                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      APR 28 2004
                                    PUBLISH
                                             PATRICK FISHER
                                                  Clerk
                 UNITED STATES COURT OF APPEALS
                          TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                     No. 03-6011

 RICHARD WAYNE DREWRY,

          Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Western District of Oklahoma
                               (D.C. No. CR-02-99-R)


Submitted on the Briefs: *

Robert G. McCampbell, United States Attorney, and Rozia McKinney-Foster,
Assistant U.S. Attorney, Oklahoma City, Oklahoma, on the brief for Plaintiff-
Appellee.

William P. Earley, Assistant Federal Public Defender, Oklahoma City, Oklahoma,
on the brief for Defendant-Appellant.




      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
submitted without oral argument.
Before SEYMOUR, MURPHY and O’BRIEN, Circuit Judges.


SEYMOUR, Circuit Judge.



      Richard Wayne Drewry was convicted of five charges of physical and

sexual abuse of four children in Indian country in violation of 18 U.S.C. §

2241(c) (aggravated sexual abuse of a child), § 2244(c) (abusive sexual contact

with a child under the age of twelve), and § 113(a)(5) (assault against a victim

under the age of sixteen). He was sentenced to 210 total months of imprisonment.

Mr. Drewry appeals his conviction and sentence, and we affirm.



                                         I

      Mr. Drewry was the common-law husband of Waka Tabbie Edwards, and

they lived together in Virginia. Upon the death of her mother, Ms. Edwards

moved to Oklahoma to take care of her six nieces and nephews who had

previously been under the care of her mother. Mr. Drewry later joined Ms.

Edwards in Oklahoma and was eventually charged with physically and sexually

assaulting four of the children. A jury found him guilty on all counts, and this

appeal followed.

      Mr. Drewry contends the district court committed reversible error on three


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grounds: by not properly engaging in the required balancing under Federal Rule

of Evidence 403 when it admitted evidence regarding uncharged prior acts of

child molestation by Mr. Drewry; by not granting his motion for judgment of

acquittal because the government failed to prove the victims were Indians for the

purposes of 18 U.S.C. § 1152; by enhancing his sentence under United States

Sentencing Guideline § 2A3.1(b)(1). We address each issue in turn.

                                        II

      Mr. Drewry first asserts the district court erred in admitting testimony

under Federal Rule of Evidence 414(a) regarding his alleged commission of prior

acts of child molestation. He specifically contends the court failed to properly

engage in the prejudice analysis required by Rule 403. We will disturb a trial

court’s decision to admit evidence under Rule 403 only for an abuse of discretion.

United States v. Charley, 189 F.3d 1251, 1259-60 (10th Cir. 1999).

      A district court may exercise its discretion to admit evidence under Rule

414(a) only when a defendant is charged with an offense of child molestation, the

proffered evidence is of the defendant’s commission of another offense of child

molestation, and the court determines the proffered evidence is relevant. United

States v. McHorse, 179 F.3d 889, 898 (10th Cir. 1999). Although a court must

engage in a Rule 403 balancing inquiry in determining whether the evidence is

relevant, “under Rule 414 the courts are to ‘liberally’ admit evidence of prior


                                        -3-
uncharged sex offenses.” United States v. Meacham, 115 F.3d 1488, 1492 (10th

Cir. 1997). Because of the unique nature of evidence presented under Rule 414,

      it is important that the trial court “make a reasoned, recorded”
      statement of its 403 decision . . . . The district court need not make
      detailed factual findings in support of its Rule 403 determination.
      However, “[b]ecause of the sensitive nature of the balancing test in
      these cases, it will be particularly important for a district court to
      fully evaluate the proffered Rule . . . [414] evidence and make a clear
      record of the reasoning behind its findings.”

United States v. Castillo, 140 F.3d 874, 884 (10th Cir. 1998) (citing United States

v. Guardia, 135 F.3d 1326, 1331-32 (10th Cir. 1998)). Under Rule 403, a court

may exclude evidence “if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” F ED . R. E VID . 403.

