United States of America, Appellee,
vs.
Leonard Crow Dog, Appellant
No. 75-1617
United States Court Of Appeals For
The Eighth Circuit
532 F.2d 1182, 1976 U.S. App. Decision
March 31, 1976, Decided
Appeal from the United States District
Court for the Northern District of Iowa.
Mr. Kenneth E. Tilsen, St. Paul, Minnesota Mr. Tilsen also filed brief.
Other name appearing on brief is Ms. Jacqueline D. Quick of the same address.
For Appellant. Mr. R. D. Hurd, Asst. U.S. Attorney, Sioux Falls, South
Dakota Mr. R. D. Hurd also filed brief. Other names appearing on brief
are Hon. William F. Clayton, United States Attorney, Mr. David R. Gienapp,
Asst. U.S. Attorney, and Mr. Tom P. May, Legal Intern. For Appellee.
Gibson, Chief Judge, Lay and Stephenson, Circuit Judges. Lay,
Circuit Judge.
[F.2d 1185] STEPHENSON,
Circuit Judge.
This direct criminal appeal is taken
by appellant Leonard Crow Dog following his conviction by a jury of violating
18 U.S.C. §§ 111 and 2112. It is alleged on this appeal that
a variety of trial and pretrial errors committed by the government and
by the district court1
require reversal of that conviction. We find no such reversible error and
thereby affirm.
The great majority of the arguments
raised on this appeal relate to procedural matters. The facts surrounding
the incident which led to the indictment of Leonard Crow Dog are relevant
only with regard to his claim that the evidence was insufficient to support
his conviction. Accordingly, a thorough recitation of those facts will
be reserved until that issue is discussed. However, in order to evaluate
appellant's various contentions regarding procedural error, a detailed
survey of the history of this case must be set forth.
I.
Appellant Leonard Crow Dog was charged
in a three-count indictment handed down by a grand jury in the District
of South Dakota on December 12, 1974. These charges arose out of an incident
that took place on March 11, 1973, in Wounded Knee, South Dakota, involving
the alleged detention of four United States postal inspectors by members
of the American Indian Movement (AIM).2
Count I alleged that Crow Dog willfully impeded, interfered with and intimidated
Postal Inspector Gene Graham while he was performing official duties in
violation of 18 U.S.C. §§ 111 and 1114. Count II charged that
Crow Dog by force and violence unlawfully took a pistol belonging to the
United States from the person of one Jack Hanson in violation of 18 U.S.C.
§§ 1153 and 2112, and Count III alleged that Crow Dog had taken
various goods from the Wounded Knee trading post with a combined value
in excess of $100, a violation of 18 U.S.C. §§ 1153 and 661.
An identical indictment was returned against Carter Camp. Stanley Holder
was indicted separately on counts I and II.
These December 12 indictments superseded
indictments which had been returned in March and April of 1973 against
these same three men plus Dennis Banks, Russell Means, Pedro Bissonette,
and Clyde Bellecourt. [F.2d 1186] The earlier indictments charged
all seven men with conspiracy in one count and alleged substantive offenses
in ten other counts. In June 1973 these seven defendants moved to consolidate
their cases for trial alleging, among other things, that seriatim trials
would result in a denial of a speedy trial to some of the defendants. The
district court3
ordered a joint trial for Means and Banks but denied consolidation to the
others. Review of that denial was attempted in this court by the filing
of a petition for a writ of mandamus which was denied.
In October 1973 these same defendants
moved for a change of venue pursuant to Fed. R. Crim. P. 21(a) and, after
satisfying the court that prejudice against them existed in South Dakota,
venue was transferred to St. Paul, Minnesota. The so-called "leadership"
trial of Means and Banks began in January 1974 and ended with the district
court's dismissal of all charges against them on September 13, 1974. See
United States v. Banks, supra, 383 F. Supp. at 397. As previously
noted, superseding indictments naming Crow Dog, Camp and Holder were returned
on December 12, 1974. The original 11-count indictments against them were
dismissed on February 5, 1975. Thereafter, Judge Nichol recused himself
and reassigned the Crow Dog, Holder, and Camp cases to Judge
Edward McManus, sitting by designation in the District of South Dakota.
A pretrial conference on these cases
was held on April 16, 1975, at which numerous defense motions were filed
seeking, inter alia, dismissal of the charges based upon denial
of a speedy trial, bad faith prosecution and governmental misconduct; disclosure
of all exculpatory and impeaching evidence by the prosecution; and a determination
of venue and transfer from the district. In addition, the government filed
a motion to consolidate the indictments against these three men for purposes
of trial. On May 2, 1975, the district court transferred venue in these
cases to the Northern District of Iowa, Cedar Rapids Division, stating
that prejudice against Indians "created a reasonable likelihood of impairing
defendants' right to a fair trial in the District of South Dakota." However,
the court rejected defendants' argument that the superseding indictments
were merely a continuation of the earlier charges brought against these
same men and that venue was still in St. Paul, Minnesota, pursuant to Judge
Nichol's earlier transfer order. United States v. Holder, 399 F.
Supp. 220 (D.S.D. 1975). The government's motion to consolidate was granted
by the court on May 12, 1975.
On May 27, 1975, a hearing on the motions
regarding the denial of a speedy trial, prosecutorial misconduct, and discriminatory
prosecution began. After three days of testimony, argument and the presentation
of extensive documentary evidence on each of these issues, the motions
to dismiss were taken under advisement by the court.
In an order entered on May 30, 1975,
the district court disposed of the various discovery motions that had been
filed by defendants. In summary, the court denied a request to examine
all government files in camera for exculpatory evidence, ordered
the government to provide defendants prior to trial with any information
concerning government witnesses which bore on their credibility, and further
ordered the government to produce for the court's in camera inspection
the names and files of all informants involved in the case.
The consolidated trial against these
three defendants commenced with the institution of the jury selection process
on June 2, 1975. Pursuant to a defense motion, counsel for both sides were
allowed to supplement the court's voir dire of the jury with their own
questioning of individual jurors. The jury selection process took an entire
day, the great majority of which was consumed by questions asked by counsel
for the three defendants.
The prosecution began presenting its
case following the swearing in of the jury and opening statements on June
3, 1975. After two and one-half days of testimony, principally by three
of the postal inspectors who [F.2d 1187] were involved in the Wounded
Knee incident, the prosecution rested. Motions to strike certain testimony
and for a judgment of acquittal based upon insufficiency of the evidence
were made by defense counsel and denied by the court. Defendants rested
without presenting any testimony and immediately renewed their motion for
judgment of acquittal. That motion was once again denied by the court.
