United States v. Doe

FILED
United States Court of Appeals
Tenth Circuit

July 20, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 08-1137
JANE DOE, a female juvenile,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 08-1184
JOHN DOE, a male juvenile,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:07-CR-483-EWN)

David E. Johnson, Writing and Research Attorney, Office of Federal Public
Defender, (Raymond P. Moore, Federal Public Defender, Denver, Colorado;
Edward A. Pluss, Assistant Federal Public Defender, Denver, Colorado; William
L. Herringer, Greenberg & Herringer, LLC, Durango, Colorado, with him on the
briefs), Denver, Colorado, for Appellants.
John Milton Hutchins, Assistant United States Attorney, (Troy A. Eid, United
States Attorney; Todd Parker Norvell, Assistant United States Attorney, with him
on the brief), Denver, Colorado, for Appellee.

Before BRISCOE, BALDOCK, and HOLMES, Circuit Judges.

BRISCOE, Circuit Judge.

After segmented bench trials, the district court found Native American

juveniles “S.W.” and “R.K.” (together, “defendants”) guilty of an act of juvenile

delinquency under 18 U.S.C. § 5031–37. The delinquent act was arson under 18

U.S.C. § 1153 and defined by 18 U.S.C. § 81. The district court sentenced S.W.

to eighteen months’ confinement and three years’ supervision. The district court

sentenced R.K. to three years’ probation and twelve months’ home detention.

Defendants jointly appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and affirm.

Defendants’ appeals center on the definition of “person” in 18 U.S.C. §

1153(a)’s phrase: “Any Indian who commits against the person or property of

another Indian or other person any of the following offenses . . . .” (emphasis

added). First, defendants argue that context and statutory construction dictate that

“person” is restricted to only living individuals. Second, and alternatively,

defendants contend that at its broadest, “person” can only include living

individuals or corporations, public and private. Under this definition, defendants

2
argue that there was insufficient evidence to establish that the arson victim was a

corporation. Third, defendants argue that the district court abused its discretion

by permitting the prosecution to reopen its cases to present evidence related to the

corporate status of the arson victim. Fourth, defendants argue that the charging

information was insufficient because it failed to provide sufficient identification

of the arson victim and its status.

I

In April 2007, defendants broke into the Ute Mountain Presbyterian

Church. While inside, defendants vandalized the church and started a fire. In

December 2007, the government charged defendants with acts of juvenile

delinquency. The information stated defendants’ tribal membership, identified

defendants as juveniles, and charged that defendants “willfully and maliciously

set fire to or burned a building, namely, the Ute Mountain Presbyterian Church,

located within the exterior boundaries of the Ute Mountain Ute Indian

Reservation.” R. Vol. I Doc. 2 at 1. The government later filed a superseding

information that added a charge of aiding and abetting, but did not change any

other description. Defendants denied the allegations.

On February 5, 2008, the district court began R.K.’s trial. Although the

government presented seven witnesses, no evidence was presented regarding the

ownership of the church. After the prosecution rested, R.K. moved for a

judgment of acquittal, arguing that the prosecution failed to identify the victim of

3
the arson, which was an element of the charged crime. Ultimately, the district

court agreed with R.K. and found, “there is no proof of who owned this church,

and . . . there . . . has been no offense committed because there is an element

missing.” R. Vol. IIA at 100–01. The prosecution requested an overnight chance

“to review the situation and possibly move to reopen the case.” R. Supp. Vol. I at

2.

The next morning, February 6, 2008, the prosecution moved to reopen its

case. R.K. objected and characterized the motion as an attempt to get “two bites

at the apple.” Id. at 6. The district court granted the motion to reopen because of

“the overriding interest in justice.” Id. at 9. The district court also granted

R.K.’s request for a continuance to allow for discovery regarding the ownership

of the church.

Also on February 6, 2008, the district court began S.W.’s trial. The

prosecution presented nine witnesses. Edward Rousset, the pastor of the Ute

Mountain Presbyterian Church, testified that the church had few members. R.

Vol. II at 65. When asked “who owns the building,” Pastor Rousset responded,

“The Presbyterian—it’s owned by the Presbyterians. It’s Presbyterian Western

Colorado.” Id. at 66. Later during direct examination, Pastor Rousset confirmed

that “the building of the church is actually owned by the Presbyterian church[.]”

Id. at 68. Pastor Rousset also confirmed that the insurance policy on the building

was “paid to the church[.]” Id. at 71. On cross examination, however, Pastor

4
Rousset acknowledged that he did not know how the Presbyterian church obtained

title to the building. Id. at 69. The prosecution then rested “with some hesitation

and reservation.” Id. at 71.

After the close of the prosecution’s case, S.W. moved for judgment of

acquittal, asserting arguments similar to those R.K. had raised. In light of Pastor

Rousset’s testimony, S.W. also moved for a continuance to pursue discovery

regarding the church’s ownership. The prosecution took no position on the

requested continuance. The district court granted the continuance and ordered

briefing on the elements of 18 U.S.C. § 1153.

In its briefing before the district court, the prosecution identified the Ute

Mountain Presbyterian Church as the victim of the arson. The prosecution argued

that the Ute Mountain Presbyterian Church, which it considered to be an

association or society, falls within the definition of “person” under 18 U.S.C. §

1153 as defined by 1 U.S.C. § 1—“the word[] ‘person’ . . . include[s]

corporations, companies, associations, firms, partnerships, societies, and joint

stock companies, as well as individuals.” S.W. countered by arguing that the

context of 18 U.S.C. § 1153 restricted “person” to only individuals, or individuals

and corporations.

On March 13, 2008, the district court held a status conference on both

cases. During this conference, the prosecution moved to reopen its case against

S.W. S.W. objected. The district court granted the request to reopen “in the

5
interest of justice and the truth-finding function.” R. Vol. VI at 9. Counsel for

R.K. agreed that “if the Court wants to go forward on [S.W.’s] case, then make

findings of fact and then make—then rule that’s what the law is on the case, after

that . . . we may very well be willing to accept [that] finding of fact and ruling of

law, even if it’s adverse to us . . . I don’t see any reason why the evidence would

be substantially different in [R.K.’s] case or the Court’s rulings on the law would

be different.” Id. at 6.

Three days later, on March 17, 2008, the district court reconvened S.W.’s

trial. The government presented four additional witnesses. The additional

testimony addressed ownership of the church building and included the

submission of leases covering periods before and after the arson, and the

building’s insurance policy. S.W. testified for the defense. After closing

arguments, the district court found that “the Presbytery of Western Colorado is

clearly a nonprofit corporation, according [to] all the documentation.” R. Vol. IV

at 71. Additionally, the district court found that the Ute Mountain Presbyterian

Church “is . . . a body or a building that was built by the Presbyterian church, the

United Presbytery of Western Colorado, and is financed and run by and owned by

the Presbytery of Western Colorado.” Id. at 72. To support these findings, the

district court relied on: (1) the lease in effect at the time of the arson that was

signed by the Presbytery of Western Colorado; (2) the insurance policy naming

the Presbytery of Western Colorado as the “owner or holder of the insurable

6
interest in the Ute Mountain Presbyterian Church”; (3) the payment to the

Presbytery of Western Colorado of the insurance proceeds resulting from the

arson; and (4) “that the entire course of conduct by everyone involved here treats

this piece of property, namely the church building . . . , as the property of the

Presbytery of Western Colorado.” Id. at 73. Based on these findings, 1 the district

court found there was “adequate proof that [S.W.] committed arson against the

property of a person, namely the Presbytery of Western Colorado, a body

corporate.” Id. at 75.

On April 7, 2008, the district court reconvened R.K.’s trial. The parties

stipulated that evidence from the second segment of S.W.’s trial would be treated

as evidence in R.K.’s trial. The district court made similar factual findings as

were made in S.W.’s trial.

After disposition hearings were held for S.W. and R.K. and judgments were

filed, defendants filed timely appeals. We granted defendants’ joint motion to

consolidate the appeals.

II

There are four issues on appeal: (1) the proper definition of “person” in 18

U.S.C. § 1153’s language “[a]ny Indian who commits against the person or

property of another Indian or other person any of the following offenses . . .”; (2)

1
The findings also included a discussion of the other elements of 18 U.S.C.
§ 81 and 18 U.S.C. § 1153 that are not at issue here.

7
whether the prosecution provided sufficient evidence to prove beyond a

reasonable doubt that the owner of the Ute Mountain Presbyterian Church was a

“person” under this definition; (3) whether the district court abused its discretion

in allowing the prosecution to reopen its case and present evidence concerning the

ownership of the Ute Mountain Presbyterian Church; and (4) whether the

information, which did not set out who owned the Ute Mountain Presbyterian

Church, sufficiently charged defendants with a violation of 18 U.S.C. § 1153.

1. The definition of “person”

a. Statutory language analysis

To determine what entities are “persons” under § 1153, we first examine

the statutory language. See Lippoldt v. Cole, 468 F.3d 1204, 1212 (10th Cir.

2006) (conducting a similar inquiry of the word “person” under the language of

42 U.S.C. § 1983). Section 1153(a) provides in pertinent part:

Any Indian who commits against the person or property of another
Indian or other person any of the following offenses, namely . . .
arson . . . within the Indian country, shall be subject to the same law
and penalties as all other persons committing any of the above
offenses, within the exclusive jurisdiction of the United States.

Three variations of “person” appear in this language. While we acknowledge the

presumption that “identical words used in different parts of the same act are

intended to have the same meaning,” that presumption “yields whenever there is

such variation in the connection in which the words are used as reasonably to

warrant the conclusion that they were employed in different parts of the act with

8
different intent.” Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 595

(2004) (internal quotation and citation omitted).

The varying usage of “person” in 18 U.S.C. § 1153(a) indicates different

definitions. Read in context, the first use of “person”—“commits against the

person or property of another”—references the physical body of a living

individual. E.g. Webster’s New International Dictionary of the English Language

1686 (3d ed. 1993) (listing “the body of a human being” as one definition of

“person”). This is the only logical reading of “person” in this context. The

second use of “person”—“of another Indian or other person”—refers to an entity

that either has a physical body or that can own property, and it is this reference to

“person” that is the focus of our inquiry. The third use of “person”—“all other

persons committing any of the above offenses”—suggests a living individual

capable of committing the listed offenses. Because the changing uses of “person”

require different definitions, the plain meaning of “person” in this statutory

context is unclear. See United States v. Jimenez, 507 F.3d 13, 19 (1st Cir. 2007)

(listing several definitions of “person” and noting “[t]he word ‘person’ in

isolation admits of more than one meaning”).

