United States v. Roberts

UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick J. Fisher, Jr. Elisabeth A. Shumaker
Clerk Chief Deputy Clerk

August 27, 1999

TO: ALL RECIPIENTS OF THE OPINION

RE: 98-7057, USA v. Roberts
Filed on August 3, 1999

The opinion filed on August 3, 1999, contains several mistaken citations.

The opinion cited "18 U.S.C. § 1151" and "18 U.S.C. § 1153" as "25 U.S.C §
1151" and "25 U.S.C. § 1153" at pages 8, 11, 12, and 13 of the original version.

A corrected copy of the opinion is attached for your convenience with the
proper citations.

Very truly yours,
Patrick Fisher, Clerk

Trish Lane
Deputy Clerk
 F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 3 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
No. 98-7057
HOLLIS EARL ROBERTS,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. No. 95-CR-35-S)

Susan G. James, Susan G. James & Associates, Montgomery, Alabama, for
Defendant-Appellant.

Sheldon J. Sperling (Bruce Green, United States Attorney, and Linda A. Epperley,
Assistant United States Attorney, with him on the briefs), First Assistant United
States Attorney, Muskogee, Oklahoma, for Plaintiff-Appellee.

Before PORFILIO, MCWILLIAMS, and BALDOCK, Circuit Judges.

PORFILIO, Circuit Judge.
 On June 9, 1995, Hollis Earl Roberts was charged in the United States

District Court for the Eastern District of Oklahoma with two counts of aggravated

sexual abuse in violation of 18 U.S.C. § 2241; one count of sexual abuse, in

violation of 18 U.S.C. § 2242, and five counts of abusive sexual contact, in

violation of 18 U.S.C. § 2244. At all relevant times, Mr. Roberts was Principal

Chief of the Choctaw Nation of Oklahoma, as well as a member of the tribe, and

the three victims were employees and members of the Choctaw Nation. A jury

trial began on June 2, 1997, and four days later, the jury found Mr. Roberts guilty

on three counts. The district court ordered Mr. Roberts detained pending

sentencing, and later sentenced him to three concurrent prison terms. Mr.

Roberts’ motion in the district court challenging jurisdiction under 28 U.S.C.

§ 2255, as well as his motion with this court seeking to stay this appeal, have

been denied. On appeal, Mr. Roberts argues the district court lacked subject

matter jurisdiction because the alleged offenses did not occur in Indian Country;

the government failed to prove an essential element of the offense, namely, that

the offense occurred in Indian Country; the district court improperly admitted

testimonial evidence; the prosecutor engaged in improper conduct; and the district

court improperly applied the sentencing guidelines. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm all aspects of the

conviction and sentence.

2
 I.

Mr. Roberts served as Principal Chief of the Choctaw Nation of Oklahoma

for 19 years, holding “the supreme executive power of this Nation.” Constitution

of the Choctaw Nation of Oklahoma , art. VI, § 1. The Constitution further

provides the Chief “shall fix and prescribe salaries and allowances for all elected

or appointed officials and employees of the Choctaw Nation except the members

of the Tribal Council and the Tribal Court,” id. at art. VII, § 3, and “shall have

the power to remove any official appointed by him except for members of the

Tribal Court and the Tribal Council.” Id. at art. VII, § 8. Trial testimony

established the Choctaw Nation payroll was $22 million per annum; the total

annual income of the tribe was $125 million; and the Chief’s salary was $120,000

plus benefits in 1995.

At trial, more than ten women, all members and employees of the Choctaw

Nation, described how, during his tenure as Principal Chief, Mr. Roberts forced

unwanted sexual acts on them, usually in his office at the Tribal Complex.

Angella Jean Gilbert, Misty Grammar, and Kobi Dawn Russ testified to specific

acts of abusive sexual contact and aggravated sexual assault, and the other women

testified to extrinsic acts. The defense presented seven witnesses, all tribal

employees, to support the defendant’s theories the women had engaged in

3
consensual sex with Mr. Roberts or their allegations were part of a political ploy

to unseat him as Principal Chief. The jury returned guilty verdicts on Count I,

abusive sexual contact against Angella Jean Gilbert, in violation of 18 U.S.C.

§ 2244; Count II, aggravated sexual abuse against Angella Jean Gilbert, in

violation of 18 U.S.C. § 2241(a)(1); and Count VI, abusive sexual contact against

Kobi Dawn Russ, in violation of 18 U.S.C. § 2244; and not guilty verdicts on the

other four counts.

II.

The charged conduct occurred at the Choctaw Nation Tribal Complex, a

property which is owned by the United States in trust for the Choctaw Nation.

The Major Crimes Act, 18 U.S.C. § 1153, confers on the United States exclusive

jurisdiction over certain offenses, including those alleged against Mr. Roberts,

committed in Indian Country, and the district court accordingly premised

jurisdiction in this case on its finding the alleged criminal acts occurred within

Indian Country. Although his counsel acknowledged at oral argument the United

States owns the Tribal Complex property, Mr. Roberts contends trust status does

not suffice to establish Indian Country; certain irregularities invalidated the

process by which the Department of the Interior attempted to take the land into

trust; and the Secretary of the Interior (Secretary) lacks authority to take this, or

4
any land, into trust for an Indian tribe. The district court found these arguments

unpersuasive, as do we.

We review de novo Mr. Roberts’ several challenges to the district court’s

exercise of jurisdiction, see United States v. Brown , 164 F.3d 518, 521 (10th Cir.

1998), and first consider his most fervent argument that the property’s trust status

does not establish Indian Country. With exceptions not relevant to this case, 18

U.S.C. § 1151 defines Indian Country as:

(a) all land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and including rights-of-way running through
the reservation, (b) all dependent Indian communities within the
borders of the United States whether within the original or
subsequently acquired territory thereof, and whether within or
without the limits of a state, and (c) all Indian allotments, the Indian
titles to which have not been extinguished, including rights-of-way
running through the same.

Mr. Roberts argues here, as he did below, the Tribal Complex satisfies none

of the three categorical definitions of Indian Country. Following Mr. Roberts’

motion to dismiss for lack of subject matter jurisdiction, the district court held a

hearing. The government presented the testimony of Tom Williams, Director of

Real Estate Services for the Choctaw Nation; Glendel Rushing, Bryan County

Assessor; and Mary Downing, Realty Specialist for the Bureau of Indian Affairs

(BIA). Mr. Roberts presented the testimony of Dennis Springwater, Acting

5
Deputy Area Director for the BIA. Based on their testimony, the district court

derived the facts summarized here.

The Choctaw Nation Tribal Complex serves as headquarters of the Nation,

and between sixty and seventy employees work there. In addition to the various

administrative functions conducted at the headquarters, the Choctaw Nation

operates bingo games on the Tribal Complex property. The building is located in

Durant, Oklahoma, and formerly housed the Oklahoma Presbyterian College for

girls. In 1976, the property was deeded to the United States of America in trust

for the Choctaw Nation of Oklahoma so long as the premises are used for the

purposes of the Choctaw Nation. See United States v. Roberts , 904 F. Supp.

1262, 1264-65 (E.D. Okla. 1995) (conducting an extensive review of the chain of

title). The Red River Valley Historical Association operates its headquarters and

museum in buildings located at the Tribal Complex pursuant to a lease with the

Choctaw Nation. Since 1976, both the BIA and Choctaw Nation have treated the

property as trust land, as has the State of Oklahoma which considers it beyond the

state’s taxation jurisdiction and does not list it on the state ad valorem tax rolls.

See id. Based on the evidence and the Indian Country case law, the district court

held this trust land, even though not a formally declared reservation, was Indian

Country. See id. at 1265-68. We believe the court’s conclusion was well-

founded in precedent.

