United States v. Harper.
No. 23-5091. 10/3/2024. N.D.Okla. Judge Federico. Federal Jurisdiction—Crime in Indian Country—Definition of Indian Under Federal Law—Documentary Evidence—Authentication—Business Record.
October 3, 2024
The government indicted Harper on charges stemming from an attack on E.F., a 72-year-old semiretired Episcopal nun in Indian Country. The Government alleged that Harper is an Indian as defined by federal law. At trial, the Government presented and attempted to lay the foundation to admit into evidence a letter from the Choctaw Nation of Oklahoma verifying Harper’s Indian status (the letter). The letter stated that Harper had a Certificate of Degree of Indian Blood (CDIB) issued by the Bureau of Indian Affairs and was an enrolled member of the Choctaw Nation of Oklahoma. The letter was signed by Stephens, director CDIB/membership of the Choctaw Nation of Oklahoma, and a form was attached to the letter certifying the authenticity of the letter as a “domestic business record.” The government also presented testimony from Oakes, a Choctaw Nation of Oklahoma employee and manager of the CDIB and membership department, that she had personal knowledge of the letter and its stated facts, and that she personally prepared the certificate of authenticity that accompanied the verification letter. Harper objected based on lack of foundation and hearsay, but the district court admitted the letter into evidence. The district court then took judicial notice that the charged crimes occurred in Indian country, that the geographic area was not at issue, and that whether the crime happened in Indian country was established. Harper was convicted of kidnapping in Indian country, in violation of 18 USC §§ 1151, 1153, and 1201(a)(2); aggravated sexual abuse in Indian country, in violation of 18 USC §§ 1151, 1153, and 2241(a); and two counts of assault in Indian country, in violation of 18 USC §§ 1151, 1153, and 113(a)(3), (a)(6). He was sentenced to life in prison.
On appeal, Harper argued that the district court erred by admitting the letter to prove his Indian status, maintaining that the letter was inadmissible hearsay and not a business record. An Indian tribal certificate is not admissible without authentication. Here, the Government failed to show that it could not present Harper’s CDIB, which is self-authenticating, as evidence. The Government also did not establish that the letter—which was issued on January 18, 2023, with the trial commencing on February 6, 2023—was created in the regular course of business and not for litigation purposes. And Oakes’s testimony did not establish that the letter was a business record because her testimony was derivative of the letter itself, as to which there was a preserved hearsay objection. Lastly, Director Stephens did not testify at trial about the letter’s contents. Accordingly, the district court abused its discretion in admitting the letter because it was hearsay that was not subject to an exception under the Federal Rules of Evidence and not properly authenticated. Further the error was not harmless because it applies to all four counts and negates an essential element in each count.
Harper also contended that the district court erred by relying on Tenth Circuit Pattern Criminal Jury Instruction § 2.55 for the federal offense of kidnapping. Without deciding the issue, the Tenth Circuit noted that after Harper’s trial, it decided United States v. Murphy, 100 F.4th 1184 (10th Cir. 2024), holding that the government must offer evidence that the defendant held the victim for an appreciable period of time to sustain a kidnapping conviction under § 1201. The Tenth Circuit stated that Murphy’s holding and analysis apply and, going forward, should be incorporated into jury instructions for kidnapping.
The convictions and sentence were reversed, and the case was remanded with instructions to the district court to vacate the judgment and conduct further proceedings.