UNITED STATES of America, Plaintiff,
vs.
Dennis BANKS, Defendant. UNITED
STATES of America, Plaintiff,
v.
Russell MEANS, Defendant
Nos. CR73-5034, CR73-5062, CR73-5035,
CR73-5063
United States District Court For The
District Of South Dakota, Western Division
383 F. Supp. 368, 1974 U.S. Dist.
Decision
August 20, 1974
William F. Clayton, U.S. Dist.
Atty., D.S.D., and R. D. Hurd and David R. Gienapp, Asst. U.S. Attys.,
Sioux Falls, South Dakota, and Earl Kaplan, Dept. of Justice, Washington,
District of Columbia, for plaintiff. Mark Lane, St. Paul, Minnesota, Douglas
Hall and Larry B. Leventhal, Minneapolis, Minnesota, for defendant Banks.
William M. Kunstler, New York, New York, and Kenneth E. Tilsen, St. Paul,
Minnesota, for defendant Means.
Nichol, Chief Judge.
[F. Supp. 370] MEMORANDUM DECISION
NICHOL, Chief Judge.
In this case arising from events which
took place at Wounded Knee, South Dakota, during the 71 day period from
February 27, 1973, to May 8, 1973, at the close of the government's case,
the defendants Means and Banks have moved for judgment of acquittal as
to all eight counts of indictments 73-5034-5 and the two counts of indictments
73-5062-3. This trial is a consolidation of two of the Wounded Knee Occupation
leadership cases. The two defendants, Means and Banks, were identically
charged in the first two indictments, as follows: Count I, with burglary
of the Wounded Knee Trading Post; Count II, with larceny of certain contents
of the Trading Post; Count III, with assault on Joanne Pierce, a Special
Agent of the Federal Bureau of Investigation; Count IV, with preparation
and location of bunkers and trenches at Wounded Knee, which obstructed,
impeded or interfered with law enforcement officers; Count V, with the
placement of a road block, manned by persons armed with guns, on a road
leading into Wounded Knee, which obstructed, impeded, or interfered with
law enforcement officers; Count VI has previously been dismissed by this
Court; Count VII, with possession of unregistered firearms (molotov cocktails);
Count VIII, with theft of an automobile; Count IX, with a conspiracy to
commit criminal acts including the previous substantive Counts. Subsequent
to the return of the two indictments just summarized, two additional indictments,
CR73-5062 and CR73-5063, charged Banks and Means respectively under Count
I (hereinafter for convenience referred to as Count X) with assaulting
Curtis Fitzgerald, a Special Agent of the Federal Bureau of Investigation;
Count II (hereinafter for convenience referred to as Count XI) alleged
an assault on Lloyd Grimm, United States Marshal for the District of Nebraska.
Briefs on motion for judgment of acquittal
as to all ten counts were filed with this Court by the moving party and
by the government. Oral argument on the motion was conducted on August
7, 1974. At the conclusion of the argument, the motion for judgment of
acquittal was granted as to Counts I, VII and VIII. The motion was denied
as to Counts II and IX. Judgment was reserved by this Court as to Counts
II, IV, V, X and XI, pending an evidentiary hearing on the question of
the alleged illegality of the government's law enforcement efforts at Wounded
Knee during the occupation. That hearing commenced on August 7, 1974, and
was completed on August 9, 1974. In addition to the evidence introduced
by way of testimony and exhibit at that hearing, portions of the transcript
from a trial conducted by Judge Warren Urbom in Lincoln, Nebraska, in connection
with another case arising out of the Wounded Knee Occupation, were admitted
in evidence by way of stipulation. At the conclusion of the evidentiary
hearing, this Court granted the motion for judgment of acquittal as to
Counts IV and V, and denied the motion as to Counts II, X and XI. The Court
reserved the right to file a written opinion.
In the pages that follow, consideration
will be directed first to certain contentions [F. Supp. 371] raised
by the defendants in the motion for judgment of acquittal which relate
to all of the Counts. Succeeding parts of this Memorandum Decision will
deal with the specific Counts.