6
 The United States’ acquisition of the Tribal Complex property in trust for

the Choctaw Nation occurred pursuant to the Indian Reorganization Act (IRA)

which provides, in part:

The Secretary of the Interior is hereby authorized,
in his discretion, to acquire, through purchase,
relinquishment, gift, exchange, or assignment, any
interest in lands, water rights or surface rights to lands,
within or without existing reservations, including trust
or otherwise restricted allotments . . . for the purpose of
providing land for Indians.
....
Title to any lands or rights acquired pursuant to
sections . . . 465 [and others] shall be taken in the name
of the United States in trust for the Indian tribe or
individual Indian for which the land is acquired, and
such lands or rights shall be exempt from State and local
taxation.

25 U.S.C. § 465. The Supreme Court has had several occasions to comment on

the jurisdictional status of tribal trust land. In Oklahoma Tax Comm'n v. Citizen

Band Potawatomi Indian Tribe , 498 U.S. 505, 511, 111 S. Ct. 905, 910 (1991),

the Supreme Court held the tribe’s sovereign immunity from state taxes applied to

cigarette sales on tribal trust land, even though that land did not constitute a

“formally designated ‘reservation.’” The Court explained:

The State contends that the Potawatomis' cigarette sales do not, in
fact, occur on a "reservation." . . . [No] precedent of this Court has
ever drawn the distinction between tribal trust land and reservations
that Oklahoma urges. . . . We [have] stated that the test for
determining whether land is Indian country does not turn upon
whether that land is denominated "trust land" or "reservation."

7
 Rather, we ask whether the area has been " 'validly set apart for the
use of the Indians as such, under the superintendence of the
Government.’”

Id. (citing United States v. John , 437 U.S. 634, 650, 98 S. Ct. 2451 (1978)

(Major Crimes Act provides a proper basis for federal prosecution of a crime

occurring on lands held in trust by the federal government for the benefit of the

Mississippi Choctaw Indians)) 1
; see also Oklahoma Tax Comm'n v. Chickasaw

Nation , 515 U.S. 450, 453 n.2, 115 S. Ct. 2214 (1995) (Oklahoma may not apply

its motor fuels tax to fuel sold by the tribe in Indian Country and “‘Indian

country’ as Congress comprehends that term, see 18 U.S.C. § 1151, includes

formal reservations and informal reservations, dependent Indian communities, and

Indian allotments, whether restricted or held in trust by the United States.”);

Oklahoma Tax Comm'n v. Sac and Fox Nation , 508 U.S. 114, 123, 113 S. Ct.

1985 (1993) (“Our cases make clear that a tribal member need not live on a

formal reservation to be outside the State’s taxing jurisdiction; it is enough that

the member live in Indian Country. Congress has defined Indian country broadly

to include formal and informal reservations, dependent Indian communities, and

Indian allotments, whether restricted or held in trust by the United States.”).

1
In United States v. John, 437 U.S. 634, 649, 98 S. Ct. 2451 (1978), the
land in question had been proclaimed a reservation at the time of suit rendering
this discussion of the status of land held in trust dicta.

8
 Applying these Supreme Court cases, we believe official “reservation”

status is not dispositive and lands owned by the federal government in trust for

Indian tribes are Indian Country pursuant to 18 U.S.C. § 1151. See

Cheyenne-Arapaho Tribes v. State of Oklahoma , 618 F.2d 665, 668 (10th Cir.

1980) (state hunting and fishing laws do not apply on trust lands located within a

disestablished reservation because “lands held in trust by the United States for the

Tribes are Indian Country within the meaning of § 1151(a)”) 2
; Langley v. Ryder ,

778 F.2d 1092, 1095 (5th Cir. 1985) (affirming the district court’s exercise of

federal criminal jurisdiction because “whether lands are merely held in trust for

the Indians or whether the lands have been officially proclaimed a reservation, the

lands are clearly Indian country”); United States v. Azure , 801 F.2d 336, 339 (8th

Cir. 1986) (“Indian trust land, although not within the boundaries of the Turtle

Mountain Reservation, can be classified as a de facto reservation, at least for

purposes of federal criminal jurisdiction.”); 3
see also Santa Rosa Band of

2
In Cheyenne-Arapaho Tribes v. State of Oklahoma, 618 F.2d 665, 668
(10th Cir. 1980), we observed, “the Solicitor for the Interior Department ruled
that land acquired for the Cheyenne-Arapaho Tribes under the Oklahoma Indian
Welfare Act had reservation status,” but we did not state the Solicitor’s ruling
was necessary to our holding the trust lands were Indian Country.
3
The Eighth Circuit also observed, “[i]t is well established that the actions
of the federal government in its treatment of Indian land can create a de facto
reservation, even though the reservation was not created by a specific treaty,
statute, or executive order.” United States v. Azure, 801 F.2d 336, 338 (8th Cir.
1986). The Eighth Circuit has not always followed Azure, although it recognizes
(continued...)

9
Indians v. Kings County , 532 F.2d 655, 666 (9th Cir. 1975) (“We are confident

that when Congress in 1934 authorized the Secretary to purchase and hold title to

lands for the purpose of providing lands for Indians, it understood and intended

such lands to be held in the legal manner and condition in which trust lands were

held under the applicable court decisions free of state regulation.”).

In Buzzard v. Oklahoma Tax Comm'n , 992 F.2d 1073, 1076-77 (10th Cir.

1993) (affirming the district court's decision land the United Keetoowah Band

purchased and owned in fee simple with a restriction against alienation was not

Indian Country), referenced by both the government and Mr. Roberts, we

discussed how trust status can demonstrate both federal set aside and

superintendence. Relying on the holding in United States v. McGowan , 302 U.S.

535, 539, 58 S. Ct. 286 (1938), that Reno Indian Colony had been set aside by the

government for the use of Indians because it was purchased by the United States

for the purpose of providing lands for needy Indians, we explained:

Similarly, trust land is set apart for the use of Indians by the federal
government because it can be obtained only by filing a request with
the Secretary of the Interior, 25 C.F.R. § 151.9 (1992), who must
consider, among other things, the Indian's need for the land, id.
§ 151.10(b), and the purposes for which the land will be used, id. §

3
(...continued)
the precedent. See United States v. Stands, 105 F.3d 1565, 1575 & n.3 (8th Cir.
1997) (“For jurisdictional purposes, tribal trust land beyond the boundaries of a
reservation is ordinarily not Indian country. . . . In some instances, off-
reservation tribal trust land may be considered Indian country (citing Azure).”).

10
 151.10(c). If the request is approved, the United States holds the
land as trustee. Id. § 151.2(d). Thus, land is "validly set apart for
the use of Indians as such" only if the federal government takes some
action indicating that the land is designated for use by Indians.

Buzzard , 992 F.2d at 1076. We believed trust status could also meet McGowan’s

superintendency requirement:

Superintendency over the land requires the active involvement
of the federal government. This involvement was shown in
McGowan by the federal government's retention of title to the land
and its regulation of activities in the Colony. 302 U.S. at 538-39, 58
S. Ct. at 287-88. The United States also holds title to trust land,
although only as trustee. In addition, before agreeing to acquire trust
land, the Secretary must consider several factors including the
authority for the transactions, id. § 151.10(a), the impact on the state
resulting from the removal of the land from the tax rolls, id.
§ 151.10(3), and jurisdictional problems that might arise, id.
§ 151.10(f). These requirements show that, when the federal
government agrees to hold land in trust, it is prepared to exert
jurisdiction over the land.

Id.

Notwithstanding these Supreme Court and Tenth Circuit precedents, Mr.

Roberts cites State of Alaska v. Native Village of Venetie , 522 U.S. 520, 118

S. Ct. 948 (1998), in support of his position trust lands are not Indian Country. In

Venetie , the Court had to decide whether former reservation lands, conveyed to a

Native corporation and then to the Native Village of Venetie in communal fee

simple pursuant to the Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C.

