## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 18 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RONALD FRANK ROMERO, Defendant-Appellant. No. 97-2065

Appeal from the United States District Court for the District of New Mexico (D.C. No. CR. 96-127 BB)
Darryl S. Cordle, Albuquerque, New Mexico, for Defe ndant-Appellant Ronald Frank Romero. Kathleen Bliss, Assistant United States Attorney, A lbuquerque, New Mexico, (John J. Kelly, United States Attorney, with her on the briefs) for PlaintiffAppellee United States of America.

Before BALDOCK, LOGAN and EBEL , Circuit Judges.

EBEL , Circuit Judge.

Ronald Frank Romero (“Romero”), an Indian, was arre sted and indicted for aggravated assault on an Indian reservation againsttwo non-Indians. The federal1 18 U.S.C. § 1152 (1984) reads, in full: Except as otherwise expressly provided by law, the general laws of the United States as to the pun ishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, exceptthe District of Columbia, shall extend to the Indian country. This section shall not extend to offenses committed by one Indian against the person or property of anothe r Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, orto any case where, by treaty stipulations, the exclusive jurisd iction over such offenses is or may be secured to the Indian tr ibes respectively.

- 2 - government asserted criminal jurisdiction under 18 U.S.C. § 1152. 1 After receiving instructions from the court that the Gove rnment must prove the nonIndian status of the alleged victims, the jury retu rned a verdict of guilty. Romero now appeals the district court’s refusal to grant h is post-trial motion for judgment of acquittal, on the grounds that the government fa iled to offer any evidence that Romero’s alleged victims are not Indians. Romero a rgues that the non-Indian status of the victim of an Indian defendant charged under 18 U.S.C. § 1152 is an element of the crime. The Government responds by a sserting that the non-Indian status of the victim in § 1152 cases is an exceptio n to the statute which must be raised and established by the defendant. Because t he unopposed jury instructions making the non-Indian status of the victims an elem ent of the Government’s case formed the law of this case, and because there was no evidence presented on the- 3 -

Indian or non-Indian status of the alleged victims, we reverse Romero’s convictions.

I. All of the underlying events in this case occurred on the Nambe Pueblo Indian Reservation in New Mexico. On May 14, 1994, Romero approached the home of his neighbor, Lloyd Sanders (“Sanders”), to ask Sanders whether he had been involved with or knew anything about some miss ing fence posts belonging to Romero’s father. At the time, Sanders and some acq uaintances, Chris Herrera (“Herrera”) and Michael Padilla (“Padilla”), were w orking on a vehicle in front of Sanders’ home. During the course of their conversation, Romero accused Sanders of stealing his father’s fence posts. Sanders deni ed stealing the posts. A shouting match ensued, culminating in Romero retrie ving a bolt action rifle, reentering Sanders’ property, pointing the rifle at S anders, Herrera and Padilla, and screaming “I’ll kill you, I’ll kill you bastards.” The three men remained pinned behind the car for several minutes until Romero lef t. Romero was subsequently arrested and indicted in fe deral court with two counts of aggravated assault with a deadly weapon u nder 18 U.S.C. § 1152, 182 18 U.S.C. § 1152, also known as the Indian Country Crimes Act,

establishes federal jurisdiction over criminal acts against the general laws of the United States committed in Indian Country, subseque nt to the three listed exceptions. These exceptions recognize and preserv e tribal sovereignty over matters of central importance to tribal self-govern ment. See United States v. Wheeler , 435 U.S. 313, 322-26 (1978); Robert N. Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdiction al Maze , 18 Ariz. L. Rev. 503, 522 (1976); Felix S. Cohen, Handbook of Federa l Indian Law290 (1982 ed.) (noting that by excepting many offenses from the In dian Country Crimes Act Congress “manifested a broad respect for tribal sov ereignty, particularly in matters affecting only Indians.”). 18 U.S.C. § 13 (West Supp. 1997), known as the As similative Crimes Act, interalia , makes punishable under federal law any act done i n Indian Country that would be punishable if done within the jurisdiction of the state where such land is situated according to the terms of that state’s cri minal laws. See Williams v. United States , 327 U.S. 711, 713-14 (1946); Kirke Kickingbird etal., Indian Jurisdiction18 (1983). Aggravated assault is defined by N.M. Stat. Ann. § 30-3-2 as “unlawfully assaulting or striking at another with a deadly weapon.” In turn, assault is defined in the New Mexico statutes as “any unlawful act, threat or menacing conduct which causes another person to reasonably b elieve that he is in danger of receiving an immediate battery . . . .” N.M. Stat. Ann. § 30-3-1.

