___________

No. 96-1438

___________

United States of America, *

*

Appellee, *

*

v. * Appeals from the United States

* District Court for the

Phillip Henry Stands, also * District of South Dakota.

known as Phillip Henry *

Atkinson, also known as *

Phillip Henry Creek, *

*

Appellant. *

___________

No. 96-1439

___________

United States of America, *

*

Appellee, *

*

v. *

*

Waylon Eric Duran, *

*

Appellant. *

___________

No. 96-1494

___________

United States of America, *

*

Appellee, *

*

v. *

*

Miguel J. Duran, *

*

Appellant. *

___________

 Submitted: October 24, 1996

 Filed: January 28, 1997

___________
 The Honorable Charles B. Kornmann, United States District

1

Judge for the District of South Dakota.

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Before BOWMAN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

BOWMAN, Circuit Judge.

Phillip Stands, Waylon Duran, and Miguel Duran were tried by jury and

were convicted of various crimes related to the beating of Gary Torrez.

The defendants appeal. Finding no reversible error, we affirm the

judgments of the District Court.1

I.

The following summary of the facts reflects the evidence in the light

most favorable to the jury's verdicts. On the evening of October 28, 1994,

Phillip Stands and his wife, Candida Duran, attended several parties in

Rosebud, South Dakota, on the Rosebud Indian Reservation. Phillip and

Candida spent much of the evening in separate company, and Candida was

discovered by a tribal police officer the next morning. Because she

appeared to be injured, the officer drove her to a friend's home, where

Phillip met her. In response to Phillip's questioning, Candida said that

she had been beaten up by some women at a party the previous night. Later,

Candida told Phillip that she had been beaten by someone named Gary, whom

she had met at a party, and that this Gary had left her naked in a ditch

overnight. Phillip, who noticed that Candida's clothing was torn and her

underwear was missing, believed she had been raped as well as beaten.

Candida described Gary's appearance and told Phillip that she believed he

was the son of Shorty Jordan, Phillip's uncle.

Waylon Duran, Miguel Duran (both Candida's brothers), and Dale Stands

(Candida's cousin) stopped by Phillip's residence in Horse
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Creek, on the reservation, later on the morning of October 29. (Because

of their common surnames, we will hereinafter refer to Phillip Stands,

Candida Duran, Waylon Duran, Miguel Duran, and Dale Stands by their first

names.) Phillip put a knife in his pants and announced that he was going

to "stop" whoever had harmed Candida. Phillip, Waylon, Miguel, and Dale

drove in Phillip's car to Rosebud to determine who had beaten Candida.

After discovering that Shorty Jordan was not at home, they proceeded to

Phillip's mother's home. She did not know who Gary might be. Phillip's

mother later told an investigator that Waylon was talking about getting

even with whoever attacked Candida, and she testified that Dale suggested

that he could kill the attacker and get rid of the evidence. Silas Lincoln

arrived later and suggested that the as-yet-unidentified Gary could be Gary

Torrez, who matched Candida's description and was a son of Shorty Jordan.

Phillip, Waylon, Miguel, Dale, and Lincoln then went to look for

Torrez, whom they found at his mother's home in Rosebud. Phillip

introduced himself as Torrez's second cousin and asked if Torrez could help

him find Shorty Jordan. When they discovered that Jordan was still not at

home, the group of six went to Ghost Hawk Park, on the reservation, and

drank beer and whiskey for about thirty minutes. They then returned to

Rosebud and dropped off Lincoln. Torrez requested a ride home, but Phillip

suggested that they pawn some rings, drive to White River, and buy more

alcohol. Torrez agreed, and Phillip drove to his house to get the rings.

While the car was parked behind the house, Miguel asked Torrez to get out

of the car. At the same time, Phillip, inside the house, asked Candida if

she could identify Torrez as the man who assaulted her. She told Phillip

that Torrez was the right man.

Phillip drove north to White River, which is in Mellette County, off

the reservation. He pawned his rings and bought beer, whiskey, and

gasoline. He then suggested to Torrez that they go to see some StandsJordan family lands, and Torrez agreed. They drove
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north from White River and eventually stopped in an isolated area near the

west bank of the Little White River, where they continued to drink and

socialize. After a while, Miguel opened the trunk of the car, took out a

handful of clubs, bats, and other weapons, and handed them to Torrez,

evidently in an attempt to ensure a fair fight. Phillip told Miguel to put

the items away, which he did. Waylon asked Torrez if he could borrow his

pull-over windbreaker. As Torrez was facing Waylon, Phillip hit Torrez in

the back of the head with a shovel handle with sufficient force to break

the handle. After Torrez fell to the ground, Phillip accused him of

beating Candida the night before, which Torrez denied. Phillip, Waylon,

and perhaps Dale hit and kicked Torrez numerous times. Miguel did not have

any physical contact with Torrez, but Torrez testified that Miguel was

standing behind the others "talking about hitting, kick him." Tr. at 193.

