206 F.3d 960 (10th Cir. 2000)
UNITED STATES OF AMERICA, Plaintiff-Appellee,v.RICCO PRENTISS, Defendant-Appellant.
No. 98-2040
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
February 24, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. D.C. No. CR-97-344-JC[Copyrighted Material Omitted]
Kevin K. Washburn, Assistant United States Attorney (John J. Kelly, United States Attorney, with him on the brief), Albuquerque, New Mexico for Plaintiff-Appellee.
Michael A. Keefe, Assistant Federal Public Defender, Albuquerque, New Mexico for Defendant-Appellant.
Before BALDOCK, HENRY, and LUCERO, Circuit Judges.
HENRY, Circuit Judge.


1
On November 23, 1996, a jury found the defendant, Ricco Prentiss, guilty of one count of arson in violation of 18 U.S.C. §§ 81 and 1152. In this appeal, Mr. Prentiss raises the following six arguments: (1) the district court lacked subject matter jurisdiction because the government failed to allege or establish, as a prerequisite to federal jurisdiction, the Indian or non-Indian status of the defendant and victim; (2) the indictment was insufficient because it failed to allege his Indian or non-Indian status and the Indian or non-Indian status of the victim; (3) there was insufficient evidence in this case to support his conviction because the government failed to prove the Indian or non-Indian status of the defendant or victim; (4) the district court erroneously allowed the government to mischaracterize evidence and appeal to gender bias in closing arguments; (5) the district court erred in giving an Allen instruction that did not refer to the government's burden of proof; and (6) the district court erred when it required Mr. Prentiss to pay restitution for the burned dwelling.


2
We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and find that Mr. Prentiss's indictment was insufficient because it failed to allege the Indian or non-Indian status of the defendant and victim, essential elements of a conviction for arson under 18 U.S.C. §§ 81 and 1152. Because the conviction was based upon an indictment which failed to allege an essential element, it violated Mr. Prentiss's Fifth Amendment right to be tried upon charges found by a grand jury. Accordingly, we vacate Mr. Prentiss's conviction.

1.	BACKGROUND

3
Mr. Prentiss and his wife of seven years, Cynthia Dorame, lived in a home owned by Domingo Vigil. In the early morning hours of November 23, 1996, firefighters responded to a fire at Mr. Vigil's house, located on the Tesuque Indian Pueblo in Indian country. When firefighters arrived on the scene, Mr. Prentiss was home caring for his three young children and the two children of a family friend, Karen Cata. Eventually, the fire was extinguished.


4
Immediately upon extinguishing the fire, the firefighters became suspicious about its origin. Testimony established that in basic firefighting courses, a firefighter learns that one rarely finds fires in multiple locations within a single building. See Rec. vol. III, at 166. In this case, firefighters encountered two "virtually identical" fires in the closets of two separate, non-adjacent back bedrooms. Id. Each fire consisted of a pile of clothing approximately two-and-a-half feet high with flames flickering one-and-a-half feet in height. The fires burned only on the surface of the piles of clothing, so firefighters concluded that no accelerant had been used.


5
Upon further investigation, firefighters discovered additional suspicious circumstances regarding the cause of the fire. They noticed a hole in the wall of a hallway, approximately four to five feet above the floor and directly above an electrical wall outlet. See id. at 175, 266. Immediately above the hole, a line of soot extended toward the ceiling. The fire investigator testified that the line of soot evinced direct flame impingement, as though someone had held a series of matches in the hole. See id. at 273-75. The electrical wall outlet below the hole also showed evidence of soot patterns reflecting flame impingement. See id. at 270-71. Fire investigators found several burned matches in the wall on top of the electrical outlet box. See id. at 176, 273-75. The outlet showed no sign of the sparking and arcing that one would have expected had the electrical socket itself failed. See id. at 274-75.


6
After the fire was extinguished, Mr. Prentiss made several inconsistent statements to firefighters. For example, the government presented evidence that Mr. Prentiss told fire investigators that he was watching a boxing match on HBO immediately before the fire. See Rec. vol. III, at 177, 228. However, records from HBO revealed that the boxing match had ended approximately two hours before the fire was reported. See id. at 178, 314-15.


7
Mr. Prentiss was indicted for one count of arson on June 4, 1997, and the case went to trial on October 30, 1997. At trial, the government argued that Mr. Prentiss attempted to start a fire in the wall socket and disguise it as a problem in the house's electrical system, and that, failing at this attempt, he started fires in the closets.


8
At the close of the government's case-in-chief, the parties stipulated that Mr. Vigil's home was located within the exterior boundaries of the Tesuque Indian Pueblo, north of Santa Fe, New Mexico, and that Mr. Vigil was a member of the Tesuque Pueblo. The court read the following stipulations to the jury:


9
[1.] The residence located at Route 11, Box 50 TP Tesuque Pueblo, New Mexico, [at] which [the] Defendant Ricco Devon Prentiss resided on November 22 and 23, 1996, is within the confines of the Tesuque Pueblo in Indian Country.


10
[2.] [T]he above described residence [is] owned by Domingo Vigil who is a member of the Tesuque Pueblo.


11
Id. at 327.


12
After the defense presented its case, arguing that one of the children started the fires, the jury heard closing arguments. The government asked the jury to infer that Mr. Prentiss's motive for committing arson was his frustration with the lack of control over his own life. Mr. Prentiss, the government urged, burned the house because of this frustration and to elicit attention. See Rec. vol. IV, at 520-23.


13
The case was submitted to the jury at the conclusion of the two-day trial. After approximately seven hours of deliberation over two days, the jury indicated it would be unable to reach a unanimous verdict. See Rec. vol. I (Pleadings), doc. 49. The district judge conferred with counsel, then gave the jury an Allen charge, instructing the jury to continue with deliberations (without surrendering honest conviction) and attempt to arrive at a verdict. See Rec. vol. I (Trial Transcript), at 4-6; Allen v. United States, 164 U.S. 492 (1896). After over an hour of continued deliberation, the jury returned a verdict of guilty.

II. ANALYSIS

14
Mr. Prentiss presents his first two arguments--lack of subject matter jurisdiction and sufficiency of the indictment--as separate issues. However, the underlying assertion is the same for each issue: the indictment failed to allege Mr. Prentiss's Indian or non-Indian status and the Indian or non-Indian status of the victim, which are necessary elements for his federal arson conviction under 18 U.S.C. § 1152.1 Accordingly, we will treat Mr. Prentiss's challenges together as a challenge to the sufficiency of the indictment.

A. Sufficiency of Indictments Generally

15
We review a challenge to the sufficiency of an indictment de novo. See United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir. 1997). Rule 7(c)(1) of the Federal Rules of Criminal Procedure provides "[t]he indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." Under this rule, "[c]onvictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused[, and] [t]his has been a salutary development in the criminal law." Russell v. United States, 369 U.S. 749, 763 (1962). However, "the substantial safeguards to those charged with serious crimes cannot be eradicated under the guise of technical departures from the rules." Id.


16
Accordingly, we have held that "[a]n indictment is sufficient if it contains the elements of the offense charged, putting the defendant on fair notice of the charges 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) (quotations omitted). Focusing on the issue disputed in this case, "[a] criminal conviction will not be upheld if the indictment upon which it is based does not set forth the essential elements of the offense." United States v. Gayle, 967 F.2d 483, 485 (11th Cir. 1992) (en banc); United States v. Brown, 995 F.2d 1493, 1505 (10th Cir. 1993). This requirement serves two fundamental functions:


17
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.