- 4 - U.S.C. § 13, and N.M. Stat. Ann. § 30-3-2. 2 The indictment identified Sanders and Padilla as the victims. The indictment also expressly alleged that Romero was an Indian, that his victims were non-Indians, a nd that the crime occurred in Indian Country. Sanders and Padilla testified at Romero’s jury tria l but were never asked about their Indian or non-Indian status. At the co nclusion of trial, the jury was instructed as follows:- 5 - For you to find the defendant guilty of aggravated assault by use of a deadly weapon, as charged in COUNT I of the Indictment, the government must prove to your satis faction beyond a reasonable doubt each of the following elements o f the crime: 1. The Defendant threatened Lloyd Sanders with a ri fle; 2. This caused Lloyd Sanders to believe he was aboutto be shot with the rifle; 3. A reasonable person in the same circumstances as Lloyd Sanders would have had the same belief; 4. The defendant used a rifle, as a deadly weapon; 5. Lloyd Sanders is not an Indian; 6. The defendant is an Indian; 7. The incident occurred in Indian Country; 8. The incident occurred within the State and Distri ct of New Mexico on or about May 14, 1994. You are instructed that the United States and the D efendant have stipulated to the sixth element of this offens e, and have stipulated that the place in which this offense is alleged to have occurred is within Indian country. You may accept the sixth element as being proved, and if you find that the incident occurred, you may accept the seventh element as being proved.
An identical instruction was given for Count II, w hich charged aggravated assault with a deadly weapon against Michael Padill a. It is clear from the record that the Government thought that the instructions i ncluded a stipulation that the alleged victims were non-Indians. The exchange between the court and the parties on this point went as follows:

THE COURT: Let’s talk about the jury instructions t hen while the jury is still out. Are there any objections to the instructions ?- 6 - [THE GOVERNMENT]: No, Your Honor. I did submit, ba sed upon the stipulation, an additional instruction that cla rifies that the Government need not prove that the victims were non -Indians, and that it occurred in Indian Country. And so I f eel assured that your clerk has incorporated that into the instructi ons. THE COURT: Yes, she assured me she had. And I’m go ing to check right now and make sure and see what she’s ad ded about that. Yes, at the end of the instruction that deals with the elements, she’s added, “You are instructed that the United States a nd the Defendant have stipulated to the sixth element of this offens e, and have stipulated that the place in which this offense is alleged to have occurred is within Indian country. You may accept the sixth element as being proved, and if you find that the incident occurred, you may accept the seventh element as being proved.” Is th at acceptable ? [THE GOVERNMENT]: Yes, Your Honor. [DEFENSE COUNSEL]: It is, Your Honor. I reviewed t he jury instructions over lunch, and I have no objection to them.
Notwithstanding the Government’s belief to the cont rary, it is apparent that Romero never stipulated to the non-Indian status of Sanders and Padilla, because the “sixth element” listed in the jury instructions dealt with the defendant
Romero’s status as an Indian, and not the victims’status as non-Indians, while the “seventh element” only dealt with the location of t he offense being in “Indian Country.” There was no stipulation in the record pertaining to the “fifth element,” which is the one addressing the non-India n status of the victims. Both the Government and the defense stated on the record that they had no objections to the instructions as they were read to them by th e court. Neither side raised the3 The note from the jury read as follows: “We have s ome jurors who say