Eventually, Miguel told the others not to hit Torrez any more, and they

ceased.

Waylon then removed Torrez's clothing, except for his socks, and said

that he could walk back to town naked, making a reference to Candida's

being left naked the night before. Phillip and Waylon gathered the

clothing and the weapons and placed them in the trunk. Miguel retrieved

some of the clothes and gave them back to Torrez. With his knife, Phillip

cut off a portion of Torrez's hair, letting out a war whoop and leaving a

three-inch laceration on Torrez's scalp. Phillip, Waylon, Miguel, and Dale

drove away, leaving Torrez unconscious and bleeding.

Approximately ten miles from the assault site, Waylon threw the

remainder of Torrez's clothing and several weapons out of the car. Phillip

drove back to his house, where a birthday party for a young relative was

underway. Various guests at the party testified that all three defendants

had blood on their clothes, Miguel and Waylon had blood on their hands, and

Miguel carried a clump of hair.
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The next morning, Torrez managed to walk several miles to the

highway, where the sheriff found him and took him to the hospital. His

forearm and the bone around his eye socket were fractured, and there was

a large cut to his shin, in addition to the scalp laceration.

II.

Phillip, Waylon, Miguel, and Dale were indicted on charges of

kidnapping, in violation of 18 U.S.C. § 1201(a)(2) (1994) (Count I);

assault with a dangerous weapon, in violation of 18 U.S.C. § 113(a)(3)

(1994) (Count II); and assault resulting in serious bodily injury, in

violation of 18 U.S.C. § 113(a)(6) (1994) (Count III). Dale pleaded guilty

to misprision of felony and testified against the other defendants. The

jury found Phillip guilty on all three counts, and the court sentenced him

to 135 months in prison. The jury found Waylon not guilty of kidnapping

but guilty on Counts II and III, and the court sentenced him to 74 months

in prison. The court granted Miguel a judgment of acquittal on the

kidnapping charge at the close of the government's case; the jury found him

not guilty on Count II but guilty on Count III. The court sentenced him

to five years' probation and a fine of $5000. After the court denied their

post-trial motions, see United States v. Atkinson, 916 F. Supp. 959 (D.S.D.

1996), all three defendants appealed their convictions.

III.

We begin with the most significant and difficult issue, whether

federal jurisdiction was properly established. This issue involves two

related inquiries: whether the government presented sufficient evidence

to identify the site of the assault, and whether that site is within

"Indian country," as defined by 18 U.S.C. § 1151 (1994). Along the way,

we will consider Miguel's argument that the jury instruction defining

Indian country was
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erroneous and the contention of all three defendants that the indictment

insufficiently identified the location of the assault.

A.

The defendants argue that the evidence is insufficient to establish

the site of the assault.

When reviewing the sufficiency of the evidence, we consider the

evidence in the light most favorable to the verdict rendered;

we accept all reasonable inferences which tend to support the

jury verdict; and while the evidence need not preclude every

outcome other than guilt, we consider whether it would be

sufficient to convince a reasonable jury beyond a reasonable

doubt. We can reverse for insufficient evidence only if no

reasonable jury could have found the defendant guilty beyond a

reasonable doubt.

United States v. Roach, 28 F.3d 729, 736 (8th Cir. 1994) (citations

omitted).

At trial, the parties disputed whether the assault occurred in

section 15 or section 22 of township 43 north, range 28 west in Mellette

County. Each section is one mile square, and section 15 is immediately

north of section 22, so we are concerned with a relatively small area. At

trial, the government argued that the assault took place in section 22,

which the government argues is within Indian country, while Phillip's

testimony placed the assault in section 15, which the government concedes

is not Indian country. We believe the evidence was sufficient for the jury

to conclude that the assault took place in section 22.

After discovering Torrez on October 30, Sheriff Cecil Brandis,

accompanied by two tribal police officers, set out to find the site of the

assault. After some investigation on the east side of the Little White

River, they crossed to the west side and turned south on an unpaved road.

They were met by John Boyles, a woodcutter who
 Another tribal officer and Phillip both testified that they 2

passed through only one gate. Nevertheless, the jury reasonably

could have credited those witnesses who testified that the site was

two gates removed from the main road. Although the parties do not

state so explicitly, we assume that the significance of the second

gate is that it is on the boundary line between sections 15 and 22.

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had seen the defendants and Torrez in the area the previous day and had

heard police transmissions on his radio scanner. Boyles led the officers

south to the spot where he had seen the defendants. Sheriff Brandis

testified that they passed through one closed gate, and he believed they

passed through another gate that was already open. Boyles and tribal

officer Kelly Iyotte also testified that they went through two gates to

reach the site, and Torrez testified that Phillip drove through two gates

before the assault. Within about 100 feet from the spot where Boyles

2

directed them, the officers discovered beer cans, some of Torrez's

clothing, a broken shovel handle, and what appeared to be blood.