18
Gayle, 967 F.2d at 485; see also United States v. Hooker, 841 F.2d 1225, 1230 (4th Cir. 1988) ("The requirement of notice derives from the defendant's Sixth Amendment right to be informed of the nature and cause of the accusation . . . . [The requirement of the] inclusion of all elements . . . derives from the Fifth Amendment, which requires that the grand jury have considered and found all elements to be present."); United States v. Radetsky, 535 F.2d 556, 562 (10th Cir.) (holding that a sufficient indictment "is of paramount importance" and "required . . . to avoid [a] conviction on facts not found, or perhaps not even presented to, the grand jury that indicted [the defendant]"), cert. denied, 429 U.S. 8201 (1976), overruled in part on other grounds, United States v. Daily, 921 F.2d 994, 1004 & n.11 (10th Cir. 1990); U.S. Const. amend. V ("No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury."); U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation.").


19
Narrowing the inquiry to the Fifth Amendment,


20
it is not enough that the grand jury concludes that the defendant should be prosecuted for violating a particular statute; rather, the indictment must also allege every element of the offense. Only in this way is any assurance furnished that the grand jury found probable cause to believe that the defendant in fact committed acts constituting the offense in question.


21
United States v. Deisch, 20 F.3d 139, 145-46 (5th Cir. 1994).


22
To be sufficient, an indictment must allege each material element of the offense; if it does not, it fails to charge that offense. This requirement stems from one of the central purposes of an indictment: to ensure that the grand jury finds probable cause that the defendant has committed each element of the offense, hence justifying a trial, as required by the Fifth Amendment.


23
United States v. Cabrera-Teran, 168 F.3d 141, 143 (5th Cir. 1999) (emphasis added). The omission of an element is "such a critical omission" that the Federal Rules of Criminal Procedure require it to "be noted by an appellate court sua sponte." Brown, 995 F.2d at 1504 (citing United States v. Meacham, 626 F.2d 503, 509 (5th Cir.1980) (stating that the language of Fed. R. Crim. P. 12(b)(2) requires that failure of indictment to charge an offense be noticed by district courts and appellate courts sua sponte)); see also United States v. Shoup, 608 F.2d 950, 960 (3d Cir. 1979) (stating the general rule that courts must notice an indictment's defect in failing to charge a federal offense as jurisdictional).


24
Mr. Prentiss challenges the sufficiency of his indictment after a jury found him guilty of arson. "[A]fter a verdict or plea of guilty, every intendment must be indulged in support of the indictment or information and such a verdict or plea cures mere technical defects . . . ." Clay v. United States, 326 F.2d 196, 198 (10th Cir. 1963). "[W]here there is a post-verdict challenge to an indictment asserting the absence of an element of the offense, it has been held the indictment will be sufficient if it contains 'words of similar import' to the element in question." United States v. Brown, 995 F.2d at 1505 (quoting United States v. Vogt, 910 F.2d 1184, 1201 (4th Cir. 1990)). However, even if challenged after a verdict, "the failure of the indictment to allege all the essential elements of an offense . . . is a jurisdictional defect requiring dismissal, despite citation of the underlying statute in the indictment." Id. (citing United States v. Crockett, 812 F.2d 626, 629 & n.3 (10th Cir. 1987)). This type of fundamental defect cannot be cured by the absence of prejudice to the defendant or a jury instruction.2


25
Reviewing the indictment in this case, the government does not argue that the indictment contains "words of similar import," Brown, 995 F.2d at 1505, and we see no possible interpretation that the Indian status of the defendant and victim appear in any form in the body of the indictment. In fact, the indictment fails to allege a victim altogether, let alone the Indian status of the victim. Therefore, the issue is whether the Indian status of the defendant and victim are essential elements under 18 U.S.C. § 1152.


26
For the reasons set forth below, we hold that the Indian status of the defendant and victim are essential elements under 18 U.S.C. § 1152, which must be alleged in the indictment and established by the government at trial. Because Mr. Prentiss's indictment did not allege these elements, it is insufficient. Mr. Prentiss was, therefore, deprived of his Fifth Amendment right to a grand jury finding of all elements of the charged offense.


27
B.	The Indian Status of the Defendant and Victim are Essential Elements under 18 U.S.C. § 1152.


28
The statute at issue in this case is the "Indian Country Crimes Act," codified at 18 U.S.C. § 1152.3 This jurisdictional statute essentially makes a crime occurring within Indian country a federal crime only if the crime occurred between an Indian and a non-Indian; i.e., the crime must be what courts have termed "interracial."4 The statute states:


29
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, except the District of Columbia, shall extend to Indian Country.


30
This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.


31
18 U.S.C. § 1152. Further, contrary to the express language of the statute, the Supreme Court, interpreting the predecessor of the Indian Country Crimes Act,5 held in United States v. McBratney, 104 U.S. 621, 624 (1881), discussed infra, that a crime between two non-Indians was not a federal crime under 18 U.S.C. § 1152. Thus, 18 U.S.C. § 1152 generally applies only to interracial crimes; that is, crimes by a non-Indian against an Indian, or vice versa, that occur within Indian country.6


32
Federal criminal jurisdiction is limited by federalism concerns; states retain primary criminal jurisdiction in our system. See U.S. Const. amend. X. Accordingly, resolution of whether the Indian status of the defendant and victim are elements or exceptions requires an analysis of the interaction between 18 U.S.C. § 81, which defines the crime of arson under federal law, 18 U.S.C. § 7, which defines the special maritime and territorial jurisdiction of the United States, and 18 U.S.C. § 1152. Analyzing these federal criminal statutes, it is apparent that, in order to state a crime under 18 U.S.C. § 1152, the government must allege more than that the crime occurred within Indian country.


33
Title 18 U.S.C. § 81, the statute under which Mr. Prentiss was charged, makes it a crime, "within the special maritime and territorial jurisdiction of the United States . . . [to] willfully and maliciously set[] fire to or burn[], or attempt[] to set fire to or burn any building." Under this statute, the fact that the crime occurred within the jurisdiction of the United States is an element of the crime that must be alleged in the indictment and established at trial.


34
Generally, 18 U.S.C. § 7, which defines the special maritime and territorial jurisdiction of the United States, provides the specific jurisdictional element the government must allege and prove in order to establish federal jurisdiction. Accordingly, under § 7, the government must establish the essential jurisdictional element, e.g., that the federal crime occurred in a federal prison or on a federal military installation. See United States v. Roberts, 185 F.3d 1125, 1139 (10th Cir. 1999) (citing United States v. Hernandez-Fundora, 58 F.3d 802, 812 (2d Cir. 1995) (assault in a federal prison); United States v. Warren, 984 F.2d 325, 327 (9th Cir. 1993) (assault on a military installation)). While the court may determine, as a matter of law, the existence of federal jurisdiction over a geographic area, whether the locus of the offense is within that area is an essential element that must be resolved by the trier of fact. See id.


35
However, Indian country is not simply a "place within the sole and exclusive jurisdiction of the United States," and 18 U.S.C.§ 7 does not extend federal jurisdiction to crimes committed in Indian country. See, e.g., United States v. Wheeler, 435 U.S. 313, 324 (1978) ("statutes establishing federal criminal jurisdiction over crimes involving Indians have recognized an Indian tribe's jurisdiction over its members"); United States v. McBratney, 104 U.S. 621, 624 (1881) (holding that jurisdiction of a crime committed in Indian country between two non-Indians was state rather than federal crime); Draper v. United States, 164 U.S. 240 (1896) ("the reservation was not within the sole and exclusive jurisdiction of the United States, as the indictment fails to charge that the crime was committed by an Indian"). Congress, had it wanted to extend federal criminal jurisdiction to Indian country, could simply have amended 18 U.S.C. § 7 to include Indian country. Instead, Congress exercised "broad respect for tribal sovereignty, particularly in matters affecting only Indians" and limited federal jurisdiction over Indian country to interracial crimes. Cohen, supra note 3, at 290.


