United States v. Harjo.
No. 23-7022. 12/17/2024. E.D.Okla. Judge Tymkovich. Aggravated Sexual Abuse in Indian Country—Major Crimes Act—Constitutionality—Fed. R. Evid. 414—Fed. R. Evid. 403.
December 17, 2025
Harjo sexually molested his then-6-year-old daughter, J.B., during her overnight visit to his home in Muskogee, Oklahoma. At the time, Oklahoma understood itself as having jurisdiction over Muskogee, and Harjo was charged with and convicted of child sexual abuse in violation of Oklahoma law. The court imposed a life sentence in 2017. In 2020, the US Supreme Court held that Muskogee was situated in the Muscogee Creek Nation in McGirt v. Oklahoma, 591 U.S. 894 (2020). This meant that Harjo should have been prosecuted in federal court under the Major Crimes Act (the Act). Harjo’s state conviction was set aside, and he was subsequently tried in federal court for aggravated sexual abuse in Indian Country under the Act. Before trial, the government sought to introduce evidence under Fed. R. Evid. 414 that Harjo had molested five other children. Each child was to testify live to their abuse allegations, which occurred when they were between 4 and 13 years old. Harjo moved to exclude the witnesses, and various motions and briefing on the issue occurred. Ultimately, all five witnesses testified at trial. Harjo was convicted as charged and sentenced to life in prison.
On appeal, Harjo argued that the Act, which permits the prosecution of sex abuse felonies in Indian Country, is unconstitutional, so the district court lacked jurisdiction. He maintained that Congress lacked constitutional authority to enact the Act, and, alternatively, that the Act violates the Equal Protection Clause by discriminating based on “Indian” status without a sufficiently compelling interest to do so. However, Harjo’s arguments contradict established Supreme Court controlling precedent, which has consistently upheld the Act against similar plenary power and equal protection challenges.
Harjo also argued that the district court abused its discretion in admitting evidence of prior child abuse under Rule 414, mainly contending that the court erred by not satisfying its threshold obligations to scrutinize the proffered witnesses’ allegations before allowing them to testify. As an initial matter, the Tenth Circuit determined that the district court made explicit findings on the evidence and the relevant factors, so the standard of review for its admission of the Rule 414 witnesses is abuse of discretion. On the merits, the government must provide notice of its intent to offer Rule 414 evidence at least 15 days before trial. The district court must first determine whether the proffered evidence under Rule 414 is relevant and then whether its probative value is substantially outweighed by its risk of unfair prejudice under Rule 403. When applying Rule 403 to Rule 414 evidence, the district court must first preliminarily find that a jury could reasonably find that the other act occurred by a preponderance of the evidence. Harjo did not dispute the relevance of the evidence. Here, the government properly provided notice. The district court then entertained multiple rounds of briefing, a hearing, a motion for reconsideration, and a renewed motion in limine that occurred over a span of three months before determining that a jury could reasonably find by a preponderance of the evidence that the acts occurred. Further, the district court admonished the government that it would find a mistrial if it deemed the witness testimony noncredible, and it instructed the jury before each witness testified that their testimony could not serve as the basis for convicting Harjo. The district court carefully performed the requisite Rule 403 balancing and stated its reasoning as to each factor. Accordingly, there was no abuse of discretion.
The conviction was affirmed.