned itself with “purpose” since 1948.
Section 2423(a) is a derivative of § 4 of the Mann Act, which, when enacted in 1910,
provided:
That any person who shall knowingly persuade, induce, entice, or coerce any woman or girl under the age of eighteen years [across state lines], with the purpose and intent to induce or coerce her, or that she shall be induced or coerced to engage in prostitution or debauchery, or any other immoral practice, and shall in furtherance of such purpose knowingly induce or cause her to go and to be carried or transported as a passenger [across state lines] upon the line or route of any common carrier or carriers, shall be deemed guilty of a felony . . . .
White-Slave Traffic (Mann) Act, ch. 395, § 4, 36 Stat. 825, 826 (1910).
Section 2423(a) also “parallels” § 2 of the Mann Act, see United States v. Durham,
902 F.3d 1180, 1195 & n.8 (10th Cir. 2018), which criminalized “knowingly
transport[ing]” across state lines “any woman or girl for the purpose of prostitution or
debauchery, or for any other immoral purpose, or with the intent and purpose to
induce, entice, or compel such woman or girl” to engage in such illicit sexual
conduct. 3 Mann Act § 2, 36 Stat. at 825. In 1944, the Supreme Court interpreted § 2
3 To be sure, though, today’s § 2421(a) is the most direct descendant of the old § 2, as it also does not require that the transportee be a minor (unlike § 2423(a) and the old § 4). See 18 U.S.C. § 2421(a). 8 Appellate Case: 24-5052 Document: 47-1 Date Filed: 05/18/2026 Page: 9
of the Mann Act to be “aim[ed] to penalize only those who use interstate commerce
with a view toward accomplishing the unlawful purposes,” and the Court held that
§ 2 made it “essential that the interstate transportation have for its object or be the
means of effecting or facilitating the proscribed activities” and that “[a]n intention
that the women or girls shall engage in the [illicit sexual] conduct . . . must be the
dominant motive of such interstate movement.” Mortensen v. United States, 322
U.S. 369, 373–74 (1944).
In 1948, Congress amended § 2423 and removed all references to “purpose.”
See Act of June 25, 1948, ch. 645, § 2423, 62 Stat. 683, 812–13. This version of
§ 2423 made it a crime to “knowingly persuade[], induce[], entice[], or coerce[] any
woman or girl who has not attained her eighteenth birthday” across state lines “with
intent that she be induced or coerced to engage in prostitution, debauchery or other
immoral practice.” Id. By 1986, § 2423’s text read all but verbatim how § 2423(a)’s
does today, outlawing “knowingly transport[ing] any individual under the age of 18
years” across state lines “with intent that such individual engage in prostitution, or in
any sexual activity for which any person can be charged with a criminal offense.”
Child Sexual Abuse and Pornography Act of 1986, Pub. L. No. 99-628, § 5(b)(1),
100 Stat. 3510, 3511. 4 As the First Circuit observed soon after, “[n]either the
4 The 1986 amendments “retired the ‘purpose’ test for interstate transportation” for all the Mann Act’s antecedents. See United States v. Vang, 128 F.3d 1065, 1069 (7th Cir. 1997). But Congress brought the “purpose” language out of retirement in 1994 when it created § 2423(b), which criminalized “travel[ling] in interstate commerce . . . for the purpose of engaging in any sexual act . . . with a person under 18 years of age.” Violent Crime Control and Law Enforcement Act of 9 Appellate Case: 24-5052 Document: 47-1 Date Filed: 05/18/2026 Page: 10
purpose of, nor motive for, the transportation . . . are mentioned in the current law.”
United States v. Ellis, 935 F.2d 385, 392 (1st Cir. 1991). 5 Such “a significant change
in language is presumed to entail a change in meaning.” Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 256 (2012); see Ross v.
Blake, 578 U.S. 632, 641–42 (2016) (“When Congress amends legislation, courts
must presume it intends the change to have real and substantial effect.” (cleaned up)).
True, some of our § 2423(a) cases post-dating these amendments have
purported to apply a “dominant” or “compelling” “purpose” framework. See, e.g.,
United States v. Meacham, 115 F.3d 1488, 1495–96 (10th Cir. 1997); United States v.
Lacy, 904 F.3d 889, 900–02 (10th Cir. 2018). But these cases were wrong to do so.