§ 1601, could be considered Indian Country under 18 U.S.C. § 1151, thereby

permitting the tribe to tax non-Indians doing business on the lands. See id. at

11
951-52. Because the lands were neither a reservation nor allotment, the question

was whether they constituted a dependent Indian community. See id. at 953. The

Court announced for the first time a two-part test for dependent Indian

community, stating, “[we] must . . . conclude that in enacting § 1151(b), Congress

indicated that a federal set-aside and a federal superintendence requirement must

be satisfied for a finding of a ‘dependent Indian community.’” Id. at 954.

According to the Court, the language of the ANCSA clearly showed Congress had

no intention to set aside or superintend the lands at issue; therefore, Venetie was

not a dependent Indian community. See id. at 955-56.

We must first observe the factual differences distinguishing Venetie from

the present case. Whereas the Choctaw Tribal Complex is owned by the federal

government in trust for the Choctaw Nation pursuant to the IRA, the disputed

land in Venetie was owned in communal fee simple by an Indian tribe pursuant to

the ANCSA. In Venetie, there was no possibility the lands could qualify as a

reservation under 18 U.S.C. § 1151(a) because the ANCSA had explicitly

abrogated its reservation status, see id. at 953, whereas here the IRA authorizes

the Secretary to acquire lands in trust for tribes, and contemplates the Secretary

may officially declare them to be reservations. See 25 U.S.C. § 467. 4

4
As discussed above, however, official declaration of reservation status is
not necessary for the property to be treated as Indian Country under 18 U.S.C.
(continued...)

12
 Further, we find in Venetie neither a declaration that tribal trust lands are

not Indian Country for purposes of criminal jurisdiction, nor a repudiation of the

Court’s prior discussions of “informal” reservations. The test Justice Thomas

announced for 18 U.S.C. § 1151(b) Indian Country (dependent Indian community)

in Venetie does correspond with the factors Chief Justice Rehnquist articulated in

Potawatomi as establishing Indian Country under 18 U.S.C. § 1151(a)

(reservation) when there is no formal reservation. In both instances, the Court

looked for federal set aside and superintendence. See Venetie, 118 S. Ct . at 953; 5

Potawatomi, 498 U.S. at 511. Thus, the relationship between informal

reservations and dependent Indian communities is not entirely clear under current

case law. But based on Justice Thomas’ holding, “[dependent Indian community]

refers to a limited category of Indian lands that are neither reservations nor

allotments,” Venetie, 118 S. Ct. at 953, and the Court’s earlier pronouncements

4
(...continued)
§ 1151. Rather, as the Supreme Court has said, it is enough that the property has
been validly set apart for the use of the Indians, under federal superintendence.
See Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498
U.S. 505, 111 S. Ct. 905 (1991).
5
Although the facts supporting “set-aside” and “superintendence” appear to
be case sensitive, Justice Thomas further explained, “the federal set-aside
requirement ensures that the land in question is occupied by an ‘Indian
community’; the federal superintendence requirement guarantees that the Indian
community is sufficiently ‘dependent’ on the Federal Government that the Federal
Government and the Indians involved, rather than the States, are to exercise
primary jurisdiction over the land in question.” See State of Alaska v. Native
Village of Venetie, 522 U.S. 520, 118 S. Ct. 948, 955 (1998).

13
such as, “Congress has defined Indian country broadly to include formal and

informal reservations, dependent Indian communities, and Indian allotments,

whether restricted or held in trust by the United States,” Sac & Fox , 508 U.S. at

123, we believe both dependent Indian communities and reservations, whether

formal or informal, continue to exist under 18 U.S.C. § 1151 and Supreme Court

jurisprudence.

We need not further expound on the Supreme Court’s cases in this area

because, no matter which categorical label we choose to affix, the property in this

case, owned by the United States in trust for the Choctaw Nation, is Indian

Country, particularly in light of the district court’s findings the Tribal Complex

property was validly set-aside for the tribe under the superintendence of the

federal government. We will now turn to these findings as we address Mr.

Robert’s contentions the trust process was improperly executed and the Secretary

lacks authority to take lands into trust for tribes.

As the district court noted, when trust land is acquired, the federal

government must take "some action indicating that the land is designated for use

by Indians." Roberts , 904 F. Supp. at 1266 (citing Buzzard , 992 F.2d at 1076).

In Buzzard, we outlined the procedure the Secretary uses to acquire land in trust.

Although the regulations discussed in Buzzard were not in effect in 1976 when

the federal government acquired the Tribal Complex property in trust for the

14
Choctaw Nation, the testimony of Mary Downing, Realty Specialist for the BIA 6

revealed that in 1976 the BIA followed substantially the same procedures as those

currently codified at 25 C.F.R. §§ 151.1-151.14. See Roberts, 904 F. Supp. at

1268. Claiming the government failed to follow even the informal procedures

when the Tribal Complex property was purchased in trust in 1976, Mr. Roberts

points to various deficiencies -- for example, the transaction was approved after

the deed had been executed and filed of record, the approved warranty deed was

never filed and returned to the BIA, and the transaction was completed before the

BIA ordered a title opinion.

The district court, however, engaged in a detailed review of the process by

which the land was taken into trust, and found:

On August 8, 1976, the Superintendent for the Talihina office of the
BIA received a request from the Chief of the Choctaw Nation to
accept the tribal complex property in trust. Enclosed with this
request were a current abstract, a title opinion from a private
attorney, a contract for sale and proposed lease, the Choctaw Nation's
statement of the reasons for the acquisition, and other documents
related to the transaction. These documents, as well as a title opinion
from the field solicitor, were forwarded to the Area Director, who
approved the purchase of the tribal complex property in trust for the
Choctaw Nation on August 25, 1976.

6
Springwater testified that in 1976 there were no procedures for taking
land in trust. He stated the Area Director had "pretty broad discretionary
authority."

15
Id. The court also agreed with the government, “it is doubtful that informal

policies or procedures confer substantive rights which may be enforced by

defendants in criminal actions.” Id. at 1268 n.8 (citing United States v.

Thompson , 579 F.2d 1184, 1189 (10th Cir. 1978) ( en banc ) (Justice Department's

Petite policy regarding no federal prosecution following a state prosecution for

same transaction is a "housekeeping" provision that is at most a guide for federal

prosecutors and it does not confer an enforceable right upon a criminal

defendant)). 7
Therefore, “[e]ven assuming that strict compliance with informal

7
The district court further supported its rejection of Mr. Roberts’
compliance argument with State of Florida Dep’t of Business Regulation v.
United States Dep’t of Interior, 768 F.2d 1248, 1252-57 (11th Cir. 1985) (“the
decision to acquire land is one within the Secretary’s discretion,” and neither the
statute nor regulations provided law on which the court could base review of the
decision), a case which we have since expressly rejected. See McAlpine v.
United States, 112 F.3d 1429, 1433-35 (10th Cir. 1997). In McAlpine, we held
the regulations “provide ‘law to apply’ in evaluating the Secretary’s exercise of
his discretion. . . . While the regulation [25 C.F.R. § 151.10] does not provide
guidance on how the Secretary is to ‘weigh’ or ‘balance’ the factors, it does
provide a list of objective criteria that the decisionmaker is required to consider in
evaluating trust land acquisition requests.” Id. at 1434. We also left open the
possibility the statute itself provided for judicial review. See id. at 1432 & n.3.
Pursuant to the Administrative Procedure Act, 5 U.S.C. § 702, therefore, “the
proper standard for reviewing an agency’s discretionary action, such as the
Secretary’s decision in this case, is to determine whether the agency acted in a
manner that was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.’” Id. at 1436. While we note McAlpine expressly rejects
Florida, it does not change the outcome in this case because, at the time of the
transaction, the formal regulations now governing trust acquisitions under 25
U.S.C. § 465 did not exist. Further, we have already indicated our agreement
with the district court the Secretary substantially complied with the informal
(continued...)