Nevertheless, defendants argue that the second use of “person” in the

statute refers only to living individuals. To support this argument, defendants cite

United States v. Bly, 510 F.3d 453, 463 (4th Cir. 2007), and the principle of

statutory construction that, if possible, no word in a statute should be construed to

9
be superfluous. E.g. Ansari v. Qwest Comm’ns Corp., 414 F.3d 1214, 1218 (10th

Cir. 2005) (citing TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)). Without

further explanation, defendants assert “[a]llowing the phrase ‘Indian or other

person’ to include non-individuals would render the word [‘Indian’] insignificant

. . . .” Aplt. Br. at 32 (quotation omitted). We note the full context of the cited

phrase states: “Any Indian who commits against the person or property of another

Indian or other person any of the following offenses . . . .” 18 U.S.C. § 1153(a).

The statute can be clearly read to include crimes against the property of another

person without negating the significance of the reference to crimes against the

person or property of another “Indian.”

Defendants cite the Fourth Circuit’s statement in Bly in support of their

contention that “person” as used in 18 U.S.C. § 1153(a) refers only to living

persons:

Bly’s proposition that the term “person,” as used in the Extortion
Element, should exclude all sovereign entities and their subparts, has
little appeal in the criminal law context. . . . In support of this
proposition, Bly relies on two Ninth Circuit decisions arising under
18 U.S.C. § 1153 (Indian major crimes statute). . . . The Ninth
Circuit ruled in those cases that a government entity could not be a
victim under § 1153, because such an entity was not a living person.
Even if correctly decided, those decisions seem readily
distinguishable from our Extortion Element issue, in that § 1153
appears, by its terms, to relate exclusively to living persons.

510 F.3d at 463 (citations omitted). We are hesitant to follow this dicta, which

begins with the caveat “[e]ven if correctly decided.” Id. We conclude that

10
defendants’ reliance on Bly is irrelevant to our present inquiry. 2 Similarly, it is

unclear how defendants reach the conclusion that an expanded definition of

“person” beyond living individuals renders the word “Indian” superfluous.

The Supreme Court in Rowland v. Cal. Men’s Colony, Unit II Men’s

Advisory Council, 506 U.S. 194, 201–06 (1993), provided guidance, in the form

of four examples, for determining when the statutory context clearly restricts the

definition of “person” to a living individual. First, whether the statute indicates

that the “person” is capable of self-representation in court. Id. at 201. Second,

whether the statute uses adjectives or conditions, such as “poverty,” that are

nonsensical when applied outside of the living individual context. Id. at 203.

Third, whether the statute requires the entity to take an oath. Id. at 204. Fourth,

whether the statute applies criteria, such as tests for “necessities of life,” that

would be irrelevant to artificial entities. Id. at 206. From these examples, we

infer that for “person” to mean only living individuals, the statute must suggest

legal action that only a living individual may undertake or apply adjectives or

2
While not directly addressing the definition of “person” under 18 U.S.C. §
1153, other cases arising under the statute have involved victims that were not
living individuals. E.g. United States v. M.W., 890 F.2d 239, 239 (10th Cir.
1989) (applying § 1153 to a juvenile committing arson involving the “Mill Creek
School”); Johnson v. United States, 370 F.2d 495, 496 (9th Cir. 1966) (burglary
of the “White River Trading Post”); United States v. Cardish, 145 F. 242, 243
(D.C. Wis. 1906) (arson of “certain dwelling house[s] of the United States . . .
known as the ‘Girls’ [and Boys’] Building[s] of the Menominee Indian Training
School’” and defining the crime as “arson against the property of another, to wit,
of the United States of America”).

11
tests that distinctly relate to the human condition. The present use of “person”

requires only that the entity have a physical body or possess property. Because

“persons” other than living individuals can possess property, we conclude that the

statutory context does not require a “person” to be a living individual. 3

b. Legislative history

To the extent the plain meaning of the statutory language and context of

“person” is unclear, we turn to the “‘legislative environment’ in which the word

[person] appears,” searching for an “indicia of congressional intent at the time the

statute was enacted.” Lippoldt, 468 F.3d at 1212 (internal citation and quotation

omitted). The legislative history of § 1153 began with the Major Crimes Act of

1885. Keeble v. United States, 412 U.S. 205, 205 n.1 (1973). The relevant

phrase—“against the person or property of another Indian or other

person”—appeared in the original statute. Id. at 206 n.2. While later

amendments added offenses and federal definitions for some of the offenses,

arson was one of the original offenses identified. Id.; United States v. Welch, 822

3
Defendants argue that additional canons of statutory construction, such as
construing ambiguous statutes in favor of Native American sovereignty and the
rule of lenity, “require that the phrase ‘Indian or other person’ be limited to
individuals.” Aplt. Br. at 36. Beyond suggesting a “narrow interpretation,”
Defendants, however, have not shown how these rules of statutory construction
require the phrase “Indian or other person” to exclude non-living entities. Id. In
this context, we are more persuaded by the Supreme Court’s statutory analysis in
Rowland to determine whether “Indian or other person” refers only to living
individuals.

12
F.2d 460, 463 (4th Cir. 1987) (discussing amendment by the Indian Crimes Act of

1976). For contemporaneous guidance, we look to the Dictionary Act of 1871.

Lippoldt, 468 F.3d at 1214–15 (“[I]n attempting to discern the meaning of

‘person’ . . . we look not to how the words are defined now, but rather at how

they were defined at the time the statute was enacted.”).

The Dictionary Act of 1871 “was designed to supply rules of construction

for all legislation.” Inyo County, Cal. v. Paiute-Shoshone Indians, 538 U.S. 701,

713 n.1 (2003) (Stevens, J., concurring). Regarding the use of “person,” the act

states: “‘person’ may extend and be applied to bodies politic and corporate.” Id.

(citing Act of Feb. 25, 1871, § 2, 16 Stat. 431). Unincorporated associations were

not persons under the Dictionary Act of 1871.

Conversely, we have stated that the current version of the Dictionary Act

applies only prospectively. Lippoldt, 468 F.3d at 1215. Because the use of

“person” in § 1153 predates the 1948 enactment of the current Dictionary Act, the

definition of “person” in 1 U.S.C. § 1 4 is unpersuasive. Id. at 1214 (“We do not

read the current enactment of the Dictionary Act in 1 U.S.C. § 1 to require a

contrary result.”). This statutory history implies that our approach does not

contradict the Supreme Court’s statement in United States v. A & P Trucking Co.,

4
1 U.S.C. § 1 provides in pertinent part: “the words ‘person’ and ‘whoever’
include corporations, companies, associations, firms, partnerships, societies, and
joint stock companies, as well as individuals . . . .”

13
358 U.S. 121, 123 n.2 (1958):

It is significant that the definition of ‘whoever’ in 1 U.S.C. § 1 was
first enacted into law as part of the very same statute which enacted
into positive law the revised Criminal Code [Title 18]. 62 Stat. 683,
859 (1948). The connection between 1 U.S.C. § 1 and the Criminal
Code, which includes § 835, is thus more than a token one . . . .

Moreover, the inclusion of § 1153(b) 5 demonstrates an example of congressional

intent to alter the definitions of terms in the Major Crimes Act of 1885. In

contrast, the phrase at issue—“Any Indian who commits against the person or

property of another Indian or other person any of the following offenses . . .”—

has remained unchanged, and without further clarification, from its original

enactment. Following Lippoldt and applying the Dictionary Act of 1871, we

conclude that § 1153’s use of “person” applies to living individuals and

corporations, but does not apply to unincorporated associations. 468 F.3d at

1213–15.

c. Response to the dissent

Although the dissent concurs with our conclusion—that § 1153’s use of

“person” applies to living individuals and corporations, but not unincorporated

5
Section 1153(b) provides:

Any offense referred to in subsection (a) of this section that is not
defined and punished by Federal law in force within the exclusive
jurisdiction of the United States shall be defined and punished in
accordance with the laws of the State in which such offense was
committed as are in force at the time of such offense.

14
associations—the dissent “would reach that result based solely on the plain

meaning of the statute’s words in the context in which they are used.” Dissent

Op. at 1. The dissent’s analysis, however, does not negate our reasoning on this

issue.

As is the usual approach, the dissent also starts with the statutory language

of 18 U.S.C. § 1153(a). The dissent reads this language to be unambiguous and

considers our “foray” into legislative history to be inappropriate. Dissent Op. at

10. In its analysis, however, the dissent presumes the same legislative history

that we cite. The dissent likewise applies the Dictionary Act of 1871 and notes

that “we look to the version of the Dictionary Act in existence when the statute

was enacted.” Dissent Op. at 8 n.3. To select the Dictionary Act of 1871 as the

defining statute, the dissent must determine when the statute was enacted and

whether the language was subsequently altered. Consequently, the dissent’s

analysis requires the same information we applied—that Congress first enacted

the relevant language in § 1153 in 1885 and that the language has remained

unchanged.

Beyond the dissent’s implicit statutory history analysis, 6 the dissent’s

characterization of the statutory language as unambiguous is potentially

6
Instead of conducting statutory analysis, the dissent explicitly conducted
“case history” analysis. Dissent Op. at 9 (citing cases from 1826 and 1844 for the
proposition that “in 1885, it was well established that corporations were treated as
persons”).

15
problematic. The dissent reasons that because the “Dictionary Act of 1871 . . .

makes it clear that ‘person’ includes corporations” “our interpretive task is

simplified . . . .” Dissent Op. at 8. As a result, the dissent directly substitutes the

definition of person from the Dictionary Act of 1871 for § 1153’s usage of

“person.” Under this approach, however, significant questions arise about the

other references to “persons” in § 1153—“Any Indian who commits against the

person or property of another Indian or other person any of the following

offenses, namely . . . arson . . . within the Indian country, shall be subject to the

same law and penalties as all other persons committing any of the above offenses

. . . .” (emphasis added). If the use of “other person” implicated the definition of

the Dictionary Act of 1871, then the use of “all other persons” requires the same

broad definition. This construction is nonsensical because corporations cannot

commit the listed offenses.

