___________ 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 Distric t 1 

### Judge for the District of South Dakota.
-2- Before BOWMAN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ BOWMAN, Circuit Judge.
Phillip Stands, Waylon Duran, and Miguel Duran were tried by ju ry and
were convicted of various crimes related to the beating of Gary Torrez

. The defe ndants appeal. Finding no reversible error, we affirm th e 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 , Phi llip Stands and his wife, Candida Duran, attended several parties i n Rosebud, South Dakota, on the Rosebud Indian Reservation. Phillip an d Candi da spent much of the evening in separate company, and Candida wa s disc overed by a tribal police officer the next morning. Because sh e appeared to be injured, the officer drove her to a friend's home, wher e 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 Gar y'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

### -3-

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, WaylonDuran, 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 t o Phillip's mother's home. She did not know who Gary might be. Phillip's mot her later told an investigator that Waylon was talking about gettin g even with whoever att acked Candida, and she testified that Dale suggested that he could kill the attacker and get rid of the evidence. Silas Lincol n arrived later and suggested that the as-yet-unidentified Gary could be Gar y Torrez, who matched C andida's description and was a son of Shorty Jordan.

Ph illip, Waylon, Miguel, Dale, and Lincoln then went to look fo r Torrez, whom they found at his mother's home in Rosebud. Philli p introduced himself as Torrez's second cousin and asked if Torrez could hel p him find Shorty Jordan. When they discovered th at Jordan was still not at home, t he group of six went to Ghost Hawk Park, on the reservation, an d drank bee r and whiskey for about thirty minutes. They then returned t o Rosebud and dropped off Lincoln. Torrez requested a ride home, but Philli p suggested that they pawn some rings, drive to White River, and buy mor e alcohol. Torrez agre ed, and Phillip drove to his house to get the rings. While the car was par ked behind the house, Miguel asked Torrez to get out of the car. At the same time, Phillip, inside t he house, asked Candida if she could identify To rrez 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 reser vation. He pawned his rings and bought beer, whiskey, an d gasolin e. He then suggested to Torrez that they go to see some Stands

Jordan family lands, and Torrez agreed. They drove

### -4-

north from White River and eventually stopped inan isolated area near the west bank of the Little White River, where they continued to drink an d socialize. After a w hile, 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 pu t the items away, which he did. Waylon asked Torrez if he could borrow his pull-over windbreaker. As Torrez was facing Way lon, Phillip hit Torrez in the back of the head with a shovel handle with sufficient force to break the ha ndle. After Torrez fell to the ground, Phillip accused him o f beating Candida the night before, which Torrez denied. Phillip, Waylon, and perhaps Dale hit and kicked Torrez numerous times. Miguel did not hav e any physical contact with Torrez, but Torrez testified that Miguel wa s standing behind the others "talking about hittin g, kick him." Tr. at 193. Eventuall y, Miguel told the others not to hit Torrez any more, and the y ceased.
Waylon then removed Torrez's clothing, except for his socks, an d said that he could walk back to town naked, making a reference to Candida' s being lef t naked the night before. Phillip and Waylon gathered th e 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 Dal e drove away, leaving Torrez unconscious and bleeding.
Approximatelyten miles from the assault site, Waylon threw th e remainder of Torrez's clothing and several weapons out of the car. Philli p drove back to his house, where a birthday party for a young relative was underway. Various guests at the party testifiedthat all three defendants had blood on their clothes, Miguel and Waylon had blood on their hands, an d Miguel carried a clump of hair.

### -5- The next morning, Torrez managed to walk several miles to th e highway , where the sheriff found him and took him to the hospital. Hi s forearmand 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 o f kidn apping, in violation of 18 U.S.C. § 1201(a)(2) (1994) (Count I) ;
assau lt with a dangerous weapon, in violation of 18 U.S.C. § 113(a)(3 ) (1994) (Count II); and assault resulting in serious bodily injury, i n violation of 18 U.S.C. § 113(a)(6) (1994) (Count III). Dale pleaded guilt y to misprision of felony and testified against the other defendants. The jury found Phillip guilty on all three counts, a nd 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 th e kidnapping charge at the close of the government's case; the jury found hi m 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 thei r 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, whethe r federa l jurisdiction was properly established. This issue involves tw o related inquiries: whether the government presented sufficient evidence to ide ntify the site of the assault, and whether that site is withi n "Indian country," as defined by 18 U.S.C. § 1151 (1994). Along the way,
we wil l consider Miguel's argument that the jury instruction definin g Indian country was

### -6-

erroneous and the contention of all three defendants that the indictment insufficiently identified the location of the assault.