that Lloyd Sanders and Michael Padilla have not bee n proven to be non-Indian, despite the statement in the instructions. Do we, as jurors, have to decide this ?” (Tr. Rec. Vol. 1 at 27.) - 7 - issue of the non-Indian status of the victims durin g trial and neither side presented evidence on that issue. During deliberations the jury asked if it was requi red to determine whether the victims were non-Indians. See United States v. Romero , No. CR 96-127 BB, at 2 (D.N.M. Nov. 12, 1996) (unpublished order). 3 After conferring with counsel for both sides, the court simply informed the jury that it was the jury’s job to decide “every element of the crimes charged.” Bot h the Government and the defense agreed to this response. The jury returned a verdict of guilty on both counts. See id. at 30. Romero filed a motion for a judgment of acquittal u nder Fed. R. Crim. P. 29(c). Romero argued that the Government had faile d to meet its burden of proving that the victims were non-Indians, thus he could not be convicted under 18 U.S.C. § 1152. The district court determined t hat notwithstanding the instruction, the non-Indian status was a matter of defense to be proved by the defendant. Accordingly, the district court denied the motion. See United States
v. Romero , No. CR 96-127 BB, at 11. Romero was sentenced t o 18 months imprisonment followed by one year of supervised rel ease.4 Compare United States v. Torres , 733 F.2d 449, 456-57, 458 n.10 (7th

Cir. 1984) (holding that the non-Indian status of t he victim is an element of the offense to be proven by the Government), with United States v. Hester , 719 F.2d 1041, 1042 (9th Cir. 1983) (holding that the non-In dian status of the victim is not an element that has to be alleged and proven by the Government). - 8 - The parties in this case raise some very difficultfederal Indian law questions, namely whether under 18 U.S.C. § 1152 th e non-Indian status of the victim of an Indian defendant is an element of the crime or an exception to the statute, and if the victim’s non-Indian status is astatutory exception, then which party has the burden of raising and proving the Ind ian or non-Indian status of such victims. 4 However, we do not reach those issues because in this case the Government agreed to the jury instruction that the non-Indian status of the alleged victims is an element that must be proved by the Go vernment in order to convict Romero of the offense, and this circuit’s law of th e case doctrine now prevents us from reaching these intriguing questions. Instead, we are compelled to find that Romero’s conviction must be overturned because of t he Government’s failure to prove an element of the crime as charged to the jury.

II. This circuit’s adherence to our law of the case do ctrine was recently acknowledged by the Supreme Court in United States v. Wells , 117 S. Ct. 921 (1997). In that case, the defendants had been char ged with knowingly making a- 9 -

false statement to a federally insured bank in viol ation of 18 U.S.C. § 1014. See id. at 924. At trial, the Government had agreed to a jury instruction listing materiality of the false statement as an element of the crime, but an element to be decided by the court, not the jury. See id. The court determined that the false statements were material and the jury convicted the defendants. The Court of Appeals for the Eighth Circuit reversed the convict ions and remanded for a new trial on the ground that materiality was an elementof the crime to be decided by the jury. The Supreme Court granted the Government ’s petition for certiorari to decide if materiality of the false statement is ind eed an element of the crime under 18 U.S.C. § 1014. See id. at 925. The defendants argued that because the Government h ad agreed at trial to a jury instruction listing materiality of the false s tatement as an element of the crime the Eighth Circuit’s law of the case doctrine precluded the Government from arguing to the contrary on appeal. See id. In its holding the Court noted that “several Courts of Appeals have ruled that whe n the Government accepts jury instructions treating a fact as an element of an of fense, the ‘law of the case’ doctrine precludes the Government from denying on appeal that the crime includes [that] element.” Id. (citing United States v. Killip , 819 F.2d 1542, 1547- 48 (10th Cir. 1987); United States v. Tapio , 634 F.2d 1092, 1094 (8th Cir. 1980); United States v. Spletzer , 535 F.2d 950, 954 (5th Cir. 1976)). Despite its5 In doing so the Court held that a circuit’s adopti on of a rule such as the