The dissent attempts to remedy this confusion by stating, without citation,

“The Dictionary Act acknowledges that, in some cases, the ‘context’ may indicate

that a different meaning was intended.” Dissent Op. at 10. This acknowledgment

is identical to our logic that the statute is unclear because “the varying usage of

‘person’ . . . indicates changing definitions.”

Consequently, to arrive at the dissent’s conclusion—“viewed in its

appropriately defined statutory context, which includes the Dictionary Act of

1871, and with reference to the common understanding of the term at the time of

16
the MCA’s enactment, the specific usage of the term ‘person’ at issue here simply

is not, in my view, unclear”—requires knowledge of when § 1153 was enacted

and reasoning to distinguish this “specific usage” from other references to

“persons.” Dissent Op. at 11. This is the same path of statutory history and

contextual ambiguity that we follow.

2. Sufficiency of the evidence to show corporate ownership of the church

Having determined that the definition of “person” under § 1153 is restricted

to living individuals or corporations, we turn to defendants’ argument that there

was insufficient evidence to prove beyond a reasonable doubt that the owner of

the Ute Mountain Presbyterian Church was a corporation. Defendants argue that

the Ute Mountain Presbyterian Church, which is not a living individual or a

corporation, was the owner of the church building. In support of this contention,

defendants highlight: (1) testimony from witnesses indicating that the Ute

Mountain Presbyterian Church was the lessee of the building’s land; (2) the lease

in effect at the time of the arson identifying the Ute Mountain Presbyterian

Church as the lessee; and (3) a lease agreement for the land renewed days after

the arson identifying the Ute Mountain Presbyterian Church as the lessee.

Defendants challenge the district court’s conclusion that the Presbytery of

Western Colorado was the owner based on the court’s reliance on the signature by

an agent of the Presbytery of Western Colorado on the lease in effect at the time

of the arson, and the Presbytery of Western Colorado holding an insurance policy

17
on the church building.

While we concede that there is conflicting evidence regarding the

ownership of the church building, more is required under the applicable standard

of review for us to reverse these convictions. “We review sufficiency of the

evidence challenges de novo to determine whether, viewing the evidence in the

light most favorable to the government, any rational trier of fact could have found

the defendant guilty beyond a reasonable doubt.” United States v. Flanders, 491

F.3d 1197, 1207 (10th Cir. 2007) (citing United States v. Yehling, 456 F.3d 1236,

1240 (10th Cir. 2006)). We do not weigh conflicting evidence or evaluate witness

credibility. United States v. Dazey, 403 F.3d 1147, 1159 (10th Cir. 2005).

Instead, we view the evidence in the light most favorable to the prosecution. Id.

Having reviewed the transcript of the testimony and the submitted

evidence, we conclude there is sufficient evidence for a rational trier of fact to

find beyond a reasonable doubt that the owner of the burned building was the

Presbytery of Western Colorado. While the record contains vague and conflicting

statements and contradictory assertions by the prosecution, 7 there is also evidence

7
For example: “The church belongs to the church” and agreements that
“the lease itself is in the name of the Ute Mountain Presbyterian Church.” R.
Vol. IV at 16, 18; “It is additionally clear that the ‘person’ (the church as an
association or society) and the ‘property’ (the church’s building) of that ‘person’
were injured and/or damaged as a result of the actions of the defendants.” R. Vol.
I Doc. 118 at 9; and “the church owned the building through the . . . First United
Methodist Church.” R. Vol. IIA at 93.

18
that the Presbytery of Western Colorado owned the church building. During the

first day of S.W.’s trial, Pastor Rousset answered the question “who owns the

building?” with the statement, “The Presbyterian—it’s owned by the

Presbyterians. It’s Presbyterian Western Colorado.” R. Vol. II at 66. After the

trial was reopened, Kim Nofel, a minister for the Presbyterian Church U.S.A.,

testified that the “Presbytery of Western Colorado maintained insurance on the

Ute Mountain Presbyterian Church building.” 8 R. Vol. IV at 33. An agent for the

Presbytery of Western Colorado signed the lease that was in effect at the time of

the arson. Pastor Nofel and Gwen Cook, the clerk of the Presbytery of Western

Colorado, testified that the Presbytery of Western Colorado was a nonprofit

corporation. Id. at 37, 44. Viewing this evidence in the light most favorable to

the prosecution, the evidence presented was sufficient to prove beyond a

reasonable doubt that the Presbytery of Western Colorado, a nonprofit

corporation, owned the burned building.

8
Defendants argue that evidence related to how the building was insured
does not indicate that the Presbytery of Western Colorado owned the building
because “[t]he insurer of a piece of property is not necessarily the legal title
holder to the property.” Aplt. Br. at 50. Even if we accept this unsupported
statement as true, the evidence regarding insurance was not irrelevant to the
question of the building’s ownership. See Fed. R. Evid. 401 (defining “relevant
evidence” to be “evidence having any tendency to make the existence of any fact
that is of consequence . . . more probable or less probable than it would be
without the evidence”). Under our standard of review for sufficiency of the
evidence, we agree with the district court’s statement, “Insurance documents can
in some respects be important indicia of who owns a piece of property that is
burned or destroyed . . . .” R. Vol. IV at 72.

19
3. The prosecution’s motions to reopen the cases

A “trial court is vested with wide discretion to permit the reopening of

either party’s case.” United States v. Hinderman, 625 F.2d 994, 996 (10th Cir.

1980) (citing United States v. Keine, 424 F.2d 39, 40–41 (10th Cir. 1970)). A

court abuses its discretion “when it renders a judgment that is arbitrary,

capricious, whimsical, or manifestly unreasonable.” United States v. Sells, 541

F.3d 1227, 1237 (10th Cir. 2008) (quotation omitted). In exercising its discretion

on a motion to reopen, the district court should be mindful that:

[T]he government’s case-in-chief should not be treated as an
experiment that can be cured after the defendant has, by motion,
identified the failures. But the trial court must be vested with
discretion to permit reopening when mere inadvertence or some other
compelling circumstance . . . justifies a reopening and no substantial
prejudice will occur.

Hinderman, 625 F.2d at 996. “Such discretion is not abused where there is no

suggestion of surprise, and no further preparation is required to meet the

testimony, particularly where a continuance is not requested.” United States v.

Alderete, 614 F.2d 726, 727 (10th Cir. 1980). This court has also noted that a

defendant should not be allowed to abuse a prosecutor’s inadvertence “to gain an

unjust result.” United States v. Bolt, 776 F.2d 1463, 1472 (10th Cir. 1985)

(quotation omitted).

The circumstances surrounding the motions to reopen differ between the

trials of R.K. and S.W. During R.K.’s trial, the prosecution rested, and then R.K.

20
moved for a judgment of acquittal. After the district court found, “There is no

proof . . . . I think that there . . . has been no offense committed because there is

an element missing,” the prosecution requested an overnight continuance because

it was “caught flatfooted.” R. Vol. IIA at 100–01. The district court then asked

if the prosecution wanted to reopen. The prosecution responded, “I would ask to

reopen in the morning.” Id. at 101. The following morning, the prosecution

moved to reopen. The district court granted the motion “in the interests of

justice” and referred to the element of proof relating to a “person” under § 1153

as a “technical element.” R. Supp. Vol. I at 9–10.

During S.W.’s trial, the prosecution rested on February 6, 2008, and then

S.W. moved for a judgment of acquittal. S.W. also requested a continuance for

further discovery regarding the ownership of the church building, which the

district court granted. On March 13, 2008, the prosecution moved to reopen. The

district court granted the motion “in the interests of justice and the truth-finding

function.” R. Vol. VI at 10.

In both circumstances, we acknowledge that defendants suffered some

degree of prejudice. Defendants were required to adapt to the prosecution’s

evolving assertions of which “person” owned the church building. We are not

convinced, however, that these facts presented the requisite substantial prejudice

to defendants. The district court granted S.W.’s request for a continuance and

both trials were halted. There is no suggestion that defendants were surprised. In

21
fact, defendants raised the issue of the church’s ownership and the statutory

definition of “person,” which supported the prosecution’s motions to reopen. The

prosecution and the defendants received additional time to research the legal and

factual aspects of the church’s ownership.

The prosecution’s requests to reopen were due to inadvertence. As we

noted before, no prior case clearly sets forth the definition of a “person” under 18

U.S.C. § 1153. In contrast, we have applied § 1153 to arson of a school without

discussion of what person owned the school. M.W., 890 F.2d at 239–41. Given

this isolated legal history, the prosecutor’s failure to fully consider the definition

of “person” and to gather the necessary evidence prior to trial to establish that

element does not appear to be deliberate. We conclude the district court did not

abuse its “wide discretion” by allowing the prosecution to reopen. Hinderman,

625 F.2d at 996.

4. The sufficiency of the information

a. Standard of review

We review de novo the sufficiency of an indictment. 9 United States v.

9
Arguably, the standard of review for the sufficiency of the information in
this context is not strictly de novo. Defendants did not raise this issue until after
the prosecution rested. While a timely-raised objection to the sufficiency of the
information merits de novo review, courts are less “hospita[ble]” to challenges to
an information later in the proceedings. United States v. Willis, 102 F.3d 1078,
1081 (10th Cir. 1996) (“Although we generally review the sufficiency of an
indictment de novo, when a defendant fails to raise a timely challenge, we will
(continued...)

22
Redcorn, 528 F.3d 727, 733 (10th Cir. 2008). An indictment, or information, is

sufficient “if it contains the elements of the offense charged, putting the

defendant on fair notice of the charge against which he must defend, and if it

enables a defendant to assert [a double jeopardy defense.]” United States v.

Poole, 929 F.2d 1476, 1478 (10th Cir. 1991). “[I]t is generally sufficient that an

indictment set forth an offense in the words of the statute itself, as long as those

words themselves fully, directly, and expressly, without any uncertainty or

ambiguity, set forth all the elements necessary to constitute the offence intended

to be punished.” Redcorn, 528 F.3d at 733 (citations omitted). “Therefore, where

the indictment quotes the language of a statute and includes the date, place, and

nature of illegal activity, it need not go further and allege in detail the factual

proof that will be relied upon to support the charges.” Id. (citations omitted).