A.

The defen dants 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 jur yverdict; and while the evidence need not preclude ever y out come other than guilt, we consider whether it would b e suffic ient to convince a reasonable jury beyond a reasonabl e doubt. We can reverse for insufficient evidence only if n o reasonable jury could ha ve found the defendant guilty beyond a reasonable doubt.

United St ates v. Roach , 28 F.3d 729, 736 (8th Cir. 1994) (citation s omitted).

At trial, the parties disputed whether the assault occurred i n 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 immediatel y 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 jur y 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 o ut to find the site of the assault. After some investigation on the east side of the Little Whit e River, they crossed t o 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 

### pas sed through only one gate. Nevertheless, the jury reasonabl y could have credited those witnesses who testified that the s ite was two gates removed from the mai n 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.
-7- had see n the defendants and Torrez in the area the previous day and ha d heard police transmis sions on his radio scanner. Boyles led the officers south to the spot where he had seen the defendants. Sheriff Brandi s testified that they passed through one closed gate, and he believed they passed thr ough another gate that was already open. Boyles and triba l officer Kelly Iyotte also testified that they went through two gates t o reach the site, and T orrez testified that Phillip drove through two gates before the assault. Within about 100 feet from the spot where Boyle s 2 direct ed 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 H orses joined the officers at the site later in the evening of October 30. She re turned the next day, along with tribal officer Christian Barrera, who had been at the scene on Octobe r 30, and Larry Marshall of Tribal Land Enterprises, an entity of the Rosebu d Sioux Tribe. Despite cross-examination by counsel for all thre e defenda nts, both Her Many Horses and Barrera testified that they wer e certain t hat they returned to the same location where they had been th e previo us day. Marshall testified and demonstrated on two differen t exhibits that the site was in the northern portion of section 22.
Finally, Sheriff Brandis, tribal officer Iyotte, tribal office r Barrer a, realty official Marshall, and FBI agent Drew McConaghy al l identified a similar location on different aeria l photographs of the area. See Ex. 24-26, 29, 41A. Judging from a signatur e S-curve in the river and
a change in color on the ground, which could indicate a change in ownershi p at the section line, the

### -8-

jury reasonably could have found that the assaul t took place on section 22 rather than section 15.

B.

Havin g determined that the government's evidence is sufficient t o sustain its theory as to the location of the ass ault, 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 offense s when co mmitted 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 reserv ation . . ., (b) all dependent Indiancommunities . . ., and (c) all Indian allotm ents, the Indian titles to which have not bee n extinguished, including rights-of-way running throu gh the same.

18 U.S.C. § 1151 (1994).
Jurisdiction over the kidnapping cha rge 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 , lan d within the limits of any Indian reservation, as provided in § 1151(a). We thus a re satisfied that jurisdiction over the kidnapping charge wa s adequately shown.

Wh ether the government established jurisdiction over the assaul t charges is a considerably more complicated question. All of Mellett e Count y, where the assault occurred, has been outside the limits of th e Rosebud Reservation since 1910. See Rosebud

### -9-

Sioux Tribe v. Kneip , 430 U.S. 584, 609-15 (1977). The government does no t argue that the site of the assault is within a d ependent Indian community. Accordingly, federal jurisdiction over the assault charges is proper only if the pa rcel on which the assault occurred is an Indian allotment, th e Indian title to which has not been extinguished.