1994, Pub. L. No. 103-322, § 160001(g), 108 Stat. 1796, 2037. In 2023, Congress did away with § 2423(b)’s reference to “purpose,” re-retiring the word for good. See Preventing Child Sex Abuse Act of 2023, Pub. L. No. 118-31, § 5102(c), 137 Stat. 136, 934. The 2023 amendments clarified that “intent” for all purposes in § 2423 “shall be construed as any intention to engage in [illicit sexual conduct] at the time of the interstate travel.” Id. § 5102(c)(4). The 2023 legislative preamble further stated, “Federal law does not require that an abuser’s intention to engage in sexual abuse be a primary, significant, dominant, or motivating purpose of the travel.” Id. § 5102(b)(9). We do not rely on the 2023 developments regarding § 2423(b) to inform our reading of § 2423(a). Thompson was not charged under subsection (b), and he was charged before these amendments took effect. Our discussion of the 2023 amendments is for the sake of completeness only. 5 The Eighth Circuit similarly noted, “Arguably, when Congress amended the Mann Act in 1986 . . . to remove the ‘purpose’ language . . . Congress lessened the prosecution’s burden, such that it need not prove that illegal sexual activity was a purpose of the interstate transportation at all.” United States v. Cole, 262 F.3d 704, 709 (8th Cir. 2001). Neither the First nor Eighth Circuits resolved this issue; rather, they affirmed under the “somewhat narrower and more stringent” “traditional Mann Act” approach. Ellis, 935 F.2d at 391–92; see Cole, 262 F.3d at 709. By not taking this path here, we do not suggest that the government’s evidence would not have sufficed to convict Thompson under the old standard. 10 Appellate Case: 24-5052 Document: 47-1 Date Filed: 05/18/2026 Page: 11
Section 2423(a) does not require a person’s intent that a minor engage in illicit sexual
conduct to be a “dominant,” “compelling,” or “motivating” purpose of transporting
the minor for criminal liability to attach.
Nevertheless, what we actually held in those cases was that, to violate
§ 2423(a), “it is sufficient if [illicit sexual activity] was one of [the] defendant’s
‘efficient and compelling purposes’” for interstate travel with a minor, Meacham, 115
F.3d at 1495 (quoting Dunn v. United States, 190 F.2d 496, 497 (10th Cir. 1951)), 6
and “a defendant’s . . . conviction may be sustained if one of his motivating or
dominant reasons for bringing a minor with him on the trip is for illicit sexual
activity,” Lacy, 904 F.3d at 901 (citing Meacham, 115 F.3d at 1496)). Technically,
those statements remain true. Proving that illicit sexual activity was one of the
defendant’s “dominant purposes” for transporting a minor across state lines will
“suffic[e]” to convict under § 2423(a), see Meacham, 115 F.3d at 1495–96 (emphasis
added); it is just more than what is necessary to do so. Cf. United States v. Cryar,
232 F.3d 1318, 1324 n.2 (10th Cir. 2000) (discussing favorably the argument that
“dominant purpose” was beyond what was needed to convict under 18 U.S.C.
§ 2241(c), because “[§] 2241(c) states that ‘intent,’ not ‘dominant purpose,’ is
required,” but declining to resolve the issue because “[i]f the jury convicted [the
6 Meacham’s citation to Dunn is perhaps a source of the confusion. Dunn was a § 2421 case, decided when § 2421 still referred to “purpose.” 190 F.2d at 497–98. By Dunn’s time, § 2423(a) no longer used the word “purpose.” And by Meacham’s time, § 2421 no longer used “purpose,” either. See, e.g., Vang, 128 F.3d at 1069 n.5. 11 Appellate Case: 24-5052 Document: 47-1 Date Filed: 05/18/2026 Page: 12
defendant] of violating the higher standard . . . , it of necessity convicted him of the
lower intent standard”).
In sum, § 2423(a) prohibits what it says it prohibits: the “knowing[]
transport[ation of] an individual who has not attained the age of 18 years” across
state lines “with intent that the individual engage in prostitution, or in any sexual
activity for which any person can be charged with a criminal offense.” 18 U.S.C.
§ 2423(a) (emphasis added).
B.
The evidence sufficed to prove beyond a reasonable doubt that Thompson
harbored the intent that A.T. engage in illicit sexual activities with him when he
transported her to Texas.