PART I
A. The Sioux Treaty of 1868
The defendants in their motion and
brief assert that this Court lacks jurisdiction under the Sioux Treaty
of 1868, 15 Stat. 635. This claim is applied to all of the Counts. The
crux of the defendants' argument is based in the first instance on Article
I of the Treaty, which provides that the Indians will, "upon proof made
to the agent . . .," deliver-up to the United States, Indians accused of
violating the laws of the United States.
The Oglala Sioux Tribal Code, Chapter
I, Section I, in essence provides that the Tribal Court "shall have jurisdiction
over all offenses when committed by a member of the Tribe, and non-member
Indians . . . ." Further, the defendants argue that Chapter I, Section
1.1, Part 1, of the Tribal Code establishes the Tribal Court as the "agent"
referred to in Article I of the Treaty. The defense then asserts that as
there is no record of proof having been made to the Tribal Court as to
these defendants, the United States lacks jurisdiction.
This Court is unable to accept the
analysis suggested by the defense. Congress has, since 1868, enacted statutes
which have either amended or abrogated the terms of the Sioux Treaty. See,
e.g., The Major Crimes Act, 18 U.S.C. Sec. 1153. That Congress has the
power to so amend or abrogate the Treaties made with the Indians is established.
Choate v. Trapp, 224 U.S. 665, 32 S. Ct. 565, 56 L. Ed. 941 (1912).
The Tribes have been regarded as dependent
nations, and treaties with them have been looked upon not as contracts,
but as public laws which could be abrogated at the will of the United States.
Choate, supra, at 670-671, 32 S. Ct. at 567.
See also United States v. Kagama,
118 U.S. 375, 6 S. Ct. 1109, 30 L. Ed. 228 (1868). The following language
from United States v. Blackfeet Tribe, 364 F. Supp. 192 (D.Mont.1973),
is instructive:
The defendants urge that the Black-feet
Tribe is sovereign and that the jurisdiction of the tribal court flows
directly from that sovereignty. . . . The blunt fact, however, is that
an Indian tribe is sovereign to the extent that the United States permits
it to be sovereign -- neither more nor less. While for many years the United
States recognized some elements of sovereignty in the Indian tribes and
dealt with them by treaty, Congress by Act of March 3, 1871 (16 Stat. 566,
25 U.S.C. § 71) prohibited the further recognition of Indian tribes
as independent nations. Thereafter the Indians and the Indian tribes were
regulated by acts of Congress. The power of Congress to govern by statute
rather than treaty has been sustained. Blackfeet, supra, at 194
(citations omitted).
It is clear to this Court that Congress
intended, in enacting the Major Crimes Act, 18 U.S.C. Sec. 1153, for this
Court to have jurisdiction of those Counts based on that statute. Those
Counts based on statutes other than the Major Crimes Act have previously
been the subject of a motion to dismiss on jurisdictional grounds. This
Court in its Memorandum Decision decided at that time that jurisdiction
existed, and accordingly denied the motion.
The motion for judgment of acquittal
as to all Counts on the grounds of lack of jurisdiction under the Sioux
Treaty of 1868 is denied.
B. Discriminatory Prosecution and Bad
Faith Prosecution
The Court adheres to its formal ruling
in United States v. Banks, 368 F. Supp. 1245 (D.S.D.1973). Evidence presented
since the decision in Banks, supra, fails to persuade this Court
that a reasonable doubt exists as to the prosecutor's [F. Supp. 372]
purpose. The motion for judgment of acquittal as to all the Counts, on
the grounds of discriminatory prosecution and bad faith prosecution is
hereby denied.
PART II
COUNT IX -- CONSPIRACY
Count IX charged the defendants with
entering and engaging in a criminal conspiracy, in violation of 18 U.S.C.