The jury returned a guilty verdict against Crow Dog and his co-defendants
as to all charges on June 5, 1975.4
A post-trial motion was filed on June
27, 1975, in which the defendants sought a judgment of acquittal or a new
trial based primarily upon the grounds of sufficiency of the evidence,
the government's failure to disclose evidence, and problems with the in-court
identification of the defendants. A second post-trial motion was filed
on July 25, 1975, seeking an evidentiary hearing on the basis of newly
discovered evidence, i.e., a group of photographs which were allegedly
used for the purpose of identifying defendants and which had been suppressed
by the government. The motion contended that the photographs included pictures
of the defendants, that they had been shown to the postal inspectors on
the day of the incident, and that no identification of defendants was made
at that time. All of these motions were denied by the district court in
a lengthy memorandum and order filed on August 4, 1975. United States
v. Crow Dog, 399 F. Supp. 228 (N.D. Iowa 1975). On August 5, 1975,
Crow Dog was sentenced to three years on Count I and eight years on Count
II, the sentences to run concurrently. Execution of the sentences was suspended
and Crow Dog placed on probation for a period of five years. Co-defendants
Holder and Camp failed to appear for sentencing.
II.
The first issue which we consider on
this appeal is that of venue. Appellant contends that the trial court erred
in ruling that the superseding indictments began an independent prosecution
which required a new determination of venue. 399 F. Supp. at 224-27. This,
it is contended, violated appellant's constitutional right against having
venue changed against his consent, as well as rights that he enjoyed under
Fed. R. Crim. P. 21(a). Appellant further alleges that principles of collateral
estoppel and law of the case precluded the district court from "overruling"
the prior transfer of venue to St. Paul, Minnesota, by Judge Nichol. We
disagree.
The Constitution in Article III, section
2, and the Sixth Amendment affords a defendant in a criminal trial the
right to be tried in the state and district where the alleged crime occurred.
However, the Sixth Amendment also provides the right to a fair trial before
an impartial jury. This latter right is deemed to be a fundamental element
of due process. Singer v. United States, 380 U.S. 24, 36, 13 L.
Ed. 2d 630, 85 S. Ct. 783 (1965); In re Murchison, 349 U.S. 133,
136, 99 L. Ed. 942, 75 S. Ct. 623 (1955); United States v. McNally,
485 F.2d 398, 402 (8th Cir. 1973), cert. denied, 415 U.S. 978, 39
L. Ed. 2d 874, 94 S. Ct. 1566 (1974). In recognition of this right, it
is well-established that pretrial publicity may have had such an impact
upon the populace from which the jury is drawn as to create a probability
or at least a "reasonable likelihood" that this right of impartiality has
been violated. Sheppard v. Maxwell, 384 U.S. 333, 362, 16 L. Ed.
2d 600, 86 S. Ct. 1507 (1966); Irvin v. Dowd, 366 U.S. 717, 721,
81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961); Wansley v. Slayton, 487
F.2d 90, 92-98 (5th Cir. 1973), cert. denied, 416 U.S. 994, 40 L.
Ed. 2d 773, 94 S. Ct. 2408 (1974). With this contingency in mind, Fed.
R. Crim. P. 21(a) provides for transfer of venue by the district court
upon a motion by the defendant to that effect and a proper showing of prejudice.
See
\ul [F.2d 1188]\ul0 United States v. Delay, 500 F.2d 1360, 1365 (8th
Cir. 1974); United States v. McDaniel, 449 F.2d 832, 841-42 (8th
Cir. 1971), cert. denied, 405 U.S. 992, 31 L. Ed. 2d 460, 92 S.
Ct. 1264 (1972). A prerequisite to a transfer determination is that an
indictment or information stating the charges is on record. In re Investigation
of World Arrangements, 107 F. Supp. 628, 630 (D.D.C. 1952); mandamus
denied sub nom. In re Texas Co., 91 U.S. App. D.C. 272, 201 F.2d 177
(1952), cert. denied, 344 U.S. 904, 97 L. Ed. 698, 73 S. Ct. 283
(1952).
Appellant Crow Dog made such a Rule
21(a) motion in the District of South Dakota following his indictment on
11 counts in 1973. The district court granted the motion and transferred
venue to St. Paul, Minnesota. However, that indictment was dismissed in
early 1975 pursuant to Fed. R. Crim. P. 48(a). The effect of this dismissal
was to bring that prosecution to an end. See generally Gonzalis v. Lynch,
282 P.2d 255, 257 (Okla. Crim. 1955). The superseding three-count indictment
began an independent prosecution. Venue as to that indictment was properly
set in South Dakota, the state and district where the alleged crimes took
place. Any prior transfer of venue in a previous indictment had no effect
on the subsequent indictment. Allowing an initial transfer of venue to
bind all subsequent indictments brought against that defendant out of a
common factual setting as urged by appellant would be inconsistent with
the interplay of constitutional rights reflected in Fed. R. Crim. P. 18
and 21(a).5 The
district court's decision regarding venue did not constitute an abuse of
discretion. Rizzo v. United States, 304 F.2d 810, 817 (8th Cir.),
cert.
denied, 371 U.S. 890, 83 S. Ct. 188, 9 L. Ed. 2d 123 (1962).
See
also United States v. Jobe, 487 F.2d 268, 269 (10th Cir. 1973),
cert.
denied, 416 U.S. 955, 40 L. Ed. 2d 305, 94 S. Ct. 1968 (1974).
Appellant's contentions with regard
to the applicability of collateral estoppel and law of the case principles
to the initial transfer of venue to St. Paul are entirely without merit.
Collateral estoppel prevents the relitigation of an issue previously determined
between parties or their privies. See Ashe v. Swenson, 397 U.S.
436, 443-44, 25 L. Ed. 2d 469, 90 S. Ct. 1189 (1969). The venue of the
superseding indictment was not such an issue. As previously noted, the
theory of one continuous prosecution against Crow Dog has been rejected.
The only issue determined by the prior transfer order was that a fair trial
could not be held in the District of South Dakota at that point in time
with regard to that particular indictment. Collateral estoppel is not applicable.
Further, the principles of law of the case are inapplicable by virtue of
similar reasoning. The selection of the transferee district was within
the court's discretion under Fed. R. Crim. P. 21(a).
