                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 15 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 00-6270
                                                    (D.C. No. 99-CR-176-C)
    BREAVESS MCBRIDE,                                     (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before EBEL , KELLY , and LUCERO , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Breavess McBride was convicted after a jury trial of five counts of sexual

abuse in violation of 18 U.S.C. § 2242(1), five counts of abusive sexual contact in

violation of id. § 2244(a)(2), and one count of sexual abuse of an inmate in

violation of id. § 2243(b). Each of the aforementioned crimes includes as an

element that the act of sexual abuse or contact occurred “in the special maritime

and territorial jurisdiction of the United States or in a Federal prison.” McBride

appeals his convictions, contending that this element, which he argues is

“jurisdictional,” was not satisfied.

      The evidence showed, and McBride does not dispute, that he was a

correctional counselor at the Federal Transfer Center in Oklahoma City and that

the incidents forming the basis of the charges occurred there. The jury was

properly instructed, with regard to each crime, that the government had to prove

that the defendant’s actions took place in a federal prison. The jury was further

instructed, with regard to each crime, that “the parties agree that the Federal

Transfer Center in Oklahoma City, Oklahoma is a federal prison in the Western

District of Oklahoma,” R., Vol. I, doc. 36, instr. 10, 14, 18, and that it therefore

need not concern itself with that element. McBride does not challenge the

voluntary and knowing nature of this stipulation.

      On appeal, McBride’s sole contention is that the Federal Transfer Center is

not a “federal prison” within the meaning of the statutes under which he was


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convicted. His previous concession of this element poses obvious problems for

his argument. See, e.g., United States v. Wittgenstein         , 163 F.3d 1164, 1169 (10th

Cir. 1998) (stating right to jury trial concerning every element of offense,

including right to proper instruction as to that element, is waived when defendant

stipulates that the element has been satisfied). McBride argues, however, that the

requirement that the offenses occurred in a federal prison is “jurisdictional” and

that he may therefore raise it as a basis for appeal even though he previously

conceded it in the district court.   See generally United States v. Burch       , 169 F.3d

666, 668 (10th Cir. 1999) (“Challenges to a district court’s subject matter

jurisdiction may be raised at any time.”).

       McBride misconceives the “jurisdictional” nature of this element.

A federal court’s jurisdictional power to adjudicate federal criminal cases comes

from 18 U.S.C. § 3231, not from the individual criminal statute under which a

defendant is convicted.      Hugi v. United States , 164 F.3d 378, 380 (7th Cir. 1999).

The individual elements of a crime are not “jurisdictional” in the sense that they

affect a court’s subject matter jurisdiction.         United States v. Prentiss , 256 F.3d

971, 982 (10th Cir. 2001). For this reason, a defendant may concede essential

elements, including those that make a crime “federal,” without running afoul of

jurisdictional principles.    See Hugi , 164 F.3d at 380-81. Under general principles




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noted above, such a concession waives an appellate challenge to the existence of

the element whose existence has been stipulated.

      Through his stipulation, McBride has waived any appellate challenge to

sufficiency of the evidence, correctness of the jury instruction, or federal

“jurisdiction” to prosecute him arising from the issue of whether the Federal

Transfer Center in Oklahoma City is a “federal prison.” The judgment of the

United States District Court for the Western District of Oklahoma is therefore

AFFIRMED.


                                                     Entered for the Court



                                                     David M. Ebel
                                                     Circuit Judge




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