The government presented evidence of Thompson’s abuse against four
victims—A.J., S.T., C.S., and A.T.—and, in each case, Thompson perpetrated the
abuse when he knew there were no other adults around. Thompson invited A.J. to
engage in oral sex after Thompson’s ex-wife had gone to bed. He touched S.T.
“multiple times a week,” R. Vol. I at 420, but never when her mother was home. He
also subjected S.T. to oral sex when he knew S.T.’s mother was no longer around.
And he abused C.S. when her mother was out “grocery shopping or taking kids to
gymnastics,” id. at 490, or when she and Thompson were alone in the car. Based on
Thompson’s pattern of abusing children when he had them alone, a reasonable jury
could infer that, when Thompson realized his wife would be unable to accompany
12 Appellate Case: 24-5052 Document: 47-1 Date Filed: 05/18/2026 Page: 13
him and A.T. to the gymnastics meet, he transported A.T. to the Texas hotel with the
intent to abuse her there.
The government also adduced evidence of Thompson’s repeated use of hidden
cameras to capture footage of his daughters undressing. The jury could take this as
demonstrating a pattern of planning and preparing for inappropriate sexual acts, in
turn further supporting the inference that Thompson intended to abuse A.T. in Texas.
Thompson resists, but he does not convince. 7 He stresses that he brought A.T.
to Texas “to take her to a pre-scheduled gymnastics competition.” Aplt. Br. at 10.
He also argues that the fact that “his wife was not present was a circumstance that
was not orchestrated by him, but rather occasioned by her insistence in moving up a
colonoscopy as soon as possible.” Id. at 11. But that the opportunity for Thompson
to sexually abuse A.T. in Texas might have presented itself to Thompson fortuitously
does not mean that he did not transport A.T. to Texas “with intent” that she engage in
illegal sexual activities—namely, sexual activities with him—there. Likewise, that
Thompson brought A.T. to Texas “with intent” that she compete in her gymnastics
meet does not mean that he also did not bring her to Texas “with intent” that she
engage in sexual activities with him.
Thompson’s sufficiency challenge to his § 2423(a) conviction fails.
7 These arguments are predicated on Thompson’s erroneous view that § 2423(a) requires the above-discussed “dominant” or “compelling” “purpose.” We nonetheless discuss these arguments to show that they do not entitle Thompson to relief under the proper “intent” standard. 13 Appellate Case: 24-5052 Document: 47-1 Date Filed: 05/18/2026 Page: 14
IV.
We next turn to Thompson’s sufficiency challenge to his conviction on Count
Two, aggravated sexual abuse of a minor in Indian Country. Thompson argues that
the evidence was insufficient to support the jury’s finding on the “fourth element of
the crime,” that “Thompson was a non-Indian.” Aplt. Br. at 12 (cleaned up). 8
Count Two is predicated in part on 18 U.S.C. § 1152, which provides, in
pertinent part, that “[t]his section shall not extend to offenses committed by one
Indian against the person or property of another Indian.” This means that “§ 1152
applies when ‘the defendant is an Indian and the victim is a non-Indian, or vice-
versa.’” United States v. Walker, 85 F.4th 973, 979 (10th Cir. 2023) (quoting United
8 We note that the Tenth Circuit has granted rehearing en banc in two cases which raise the following question: “Under the General Crimes Act, 18 U.S.C. § 1152, is a defendant’s non-Indian status an essential element that the indictment must allege and on which the government must bear the initial burden of production? Or is a defendant’s non-Indian status an affirmative defense that the defendant must raise and bear the initial burden of production?” Order at 2, United States v. Ruiz, Nos. 24-2128, 24-7030 (10th Cir. May 5, 2026). However, we need not consider whether our precedent has properly allocated the burden of proving a defendant’s non-Indian status in this case because, as discussed below, the government has carried the presently imposed (and more defendant-friendly) burden of proving beyond a reasonable doubt that Thompson is a non-Indian. Additionally, Thompson’s brief states that Thompson’s non-Indian status “was an essential element to establish federal jurisdiction.” Aplt. Br. at 8. We do not take this to suggest that Thompson thinks this bears on the district court’s subject matter jurisdiction, but if it does, that is wrong. Consistent with Tenth Circuit precedent, the “[l]ack of such proof may support a challenge to the conviction for insufficient evidence but . . . it would not eliminate the court’s subject matter jurisdiction.” United States v. Walker, 85 F.4th 973, 978 (10th Cir. 2023). Instead (and how we understand Thompson’s brief to use the term), “the Indian/non-Indian statuses of [a d]efendant and his victim[] are jurisdictional only in the sense that in the absence of those elements, no federal crime exists.” Id. at 979 (quotation omitted). 14 Appellate Case: 24-5052 Document: 47-1 Date Filed: 05/18/2026 Page: 15
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)). The victim of Count
Two was S.T., a member of the Muscogee (Creek) Nation. The government thus had
to prove, as the jury was instructed, that Thompson “was a non-Indian.” R. Vol. I at
287.