III.
The next issues we consider relate
to alleged deficiencies and errors in the discovery process attributable
to the government. Appellant contends that the district court erroneously
admitted evidence at trial which had not been properly disclosed to the
defense prior to trial and further that the court erred in denying appellant's
motion for a new trial based upon the discovery of purportedly exculpatory
evidence which had been suppressed by the government in violation of the
dictates of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83
S. Ct. 1194 (1963). Our examination of both these issues discloses no basis
for relief.
[F.2d 1189] Appellant
argues initially that the admission of certain evidentiary "surprises"
by the government fatally tainted the trial and conviction. That evidence
included testimony by two of the postal inspectors with regard to actions
and statements by appellant Crow Dog during the Wounded Knee confinement
which had not been previously revealed. This evidence included inconsistencies
with and additions to prior statements made by the inspectors as to the
role played by the appellant during the incident. Further, the government
introduced at trial a picture of Crow Dog's co-defendants which had not
been shown to defense counsel prior to that time. Although the United States
Attorney supplied defense counsel prior to trial with a ten-page general
narrative statement outlining the prosecution's evidence, it is alleged
that the failure to disclose these specific items of evidence should have
rendered them inadmissible at trial. We disagree.
Discovery matters are committed to
the sound discretion of the district court and are reviewable only upon
an abuse of that discretion. United States v. Swanson, 509 F.2d
1205, 1209 (8th Cir. 1975); United States v. Cole, 453 F.2d 902,
905 (8th Cir.), cert. denied, 406 U.S. 922, 32 L. Ed. 2d 122, 92
S. Ct. 1788 (1972). It is well established that
an error in administering the discovery
rules is not reversible absent a showing that the error was prejudicial
to the substantial rights of the defendant.
United States v. Cole, supra,
453 F.2d at 904.
In the instant case appellant makes
no specific contention as to any prejudice which flowed from the nondisclosure
of these evidentiary specifics, nor is any prejudice apparent from the
record. We note that the photograph in question appeared in a local newspaper
at the time of the incident and was easily obtainable by the defense. With
regard to the postal inspectors' "surprise" testimony, the record reveals
that the inspectors were thoroughly cross-examined as to variances in their
recollections of Crow Dog's participation in the alleged crimes. While
defense counsel contends they were surprised by certain portions of testimony,
at no time was a continuance sought on that basis. Since no showing of
prejudice has been made, we find no abuse of the district court's discretion
in admitting this evidence over defense objections.
A more difficult question is presented
with regard to appellant's allegation that the government failed to disclose
exculpatory evidence to the defense in violation of the dictates of Brady
v. Maryland, supra. The evidence in question consists of a group of
photographs which were allegedly shown to the postal inspectors by FBI
agents at Pine Ridge, South Dakota, very shortly after the inspectors had
been released by the Indians. It is claimed that the postal inspectors
were unable to identify any of the defendants in these photographs. Our
careful examination of the record in this case convinces us, however, that
nondisclosure of these photographs did not constitute reversible error.
The existence and content of the photographs described by defense counsel
are open to serious doubt. But even assuming the photographs' existence,
their use would have been confined to minimal impeachment purposes and
thus they were not sufficiently material to the issue of innocence or guilt
to require reversal or remand of this case.
It appears from the record that the
inspectors were shown a "stack of photographs" on the day of the incident
in the FBI headquarters at Pine Ridge, South Dakota, and that they did
not at that time identify appellant Crow Dog or either of the co-defendants
from those pictures. However, these photos have never been specifically
identified by the government. The prosecution represented to the trial
court and to this court that there was no record kept as to which pictures
or photos were shown to the inspectors at that time. Based upon photographs
which were known to be available to the FBI agents at the place and time
in question, the government stated that the pictures were probably of persons
who had been arrested during incidents [F.2d 1190] in Custer and
Rapid City, South Dakota. Since Crow Dog was not arrested on either of
those occasions, there would be no picture of him among the group. Thus,
those photographs would be of no particular use in his defense.
Appellant's counsel contends, however,
that there is a very high probability that Crow Dog is among those pictured
in the heretofore unidentified photographs. Further, he alleges here, as
he did in a post-trial motion to the same effect in the trial court, that
a series of events unrelated to this litigation gave him knowledge of the
existence of some 60 photographs contained in two named FBI files which
were, he believes, the ones shown to the inspectors following their release.
Appellant does not believe that the pictures were merely mug shots of persons
arrested at those two incidents. Rather, he believes that they were taken
at the scene on those two dates and, given appellant Crow Dog's prominent
role in those incidents, there existed a substantial probability that he
would be pictured in one or more of the photographs. No hearing was conducted
by the district court on this issue. However, the court in its August 4,
1975, order stated that the motion for post-trial relief on Brady
grounds did not "set forth a sufficient basis relevant to the cases at
bar to warrant a new trial." 399 F. Supp. at 242. Appellant now contends
that the nondisclosure of the photographs, following the request that they
be produced, constituted a Brady violation which requires that a
new trial be granted. At the very least, it is urged that Crow Dog is entitled
to an evidentiary hearing at which the photographs could be viewed and
their prior use, if any, for identification purposes could be ascertained.
Initially, we note that appellant's
contention that he is among those pictured in the photographs allegedly
shown to the inspectors is highly speculative and based upon very thin
evidence. The FBI 302 report, which came into the hands of appellant Crow
Dog's attorney in connection with a wholly unrelated criminal matter, refers
to a stack of 60 photographs which the agent viewed at the FBI command
post in Pine Ridge, South Dakota, on the afternoon of March 11, 1973, the
same day and time that the postal inspectors were there viewing photographs.
The agent's report, written on the date of that incident, states that he
looked at photos "of individuals who had been arrested at Custer, South
Dakota, on February 6, 1973, and in Rapid City, South Dakota, on February
9, 1973." The prosecution has in this action consistently maintained that
it was these same arrest photographs that were shown to the postal inspectors
that day. Our examination of the affidavits and the other materials presented
to the district court convinces us that it is entirely plausible, if not
probable, that the photographs shown to the inspectors were mug shots of
persons arrested in those two earlier incidents and did not include appellant
Crow Dog. Given the highly speculative nature of the allegations raised
by appellant Crow Dog in his post-trial motion, we do not believe that
the district court erred in failing to hold a post-trial evidentiary hearing
on this matter.
