                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 17 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-30140

                Plaintiff-Appellee,             D.C. No.
                                                4:18-cr-00004-BMM-1
 v.

EDWARD ANTHONY TORRES, AKA                      MEMORANDUM*
Anthony Pac, AKA Eddie Durate, AKA
Eddie Torres,

                Defendant-Appellant.

                   Appeal from the United States District Court
                           for the District of Montana
                    Brian M. Morris, District Judge, Presiding

                             Submitted June 4, 2019**
                                Portland, Oregon

Before: MURGUIA and HURWITZ, Circuit Judges, and STATON,*** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Josephine L. Staton, United States District Judge for
the Central District of California, sitting by designation.
      Edward Torres stabbed F.P. multiple times during a fight on the Blackfeet

Indian Reservation in Montana. A grand jury indicted Torres for one count of

assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1152 and

113(a)(6). Section 1152 extends the “general laws of the United States” to “Indian

country,” but excepts crimes committed by one Indian against another Indian. The

Supreme Court has further excluded from federal jurisdiction crimes committed by

a non-Indian against a non-Indian. United States v. McBratney, 104 U.S. 621, 624

(1881). “In sum, when McBratney is read together with the exception in § 1152,

the general laws of the United States extend to Indian country under § 1152 only

when an Indian perpetrator commits a crime against a non-Indian victim, or a non-

Indian perpetrator commits a crime against an Indian victim.” United States v.

Reza-Ramos, 816 F.3d 1110, 1120 (9th Cir. 2016).

      Torres moved to dismiss the indictment under Federal Rule of Criminal

Procedure 12(b)(2), arguing the district court lacked subject matter jurisdiction

because neither he nor F.P. is an Indian person. The district court denied the

motion and the case proceeded to trial. At the close of the government’s case-in-

chief, Torres moved for judgment of acquittal pursuant to Rule 29 because, Torres

argued, the government failed to provide sufficient evidence proving that F.P. is an

Indian person under § 1152. The district court denied the motion. Torres renewed




                                          2
his motion after the close of his case-in-chief, which the district court again denied.

The jury convicted Torres of assault resulting in serious bodily injury.

      Subject matter jurisdiction is generally a matter of law to be decided by the

judge. United States v. Gomez, 87 F.3d 1093, 1096 (9th Cir. 1996). However,

when the issue of jurisdiction is “intermeshed with questions going to the merits,

the issue should be determined at trial” by a jury. United States v. Nukida, 8 F.3d

665, 670 (9th Cir. 1993) (citation omitted). This is especially true when “the

jurisdictional requirement is also a substantive element of the offense charged.”

Id. (citation omitted).

      Torres was charged under 18 U.S.C. § 113(a)(6), which requires as an

element of the offense that the assault occur within the “jurisdiction of the United

States.” To prove the jurisdictional element, the government needed to establish

that the assault was committed by a non-Indian against an Indian. See 18 U.S.C.

§ 1152; Reza-Ramos, 816 F.3d at 1119-21. The district court did not err by

allowing the ultimate issue of F.P.’s Indian status to be decided by the jury. See

Gomez, 87 F.3d at 1096-97; Nukida, 8 F.3d at 669-70. The district court

appropriately “presume[d] the truth of the allegations in the charging instruments”

that F.P was “an Indian person” in denying the Rule 12 motion, United States v.

Jensen, 93 F.3d 667, 669 (9th Cir. 1996), while preserving Torres’ Sixth

Amendment right to a jury trial on the elements of the offense.


                                          3
      We review de novo the district court’s denial of a motion to acquit under

Federal Rule of Criminal Procedure 29. United States v. Sandoval-Gonzalez, 642

F.3d 717, 727 (9th Cir. 2011). “We must determine ‘whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.’”

Id. (quoting United States v. Mosley, 465 F.3d 412, 415 (9th Cir. 2006)).

      Torres argues that insufficient evidence existed after the government’s case-

in-chief to determine F.P. was an Indian. Indian status is determined by a multi-

factor test: specifically, that a degree of Indian blood exists and that various

factors—tribal enrollment; government recognition formally and informally

through receipt of assistance reserved only to Indians; enjoyment of benefits of

tribal affiliation; social recognition as an Indian through residence on a reservation

and participation in Indian social life—indicate tribal or government recognition as

an Indian. United States v. Bruce, 394 F.3d 1215, 1223-24 (9th Cir. 2005). The

government presented sufficient evidence to show that F.P. is an Indian person

under this test. See id. at 1225-27; see also United States v. LaBuff, 658 F.3d 873,

877-79 (9th Cir. 2011); Reza-Ramos, 816 F.3d at 1121-22.

      AFFIRMED.




                                           4