9
(...continued)
liberally construe an indictment in favor of validity.”) (internal quotation
omitted); United States v. Thompson, 356 F.2d 216, 226–27 (2d Cir. 1965)
(“[T]he courts of the United States long ago withdrew their hospitality toward
technical claims of invalidity of an indictment first raised after trial, absent a
clear showing of substantial prejudice to the accused . . . .” and listing cases from
the Fourth, Ninth, and Eighth Circuits); United States v. Lucas, 932 F.2d 1210,
1218 (8th Cir. 1991) (noting that “defendants did not make this challenge to the
indictment until after the close of the government’s case-in-chief” and
“indictments which are tardily challenged are liberally construed in favor of
validity”); United States v. De La Pava, 268 F.3d 157, 162 (2d Cir. 2001) (“The
scrutiny given to an indictment depends, in part, on the timing of a defendant’s
objection to that indictment.”). Because we also conclude that even if the
information were insufficient, it resulted in only harmless error, we apply de novo
review.

23
 Here, the superseding information identified the date, place, and which

church defendants allegedly burned. This is sufficient to enable defendants to

assert a double jeopardy defense should they face subsequent charges. The

question is whether, despite omitting any allegation of ownership of the building

by a person, the superseding information contains the elements of § 1153.

Although the superseding information does not quote the language of § 1153, it

states that the conduct described was “in violation of Title 18 U.S.C. Section[] . .

. 1153.” R. Vol. I Doc. 61 at 2. As discussed, § 1153 requires the offense be

committed “against the person or property of another Indian or other person . . . .”

Whether the identity of the victim must be contained in the indictment was

touched upon in United States v. Moore, 198 F.3d 793, 795–96 (10th Cir. 1999).

In Moore, we addressed a carjacking charge under 18 U.S.C. § 2119, which

required the taking of a motor vehicle “from the person or presence of another.”

Id. at 796. The indictment identified the victim as the owner of the vehicle. The

facts at trial indicated that the vehicle was taken in the presence of the owner’s

wife, and not the owner. The district court amended the indictment at the close of

evidence to reflect the evidence at trial. We stated in Moore:

As a general rule, an erroneous reference to the victim is not fatal to
the indictment. See Dye v. Sacks, 279 F.2d 834 (6th Cir. 1960). In
the case at hand, the Indictment named the victim as Brent Byers.
Brent Byers was the victim’s husband, and was the registered owner
of the car. None of the evidence presented at trial suggested that
Brent Byers was present during the bank robbery. Mr. Byers did not
testify at trial. However, the victim Anne Byers did testify at trial

24
 and was cross examined by the defendant. The defendant argued at
trial as a defense that he was not guilty because he did not take the
car from the “person or presence of another” and he used the
testimony of Anne Byers in support of that argument. At no point
during trial was the name of Brent Byers discussed. Where a
variance is such that the defendant could not have anticipated from
the allegations in the indictment what the evidence would be at trial,
the defendant’s Sixth Amendment right to notice of the charges
against him is violated. See United States v. Stoner, 98 F.3d 527, 536
(10th Cir. 1996) cert. denied, 525 U.S. 961, 119 S. Ct. 403, 142
L.Ed.2d 327 (1998). However, where the defendant was not misled
by the variance, his right to adequate notice and substantial rights are
not prejudiced in any way. Id. at 536–37. Based upon the record
before this court it does not appear that the defendant was prejudiced
in any way by the variance to the Indictment. Mr. Moore was aware
of the charges against him and presented his defense with the
knowledge that Anne Byers was the alleged victim of the crime.

Id. at 796. Just as the defendant in Moore knew which car he was accused of

carjacking, the defendants in the present cases knew which church they were

accused of burning. Further, the defendants had the opportunity to present a

defense to counter the prosecution’s assertions regarding the church’s ownership.

See id. (“Mr. Moore . . . presented his defense with the knowledge that Anne

Byers was the alleged victim of the crime.”).

b. Harmless error

Even if we accept defendants’ contention that the identity of the church’s

owner should have been set forth in the information—although Moore provides

that “[a]s a general rule, an erroneous reference to the victim is not fatal to the

indictment,” id.—we apply a harmless error standard of review when addressing

challenges to the sufficiency of an indictment. United States v. Prentiss, 256 F.3d

25
971, 981 (10th Cir. 2001) (en banc) (“[W]e hold that the failure of an indictment

to allege an essential element of a crime . . . is subject to harmless error

review.”), overruled in part on other grounds by United States v. Cotton, 535 U.S.

625 (2002). For the error to be harmless, the “omitted elements must be

uncontested and supported by overwhelming evidence, such that the jury verdict

would have been the same absent the error.” United States v. Prentiss, 273 F.3d

1277, 1279 (10th Cir. 2001) (alterations omitted). Here, the omitted element was

that the crime was committed “against the person or property of another Indian or

other person.” 18 U.S.C. § 1153(a). We have no doubt that the judgment would

have been the same absent the error.

As discussed, the district court explicitly considered the identity of the

church’s owner. The district court found beyond a reasonable doubt that the

Presbytery of Western Colorado owned the church. It would be illogical to

assume this outcome would have been different if the indictment identified the

Presbytery of Western Colorado as the church’s owner. Accordingly, any

possible error resulting from the indictment’s omission of the identity of the

church’s owner was harmless.

While defendants challenged the question of the church’s ownership by

arguing that the prosecution’s evidence was inconclusive, they presented no

evidence contesting the church’s ownership. Defendants had a month’s

continuance between raising the issue of the church’s ownership and presenting

26
their defense. The only prejudice defendants allege is that the omission of the

church’s ownership from the information “enabled the government to switch its

theory of the arson victim.” Aplt. Br. at 63. This claimed prejudice does not

indicate that the verdict would not have been the same absent the error. Instead,

this claim is similar to the situation in Moore, where we found no prejudice to the

defendant. 198 F.3d at 796.

c. Response to the dissent

To clarify our application of harmless error review, we briefly respond to

issues raised by the dissent. While the dissent agrees that harmless error is the

appropriate standard of review for an error in the information, it declines to

conduct harmless error review because the government did not address the issue

in its briefing or at oral argument. The dissent, however, notes that even if the

government fails to raise an argument, the court can sua sponte review for

harmless error after considering: (1) the length and complexity of the record; (2)

whether the harmlessness of the error is certain or debatable; and (3) whether a

reversal would result in protracted, costly, and futile proceedings in the district

court. Dissent Op. at 23–24 (also noting that the most important consideration is

whether the certainty of the harmlessness is readily apparent). Because the

dissent considers the evidence ambiguous, making the certainty of the

harmlessness not readily apparent, the dissent does not consider sua sponte

harmless error review appropriate.

27
 The dissent’s reasoning on this issue is flawed for several reasons. First,

applying the listed factors for conducting harmless error review supports its

present application. The record in this case is not lengthy or complex. The trials

for both defendants lasted less than one week. The certainty of the harmlessness

is clear. Reversal would result in futile proceedings. The district court already

granted a continuance for further briefing and argument on this issue. The district

court explicitly considered evidence on this issue. Moreover, because defendants

are juveniles, any future proceedings would have only questionable impact.

Second, although the dissent criticizes the government for not satisfying its

burden to show harmless error, defendants have not alleged any error attributable

to the insufficiency of the information. The extent of defendants’ argument on

this issue is that “this deficiency prejudiced the defendants because it enabled the

government to switch its theory of the arson victim.” Aplt. Br. at 63. The proper

method to challenge and prevent the prosecution from changing its theory of the

case is through a bill of particulars. Sullivan v. United States, 411 F.2d 556, 558

(10th Cir. 1969) (“If the accused desired more definite information for the proper

preparation of a defense and to avoid prejudicial surprise, the remedy was by

motion for a bill of particulars . . . .”). A bill of particulars entitles defendants to

notice of the government’s theory of the case. United States v. Tyler, 42 F.

App’x 186, 190 (10th Cir. 2002) (“If the indictment sets forth the elements of the

offense charged and sufficiently apprised the defendant of the charges to enable

28
him to prepare for trial, a bill of particulars is not necessary. Significantly, a

defendant is not entitled to notice of all of the evidence the government intends to

produce, but only the theory of the government’s case.”) (internal citation and

quotation omitted). If defendants do not file a bill of particulars, they waive the

right. Phillips v. United States, 406 F.2d 599, 602 (10th Cir. 1969) (noting that

defendant “defended his case in the trial court based on the elements of the crime

for which he was charged. Therefore[,] we conclude that the indictment

adequately advised him of the crime of which he was accused. Also[, defendant]

was free to move for a bill of particulars if he was unsure of the charge against

him. By failing to do so[,] he has waived the privilege.”).

Here, defendants did not file a bill of particulars and waited for the

prosecution to close its case-in-chief before challenging the information. Had

defendants acted earlier, the error they now allege would have been avoided.

Although the government did not provide a sufficient harmless error argument,

defendants provided little at trial or on appeal to which the government could

respond.

Third, the dissent omits relevant evidence in its effort to find the

harmlessness uncertain. Although we acknowledge that there is conflicting

evidence and confusion about the church’s ownership, all of this confusion came

from the prosecution. Defendants did not present any evidence challenging the

church’s ownership.

29
 Reviewing the record, the dissent focuses on Ms. Nofel’s testimony and the

leases for the church’s land. Regarding Ms. Nofel’s testimony, the dissent notes

that nothing in her testimony “compels the court’s conclusions.” Dissent Op. at

25. Regarding the leases for the church’s land, the dissent highlights the

ambiguity resulting from the church being the lessee on the lease, but a

Presybtery of Western Colorado representative also signing the lease. The dissent

also considers the “Book of Order,” for which neither the dissent nor defendants

provide a citation in the record.

Absent from this analysis is a discussion of the testimony of Pastor

Rousset. Before defendants raised any challenge to the church’s ownership,

Pastor Rousset answered the question of “who owns the building?” with the

statement, “The Presbyterian—it’s owned by the Presbyterians. It’s Presbyterian

Western Colorado.” R. Vol. II at 66. This statement is not ambiguous. In

combination with the lease and insurance document, this statement makes clear

that the verdicts against the defendants would have been the same absent the error

in the information.

III

We affirm the convictions in both cases.

30
08-1137, United States v. Jane Doe

08-1184, United States v. John Doe

HOLMES, Circuit Judge, concurring in part and dissenting in part.

