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United States v. Howe

United States District Court, D. New Mexico

September 30, 2019

FRANK HOWE, JR., Defendant.


         THIS MATTER comes before the Court upon Defendant's Motion to Dismiss For Lack of Subject Matter Jurisdiction, filed March 8, 2019 (Doc. 29), following an evidentiary hearing. Having reviewed the parties' pleadings and considered the applicable law, and having heard the testimony of witnesses and oral arguments of counsel, the Court finds that the United States has satisfied its burden of persuading this Court by a preponderance of the evidence that there is federal jurisdiction over this matter. Accordingly, Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction is DENIED.


         Defendant is charged with Aggravated Sexual Abuse, in violation of 18 U.S.C §§ 1153, 2241(a) and 2246(2)(A); Assault Resulting in Serious Bodily Injury, in violation of 18 U.S.C §§ 1153 and 113(a)(6); and Assault of an Intimate Partner by Strangulation, in violation of 18 U.S.C §§ 1153 and 113(a)(8). Each count in this matter is alleged to have occurred in Indian Country, and both Defendant and Victim Jane Doe are enrolled members of the Navajo Nation. The alleged crimes involve a sexual assault inside and outside Defendant's vehicle, and the question here is whether this Court has jurisdiction over the case.

         On May 7, 2018, Defendant was arrested after the Navajo Police came upon Defendant's Jeep vehicle that was heading south and had stopped near the intersection of Rock Springs Road and Highway 264 in Rock Springs, New Mexico in McKinley County. When law enforcement approached, Defendant was standing outside of the vehicle and Jane Doe was sitting on the ground. Both were on the right side (west side) of the vehicle. Ex. 1 (dash cam video, just past 35 min. mark); Exs. 11, 12 & 13.[1]

         To identify the location of the crime, Navajo law enforcement reviewed reports, photographs, video, and visited the scene to take GPS coordinates for the “point of incident” where the alleged crimes occurred. Aware that the events occurred near the boundary line to land that is Indian country, criminal investigators plotted coordinates of the location of the alleged offenses five separate times with recreational GPS devices. Ex. 16. The coordinates (WGS84 GPS Coordinates as Latitude N 35° 37' 28.39', Longitude W 108° 49' 47.09”) were provided to the Navajo Nation's Land Department, Division of Natural Resources, so that a land status determination could be made. It was first determined that the coordinates referred to a parcel of land in Rock Springs, New Mexico, with a legal description of Township 16 North, Range 19 West, Section 11, of the Southwest Quarter (“Section 11”). Section 11 is classified as Navajo Nation Fee Land, which means the Navajo Nation owns the land privately and that the Federal Government has no jurisdiction over this tract of land because it is not “Indian Country” as defined under 18 U.S.C.A. § 1151 Ex. 6.

         A later Amended Field Verification was done on April 4, 2019 (“April 2019 survey”) which superseded the earlier report and concluded that the land corresponding to the same GPS coordinates was in fact “Individual Indian Allotment” and therefore Indian Country. Doc. 34-1 (Govt's Ex. 1). The correct legal description of the land parcel was shown to be Township 16 North, Range 19 West, Section 10, of the Southeast Quarter (“Section 10”), which falls within Indian Allotment No. 1541, title to which is held by the United States in trust for individual Indians and is therefore considered “Indian Country.” See 18 U.S.C. § 1151(c) (“all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.”). Section 10 is immediately to the west of Section 11. For purposes of this case, there is no dispute that Section 10 is within land considered to be Indian Country while Section 11 is fee land owned outright by the Navajo Nation and thus, not land situated in Indian Country. Two main reasons were cited for the discrepancy between reports: (1) the April 2019 survey report used more sophisticated survey grade equipment rather than recreational GPS devices; and (2) the section corner marker that separated the east section from the west section had been missing at the time of the first report but was replaced by the time the April 2019 survey was done.


         Defendant does not dispute the coordinate numbers or that Section 10 is Indian Country but instead argues that the Government has not met its burden with respect to establishing that any of the alleged events occurred within Section 10 and in fact contends that all of the alleged offense conduct occurred in Section 11, which is not in Indian Country.

         I. Legal Standard

         The sole purpose of the hearing was to determine whether the court has jurisdiction over this case.