36
Although the first paragraph of § 1152 appears to broadly grant complete and exclusive federal jurisdiction over Indian country, the coverage of § 1152 is far more limited than the first paragraph suggests. For crimes involving Indians, Congress was forced to consider the competing interests of three sovereigns--the United States, the Indian tribes, and the states. Thus, respecting tribal sovereignty, Congress extended federal jurisdiction under § 1152 only to areas it believed implicated its own sovereignty, leaving state sovereignty matters to the states and tribal sovereignty matters to the tribes.


37
These concerns are reflected by the Supreme Court's holding in United States v. McBratney, 104 U.S. 621 (1881). In McBratney, contrary to the language of the statute, the Supreme Court held that a crime between two non-Indians in Indian country was not a federal crime under the predecessor of 18 U.S.C. § 1152. See id. at 624. The Court paid little attention to the text of the predecessor to § 1152, relying instead on the interplay between state sovereignty vis a vis the federal government and the Indian tribes. In addition to sovereignty concerns, later cases suggest that, as the federal government is considered the guardian of the Indian tribes, the non-ward status of a non-Indian defendant and victim divests the federal government of any interest in their prosecution or protection, despite the occurrence of the crime in Indian country.7


38
Accordingly, under § 1152, contrary to the language of the statute but consistent with constitutional, sovereignty, and trustee concerns, crimes within Indian country that did not involve an Indian are, therefore, state crimes, see, e.g., McBratney, 104 U.S. 621, crimes between an Indian and a non-Indian are federal crimes, and crimes exclusively between Indians are, with some exception, matters of tribal law rather than state or federal law.8


39
Thus, unless the arson occurred both (1) within Indian country, and (2) between an Indian and a non-Indian, it is not a crime under federal law and the federal courts have no jurisdiction to hear the case. The government must allege and prove more than simply that the crime occurred within Indian country; otherwise, "there can be no federal crime." Hugi v. United States, 164 F.3d 378, 381 (7th Cir. 1999) (explaining the nature of jurisdictional elements in relation to subject matter jurisdiction and stating "that proof of [a jurisdictional element] is no different from proof of any other element of a federal crime"). Accordingly, we hold that the Indian status of the defendant and victim are essential elements of a crime under 18 U.S.C. § 1152 that must be alleged in the indictment and proven at trial.


40
This holding is consistent with the Supreme Court's historical treatment of 18 U.S.C. § 1152 in cases stating that the government must prove the Indian status of the defendant and victim. The Supreme Court has referred in passing to the Indian status of the defendant and victim as "exceptions." However, when specifically speaking to the issue, the Court has expressly stated that the government has the burden of proving the Indian status of the defendant and victim.


41
For example, in Smith v. United States, 151 U.S. 50, 55 (1894), the Supreme Court, interpreting the predecessor of 18 U.S.C. § 1152, stated "[t]hat [the victim] was a white man and not an Indian was a fact which the government was bound to establish." Similarly, in Lucas v. United States, 163 U.S. 612, 617 (1896), the Court again stated that "[t]he burden of proof was on the government to sustain the jurisdiction of the court by evidence as to the [Indian] status of the deceased, and the question should have gone to the jury as one of fact and not of presumption." Other cases suggest that when a crime occurs in Indian Country, the Indian status of the defendant and victim must be alleged in the indictment because it is an indispensable element of jurisdiction. See, e.g. Westmoreland v. United States, 155 U.S. 545, 548-49 (1895) (holding that allegations the defendant was a white man and not a citizen of the Indian Territory sufficiently negated the applicability of the statutory exceptions); Pickett v. United States, 216 U.S. 456, 458 (1910) ("The averments of the indictment make it plain that the crime charged was committed within . . . Indian country, not within any State [Oklahoma Indian Territory before statehood] . . . [and] also averred that the plaintiff in error was . . . not an Indian, and the person slain . . . not an Indian, the exceptions made by [the predecessor of § 1152] do not apply."); United States v. Kagama, 118 U.S. 375, 376 (1886) ("The indictment sets out in two counts that [the defendant] . . . an Indian, murdered . . . another Indian, . . . within the limits of the Hoopa Valley Reservation, and it charges [the co-defendant], also an Indian, with aiding and abetting in the murder.").


42
Relying on these cases, circuit courts have held that the Indian status of the defendant and victim are essential elements that must be alleged in the indictment. For example, in United States v. Torres, 733 F.2d 449, 454 & n.1 (7th Cir. 1984), the appellants, both enrolled in the Menominee Indian Tribe, were indicted for conspiracy to commit murder under 18 U.S.C. §§ 1117 and 1152. The indictment alleged that the victim, Thomas Peterson, was a "non-Indian." Id. at 458. Appellants challenged their convictions, arguing that the district court erred in failing to instruct the jury that it must find the non-Indian status of the victim. However, because the appellants failed to object to the jury instructions at trial, the court reviewed their claim for "plain error." Id.


43
The court held that "[i]n order to prosecute under 18 U.S.C. § 1152, the Government must prove, as a jurisdictional requisite, that the crime was in violation of a federal enclave law, and that the crime occurred between an Indian and a non-Indian within Indian country." Id. at 454. Specifically, the court ruled "it is apparent that for purposes of 18 U.S.C. § 1152, the jury must determine, as a question of fact, the victim's status as an Indian or non-Indian." Id. at 457. The court noted past confusion about whether the Indian status of the defendant and victim are elements, and corrected its past reference to the Indian status of the defendant and victim as defenses:


44
In United States v. Sosseur, 181 F.2d 873, 875 (7th Cir. 1950), this court referred to the three exceptions contained in the second paragraph of 18 U.S.C. § 1152 as "defenses." Though the use of the term "defenses" appears to confuse the burden of proof on the issue of non- Indian status under 18 U.S.C. § 1152, the court cleared that confusion when it later, in the same opinion, referred to the three exceptions as "three conditions." Indeed, for purposes of 18 U.S.C. § 1152, the Government must satisfy the first "condition" and prove that the "crime was interracial." F. Cohen, Handbook of Federal Indian Law, 301 n.157 (1982). See also United States v. Wheeler, 435 U.S. at 324-25, 98 S.Ct. at 1086-87.9


45
Similarly, in United States v. Heath, 509 F.2d 16, 20 (9th Cir. 1974), the Ninth Circuit recognized the jurisdictional aspect of the parties' Indian or non-Indian status under 18 U.S.C. § 1152. Noting the requirement that jurisdiction be alleged in an indictment, the court "conclude[d] that terming the victim an 'enrolled member of the Warm Springs Indian Tribe' [in the indictment] was sufficient for purposes of alleging Federal jurisdiction pursuant to 18 U.S.C. § 1152." Cf. United States v. James, 980 F.2d 1314, 1317 (9th Cir. 1992) (stating that, for purposes of a conviction under § 1153, "the indictment should have contained allegations that [the defendant] was an Indian and that the victim was an Indian. The fact that both [the defendant] and the victim were Indians was established in the grand jury proceeding and at trial beyond a reasonable doubt."); United States v. Harris, No. 90-5028, 1992 WL 33210 at *3 (10th Cir. Feb. 21, 1992) (unpublished decision) (holding indictment, which incorrectly referenced § 1153 instead of § 1152, was sufficient where "[t]he indictment charged that the victims were each Osage Indians, and that the murders had been committed on an Osage Indian allotment").