16
policies and procedures was necessary for a valid acquisition of trust property,

and Roberts’ standing to assert such compliance argument, the testimony at the

hearing thus revealed that the federal government substantially complied with the

applicable policies and procedures.” Id. at 1268. As a result, the Secretary and

his delegates acquired the property for the United States in trust for the Choctaw

Nation.

Beyond procedural validity, the government’s actions in 1976 demonstrated

its intent to treat the property as Indian Country:

[The government’s actions] provided concrete evidence of the active
involvement of the federal government in designating the tribal
complex property as property for the use of the Choctaw Nation
under the superintendence of the federal government. Evidence of
post-execution approval by the Area Director and a failure to file and
return the approved deed constitute only incidental non-compliance
with procedures not affecting the validity of an otherwise proper
designation of trust property.

Roberts , 904 F. Supp. at 1268 (emphasis added). Unlike Buzzard , for example,

where the government had taken no action to set aside the land, and the tribe

unilaterally acquired and owned the land in fee simple like any other property

owner, see 992 F.2d at 1076, here the Secretary followed procedures, albeit

informal at the time, to acquire the property for the government in trust for the

7
(...continued)
procedures and, in any event, it is unlikely the informal procedures in place in
1976 create substantive rights enforceable by Mr. Roberts.

17
Choctaw Nation. See Roberts , 904 F. Supp. at 1267-68. Further, in Buzzard ,

there was no federal superintendence:

[T]he federal government has not retained title to this land or
indicated that it is prepared to exert jurisdiction over this land. At
most it has agreed to approve transactions disposing the land. But
the ability to veto a sale does not require the sort of active
involvement that can be described as superintendence of the land.

992 F.2d at 1076. Here, the United States retains title to the property; the state

considers the property to be beyond its taxation jurisdiction; the BIA Area

Director approved the land acquisition; the government continues to oversee the

Tribal Complex property, as when it participated in a 1991 lease dispute between

the Choctaw Nation and the Historical Association; and the BIA and Choctaw

Nation treat the Complex as trust property. See Roberts , 904 F. Supp. at 1265-

67. For all of these reasons, we agree with the district court the property in the

present case is, unlike the land in Buzzard , Indian Country.

Mr. Roberts next argues that the future interest held by the Chamber of

Commerce operates to defeat the trust status designation of the property. The

warranty deed which conveyed title to the United States in trust for the Choctaw

Nation contains a provision that title to the subject property is conveyed only for

"so long as said premises are used for purposes of the Choctaw Nation of

Oklahoma." Further:

In the event the property is no longer used by the Choctaw Nation
and upon the filing of a Declaration by the Secretary of the Interior

18
 that said premises are no longer used by Choctaw Nation, the title
shall revert to the Chamber of Commerce of the City of Durant to
hold title in trust for the use and benefit of the Red River Valley
Historical Society or other designee of the Chamber of Commerce of
the City of Durant.

Mr. Roberts claims this future interest prevents the United States from exerting

superintending control or jurisdiction over the Tribal Complex property. In

support of this argument, Mr. Roberts again relies on Buzzard . While Buzzard

reaffirmed the well-settled rule that “Indian country includes . . . land held in

trust by the United States for the use of an Indian tribe,” id. at 1076 (citing

Potawatomi , 498 U.S. at 511), the case has no bearing on the future interest

contained in the warranty deed in this case. Moreover, we completely agree with

the district court, “the inclusion of a future interest which allows the Chamber of

Commerce to take title to the tribal complex property upon the fulfillment of a

contingency does not alter the trust status of the property.” Roberts , 904 F. Supp.

at 1267.

By its very wording, this future interest is contingent in nature--
contingent on the land not being used by the Choctaw Nation and
contingent on the filing of a declaration by the Secretary of Interior
that the premises are not being used by the Choctaw Nation--and it
cannot operate to defeat an otherwise valid exercise of
superintending responsibility by the federal government as
established by its approval of an acquisition in trust for the benefit of
the Choctaw Nation. The proper focus is on the federal government's
superintending role and actions, not on the existence of a contingent
property interest possessed by a third party. Any de minimus effect
this future interest may have on the federal government's fee
ownership in trust is more than overcome by the federal

19
 government's undeniable supervisory role as evidenced by the Area
Director's approval of the acquisition, the federal government's
continued oversight of the tribal complex property, i.e, participation
in the 1991 lease dispute between the Choctaw Nation and the
Historical Association, and the continued treatment of the tribal
complex property as trust property by the BIA and the Choctaw
Nation.

Id. (emphasis added). For all of these reasons the district court appropriately

“reject[ed] Mr. Roberts' tortuous interpretation of Buzzard and f[ound] that the

inclusion of the subject future interest on behalf of the Chamber of Commerce

does not defeat the trust status of the tribal complex property, title to which is

held by the United States in trust for the Choctaw Nation.” Id.

Mr. Roberts finally argues the Secretary of the Interior lacks authority to

take tribal lands into trust as a general matter because 25 U.S.C. § 465

unconstitutionally delegates standardless authority to the Secretary. The statute

provides:

The Secretary of the Interior is hereby authorized, in his
discretion, to acquire through purchase, relinquishment, gift,
exchange, or assignment, any interest in lands, water rights, or
surface rights to lands, within or without existing reservations,
including trust or otherwise restricted allotments whether the allottee
be living or deceased, for the purpose of providing land for Indians.

For the acquisition of such lands . . . , there is authorized to be
appropriated, a sum not to exceed $2,000,000 in any one fiscal year:
Provided, That no part of such funds shall be used to acquire
additional land outside of the exterior boundaries of Navajo Indian
Reservation . . . in the event that legislation to define the exterior
boundaries of the Navajo Indian Reservation . . . becomes law.
....

20
 Title to any lands or rights acquired pursuant to [the various
sections] of this title shall be taken in the name of the United States
in trust for the Indian tribe or individual Indian for which the land is
acquired, and such lands or rights shall be exempt from State and
local taxation.

25 U.S.C. § 465. Mr. Roberts cites in support of his constitutional argument,

South Dakota v. United States Dep’t of the Interior, 69 F.3d 878 (8th Cir.

1995). In South Dakota, the Eighth Circuit held the section of the IRA

authorizing the Secretary to acquire land in trust for Indians unconstitutional

because it violated the nondelegation doctrine by providing no legislative

standards governing the Secretary's acquisition, and therefore the Secretary lacked

authority to acquire land in trust for the tribe. Id. at 885. However, the Supreme

Court vacated that decision in United States Dep’t of the Interior v. South

Dakota, 519 U.S. 919, 117 S. Ct. 286 (1996) (granting certiorari, vacating and

remanding to the Secretary of the Interior for reconsideration of his administrative

decision); thus it has no precedential value to us. 8

8
In the alternative, Mr. Roberts argues even if the trust process can now
survive a delegation challenge, it is only by virtue of the regulations enacted in
1980, and subsequently amended, which place additional limits on the Secretary’s
discretion and facilitate judicial review. Cf. McAlpine, 112 F.3d at 1432 n.3
(discussing amended regulations). He believes the process remained
constitutionally flawed in 1976 when the Tribal Complex property was taken into
trust. While his position finds some support in Justice Scalia’s dissenting opinion
in Department of the Interior v. South Dakota, 519 U.S. 919, 117 S. Ct. 286,
287 (1996), we disagree based on our belief the statute itself provides standards
for the Secretary’s exercise of discretion.