         It is well established that “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.” United States v. Antonio, 2019 WL 4180406 (10th Cir. Sept. 4, 2019) (D.C. NO. 1:16-CR-01106-JMC-1) (D.N.M.) citing United States v. Roberts, 185 F.3d 1125, 1139 (10th Cir. 1999) (“the issue of what constitutes Indian Country is a matter for the judge and not the jury”); see also States v. Levesque, 681 F.2d 75, 78 (1st Cir. 1982) (holding that the question of land status is “a jurisdictional fact susceptible of determination without reference to any of the facts involved in determining defendants' guilt or innocence”). See also 10th Cir. Pattern Instr. 2.52, 2.53, 2.54 (2018) (“You are instructed that the alleged murder occurred within the [territorial] [special maritime] jurisdiction of the United States, if you find beyond a reasonable doubt that such offense occurred in the location described in the indictment”). In a criminal prosecution under 18 U.S.C. §§ 1152 or 1153, the Court determines its jurisdiction based on facts established by a preponderance of the evidence. See United States v. Bustillos, 41 F.3d 931, 933 (10th Cir. 1994) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). As a result, the Government has the burden of persuasion that this Court has jurisdiction over the case. See McNutt, 298 U.S. at 189.

         The Government further contends that there is federal jurisdiction over this case if any part of the alleged offense occurred in Section 10, and that federal jurisdiction is absent only if all of the alleged events took place in Section 11, which is land owned by the Navajo Nation and is considered private land. The Government acknowledges that the jurisdictional and unique factual issues presented in this case appear to be of first impression for this district and the Tenth Circuit Court of Appeals, but the Government provides case precedent from other jurisdictions that have found that federal jurisdiction exists over criminal offenses that occur only partially within Indian country or within the special maritime or territorial jurisdiction of the United States[2] all of which this Court considers to be persuasive authority. For example, in Leonard v. United States, the defendant attacked his rape victim on an air force base (federal jurisdiction), stabbed her with a screwdriver, forced her into an automobile and then drove off to a motel near the base (state jurisdiction) where the actual rape occurred. 500 F.2d 673 (5th Cir. 1974). The Fifth Circuit affirmed federal jurisdiction, finding that “the element of force employed by [the defendant] to achieve his purpose began on federal lands and continued to the consummation of the crime at a site off the Air Force Base.” Id. at 674-75. The Fifth Circuit also affirmed federal jurisdiction in another case involving aliens who were charged with smuggling heroin in the United States, Rivard v. United States, where the conspiracy was formed outside of the country but several of the overt acts were committed in furtherance of the conspiracy within the United States by a co-conspirator. 375 F.2d 882 (5th Cir. 1967). The Seventh Circuit specifically addressed the issue of jurisdiction where any portion of a crime occurred in Indian Country. In U.S. v. Torres, the Seventh Circuit found that federal jurisdiction existed where a major portion of a conspiracy to “get rid of” the victim occurred in Indian country, even though the plan was initiated and the victim was actually abducted off Indian country land. 773 F.2d 449, 459-60 (7th Cir. 1984).[3]

         The Government also refers to a Tenth Circuit case that did not concern Indian country jurisdiction, but is still relevant to the jurisdictional question. In Swisher v. Moseley, the Tenth Circuit affirmed military court-martial (federal) jurisdiction to hear charges against a servicemen involving interstate transportation of a stolen vehicle even though crossing of the state line occurred off post. 442 F.2d 1331 (10th Cir. 1971). The court noted that in the federal civilian courts “an offense may be prosecuted in the district where it was begun, continued, or completed.” Id. In the briefing in this case, Defendant offered no case authority holding that all of an alleged offense must occur within Indian country for federal jurisdiction to exist. At the hearing, defense counsel attempted to factually distinguish those cases by pointing out that in those cases, the entire bodies of the defendant and the victim were completely inside or outside Indian country, where in the instant case there may be only certain body parts which remained inside of Indian country. The Court is not persuaded by this argument, since the evidence presented at the hearing does not suggest that jurisdiction rides on such a narrow margin of error.

         Therefore, federal jurisdiction will be found to exist if the preponderance of the evidence shows that all or some of the alleged offense took place in Section 10 which is Indian Country. A jury must still decide the question of whether the alleged crime(s) actually occurred within the site identified in the indictment.

         II. Evidence and Testimony

         Parties have stipulated that Section 10 is Indian country; that the boundary line between Section 10 and Section 11 is true and correct; and that the point of incident GPS coordinates (WGS84 GPS Coordinates as Latitude N 35° 37' 28.39', Longitude W 108° 49' 47.09) accurately indicate where the alleged offense occurred. However, Defendant maintains that the Government has not shown that any of the alleged events occurred within Section 10. The Government presented witnesses Samantha Yazzie and Alvernon Tsosie, who are both Navajo Nation Criminal Investigators; and Calvin Wayne Murphy, Bureau of Indian Affairs (“BIA”) Realty Specialist. Defense witnesses were Kyle Spolar, Surveyor and Karina Titus who is an Investigator for the Federal Public Defender. The Parties stipulated to the qualifications of their respective witnesses for purposes of the hearing on Defendant's Motion to Dismiss.

         A. Testimony by Navajo ...

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