Before turning directly to the merits of the sufficiency-of-the

evidence 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, describin g either a parcel of land owned by the United States in trust for an Indian ("trust" allotment), or owned by an India n subject to a restriction on alienation in favor of the United States o r 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 t he distinction between the two types of allotments, although references in the record to "trust" land have created considerable confusion, as we shall see. Many allotment s
arose out of the government's policy in the late nineteenth and earl y twentieth centuries, pursuant to the General All otment Act, of breaking up Indian reservations i nto 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, a llotted lands outside the new reservation boundaries retain ed their allotment status, and they remain Indian country toda y 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 cir cumstances, 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 b e cons idered de facto reservation or dependent Indian community)

. The government has not argued that Azure or similar cases appl y here. Even land owned by a tribe in fee is subject to certai n

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, 19 6 (10th Cir. 1957), cert. denied , 355 U.S. 940 (1958). -10- restricted fee allotment. Fee land is therefore not allotted land, and fe e land beyond the boundaries of a reservation is not Indian country. "Triba l trust lan d" is land owned by the United States in trust for an India n tribe. T he Secretary of the Interior is authorized to purchase land i n trust for Indian trib es 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. , Sou th Dakota v. United States Dep't of Interior , 69 F.3d 878, 880 (8th Cir. 1995) (holding § 46 5
uncons titutional), vacated , 117 S. Ct. 286 (1996). For jurisdictiona l purpose s, tribal trust land beyond the boundaries of a reservation i s ordinarily not Indian country. A f inal category suggested by some of the 3 evidence i n 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 th e 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 ha d been allotted to an individual Indian. See id. at 497. To demonstrate that the Indian title had not been extinguished, the gov ernment presented testimony from an official of the Bureau of India n Affairs (BIA). See id. He testified that records of

### This repres ents 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 bee n extinguished." 18 U.S.C. § 1151(c) (1994). No on e suggests that this possibility is relevant to this case.
-11- transfers of allotments were kept in his office, that each allotment was assigned a tract number, that the card correspon ding to the tract on which the crime occurred revealed a number of transfers to Indians throug h inherit ance, and that the final entry indicated that the allottee ha d transferred the property to the United States intrust for the tribe. See id. The government i ntroduced into evidence a certified copy of the deed to the Uni ted 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, an d that the Indian title to the property had therefore not bee n extingui shed. See id. We concluded that "[s]ubstantial evidentiar y 5 sup port exists for the court's determination that the crime occurred i n Indian country and hence jurisdiction is established." Id. at 498.

In th e instant case, the government presented a far less coheren t picture o f the jurisdictional status of section 22. Insofar as we hav e been able to determine, in the course of the four-day trial only thre e ref erences were made to allotments, and in none of them did a witnes s identifythe assault site as an allotment. See Tr. at 134 (Boyles); id. at 31 4 (Marshall); Closing Arg. Tr. at 13. Other government witnesse s identified the site as "tribal property," Tr. at 25 (Brandis), "triba l land," id. at 317 (Ma rshall), "tribal trust land," id. at 319 (Marshall), and " Indian trust land," id. at 533-34 (McConaghy). Although we migh t interpret Agent McConaghy's phrase "Indian trust land" as a reference to a trust allotment, the jury did not receive an i nstruction that would have enabled it to conclude that "Indian

### -12-

trust land" might signify an allotment, and so the testimony is not helpfu l to the government's c laim that the evidence on this issue was sufficient.

Th e government's confusion throughout the trial about th e jurisdi ctional question is best exemplified in the following exchang e 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 trus t 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?

### -13- A. No.

Tr. at 319-21. In sum, the government adduced no testimonial evidence fro m which the jury could conclude that the assault t ook place on an allotment.
The government did, however, introduce an exhibit from which th e jury
reason ably could have determined that jurisdiction was proper. Whil e Mar shall was testifying, he referred to Exhibit 41B, which was admitte d into evidence over the relevance-based objection of Phillip's counsel

. None of the defendants objected to the authenticity or accuracy of th e exhib it. Exhibit 41B is a copy of a page from a Mellette County atlas , used in Marshall's office, showing land ownershi p in the township involved in this case. All parties agree that the southe rn half of section 15--the spot w here Phillip's testimony placed the assault--is owned by Eugen e Strain (apparently in fee, as the government doe s 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 th e section--where the government claims the assault occurred--is marked o n Exhibit 41B with the notation "Allot 1553." Other parcels are marked as "Allot ," as "Tribal," as "Tribal I.R.A." (presumably for "India n Reorganization Act"), or with the names of individual owners. Severa l parcels also contain handwritten modifications, including reference number s and subdivisions, and in one parcel, "Allot 3093" is stricken out.