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.’” United States v. Simpkins, 90 F.4th 1312, 1318 (10th Cir. 2024)
(quoting Walker, 85 F.4th at 982). Thus, “the government can prove that a person is
not an Indian by showing that he fails either prong.” Id. (quoting United States v.
Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012)).
We hold that the government adduced sufficient evidence to prove beyond a
reasonable doubt that Thompson was a non-Indian. The government put forward two
witnesses, both Thompson’s family members, who testified that Thompson was not
an Indian. One witness was S.T., the victim and Thompson’s eighteen-year-old (at
the time of trial) daughter. She testified that she and her mother are both enrolled
members of the Muscogee (Creek) Nation, and she testified that Thompson was not
an Indian. 9 The other witness was Thompson’s wife, Holly, who had been married to
9 This is how S.T. testified: Q. Is your father an Indian? A. No. Q. Is your mother an Indian?
15 Appellate Case: 24-5052 Document: 47-1 Date Filed: 05/18/2026 Page: 16
Thompson for twelve years. She also testified that Thompson is not an Indian and
that he is not a member of any federally recognized tribe. 10 She further testified that
she and S.T. had lived with Thompson since around 2010, when she and Thompson
married.
Given the two witnesses’ close familial relationships with Thompson,
Thompson’s non-Indian status was within their personal knowledge. See Walker, 85
F.4th at 983 (holding that the testimony of the defendant’s niece, who lived “off and
on” with defendant, that she was “not . . . aware of” the defendant’s membership in
any Indian tribe “was within the ambit of her reasonable personal knowledge”). And
from there, the jury could choose to believe the witnesses’ testimony to be accurate
and find that the testimony—which, critically, went entirely unchallenged by
Thompson—established the ultimate fact beyond a reasonable doubt.
A. Yes. Q. And what tribe? A. Creek Nation. Q. Are you an enrolled member of the tribe? A. Yes. R. Vol. I at 417. S.T.’s mother is Thompson’s wife from his previous marriage. 10 This is how Holly testified: Q. . . . Is he an Indian? A. No. Q. Is he a member of any federally recognized tribe? A. No. R. Vol. I at 642. 16 Appellate Case: 24-5052 Document: 47-1 Date Filed: 05/18/2026 Page: 17
Thompson argues that the testimonial evidence was insufficient to prove his
non-Indian status. He says that the government should have provided documentary
evidence—such as “genetic evidence that [ ] Thompson lacked any Indian blood,”
Aplt. Br. at 12, or evidence from “a database” to “check” whether Thompson was a
member of a federally recognized tribe, see Oral Argument at 15:50–15:57. He
alternatively argues that the government should have proven that the witnesses “had
taken a particular interest in researching [ ] Thompson’s genealogy” or “had access to
government or tribal records and had searched without success for any recognition of
[ ] Thompson as an Indian.” Aplt. Br. at 13.
We disagree. Testimony alone can suffice to satisfy the government’s burden
of proof on an element of a criminal offense—including the element that the
defendant was a non-Indian—even if the element could be satisfied more easily or
with more certainty with documentary evidence. See Cohen’s Handbook of Federal
Indian Law § 11.02[1][b][iii] (Nell Jessup Newton & Kevin K. Washburn, eds.,
2024) (“[T]he courts have given prosecutors substantial latitude in establishing non-
Indian status.”). For example, we have held this in the context of the element
(appearing in federal bank robbery and bank fraud statutes) that a bank is federally
insured. In United States v. Bindley, we held that testimony alone sufficed to prove
beyond a reasonable doubt that a bank was federally insured, even though
documentary evidence, like a certificate of insurance, might have “more clearly
prove[n] th[at] element.” 157 F.3d 1235, 1239 (10th Cir. 1998); see also United
States v. Iverson, 818 F.3d 1015, 1024–25 (10th Cir. 2016) (holding the same even
17 Appellate Case: 24-5052 Document: 47-1 Date Filed: 05/18/2026 Page: 18
though documentary evidence was “not difficult” to obtain). In reaching that
conclusion, “we emphasized” that the defendant “did not object to the evidence, did
not cross-examine the witness about it, and did not offer any contrary evidence of his
own.” Bindley, 157 F.3d at 1239 (cleaned up).