46
Further, the conclusion that the Indian status of the defendant and victim are essential elements of a § 1152 conviction is consistent with other federal criminal statutes which have essential jurisdictional elements. See, e.g., United States v. Spinner, 180 F.3d 514, (3d Cir. 1999) (vacating conviction for access device fraud, because indictment failed to allege interstate commerce element of offense and was, therefore, jurisdictionally defective); United States v. Lindsay, 184 F.3d 1138, 1141 (10th Cir. 1999) (reversing federal bank fraud conviction for lack of proof that bank was FDIC insured, because proof of FDIC insurance "is an essential element of bank fraud"); United States v. McGuire, 178 F.3d 203, 205 (3d Cir. 1999) ("[A]n essential element of the crime of arson under § 844(i) is that the property was used in any activity affecting interstate or foreign commerce. This jurisdictional element, like all other elements of any criminal offense, must be established beyond a reasonable doubt."); United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998) (finding indictment for conspiracy to commit robbery in violation of Hobbs Act sufficient where it contained the necessary elements of the offense, specifically including that the robbery affected interstate commerce and further noting that the grand jury was presented proof on every element of the charged Hobbs Act offense, including the jurisdictional element); United States v. Schultz, 17 F.3d 723, 725 (5th Cir. 1994) ("As this Court has repeatedly and consistently stated, proof of FDIC insurance is not only an essential element of the bank fraud and false statement crimes, but it is also essential for the establishment of federal jurisdiction."); United States v. Tanner, 471 F.2d 128, 140-41 (7th Cir. 1972) ("The Government must show that the destruction of the [vessel] occurred either upon the 'high seas' or upon any other body of water that is both within the United States' admiralty and maritime jurisdiction and without the jurisdiction of any particular state."). But see United States v. Coleman, 656 F.2d 509, 511 (9th Cir. 1981) (while not addressing Fifth amendment presentment issue, affirming bank robbery conviction where indictment listed the underlying federal statute but did not allege that the bank's deposits were insured by the F.D.I.C., because the defendant was "appraised of this essential element of the offense," "was not prejudiced by the wording of the indictment," and "inclusion in [the indictment] of the statutory citation provides a means by which a defendant can inform himself of the elements of the offense").


47
The government argues that if it is required to prove the Indian status of the defendant, the requirement would "abruptly halt almost all prosecutions of non-Indians who commit crimes against Indians in Indian country." Aple's Br. at 7. It contends that the government will be in the "untenable, if not impossible, position of having to prove a negative beyond a reasonable doubt." Id. We are not persuaded by this argument. Our review of the cases suggests that the government typically alleges and proves the inter-raciality of the offenses charged and tried under § 1152. Such a review also reveals a substantial history of successful prosecutions pursuant to the statute. Where the indictments contain the Indian status of the defendant and victim, prosecutions within Indian country have not "abruptly hault[ed]." See, e.g., United States v. Romero, 136 F.3d 1268, 1269 (10th Cir. 1998) (noting that "the indictment [under § 1152] . . . expressly alleged that [the defendant] was an Indian, that his victims were non-Indians, and that the crime occurred in Indian Country").


48
Aside from the fact that the indictment in this case fails to allege the Indian status of both the defendant and the victim, the government's argument implies that the prosecution is never required to prove a negative. However, the government is, on occasion, required to prove a negative at trial. See, e.g., 8 U.S.C. § 1326 (criminalizing the re-entry into the United States after deportation and thereby requiring the government to prove a negative: that the defendant did not receive permission to re-enter the United States from the Attorney General); United States v. Martinez-Morel, 118 F.3d 710, 712 (10th Cir. 1997) (stating the elements that the government must prove in order to establish a § 1326 violation, including that the defendant was found in the United States "without the permission of the Attorney General").


49
We acknowledge that there is some support for the government's argument that the Indian status of the defendant and victim are exceptions to the federal court's jurisdiction, rather than elements. As the government notes, in United States v. Hester, 719 F.2d 1041 (9th Cir. 1983), the defendant was convicted of eleven counts of sexually related crimes involving pupils at a boarding school located within Indian country. The Indian Country Crimes Act, 18 U.S.C. § 1152, provided the federal jurisdictional basis for all the convictions. The indictment in the case alleged that the victim was an Indian and that the crime occurred within Indian country. However, it did not allege the Indian status of the defendant.


50
Relying on McKelvey v. United States, 260 U.S. 353 (1922), the Ninth Circuit held that the Indian status of the defendant was an exception and, as such, it need not be alleged in the indictment or proven at trial. In McKelvey, the Supreme Court held that an exception to a criminal statute need not be alleged in an indictment.


51
By repeated decisions it has come to be a settled rule in this jurisdiction that an indictment or other pleading founded on a general provision defining the elements of an offense, or of a right conferred, need not negative the matter of an exception made by a proviso or other distinct clause, whether in the same section or elsewhere, and that it is incumbent on one who relies on such an exception to set it up and establish it.


52
Hester, 719 F.2d at 104 (quoting McKelvey, 260 U.S. at 367). Thus, the court held that the first paragraph of § 1152 is the general provision defining the elements of the offense, and the second paragraph is a distinct clause containing exceptions--therefore, the Indian status of the defendant and victim are exceptions that do not have to be alleged in the indictment. Further, the court found that the holding of McKelvey, rather than the holdings of cases like Lucas and Westmoreland reflected the current view of the Supreme Court.


53
We would be guided by the Supreme Court's assumption in Westmoreland if we thought that it still represented the view of the Supreme Court, but we do not think that it does. We believe that the current view is more accurately reflected in McKelvey.


54
Hester, 719 F.2d at 104. Thus, applying McKelvey, the Ninth Circuit rejected the defendant's attack on the indictment. See id. at 1043.


55
Beyond McKelvey, the court cited a policy reason for reaching its conclusion. The court reasoned that "[i]t is far more manageable for the defendant to shoulder the burden of producing evidence that he is a member of a federally recognized tribe than it is for the Government to produce evidence that he is not a member of any one of the hundreds of such tribes." Id. at 1043.


56
We are not persuaded by the reasoning of Hester,10 and we decline to follow it in the present case for several reasons. First, § 1152 does not expressly state that the Indian status of the defendant and victim are "exceptions" to the courts' otherwiseexclusive federal jurisdiction. The statute's provision that the general laws of the United States apply "except as otherwise expressly provided by law," refers not to the second paragraph, which expressly confines federal jurisdiction to crimes committed between an Indian and a non-Indian. Rather, "[t]he purpose of the proviso is to make it clear that other, more specific Indian country criminal laws prevail over section 1152." United States v. Cowboy, 694 F.2d 1228, 1234 (10th Cir. 1982).


57
Second, a close reading of McKelvey reveals that it only holds that an exception need not be alleged in an indictment. It does not, however, provide any guidance on how to determine whether a fact is an element or an exception. McKelvey merely notes that an exception may be "in the same section or elsewhere."


58
Further, even accepting the court's presumption in Hester--that the location of the relevant language in a statute provides some guidance on whether a fact is an element or an exception--it is not dispositive of the issue.11 In order to determine whether a fact is an element or an exception, the court must determine if it is an essential ingredient of the crime. When the statutory definition is such that the crime may not be properly described without reference to the exception, then the exception constitutes an essential element of the offense. See United States v. Cook, 84 U.S. 168, 173-74 (1872). As the Supreme Court held in Cook:


59
Where a statute defining an offence contains an exception, in the enacting clause of the statute, which is so incorporated with the language defining the offence that the ingredients of the offence cannot be accurately and clearly described if the exception is omitted, the rules of good pleading require that an indictment founded upon the statute must allege enough to show that the accused is not within the exception . . . as it is universally true that no indictment is sufficient if it does not accurately and clearly allege all the ingredients of which the offense is composed.


60
(further noting that an indictment that does not allege "every ingredient . . . may be quashed on motion, or the judgment may be arrested, or be reversed on error").


61
Hester's formalistic statutory analysis, as well as references by other courts to the Indian status of the defendant and victim as "exceptions," neglects the complex considerations of sovereignty and guardianship Congress faced when drafting the statute. McKelvey addressed a simple situation where a "pleading [is] founded on a general provision defining the elements of an offense, or of a right conferred" with "the matter of an exception made by a proviso or other distinct clause." McKelvey, at 260 U.S. at 356. There was no apparent controversy over whether a fact was an element or an exception, let alone whether a fact was an essential jurisdictional element. See id.