I write separately because I disagree with two aspects of the majority

opinion. First, I believe that the language of the Major Crimes Act (“MCA”), 18

U.S.C. § 1153, is clear and unambiguous. Therefore, while I concur with the

conclusion of the majority—that the word “person” in the MCA includes

corporations but excludes unincorporated associations—I would reach that result

based solely on the plain meaning of the statute’s words in the context in which

they are used.

Second, I would hold that the status of the victim as a “person” is an

essential element of any offense under the MCA that must be alleged in the

charging document and proven beyond a reasonable doubt. By failing to allege

that the offense was committed against an “Indian or other person,” the

information filed against the defendants did not charge them with the commission

of a federal crime. Therefore, the defendants were convicted without due process

of law. While we normally review the sufficiency of a charging document for

harmless error, in this case the government has failed to argue that the error was

harmless. And although we may, in some limited circumstances, undertake a

harmless error analysis sua sponte, it is not appropriate for us to do so here.

Therefore, I would vacate the defendants’ convictions based on the inadequacy of
the information. As a result, I would not reach the defendants’ other arguments. 1

I. BACKGROUND

Defendants S.W. and R.K. are juveniles and members of the Ute Mountain

Indian Tribe. They, along with a third individual, J.C., 2 set fire to the Ute

Mountain Presbyterian Church, located within the Ute Mountain Indian

Reservation. There is no real dispute that they committed the acts with which

they were charged. Both defendants admitted to federal investigators that they at

least “participate[d]” in setting the fire. Aplt. Br. at 5, 8. Neither defendant has

challenged their confessions or raised any issue on appeal that even remotely

resembles a claim of innocence. Instead, the defendants simply maintain that they

cannot be prosecuted under the MCA.

The defendants were charged by information with committing an act of

juvenile delinquency, in violation of 18 U.S.C. §§ 5031-5037, 81, and 1153. R.,

No. 08-1184, Vol. I, Doc. 61, at 1-2 (Superseding Information, filed Jan. 17,

2008). The information alleged that the defendants—“all enrolled members of the

Ute Mountain Ute Indian Tribe”—“did willfully and maliciously set fire to or

1
Specifically, it is not necessary to decide whether the district court
abused its discretion in allowing the government to reopen its cases to present
evidence as to the ownership of the church building. Nor need we decide whether
there is sufficient evidence to support the district court’s conclusion that the
building was owned by the Presbytery of Western Colorado.
2
J.C. eventually pleaded guilty and agreed to testify against S.W. and
R.K.

-2-
burned a building, namely, the Ute Mountain Presbyterian Church.” Id. The

information thus named the defendants as members of the Ute Mountain Tribe,

and it identified the building as being “located within the exterior boundaries of

the Ute Mountain Indian Reservation.” Id. But the information was silent as to

who owned the church building.

R.K.’s bench trial began on February 5, 2008. The government called

seven witnesses, including J.C., Pastor Rousset of the Ute Mountain Presbyterian

Church, and the Bureau of Indian Affairs agent to whom R.K. had confessed. The

government rested its case the same day. R.K. did not call any witnesses.

Instead, he moved for a judgment of acquittal. See Fed. R. Crim. P. 29. He

argued that one element of any conviction under the MCA is that the underlying

offense be committed against “the person or property of another Indian or other

person.” 18 U.S.C. § 1153(a). R.K. argued that the government had failed to

prove, or even allege, that the church was owned by an “Indian or other person,”

which he interpreted as meaning a natural person.

The government responded that it was not required to prove who owned the

building, as it was sufficient to have unambiguously identified the building that

was burned. In the alternative, the government suggested that the testimony of

Pastor Rousset established that the building in question was owned by “the

church.” R., No. 08-1184, Vol. II, Doc. 219, Tr. at 92-93 (Trial to Court, dated

Feb. 5, 2008). The court ultimately agreed with R.K. It found that the pastor’s

-3-
testimony did not bear upon who owned the church building. The court further

concluded that the information was “pretty shoddy” and that there “has been no

offense committed because there is an element missing.” Id. at 98, 101.

The next day, the government moved to reopen its case. It argued that,

according to 1 U.S.C. § 1, “person” is broadly defined to include “corporations,”

“associations,” and “societies.” R., Supp. Vol. I, Tr. at 4 (Hr’g re Gov’t’s Mot.,

dated Feb. 6, 2008) (quoting 1 U.S.C. § 1). It interpreted this broad definition as

including any individual or group other than a government agency. Id. at 5. The

government represented that the building in question was owned by the Ute

Mountain Presbyterian Church. It also claimed that the land on which the

building was located was owned by the Ute Mountain Tribe and had been leased

to the church. According to the government, since the church was not a

government agency, it was an “other person” under the MCA.

The government’s argument reflected a subtle shift in its jurisdictional

theory, which it subsequently would explicate in its briefing in S.W.’s case.

Specifically, the government no longer stressed the view that it was not required

to name a victim as long as it unambiguously identified the building that was

burned. Rather, its arguments now suggested that the words “Ute Mountain

Presbyterian Church” do not identify the building, but, rather, the local

congregation that owns the building—that is, the words purportedly identified the

victim of the offense. The government was prepared to offer further testimony by

-4-
Pastor Rousset to prove that the church owned the building. The court granted

the government’s motion to reopen. The court also granted R.K. a 45-day

continuance to allow him to investigate the Ute Mountain Tribe’s property

records.

The trial of S.W. began later that same day. Pastor Rousset testified for the

government that the church building was “owned by the Presbyterians. It’s

Presbyterian Western Colorado.” R., No. 08-1137, Vol. II, Doc. 127, Tr. at 66

(Trial to Court, dated Feb. 6, 2008). No other evidence as to the ownership of the

building was presented. At the close of the government’s case in chief, S.W.

moved for a judgment of acquittal arguing, as had R.K., that the government had

failed to allege or prove that the victim of the arson was a “person.”

The court ordered the parties to submit briefs addressing whether the

government had jurisdiction to prosecute S.W. under the MCA. In its brief, the

government expressly took the position that it had, in fact, named a victim in the

information—the Ute Mountain Presbyterian Church, which was an “association

or society” and, therefore, a person under 1 U.S.C. § 1. R., No. 08-1137, Vol. I,

Doc. 118, at 9 (Gov’t’s Br. Regarding Jurisdiction, filed Feb. 15, 2008). At a

status conference on March 13, 2008, the government said that it was “fine with

respect to the facts we’ve already presented in [S.W.]’s case,” that is, Pastor

Rousset’s testimony. R., No. 08-1137, Vol. VI, Tr. at 7 (Status Conference, dated

Mar. 13, 2008). Nonetheless, it moved to reopen its case in order to call new

-5-
witnesses, not previously called. The court granted the motion.

When S.W.’s trial resumed four days later, the government once again

changed its theory as to who owned the church building. It now argued that the

building was owned by the Presbytery of Western Colorado, a nonprofit

corporation, and that the congregation of the Ute Mountain Presbyterian Church

was a part of the Presbytery, not a separate, unincorporated association in its own

right. R., No. 08-1137, Vol. IV, Tr. at 148 (Trial to Court, dated Mar. 17, 2008).

The government acknowledged that its previous claims were inaccurate:

We briefed the issue as well as we could with the facts that we
had that we were able to elicit at the early February trial.

. . . And as far as the church being a society or
association in the technical terms of that of all of that, at the
time that’s the information that I had. I didn’t know that the
Presbytery of Western Colorado was a nonprofit corporation . .
. and the national church was a 501(c). . . . That was not
information that I was aware of.

Id. at 146-47.

In addition to the four new witnesses that the government called, it also

introduced a lease for the land on which the church building was built. The lease

names the Ute Mountain Presbyterian Church as the lessee, but the lease was

signed by an agent of the Presbytery of Western Colorado. A lease modification

entered into in 2007, after the fire, again names as lessee the Ute Mountain

Presbyterian Church. However, it was signed this time by an agent of the church.

An insurance policy for the church building, on the other hand, was taken out by

-6-
the Presbytery.

The district court concluded that the church building was owned by the

Presbytery of Western Colorado which, as a nonprofit corporation, is a “person”

within the meaning of the MCA. It also found that the Ute Mountain Presbyterian

Church is not an unincorporated association. Instead, it is simply a part of the

Presbytery. Id. at 159-60 (holding that the Ute Mountain Presbyterian Church is a

“trade name” or a “common way of denominating the particular location of where

members who wanted to could go to worship”). The court concluded that S.W.

had committed an act of juvenile delinquency by setting fire to the church

building.

R.K.’s trial recommenced on April 7, 2008. He stipulated that the evidence

presented by the government with respect to the ownership of the building could

be considered in his case, as well. The court made similar findings of fact as in

S.W.’s case and concluded that R.K. had committed an act of juvenile

delinquency. This appeal followed.

II. ANALYSIS

A. Statutory Interpretation

The MCA endows the federal government with exclusive jurisdiction to

prosecute an enumerated list of serious offenses committed by Indians within

Indian country. 18 U.S.C. § 1153(a). However, the MCA only applies to

offenses committed “against the person or property of another Indian or other

-7-
person.” Id. The parties disagree as to the meaning of “other person.” The

defendants argue that, since “Indian” only refers to natural persons, so too must

“other person” be limited to individuals. The government contends that “other

person” should be broadly interpreted so as to have virtually no limiting effect,

except, possibly, to exclude government agencies. Both sides are mistaken. I,

like the majority, conclude that “other person” includes individuals and

corporations but does not include unincorporated associations. We review de

novo this question of statutory interpretation. United States v. Vigil, 334 F.3d

1215, 1218 (10th Cir. 2003).

“[I]n all cases of statutory construction, our foremost duty is to ‘ascertain

the congressional intent and give effect to the legislative will.’” Ribas v.

Mukasey, 545 F.3d 922, 929 (10th Cir. 2008) (quoting Padilla-Caldera v.

Gonzales, 453 F.3d 1237, 1241 (10th Cir. 2005)). We begin with the text of the

statute, considering “the language itself, the specific context in which that

language is used, and the broader context of the statute as a whole.” Robinson v.