Tribal investigator Grace Her Many Horses joined the officers at the

site later in the evening of October 30. She returned the next day, along

with tribal officer Christian Barrera, who had been at the scene on October

30, and Larry Marshall of Tribal Land Enterprises, an entity of the Rosebud

Sioux Tribe. Despite cross-examination by counsel for all three

defendants, both Her Many Horses and Barrera testified that they were

certain that they returned to the same location where they had been the

previous day. Marshall testified and demonstrated on two different

exhibits that the site was in the northern portion of section 22.

Finally, Sheriff Brandis, tribal officer Iyotte, tribal officer

Barrera, realty official Marshall, and FBI agent Drew McConaghy all

identified a similar location on different aerial photographs of the area.

See Ex. 24-26, 29, 41A. Judging from a signature S-curve in the river and

a change in color on the ground, which could indicate a change in ownership

at the section line, the
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jury reasonably could have found that the assault took place on section 22

rather than section 15.

B.

Having determined that the government's evidence is sufficient to

sustain its theory as to the location of the assault, we next consider the

defendants' argument that the evidence is insufficient to show that that

location is within Indian country. Kidnapping, assault with a dangerous

weapon, and assault resulting in serious bodily injury are federal offenses

when committed by an Indian in Indian country. See 18 U.S.C. § 1153(a)

(1994). The defendants stipulated that they are Indians, and that issue

is not before us. Indian country is defined as

(a) all land within the limits of any Indian reservation . . .,

(b) all dependent Indian communities . . ., and (c) all Indian

allotments, the Indian titles to which have not been

extinguished, including rights-of-way running through the same.

18 U.S.C. § 1151 (1994).

Jurisdiction over the kidnapping charge presents a relatively simple

issue. It is clear from the evidence that much of the defendants'

inveigling of Torrez--described more fully in section V-A of this opinion--

took place within the present-day boundaries of the Rosebud Reservation.

The jury was instructed that Indian country includes, inter alia, land

within the limits of any Indian reservation, as provided in § 1151(a). We

thus are satisfied that jurisdiction over the kidnapping charge was

adequately shown.

Whether the government established jurisdiction over the assault

charges is a considerably more complicated question. All of Mellette

County, where the assault occurred, has been outside the limits of the

Rosebud Reservation since 1910. See Rosebud
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Sioux Tribe v. Kneip, 430 U.S. 584, 609-15 (1977). The government does not

argue that the site of the assault is within a dependent Indian community.

Accordingly, federal jurisdiction over the assault charges is proper only

if the parcel on which the assault occurred is an Indian allotment, the

Indian title to which has not been extinguished.

Before turning directly to the merits of the sufficiency-of-theevidence question, we first clarify some of the terminology used in § 1151

and in the trial below.

Today, allotment is a term of art in Indian law, describing

either a parcel of land owned by the United States in trust for

an Indian ("trust" allotment), or owned by an Indian subject to

a restriction on alienation in favor of the United States or

its officials ("restricted fee" allotment).

Felix S. Cohen's Handbook of Federal Indian Law 615-16 (Rennard Strickland

ed., 1982 ed.). Nothing in this case turns on the distinction between the

two types of allotments, although references in the record to "trust" land

have created considerable confusion, as we shall see. Many allotments

arose out of the government's policy in the late nineteenth and early

twentieth centuries, pursuant to the General Allotment Act, of breaking up

Indian reservations into parcels to be held in trust by the United States

for individual Indians. See 25 U.S.C. §§ 331-334, 348-349 (1994); Solem

v. Bartlett, 465 U.S. 463, 466-67 (1984). When Congress later diminished

a reservation, as it did with the Rosebud reservation, see Rosebud Sioux,

430 U.S. at 609-15, allotted lands outside the new reservation boundaries

retained their allotment status, and they remain Indian country today

unless their Indian titles have been extinguished. See 18 U.S.C. § 1151(c)

(1994); Rosebud Sioux, 430 U.S. at 615 n.48; Solem, 465 U.S. at 467 n.8.

"Fee land" refers to property owned or patented in fee simple, without the

type of restrictions on alienation found in a
 In some circumstances, off-reservation tribal trust land may 3

be considered Indian country. See, e.g., United States v. Azure,

801 F.2d 336, 338-39 (8th Cir. 1986) (tribal trust land could be

considered de facto reservation or dependent Indian community).

The government has not argued that Azure or similar cases apply

here.