62
Conversely, 18 U.S.C. § 1152 is a statute which is part of a complex jurisdictional scheme involving the interaction of three statutes: (1) 18 U.S.C. § 81, which defines what would be considered the "common law" elements of arson, adding a jurisdictional element, which is (2) generally defined in 18 U.S.C. § 7 but, in the context of a crime within Indian country, is (3) defined by 18 U.S.C. § 1152, with its tri-sovereignty and federal guardianship concerns. Statutes in pari materia must be construed with reference to each other, see Sullivan v. Finkelstein, 496 U.S. 617, 632 (1990), and it is the interaction of these statutes which reveals that the Indian status of the defendant and victim are elements rather than exceptions. Because the Indian status of the defendant and victim are indispensable to establishing federal jurisdiction in this statutory scheme, they must be alleged in the indictment and proven at trial.


63
Finally, we question Hester's policy of shifting the burden of production and requiring a criminal defendant to come forward with evidence of his Indian or non-Indian status because it is "uniquely within the defendant's knowledge." Such a burden shift in a criminal case raises Fifth Amendment questions. See Patterson v. New York, 432 U.S. 197, 215 (1977) (holding the government "must prove every ingredient of an offense beyond a reasonable doubt," and "it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense.") In any criminal case, there are important facts uniquely within the knowledge of the defendant; for example, the criminal "intent" or mental state of the defendant in any crime with a mens rea element, or, more concretely, whether a defendant was present at the scene of the crime, if there are no witnesses. Further, Hester's policy argument does not apply to the Indian status of the victim, a fact that is not uniquely within the defendant's knowledge and also not alleged in Mr. Prentiss's indictment.12


64
Considering these reasons, we decline to adopt Hester. Rather, we adopt the Seventh Circuit's approach in Torres and hold that the Indian status of the defendant and victim are essential elements under 18 U.S.C. § 1152 that must be alleged in the indictment and established by the prosecution at trial beyond a reasonable doubt. Accordingly, as Mr. Prentiss's indictment did not allege the Indian status of the defendant or victim and these elements do not otherwise appear by "words of similar import," we hold that the indictment is insufficient.

C. Harmless Error

65
The government argues that, assuming that the Indian status of the defendant and victim are elements, we need not reverse Mr. Prentiss's conviction because the omission of the elements was harmless. The government asserts that the error was harmless because the indictment's citation of 18 U.S.C. § 1152 fairly appraised Mr. Prentiss of the charges against him. Further, the government argues Mr. Prentiss waived his right to grand jury presentment by stipulating at trial that a victim, Mr. Vigil, was an Indian, thereby making it "an empty and formalistic exercise to send this case back to a grand jury to find probable cause" on this element. Aple's Br. at 27. Finally, the government argues that the defendant did not suffer any prejudice from the omission because, if the victim is an Indian as stipulated, then federal jurisdiction exists in any event: if the evidence established the defendant is not an Indian, there is federal jurisdiction under 18 U.S.C. § 1152; if the evidence established the defendant is an Indian, there is federal jurisdiction under 18 U.S.C. § 1153.13


66
We reject the government's harmless error argument. It is clear from our cases that the complete omission of an essential element of the crime--where the elements do not otherwise appear in the indictment by words of similar import, so that the indictment totally fails to allege a federal crime under any criminal statute--is a fundamental jurisdictional defect that is not subject to harmless error analysis. As the government correctly notes, "where there is a post-verdict challenge to an indictment asserting the absence of an element of the offense, it has been held the indictment will be sufficient if it contains 'words of similar import' to the element in question." United States v. Brown, 995 F.2d at 1505 (quoting United States v. Vogt, 910 F.2d 1184, 1201 (4th Cir. 1990)). However, even if challenged after the verdict, "the failure of the indictment to allege all the essential elements of an offense . . . is a jurisdictional defect requiring dismissal." Id.


67
We first addressed this issue in United States v. Smith, 553 F.2d 1239, 1240 (10th Cir. 1977). In Smith, the defendant was indicted under 18 U.S.C. § 2241, which defines "assault with intent to rob." Id. at 1240. However, the indictment charged the defendant with "attempted robbery." Id. Thus, the issue was "whether an assault with intent to rob . . . is adequately charged by an indictment alleging an attempt to rob." Id. at 1241.


68
The court held that the indictment was insufficient, vacating the judgment and verdict entered by the district court and rejecting the government's argument that the error was harmless.


69
Nor can we accept the government's contention that the defect in the . . . indictment was harmless since the evidence clearly established the commission of an assault in the case at bar and since there has been no showing of prejudice to the defendant . . . . [T]he absence of prejudice to the defendant does not cure what is necessarily a jurisdictional defect in the indictment.


70
Id. at 142 (emphasis added). Thus, the evidence submitted to the jury that the defendant committed an "assault with intent to rob," was irrelevant, because the necessary elements of the crime were never presented to a grand jury as required by the Fifth Amendment.


71
Again, in United States v. Brown, 995 F.2d 1493, 1505 (10th Cir. 1993), we addressed a similar situation. In Brown, the defendant was indicted pursuant to 21 U.S.C. § 856(a)(2), which requires that the prosecution establish that the defendant: (1) managed or controlled a building; (2) either as an owner, lessee, agent, employee, or mortgagee; and (3) knowingly and intentionally rented, leased, or made available for use for compensation, the building for the purpose of unlawfully storing, distributing, and using a controlled substance. See id. at 1504. The trial judge instructed the jury on the essential elements of the crime and the jury found the defendant guilty. The indictment, however, failed to allege the essential element that the defendant was an owner, lessee, agent, employee or mortgagee of the building in question.


72
On appeal, the government argued that the error was harmless because the defendant did not suffer any prejudice as a result of the omission. The court rejected this argument, holding that the "failure of the indictment to allege all the essential elements of an offense . . . is a jurisdictional defect requiring dismissal" and "[t]he absence of prejudice to the defendant does not cure what is necessarily a substantive, jurisdictional defect in the indictment." Id. at 1505; see also United States v. Spruill, 118 F.3d 221, 227 (4th Cir. 1997) ("It is well established . . . that failure to recite an essential element of the offense in the indictment is not amenable to harmless error review."); United States v. Peterman, 841 F.2d 1474, 1477 (10th Cir. 1988) (stating that, if an essential element is not charged in the indictment, "a defendant is required to answer to a charge that was not brought by a grand jury, thus violating the express language of the fifth amendment that '[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on the presentment or indictment of a Grand Jury'"); United States v. Hooker, 841 F.2d at 1232 (4th Cir. 1988) ("Neither instructions nor a petit jury verdict can satisfy after the fact the Fifth Amendment right to be tried upon charges found by a grand jury.").


73
These cases demonstrate that the failure to allege an essential element of a crime is a fatal error. While indictments first challenged after trial are reviewed under a more liberal standard, see Clay v. United States, 326 F.2d 196, 198 (10th Cir. 1963), that standard nevertheless requires that "the necessary facts appear in any form or by fair construction can be found within the terms of the indictment." United States v. Coleman, 656 F.2d 509, 511 (9th Cir. 1981) (quotation omitted); see also Brown, 995 F.2d at 1505 ("indictment will be sufficient if it contains words of similar import to the element in question" (quotation omitted)).


74
It is not "an empty and formalistic exercise to send a case back to a grand jury to find probable cause." Aple's Br. at 27. At common law, "the most valuable function of the grand jury was not only to examine into the commission of crimes, but to stand between the prosecutor and the accused, and to determine whether the charge was founded upon credible testimony or was dictated by malice or personal ill will." Hale v. Henkel, 201 U.S. 43, 59 (1906). Incorporated in the Fifth Amendment by the Founders, there is "every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor." Costello v. United States, 350 U.S. 359, 362 (1956). Applying harmless error analysis to the total omission of an essential element would allow the prosecution to circumvent the grand jury proceeding. The "'[d]eprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error.'" United States v. Spinner, 180 F.3d 514, 516 (3d Cir. 1999) (quoting Stirone v. United States, 361 U.S. 212, 217 (1960)).