21
 The Supreme Court did not publish a majority opinion when it granted,

vacated and remanded South Dakota ; thus, we do not know the Court’s reasoning

on the issue of 25 U.S.C. § 465's standards. However, we have previously

acknowledged the statute itself places limits on the Secretary’s discretion. See

McAlpine , 112 F.3d at 1432 n.3 (citing South Dakota , 69 F.3d at 887-88

(Murphy, J. dissenting)). For our discussion, it is helpful to recall the statutory

standards observed by Judge Murphy. For example, the statute provides any land

must be acquired for Indians as defined in 25 U.S.C. § 479 and funds

appropriated for the acquisitions may not be used to provide land for Navajos

outside their reservation boundaries. See South Dakota , 69 F.3d at 887-88

(Murphy, J., dissenting). And, the legislative history identifies goals of

“rehabilitating the Indian’s economic life” and “developing the initiative

destroyed by . . . oppression and paternalism,” of the prior allotment policy and

indicates the Secretary must assure continued “beneficial use by the Indian

occupant and his heirs.” Id . 9 Mr. Roberts has not argued the Secretary abused his

discretion by transgressing any of these standards.

9
Moreover, the Supreme Court has only twice in its history, and not since
1935, invalidated a statute on the ground of excessive delegation of legislative
authority; since 1935, the “Court has consistently upheld statutes involving broad
delegations of authority.” South Dakota v. United States Dep’t of the Interior,
69 F.3d 878, 886 (8th Cir. 1995) (and citations therein) (Murphy, J., dissenting).

22
 We agree with the district court Congress properly delegated to the

Secretary of the Interior authority to make such acquisitions, see 25 U.S.C. § 465,

and the Secretary then granted a delegation of general authority to the

Commissioner of Indian Affairs, see 39 Fed. Reg. 32166-67, who redelegated his

authority to the Bureau of Indian Affairs Area Directors. See 34 Fed. Reg. 637-

38. Consequently, “the Area Director possessed the delegated authority to take

title to the tribal complex property in trust for the Choctaw Nation in 1976.”

Roberts , 904 F. Supp. at 1269.

Mr. Roberts’ many arguments about the invalidity of the trust process, in

this instance and in general, must finally be put to rest. In sum, we believe the

Secretary properly exercised his discretion to acquire the Tribal Complex property

in trust for the Choctaw Nation pursuant to 25 U.S.C. § 465, and there is evidence

of federal set-aside and superintendence. We reject the delegation argument and

are equally unpersuaded the Secretary’s actions merit reversal. As a result, the

property is Indian Country for purposes of the Major Crimes Act, and no

procedural or administrative defect nullifies this status. The district court did not

err in asserting jurisdiction over the alleged offenses in this case.

III.

Mr. Roberts next argues the jury, not the judge, should have decided

whether the Tribal Complex was Indian Country, and, in the alternative, the

23
evidence was insufficient to support a jury finding the offenses occurred in Indian

Country. We address these arguments in turn.

The statutes under which Mr. Roberts was charged, 18 U.S.C. § 2241

(aggravated sexual abuse) ; 18 U.S.C. § 2242 (sexual abuse); and 18 U.S.C.

§ 2244 (abusive sexual contact), all require the offenses have occurred “in the

special maritime and territorial jurisdiction of the United States.” The Major

Crimes Act provides:

Any Indian who commits against the person or property of another
Indian or other person any of the following offenses, namely, murder,
manslaughter, kidnaping, maiming, a felony under chapter 109A
[sexual abuse], incest, assault with intent to commit murder, assault
with a dangerous weapon, assault resulting in serious bodily injury
(as defined in section 1365 of this title), an assault against an
individual who has not attained the age of 16 years, arson, burglary,
robbery, and a felony under section 661 of this title [embezzlement
and theft] 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.

18 U.S.C. § 1153(a). As we have already described, when Mr. Roberts moved to

dismiss for lack of subject matter jurisdiction, the court held a hearing and

decided the Tribal Complex, site of some of the alleged offenses, was Indian

Country, and therefore the court had jurisdiction over the case. At trial, the

government sought to call witnesses to prove the Indian Country status of the

land, and the court disallowed the testimony, stating:

Well, you know, we have had a hearing on that and I have found that
it is Indian Country, and it was necessary that it be Indian Country

24
 before we even could – before I would even let you proceed. . . . And
that’s a legal issue and not a factual issue. And I will so instruct the
jury.

At the close of arguments, the court instructed the jury, in part:

The Government must prove each essential element of each offense
beyond a reasonable doubt . . . .

Each count requires proof of the commission of the offense within
the territorial jurisdiction of the United States. In this case, the
Court has determined that the Choctaw Nation Tribal Complex
property located in Durant, Oklahoma, is in Indian Country, which is
considered to be within the territorial jurisdiction of the United
States. Consequently, no other proof or evidence is necessary to
support the Government’s claim that the alleged acts which allegedly
took place on the Choctaw Nation’s Tribal Complex property in
Durant, Oklahoma, are within the territorial jurisdiction of the United
States with respect to each of the counts of the indictment. The
Court makes no such finding, however with respect to other locations
you have heard discussed in this trial.

The court then reiterated “the defendant is charged in Counts 1, 3, 6 and 7 with

abusive sexual contact in violation of 18 U.S.C. §§ 2242(1) and 2244(a)(2), which

provide that whoever in the territorial jurisdiction of the United States engages in

or causes sexual contact with or by another person by threatening or placing that

other person in fear will be guilty of the offense of abusive sexual contact.”

(emphasis added). Instructing on the remaining counts, the court again articulated

the “ whoever in the territorial jurisdiction of the United States ” requirement of 18

U.S.C. 2241(a)(1) (attempting aggravated sexual abuse) (Counts 2 and 4) and 18

U.S.C. § 2242(1) (attempted sexual abuse) (Count 5). The court also stated to the

25
jury that it was the ultimate judge of the facts and ordered, “You must consider

these instructions as a whole and not just a part of them to the exclusion of the

rest.”

When the instructions were proposed by the court, defense counsel

objected, “There is one [instruction] . . . that refers to Indian Country where you

advise the jurors that that element of the offense has been decided by the Court.

And we object to that on the grounds that we regard it as a mixed question of law

and fact and the material elements of the offense which the jury should have the

right to adjudicate.” Before the jury received the instructions, the defense

renewed its Indian Country objection. The court overruled the objections.

Mr. Roberts contends the instructions relieved the government of its burden

of proving an essential element of the crime by failing to provide evidence at trial

the Tribal Complex was Indian Country. See In re Winship , 397 U.S. 358, 364,

90 S. Ct. 1068 (1970) (the government must prove every element of an alleged

crime beyond reasonable doubt). But the government maintains the trial court’s

instruction the Tribal Complex was, as a matter of law, Indian Country did not

improperly remove from the province of the jury any factual inquiry. Further, the

court appropriately explained the law and left the jury to determine the essential

element of whether the alleged offenses occurred at the Tribal Complex.

26
 We have previously explained, “an error in jury instructions will mandate

reversal of a judgment only if the error is determined to have been prejudicial,

based on a review of the record as a whole." See Big Horn Coal Co. v.

Commonwealth Edison Co. , 852 F.2d 1259, 1271 n.19 (10th Cir. 1988) (citing

Durflinger v. Artiles , 727 F.2d 888, 895 (10th Cir. 1984). Reviewing the entire

record, we determine whether the instructions "state[d] the law which governs and

provided the jury with an ample understanding of the issues and the standards

applicable." Ramsey v. Culpepper , 738 F.2d 1092, 1098 (10th Cir. 1984). We

“consider all that the jury heard and, from the standpoint of the jury, decide not

whether the charge was faultless in every particular but whether the jury was

misled in any way and whether it had understanding of the issues and its duty to

determine these issues." Durflinger , 727 F.2d at 895 (internal quotations

omitted).

We agree with Mr. Roberts that a jury verdict, if based on an instruction

allowing it to convict without properly finding the facts supporting each element

of the crime, is error, see Sandstrom v. Montana , 442 U.S. 510, 523, 99 S. Ct.