Sec. 371. The defendants, by their motion for judgment of acquittal and
supporting brief and argument, have contended vigorously that the evidence
as to Count IX is insufficient to justify submission of the Count to the
jury. Their argument focuses primarily on the lack of any direct evidence
of an agreement. It is of course elementary that for there to be a conspiracy,
there must be an agreement among the coconspirators. The agreement need
not be express or formal. United States v. Hutchinson, 488 F.2d 484 (8th
Cir. 1973). It is equally elementary that the offense of criminal conspiracy
requires the commission of at least one overt act, by one of the coconspirators,
in furtherance of the conspiracy. United States v. Skillman, 442 F.2d 542
(8th Cir.), cert. den. 404 U.S. 833, 92 S. Ct. 82, 30 L. Ed. 2d 63 (1971).
The defendants are perhaps correct
when they state in their brief that there is no direct evidence of the
existence of an agreement among the coconspirators. However, the law in
this circuit is clear. No direct evidence need be produced to support the
submission of a conspiracy charge to a jury. "The agreement . . . may be
established by circumstantial evidence." Hutchinson, supra, 488
F.2d at 490. In Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86
L. Ed. 680 (1942), the United States Supreme Court stated that, "Participation
in a criminal conspiracy need not be proved by direct evidence; a common
purpose and plan may be inferred from a 'development and collocation of
circumstances.'" Glasser, supra, at 80, 62 S. Ct. at 469.
The record in this case is replete
with testimony from which the existence of an agreement may be inferred.
The jury could well find beyond a reasonable doubt that the events surrounding
the occupation of Wounded Knee constituted a "development and collocation
of circumstances" evidencing the existence of a criminal conspiracy. This
Court finds that there is sufficient evidence to submit Count IX to the
jury, and therefore the motion for judgment of acquittal as to Count IX
is denied.
PART III
COUNT I -- BURGLARY OF THE TRADING
POST
COUNT II -- LARCENY OF THE TRADING
POST
Count I alleged that the defendants,
on or about February 27, 1973, broke and entered the Wounded Knee Trading
Post, with intent to commit a larceny, in violation of 18 U.S.C. Sec. 1153
and S.D.C.L. Sec. 22-32-9.
The starting point in an analysis of
this Count is 18 U.S.C. Sec. 1153, the Major Crimes Act. That statute vests
jurisdiction in the federal courts over certain offenses committed by Indians,
within Indian Country. Burglary is one of the enumerated offenses. The
statute also specifies, in the case of burglary, that the offense shall
be defined and punished in accordance with the laws of the state within
which the offense occurred. That state, of course, is South Dakota. This
Court's reading of 18 U.S.C. Sec. 1153 compels the conclusion that the
offense charged in Count I of the indictment must be measured against South
Dakota law as it pertains to burglary.
S.D.C.L. Sec. 22-32-9 provides in substance
that anyone who breaks and enters any building in which property is kept,
" with intent to commit larceny or any felony," (emphasis added),
is guilty of burglary in the third degree. [F. Supp. 373] The indictment
charged the defendants with the specific intent of "intent to commit a
larceny", but omitted the statutory language from 22-32-9, "or any felony."
It necessarily follows that for Count I to stand, the evidence must support
a finding of "intent to commit a larceny," on the part of the defendants
at the time of the alleged breaking and entering. The definition of larceny
in South Dakota law provides, therefore, the key to the fate of Count I.S.D.C.L.
Sec. 22-37-1 defines larceny as "the taking of personal property accomplished
by fraud or stealth and with intent to deprive another thereof." (emphasis
added). The government does not suggest that any fraud was involved in
this case. It follows that in order for Count I to stand it must appear
from the evidence that the defendants sought to commit the larceny by stealth.
Any commonly accepted definition of the word "stealth," as it is used here,
would most certainly contain the element of secrecy or furtiveness. The
most recent South Dakota Supreme Court case dealing with larceny makes
it clear that under South Dakota law, stealth and secrecy are in fact considered
to be synonymous. See State v. Aschmeller, 87 S.D. 367, 209 N.W.2d
369 (S.D.1973).