Even assuming, arguendo, that appellant's
contentions with regard to the photographs would be sufficient under ordinary
circumstances to require a hearing, it is our view that a remand for a
hearing in this case would serve no useful purpose. Careful examination
of the record convinces us that the evidentiary use of the photographs
could not have constituted the type of exculpatory evidence which would
have required the granting of a new trial under Brady standards.
In Evans v. Janing, 489 F.2d
470, 474-78 (8th Cir. 1973), this court fully explored the Brady
standards and adopted the three-pronged test from Moore v. Illinois,
408 U.S. 786, 33 L. Ed. 2d 706, 92 S. Ct. 2562 (1972), for use in testing
a claimed violation of due process on these grounds. Under that test the
relevant factors are "(a) suppression by the prosecution after a request
by the defense, (b) the evidence's favorable character for the defense,
and (c) the materiality of the evidence." 408 U.S. at 794-95. See \ul
[F.2d 1191]\ul0 Ogden v. Wolff, 522 F.2d 816 (8th Cir. 1975). See
generally United States v. Librach, 520 F.2d 550 (8th Cir. 1975); United
States v. Agurs, 167 U.S. App. D.C. 28, 510 F.2d 1249, 1252-54 (1975).
The first prong of the Moore
test was met in the instant case. Sufficient request was made for all exculpatory
evidence prior to trial and the specific photographs in question were sought
by counsel during the trial. However, there is no evidence in the record
to support a finding that the prosecutor deliberately and in bad faith
suppressed these photographs. Rather, the suppression here, if any, appears
at most to be in the realm of negligent nondisclosure. As such, the appellant
must provide "some showing of fundamental unfairness as a result of the
suppression in order to merit relief." Ogden v. Wolff, supra, 522
F.2d at 821.
With regard to the second prong of
the Moore test, it was noted by this court in Evans v. Janing,
supra, 489 F.2d at 476, that information indicating the failure of
a witness to identify the defendant would be "potentially useful to the
defendant and therefore favorable to his defense." The slight burden under
this element of the test is easily satisfied here.
The third prong, the materiality of
the suppressed evidence, is the most difficult test to satisfy under Moore.
Appellant contends that the suppressed photographic evidence, assuming
that Crow Dog is pictured therein, is highly material to the issues of
the allegedly tainted in-court identification of Crow Dog and the general
credibility of the inspectors. We do not agree inasmuch as appellant Crow
Dog's presence in Wounded Knee at the time in question is not in serious
dispute.
In our view the nature of the suppressed
evidence is such that it could not have been used by skilled counsel to
develop "a reasonable doubt [of guilt] in the minds of enough jurors to
avoid a conviction." Shuler v. Wainwright, 491 F.2d 1213, 1223 (5th
Cir. 1974) quoting from United States v. Miller, 411 F.2d
825, 832 (2d Cir. 1969). See also Ogden v. Wolff, supra, 522 F.2d
at 822; Evans v. Janing, supra, 489 F.2d at 477 & n.19; United
States v. Kahn, 472 F.2d 272, 289 (2d Cir.), cert. denied, 411
U.S. 982, 36 L. Ed. 2d 958, 93 S. Ct. 2270 (1973). A review of the record
in the instant case fully illustrates the limited utility this evidence
would have had at trial.
Appellant's claim of materiality with
regard to in-court identifications of him by the postal inspectors is apparently
based upon his belief that with the addition of the suppressed photographic
evidence the court would have found that the in-court identifications were
so tainted as to preclude their reliability. See Neil v. Biggers,
409 U.S. 188, 196-201, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972); Simmons
v. United States, 390 U.S. 377, 382-86, 19 L. Ed. 2d 1247, 88 S. Ct.
967 (1968). See generally United States v. Wade, 388 U.S. 218, 18
L. Ed. 2d 1149, 87 S. Ct. 1926 (1967). In our view the record of the thorough
taint hearings conducted by the trial court as to each inspector adequately
rebuts this charge and supports the district court's conclusion that an
independent basis for identification existed in each instance.
Similarly, the suppressed identification
evidence could not have had such a major bearing on the credibility of
the postal inspectors as to require a new trial under Brady standards.
Appellant argues on this appeal that his identification "as the person
who committed certain acts is the key issue in this case." We agree. However,
we do not agree with appellant's statement that the suppressed evidence
"is material to the question of innocence or guilt and should be presented
to the jury."
It is readily apparent from the record
that the identification of appellant Crow Dog as being a person who was
in the museum at some time during the course of the postal inspectors'
detention is beyond question. Nor does there seem to be any significant
doubt concerning the fact that Crow Dog lectured the postal inspectors
during their captivity on a variety of issues relating to Indian problems.
The entire thrust of Crow Dog's trial defense was [F.2d 1192] predicated
on the contention that he could not be found guilty of aiding and abetting
a robbery on evidence that merely established that he came in and gave
a speech. This point was emphasized by counsel for Crow Dog in his opening
statement and closing arguments to the jury. Further, defense counsel stated
to this court in oral argument that he did not believe that Crow Dog's
presence within the museum in the role of a lecturer was "an issue."
Thus it seems clear that the suppressed
evidence would not have proved or disproved appellant Crow Dog's presence
at the scene of the incident. Instead, appellant would have used the suppressed
evidence for the purpose of impeaching the postal inspectors with respect
to their subsequent identification of Leonard Crow Dog as a man who did
certain acts in addition to lecturing while inside the museum. The in-court
identification of Leonard Crow Dog at the scene by the postal inspectors
was strong and not seriously questioned. However, there were contradictions
and inconsistencies in their testimony on the issue of Crow Dog's role
in the incident. These areas were fully explored in lengthy cross-examination
by all three able defense attorneys. In many respects, the claimed suppressed
identification evidence would have been cumulative. In any event, the evidence
could not have played a determinative role in the outcome of the trial.
It was not sufficiently material on the ultimate question of guilt or innocence
so that its suppression constituted a violation of due process. See
Giglio v. United States, 405 U.S. 150, 153-54, 31 L. Ed. 2d 104, 92
S. Ct. 763 (1972); Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed.
2d 1217, 79 S. Ct. 1173 (1959).
In conclusion, we find that while there
may have been a negligent nondisclosure by the prosecution of favorable
evidence following the request by the defense for production of same, the
evidence in question completely fails to satisfy the materiality standards
required by Moore and therefore does not warrant further hearing
or the granting of a new trial on the basis of a violation of due process.