2450 (1979), and the facts essential to conviction must be proven beyond the

jury’s reasonable doubt, not the court’s. See Connecticut v. Johnson , 460 U.S.

73, 86, 103 S. Ct. 969 (1983). However, we believe Mr. Roberts confuses the

legal issue of jurisdiction with the factual question of locus of the offense.

27
 As a general matter, the trial court decides the jurisdictional status of a

particular property or area and then leaves to the jury the factual determination of

whether the alleged crime occurred at the site. See United States v. Hernandez-

Fundora , 58 F.3d 802, 812 (2d Cir. 1995) (district court may determine a federal

prison falls within the special maritime and territorial jurisdiction of the United

States and remove that matter from the jury); United States v. Warren , 984 F.2d

325, 327 (9th Cir. 1993) (district court may determine a military base satisfies

federal jurisdictional requirements); United States v. Bridges , 43 F.3d 1468

(table), 1994 WL 687301, *1 (4th Cir. 1994) (In a trial for robbery within the

special maritime and territorial jurisdiction of the United States, “it is well

established that a court may determine, as a matter of law, the existence of federal

jurisdiction over the geographic area, but the locus of the offense within that area

is for the trier of fact.”).

Similarly, a trial court also acts appropriately when it makes the

jurisdictional ruling a particular tract of land or geographic area is Indian

Country, and then instructs the jury to determine whether the alleged offense

occurred there. In United States v. Deon, 656 F.2d 354 (8th Cir. 1981), the

defendant challenged the jury instruction, “the Court has found as a matter of law

that Pine Ridge, South Dakota, the site of the alleged offense, is in Indian

28
Country. You are therefore instructed that this Court’s jurisdiction has been

established.” Id. at 357. The Eighth Circuit held:

The jury was not told, as a matter of law that an offense
had occurred, only that the site of the alleged offense,
Pine Ridge, South Dakota, was in Indian Country. This
instruction, reduced to its essentials, finds as a matter of
law only that Pine Ridge is in Indian country.

Id. Similarly, in United States v. Sohappy , 770 F.2d 816 (9th Cir. 1985), the

Ninth Circuit reviewed the trial court’s instruction the jury determine whether

violations of Lacey Act prohibitions against transporting, selling, or acquiring

fish taken in violation of tribal law occurred at two sites. Id. at 822. Because

“the issue of what constitutes Indian country is a matter for the judge and not the

jury,” and the trial judge “was apparently satisfied the two sites were Indian

country,” there was no plain error in instructing the jury only that it must find

whether the violations occurred at the sites. Id. at 822 & n.6. In United States v.

Cook , 922 F.2d 1026 (2d Cir. 1991), an appeal from conviction for criminal use

and possession of gambling devices, the defendants challenged the court’s ruling

from the bench a certain area was Indian Country. Id. at 1031-32. The Second

Circuit held, “the question of whether the St. Regis territory is Indian country was

one properly decided by [the trial] [j]udge . . . without submission of the issue to

the jury.” Id.

29
 Several circuits have had the opportunity to state, in dicta, the trial court

should not submit to the jury the question of whether a particular tract of land or

geographic area is Indian Country. In United States v. Stands , 105 F.3d 1565

(8th Cir. 1997), the defendant argued the court had erroneously required the jury

to determine whether the alleged site was Indian Country when it convicted him

of charges arising out of a kidnaping and assault. See id. at 1575-76. The court

agreed, “given a particular piece of land, it is for the court, not the jury, to

determine whether that land is in Indian country.” Id. at 1575. Therefore, “[i]t

may have been error [albeit nonreversible] for the District Court to submit to the

jury the narrow question of whether the alleged site of the offense was Indian

country.” Id. at 1576. Similarly, in United States v. Levesque , 681 F.2d 75 (1st

Cir. 1982), the First Circuit considered the defendant’s contention it was error to

submit to the jury the question of whether or not the locus of an alleged assault

was in Indian Country. Id. at 78. Whether the geographic area satisfied the

dependent Indian community category of Indian Country, the court explained, was

“a jurisdictional fact susceptible of determination without reference to any of the

facts involved in determining defendants’ guilt or innocence,” but any error in

submitting to the jury this jurisdictional question did not provide cause for

reversal. Id.

30
 We agree with our sister circuits the district court can find, as a matter of

law, a geographic area or particular location is Indian Country, and then instruct

the jury to determine factually whether the offense occurred there. In Mr.

Roberts’ case, the jury instructions neither diminished the government’s burden of

proof, nor relieved the jury of its responsibility to find all essential elements of

the offenses.

Mr. Roberts argues that in any case, the jury had insufficient evidence to

find the alleged offenses occurred at the Tribal Complex. We review de novo all

evidence, both direct and circumstantial, together with all reasonable inferences

in the light most favorable to the prosecution, to determine whether a reasonable

jury could find the essential elements of a crime beyond a reasonable doubt. See

United States v. Gonzales , 58 F.3d 506, 508-09 (10th Cir. 1995). We also

presume the jury resolved evidentiary conflicts in favor of the prosecution, and

we defer to the jury’s resolution. See Messer v. Roberts , 74 F.3d 1009, 1013

(10th Cir. 1996).

The jury heard numerous alleged victims and witnesses testify most of the

offenses occurred in Mr. Roberts’ office at the Tribal Complex; it also heard

evidence about alleged offenses that may have transpired elsewhere. The jury

appears to have carefully weighed the evidence in light of the judge’s legal

instructions on jurisdiction. On Counts I, II, and VI, alleging acts occurring at

31
the Tribal Complex, the jury returned guilty verdicts, but on Count VII, for

example, where the testimony was conflicting as to whether the incident occurred

at the Tribal Complex or in Hugo, Oklahoma, the jury resolved the question in

favor of the defendant. We believe the jury had sufficient evidence to make the

factual determination several alleged offenses occurred at the Tribal Complex

which the court had properly instructed as a matter of law to be Indian Country.

IV.

Mr. Roberts contests the district court’s decision to admit, as evidence of

extrinsic acts, the testimony of women who were not the victims of charged

offenses. Originally the district court conducted the required balancing inquiry of

Fed. R. Evid. 403, and excluded the evidence on the ground its potential prejudice

substantially outweighed its probative value. In an interlocutory appeal to this

court, the government challenged the exclusion.

We “remand[ed] the Fed. R. Evid. 404(b) issue concerning the nine

additional women to the district court for an appropriate hearing to determine

whether the government has established that Mr. Roberts engaged in a common

scheme to abuse sexually women subject to his authority and whether each

32
woman's testimony fits this pattern.” United States v. Roberts , 88 F.3d 872, 875

(10th Cir. 1996). 10
We opined:

[t]he government must produce additional information about the
details of each of the nine women's proposed testimony before a firm
conclusion on this issue is possible. The district court must make
this determination in the first instance on remand after holding an
appropriate pretrial hearing.

Id. at 881. Mr. Roberts argues the district court improperly followed our remand

order, and rather took our decision as authorization to automatically admit the

testimony under Rule 404(b).

On remand, the district court held an in camera hearing where the

government presented the testimony of the three women named in the indictment

and seven other women who alleged Mr. Roberts sexually abused them. The

government relied on its proffer and an FBI 302 statement as to an eighth

woman’s testimony. Noting the evidence established a steady stream of similar

conduct occurring between 1977 and 1993, the district court decided to allow

testimony showing Mr. Roberts’ conduct toward tribal employees under his

authority was “strikingly similar” to the charged acts.

We review a decision to admit evidence under Fed. R. Evid. 404(b) for

abuse of discretion. United States v. Deninno , 29 F.3d 572, 577 (10th Cir.

On other grounds, not relevant to this issue, United States v. Roberts, 88
10

F.3d 872 (10th Cir. 1996), was superceded by statute as stated in United States v.
Meacham, 115 F.3d 1488 (10th Cir. 1997).

