Adam Joseph King was indicted by a federal grand jury for Aggravated Sexual Abuse and Abusive Sexual Contact with a minor under 12 in Indian Country. The indictment included two sets of alternate charges: Counts One and Two alleged King was a non-Indian committing crimes against an Indian victim under 18 U.S.C. § 1152, while Counts Three and Four alleged he was an Indian committing the same crimes under 18 U.S.C. § 1153. King moved to dismiss the indictment for multiplicity, arguing the government should be forced to elect which theory to pursue. The district court denied this motion, allowing the case to proceed with instructions that the jury could convict King as either an Indian or a non-Indian, but not both. The jury found King guilty on the counts alleging he was a non-Indian. King was sentenced to life in prison followed by life supervised release and appealed, challenging the sufficiency of the evidence regarding Indian status and the propriety of the multiplicitous charges.
The Tenth Circuit applied de novo review to the sufficiency of the evidence and abuse of discretion review to the procedural rulings. Regarding the victim's status, the court explained that to be considered an Indian, a person must have 'some Indian blood' and be 'recognized as an Indian by a tribe or by the federal government.' The court found the evidence sufficient to prove the victim, M.V., was an Indian. Although M.V. was not enrolled at the time of the abuse, the jury could reasonably infer recognition based on her receipt of health care from the Cherokee Nation Health Services, the Cherokee Nation's involvement in her guardianship proceedings, and her own testimony that she is an Indian. The court distinguished the government's reliance on United States v. Drewry, noting that while Drewry involved enrolled children, the totality of evidence here—including benefits received as a descendant of an enrolled member—was sufficient. Regarding King's status, the court found the evidence sufficient to prove he was a non-Indian based on a lack of Indian blood. Testimony from King's sisters indicated no known Indian heritage in their biological family, and an enrollment director for the Delaware Tribe of Indians testified that King's enrollment was erroneous because he lacked the requisite blood quantum. The court also noted King's text messages admitting he was not tribal at the time of the abuse. On the multiplicity issue, the court held that the Double Jeopardy Clause protects against cumulative punishments, not multiplicitous indictments. The district court properly avoided the danger of multiple punishments by instructing the jury to convict on only one theory and using a special verdict form. The court found no legal authority supporting King's claim that the alternate charges prejudiced his ability to mount a defense.
The conviction and sentence remain in effect. The decision clarifies that receipt of tribal health care and participation in tribal guardianship proceedings can serve as evidence of Indian status even if formal enrollment occurred after the alleged offense. It also reaffirms that prosecutors may charge alternate theories of jurisdiction under §§ 1152 and 1153 without violating double jeopardy, provided the jury is instructed to convict on only one theory.
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