Shell Oil Co., 519 U.S. 337, 341 (1997); Inyo County, Cal. v. Paiute-Shoshone

Indians of the Bishop Cmty. of the Bishop Colony, 538 U.S. 701, 711 (2003)

(looking to “the legislative environment in which the word appears” when

considering whether an Indian tribe is a “person” under 42 U.S.C. § 1983

(internal quotation marks omitted)). If the statute is clear and unambiguously

answers the question at issue, we need not, and should not, go any further.

-8-
 In this case, our interpretive task is simplified by the fact that the word

“person” was defined by Congress and has been the subject of much litigation.

The Dictionary Act of 1871, ch. 71, § 2, 16 Stat. 431, makes it clear that “person”

includes corporations. 3 As originally enacted, the Dictionary Act provides that

“in all acts hereafter passed . . . the word ‘person’ may extend and be applied to

bodies politic and corporate, . . . unless the context shows that [the word was]

intended to be used in a more limited sense.” Id.; see also Will v. Mich. Dep’t of

State Police, 491 U.S. 58, 69 (1989) (“[T]he phrase [‘bodies

politic and corporate’] . . . was used to mean corporations, both private and public

(municipal).”).

The Dictionary Act also is consistent with the “general understanding” of

the meaning of “person” when the MCA was enacted in 1885. See Lippoldt v.

Cole, 468 F.3d 1204, 1213 (10th Cir. 2006). Even in 1885, it was well

established that corporations were treated as persons. See, e.g., United States v.

3
The government suggests that we should rely, instead, on 1 U.S.C. §
1, the current version of the Dictionary Act, which defines “person” much more
broadly. The current version includes not just corporations within the definition
but also “companies, associations, firms, partnerships, and joint stock
companies.” 1 U.S.C. § 1. However, when interpreting a statute, we look to the
version of the Dictionary Act in existence when the statute was enacted. See
Lippoldt v. Cole, 468 F.3d 1204, 1214 (10th Cir. 2006) (noting that when
interpreting 42 U.S.C. § 1983, “the current text of the Dictionary Act does not
control, because, beginning with Monell, in each instance where the Supreme
Court has addressed whether a particular entity is a ‘person’ for the purposes of
suing or being sued under Section 1983, it has principally considered the
Dictionary Act of 1871”).

-9-
Amedy, 24 U.S. 392, 412 (1826) (“That corporations are, in law, for civil

purposes, deemed persons, is unquestionable.”); Louisville, Cincinnati, &

Charleston R.R. v. Letson, 43 U.S. 497, 558 (1844) (“[A] corporation created by

and doing business in a particular state, is to be deemed to all intents and

purposes as a person, . . . capable of being treated as a citizen of that state, as

much as a natural person.”); see also Lippoldt, 468 F.3d at 1214 (collecting

cases).

It is equally clear that, in 1885, unincorporated associations were not

persons. Lippoldt, 468 F.3d at 1213 (“[T]here was no general understanding . . .

that unincorporated associations should be treated as natural persons.”).

Associations were not distinct legal entities—they had no standing to sue or be

sued. United Mine Workers of Am. v. Coronado Coal Co., 259 U.S. 344, 385

(1922) (“Undoubtedly at common law an unincorporated association of persons

was not recognized as having any other character than a partnership in whatever

was done, and it could only sue or be sued in the names of its members . . . .”);

Wesley A. Sturges, Unincorporated Associations as Parties to Actions, 33 Yale

L.J. 383, 383 (1924) (noting that “[t]he cases are remarkably in accord that . . . an

unincorporated association cannot sue or be sued in the common or association

name,” because “‘[t]here is no such entity known to the law as an unincorporated

association’” (quoting Pickett v. Walsh, 78 N.E. 753, 760 (Mass. 1906))).

There is no reason to believe that when Congress enacted the MCA it

-10-
intended “person” to have anything other than its commonly accepted meaning.

The Dictionary Act acknowledges that, in some cases, the “context” may indicate

that a different meaning was intended. However, “context” is to be construed

narrowly to mean “the text of the Act of Congress surrounding the word at issue,

or the texts of other related congressional Acts, and this is simply an instance of

the word’s ordinary meaning.” Rowland v. Cal. Men’s Colony, Unit II Men’s

Advisory Council, 506 U.S. 194, 199 (1993). Thus, the “context” of the MCA

justifies our consideration of the Dictionary Act. But it is not a license to stray

from the text. In particular, “context” does not include legislative history. Id. at

200 (“If Congress had meant to point further afield, as to legislative history, for

example, it would have been natural to use a more spacious phrase, like ‘evidence

of congressional intent,’ in place of ‘context.’”).

The majority principally predicated its foray into the MCA’s legislative

history on its conclusion that the word “person” in its “statutory context” is

unclear. Majority Op. at 9, 12. However, the fact that “the text of the Act of

Congress surrounding the word,” Rowland, 506 U.S. at 199, indicates that the

word “person” has “varying usage[s],” Majority Op. at 9, within the statute does

not mean that the specific usage of the term at issue—concerning the victim of a §

1153(a) offense—is less than clear in “Indian or other person.” Indeed, the

majority’s reliance on the First Circuit’s decision in United States v. Jimenez, 507

F.3d 13 (1st Cir. 2007), cert. denied, 128 S. Ct. 1321 (2008), as support for its

-11-
argument is misplaced. Jimenez actually militates against the majority’s position.

There, the court considered whether the term “person” in the aggravated identity

theft statute, 18 U.S.C. § 1028A(a)(1), excludes deceased individuals—that is,

whether the statute only covers living individuals. 507 F.3d at 19-20. The court

noted that the word “person” viewed “in isolation admits of more than one

meaning,” rendering the meaning of the term “not clear” at first blush. Id. at 19.

The court expressly “decline[d] to consider legislative intent,” concluding that the

statute’s structure dispelled the “initial,” apparent “ambiguity.” Id. at 20.

Similarly, viewed in its appropriately defined statutory context, which includes

the Dictionary Act of 1871, and with reference to the common understanding of

the term at the time of the MCA’s enactment, the specific usage of the term

“person” at issue here simply is not, in my view, unclear. And, therefore, we

have no occasion to resort to legislative history.

We faced a similar question of statutory interpretation in Lippoldt, where

the question was whether an unincorporated association was a “person” under 42

U.S.C. § 1983. 468 F.3d at 1211. Relying on Monell v. New York City

Department of Social Services, 436 U.S. 658 (1978), we considered “(1) the

legislative history of Section 1983, (2) the general understanding, as of 1871,

regarding the legal personality of unincorporated associations, and (3) the

Dictionary Act of 1871.” Lippoldt, 468 F.3d at 1213. While recognizing the

obvious parallels between Lippoldt and this case, I do not read Lippoldt as

-12-
requiring, or even permitting, us to consider the legislative history of the MCA.

The use of legislative history in Monell and Lippoldt is the result of the

Supreme Court’s § 1983 jurisprudence. In Monroe v. Pape, 365 U.S. 167 (1961),

overruled by Monell, 436 U.S. at 663, the Supreme Court held that municipalities

were not “persons” under § 1983. In reaching this conclusion, the court relied, in

large part, on Congress’s rejection of the so-called “Sherman Amendment.” Id. at

188-92. It interpreted the Amendment as imposing liability on municipalities.

The Court concluded that, by failing to adopt the amendment, Congress clearly

expressed its intent that municipalities not be subject to § 1983 claims. Id. at

191.

However, in Monell the Court reversed course, holding that a civil rights

claim could be brought against a local Board of Education. Monell, 436 U.S. at

701. Before the Court could conclude that Congress intended “person” to include

the Board, it was compelled to explain why its contrary holding in Monroe should

be overruled. Id. at 665, 695-99. Upon a closer reexamination, the Court

recognized that the Sherman Amendment, even if enacted, would not have created

the kind of municipal liability at issue in Monroe. Monell, 436 U.S. at 664

(“[T]he nature of the obligation created by that amendment was vastly different

from that created by [§ 1983].”).

Thus, the Court’s reliance on legislative history in Monell was necessary to

explain why its prior analysis of that same history was mistaken. Here, however,

-13-
in interpreting the MCA, we are not saddled with a similar burden of overruling a

prior, erroneous decision. Therefore, there is no reason for us to consider the

history of the MCA. See United States v. Ortiz, 427 F.3d 1278, 1282 (10th Cir.

2005) (“When the meaning of the statute is clear, it is both unnecessary and

improper to resort to legislative history to divine congressional intent.” (internal

quotation marks omitted)).

The defendants argue that even if the word “person,” standing alone,

generally includes corporations, the phrase “Indian or other person” refers only to

individuals. They claim that only an individual can be an “Indian.” Therefore,

since “person” is juxtaposed with “Indian,” an “other person” must, like an

Indian, mean an “other individual.” They further claim that this reading of the

statute is necessary to support the purpose of the MCA, which was to extend

federal jurisdiction to certain especially serious Indian-on-Indian crimes. Aplt.

Br. at 33; see Keeble v. United States, 412 U.S. 205, 210-12 (1973). The

defendants’ argument is unconvincing. They fail to explain how their proposed

interpretation furthers the purpose of the statute. Regardless of how we interpret

“other person,” it is undisputed that the MCA creates federal jurisdiction over

crimes committed by Indians against other Indians. We must decide what else the

MCA covers. Even if the principal purpose of the MCA was to cover intra-Indian

crimes, it does not follow ineluctably that this was the statute’s only purpose.

Because the principal purpose of the statute is unaffected by our interpretation of

-14-
“other person,” we cannot conclude that the combination “Indian or other person”

manifestly expresses a congressional intent to override the Dictionary Act’s

definition.

The defendants also argue that we should construe the MCA as applying

only to crimes against individuals because the “rule of lenity” requires ambiguous

criminal statutes to be interpreted in favor of the accused. However, as we have

stated, the MCA is not ambiguous. “The rule of lenity presupposes the

application of a punitive, ambiguous statute, and we apply it ‘only if, after

seizing everything from which aid can be derived, . . . we can make no more than

a guess as to what Congress intended.’” United States v. Serawop, 505 F.3d

1112, 1121-22 (10th Cir. 2007) (quoting Muscarello v. United States, 524 U.S.

125, 138 (1998)); see also United States v. Ruiz-Gea, 340 F.3d 1181, 1188 (10th

Cir. 2003) (“[T]he rule of lenity is applied only when all other techniques for

statutory construction leave the court in equipoise.”). Since we have no doubt

that corporations are persons under the MCA, the rule of lenity does not apply.