IV.
The next contention raised by appellant
is that he was denied his right to speedy indictment and trial as guaranteed
by the Fifth and Sixth Amendments and by Fed. R. Crim. P. 48(b). We disagree.
It is alleged that the period between
Crow Dog's initial indictment on April 10, 1973, and the commencement of
trial on June 2, 1975, constituted a delay sufficient to require dismissal
of the indictment pursuant to the guidelines established by the Supreme
Court in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S.
Ct. 2182 (1972). The "ad hoc" balancing test from Barker
requires consideration of the following factors in determining whether
a constitutional violation has occurred: "Length of delay, the reason for
the delay, the defendant's assertion of his right, and prejudice to the
defendant." Barker v. Wingo, supra, 407 U.S. at 530 (footnote omitted).
The delay in the instant case, when viewed in light of these factors, was
not constitutionally fatal.
We find initially that the length of
the delay in the instant case is sufficient to trigger further inquiry.
It should be noted, however, that the complexity of the Wounded Knee cases
generally serves to justify a somewhat longer delay than would ordinarily
have been permitted prior to a finding that the defendant had been presumptively
prejudiced. See Barker v. Wingo, supra, 407 U.S. at 530.
The second factor, the reason for the
delay, does not weigh heavily in the balancing process for or against either
side in this case. Rather, our examination reveals that the delay was occasioned
by primarily "neutral" factors. See Barker v. Wingo, supra, 407
U.S. at 531.
It is important to keep in mind the
fact that the sheer magnitude of the Wounded Knee incident placed a heavy
burden on the federal courts responsible for the prosecutions [F.2d
1193] arising therefrom. Allocation of manpower and resources was of
no little concern to both the prosecution and the defense in their preparation.
In addition, the logistics of bringing to trial a large number of persons
on a wide variety of charges required a more protracted period for discovery
and pretrial matters than would normally be expected. Further, the nine-month
trial of Dennis Banks and Russell Means after denial of the motion to consolidate
necessarily postponed the non-leadership trials. For example, defense counsel
for Crow Dog in this action was counsel for Russell Means in that trial
and the resultant appeal process. Finally, the government's acquisition
of a superseding indictment against Crow Dog in December 1974 on substantive
charges which were not previously brought required that further preparation
time be allowed to both sides. We note that a speedy trial was had on those
substantive charges with less than seven months elapsing between the time
of the superseding indictment and the conviction of appellant Crow Dog
which is now on appeal.
We have taken into consideration all
of these factors in analyzing the reason for the delay. While responsibility
for the delay appears to rest in some measure on both the prosecution and
defense, we realize that the government must ultimately bear the greater
share. However, it is clear that, to the extent the government is responsible
for the delay, it was not done in "an attempt to gain a tactical advantage
over the defendant or to harass him." United States v. Jackson,
508 F.2d 1001 (7th Cir. 1975). Thus, on balance, we are not inclined to
give this factor great weight for or against either side in determining
whether or not a denial of speedy trial has taken place.
Appellant has also failed to satisfy
the remaining two Barker elements. First, there was no clearly articulated
assertion of defendant's right to a speedy trial. Appellant contends that
his motion to consolidate contained language which was tantamount to such
a request, in that it stated that unless consolidation was granted Crow
Dog and the other non-leadership defendants would be denied that right.
The trial court, in its discretion, denied the motion. No subsequent demand
for a speedy trial was made by Crow Dog. Nor did defense counsel express
any particular interest in separate simultaneous trials of all Wounded
Knee defendants. To have done so, it is now contended, would have been
inconsistent with concepts of due process and fairness. Under these unusual
circumstances we find no active assertion of the right to a speedy trial
by appellant Crow Dog. A request for a speedy trial will not be inferred
from a set of facts such as these which indicate that the desire for a
prompt trial was conditioned upon a grant of the consolidation motion.
Finally, we are unpersuaded that any
cognizable prejudice has occurred to Crow Dog as a result of the delay.
The Supreme Court in Barker specified that the three major concerns
in this area of prejudice were "(i) to prevent oppressive pretrial incarceration;
(ii) to minimize anxiety and concern of the accused; and (iii) to limit
the possibility that the defense will be impaired." 407 U.S. at 532 (footnote
omitted). Appellant Crow Dog was free on bond throughout the entire pendency
of this action and thus has no claim based on oppressive incarceration.
It is claimed, however, that his preparation of an effective defense was
impeded by the passage of time. This contention is wholly unmeritorious.
The discovery taken by the Wounded Knee Legal Defense/Offense Committee
was, from its inception, for the benefit of all defendants in criminal
actions arising out of the Wounded Knee incident. Appellant admits in his
brief that much of the testimony offered against him at his trial had been
previously given at the Means/Banks trial. Any "fading of memories" could
have been revived and refreshed by those prior transcripts.
As to the August 1974 death of Angel
Martinez, an eyewitness to the events in the museum, we conclude that any
claim of resultant prejudice is based entirely on [F.2d 1194] speculation.
The record before this court does not indicate what Martinez' testimony
would or could have been. Where, as here, no specific claim of prejudice
is made and where eyewitness testimony abounds,6
the fact that a possible witness died during the delay will not be weighed
heavily in the balance.
Thus, appellant Crow Dog is confined
to a claim of general prejudice arising from the strain of being under
indictment and subject to the possibility of a lengthy prison term. However,
that allegation by itself "does not establish prejudice where, as here,
the defendant neither asserts nor shows that the delay weighed particularly
heavily on him in specific instances." Morris v. Wyrick, 516 F.2d
1387, 1391 (8th Cir. 1975). See also United States v. Baumgarten,
517 F.2d 1020, 1025 (8th Cir. 1975); United States v. Cummings,
507 F.2d 324, 330 (8th Cir. 1974).
After careful consideration of the
four factors from Barker, we are satisfied that no denial of the
right to a speedy trial occurred in the instant case.