33
1994). Rule 404(b) prohibits the government from offering evidence of other

crimes, wrongs, or acts to demonstrate the bad character, moral turpitude, or

criminal disposition of a defendant to prove he acted in conformity with the prior

acts or events. However, the rule permits the introduction of such evidence for

other approved purposes, including to demonstrate a defendant's identity or intent

to commit a crime by demonstrating a common scheme or plan. See United

States v. McGuire , 27 F.3d 457, 460-61 (10th Cir. 1994). Following the Supreme

Court’s decision in Huddleston v. United States , 485 U.S. 681, 691-92, 108

S. Ct. 1496 (1988) (outlining the four procedural safeguards governing admission

decisions under Rule 404(b)), we have adopted an "inclusive approach" to

admitting evidence under this rule. United States v. Record , 873 F.2d 1363,

1375 (10th Cir.1989), 485 U.S. 681 (1988). We have listed the requirements as:

(1) the evidence must be offered for a proper purpose; (2) the evidence
must be relevant; (3) the trial court must make a Rule 403
determination of whether the probative value of the similar acts is
substantially outweighed by its potential for unfair prejudice; and (4)
pursuant to Fed. R. Evid. 105, the trial court shall, upon request, instruct
the jury that evidence of similar acts is to be considered only for the
proper purpose for which it was admitted.

United States v. Jefferson , 925 F.2d 1242, 1258 (10th Cir. 1991); see also

United States v. Wacker , 72 F.3d 1453, 1468 (10th Cir. 1995); Huddleston , 485

U.S. at 691-92.

34
 Contrary to Mr. Roberts’ contention, the district court did follow our order

by holding a hearing, making findings about the probative value of the evidence,

and excluding testimony that did not show common plan or intent. Consistent

with our direction, the court issued an order evaluating the proposed testimony of

seven women under Rule 404(b). The court recalled the government’s rationale

was to show a common scheme of sexually abusive behavior committed against

female employees of the Choctaw Nation, and the defendant’s knowledge he

could, by virtue of his position, abuse young female employees without fear of

reprisal. It concluded “with respect to six of the . . . women, th[e] probative

value of their proposed testimony is not substantially outweighed by its potential

for unfair prejudice.” The court made detailed findings:

The court makes this finding as to witnesses Maddux, Ward, Byrd,
McWilliams, Cole and Knight. Each witness was employed by the
Choctaw Nation when the sexually abusive behavior by Roberts was
directed toward them. Roberts was in a position of authority over
each of them. He was the Chief of the Choctaw Nation and he
represented the ultimate hiring and firing authority for the Choctaw
Nation. According to the testimony, he utilized his influence and
control over these women in such fashion that they were constantly
subjected to his advances as part of their employment. Most, if not
all of these incidents, took place with no witnesses and in areas not
visible to other individuals. Each encounter was apparently
prompted by a request by Roberts for a one-on-one meeting. The
testimony of these seven women regarding Roberts’ conduct is
strikingly similar to the testimony of the three individuals named in
the indictment – Russ, Gilbert, and Grammar.

35
(emphasis added). For these reasons, the court allowed the jury to hear the

testimony of the six women under Rule 404(b). However, it disallowed the

testimony of a seventh woman, Ms. Hughes, because:

Hughes never worked for the Choctaw Nation and was never under
the control of Roberts or subject to his authority in any respect
related to employment with the Choctaw Nation. The testimony of
Hughes does not fit within the stated rationale of the government in
introducing such testimony to establish Roberts’ scheme to sexually
abuse those women under his authority. Consequently, Hughes’
testimony is not admissible.

The court also disallowed Ms. Maddux’s proposed testimony about an event that

took place before she was employed by the Choctaw Nation.

We believe the district court followed our remand order and decided

correctly, under Huddleston , Jefferson, and Wacker, the six women’s testimony

was admissible to show a common scheme. Addressing Mr. Roberts’ contention

the six women would testify to events too remote in time from the charged

offenses, the court appropriately disagreed because “the testimony presented tends

to establish a long-standing pattern of sexually abusive behavior on the part of

Roberts from 1977 continuing up until the time of the charges contained in the

indictment.” See United States v. Cuch , 842 F.2d 1173, 1178 (10th Cir. 1988)

(When considering the prejudicial effect of other bad acts which are temporally

remote, we follow “no absolute rule regarding the number of years that can

separate offenses. Rather, the court applies a reasonableness standard and

36
examines the facts and circumstances of each case”); see also Wacker , 72 F.3d at

1469 (testimony showing a long-standing pattern of drug activity from the late

1970's until the time of defendants’ arrest in 1990 was evidence integrally related

to the charges and not too remote).

In the alternative, the government tells us the evidence was admissible

under Rule 413 allowing evidence of uncharged sexual crimes for “its bearing on

any matter to which it is relevant.” Although we previously held that rule

inapplicable to Mr. Roberts’ case under its original effective date language, see

Roberts , 88 F.3d at 875, Congress has subsequently overruled our narrow

interpretation of the effective date language. See United States v. Enjady , 134

F.3d 1427, 1429-30 (10th Cir. 1998). 11
Whether under Rule 404(b) or Rule 413,

United States v. Enjady, 134 F.3d 1427, 1429 (10th Cir. 1998),
11

describes:

[W]e held in United States v. Roberts, 88 F.3d 872, 879
(10th Cir.1996), that "rule [413] was not intended to
apply to criminal cases already pending as of the rule's
effective date." We declined to apply Rule 413 to an
indictment filed before July 1995. In September 1996
Congress responded to Roberts, calling it an
"erroneously restrictive interpretation of the effective
date language for the new rules." 142 Cong. Rec.
H12051-04 (1996). Congress amended the effective
date language to provide that new Rules 413- 415 "shall
apply to proceedings commenced on or after the
effective date of such amendments, including all trials
commenced on or after the effective date of such
amendments." Pub.L. No. 104-208, Div. A, Tit. I,
(continued...)

37
therefore, the district court did not abuse its discretion in holding two evidentiary

hearings consistent with our remand order and making findings supporting the

admissibility of some of the women’s testimony, while excluding others’.

V.

Mr. Roberts next complains that in opening and closing arguments the

prosecutor improperly vouched for witness credibility and referred to evidence

not in the record. Although he did not object at trial, he now contends the

remarks were improper and prejudicially affected his substantial rights, therefore,

amounting to prosecutorial misconduct. See United States v. Eyster , 948 F.2d

1196, 1206 (11th Cir. 1991). Where, as here, a defendant does not make a

contemporaneous objection to the prosecutor’s argument, the standard of review

on appeal is for plain error. See United States v. Russell , 109 F.3d 1503, 1514

(10th Cir. 1997).

Mr. Roberts draws our attention to several statements:

(A) The prosecution’s case against the defendant will center in large
measure around the direct, first-hand and forth-right testimony of
those courageous women, all of whom will present shockingly and
strikingly similar testimony of sexual attacks committed over a

11
(...continued)
§ 101(a). Thus Congress overruled that part of Roberts
that had narrowly interpreted the original effective date
language. The purpose and effect of this amendment
was for Rules 413- 415 to apply to all trials commenced
after July 10, 1995. Fed.R.Evid. 413(e).

38
 number of years by this powerful and influential man, Hollis Earl
Roberts.

(B) Words can’t really express our appreciation for your
consideration of the testimony of the ten women.

(C) If the United States Attorney’s Office were after the defendant,
why wouldn’t we have indicted him on that charged [sic]? We had a
grand jury investigation. If this was a kangaroo kind of a deal, why
not charge him with it?

(D) It’s tough to prove that beyond a reasonable doubt, isn’t it? So
what did we do? Did we go after him? Did we scour the country in
1990? No. We waited until . . . . We did nothing until more
evidence was presented to the United States Attorney’s Office, . . .
and only then did the United States Attorney’s Office move into
action. There is not one piece of evidence in this case that John
Raley, Linda Epperly, or Shelly Sperling has one interest whatever in
intervening in the political affairs of the Choctaw Nation of
Oklahoma, not one piece of evidence. He says that pretty eloquently.
It sounded good, but the evidence didn’t establish that.