 Even land owned by a tribe in fee is subject to certain

4

restrictions on alienation in favor of the United States. See 25

U.S.C. § 177 (1994); Alonzo v. United States, 249 F.2d 189, 196

(10th Cir. 1957), cert. denied, 355 U.S. 940 (1958).

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restricted fee allotment. Fee land is therefore not allotted land, and fee

land beyond the boundaries of a reservation is not Indian country. "Tribal

trust land" is land owned by the United States in trust for an Indian

tribe. The Secretary of the Interior is authorized to purchase land in

trust for Indian tribes pursuant to the Indian Reorganization Act, see 25

U.S.C. § 465 (1994), and has purchased off-reservation land in trust for

tribes on a number of occasions. See, e.g., South Dakota v. United States

Dep't of Interior, 69 F.3d 878, 880 (8th Cir. 1995) (holding § 465

unconstitutional), vacated, 117 S. Ct. 286 (1996). For jurisdictional

purposes, tribal trust land beyond the boundaries of a reservation is

ordinarily not Indian country. A final category suggested by some of the 3

evidence in this case is land owned by a tribe in fee. Whether property 4

of this type is considered fee land or "tribal" land, it is not allotted

land, and so if it is outside the reservation, it is not Indian country.

We now turn to the sufficiency of the evidence to establish that the

assault occurred on allotted land, an issue we have considered only once

before. In United States v. Jewett, 438 F.2d 495 (8th Cir.), cert. denied,

402 U.S. 947 (1971), it was apparently undisputed that the land on which

the crime occurred had been allotted to an individual Indian. See id. at

497. To demonstrate that the Indian title had not been extinguished, the

government presented testimony from an official of the Bureau of Indian

Affairs (BIA). See id. He testified that records of
 This represents another situation in which tribal trust land 5

may be considered Indian country: if an allotment is transferred

to the United States in trust for a tribe and becomes tribal trust

land, it is still an allotment "the Indian title[] to which [has]

not been extinguished." 18 U.S.C. § 1151(c) (1994). No one

suggests that this possibility is relevant to this case.

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transfers of allotments were kept in his office, that each allotment was

assigned a tract number, that the card corresponding to the tract on which

the crime occurred revealed a number of transfers to Indians through

inheritance, and that the final entry indicated that the allottee had

transferred the property to the United States in trust for the tribe. See

id. The government introduced into evidence a certified copy of the deed

to the United States. See id. The witness testified further that a

records search revealed no subsequent transfers, that he had verified with

the BIA's principal office that the land was still held in trust for the

tribe, and that the Indian title to the property had therefore not been

extinguished. See id. We concluded that "[s]ubstantial evidentiary

5

support exists for the court's determination that the crime occurred in

Indian country and hence jurisdiction is established." Id. at 498.

In the instant case, the government presented a far less coherent

picture of the jurisdictional status of section 22. Insofar as we have

been able to determine, in the course of the four-day trial only three

references were made to allotments, and in none of them did a witness

identify the assault site as an allotment. See Tr. at 134 (Boyles); id.

at 314 (Marshall); Closing Arg. Tr. at 13. Other government witnesses

identified the site as "tribal property," Tr. at 25 (Brandis), "tribal

land," id. at 317 (Marshall), "tribal trust land," id. at 319 (Marshall),

and "Indian trust land," id. at 533-34 (McConaghy). Although we might

interpret Agent McConaghy's phrase "Indian trust land" as a reference to

a trust allotment, the jury did not receive an instruction that would have

enabled it to conclude that "Indian
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trust land" might signify an allotment, and so the testimony is not helpful

to the government's claim that the evidence on this issue was sufficient.

The government's confusion throughout the trial about the

jurisdictional question is best exemplified in the following exchange

between the Assistant U.S. Attorney and Larry Marshall, the tribal realty

official:

Q. Based on your education and experience, is the spot where

Grace [Her Many Horses] and Officer Chris Barrera took you, is

that tribal trust land?

A. Yes.

. . .

Q. And [are] there many areas of land that is tribal trust

land in Mellette County?

A. Yes.

Q. Administered by your office?

A. Yes.

Q. And is that Indian country as you understand the term,

based on your experience and your education?

A. It's not considered Indian country, no.

Q. It's not considered Indian country; it's tribal land?

A. No. We just have tribal land within Mellette County.

Q. And you're not--I went too far. . . .

. . .

Q. You don't have a law degree, do you?

A. No.

Q. Do you know the definition of Indian country for federal

criminal prosecution?
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A. No.

Tr. at 319-21. In sum, the government adduced no testimonial evidence from

which the jury could conclude that the assault took place on an allotment.

The government did, however, introduce an exhibit from which the jury

reasonably could have determined that jurisdiction was proper. While

Marshall was testifying, he referred to Exhibit 41B, which was admitted

into evidence over the relevance-based objection of Phillip's counsel.