The government argues that the notation "Allot 1553" is sufficien t evidence to establish that the land at issue in this case is an allotment. We agree. Although t he government's arguments were presented poorly, the jury was instructed clearly that an allotment was one of the possible base s of Indian-country jurisdiction. With Exhibit 41B before it during it s delibe rations, the jury reasonably could have found that the languag e "Allot 1553"

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

### trust and restrictions indefinitely).
-14- on the map, which was provided by a tribal officer, established that the parcel was an allotment.
This is only half of the story, howe ver, because the government also needed to prove that the Indian title to the allotment had not bee n extinguished. See 18 U.S.C. § 1151(c) (1994). The government argues as foll ows: "The fact that Exhibit [41B] describes the assault site a s loc ated on Indian Allotment #1553 establishes that the Indian title ha s
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 arg ument. That the map shows the parcel as "Allot 1553" tends t o establish only that it was an allotment when the map was originall y published ( a date that is not in the record). Since that time, th e Secretary of the Inte rior 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 allotmen t could have 6 been inherited by a n on-Indian, see 25 C.F.R. § 152.6 (1996), among other possibilities.
The complexity involved in this inqu iry undoubtedly explains why the prosecutor in Jewett put a BIA official on the stand to describe what was essentially a title s earch of the property. Had the government presented this sor t of evidence in the instant case, we would have a much easie r que stion to decide. But despite the government's lackluster showing o n this essential jurisd ictional predicate of its case, we conclude that the jury verdict should b e upheld. We believe the jury reasonably could have found tha t the map is up-to-date and that, if the Indian title to th e rel evant parcel had been extinguished, the map would have reflected th e change. As we noted above, in another plot in the same township, th e designation "Allot 3093" is stricken by hand, and the map shows

### -15-

other ha ndwritten changes. In the absence of an objection to th e authe nticityor accuracy of Exhibit 41B, the jury thus was entitled t o infer that the map accurately represented the state of title at the time of the cr ime. Accordingly, the jury had a reasonable basis for findin g that the crime occurred in Indian country.

C.
Miguel raises a related issue regarding the jury instruction o n Indian country, which quotes the operative provisions of § 1151 verbatim. See Atkinson , 916 F. Supp. at 960-61. Miguel argues that because th e testimony involved descriptions of the land as various forms of "trus t land," and because the instruction does not specify the Indian-countr y status of "trust land ," the instruction does not adequately set forth the law.

None of the defendants objected to the instruction or proposed a n alternative instruction. As a result, our revie w 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 plainerror in the instruction, which sets forth the law as clearly as the United States Code does. The instru ction "clearly and properly explained to the jury the lega l 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 variou s discussions in trial testimony of "trust land" w ere essentially irrelevant to the question at hand, and a more detailed exp lanation of Indian country jurisdictional principles might only have confused the jurors.

D.

In a nother related issue, all three defendants challenge th e sufficie ncyof the indictment. In particular, they argue that th e indictment failed fairly to apprise them of the location of the allege d crimes. The indictment alleges that each count occurred

### -16-

"approximately 7.6 miles north of White River and 1.3 miles east of Highwa y 83 in Mellette County, in Indian country, in the District of South Dakota. " Superseding Indictment at 1-2. The defendants d o 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 o f Highway 83. This arg ument is potentially significant because much of the propertyeast of Highway 83 and west of section 22 is fee land, and thus not Indian country.

An indi ctment is sufficient if it (1) contains the elements of th e charged offense and fairly informs the defendant of the charge agains t whic h he or she must defend and (2) enables him or her to plead doubl e jeopardyas 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 offens e for which the defendants were convicted, we will uphold it. See id.

In the ci rcumstances of this case, the defendants' challenge to the indictment fails. The indictment specifically states that its geographica l measurements are appr oximate. Agent McConaghy testified that he obtained the measurements by d riving 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. Becau se the roads in the area do not correspond precisely to compass points, th e site of the assault is not exactly 7.6 miles north of White River and 1.3 miles east of Highway 83. Nevertheless, th e 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 eve n furt her east than the government's evidence did. Compare id. at 71 1 (Phillip's testimony

### In other factual situations, courts have held that th e 7 

### exis tence of jurisdiction over crimes committed in a particula r geogr aphic area is a question for the court. See , e.g. , Unite d 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).
-17- tha t incident occurred 25 or 30 yards from river) with id. at 55 9 (McConaghy's testimony that site was 1/4 mile fr om river). Nothing in the record s uggests that the defendants were in any way misled by th e indict ment's slight east-west imprecision, and no one suggests that th e defend ants would have any difficulty pleading double jeopardy to ba r another prosecution for the kidnapping and assau lt of Torrez. We conclude that the indictment was sufficient.