In this Court's opinion, the evidence
fails to support a finding of stealth. The breaking and entering of the
Trading Post was prefaced by the arrival of a caravan of some thirty or
more cars, containing at least 100 persons. Upon arriving at Wounded Knee
the members of the caravan apparently proceeded to shoot out the street
lights, and generally cause a commotion. There is no evidence of an attempt
on the part of the participants to conceal their conduct in Wounded Knee
on the evening of February 27, 1973. This Court finds, therefore, that
the requisite "stealth" for a conviction under Count I is wholly lacking,
and judgment of acquittal is therefore granted as to Count I.
Count II stands on a different footing.
That Count alleges that the defendants unlawfully took and carried away
with intent to steal and purloin, certain contents from the Wounded Knee
Trading Post, of a value in excess of $100, in violation of 18 U.S.C. Secs.
1153 and 661. The statute which defines the crime at issue in Count II
does not require stealth, as did the South Dakota statute in Count I. 18
U.S.C. Sec. 661 states that "(whoever) . . . takes and carries away, with
intent to steal and purloin, any personal property of another . . ." will
be subject to the penalties provided in the statute. The Court finds that
the evidence presented is sufficient for a reasonable jury to conclude
beyond a reasonable doubt that the defendants committed the acts alleged
in Count II. The motion for judgment of acquittal as to Count II is therefore
denied.
PART IV
COUNT VII -- POSSESSION OF UNREGISTERED
FIREARMS/MOLOTOV COCKTAILS
COUNT VIII -- AUTOMOBILE THEFT
Count VII alleged in substance that
the defendants willfully, knowingly and unlawfully possessed firearms which
had not been registered as required by law. The "firearms" at issue here
are so-called molotov cocktails which were found in the locked trunk of
a vehicle occupied by four persons, but not the defendants. This Court
decided previously that molotov cocktails are firearms within the meaning
of 26 U.S.C. Sec. 5861(d). United States v. Banks, 368 F. Supp. 1245, 1250
(D.S.D.1973). The issue now before this Court is whether there is sufficient
evidence in the record to submit the question of the defendants' guilt
on Count VII to the jury. This Court finds that there is not sufficient
evidence, and therefore the motion for judgment of acquittal is granted
as to Count VII. There is no evidence that the fingerprints of either Dennis
Banks or Russell Means were found on the molotov cocktails. There is no
evidence which establishes that [F. Supp. 374] the four individuals
who were in the car involved at the time the molotov cocktails were discovered
even had access to the trunk in which they were found. The evidence indicates
that those four individuals did not have the key to the trunk, in that
the law enforcement authorities found it necessary to pry open the trunk
with some kind of a crow bar or tire iron. Further, there is no evidence
which shows that the four occupants of the car were coconspirators, thus
defeating the possibility of imposing liability upon the defendants on
that basis. There is insufficient evidence in the record to permit a reasonable
jury to find, beyond a reasonable doubt, the defendants guilty as to Count
VII. The motion for judgment of acquittal is granted as to Count VII.
In Count VIII the defendants are charged
with the theft of an automobile, in violation of 18 U.S.C. Secs. 1153 and
661. One of the elements of the offense charged is that the item stolen
must be of a value of more than $100. 18 U.S.C. Sec. 661. The only evidence
which in any way bears on the question of the value of the car is to the
effect that it was a 1970 Dodge, and that it was in running condition.
There was no testimony as to the original cost of the car, nor was there
testimony as to the car's value at the time of the alleged theft. It would
be impermissible to allow the jury in this case to infer, on the basis
of this record, that the value of the car on the date in question exceeded
$100. Cf. United States v. Bryant, 454 F.2d 248 (4th Cir. 1972); United
States v. Quinn, 467 F.2d 624 (8th Cir. 1972), cert. den. 410 U.S. 935,
93 S. Ct. 1390, 35 L. Ed. 2d 599. Anyone familiar with reservation conditions
knows full well that a fairly new car, even if in running condition, might
not be worth $100. The jury cannot be permitted to speculate as to an element
of a criminal offense. The motion for judgment of acquittal as to Count
VIII is granted.