None of the defendants objected to the authenticity or accuracy of the

exhibit. Exhibit 41B is a copy of a page from a Mellette County atlas,

used in Marshall's office, showing land ownership in the township involved

in this case. All parties agree that the southern half of section 15--the

spot where Phillip's testimony placed the assault--is owned by Eugene

Strain (apparently in fee, as the government does not claim that the court

would have had jurisdiction if the assault occurred there). Most of the

northern half of section 22, and in particular the northeast quarter of the

section--where the government claims the assault occurred--is marked on

Exhibit 41B with the notation "Allot 1553." Other parcels are marked as

"Allot," as "Tribal," as "Tribal I.R.A." (presumably for "Indian

Reorganization Act"), or with the names of individual owners. Several

parcels also contain handwritten modifications, including reference numbers

and subdivisions, and in one parcel, "Allot 3093" is stricken out.

The government argues that the notation "Allot 1553" is sufficient

evidence to establish that the land at issue in this case is an allotment.

We agree. Although the government's arguments were presented poorly, the

jury was instructed clearly that an allotment was one of the possible bases

of Indian-country jurisdiction. With Exhibit 41B before it during its

deliberations, the jury reasonably could have found that the language

"Allot 1553"
 But see 25 U.S.C. §§ 462, 478-1 (1994) (extending periods of 6

trust and restrictions indefinitely).

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on the map, which was provided by a tribal officer, established that the

parcel was an allotment.

This is only half of the story, however, because the government also

needed to prove that the Indian title to the allotment had not been

extinguished. See 18 U.S.C. § 1151(c) (1994). The government argues as

follows: "The fact that Exhibit [41B] describes the assault site as

located on Indian Allotment #1553 establishes that the Indian title has

never been transferred or extinguished. If it had it would no longer be

an Indian allotment." Br. of Appellee at 15. We are not overwhelmed by

this argument. That the map shows the parcel as "Allot 1553" tends to

establish only that it was an allotment when the map was originally

published (a date that is not in the record). Since that time, the

Secretary of the Interior could have issued the allottee a patent in fee,

see 25 U.S.C. § 349 (1994), or the period of trust on the allotment could

have expired, see 25 U.S.C. §§ 348-349 (1994), or the allotment could have 6

been inherited by a non-Indian, see 25 C.F.R. § 152.6 (1996), among other

possibilities.

The complexity involved in this inquiry undoubtedly explains why the

prosecutor in Jewett put a BIA official on the stand to describe what was

essentially a title search of the property. Had the government presented

this sort of evidence in the instant case, we would have a much easier

question to decide. But despite the government's lackluster showing on

this essential jurisdictional predicate of its case, we conclude that the

jury verdict should be upheld. We believe the jury reasonably could have

found that the map is up-to-date and that, if the Indian title to the

relevant parcel had been extinguished, the map would have reflected the

change. As we noted above, in another plot in the same township, the

designation "Allot 3093" is stricken by hand, and the map shows
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other handwritten changes. In the absence of an objection to the

authenticity or accuracy of Exhibit 41B, the jury thus was entitled to

infer that the map accurately represented the state of title at the time

of the crime. Accordingly, the jury had a reasonable basis for finding

that the crime occurred in Indian country.

C.

Miguel raises a related issue regarding the jury instruction on

Indian country, which quotes the operative provisions of § 1151 verbatim.

See Atkinson, 916 F. Supp. at 960-61. Miguel argues that because the

testimony involved descriptions of the land as various forms of "trust

land," and because the instruction does not specify the Indian-country

status of "trust land," the instruction does not adequately set forth the

law.

None of the defendants objected to the instruction or proposed an

alternative instruction. As a result, our review is for plain error. See

United States v. Ryan, 41 F.3d 361, 366 (8th Cir. 1994) (en banc), cert.

denied, 115 S. Ct. 1793 (1995). We see no plain error in the instruction,

which sets forth the law as clearly as the United States Code does. The

instruction "clearly and properly explained to the jury the legal

principles governing the case." Feingold v. United States, 49 F.3d 437,

439 (8th Cir. 1995). In any event, as we have explained above, the various

discussions in trial testimony of "trust land" were essentially irrelevant

to the question at hand, and a more detailed explanation of Indian country

jurisdictional principles might only have confused the jurors.

D.

In another related issue, all three defendants challenge the

sufficiency of the indictment. In particular, they argue that the

indictment failed fairly to apprise them of the location of the alleged

crimes. The indictment alleges that each count occurred
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"approximately 7.6 miles north of White River and 1.3 miles east of Highway

83 in Mellette County, in Indian country, in the District of South Dakota."