law of the case doctrine: [C]annot dispositively oust this Court’s traditiona l rule that we may address a question properly presented in a petition for certiorari if it was “pressed [in] or passed on” by the Court of Appeals, United States v. Williams , 504 U.S. 36, 42, 112 S.Ct. 1735, 1739, 118 L.Ed.2d 352 (1992) (internal quotation marks and emphasis omitted). Accordingly , we have treated an inconsistency between a party’s request for a jury instruction and its position before this Court as just one of several c onsiderations bearing on whether to decide a question on which we granted ce rtiorari. See Springfield v. Kibbe , 480 U.S. 257, 259-260, 107 S.Ct. 1114, 1115-16, 9 4 L.Ed.2d 293 (1987). Here, it seems sensible to rea ch the question presented. Wells , 117 S. Ct. at 925-26. - 10 - acknowledgment that the law of the case doctrine may be adopted by the circuit courts for purposes of “controlling the party who w ishes to change its position on the way from the district court to the court of app eals,” the Supreme Court nonetheless refused to be bound by a circuit’s choi ce to follow this doctrine. 5 Id. at 925-26. In this way the Court implicitly held t hat adherence to the law of the case doctrine at the circuit level is a matter leftto the discretion of the circuit courts. See id. at 925 n.4 (noting that the “law of the case” doct rine in contexts such as these implicates “an appellate court’s relationship to the court of trial”) (citing 18 Charles Alan Wright et al., Federal Prac tice and Procedure § 4478 (1981)). As the Supreme Court pointed out in Wells , the rule in this circuit is that agreed-upon jury instructions form “the law of the case, and the evidence must6 We note that our decision in Woodring served as a strong basis for the

rationale underlying the Fifth Circuit’s applicatio n of the law of the case doctrine in Spletzer . See Spletzer , 535 F.2d at 954. Spletzeralso relied on another Tenth Circuit opinion, United States v. Johnson , 495 F.2d 242 (10th Cir. 1974). In Johnson , the court declined to review the adequacy of an e ntrapment instruction because no objections were made to these instructio ns and they therefore became the law of the case. See id. at 244. - 11 - conform to them to support the conviction.” United States v. Cronic , 900 F.2d 1511, 1515 n.3 (10th Cir. 1990) (citing Killip , 819 F.2d at 1548). This rule has been in effect in this circuit since at least 1972, the year this court decided United States v. Woodring , 464 F.2d 1248 (10th Cir. 1972). In that case, de fendant Woodring was charged with escape from a federal pen itentiary in violation of 18 U.S.C. § 751(a). See id. at 1250. At trial, the district court instructed the jury that specific intent to escape was an element of th e crime. See id. at 1251. Woodring was convicted; on appeal he challenged his conviction on the basis that the Government failed to prove specific intent. Se e id. This court held that although “specific intent is n ot an element of § 751(a), specific intent became the law of the case when the Court gave [its instruction].” Id. We then upheld the conviction on the ground that at trial the Government had presented sufficient evidence of Woodring’s specifi c intent to escape. See id. 6 We again encountered the law of the case doctrine i n Killip , 819 F.2d at 1548. In that case, the defendants were charged w ith a number of offenses, including conspiracy to violate the RICO Act. See id. at 1544. At trial, the7 See also 18 Charles Alan Wright, et al., Federal Practice a nd Procedure

§ 4478 (1981) (“[F]ailure to object to a jury instr uction makes the instruction the law of the case for purposes of measuring the suffi ciency of the evidence.”). - 12 - Government agreed to jury instructions requiring th at, in order to convict on the RICO conspiracy charge, the jury must find that the defendants had agreed personally to commit two predicate acts. See id. at 1548. The defendants were convicted only of the RICO conspiracy charge. See id. at 1547. On appeal, the defendants challenged their convictions on the grou nds that the Government had failed to prove that they each had agreed personallyto commit two predicate acts. See id. The Government responded that under RICO case law it had only to prove that the defendants had agreed to the commission of two predicate acts by a coconspirator . See id. at 1547-48. We rejected the Government’s argument, holding thatthe unchallenged instructions, and not the case law, formed the law of the case. See id. at 1548. Because the Government had presented sufficient ev idence of agreement to commit two predicate acts only on the part of one o f the defendants, Krout, we reversed the conviction of co-defendant Teague. Se e id. at 1548-49. 7
In Michaud v. United States , 350 F.2d 131, 132 (10th Cir. 1965), the defendant was convicted of threatening the life of the President of the United States, in violation of 18 U.S.C. § 871. At trial, the court instructed the jury that in order to find that the defendant had “knowingly and willfully” made a threat8 United States v. Van Buren , 513 F.2d 1327 (10th Cir. 1975), can be