75
Further, we reject the government's argument that, because a stipulation to a fact at trial acts as a waiver of the right to a trial by petit jury on the stipulated issue, it also acts as a retroactive waiver of the right to be charged only on facts presented to a grand jury. First, Mr. Prentiss did not stipulate to the Indian status of the defendant, thus the government's argument, even if correct, would not resolve this case. In any event, "[w]aiver of indictment is an act clothed in formality," and there is nothing in the record to suggest Mr. Prentiss was "informed of the nature of and the cause for the accusation" and waived his right to a grand jury "knowingly, intelligently and voluntarily." United States v. Ferguson, 758 F.2d 843, 850-51 (2d Cir. 1985).


76
Moreover, we have not found, nor does the government cite, a single case that suggests stipulating to a fact before a petit jury waives the right to be tried only on facts presented to the grand jury. Rather, the cases suggest that the evidence before the petit jury--whether overwhelming evidence of guilt as in Smith or a stipulation as in the present case--does not cure the complete omission of the element in the indictment, because if the element was not presented to a grand jury, there is "nothing for a petit jury to ratify." Hooker, 841 F.2d at 1232.


77
The government is correct that "by stipulating to elemental facts, a defendant waives his right to a jury trial on that element." Aple's Br. at 27 (quoting United States v. Mason, 85 F.3d 471, 472-73 (10th Cir. 1996)). However, the failure of the indictment to allege a federal crime cannot be cured by proof at trial by any means, because the petit jury cannot consider an element if it was not first presented to the grand jury and was alleged in the indictment. See Brown, at 1504. Mr. Prentiss's stipulation to the Indian status of the victim does not cure the fact that the grand jury did not consider the Indian status of both the defendant and the victim, as required by the Fifth Amendment. This constitutional right to be tried only on charges presented in an indictment returned by a grand jury is not subject to harmless error analysis.14 Accordingly, we reject the government's argument that the omission of the Indian status of the defendant and victim from the indictment was harmless.

III. CONCLUSION

78
For the reasons set forth above, we find that Mr. Prentiss's indictment did not allege the essential elements of the charged offense. Mr. Prentiss was, therefore, deprived of his Fifth Amendment right to be tried only on charges presented in an indictment returned by a grand jury. Accordingly, we VACATE Mr. Prentiss's arson conviction and remand the case for further proceedings. Because we reverse Mr. Prentiss's conviction based on the sufficiency of his indictment, we need not reach the other issues presented in his appeal.



Notes:


1
 His indictment states:
18 U.S.C. § 1152: Crime on an Indian Reservation;
18 U.S.C. § 81: Arson.
INDICTMENT
The Grand Jury charges:
On or about the 22nd and 23rd day of November, 1996, within the confines of the Tesuque Pueblo, in Santa Fe County, in the State and District of New Mexico, the Defendant, RICCO DEVON PRENTISS, did willfully and maliciously set fire and attempt to set fire to a dwelling.
In violation of 18 U.S.C. § 1152 and 18
U.S.C. § 81.
Rec. vol. I, doc 1.


2
 See id. at 1504-05. Brown's holding was not discussed two years later in United States v. Bolton, 68 F.3d 396, 400-01 (10th Cir. 1995). In Bolton, the court held that an indictment was valid even though it omitted an essential element, because the defendant was not prejudiced, the indictment cited the relevant statute, and the district court properly instructed the jury. See id.
We follow Brown because, to the extent that a more recent panel decision conflicts with the standard of review enunciated in prior Tenth Circuit authority, we are bound by the earlier case. See Clymore v. United States, 164 F.3d 569, 573 n.5 (10th Cir. 1999) (noting that the earlier opinion "'constitutes binding circuit precedent constraining subsequent panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court . . . . [Thus,] when faced with an intra-circuit conflict, a panel should follow earlier, settled precedent over a subsequent deviation therefrom.'" (quoting Haynes v. Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996) (internal citations omitted))).


3
 The Indian Country Crimes Act is also referred to as the "General Crimes Act" or the "Federal Enclaves Act of 1834." However, "[d]uring most of its history the statute has had no descriptive title." Felix S. Cohen's Handbook of Federal Indian Law 287, n.50 (Rennard Strickland, et al. eds. 1982) (hereinafter Cohen). More importantly, Cohen notes that the various descriptive titles of the statute should not "be read to mean that the Act applies to all crimes in Indian country." Id. Rather "the Act applies only in limited circumstances, principally to certain interracial crimes." Id.


4
 We note that it is technically inaccurate to refer to the jurisdictional limitation of § 1152 as an "interracial" requirement. "Federal regulation of Indian tribes . . . is governance of once-sovereign political communities; it is not to be viewed as legislation of a racial group consisting of Indians." United States v. Antelope, 430 U.S. 641, 646 (1977) (quotations omitted). Rather than being limited to interracial crime, which would raise Equal Protection concerns, the statute limits jurisdiction to "inter-sovereign" crimes between and Indian and a non-Indian. However, courts and scholars generally refer to the limitation as interracial. For the sake of consistency, we will also refer to the limitation as interracial, noting in this context the word interracial means "inter-sovereign" in that tribes are considered "'domestic dependent nations' that exercise inherent sovereign authority over their members and territories." Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir. 1997).


5
 The predecessor to § 1152, R.S. § 2145, provided:
Except as to crimes the punishment of which is expressly provided for in this Title [title 28], the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to Indian Country.
R.S. § 2146 stated:
The preceding section shall not be construed to extend to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.
In 1875, Section 2146 was amended to add further limit federal jurisdiction to "crimes committed by one Indian against the person or property of another Indian." Act of Feb. 18, 1875, ch. 80, 18 Stat. 316, 318. Sections 2145 and 2146 were later codified at 25 U.S.C. §§ 217, 218 (1926), then recodified at 18 U.S.C. § 1152 (1948). For an in depth account of the development and evolution of the statute, see United States v. Cowboy, 694 F.2d 1228, 1232-34 (10th Cir. 1982).


6
 We note that the statute places two additional limitations on federal court jurisdiction over Indian country. First, federal jurisdiction under this statute does not extend to any "Indian committing any offense in the Indian country who has been punished by the local law of the tribe." 18 U.S.C. § 1152. Second, federal jurisdiction does not extend to "any case where treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively." Id. However, as these limitations are not implicated under the facts of this case, we do not address them in this opinion.


7
 See Robert N. Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through A Jurisdictional Maze, 18 Ariz. L. Rev. 503, 525 n.102 (1976) (explaining the holding of United States v. Ramsey, 271 U.S. 467, 469 (1926)). In Ramsey, two white men were charged with murdering an Osage Indian within Indian country. See 271 U.S. at 468. Addressing the issue of federal jurisdiction, the Court stated:
The authority of the United States under § 2145 [the predecessor of § 1152] to punish crimes occurring within the State of Oklahoma, not committed by or against Indians, was ended by the grant of statehood. [citing McBratney and Draper]. But authority in respect of crimes committed by or against Indians continued after the admission of the state as it was before . . . in virtue of the long-settled rule that such Indians are wards of the nation in respect of whom there is developed upon the Federal Government 'the duty of protection, and with it the power.'
Id. at 469; see also Draper v. United States, 164 U.S. 240 (1896) (reversing federal murder conviction because, even though the crime occurred within Indian country, the crime did not occur between and Indian and a non-Indian); New York ex. rel. Ray v. Martin, 326 U.S. 496, 501(1946) (upholding state court conviction of a non-Indian for murder of a non-Indian within Indian country).


