FILED

United States Court of Appeals

Tenth Circuit

January 5, 2012

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KERRY RAINA BRYANT,

Defendant - Appellant.

No. 11-7029

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. No. 6:10-CR-00087-RAW-2)

Art Fleak, Tulsa, Oklahoma, for Defendant - Appellant.

Gregory Burris (and Linda A. Epperley, Assistant United States Attorneys; Mark

F. Green, United States Attorney, with him on the brief), Muskogee, Oklahoma,

for Plaintiff - Appellee.

Before KELLY, LUCERO, and TYMKOVICH, Circuit Judges.

KELLY, Circuit Judge.

Defendant-Appellant Kerry Raina Bryant appeals her conviction for theft

by an officer or employee of a gaming establishment on Indian lands. 18 U.S.C.

§§ 2, 1168. Ms. Bryant entered a conditional plea, reserving the right to appeal
the denial of her motion to dismiss for lack of jurisdiction. She was sentenced to

a two-year term of supervised probation and restitution of $4,000 was ordered. 

We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Background

On June 20, 2010, Ms. Bryant played a $1 slot machine at the Choctaw

Casino and Resort, an Indian gaming establishment. She won 90 cents and took

the ticket to her sister, who worked as a cashier. Her sister, and later codefendant, paid Ms. Bryant $4,000.91. They later split the proceeds. R. 1, 26. 

The casino noticed the missing $4,000 and saw the transaction as recorded by

cameras. On appeal, Ms. Bryant contends that no federal law was violated. Her

two-step argument is as follows: the statute upon which she was charged, 18

U.S.C. § 1168, prohibits theft by “an officer, employee, or individual licensee of

a gaming establishment operated by or for or licensed by an Indian tribe.” But

she was not a casino employee, which, for purposes of this appeal, we take as

true.1

 She acknowledges that 18 U.S.C. § 2, the aiding-and-abetting provision,

applies.2

 This rule provides that “[w]hoever commits an offense against the

1

 The indictment alleged that only Ms. Bryant’s sister was an employee. 

The government has moved to supplement the record with evidence that purports

to show that Ms. Bryant may in fact have been a casino “licensee,” since she

worked there as a “food runner.” The motion is denied as unnecessary.

2

 The indictment expressly referenced 18 U.S.C. § 2, but it need not have. 

See United States v. Maldonado-Campos, 920 F.2d 714, 715 n.1 (10th Cir. 1990)

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United States or aids, abets, counsels, commands, induces or procures its

commission, is punishable as a principal.” But she argues that this provision, too,

cannot apply to her, since it punishes crimes against the “United States,” and the

Choctaw tribe is “not the United States.” 

Discussion

This court considers sufficiency of the indictment, when properly raised, de

novo. United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006). The aidingand-abetting provision imposes “principal” liability on those who encourage or

assist in federal offenses. Ms. Bryant admits stealing from the casino, but claims

she did so as an outsider, not as an employee, which is punishable by a different

law, 18 U.S.C. § 1167—the “proper” law, in her view, to have been charged

under. The law actually charged here, § 1168, has a more severe penalty,

presumably because employee theft, which betrays the trust of an institution, is

considered more culpable. Yet the facts are that Ms. Bryant participated in a theft

that involved an employee, and, as an aider and abetter, the law declares her a

principal. If her sister had not been a cashier at the casino, matters would have

stood differently. The district court properly asserted jurisdiction under 18

U.S.C. § 1168. 

(aiding and abetting provision applies to the entire criminal code as a rule of

criminal responsibility). 

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Ms. Bryant denies that a crime against the Choctaw Nation is a crime

against the “United States.” The crime was against a gaming establishment

licensed by the National Indian Gaming Association that sits on territory subject

to the jurisdiction of the United States. Plainly, there was a crime against the

United States. See United States v. Palmer, 766 F.2d 1441, 1444 (10th Cir. 1985)

(addressing 18 U.S.C. § 1163, which prohibits theft from an Indian tribal

organization, and finding jurisdiction). 

Finally, Ms. Bryant’s arguments under 18 U.S.C. § 1152 (the “Indian

Country Crimes Act”) are not pertinent because the government did not charge

Ms. Bryant with violating § 1152 and we see no reason why it needed to. Ms.

Bryant was charged under a specific statute that prohibits her specific misdeed. 

Thus, we have no occasion to invoke the rule of lenity. Barber v. Thomas, 130

S.Ct. 2499, 2508-09 (2010). 

AFFIRMED.

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