                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-3330
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of South Dakota
Purcell Provost,                         *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: May 9, 2000

                                   Filed: January 12, 2001
                                    ___________

Before McMILLIAN, JOHN R. GIBSON and BEAM, Circuit Judges.
                            ___________

McMILLIAN, Circuit Judge.

       Purcell Provost appeals from a final judgment entered in the United States
District Court1 for the District of South Dakota upon a jury verdict finding him guilty
of attempted third degree burglary in violation of South Dakota law, as charged under
18 U.S.C. § 1153, and possession of a stolen firearm, in violation of 18 U.S.C.
§ 922(j). For reversal, Provost argues that: (1) the United States government lacked
authority under 18 U.S.C. § 1153 to prosecute him in federal district court for

      1
        The Honorable Lawrence L. Piersol, Chief United States District Judge for the
District of South Dakota.
attempted third degree burglary; (2) the evidence was insufficient as a matter of law to
support his conviction on the firearm count; (3) he was denied a fair trial on the firearm
count because other counts were improperly joined; and (4) he was improperly denied
a two-level sentencing reduction for his role in the offense. For the reasons stated
below, we reverse in part, affirm in part, and remand the case to the district court for
further proceedings consistent with this opinion.

       Jurisdiction was proper in the district court based upon 18 U.S.C. § 3231.
Jurisdiction is proper in this court based upon 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
The notice of appeal was timely filed under Fed. R. App. P. 4(b).

                                      Background

        On August 27, 1997, Provost and Myron Rainbow were indicted in federal
district court on charges of first degree burglary (Count I), attempted third degree
burglary (Count II), and possession of a stolen firearm (Count III). Rainbow entered
into a plea agreement and pled guilty to Counts II and III of the indictment. Provost
moved to dismiss the burglary charges in Counts I and II of the indictment on the
ground that the incidents in question did not take place within Indian country and
therefore are not covered by 18 U.S.C. § 1153. Provost proceeded to trial, which
resulted in a guilty verdict on all three counts charged in the indictment. The evidence
at trial, briefly summarized in a light supporting the verdict, showed the following.

       On July 6, 1997, Provost, Rainbow, and another individual (a juvenile) had been
drinking when they decided to burglarize the home of Ray Soulek in Lake Andes,
South Dakota. They went to Soulek's house, where the juvenile entered and removed
four speakers and three rifles. Provost, Rainbow, and the juvenile discussed selling the
speakers and guns for money. Later that day, they went to Rosie's One Stop (Rosie's)
in Pickstown, South Dakota, where they intended to commit a second burglary.
Provost used one of the rifles taken from the Soulek residence to shoot out the front

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door of the store. The burglar alarm went off, and the three fled. Provost was
apprehended later that evening by an investigator with the Bureau of Indian Affairs.

      After Provost's trial, but before his sentencing, the district court dismissed his
Count I conviction on jurisdictional grounds because the burglary in question did not
occur within "Indian country" as required under 18 U.S.C. § 1153.2 Soulek's house is


      2
          Section 1153, "Offenses committed within Indian country," provides:

             (a) Any Indian who commits against the person or property of
      another Indian or other person any of the following offenses, namely,
      murder, manslaughter, kidnapping, maiming, a felony under chapter
      109A, incest, assault with intent to commit murder, assault with a
      dangerous weapon, assault resulting in serious bodily injury (as defined
      in section 1365 of this title), an assault against an individual who has not
      attained the age of 16 years, arson, burglary, robbery, and a felony under
      section 661 of this title 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.

             (b) Any offense referred to in subsection (a) of this section that is
      not defined and punished by Federal law in force within the exclusive
      jurisdiction of the United States shall be defined and punished in
      accordance with the laws of the State in which such offense was
      committed as are in force at the time of such offense.

"Indian country" is separately defined as follows:

               Except as otherwise provided in sections 1154 and 1156 of this
      title, the term "Indian country", as used in this chapter, means (a) all land
      within the limits of any Indian reservation under the jurisdiction of the
      United States Government, notwithstanding the issuance of any patent,
      and, including rights-of-way running through the reservation, (b) all
      dependent Indian communities within the borders of the United States
      whether within the original or subsequently acquired territory thereof, and

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located on unallotted land which formerly was located within the Yankton Sioux Tribe
Reservation (the reservation); the land was ceded to the United States pursuant to an
agreement reached between the United States and the Yankton Sioux tribe in 1892 and
ratified by the United States Congress in 1894. Prior to Provost's sentencing in the
present case, the United States Supreme Court held that such unallotted ceded lands
formerly located within the reservation was not Indian country and therefore came
under the primary jurisdiction of the State of South Dakota. South Dakota v. Yankton
Sioux Tribe, 522 U.S. 329 (1998).

       On the remaining Counts II and III, Provost was sentenced to concurrent terms
of 57 months imprisonment and three years of supervised release; he was ordered to
pay $200 in special assessments and $800 in restitution. United States v. Provost, No.
4:97CR40086-002 (D.S.D. Aug. 31, 1998) (judgment). He timely appealed his
conviction and sentence to this court, raising several issues including federal
jurisdiction to prosecute him for the attempted burglary of Rosie's, which is located on
allotted reservation land but has since passed out of Indian hands. We initially held the
present appeal in abeyance, pending the outcome of the government's petition for a writ
of certiorari in a legally related case, in which the Supreme Court has now denied the
petition for review. Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010 (8th Cir. 1999)
(Gaffey), cert. denied, 120 S. Ct. 2717 (2000).




      whether within or without the limits of a state, and (c) all Indian
      allotments, the Indian titles to which have not been extinguished,
      including rights-of-way running through the same.