(E) Hollis called next Monday. What did he do? He apologized,
“sorry for raping you or sorry for attempting to rape you, in effect.
Hollis resigned.”

(F) Why were these women here – Angie Gilbert, Kobi Russ, Misty
Grammar, Kathy Cole, Mary Watson, Tanya Parker, Jana Byrd,
Micah Knight, Kristina Hughes, Kim Maddox, they are here for one
thing. They want you to believe them.

The government responds the prosecutor’s statements were proper if viewed in

context. See Darden v. Wainwright , 477 U.S. 168, 179, 106 S. Ct. 2464 (1986).

Statement A, the government argues, was an “appropriate prediction of

testimony” borne out at trial and Statement B, “a proper prosecutorial expression

of thanks to the jury for its time and attention.” In Statements C and D the

39
government explained how it had to rebut Mr. Roberts’ argument the charges

against him were “part of a political conspiracy masterminded by Doug Dry,” and

that its questioning of government witnesses revealed nothing improper in their

motives for testifying. Statement E was “an accurate reflection of what Mr.

Roberts, in effect , told [Ms. Parker],” and is supported in the record. And

Statement F was “made in response to defense arguments that the testimony of the

uncharged offense victims should be ignored as ‘piling on’ in an ‘over-prosecuted

case.’”

Further, the prosecutor explicitly disclaimed any ability to vouch for

witness credibility, and the judge’s instructions to the jury cured any error. See

Donnelly v. DeChristoforo , 416 U.S. 637, 644, 94 S. Ct. 1868 (1974). In

rebuttal, the prosecutor said, “I can’t vouch for things that didn’t appear in the

record. And if anything that I say appears to be such, please discard it. If

anything I say appears to be inconsistent with your honest recollection of the

facts, I expect and I encourage you to follow your individual and your collective

recollection of the evidence and the testimony in this case.” After closing

arguments, the court charged the jury, “the statements and arguments of these

lawyers are not evidence.” Given the context of the statements, curative

instructions, and abundance of testimonial evidence on which the jury could have

based its verdict, we do not believe the prosecutor’s comments merit reversal of

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Mr. Roberts’ conviction; at most, the comments were harmless error. See United

States v. Hasting , 461 U.S. 499, 507-09, 103 S. Ct. 1974 (1983).

VI.

Finally, Mr. Roberts argues he should not have received a sentencing

enhancement for abuse of a position of trust pursuant to U.S.S.G. § 3B1.3. We

review the district court’s factual findings under the clearly erroneous standard

and review its applications of the Sentencing Guidelines de novo. See United

States. v. Roberts , 14 F.3d 502, 522-23 (10th Cir. 1993).

Based on his Criminal History Level of I, Mr. Roberts was sentenced to 26

months’ imprisonment on Counts 1 and 6, served concurrently with a 135-month

sentence on Count 2. The sentence included a two-level enhancement for abuse

of public trust. The Guidelines provide, “if the defendant abused a position of

public or private trust, or used a special skill, in a manner that significantly

facilitated the commission or concealment of the offense, increase by 2 levels.”

U.S.S.G. § 3B1.3 (1995). The application notes to the Guidelines further explain:

“Public or private trust” refers to a position of public or private trust
characterized by professional or managerial discretion ( i.e. ,
substantial discretionary judgment that is ordinarily given
considerable deference. Persons holding such positions ordinarily
are subject to significantly less supervision than employees whose
responsibilities are primarily non-discretionary in nature. For this
adjustment to apply, the position of trust must have contributed in
some significant way to facilitating the commission or concealment
of the offense ( e.g. , by making the detection of the offense or the
defendant’s responsibility for the offense more difficult).

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Id. at n.1. Mr. Roberts does not believe he abused a position of public trust. He

attempts to bolster this argument with United States v. Brunson , 54 F.3d 673,

677-78 (10th Cir. 1995) (in a fraudulent, but otherwise “normal arms-length

commercial relationship,” abuse of trust enhancement was improperly applied

because no fiduciary or personal trust relationship existed between the two

principals), and United States v. Custodio , 39 F.3d 1121, 1125-26 (10th Cir.

1994) (requiring something more than a business partnership for an abuse of a

position of trust enhancement).

These cases are inapposite and do not obscure that Mr. Roberts was the

longtime tribal Chief who could, and did, call subordinate female employees to

his private office at the tribal headquarters where he then sexually abused them,

secure in the knowledge the power and influence of his position would allow him

to engage in these repeated attacks, over the course of many years, without

oversight. Several women testified they did not initially report him out of fear he

would use his power and influence to retaliate, either by terminating their

employment, denying family members tribal benefits, or causing physical harm to

them. When this case became public, family members of several victims

acknowledged Mr. Roberts’ behavior, but urged the women not to participate.

Because she agreed to testify, at least one woman no longer has contact with her

parents, and others maintain strained relationships with family members. Beyond

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the victims and their families, Mr. Roberts appears to have exerted significant

influence over employment, economics, politics, and daily life of all members of

the Choctaw Nation and the entire town of Durant, Oklahoma. As a result, even

after acknowledging the abuse and assaults, many individuals were wary of

supporting the victims of the offenses, and, in fact, strongly encouraged the

women to maintain their silence.

The evidence clearly reveals “more than a mere showing that the victim had

confidence in the defendant,” see Brunson , 54 F.3d at 678; and “the position . . .

allow[ed] him to make the wrongs more difficult to detect.” See Custodio , 39

F.3d at 1126. We see no reason to disturb the enhancement for abusing a position

of public trust that significantly facilitated the commission or concealment of the

offense.

Next Mr. Roberts argues the more lenient 1992 version of the guideline,

which provides, “the position of trust must have contributed in some substantial

way to facilitating the crime and not merely have provided an opportunity that

could as easily have been afforded to other persons,” U.S.S.G. § 3B1.3 n.1,

should have been applied instead of the 1995 version which omitted this

language. But the district court ruled the sentence enhancement applicable under

either the 1992 or 1995 version of the Guidelines. See United States v.

Underwood , 938 F.2d 1086, 1088 (10th Cir. 1991) (“The court, at the time of

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sentencing, shall state in open court the reasons for its imposition of the particular

sentence.”) (quoting 18 U.S.C. § 3553(c)). We need not resolve the question of

which Guideline applies if the sentence falls within either Guideline range or the

sentencing judge holds the same sentence could have been imposed under either

Guideline. Cf. United States v. Urbanek , 930 F.2d 1512, 1516 (10th Cir. 1991)

(“Unless the district court makes it clear during the sentencing proceeding that the

sentence would be the same under either of the applicable Guideline ranges, we

are compelled to remand for resentencing when we find, as we do here, that an

improper offense level was applied.”) (following United States v. Bermingham ,

855 F.2d 925, 931-35 (2d Cir. 1988) (dispute about applicable Guidelines need

not be resolved where the sentence falls within either of two arguably applicable

Guideline ranges and the same sentence would have been imposed under either).

Finding no error, we affirm the district court’s application of the enhancement for

abusing a position of public trust.

VII.

We believe the district court properly premised jurisdiction on its legal

conclusion the locus of the alleged criminal offenses, the Tribal Complex, was

Indian Country for purposes of 18 U.S.C. § 1153. It then properly instructed the

jury the Tribal Complex was Indian Country and left to the jury the factual

question of whether the offenses occurred at the Tribal Complex. The district

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court did not misinterpret our remand instructions when it held an evidentiary

hearing and admitted testimony. Finally, neither prosecutorial conduct nor

sentencing merits reversal. For these reasons, we AFFIRM.

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