Similarly, the defendants argue that we should adopt a narrow definition of

“person” out of respect for Indian sovereignty. As the Supreme Court has

explained,

The canons of construction applicable in Indian law are
rooted in the unique trust relationship between the United
States and the Indians. Thus, it is well established that treaties
should be construed liberally in favor of the Indians with
ambiguous provisions interpreted to their benefit. . . .

-15-
 The Court has applied similar canons of construction in
nontreaty matters.

County of Oneida, N.Y. v. Oneida Indian Nation, 470 U.S. 226, 247 (1985)

(citations omitted). But, as with the rule of lenity, this canon of construction only

applies to ambiguous statutes. See, e.g., White Mountain Apache Tribe v.

Bracker, 448 U.S. 136, 143-44 (1980) (“Ambiguities in federal law have been

construed generously in order to comport with these traditional notions of

sovereignty and with the federal policy of encouraging tribal independence.”

(emphasis added)). In particular, we only consider the effect on Indian

sovereignty if the statute remains ambiguous even after consulting the legislative

history. United States v. Thompson, 941 F.2d 1074, 1077 (10th Cir. 1991)

(“[W]hen congressional intent with respect to an Indian statute is unclear, courts

will presume that Congress intended to protect, rather than diminish, Indian

rights. Reference to the legislative history, however, often will resolve

uncertainties about the intent of Congress.”). We have already concluded that the

MCA is unambiguous and that it is therefore inappropriate for us to consider its

legislative history. Thus, the defendants’ invocation of Indian sovereignty must,

a fortiori, fail as well.

B. Sufficiency of the Information

The failure of an indictment to allege an essential element of a crime is a

-16-
constitutional error that we normally review for harmless error. 4 United States v.

Prentiss (“Prentiss II”), 256 F.3d 971, 973 (10th Cir. 2001) (en banc), overruled

on other grounds by United States v. Cotton, 535 U.S. 625 (2002), as recognized

in United States v. Sinks, 473 F.3d 1315, 1317 (10th Cir. 2007). I would hold

that, in any prosecution under the MCA, the status of the victim as an “Indian or

other person” is an essential element that, as a matter of due process, must be

4
An indictment serves two constitutional purposes:

First, it informs the defendant of the nature and cause of the
accusation as required by the Sixth Amendment of the
Constitution. Second, it fulfills the Fifth Amendment’s
indictment requirement, ensuring that a grand jury only return
an indictment when it finds probable cause to support all the
necessary elements of the crime.

United States v. Prentiss (“Prentiss I”), 206 F.3d 960, 964 (10th Cir. 2000)
(internal quotation marks omitted), vacated in part by Prentiss II, 256 F.3d at
981. However, in this case, the defendants are juveniles, and a juvenile
delinquency adjudication “is a civil rather than a criminal prosecution.” United
States v. Duboise, 604 F.2d 648, 650 (10th Cir. 1979). Therefore, the Fifth and
Sixth Amendments are not directly applicable. In a delinquency proceeding,
juveniles do not have a right to be indicted by a grand jury. United States v.
Indian Boy X, 565 F.2d 585, 595 (9th Cir. 1977). Instead, the government may
proceed by information, as they did here. See 18 U.S.C. § 5032.

However, delinquency proceedings must provide due process. In re Gault,
387 U.S. 1, 27-28 (1967). In particular, juveniles must be provided notice of the
charges against them. Id. at 33 (“Due process of law requires notice of the sort . .
. which would be deemed constitutionally adequate in a civil or criminal
proceeding.”). Therefore, the failure of an information to allege all the essential
elements of an offense is still a constitutional error, albeit under the Due Process
Clause, rather than the Fifth or Sixth Amendment. I would apply the same
standard of review to an information that we would to an indictment.

-17-
pleaded in the information. The government did not do so in this case, and,

consequently, the information is inadequate. The government has failed to argue

that the inadequacy of the information was harmless error. While we may, in

certain limited circumstances, conduct a sua sponte harmless error analysis, it

would not be appropriate to do so here. Therefore, I would hold that R.K. and

S.W. were convicted without due process of law.

1. The status of the victim as an “Indian or other person” is an
essential element of any prosecution under the MCA.

The MCA provides that:

Any Indian who commits against the person or property of
another Indian or other person any of the following offenses . .
. within the Indian country, shall be subject to the same law
and penalties as all other persons committing any of the
[listed] offenses . . . .

18 U.S.C. § 1153(a). According to the plain language of the statute, the

government must prove that (1) the defendant is an Indian, (2) who committed

one of the enumerated offenses, (3) against the person or property of another

Indian or other person, (4) within Indian country. As already discussed, the term

“Indian or other person” includes individuals and corporations, but it does not

include unincorporated associations. Thus, an Indian who burns a building within

Indian country that is owned by an unincorporated association has not committed

arson against the property of an Indian or other person. Such a burning would not

-18-
be a federal offense under the MCA. 5

As the majority recognizes, an information is sufficient “if it contains the

elements of the offense charged, putting the defendant on fair notice of the charge

against which he must defend, and if it enables a defendant to assert an acquittal

or conviction in order to prevent being placed in jeopardy twice for the same

offense.” United States v. Poole, 929 F.2d 1476, 1479 (10th Cir. 1991) (internal

quotation marks omitted). However, “a purpose corollary to the first is that the

[charging document] inform the court of the facts alleged, so that it may decide

whether they are sufficient in law to support a conviction, if one should be had.”

United States v. Moore, 198 F.3d 793, 795 (10th Cir. 1999) (internal quotation

marks omitted). The government has not met its obligation. The information

does not contain all of the elements of the offense charged; it fails to allege that

the defendants committed an offense against the person or property of another

Indian or other person. See Jones v. United States, 526 U.S. 227, 232 (1999)

(noting that every “element[] must be charged in the indictment”). The

information merely alleges that the defendants set fire to a “building, namely, the

Ute Mountain Presbyterian Church.” R., No. 08-1184, Vol. I, Doc. 61, at 1-2.

Based solely on the information, it is not possible for a court to determine

5
The defendants have suggested that they might have been prosecuted
in federal court under the Indian General Crimes Act, 18 U.S.C. § 1152. See
Aplt. Br. at 19. However, the defendants were not charged under the General
Crimes Act, and the scope of that statute is not before us.

-19-
whether the allegation is sufficient to support a conviction. Whether or not the

information alleges a federal crime depends on who owned the building. If the

building was owned by an unincorporated association, then even if the

government proved every fact that it alleged, the defendants still could not be

convicted under the MCA.

The conclusion that the status of the victim is an element of § 1153 should

follow from our analysis in Prentiss II. In Prentiss II, the defendant was

convicted under the Indian General Crimes Act (“IGCA”), 18 U.S.C. § 1152, of

committing arson in Indian country. He appealed his conviction on the grounds

that the indictment failed to allege that he was a non-Indian and that the building

he set fire to belonged to an Indian. Prentiss II, 256 F.3d at 973. The IGCA does

not confer federal jurisdiction over crimes committed by Indians against other

Indians. Such crimes are generally left to the tribe to prosecute. See Keeble, 412

U.S. at 209-10 (discussing the history of the IGCA and the MCA). Absent proof

that the offense was “interracial,” no federal crime has been committed.

Therefore, we concluded that the Indian/non-Indian statuses of the victim and the

defendant are “constituent parts of the crime that must be charged in the

indictment, submitted to a jury, and proven by the Government beyond a

reasonable doubt.” Prentiss II, 256 F.3d at 975 (alteration, citation, and internal

quotation marks omitted). Not only is this conclusion consistent with the text of

the statute and the long history of Supreme Court cases dealing with federal

-20-
jurisdiction over Indian country, it “also comports with the usual practice in

criminal prosecution.” Id. at 977 (“The terms of § 1152 do not suggest that

Congress took the unusual step of requiring the defendant in a criminal case to

identify the victims of the crime.”).

Since Prentiss II dealt with the requirements of the IGCA, not the MCA, it

is not binding precedent. However, the same considerations should govern our

interpretation of both statutes. In Prentiss II, we held that the Indian/non-Indian

status of the victim and the defendant was an essential element of any conviction

under the IGCA. In this case, where the information did allege the defendants’

Indian status, we must decide whether the status of the victim as an “Indian or

other person” is an essential element of any conviction under the MCA (that is,

whether, in the words of Prentiss II, it is a “constituent part[]” of the crime that

must be charged). Id. at 975. I see no basis for treating these two questions

differently. In fact, the arguments in this case are, if anything, even stronger than

they were in Prentiss II.

In Prentiss II, the issue was whether, based on the structure of the IGCA,

the exclusion of jurisdiction in the case of Indian-on-Indian crimes was an

affirmative defense that had to be raised by the defendant. The Supreme Court

previously had held that “an indictment or other pleading founded on a general

provision defining the elements of an offense . . . need not negative the matter of

an exception made by a proviso or other distinct clause, whether in the same

-21-
section or elsewhere.” McKelvey v. United States, 260 U.S. 353, 357 (1922).

The government argued that the IGCA’s jurisdictional limitations were

contained in such a proviso. The first paragraph of the IGCA is a broad grant of

jurisdiction to the federal government to prosecute crimes committed in Indian

country. 18 U.S.C. § 1152 (“Except as otherwise expressly provided by law, the

general laws of the United States as to the punishment of offenses committed in

any place within the sole and exclusive jurisdiction of the United States . . . shall

extend to the Indian country.”). The second paragraph of the statute then limits

that jurisdiction: “This section shall not extend to offenses committed by one

Indian against the person or property of another Indian . . . .” Id. While

recognizing the force of this argument, we ultimately concluded that despite the

two-part structure of the IGCA, the statuses of the victim and the defendant were

“so closely intertwined with the definition of the offense that the government

must allege them in the indictment.” Prentiss II, 256 F.3d at 979.

Here, the government has not, and could not, make a similar structural

argument with regard to the MCA. Unlike the IGCA, the MCA lists all of the

requirements necessary to establish jurisdiction in a single sentence. It does not

contain any exceptions, exemptions, or provisos. Moreover, it is undisputed that

at least some of those requirements, including that the offense be committed

within Indian country, must be alleged in the charging document. Cf. id. at 987

(Baldock, J., dissenting) (“No one disputes that under § 1152 an element of the

-22-
crime of arson which the Government must allege is that it occurred in Indian

country . . . .”). I see no reason to treat the requirement that the offense be

committed against an Indian or other person any differently.