This logic applies and controls here. 11 The government did not need to present
documentary evidence to disprove Thompson’s Indian status or, by the same token,
corroborate the testimonial evidence with evidence that the witnesses had consulted
any documentary proof. 12 So holding is consistent with United States v. King, 172
F.4th 1188 (10th Cir. 2026), a case in which we held that testimony by two of the
11 We have also, albeit in a nonprecedential decision, applied Bindley’s logic to the element that the victim was an Indian. In United States v. Laskey, we held that the unchallenged testimony of (1) the victim’s mother that the victim had some Indian blood and (2) the mother and the victim that the victim was an enrolled member of a federally recognized tribe collectively sufficed to prove beyond a reasonable doubt that the victim was an Indian. No. 22-5115, 2024 WL 3898299, at *3–4 (10th Cir. Aug. 22, 2024) (unpublished). We explicitly rejected the argument that the government was required to offer either (1) documentary evidence of the defendant’s Indian blood or (2) documentary proof of tribal membership or testimony from a tribal representative. Id. We rely on Laskey for its persuasive value only. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 12 We note that, in at least some ways, it makes even less sense to require the government to provide documentary evidence of a person’s non-Indian status than it would to have required it to provide documentary evidence of a bank’s federally (FDIC-)insured status. As of the last time we were faced with this issue in the bank context, prosecutors had one-stop shops to check whether a bank was FDIC-insured: they could search through a comprehensive online federal database, or they could fax a request for a statement of coverage to the FDIC. See Iverson, 818 F.3d at 1024–25 & nn. 2, 3. But there is no such comprehensive federal database of Indian genealogy or national registry of members of federally recognized Indian tribes. See Establishing Indian Ancestry, U.S. Dep’t of the Interior, https://www.doi.gov/tribes/esablishancestr (last visited Apr. 6, 2026). 18 Appellate Case: 24-5052 Document: 47-1 Date Filed: 05/18/2026 Page: 19
defendant’s sisters sufficed to establish he was non-Indian. Id. at 1199. 13 And in
concluding that the testimonial evidence sufficed in this particular case, we again
stress that the testimony of Thompson’s wife and daughter that he was not an Indian
went wholly undisputed by Thompson. Thompson did not object to the testimony.
He did not cross-examine either witness concerning his non-Indian status. He did not
himself testify that he is an Indian. He did not even criticize this testimony during
closing argument.
The testimonial evidence in this case may not have been as strong as potential
documentary evidence that the government could have relied upon; but viewed in the
light most favorable to the government, it was sufficient. The testimonial evidence—
even though the government was tasked with proving a negative—“did not need to
irrefutably negate the possibility that” Thompson was an Indian. Cf. United States v.
Flaming, 133 F.4th 1011, 1021 (10th Cir. 2025) (holding that the government
adduced sufficient evidence that the defendant was “not a national of” his “host
nation,” assuming arguendo it was an element the government had to prove). The
unchallenged testimony of Thompson’s wife and daughter was more than a mere
modicum of evidence, see Jackson, 443 U.S. at 320, and raised more than a mere
suspicion, see Smith, 133 F.3d at 742, that Thompson was a non-Indian.
13 In King, we also rejected the defendant’s contention to that, in order to be sufficient, family member testimony needs to be supported by demonstrated genealogical knowledge. 172 F.4th at 1199 n.14. 19 Appellate Case: 24-5052 Document: 47-1 Date Filed: 05/18/2026 Page: 20
Sufficient evidence supported the jury’s finding that Thompson was not an
Indian at the time he sexually assaulted S.T.
V.
For the foregoing reasons, we AFFIRM.