Superseding Indictment at 1-2. The defendants do not challenge the northsouth accuracy of the indictment, but they do argue that the site of the

assault, the northeast corner of section 22, is about 3.5 miles east of

Highway 83. This argument is potentially significant because much of the

property east of Highway 83 and west of section 22 is fee land, and thus

not Indian country.

An indictment is sufficient if it (1) contains the elements of the

charged offense and fairly informs the defendant of the charge against

which he or she must defend and (2) enables him or her to plead double

jeopardy as a bar to further prosecution. See United States v. Just, 74

F.3d 902, 903-04 (8th Cir. 1996). An indictment that is challenged after

jeopardy has attached is liberally construed in favor of sufficiency. See

id. at 904. Unless the indictment is so defective that by no reasonable

construction can it be said to charge the offense for which the defendants

were convicted, we will uphold it. See id.

In the circumstances of this case, the defendants' challenge to the

indictment fails. The indictment specifically states that its geographical

measurements are approximate. Agent McConaghy testified that he obtained

the measurements by driving north from White River on Highway 83 for 11.3

miles, driving east for 1.3 miles, and driving south for 3.7 miles. See

Tr. at 575-77. Because the roads in the area do not correspond precisely

to compass points, the site of the assault is not exactly 7.6 miles north

of White River and 1.3 miles east of Highway 83. Nevertheless, the

geography of the indictment is reasonably accurate, and it is clear from

the testimony that the defendants were well aware of the charges against

them. In addition, the defendants' evidence placed the incident even

further east than the government's evidence did. Compare id. at 711

(Phillip's testimony
 In other factual situations, courts have held that the

7

existence of jurisdiction over crimes committed in a particular

geographic area is a question for the court. See, e.g., United

States v. Hernandez-Fundora, 58 F.3d 802, 809-10 (2d Cir.) (federal

prison), cert. denied, 115 S. Ct. 2288 (1995); United States v.

Warren, 984 F.2d 325, 327 (9th Cir. 1993) (military base).

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that incident occurred 25 or 30 yards from river) with id. at 559

(McConaghy's testimony that site was 1/4 mile from river). Nothing in the

record suggests that the defendants were in any way misled by the

indictment's slight east-west imprecision, and no one suggests that the

defendants would have any difficulty pleading double jeopardy to bar

another prosecution for the kidnapping and assault of Torrez. We conclude

that the indictment was sufficient.

IV.

At this point, we consider a somewhat collateral issue raised by

Phillip. In the statement of the issues in his opening brief, Phillip

suggests that the court should have determined the jurisdictional question

as a matter of law. Unfortunately, Phillip does not pursue this issue in

the text of his brief or cite any authority for the proposition. Based on

our own research, we are inclined to think that his suggestion is partially

correct: given a particular piece of land, it is for the court, not the

jury, to determine whether that land is in Indian country. See United

States v. Deon, 656 F.2d 354, 356-57 (8th Cir. 1981) (court may determine

as a matter of law that area is in Indian country); United States v. Cook,

922 F.2d 1026, 1031-32 (2d Cir.) (determination of whether site of offense

is in Indian country is for court alone), cert. denied, 500 U.S. 941

(1991); United States v. Sohappy, 770 F.2d 816, 822 n.6 (9th Cir. 1985)

(what constitutes Indian country is matter for judge, not jury), cert.

denied, 477 U.S. 906 (1986); United States v. Levesque, 681 F.2d 75, 78-79

(1st Cir.) (error to submit question to jury) (dictum), cert. denied, 459

U.S. 1089 (1982). This question, which we considered in 7
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section III-B, is analytically distinct from the issue we reviewed in

section III-A: whether the crime in fact occurred on a particular piece

of land or within a particular area. The latter question--the location of

the crime--is certainly a factual issue for the jury. See United States

v. Eder, 836 F.2d 1145, 1147-48 (8th Cir. 1988) (jury had to find that

killing occurred on reservation); United States v. Warren, 984 F.2d 325,

327 (9th Cir. 1993) (locus of offense is an issue for trier of fact).

In the case at bar, it may have been error for the District Court to

submit to the jury the narrow question of whether the alleged site of the

offense was Indian country. Nevertheless, the defendants did not object

to the submission, so the issue has been waived, and we cannot say that the

asserted error so affected the defendants' substantial rights as to warrant

reversal under the plain error standard of review. Thus we do not consider

the issue further.

V.

Phillip and Miguel also challenge the sufficiency of the evidence to

support their convictions.

A.