IV.

At this point, we consider a somewhat collateral issue raised b y Phillip. In the statement of the issues in his opening brief, Philli p suggests that the court should have determined t he 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 partiall y 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 Unite d 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 countr y); 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. 94 1 (1991); U nited 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. Le vesque , 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

### -18-

section III-B, is analytically distinct from the issue we reviewed i n 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 tha t 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 beenerror for the District Court to submit to the jury th e 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 th e asserted error so affected the defendants' substantial rights as to warran t reversal under the plain error standard of review. Thus we do not conside r the issue further.

V.
Phillip and Miguel also challenge th e sufficiency of the evidence to support their convictions.

A.
Phillip argues that the evidence is insufficient to support hi s conviction for kidnapping Torrez. As relevant here, the federal kidnappin g statute applies to any person who "unlawfully se izes, 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 governmen t acknowledges that no forceful abduction took pla ce and that Phillip sought no ransom, but argues that the conviction is sup portable under the phrases "inveigles, decoys" and "otherwise." We agree.

### -19-

Viewed in the light most favorable to the verdict, the evidenc e 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 reasonabl y 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 ge t more alcohol, and off ering to show Torrez some family land, while Phillip was also planning to conduct an informal one-manlineup 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.'" Unite d 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 Unite d States v. Hoog , 504 F.2d 45, 50-51 (8th Cir. 1974) (inducing victim t o accept ride and remain in vehicle under false pretenses constitute s inveigling or decoying), cert. denied , 420 U.S. 961 (1975).

We interpret the "or otherwise" language in the kidnapping statut e bro adly. See United States v. Bordeaux , 84 F.3d 1544, 1548 (8th Cir

. 1996). A conviction is proper if the victim was taken "for some reaso n that the defendant considered of sufficient benefit to him, or for 'some purpose of his own.'" Id. (citation omitted). The jury reasonably could hav e determined that Phillip's reasons for inveigling Torrez int o accompanying him were to have Candida identify T orrez, and then to assault Torrez in an isolated location where detection would be unlikely. Som e eviden ce also suggests that Phillip thought he could avoid federa l pros ecution by taking Torrez off the reservation for purposes of th e 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 suppo rt his
conv iction. As we noted above, Miguel was convicted only of assaul t resulting in serious bodily injury, and the gove rnment seeks to uphold his conviction only on the theory that he aided and abetted the others' assaul t of Torrez, a theory that was properly charged and presented to the jury. Altho ugh Miguel did not himself beat Torrez, we conclude that the jur y 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 hav e recognized that aiding and abetting is not itself a crime; rather, § 2 imputes the actions o f 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 princi pal requires only "that the defendant was associated with th e unlawful venture, par ticipated in it as something the defendant wished to bring about, and sought by the defendant's own a ction 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 ver y least, aware of the nature and purpose of the group's search for Torrez an d that, at t imes, he was an active participant in the day's activities

. Miguel asked Torrez to get out of the car during the one-man lineup an d encouraged the others to hit and kick Torrez during the beating. When he retur ned to the reservation, Miguel had blood on his hands, shoes, an d clothing, and one wit ness stated that he was carrying hair. We recognize that Mi guel sought to protect Torrez from further injury by providin g Torrez with means

### -21-

to defend himself, telling the others to stop the beating, and returning
some clothing to Torrez. The District Court properly considered thes e fac tors, among others, in imposing a sentence well below the applicabl e guidelin es range of 33 to 41 months in prison, but they do not vitiat e Miguel's participation as an aider and abettor of the assault.

VI.

