Adam Joseph King v. United States

In the Tenth Circuit, prosecutions brought in Indian country under 18 U.S.C. § 1152 have a special requirement. The United States must prove, as an element of the offense, that the defendant and alleged victim have differing statuses; one must be an Indian person, and the other must be a non-Indian person. Under Tenth Circuit law, a person is an Indian if two requirements are met. First, they must have some degree of Indian blood. Second, they must be recognized as an Indian by either the federal government or a federally-recognized Indian tribe. Mr. King was convicted after a jury determined he was a non-Indian person and his alleged victim, M.V., was an Indian person. However, M.V. was not an enrolled member of a tribe at the time of the offense. In concluding that the evidence was sufficient to prove M.V. was recognized as an Indian at the time of the offense, the Tenth Circuit relied upon events that occurred after the conclusion of the conduct serving as the basis of the charge. Specifically, the Tenth Circuit considered the Cherokee Nation’s after-the-fact holding of guardianship proceedings for M.V., her after-the-fact tribal enrollment, and that M.V. held herself out to be an Indian while testifying at trial. The questions presented are:

1. Whether an element of a crime, which concerns the victim’s status at the time of the offense, may be satisfied by events occurring separately after the charged conduct concluded.

2. Whether the test for Indian status should be resolved solely by determining if an individual is an enrolled member of a federally-recognized tribe.

3. Whether a multiplicitous indictment prejudices a defendant, and requires an election of charges, when the multiplicitous nature of the indictment prevents the defendant from raising a defense as to a particular element.