Phillip argues that the evidence is insufficient to support his

conviction for kidnapping Torrez. As relevant here, the federal kidnapping

statute applies to any person who "unlawfully seizes, confines, inveigles,

decoys, kidnaps, abducts, or carries away and holds for ransom or reward

or otherwise any person." 18 U.S.C. § 1201(a) (1994). The government

acknowledges that no forceful abduction took place and that Phillip sought

no ransom, but argues that the conviction is supportable under the phrases

"inveigles, decoys" and "otherwise." We agree.
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Viewed in the light most favorable to the verdict, the evidence

reveals that Phillip encouraged Torrez to get into and remain in the car

when he might otherwise have wished to go his own way. The jury reasonably

could have concluded that Phillip intentionally sought to gain Torrez's

trust by introducing himself as a cousin, asking to see Shorty Jordan,

drinking with Torrez for a while, suggesting the trip to White River to get

more alcohol, and offering to show Torrez some family land, while Phillip

was also planning to conduct an informal one-man lineup and to take Torrez

to an isolated location where the assault was not likely to be interrupted.

We believe the evidence is more than sufficient to support the government's

contention that Phillip inveigled or decoyed Torrez into joining the group.

That Torrez agreed to accompany the others is not dispositive, because he

"did not consent 'to the kind of trip eventually undertaken.'" United

States v. Eagle Thunder, 893 F.2d 950, 952 (8th Cir. 1990) (quoting United

States v. Wesson, 779 F.2d 1443, 1444 (9th Cir. 1986)); see also United

States v. Hoog, 504 F.2d 45, 50-51 (8th Cir. 1974) (inducing victim to

accept ride and remain in vehicle under false pretenses constitutes

inveigling or decoying), cert. denied, 420 U.S. 961 (1975).

We interpret the "or otherwise" language in the kidnapping statute

broadly. See United States v. Bordeaux, 84 F.3d 1544, 1548 (8th Cir.

1996). A conviction is proper if the victim was taken "for some reason

that the defendant considered of sufficient benefit to him, or for 'some

purpose of his own.'" Id. (citation omitted). The jury reasonably could

have determined that Phillip's reasons for inveigling Torrez into

accompanying him were to have Candida identify Torrez, and then to assault

Torrez in an isolated location where detection would be unlikely. Some

evidence also suggests that Phillip thought he could avoid federal

prosecution by taking Torrez off the reservation for purposes of the

assault. These reasons are clearly sufficient to support the kidnapping
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conviction. See id. (affirming conviction of kidnapping for purposes of

assault and proceeding to isolated location).

B.

Miguel also challenges the sufficiency of the evidence to support his

conviction. As we noted above, Miguel was convicted only of assault

resulting in serious bodily injury, and the government seeks to uphold his

conviction only on the theory that he aided and abetted the others' assault

of Torrez, a theory that was properly charged and presented to the jury.

Although Miguel did not himself beat Torrez, we conclude that the jury

reasonably could have found that Miguel aided and abetted the assault.

One who "aids, abets, counsels, commands, induces or procures" a

crime is punishable as a principal. 18 U.S.C. § 2 (1994). We have

recognized that aiding and abetting is not itself a crime; rather, § 2

imputes the actions of the principal to the aider and abettor as a matter

of law. See United States v. Simpson, 979 F.2d 1282, 1285 (8th Cir. 1992),

cert. denied, 507 U.S. 843 (1993). Liability for the actions of a

principal requires only "that the defendant was associated with the

unlawful venture, participated in it as something the defendant wished to

bring about, and sought by the defendant's own action to make it succeed."

United States v. Dunlap, 28 F.3d 823, 826 (8th Cir. 1994).

The jury reasonably could have found that Miguel was, at the very

least, aware of the nature and purpose of the group's search for Torrez and

that, at times, he was an active participant in the day's activities.

Miguel asked Torrez to get out of the car during the one-man lineup and

encouraged the others to hit and kick Torrez during the beating. When he

returned to the reservation, Miguel had blood on his hands, shoes, and

clothing, and one witness stated that he was carrying hair. We recognize

that Miguel sought to protect Torrez from further injury by providing

Torrez with means
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to defend himself, telling the others to stop the beating, and returning

some clothing to Torrez. The District Court properly considered these

factors, among others, in imposing a sentence well below the applicable

guidelines range of 33 to 41 months in prison, but they do not vitiate

Miguel's participation as an aider and abettor of the assault.

VI.

Finally, we consider the defendants' allegations of prosecutorial

misconduct. "The test for reversible prosecutorial misconduct has two

parts: (1) the prosecutor's remarks or conduct must in fact have been

improper, and (2) such remarks or conduct must have prejudicially affected

the defendant's substantial rights so as to deprive the defendant of a fair

trial." United States v. Hernandez, 779 F.2d 456, 458 (8th Cir. 1985).

Defense counsel did not object to most of the prosecutorial statements

which are now urged to be improper; we review these statements for plain

error, reversing only if the error is clear, affects the defendant's

substantial rights, and seriously affects the fairness, integrity, or

public reputation of judicial proceedings. See United States v. Olano, 507

U.S. 725, 734-37 (1993); United States v. Grady, 997 F.2d 421, 424 (8th

Cir.), cert. denied, 510 U.S. 958 (1993).