The majority does not discuss the implications of Prentiss II for the

sufficiency vel non of the information. Instead, it relies on Moore for the

proposition that “[a]s a general rule, an erroneous reference to the victim is not

fatal to the indictment.” Moore, 198 F.3d at 796. In Moore, the defendant was

charged with carjacking under 18 U.S.C. § 2119. The statute required that the car

be taken “from the person or presence of another,” and the indictment named

Brent Byers, the owner of the car, as the victim. Id. However, it was proven at

trial that Mr. Moore actually took the car from Anne Byers, Mr. Byers’s wife. At

the close of the evidence, the court altered the indictment to name Anne Byers as

the victim. Id. at 795. We held that this change was merely a variance, not an

amendment to the indictment. Furthermore, the variance was not fatal, because

“the defendant was not misled by the variance” and was able to “present[] his

defense with the knowledge that Anne Byers was the alleged victim of the crime.”

Id. at 796. We therefore affirmed the conviction.

Moore is inapposite and should not control the outcome of this case.

Regardless of who the victim was, Mr. Moore was still charged with committing a

federal offense, that is, taking a motor vehicle from the person or presence of

another. The indictment alleged each and every element of the offense. Even

-23-
though the indictment misidentified the victim, there was no question that Mr.

Moore’s alleged conduct would, if proven, violate the carjacking statute. The

same cannot be said here. Absent any language indicating that the church

building was owned by an individual or corporation, the information did not

charge R.K. and S.W. with a crime.

The authority relied upon in Moore is similarly distinguishable and

unpersuasive. In Dye v. Sacks, 279 F.2d 834 (6th Cir. 1960), the defendant filed a

habeas corpus petition, claiming that the trial court had impermissibly amended

the indictment by correcting the name of the victim. The Sixth Circuit denied the

petition, because “[t]he amendment did not change the nature of the offense

charged . . . . It related to a matter of form and not of substance.” Id. at 837.

Here, however, the failure to name any victim did “change the nature of the

offense,” and, more to the point, it affected whether there was any offense

charged at all. Therefore, insofar as the majority’s argument for the alleged legal

sufficiency of the information is predicated on Moore, it is, in my view,

misguided.

2. In light of the government’s failure to address the issue, we
should not consider, sua sponte, whether the insufficiency of the
information was harmless error.

Having concluded that the information filed against the defendants was

inadequate, we next turn to the question of whether the error was harmless. In

general, “the government bear[s] the burden of proving harmlessness.” United

-24-
States v. Caraway, 534 F.3d 1290, 1302 (10th Cir. 2008). Here, the government

unquestionably has failed to carry its burden. The government’s brief does not

address the sufficiency of the information. There is no discussion of the issue,

whatsoever. 6 In particular, the government never argues, or even suggests, that

any potential error in the information would be harmless. Therefore, we must

first decide whether it is appropriate to conduct the harmless error analysis sua

sponte. Given the evidence presented at trial, I believe that the harmlessness of

the error is too uncertain. Based on our decision in United States v. Holly, 488

F.3d 1298 (10th Cir. 2007), we should not reach out to decide whether the error

was harmless.

“[W]here the government has failed to assert harmless error, this court

‘may in its discretion initiate harmless error review in an appropriate case.’” Id.

at 1307-08 (quoting United States v. Samaniego, 187 F.3d 1222, 1224 (10th Cir.

1999)). However, we “should . . . be hesitant to engage in an ‘unsolicited,

unassisted, and undirected harmless error review.’” Id. at 1308 (quoting

Samaniego, 187 F.3d at 1225). We have identified three factors that we consider

in determining whether to exercise our discretion: “(1) the length and complexity

6
When asked at oral argument whether its brief responded to the
defendant’s insufficiency of the information claim, the government stated that it
believed the issue was addressed in the same footnote that addressed our decision
in Prentiss II. The government appears to be referencing footnote 14. Aplee. Br.
at 40 n.14. However, footnote 14 does not address the issue.

-25-
of the record; (2) whether the harmlessness of the errors is certain or debatable;

and (3) whether a reversal would result in protracted, costly, and futile

proceedings in the district court.” Samaniego, 187 F.3d at 1225. The most

important of these factors is the certainty of the result. 7 See Holly, 488 F.3d at

1308 (“Despite this court’s general reluctance to sua sponte apply harmless error

review, it may be appropriate to do so where the certainty of the harmlessness is

readily apparent.”). “Evaluation of the certainty of the harmlessness necessarily

requires this court to review the record to some extent, though not to the same

degree as would be required pursuant to a full harmless error review.” Id.

The district court found that the jurisdictional requirements of the MCA

were satisfied. It based its conclusion on two related factual findings: (1) that

the Ute Mountain Presbyterian Church is a part of the Presbytery of Western

Colorado and does not have a separate and independent existence in its own right,

and (2) that the church building was owned by the Presbytery, which is a

nonprofit corporation. I cannot conclude that these factual determinations were

7
We have repeatedly questioned the wisdom of relying on the third
factor. See Samaniego, 187 F.3d at 1225 n.2; Holly, 488 F.3d at 1308 n.8.
Moreover, I am sympathetic to Judge Tacha’s concern that we not allow ourselves
to be dissuaded from pursuing the correct result simply because the record is long
and complicated. Samaniego, 187 F.3d at 1227 (Tacha, J., dissenting) (“In my
judgment, an appellate court cannot be excused from its duty to study a record . . .
just because a record is lengthy and/or complicated. The scope of the record does
not excuse the appellate court from reviewing it and attempting to determine
whether harmless error analysis is appropriate.”).

-26-
“uncontested and supported by overwhelming evidence.” Neder v. United States,

527 U.S. 1, 17 (1999). An error is harmless only if no reasonable fact-finder

could have reached a contrary conclusion. United States v. Prentiss (“Prentiss

III”), 273 F.3d 1277, 1279 (10th Cir. 2001). Even assuming that there was

sufficient evidence supporting the district court’s findings, 8 the district court’s

findings were not the only ones that reasonably could have been drawn from the

evidence.

Kim Maria Ruth Nofel, a “minister of word and sacrament for the

Presbyterian Church U.S.A.,” R., No. 08-1137, Vol. IV, Tr. at 113, testified that

the Ute Mountain Presbyterian Church is a “mission church,” and, as such, “is

under the guidance and encouragement and support of the Presbytery of Western

Colorado.” Id. at 114-15. She also testified that the church is governed by the

Towaoc Ministry Board, which is a committee of the Presbytery. Id. at 114, 115-

16. Her testimony is certainly consistent with the idea that the church is a part of

the Presbytery. The district court appears to have given significant weight to the

classification of the Ute Mountain Presbyterian Church as a mission church. The

court recognized that some local churches contained within the geographic

boundaries of the Presbytery may indeed be separate corporate entities, apart from

8
In addition to their challenge to the sufficiency of the information,
the defendants also argue that there was insufficient evidence to support the
district court’s factual findings. Because I would reverse based on the inadequate
information, I would not reach this argument.

-27-
the Presbytery. Id. at 156-57. Nonetheless, it concluded that, as a mission

church, the Ute Mountain Presbyterian Church was too reliant on the Presbytery

to be considered an independent association.

Nothing in Ms. Nofel’s testimony, however, compels the court’s

conclusions. Ms. Nofel testified that, although she was not certain, she suspected

that the Ute Mountain Presbyterian Church—like her church, the Montezuma

Valley Presbyterian Church—was incorporated. Id. at 123. Thus, it is possible

for a mission church to receive guidance and support from the Presbytery and yet

still remain a separate and distinct legal entity. Moreover, as the defendants point

out, the Book of Order, which is the Constitution of the Presbyterian Church,

specifically recognizes that churches may be organized as unincorporated

associations and that such associations can hold legal title to property. 9 Aplt. Br.

at 51 & Attach. 6. Thus, the testimony of Ms. Nofel does not definitively resolve

the issue of whether the defendants committed an offense against a “person.”

The other evidence relied on by the government and the district court is

equally ambiguous. For example, the government introduced the lease for the

land on which the church building was built. The lease names the Ute Mountain

Presbyterian Church as the lessee, yet the lease was signed by a representative of

9
The same provisions specify, however, that all property held by or
for a church, regardless of whether or not it is incorporated, is held in trust for the
national Presbyterian Church (U.S.A.). Aplt. Br. Attach. 6.

-28-
the Presbytery of Western Colorado. Both parties make legitimate arguments that

the lease supports their position. Similarly, the district court found persuasive the

fact that the church building was covered by the Presbytery’s insurance policy.

After the church was burned, the proceeds of the policy were paid to the

Presbytery. The court noted that “[i]nsurance documents can in some respects be

important indicia of who owns a piece of property.” R., No. 08-1137, Vol. IV,

Tr. at 157. But even the insurance policy is not conclusive. According to Ms.

Nofel, the Presbytery maintained an umbrella policy that covered all the church

buildings within the Presbytery, including those of churches that own their own

buildings, such as the Montezuma Valley Presbyterian Church, which she testified

is a nonprofit corporation. Id. at 118, 123, 125. So even if the insurance policy

provides “important indicia,” it is still amenable to multiple interpretations.

The question of whether the government had jurisdiction to prosecute the

defendants under the MCA was fiercely contested in the district court. It was, in

fact, the only issue raised by the defendants. Furthermore, the evidence relied

upon by the district court is less than overwhelming. Thus, without deciding

whether the government’s error was harmless, the question of harmlessness is not

so certain or readily apparent as to justify our conducting a sua sponte review.

III. CONCLUSION

I agree with the majority that the word “person,” as used in the MCA,

includes both individuals and corporations but excludes unincorporated

-29-
associations. However, for the foregoing reasons, I would hold that the

information filed against the defendants was inadequate in that it failed to allege

that the offense was committed against an “Indian or other person.” Moreover,

the government failed to argue that the error was harmless. And I would conclude

that it is not appropriate, in this case, to perform a sua sponte harmlessness

analysis. I would, therefore, reverse the decision of the district court and vacate

the convictions of the defendants. I respectfully dissent.

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