8
 The view that crimes between Indians within Indian country are exclusively tribal matters has, to a limited degree, changed. The Indian Major Crimes Act, 18 U.S.C. § 1153, extends federal jurisdiction over fourteen specific offenses committed by Indians in Indian country. The Indian Major Crimes Act "was passed in response to congressional displeasure over the Supreme Court's decision in Ex parte Crow Dog, [109 U.S. 556 (1883),] holding that neither the federal nor territorial courts had jurisdiction to try an Indian for murder of another Indian on a reservation." Cohen, supra note 3, at 300-01. Thus, there is some "duplication between the [Major Crimes Act] and the Indian Country Crimes Act in cases where an Indian is accused of one of the offenses listed in the Major Crimes Act against a non-Indian victim." Id. at 301. However, despite this change, "the original purpose [of § 1152] to respect tribal autonomy . . . remains." Id. at 290. More importantly, Cohen notes that unlike the Major Crime Act, "the Indian Country Crimes Act requires additional allegations and proof that the crime was interracial." Id. at 301, n.157 (emphasis added).


9
 Torres, 733 F.2d at 458 n.10. Ultimately, the court affirmed the convictions, finding that, under the totality of the circumstances, the district court did not plain error in failing to instruct the jury that it had to find that the victim was a non-Indian. In support of its holding, the court relied on the fact that (1) "the record contained ample evidence" of the victim's non-Indian status, (2) the district court overruled appellants' motion for a directed verdict challenging the sufficiency of the evidence of the non-Indian status of the victim, and (3) the jury was read the indictment, which referred to the victim as a non-Indian, immediately prior to deliberations.


10
 Hester may be of questionable precedential value, as other Ninth Circuit cases strongly suggest that the Indian and non-Indian status of the defendant and victim are jurisdictional elements that must be alleged in an indictment. Cf. United States v. Heath, 509 F.2d 16, 20 (9th Cir. 1974) ("[W]e conclude that terming the victim an 'enrolled member of the Warm Springs Indian Tribe' [in the indictment] was sufficient for purposes of alleging Federal jurisdiction pursuant to 18 U.S.C. § 1152"); United States v. James, 980 F.2d 1314, 1317 (9th Cir. 1992) (stating that, for purposes of a conviction under § 1153, "the indictment should have contained allegations that [the defendant] was an Indian and that the victim was an Indian and further noting that evidence of the Indian status of the defendant and victim had been presented to the grand jury).


11
 A legislature cannot, for example, define murder as the unlawful killing of another person and then shift the burden of proof to the defendant to establish that he did not act with malice aforethought, by the simple expedient of placing the element in a separate paragraph and calling it an exception, affirmative defense, or mitigating circumstance. See, e.g., Mullaney v. Wilbur, 421 U.S. at 684, 698, 703-04 (1975) (striking down a such a law).


12
 The government concedes that a "defendant does not have the same inherent advantages for establishing the status of the victim." Aple's Br. at 22 n.8. "As a practical matter, the government may be in a stronger position to obtain cooperation with the victim or the victim's family for the purpose of proving a victim's status, when relevant. It is reasonable then to require the government . . . to prove the status of the victim." Id. (emphasis in original).


13
 18 U.S.C. 1153 provides that:
Any Indian who commits against the person . . . of another Indian or other person any of the following [fourteen major] offenses . . . 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.
Thus, 18 U.S.C. § 1153 extends federal jurisdiction over Indian country for fourteen enumerated crimes (including Arson), but only if the crime is committed by an Indian.


14
 The dissent would apply the harmless error rule, recently expanded in Neder v. United States, 119 S. Ct. 1827, 1833 (1999), in which the Court held that failure to submit an element of an offense to a petit jury is subject to harmless error analysis. Like the Ninth Circuit in United States v. Du Bo, 186 F.3d 1177, 1180 & n.2 (9th Cir. 1999), we do not apply Neder to this case:
First, on its face, Neder applies to petit, not grand, juries. Second, an error in a petit jury instruction is "simply an error in the trial process itself," id. at ----, 119 S. Ct. at 1833 (quotation marks omitted), which can be assessed in the context of the trial. Conversely, errors in a grand jury indictment allow only a "guess as to what was in the minds of the grand jury at the time . . . ." See Russell v. United States, 369 U.S. 749, 770, 82 S. Ct. 1038, 8 L. Ed.2d 240 (1962). Third, the Court focused on whether an error in a petit jury instruction would "necessarily render a trial fundamentally unfair." Neder, --- U.S. at ----, 119 S. Ct. at 1833. In the insufficient indictment context, the fact that a defendant received a fair trial and suffered no prejudice is "irrelevant." United States v. Daniels, 973 F.2d 272, 275-76 (4th Cir. 1992).
186 F.3d at 1180 n.2.
The dissent rightly notes that in an unpublished disposition, the Ninth Circuit distinguished between indictments challenged at trial and those challenged on appeal. See United States v. Woodruff, No. 98-10358, 1999 WL 776213 at *1 (9th Cir. Sept, 16, 1999) (unpublished). Nevertheless, our own precedent, by which we are bound and with which we agree, does not allow for such a distinction. See Brown, 995 F.2d 1493; Smith, 553 F.2d 1239. We are reluctant to extend the Neder rule to the grand jury context until the Supreme Court so instructs us "or otherwise alters its grand jury jurisprudence." Du Bo, 186 F.3d at 1180 n.2.
Further, in a case decided after Neder, the Third Circuit rejected harmless error analysis when the indictment alleged the jurisdictional element in the second count, but failed to do so in the first. See United States v. Spinner, 180 F.3d 514, 515-16 (3d Cir. 1999). The Spinner court noted that the defect may be raised at any time, even by the court sua sponte, and reversed the conviction, despite that defendant's guilty plea.



79
BALDOCK, Circuit Judge, dissenting.


80
Today, the Court concludes that the Indian status of a defendant and victim are essential elements of the crime of arson under 18 U.S.C. §§ 81 & 1152, which the government must allege in the indictment and prove at trial. Court's Op. at 10. The Court then concludes that despite a defendant's failure to timely object to the indictment, the omission of these elements from the indictment "is a fundamental jurisdictional defect that is not subject to harmless error analysis." Court's Op. at 30. While the Court's former conclusion is arguable at best, its latter conclusion, in my opinion, is simply wrong given the recent trend of Supreme Court authority. Accordingly, I dissent.


81
As the Court duly notes, the Indian Country Crimes Act, 18 U.S.C. § 1152, provides for the prosecution of federal crimes, including arson, which non-Indians commit against Indians in Indian country. As one of three exceptions, the Act also provides that its coverage "shall not extend to offenses committed by one Indian against the person or property of another Indian." Id. In this case, the indictment alleged that Defendant set fire to a dwelling within the Tesuque Pueblo in violation of 18 U.S.C. §§ 81 &1152. The indictment alleged neither Defendant's nor the victim's Indian status. For the sake of brevity and because the Court acknowledges the conflicting authority on the issue, I am willing to assume without deciding at this point that the Indian status of a defendant and victim are elements of the crime of arson in Indian country under §§ 81 & 1152, (rather than affirmative defenses), and, consistent with the Fifth Amendment, should be alleged in the indictment.


82
Even so, I remain unconvinced that the Government's failure to specifically allege these elements in the indictment constitutes constitutional error "so intrinsically harmful as to require automatic reversal . . . without regard to . . . [its] effect on the outcome." Neder v. United States, 119 S. Ct. 1827, 1833 (1999). Rather, to determine whether the constitutional error in this case requires reversal, I would apply the harmless-error rule first established in Chapman v. California, 386 U.S. 18, 24 (1967), and recently reaffirmed in Neder, 119 S. Ct. at 1837: "Whether it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'"


83
Although Defendant has not waived his right to challenge the indictment, we must liberally construe the indictment in favor of validity because he failed to challenge its sufficiency in the district court. See United States v. Bolton, 68 F.3d 396, 400 (10th Cir. 1995). All trial participants must be encouraged to seek a fair and accurate trial the first time around. "The very limited resources of our judicial system require that such challenges be made at the earliest possible moment in order to avoid needless waste." United States v. Edmonson, 962 F.2d 1535, 1542 (10th Cir. 1992). Our words nearly four decades ago remain true today:


84
[A]fter a verdict . . . every intendment must be indulged in support of the indictment . . . and such a verdict . . . cures mere technical defects unless it is apparent they have resulted in prejudice to the defendant. Prejudice to the defendant is, of course, a controlling consideration in determining whether an indictment . . . is sufficient.


