NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

EDWARD ANTHONY TORRES, AKA 

Anthony Pac, AKA Eddie Durate, AKA 

Eddie Torres, 

Defendant-Appellant.

No. 18-30140 

D.C. No. 

4:18-cr-00004-BMM-1 

MEMORANDUM*

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.

FILED

JUN 17 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

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 nonIndian 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-inchief, 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 
3 

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. 
4 

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 casein-chief to determine F.P. was an Indian. Indian status is determined by a multifactor 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.