Appellant further alleges that his
rights under the Fifth Amendment were denied by virtue of the delay in
issuing the superseding indictment. See United States v. Marion,
404 U.S. 307, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971). This claim is without
merit. The standard employed in determining whether prejudice has taken
place as a result of pre-indictment delay is "whether the delay has impaired
the defendant's ability to defend himself." United States v. Golden,
436 F.2d 941, 943 (8th Cir.), cert. denied, 404 U.S. 910, 30 L.
Ed. 2d 183, 92 S. Ct. 236 (1971). See also United States v. Jackson,
504 F.2d 337 (8th Cir. 1974), cert. denied, 420 U.S. 964, 43 L.
Ed. 2d 442, 95 S. Ct. 1356 (1975). We agree with the district court's finding
that there has been no showing to substantiate appellant's claim of prejudice
or intentional delay. See United States v. Jackson, supra, 504 F.2d
at 339 n.2; United States v. Rucker, 496 F.2d 1241, 1242-44 (8th
Cir. 1974). Although the superseding indictments were not handed down until
some 20 months after the incident, Crow Dog had been under indictment for
a crime encompassing the same set of events during almost that entire period.
Any defense efforts made in regard to that first indictment carried over
to the second and thus negated the chance of an impaired defense. The district
court's finding in this regard is not clearly erroneous. United States
v. Jackson, supra, 504 F.2d at 341.
Similarly unmeritorious is appellant's
contention that the district court erred in failing to dismiss his case
for want of prosecution under Fed. R. Crim. P. 48(b). That rule gives the
court discretion to dismiss an indictment for unnecessary delay even if
no Sixth Amendment violation is found. See United States v. Clay,
481 F.2d 133, 135 (7th Cir.), cert. denied, 414 U.S. 1009, 38 L.
Ed. 2d 247, 94 S. Ct. 371 (1973). This court has held, however, that most
of the same factors which are relevant for Sixth Amendment purposes are
applicable to Rule 48(b) motions. See Hodges v. United States, 408
F.2d 543, 551 (8th Cir. 1969). Having already discussed the Barker
standards at length and found no denial of Sixth Amendment rights, we conclude
that the district court's denial of a dismissal pursuant to Rule 48(b)
was not an abuse of discretion. See Hodges v. United States, supra,
408 F.2d at 551.
V.
We next review appellant's claim that
the evidence presented against him at trial was insufficient as a matter
of law to sustain his conviction as an aider and abettor. It is asserted
that the government's testimony failed to show that Crow Dog did any affirmative
act to further the accomplishment of the criminal acts charged, namely,
robbery of a pistol belonging to the United States and intimidation of
and interference with the performance of duties by a federal postal inspector.
In evaluating this contention, we are guided by the principle that [F.2d
1195] this court must view the evidence in the light most favorable
to the verdict and accept all reasonable inferences that flow therefrom.
United
States v. Baumgarten, 517 F.2d 1020, 1026 (8th Cir. 1975);
United
States v. Wiebold, 507 F.2d 932, 933 (8th Cir. 1974); United States
v. Britton, 500 F.2d 1257, 1258 & n.4 (8th Cir. 1974); Koolish
v. United States, 340 F.2d 513, 519 (8th Cir.), cert. denied,
381 U.S. 951, 14 L. Ed. 2d 724, 85 S. Ct. 1805 (1965).
Applying that standard to the instant
case, we find that the evidence is sufficient to support appellant Crow
Dog's conviction on both counts. Aiding and abetting requires proof by
the government
that the defendant had a "purposeful
attitude" and in some manner participated in the unlawful deed. United
States v. Hill, 464 F.2d 1287 (8th Cir. 1972); United States v.
Kelton, 446 F.2d 669, 671 (8th Cir. 1971); United States v. Peoni,
100 F.2d 401, 402 (2d Cir. 1938). See also United States v. Atkins,
473 F.2d 308, 310-13 (8th Cir.), cert. denied, 412 U.S. 931, 93 S. Ct.
2751, 37 L. Ed. 2d 160 (1973). Essentially, this requires the existence
of "some affirmative participation which at least encourages the perpetrator."
United
States v. Thomas, 469 F.2d 145, 147 (8th Cir. 1972). See also United
States v. Wiebold, 507 F.2d 932, 934 (8th Cir. 1974).
United States v. Baumgarten, supra,
517 F.2d at 1027. See also Pereira v. United States, 347 U.S. 1,
9, 74 S. Ct. 358, 98 L. Ed. 435 (1954); Nye & Nissen v. United States,
336 U.S. 613, 618-19, 93 L. Ed. 919, 69 S. Ct. 766 (1949).
Evidence was presented in this case
which showed that appellant Crow Dog (1) met the postal inspectors outside
the museum building in which they were subsequently held and informed them
that they were "prisoners of war" and would be treated accordingly; (2)
entered the building with the inspectors and repeated the prisoner of war
statement to them as they were being bound and gagged; (3) lectured the
captive inspectors on the problems of Indian people in the areas of health
and education;7
(4) warned that the inspectors might be carrying concealed recording or
radio transmitting equipment on their bodies and that they should be searched;
and, (5) took keys to a locked briefcase from one of the inspectors. We
feel that this evidence provides sufficient support for the jury's finding
that Crow Dog aided and abetted the commission of the crimes charged.
The fact that the testimony of the
postal inspectors contains various minor inconsistencies regarding the
precise role played by appellant Crow Dog does not require a contrary result.
The resolution of any such inconsistencies and contradictions is left to
the jury. Likewise, the matter of the identification of Crow Dog by the
inspectors, discussed supra in another context, was fully ventilated
before the jury and committed to them for ultimate determination. See
Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct.
457 (1942).
VI.
The next issue which we consider is
appellant's allegation that he was the victim of discriminatory and bad
faith prosecution and governmental misconduct. A motion to dismiss was
filed in the district court prior to trial based on these same reasons.
In a post-trial order entered on August 4, 1975, the district court held
that, after careful examination of the voluminous record in this case and
in the other Wounded Knee cases, these contentions by appellant Crow Dog
were not substantiated. 399 F. Supp. at 234-38. We agree.
As recently stated by this court in
United
States v. Swanson, 509 F.2d 1205, 1208 (8th Cir. 1975):
[F.2d 1196] It is well established
that a reasonable prosecutorial discretion is inherent in our judicial
system, United States v. Wiley, 503 F.2d 106, 107 (8th Cir. 1974),
and that such discretion does not amount to unconstitutional discrimination
unless it is deliberately based upon an unjustifiable standard such as
race, religion or other arbitrary classification, United States v. Alarik,
439 F.2d 1349 (8th Cir. 1971).
Further, we are guided by the principle
that "[the] presumption is always that a prosecution for violation of criminal
law is undertaken in good faith and in nondiscriminatory fashion for the
purpose of fulfilling a duty to bring violators to justice." United
States v. Falk, 479 F.2d 616, 620 (7th Cir. 1973) (en banc).