PART V
COUNTS IV & V -- INTERFERING WITH
LAW OFFICERS
COUNTS III, X & XI -- ASSAULTS
Both Count IV and
Count V alleged the commission of certain acts, with the requisite criminal
intent, to obstruct, impede and interfere with United States Marshals and
agents of the Federal Bureau of Investigation, in violation of 18 U.S.C.
Sec. 231(a)(3). The indictment alleges that the federal officers just referred
to "were then engaged in the lawful performance of their official duties
. . ." at the time of the commission of the alleged illegal acts. It should
be noted that the actual statutory language of 231(a)(3) requires that
the law enforcement officers involved be "lawfully engaged", and not merely
engaged. Notwithstanding the wording of the indictment, it is clear that
one of the elements of the offenses charged under Counts IV and V is that
the Marshals and the F.B.I. agents must have been lawfully engaged in the
lawful performance of their official duties.
The motion for judgment of acquittal
raised the point that the federal officers at Wounded Knee were not lawfully
engaged in the lawful performance of their duties, in that they were acting
in violation of 18 U.S.C. Sec. 1385. That statute provides as follows:
Whoever, except in cases and under
circumstances expressly authorized by the Constitution or Act of Congress,
willfully uses any part of the Army or the Air Force as a posse comitatus
or otherwise to execute the laws shall be fined not more than $10,000
or imprisoned not more than two years, or both. (Emphasis added).
Of course, prima facie lawfulness of
the activities of the federal civil authorities at Wounded Knee is established
by statute. E.g., 18 U.S.C. Secs. 3052, 3053; 28 U.S.C. Sec. 570;
S.D.C.L. Sec. 7-12-1. The cited statutes unquestionably gave the Marshals
and the F.B.I. agents the authority to undertake the [F. Supp. 375]
law enforcement activities which occurred at Wounded Knee. On the other
hand, the statutes do not reach the issue raised with regard to 18 U.S.C.
Sec. 1385.
Following the submission of briefs
on the motion for judgment of acquittal, and argument, this Court indicated
its ruling on the motion as to certain Counts, and reserved ruling as to
certain other Counts. Among those as to which ruling was reserved were
Counts IV and V, which are the ones now under discussion. Evidence was
then heard, outside the presence of the jury, as to the alleged violation
of 18 U.S.C. Sec. 1385. Following the presentation of evidence by the defense,
the government indicated, in response to specific inquiry by the Court,
that it had no witnesses to offer. It should also be noted that the government
at no time expressed a desire to reopen its case in chief for the purpose
of placing in evidence testimony or exhibits tending to establish that
the federal officers were lawfully engaged in the lawful performance of
their official duties. Immediately following the evidentiary hearing on
the military involvement question on August 9, 1974, this Court granted
the motion as to Counts IV and V. In reaching that decision, this Court
indicated that the evidence presented in the evidentiary hearing supported
a finding that the federal officers at Wounded Knee had used part of the
Army or the Air Force as a posse comitatus or otherwise to execute the
laws, thereby precluding the establishment of one of the elements of the
offenses charged.
It would serve no useful purpose to
relate in detail the evidence presented to this Court in the hearing. A
summary of the salient evidence establishes that large amounts of military
equipment, including ammunition, weapons, flares, armored personnel carriers,
and clothing, were either loaned or sold to the Department of Justice by
the Department of Defense in connection with the Wounded Knee operation.
