UNITED STATES COURT OF APPEALS January 24, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-7048

MONTELITO SANCHEZ SIMPKINS,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:21-CR-00220-DCJ-1) _________________________________

Nicole Dawn Herron, Research and Writing Specialist (Scott Graham, Federal Public Defender; Douglas G. Smith, II, Assistant Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Muskogee, Oklahoma, for Defendant- Appellant.

Lisa C. Williams, Special Assistant United States Attorney (Christopher J. Wilson, United States Attorney, with her on the brief), Muskogee, Oklahoma, for Plaintiff- Appellee. _________________________________

Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges. _________________________________

MORITZ, Circuit Judge. _________________________________

A jury convicted Montelito Simpkins of sexually abusing a minor and

engaging in abusive sexual contact in Indian country. On appeal, Simpkins argues Appellate Case: 22-7048 Document: 010110989078 Date Filed: 01/24/2024 Page: 2

that the government presented insufficient evidence for a reasonable jury to find that

he is not an Indian—an essential element of his offenses under the Indian Country

Crimes Act, 18 U.S.C. § 1152. The government concedes that it offered no evidence

of Simpkins’s non-Indian status at trial, yet it argues that he cannot obtain relief

because he invited the error by omitting this element from his proposed jury

instructions. But we must assess the sufficiency of the evidence against the legal

elements of the offenses, not against the elements listed in the jury instructions.

Additionally, Simpkins preserved his sufficiency challenge by bringing a general

motion for acquittal at trial. And because the evidence was insufficient to prove

Simpkins’s non-Indian status, we must reverse his convictions and remand for the

district court to enter a judgment of acquittal.

Background

In August 2021, the government charged Simpkins with sexual abuse of a

minor and abusive sexual contact, in violation of 18 U.S.C. §§ 2243(a) and

2244(a)(3). Because the offenses occurred on an Indian reservation, the government

indicted Simpkins under 18 U.S.C. § 1152. That statute extends the general laws of

the United States to Indian country, yet it applies only if either the victim or the

defendant—but not both—is an Indian. Id.; see also United States v. Walker, 85 F.4th

973, 979 (10th Cir. 2023). The indictment alleged that Simpkins’s victims were

Indians, but it did not address whether he was non-Indian.

In October 2021, Simpkins proceeded to trial. At the close of the government’s

case, Simpkins moved for judgment of acquittal under Federal Rule of Criminal

2 Appellate Case: 22-7048 Document: 010110989078 Date Filed: 01/24/2024 Page: 3

Procedure 29(a). Simpkins gave no specific grounds to support his oral motion, and

the district court summarily denied it without asking him to elaborate or requesting a

response from the government. After testifying in his own defense, Simpkins

renewed his general motion for acquittal, which the district court again summarily

denied.

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