In order to overcome this presumption
the defendant bears the burden of proving that he was singled out for prosecution
while others similarly situated were not indicted, and that the decision
to prosecute him was in bad faith and based upon impermissible considerations.
These two essential elements are sometimes referred to as "intentional
and purposeful discrimination." United States v. Berrios, 501 F.2d
1207, 1211 (2d Cir. 1974). See also United States v. Swanson, supra,
509 F.2d at 1208-09; United States v. Ortega-Alvarez, 506 F.2d 455,
458 (2d Cir. 1974), cert. denied, 421 U.S. 910, 95 S. Ct. 1559,
43 L. Ed. 2d 775 (1975); Tollett v. Laman, 497 F.2d 1231, 1233 (8th
Cir.), cert. denied, 419 U.S. 1088, 42 L. Ed. 2d 680, 95 S. Ct.
678 (1974).
The record in the instant case fails
to disclose any such impermissible motive on behalf of the prosecution.
At the hearing which was held by the district court on this issue, evidence
was presented which showed (1) that the conviction rate in Wounded Knee
cases was significantly lower than the national average; (2) that non-AIM
members have not been prosecuted for violent criminal conduct, nor have
incidents of violence involving those persons been meaningfully investigated;
and, (3) that non-AIM Indians who participated in a roadblock incident
similar in some respects to the case at bar were not prosecuted. The trial
court carefully analyzed all of the evidence, including FBI investigatory
files, and concluded that "defendants' three categories of evidence, neither
individually nor cumulated, show an intentional selection of these defendants
for prosecution based on their affiliation with and activities in the American
Indian Movement." 399 F. Supp. at 236. The record in the instant case is
devoid of any evidence which indicates that appellant Crow Dog was intentionally
singled out for prosecution. Accordingly, we uphold the order of the district
court denying defendant's motions to dismiss on this basis.
Appellant's argument regarding alleged
governmental misconduct is similarly without merit. It is contended that
the activities of the government outlined by the court in United States
v. Banks, 383 F. Supp. 389, 393-97 (D.S.D. 1974) have been carried
over into this case. Specifically, appellant Crow Dog decries the use of
informants placed in the defense camp by the government, the resulting
cover-up of that use, and the failure by the government to comply with
various pretrial discovery orders. He contends that these acts amounted
to a deprivation of due process and an abuse of the judicial system which
requires a reversal of the conviction and a dismissal of the indictment.
Accusations such as these are, of course,
a serious matter. Courts must guard against the abuse of the judicial process.
As stated by the Supreme Court in McNabb v. United States, 318 U.S.
332, 340, 87 L. Ed. 819, 63 S. Ct. 608 (1942), "[judicial] supervision
of the administration of criminal justice in the federal courts implies
the duty of establishing and maintaining civilized standards of procedure
and evidence." See also Communist Party v. Subversive Activities
Control Board, 351 U.S. 115, 124, 100 L. Ed. 1003, 76 S. Ct. 663 (1956).
In discharging this supervisory function the courts have the latitude to
fashion remedies that include those sought in the instant case. However,
the court in United States v. McCord, 166 U.S. App. D.C. 1, 509
F.2d [F.2d 1197] 334, 348-51 (1974) (en banc), cert. denied,
421 U.S. 930, 44 L. Ed. 2d 87, 95 S. Ct. 1656 (1975), while noting that
"serious prosecutorial misconduct may so pollute a criminal prosecution
as to require dismissal of the indictment or a new trial, without regard
to prejudice to the accused," id. at 349, also recognized that the
desire to deter prosecutorial misconduct "does not eliminate consideration
of prejudice [to the accused] altogether." Id. at 350. The record
in the instant case fails to disclose that any prejudice accrued
to appellant Crow Dog by virtue of the alleged acts of government misconduct
and therefore we find no basis for relief.
The trial court analyzed the alleged
instances of misconduct, specific and general, which were presented by
the appellant. It found that the majority of the incidents took place during
the trial of other Wounded Knee defendants, especially AIM leaders Dennis
Banks and Russell Means. No attempt was made to prove that any prejudice
to this defendant resulted from those incidents. In the absence of such
proof, it will not be presumed that the misconduct of the government in
one case carries over to another case.
There is one instance of alleged government
misconduct which merits special attention in this case. Appellant has alleged
here and in other recent cases before this court that the presence in the
Wounded Knee defense camp of an operative paid by the government constituted
a denial of due process in that it subverted the attorney-client relationship.
Our examination of the record in this case shows conclusively that no such
denial of Crow Dog's rights occurred.
The informant, Douglas Durham, had
worked in various undercover capacities prior to the Wounded Knee incident.
His relationship with the FBI began in March 1973 when he supplied the
FBI office in Des Moines, Iowa, with copies of photographs he had taken
in a one-day visit to Wounded Knee. He later served in various leadership
positions within AIM, including national security director and national
administrator. He became a close companion of AIM leader Dennis Banks during
the period including the Banks-Means trial in St. Paul. Throughout this
period of intimate affiliation with AIM and its leaders he was supplying
information to the FBI.
Appellant Crow Dog contends that Durham
had access to the legal files prepared by the Wounded Knee Legal Defense/Offense
Committee that represented him and most other persons charged in Wounded
Knee related incidents. It is further alleged that Durham was present at
conferences between the attorneys and clients in St. Paul during the Banks-Means
trial and during other such conferences in Lincoln, Nebraska, in January
1975. These conferences allegedly included discussion of legal matters
and defense strategy common to all Wounded Knee defendants, thus affording
Durham the opportunity to reveal such plans to the FBI and federal prosecutors.
Appellant contends that this activity constituted gross misconduct requiring
reversal of his conviction in accordance with the principles established
in Hoffa v. United States, 385 U.S. 293, 306-08, 17 L. Ed. 2d 374,
87 S. Ct. 408 (1966), and South Dakota v. Long, 465 F.2d 65, 71-72
(8th Cir. 1972), cert. denied, 409 U.S. 1130, 35 L. Ed. 2d 263,
93 S. Ct. 951 (1973). We disagree.
We have carefully studied the record
in this case and have viewed the FBI files on Durham which were examined
by the district court in camera. There is no evidence in the record
that Durham was present during the discussion of any defense strategy relevant
to appellant Crow Dog's trial nor is there any indication that he passed
on any such information to the FBI. Further, by the time of Crow Dog's
trial in June 1975 Durham had been exposed as an informant.