The evidence also shows that certain members of the Army were present on
the Pine Ridge Reservation in the vicinity of Wounded Knee. Colonel Volney
Warner, then Chief of Staff of the 82nd Airborne, Fort Bragg, arrived in
the area on February 3, 1973. Colonel Warner's primary function, at least
initially, was to observe the situation and to advise his superiors as
to the need for Army troop intervention. It is also clear that on a day-to-day
basis Colonel Warner gave advice and guidance to the federal civil officials
in charge of the Wounded Knee operation. Representatives of the Marshals
Service and the F.B.I. actively sought Colonel Warner's advice, and he
gave it. The first instance of such advice occurred, it appears from the
evidence, within hours, if not minutes, of Colonel Warner's arrival at
Ellsworth Air Force Base, near Rapid City, South Dakota, in the early morning
hours of February 3, 1973. At that time Colonel Warner advocated that the
then existing shoot-to-kill policy of the federal law enforcement personnel
be amended to a shoot-to-wound policy. In short, Colonel Warner counseled
the adoption of the Army's blueprint for handling a civil disorder, which
was referred to in the testimony as the "Garden Plot" plan. He also advocated
a policy of avoiding exchanges of gunfire, and avoiding any action which
might provoke hostilities. When law enforcement officers requested armored
personnel carriers, Colonel Warner recommended to his superiors that the
request be approved only after obtaining assurances from the requesting
officers that the carriers would be used solely for defensive purposes.
The evidence also shows that Colonel
Jack C. Potter, Deputy Chief of Staff of Logistics of the 6th United States
Army, was ordered to the Pine Ridge Reservation. His primary function was
in the area of logistics and supplies. There is also evidence that National
Guard mechanics were utilized to repair the armored personnel carriers,
as need arose. With regard to the personnel carriers, the evidence indicates
that the first two such vehicles arrived at Pine Ridge in the early morning
hours of February 28, [F. Supp. 376] 1973, just hours after the
beginning of the occupation. (TR 7470). There are also at least two documents
in evidence which indicate the same thing. It is clear, therefore, that
the military involvement at Wounded Knee began almost immediately. In addition,
the Nebraska National Guard was utilized to make at least one aerial reconnaissance
of the Wounded Knee area, at the request of the F.B.I. and the Marshals
Service.
The government has contended that the
sale and loan of equipment to the Department of Justice is authorized by
the Economy Act, 31 U.S.C. Sec. 686, and by 32 C.F.R. Sec. 501.7. This
Court is not convinced of the applicability of the Economy Act provisions
to transactions of the kind that occurred in this case. Be that as it may,
it is nonetheless clear that the Economy Act applies only to sales, and
not to loans. 32 C.F.R. Sec. 501.7 does not, in this Court's opinion, serve
to provide legal basis for the loans of equipment involved in this case.
The section of the regulations just cited is promulgated under 10 U.S.C.
Secs. 331, 332, 333, which deal with the issuance of a Presidential Proclamation
as the basis for federal troop intervention in civil law enforcement. There
was no Presidential Proclamation in this case. 32 C.F.R. Sec. 501.7 is
therefore inapplicable on that basis. Even if the section did apply, either
because there was a Presidential Proclamation, or otherwise, it does not
appear that the strict terms of the regulation were met in this case. Specifically,
the regulation requires that a loan agreement be entered into in every
instance, and in this case there is no evidence of any such agreement.
A study of Colonel Warner's testimony,
and the testimony of other witnesses, and the documentary evidence, balanced
against the presumption of lawfulness that rightly attaches to the statutorily
authorized activities of law enforcement personnel, compels this Court
to conclude that there is insufficient evidence of the lawfulness of the
government activity at Wounded Knee, to justify submission of Counts IV
and V to the jury.
Comment should be directed at this
point to one item. At that point in the proceedings immediately following
the argument on the motion for judgment of acquittal, this Court indicated
its ruling as to certain Counts and reserved ruling as to others. Ruling
was reserved for the purpose of conducting the evidentiary hearing referred
to previously. The government inquired whether the rulings were reserved
only because of the issue raised with regard to military involvement. A
reading of the transcript suggests that this Court viewed the posse comitatus
matter as possibly not relating to the sufficiency of the evidence. (TR
18,202) However, since "lawful engagement" is an integral element of the
offenses charged in Counts IV and V, and since posse comitatus relates
to the issue of "lawful engagement", it is clear that the posse comitatus
matter was, and is, inextricably intertwined in the question of the sufficiency
of the evidence, and this Court has treated it as such.