distinguished on similar grounds. There we affirme d a conviction where an erroneous instruction was given. However, we concl uded that the false instruction there did not lead to jury confusion. The issue of law of the case was not addressed nor is it clear that sufficiency of t he evidence under the erroneous element was one of the issues raised on appeal. - 13 - against the President it had to find that the defen dant had intended to carry out that threat himself. See id. at 133. We held that this interpretation of “know ingly and willfully” was an erroneous statement of the law, and that whereas a defendant “[u]sually . . . cannot claim prejudice f rom an incorrect instruction that is favorable to him,” in this case the erroneous de finition inserted “a false issue of magnitude sufficient to nullify proper consideratio n of the issues,” thus thwarting the “proper administration of justice.” Id. at 133-34. For this reason we reversed the conviction and remanded for a new trial. Michaudis distinguishable from Woodring and Killip , as well as from the case before us, for the following reasons: (1) the law of the case doctrine was not at issue in Michaud , rather the issue was whether the jury instruction s impermissibly confused the jury as to the issue bef ore it; (2) the “false issue” in question related to the proper definition of the la nguage of an element, not to a separate and distinct element that the Government b ound itself to prove by agreeing to the jury instructions; and (3) the suff iciency of the evidence to support the conviction was not raised by the defend ant. 8- 14 -

In sum, the case law in this circuit clearly establ ishes that we adhere to the law of the case doctrine, whereby the Government is required to prove all elements put forth in unchallenged instructions to the jury, even if the Government would not, under law, be otherwise requi red to do so. See Cronic , 900 F.2d at 1515 n.3; Killip , 819 F.2d at 1547-48. We note that adherence to t his doctrine does not come without some cost. For one thing, as the Supreme Court observed in Wells , the law of the case rule binds the court’s hands and restricts the court of appeals from fulfilling its usual role of reviewing lower courts’ decisions for errors of law. See Wells , 117 S. Ct. at 925-26. On the other hand, the Government chooses its charge and once it annou nces to the jury what it will have to prove, we can see the propriety of holding the Government to its charge, even though it undertook to prove an element not re quired by the law. In any event, because one panel may not overrule an earlier panel’s decision, this circuit’s adherence to the doctrine of the law of t he case can only be ended by a decision by the court en banc, or by the Supreme Co urt. Until that time, the law of the case doctrine remains in force in this circu it.

III. As discussed above, the Government admits that it p resented no evidence of the non-Indian status of Sanders and Padilla at tri al. We decline to accept the- 15 -

Government’s suggestion that the jury could have de termined that Sanders and Padilla, both of whom testified before the jury, we re non-Indians on the basis of their names, appearance, speech, and testimony thatthey did not grow up on the Nambe Pueblo. Not only did the jury’s question to the court indicate that the jury felt it had been presented with insufficient inform ation upon which to determine the non-Indian status of Sanders and Padilla, the G overnment’s suggested basis for such a determination does not obviously satisfy the complex legal definition of Indian status. See United States v. Rogers , 45 U.S. (4 How.) 567, 572-73 (1846); United States v. Lawrence , 51 F.3d 150, 152 (8th Cir. 1995); Cohen,
supra , at 19; cf. Scrivner v. Tansy , 68 F.3d 1234, 1241 (10th Cir. 1995) (applying 18 U.S.C. § 1153). Because the Government agreed to the court’s instru ctions that the nonIndian status of Sanders and Padilla was an elementnecessary for conviction, and because the Government did not offer any proof as t o the non-Indian status of those individuals, we have no choice but to reverse Romero’s convictions. See United States v. Perez , 959 F.2d 164, 168 (10th Cir. 1992) (a finding of insufficiency of the evidence bars retrial under do uble jeopardy principles).- 16 - IV. For the reasons stated above, the convictions of Ro nald Frank Romero under 18 U.S.C. § 1152 are REVERSED.