The record here merely indicates that
during the period of Durham's service as an informant for the FBI he occupied
various leadership positions within AIM and was a confidant of Dennis Banks.
Any close proximity with appellant Crow Dog is [F.2d 1198] neither
alleged nor apparent from the record. No prejudice to appellant has been
shown to arise from this tangential relationship with his case. We adopt
the position that in the absence of a showing of actual prejudice:
[There] must be the actual gaining,
rather than the mere opportunity for gaining, of information relative to
a charge against [a] defendant, and the information must be obtained by
the informant from an intrusion into the attorney-client relationship.
United States v. Cooper, 397
F. Supp. 277, 285 (D. Neb. 1975). No such "gaining" or "intrusion" has
been shown in the instant case.
VII.
The two remaining issues raised by
appellant Crow Dog on this appeal are of little merit and are entitled
to only summary consideration. The first argument involves the refusal
by the trial court to allow individualized voir dire of the prospective
jurors outside the presence of each other. A motion to this effect was
made by defense counsel and denied by the court. Appellant alleges that
the nature of this case, the publicity that surrounded the Wounded Knee
incident, and the racial prejudice that exists generally against American
Indians necessitated that this extra protective measure be taken in order
to assure a fair trial.
We note initially that pursuant to
Fed. R. Crim. P. 24(a) the trial judge in his discretion may permit the
attorneys in an action to ask questions of individual prospective jurors.
In the instant case the court afforded great latitude to defense counsel
in their questioning. One full day was spent selecting the jury. The entire
trial, including the voir dire, lasted only three and one-half days. Each
potential juror was carefully examined as to his or her exposure to the
Wounded Knee incident through the media and was thoroughly questioned as
to possible prejudice against Indians. Such in-depth probing of individual
jurors fully comported with the standards laid down in this court's recent
decision in United States v. Bear Runner, 502 F.2d 908, 912-13 (8th
Cir. 1974). Refusal to allow individual, segregated voir dire was not an
abuse of the trial court's broad discretion in this area. See United
States v. Bear Runner, supra, 502 F.2d at 911.
Finally, appellant charges that the
intentional failure by the government to have the grand jury testimony
of law enforcement personnel recorded constituted error. This court has
consistently held that "there is no constitutional or statutory requirement
that grand jury testimony be recorded." United States v. Biondo,
483 F.2d 635, 641 (8th Cir. 1973), cert. denied, 415 U.S. 947, 39
L. Ed. 2d 563, 94 S. Ct. 1468 (1974). See also United States v. Arradondo,
483 F.2d 980, 984 (8th Cir. 1973), cert. denied, 415 U.S. 924, 39
L. Ed. 2d 480, 94 S. Ct. 1428 (1974); United States v. Harflinger,
436 F.2d 928, 930 (8th Cir. 1970), cert. denied, 402 U.S. 973, 29
L. Ed. 2d 137, 91 S. Ct. 1660 (1971). But see United States v. Thoresen,
428 F.2d 654, 666 (9th Cir. 1970); United States v. Cianchetti,
315 F.2d 584, 591 (2d Cir. 1963). We see no reason to depart from our holdings
in the instant case.
In summary, we find that appellant
Crow Dog has failed to assert any basis for the reversal of his conviction
in the instant case. The trial court afforded defendants and defense counsel
great latitude in the course of the trial. In the absence of any showing
of prejudicial error or abuse of discretion by the trial court, appellant
Crow Dog's convictions on both counts must be affirmed.
LAY, Circuit Judge, Concurring
I concur in Judge Stephenson's thorough
opinion. However, I feel the time has come for district courts to adopt
local rules requiring the government to record grand jury testimony of
law enforcement personnel. Although there may be no constitutional or statutory
requirement that grand jury testimony be recorded, nonetheless this court
has cautioned that the better practice is to record and transcribe the
minutes of [F.2d 1199] all proceedings of the grand jury which are
accusatorial in nature. See United States v. Arradondo, 483 F.2d
980 (8th Cir. 1973), cert. denied, 415 U.S. 924, 39 L. Ed. 2d 480,
94 S. Ct. 1428 (1974). As Judge Bright there stated:
We note that failure of prosecutors
to record significant testimony before the grand jury serves to thwart
the right of the defendant under a showing of "particularized need" . .
. to obtain grand jury testimony of a trial witness.
483 F.2d at 985 n. 4.
Since we have not previously made it
a court rule to record grand jury testimony, I do not vote for reversal
here. However, I think that the time for that rule has arrived.
1 The Honorable Edward J. McManus,
Chief Judge, United States District Court for the Northern District of
Iowa.
2 An understanding of the Wounded Knee
incident and the role played therein by the American Indian Movement may
be gained by reference to a number of district court opinions which evolved
from the trial of AIM leaders Dennis Banks and Russell Means. See United
States v. Banks, 383 F. Supp. 389 (D.S.D. 1974); United States v.
Banks, 383 F. Supp. 368 (D.S.D. 1974).
3 The Honorable Fred J. Nichol, United
States District Judge for the District of South Dakota.
4 Count III of the December 12, 1974,
indictments handed down against Camp and Crow Dog was severed prior to
trial and then dismissed by the government following the jury's verdict.
5 A defendant is, of course, entitled
to seek a transfer of venue subsequent to the filing of a superseding indictment
and the dismissal of the original indictment on which transfer had been
granted. In ruling on that motion, the court could take judicial notice
of the evidence adduced at the previous hearing on the transfer issue and
accord it whatever weight it sees fit. Such a motion was made in the instant
case resulting in the transfer of the action to the Northern District of
Iowa. Under Fed. R. Crim. P. 21(a) the court is not required to transfer
the proceedings to the district specified in defendant's motion.
6 The transcripts reveal that during
the period of the postal inspectors' captivity somewhere between 40 and
50 spectators were in or near the museum.
7 Appellant contends, somewhat imprecisely,
that the act of lecturing would not have provided a sufficient basis in
and of itself to support his conviction as an aider and abettor, especially
with regard to the alleged act of robbery. By virtue of the fact that there
is other evidence in the record from which Crow Dog's active role in the
incident can be inferred, we need not reach this question. It is our view,
however, that appellant Crow Dog's act of speech loses its First Amendment
protection when coupled with criminal activity.
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