We begin with two questions acknowledged by the government to be

improper. Candida testified that she did not tell the tribal police

officer who discovered her what had happened to her because she was "still

in shock." Tr. at 620. The prosecutor replied, "When did your memory

suddenly come back to you?" Id. Later, Candida testified that the tribal

officer "said either Phillip could take me home or he was going to take me

to jail." Id. at 623. The prosecutor countered, "And so you took the

lesser of those two evils. You went with Phillip[,] right?" Id. Defense

counsel objected to both questions; the first was rephrased properly, and

the court cautioned the jury to disregard the second. 
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We agree that these questions were improper, particularly the second. But

the marginal effect of these comments on a collateral issue--whether

Candida was in fact raped--in the context of a four-day trial, the

substantial evidence of the defendants' guilt, and the curative actions of

the court convince us that this misconduct was not so significant that it

deprived the defendants of a fair trial. See Hernandez, 779 F.2d at 460-

61.

When Phillip was on the stand, the prosecutor suggested on crossexamination that Phillip had changed the order of several events he had

related during direct examination. See Tr. at 799-800. Counsel did not

object, and Phillip insisted that his direct testimony was not as the

prosecutor had characterized it. The prosecutor said nothing further about

the issue. A review of the sometimes confusing direct testimony suggests

that Phillip was correct and his testimony was consistent. Although the

prosecutor was incorrect, we believe his questioning was the result of an

honest mistake rather than any impropriety, and its effect on the

proceedings was minimal.

In another portion of Phillip's testimony, the government attempted

to explore Phillip's previous robbery conviction. The prosecutor asked

whether Phillip had "received a sentence," id. at 823; counsel objected,

and the court sustained the objection. The prosecutor then sought to

clarify Phillip's direct testimony that he had "been convicted of no

felonies since then," id. at 673, by eliciting a concession that one reason

Phillip had been convicted of no felonies was that he was still in prison

on the robbery conviction. In other words, the prosecutor attempted to

counter the impression left by Phillip's direct testimony that he had been

a law-abiding citizen since the robbery conviction. In a bench conference,

the court determined that defense counsel had opened the door to the

government's line of questioning, but that the questions would be more

prejudicial than probative. We need not determine whether this ruling was

correct, because the only issue
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before us is whether the questions that were actually asked denied the

defendants a fair trial. On this issue, the jury heard the unsurprising

information that Phillip had received a sentence for his robbery

conviction; otherwise, the prosecutor got no farther than "But it's--"

before he was cut off and the questioning was ruled inadmissible. Id. at

823. We conclude that the defendants were in no way prejudiced by these

questions.

Phillip's sister testified in an attempt to show that Torrez did not

believe he had been kidnapped. The following exchange took place during

cross-examination:

Q. You don't recall mentioning to Gary Torrez that your

brother had offered $1,000 if he'd keep his mouth shut?

A. No.

Q. Did your brother ever communicate that fact to you?

A. Not for $1,000.

Id. at 661. The discussion continued, but defense counsel's only objection

was that questions about the alleged bribe had been asked and answered.

On appeal, the defendants contend that this line of questioning constituted

an unfounded attack on the character of both the witness and Phillip. The

government insists that it had a factual basis for asking these questions,

but when the witness denied that the incident had occurred, the government

decided not to explore this collateral issue further. We have no means of

determining whether or not the government had a factual basis for this line

of questioning, but in any event, we are unable to conclude that the

questions so undermined the fairness of the proceedings as to constitute

reversible error under the plain error standard of review.

Near the end of the trial, the court asked defense counsel if they

had any surrebuttal witnesses. When counsel answered
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affirmatively and asked for a few minutes "to make sure they're here," the

prosecutor responded, "Your Honor, I guess if they have witnesses, I'd ask

they call them now rather than go out and talk to them beforehand." Id.

at 877. The government now claims that the prosecutor meant to suggest

that the trial proceed without a recess so that members of the audience

would not report the developments in rebuttal testimony to the surrebuttal

witnesses. If that was in fact the prosecutor's intent, he phrased his

statement in such a fashion that it unfairly impugned the integrity of

defense counsel. Nevertheless, no one objected to the statement, and after

a short break, counsel was able to ease the sting of the statement by

asking the next witness, "Did I go out there and talk to you and tell you

what to say?" Id. In light of the record as a whole, we reject the

argument that, under the plain error standard, the prosecutor's improper

statement warrants a reversal of the defendants' convictions.

We have reviewed carefully the defendants' other claims of

prosecutorial misconduct and have concluded that they are meritless.

VII.

Although we find nothing in Phillip's pro se supplemental brief that

aids his appeal, we grant leave to file the brief. The convictions of the

defendants are affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.