      At trial, the government proffered testimony from Larena Morales

regarding Mr. Drewry’s acts of child molestation against her some twenty-five

years earlier. The district court initially declined to admit this evidence as more

prejudicial than probative, expressing concern regarding the extended period of

time that had passed since the alleged occurrence of the prior acts. After hearing

the testimony of the molestation victims as well as that of Ms. Morales, however,

the court determined there were clear similarities between how Mr. Drewry

allegedly molested Ms. Morales and the victims in the present case. While the


                                          -4-
court repeated its concern regarding the extended time that had passed since the

alleged molestation of Morales, it nonetheless held the evidence could be

presented because the prior act was so similar to the facts of the present case, thus

increasing its probative value. Sufficient factual similarity can rehabilitate

evidence of prior uncharged offenses that might otherwise be inadmissible due to

staleness. See, e.g., United States v. Gabe, 237 F.3d 954, 959 (8th Cir. 2001)

(similarity of prior act evidence to charged crime warranted admission of

evidence); Meacham, 115 F.3d at 1495 (“Similarity of prior acts to the charged

offense may outweigh concerns of remoteness in time.”); United States v. Larson,

112 F.3d 600, 605 (2d Cir. 1997) (same). Moreover, case law makes clear Ms.

Morales’ testimony was not so stale or old as to undermine its relevance. See

Meacham, 115 F.3d at 1491-92 (admitting evidence thirty years old and noting

that no time limit is imposed on the remoteness of the uncharged offense). We

are not persuaded the district court abused its discretion in striking the Rule 403

balance in favor of admitting Ms. Morales’ testimony.

      Mr. Drewry next challenges the district court’s failure to grant his motion

for judgment of acquittal. He contends the court lacked jurisdiction because the

government failed to present sufficient evidence proving the victims were Indians

for purposes of 18 U.S.C. § 1152, which establishes federal jurisdiction over

crimes “in which the defendant is an Indian and the victim is a non-Indian, or


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vice-versa.” United States v. Prentiss, 273 F.3d 1277, 1278 (10th Cir. 2001). A

reversal of the district court’s ruling is not warranted if “‘after reviewing 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.’”

United States v. McPhilomy, 270 F.3d 1302, 1307 (10th Cir. 2001) (quoting

Jackson v. Virginia, 433 U.S. 307, 319 (1979)).

      In Prentiss, we determined that to qualify as an Indian under section 1152,

an individual is required to have some Indian blood, and be “‘recognized as an

Indian by a tribe or by the federal government.’” 273 F.3d at 1280 & n.2 (quoting

Scrivner v. Tansy, 68 F.3d 1234, 1241 (10th Cir. 1995)). The parties accept that

each victim here was one-quarter Indian (one-eighth Comanche Indian and one-

eighth Kiowa Indian). Mr. Drewry argues the government failed to satisfy the

second prong of the Prentiss test and prove the children were recognized as

Indians by a tribe.

      In United States v. Lawrence, 51 F.3d 150 (8th Cir. 1995), the Eighth

Circuit outlined four factors courts should consider when determining whether an

individual is recognized by an Indian tribe or the federal government: “1) tribal

enrollment; 2) government recognition formally and informally through receipt of

assistance reserved only to Indians; 3) enjoyment of the benefits of tribal

affiliation; and 4) social recognition as an Indian through residence on a


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reservation and participation in Indian social life.” Id. at 152. The children in

this case were not officially enrolled as members in the Comanche tribe until after

the date of at least two of the allegations in the indictment against Mr. Drewry.

But enrollment in a tribe is not the only way an individual can show she is an

Indian under 18 U.S.C. § 1152. See United States v. Antelope, 430 U.S. 641, 646

n.7 (1997) (“enrollment in an official tribe has not been held to be an absolute

requirement for federal jurisdiction”); United States v. Keys, 103 F.3d 758, 761

(9th Cir. 1996) (“While tribal enrollment is one means of establishing status as an

‘Indian’ under 18 U.S.C. § 1152, it is not the sole means of proving such

status.”).