85
Clay v. United States, 326 F.2d 196, 198 (10th Cir. 1963).


86
Defendant in this case did not challenge the indictment's sufficiency in the district court. Compare United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999) (holding that "if properly challenged before trial," an indictment's failure to allege an element of the offense constitutes reversible error), with United States v. Woodruff, No. 98-10358, 1999 WL 776213 at *1 (9th Cir. Sept.16, 1999) (unpublished) (refusing to extend Du Bo where defendant failed to timely challenge the indictment). Nor has he ever challenged, at trial or on appeal, his status as a non-Indian or the victim's status as an Indian. In fact, Defendant stipulated that the victim of the arson (the owner of the structure) was a member of the Tesuque Pueblo. He did not dispute evidence that he was not a member of the pueblo. See Rec. Vol. III at 209.1 Defendant has never claimed a lack of fair notice of the charges against him or his inability to assert a Double Jeopardy defense. See Court's Op. at 7. Simply put, no basis exists on the record before us to conclude that Defendant has suffered any prejudice whatsoever from the indictment. "'Reversal of error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.'" Johnson v. United States, 520 U.S. 461, 470 (1997) (quoting R. Traynor, The Riddle of Harmless Error 50 (1970)).2


87
Nevertheless, the Court concludes that "'the failure of the indictment to allege all the essential elements of an offense is a jurisdictional defect requiring dismissal . . . .' This type of fundamental defect cannot be cured by the absence of prejudice to the defendant . . . ." Court's Op. at 9-10 (internal ellipses and citations omitted) (quoting United States v. Brown, 995 F.2d 1493, 1505 (10th Cir. 1993)). In other words, according to the Court, the failure of the indictment to allege the Indian status of Defendant and the victim constitutes that rare bird known as "structural" error, subjecting the district court's judgment in this case to "automatic" reversal. See Neder, 119 S. Ct. at 1833. I've been there and done that. No way am I going there and doing that again until the Supreme Court tells me I have to. See United States v. Wiles, 102 F.3d 1043, 1060 (10th Cir. 1996) (en banc) (per Baldock, J.) (holding that the failure to instruct the jury on an element of the charged offense in violation of the Fifth and Sixth Amendments constituted structural error), on reh'g, 106 F.3d 1516 (10th Cir.), vacated sub nom. United States v. Schleibaum, 522 U.S. 945, on remand 130 F.3d 947 (10th Cir. 1997) (relying on Johnson, 520 U.S. at 461, to hold that the failure to instruct the jury on an element of the charged offense was not structural error).


88
In Neder, 119 S. Ct. at 1833, the Supreme Court recognized that "most" constitutional errors can be harmless: "'If the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other constitutional errors that may have occurred are subject to harmless-error analysis.'" Id. (internal brackets omitted) (quoting Rose v. Clark, 478 U.S. 570, 579 (1986)). Despite the Fifth Amendment's requirement that the Government prove each and every element of a crime beyond a reasonable doubt, In re Winship, 397 U.S. 358, 364 (1970), and the Sixth Amendment's requirement that a jury, rather than a judge, reach the requisite finding of guilty, Sullivan v. Louisiana, 508 U.S. 275, 277 (1993), the Court in Neder held that the failure to instruct the jury on every element of an offense "does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence." Neder, 119 S. Ct. at 1833 (emphasis in original). To me, a defendant's right to have a jury find each element of the charged offense beyond a reasonable doubt is no less important than a defendant's right to have each element of the same offense presented to the grand jury. Yet illogically, denial of the former right is subject to harmless-error analysis, but denial of the latter right is not.3


89
If the Court was correct (which it isn't) in labeling as jurisdictional the Government's failure to allege the Indian status of Defendant and his victim, then I might agree that Defendant's conviction should be vacated. For it is beyond dispute that a court cannot act without jurisdiction over the subject-matter. But although courts frequently refer to elements of a crime as "jurisdictional," see, e.g., Brown, 995 F.2d at 1503-05, elements such as the Indian status of Defendant and the victim are jurisdictional only in the sense that in the absence of those elements (assuming they are elements), no federal crime exists under 18 U.S.C. §§ 81 & 1152. See United States v. Martin, 147 F.3d 529, 531-32 (7th Cir. 1998). Even if the Government fails to prove those elements, however, we do not say that the district court was deprived of subject matter jurisdiction to hear the case. "Subject-matter jurisdiction in every federal criminal prosecution comes from 18 U.S.C. § 3231, and there can be no doubt that Article III permits Congress to assign federal criminal prosecutions to federal courts. That's the beginning and the end of the 'jurisdictional' inquiry." Hugi v. United States, 164 F.3d 378, 380 (7th Cir. 1999).


90
The harmless-error doctrine "'recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial.'" Neder, 119 S. Ct. at 1838 (internal ellipses omitted) (quoting Van Arsdall, 475 U.S. at 681)). In this case, Defendant was tried before an impartial judge, under the correct standard of proof, and with the assistance of counsel. Defendant does not suggest that he would introduce any evidence bearing upon the question of his Indian status upon retrial. Reversal of Defendant's conviction based on the insufficiency of the indictment without any consideration of the error's effect upon the verdict sends this case back for another trial a retrial focused not on the Indian status of Defendant or the victim, but on issues and defenses which one jury has already properly considered.


91
In a case such as this one, where Defendant did not, and apparently could not, bring forth facts contesting his status as a non-Indian or the victim's status as an Indian, asking whether the jury verdict would have been the same absent the error does not undermine the Fifth Amendment's grand jury guarantee. See United States v. Harris, No. 90-5028, 1992 WL 33210 at *3 (10th Cir. Feb. 21, 1992) (unpublished) ("jurisdictional error" in indictment which improperly alleged a violation of § 1153, rather than § 1152, held harmless beyond a reasonable doubt). Accordingly, I would hold that the indictment's failure to allege the Indian status of Defendant and the victim was harmless beyond a reasonable doubt. I dissent.



Notes:


1
 Because the victim of Defendant's crime was an Indian and the crime occurred in Indian country, Defendant is subject to prosecution for arson under 18 U.S.C. § 81, regardless of his status. He is subject to prosecution by way of § 1152 if he is a non-Indian, or § 1153, the Indian Major Crimes Act, if he is an Indian. Section 81, the statute defining the substantive offense of arson, applies under both §§ 1152 & 1153. Thus, how Defendant could be prejudiced because of his status escapes me. See United States v. Heath, 509 F.2d 16, 20 & n.5 (9th Cir. 1974) (holding that defendant was not prejudiced by his conviction under § 1152 even though the indictment had incorrectly characterized him as an Indian and alleged a violation of § 1153 rather than § 1152).


2
 If Defendant would have challenged the indictment in a timely fashion, I submit the government would have filed a superceding indictment against Defendant correcting the original indictment's alleged deficiencies and this case would not be before us, at least in its present posture.


3
 The Court has held other Fifth and Sixth Amendment rights subject to harmless-error analysis. See Arizona v. Fulminate, 499 U.S. 279 (1991) (erroneous admission of evidence in violation of defendant's Fifth Amendment guarantee against self-incrimination may be harmless); Delaware v. Van Arsdall, 475 U.S. 673 (1986) (erroneous exclusion of evidence in violation of defendant's Sixth Amendment right to confront witnesses may be harmless)