18 U.S.C. § 1151.

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                                      Discussion

       In the present case, the government does not dispute the fact that the attempted
burglary with which Provost was charged in Count II of the indictment occurred on
land that was originally allotted to a member of the Yankton Sioux Tribe but has since
"passed out of Indian hands." Brief for Appellee at 6, 7. In Gaffey, this court held that
such lands are not Indian country within the meaning of 18 U.S.C. § 1151. 188 F.3d
at 1030 ("[W]e hold that the Yankton Sioux Reservation has not been disestablished,
but that it has been further diminished by the loss of those lands originally allotted to
tribal members which has passed out of Indian hands."). In its arguments on appeal in
the present case, the government conceded that, because the present case was pending
on appeal at the time this court decided Gaffey, Provost's conviction for the attempted
burglary would be invalid for lack of jurisdiction if either Gaffey were affirmed or the
petition for writ of certiorari denied. Brief for Appellee at 8. Not only are we bound
by the Gaffey decision, but also we cannot add to its very thorough and thoughtful
reasoning. See 188 F.3d at 1013-30. We conclude that the government lacked
authority to prosecute Provost in federal court for the state law offense of attempted
third degree burglary as charged in Count II of the indictment.3

       Provost next argues that the evidence at trial was insufficient as a matter of law
to support his conviction on the firearm count. Specifically, he contends that there was
insufficient evidence for the jury to find beyond a reasonable doubt that he knew or had
reasonable cause to believe that the guns in question were stolen. Brief for Appellant
at 7. We disagree. In reviewing the sufficiency of the evidence to support a jury's
guilty verdict, this court views the evidence in the light most favorable to the verdict;
we give the government the benefit of all reasonable inferences to be drawn from the
evidence and will reverse only if there is no construction of the evidence that supports


      3
       We need not address Provost's alternative argument that attempted third degree
burglary is not a crime covered by 18 U.S.C. § 1153.

                                          -5-
the verdict. See, e,g., United States v. Keltner, 147 F.3d 662, 668 (8th Cir.), cert.
denied, 525 U.S. 1032 (1998). In the present case, the evidence showed that Provost
accompanied Rainbow and the juvenile to Ray Soulek's house, where the juvenile
entered and stole three rifles, among other things. Provost was present at all relevant
times and, moreover, participated in conversations with the others about how they
might sell the guns for cash. Later, Provost himself used one of the three rifles taken
from the Soulek residence to shoot out the front door of Rosie's. It was certainly
reasonable for the jury to conclude from the evidence that Provost possessed a firearm
which he knew or had reasonable cause to believe was stolen. Accordingly, we hold
that the evidence was sufficient as a matter of law to support the jury's verdict finding
Provost guilty beyond a reasonable doubt on Count III of the indictment.

       Provost alternatively argues that his Count III conviction violates due process
because the charges in Counts I, II, and III were tried together. He argues that it was
unduly prejudicial for the jury to be aware of the two burglary charges, especially the
evidence of his involvement in the planning of the burglaries, where the planning did
not involve the firearms and there was weak evidence that he knew or reasonably
should have known the guns were stolen. He concludes: "the evidence of the burglary
plan could very well have swayed the jury." Brief for Appellant at 8. Again, we
disagree. We note that, at the time of Provost's trial, the law supported the view that
the district court had jurisdiction over each of the three counts charged in the
indictment. More importantly, evidence concerning the two burglaries and the
circumstances surrounding those burglaries would have been admissible to prove the
firearm charge even if the burglaries had not been charged as separate offenses. The
facts and circumstances surrounding the burglary of the Soulek home were relevant to
prove Provost's actual or constructive knowledge that the guns were stolen. The facts
and circumstances surrounding the burglary of Rosie's were relevant to prove that
Provost possessed one of the guns. See 18 U.S.C. § 922(j) (elements of possession of
a stolen firearm include: (1) the defendant knowingly possessed the firearm, (2) the
firearm was stolen, (3) the defendant knew or had reasonable cause to believe the

                                          -6-
firearm was stolen, and (4) the firearm was shipped or transported in interstate
commerce either before or after it was stolen). Thus, because the evidence of both
burglaries would have been admissible to prove the firearm charge, Provost was not
prejudiced by the joinder of charges, and any technical error was harmless beyond a
reasonable doubt.

       Finally, Provost argues that the district court erred in failing to give him a two-
level sentencing reduction under U.S.S.G. § 3B1.2(b), for being a minor participant in
the offense. The pertinent count of conviction is the firearm count under 18 U.S.C.
§ 922(j). As noted, the evidence at trial showed that Provost himself used one of the
stolen firearms to shoot out the front door of Rosie's in an effort to gain access to the
premises. Because Provost's § 922(j) conviction was largely based on that conduct, not
just the burglary of the Soulek home, the district court found that Provost's role in the
relevant offense did not qualify as minor participation under U.S.S.G. § 3B1.2(b).
Upon review, we hold that the district court's finding was not clearly erroneous.

                                      Conclusion

        For the reasons stated, we vacate Provost's conviction and sentence on Count II
of the indictment, we affirm the judgment in all other respects, and we remand the case
to the district court for further proceedings consistent with this opinion.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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