       Evidence presented at trial sufficiently satisfied the other factors listed in

Lawrence. First, the children received medical care from Indian Medical Services

and their receipt of such care was not predicated on a determination that they fell

within one of the two exceptions allowing for the provision of care to non-

Indians. Rather, evidence indicated their medical care was based on an

assumption that they were Indians eligible for such treatment. Likewise, the

children were permitted to attend a summer camp open only to Comanche

children. Their enrollment in the camp was pursuant to the direction of the

Comanche tribal chairman who indicated to camp officials that the children were

in fact Comanche. The children also participated in the social life of the tribe


                                           -7-
through their attendance at pow-wows. Finally, when Mr. Drewry’s abuse of the

children was reported, the children were taken into tribal rather than state

custody. A caseworker from the Indian Child Welfare Office specifically testified

that “my boss told us that [the children] were eligible Comanches and they were

coming into our custody. If they weren’t eligible, they would have gone to DHS

custody . . . .” App., vol. IV at 441. Viewing the evidence in the light most

favorable to the government, see McPhilomy, 270 F.3d at 1307, a rational trier of

fact could have found the government established beyond a reasonable doubt that

the victims in this case were recognized as Indians by a tribe. The district court

did not err in denying Mr. Drewry’s motion for judgment of acquittal.

      Finally, Mr. Drewry contends the district court improperly enhanced his

sentence under United States Sentencing Guideline § 2A3.1(b)(1) for the use of

force or threats in the course of sexually assaulting one of the children. ** In

applying this enhancement, we have noted that “in a case involving the sexual

abuse of a child, the guidelines provide the sentencing judge with the flexibility



      **
         Section 2A3.1(b)(1) of the guidelines allows for a four level enhancement
to sexual abuse charges where the crime was committed by force or threat
pursuant to 18 U.S.C. § 2241(a) or (b). U.S. S ENTENCING G UIDELINES M ANUAL
§ 2A3.1(b)(1). Section 2241(a) dictates that aggravated sexual abuse by force or
threat includes causing “another person to engage in a sexual act by using force
against that other person; or by threatening or placing that other person in fear
that any person will be subject to death, serious bodily injury, or kidnapping.” 18
U.S.C. § 2241(a).

                                          -8-
to apply a force enhancement depending on the facts,” United States v. Reyes

Pena, 216 F.3d 1204, 1211 (10th Cir. 2001), and that “a ‘threat of harm sufficient

to coerce or compel submission’ may be quite different for a child victim than for

an adult victim.” United States v. Willie, 253 F.3d 1215, 1220 (10th Cir. 2001).

Reviewing the district court’s interpretation of the sentencing guidelines de novo,

see id. at 1218, and recognizing we must “uphold the factual findings of the

district court unless they are clearly erroneous, viewing the evidence in the light

most favorable to the court’s determination,” Reyes Pena, 216 F.3d at 1211, we

conclude the district court did not err in applying section 2A3.1(b)(1) to Mr.

Drewry’s sentence.

      Mr. Drewry digitally penetrated the vagina of an eleven year old girl after

commanding the child to place her leg in a chair. Immediately after the assault,

Mr. Drewry asked the child to tell him who he was. When she said he was her

uncle, he said “‘No, I’m a warrior.’” App., vol. IV at 315. Trial testimony further

indicated the child had stated that when Mr. Drewry sexually assaulted her, he

said he did it so she would trust him. Id., vol. III at 40. The child also testified

that she was scared of Mr. Drewry because he was “very violent all of the time”

and was “always beating” her and her siblings. Id., vol. IV at 306. In a physical

assault against the child prior to the sexual assault, Mr. Drewry pulled her hair,

hit her face, threw her to the floor and stomped on her stomach. On another


                                          -9-
occasion he stated “he might just kill [her] and bury [her] by the creek.” Id. at

316.

       Viewing this evidence in the light most favorable to the district court’s

determination, we hold the district court did not err in concluding “the testimony

sustains and supports a finding . . . that [this child was] intimidated and

threatened over a lengthy period of time, such that submission to the defendant’s

sexual advances was as a result of the fear of force . . . .” App., vol. VI at 8. See

also Willie, 253 F.2d at 1220 (history of abuse and threats supports use-of-force

enhancement); Reyes Pena, 216 F.3d at 1211 (“disparity in coercive power, such

as that between an adult and a child” can warrant use-of-force enhancement);

United States v. Knife, 9 F.3d 705, 706 (8th Cir. 1993) (physical disparity

between defendant and child, threats of future violence, the child’s fear of

defendant’s “mere presence,” and evidence of defendant’s physical abuse against

the child justified use-of-force enhancement).

       We AFFIRM the judgment of the district court.




                                         -10-