Fin ally, we consider the defendants' allegations of prosecutoria l miscon duct. "The test for reversible prosecutorial misconduct has tw o parts: (1) the prosecutor's remarks or conduct must in fact have bee n improper, and (2) such remarks or conduct must h ave prejudicially affected the defendant's substantial rights so as to deprive the defendant of a fai r trial." United States v. Hernandez , 779 F.2d 456, 458 (8th Cir. 1985)

. Defense counsel did not object to most of the prosecutorial statement s which are now urged to be improper; we review these statements for plain
erro r, reversing only if the error is clear, affects the defendant' s substan tial rights, and seriously affects the fairness, integrity, o r public reputation of judicial proceedings. See United States v. Olano , 50 7 U.S. 725, 734-37 (1993); United States v. Grady , 997 F.2d 421, 424 (8t h Cir.), cert. denied , 510 U.S. 958 (1993).

We begin with two questions acknowledged by the government to b e impr oper. Candida testified that she did not tell the tribal polic e officer who discovered her what had happened to her because she was "still in shock ." Tr. at 620. The prosecutor replied, "When did your memor y 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 j ail." Id. at 623. The prosecutor countered, "And so you took th e lesser of those two evils. You went with Philli p[,] right?" Id. Defense counsel objected to b oth 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, par ticularly the second. But the ma rginal effect of these comments on a collateral issue--whethe r Can dida was in fact raped--in the context of a four-day trial, th e substantial evidence of the defendants' guilt, a nd the curative actions of the court convince us that this misconduct was not so significant that it deprived the defendan ts of a fair trial. See Hernandez , 779 F.2d at 460- 61.

When Phillip was on the stand, the prosecutor suggested on cross

examination that Phillip had changed the order of several events he ha d related during direct examination. See Tr. at 799-800. Counsel did not object, an d Phillip insisted that his direct testimony was not as th e prosecutor had characterized it. The prosecutor said nothing further abou t the issue. A review of the sometimes confusing direct testimony suggests that Phillip was correct and his testimony was consistent. Although the prosecutor was incorr ect, we believe his questioning was the result of an hones t mistake rather than any impropriety, and its effect on th e proceedings was minimal.

In anothe r portion of Phillip's testimony, the government attempted to exp lore Phillip's previous robbery conviction. The prosecutor aske d whether Phillip had "received a sentence," id. at 823; counsel objected, and the co urt sustained the objection. The prosecutor then sought t o clar ify Phillip's direct testimony that he had "been convicted of n o felonies since then," id. at 673, by eliciting a concession that one reaso n Phillip had been conv icted of no felonies was that he was still in prison
on the robbery conviction. In other words, the prosecutor attempted t o 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 th e government's line of questioning, but that the questions would be mor e prejudicial than probative. We need not determi ne whether this ruling was correct, because the only issue

### -23-

befor e us is whether the questions that were actually asked denied th e defendants a fair trial. On this issue, the jury heard the unsurprising inform ation that Phillip had received a sentence for his robber y convic tion; 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 att empt 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 you r 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 objectio n
was that questions about the alleged bribe had been asked and answered

. On appeal, the defendants contend that this line of questioning constitute d an unfounded attack on the character of both the witness and Phillip. The government insists that it had a factual basis f or asking these questions, but when the witness denied that the incident ha d occurred, the government decided not to explore this collateral issue fur ther. We have no means of determining whether or not the government had a factual basis for this lin e of que stioning, but in any event, we are unable to conclude that th e questions so undermined the fairness of the proceedings as to constitute reversible error under the plain error standard of review.

Near t he end of the trial, the court asked defense counsel if the y had any surrebuttal witnesses. When counsel answered

### -24-

affirmatively and asked for a few minutes "to ma ke sure they're here," the prosecutor responded, "Your Honor, I guess if th ey have witnesses, I'd ask theycall them now rather than go out and talk to them beforehand." Id. at 877. The government now claims that the prosecutor meant to sugges t that the trial proceed without a recess so that members of the audienc e would not report the developments in rebuttal te stimony to the surrebuttal witnesses

. If that was in fact the prosecutor's intent, he phrased hi s state ment in such a fashion that it unfairly impugned the integrity o f defense counsel. Nevertheless, no one objected to the statement, and afte r
a short b reak, counsel was able to ease the sting of the statement b y asking the next witne ss, "Did I go out there and talk to you and tell you wh at to say?" Id. In light of the record as a whole, we reject th e 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 o f 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 brie f. The convictions of the defendants are affirmed.

A true copy.

Attest:

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