## Facts

- Elward Roe Wanoskia, an enrolled member of the Jicarilla Apache Tribe, was prosecuted in federal court for second-degree murder under 18 U.S.C. §§ 1111 and 1153 for the shooting death of his wife on the Jicarilla Apache Reservation in New Mexico.
- The shooting occurred around 1:30 a.m. after Wanoskia, his wife, and a friend, Erlinda Menarco, returned home following hours of drinking.
- The government’s account, largely through Menarco, was that Wanoskia assaulted his wife, attempted to shoot Menarco, then shot his wife in the head, and later threatened Menarco to report the death as suicide.
- Menarco initially told police the victim shot herself but later recanted, stating she lied out of fear of Wanoskia.
- Wanoskia testified the victim argued with Menarco, struck people with a frying pan, retrieved Wanoskia’s .357 revolver, and during a three-person struggle the gun discharged while the victim held it, resulting in a self-inflicted shot.
- The government presented expert testimony about gunpowder residue and muzzle-to-target distance.
- To illustrate the experts’ distance conclusions and rebut the suicide theory, the government conducted an in-court demonstration using the actual revolver and a live female model of similar size to the victim while measuring whether the model could hold the weapon far enough from her head to match the residue-based distance.
- The jury convicted Wanoskia of second-degree murder, and the district court imposed a 60-year sentence.

## Issues

1. Whether the district court abused its discretion by admitting and permitting an in-court demonstrative reenactment (live model plus the actual gun) as unfairly prejudicial or insufficiently similar to the conditions of the shooting.
2. Whether a 60-year federal sentence under the Major Crimes Act violated equal protection because a comparable non-Indian defendant prosecuted under New Mexico law might have faced a lesser penalty.

## Decision

- The Tenth Circuit affirmed the conviction and the 60-year sentence.
- The court held the demonstrative evidence was properly admitted because the government satisfied a substantial-similarity foundation and any differences went to weight, not admissibility.
- The court rejected the equal protection claim, concluding that applying federal jurisdiction and penalties under 18 U.S.C. § 1153 to Indians in Indian country is not unconstitutional merely because state law might punish similar conduct differently.

## Legal Principles

- In-court demonstrations offered to illustrate expert conclusions may be treated like experimental evidence and must rest on conditions substantially similar to the event in dispute.
- Decisions admitting demonstrative/experimental evidence are reviewed for abuse of discretion; dissimilarities ordinarily affect weight rather than admissibility when they are exposed through cross-examination and argument.
- Federal Rule of Evidence 403 permits exclusion only when unfair prejudice substantially outweighs probative value; a dramatic presentation alone does not require exclusion if the foundation and relevance are adequate.
- Equal protection is not violated solely because federal prosecution and sentencing under the Major Crimes Act can differ from potential state-law treatment; the jurisdictional scheme for crimes by Indians in Indian country has a rational basis tied to Congress’s authority in Indian affairs.

## Conclusion

The court upheld the use of a courtroom gun-distance demonstration to support expert residue testimony because the proponent established substantial similarity and the trial court did not abuse its discretion under Rule 403, and it held that a harsher federal sentence imposed under the Major Crimes Act does not deny equal protection simply because state law might have provided a lower penalty for a non-Indian.


United States v. Wanoskia, 800 F.2d 235 (10th Cir. 1986)