This Court feels that an impression
that may have been conveyed by the Court at the time I originally indicated
my ruling on Counts IV and V should be corrected. This Court did not intend
to suggest, and does not in this opinion mean to suggest, that this Court
is of the view that any federal officials, law enforcement personnel or
military personnel, were engaged in criminal conduct in connection with
the events at Wounded Knee. The purpose of a motion for judgment of acquittal
is not to try the guilt or innocence of anyone, and certainly not of persons
not defendants in the instant case. The Court's function in this posture
is to measure the evidence presented in the trial against the standard
enunciated in Rule 29 of the Federal Rules of Criminal Procedure.
It is the opinion of this Court only that reasonable jurors could not
find beyond a reasonable doubt that the Marshals and the F.B.I. agents
were "lawfully engaged in the lawful performance of their official duties."
[F. Supp. 377] Judge
Warren Urbom, in the case of United States v. Jaramillo (D.Neb.), decided
August 14, 1974, 380 F. Supp. 1375, entered a judgment of acquittal in
a situation very much like that before this Court. Judge Urbom, in his
Memorandum Decision in Jaramillo and in a companion case, found that
the use of military personnel did fall within the ambit of the prohibition
of 18 U.S.C. Sec. 1385. See also United States v. Walden, 490 F.2d
372 (4th Cir. 1974); Wrynn v. United States, 200 F. Supp. 457 (E.D.N.Y.1961).
Judge Urbom in Jaramillo as the trier of fact in that case found
specifically that the government had failed to meet its burden of proof
with regard to the element of "lawful engagement", as required by 18 U.S.C.
Sec. 231(a)(3). This Court has gone one step farther than did Judge Urbom,
in that this Court has found that there is insufficient evidence on the
issue of "lawful engagement" to justify submission of that issue, and therefore
Counts IV and V, to the jury.
After this Court's ruling from the
Bench as to Counts IV and V, the government filed a "Motion to Reconsider"
with regard to those Counts. I indicated that I would take the motion under
advisement, and asked that briefs be submitted on the issues raised by
the motion no later than August 19, 1974. I have now received those briefs.
It is the opinion of this Court that it would be inappropriate to reconsider
my decision on Counts IV and V. The motion as granted was denominated one
of acquittal, and was based on the facts as presented to and perceived
by this Court. To reconsider my decision, it once having been announced
in open court, though not in the presence of the jury, and after the defense
has now rested its case, would be to raise the specter of a serious encroachment
upon the Fifth Amendment's bar against double jeopardy. That this Court
will not do. It is also the view of this Court that if an error is to be
made in the trial of a criminal case, it is far better that the error fall
in favor of the accused, rather than to his detriment. Justice Harlan,
in United States v. Sisson, 399 U.S. 267, 90 S. Ct. 2117, 26 L. Ed. 2d
608 (1970), stated that, "no appeal (may) be taken by the Government from
an acquittal no matter how erroneous the legal theory underlying the decision."
Sisson, supra, at 299, 90 S. Ct. at 2134. For these reasons, this
Court does not intend to consider further the government's motion to reconsider.
The defense has asserted that the "posse
comitatus" defense just discussed also applies to the three assault counts,
namely, Counts III, X and XI. The Court disagrees with the defense. The
assault indictments are brought under 18 U.S.C. Sec. 111 and 18 U.S.C.
Sec. 1114. Section 111 makes criminal an assault upon any of the persons
designated in section 1114, while those persons are engaged in the performance
of their official duties. United States Marshals and F.B.I. agents fall
within the ambit of section 1114, and as indicated in section A of this
part, there is no doubt but that the federal law enforcement personnel
at Wounded Knee were engaged in the performance of their statutory duties.
See also 28 U.S.C. Sec. 535; 28 U.S.C. Sec. 569. The posse comitatus
defense is inapplicable to the assault counts because, unlike 18 U.S.C.
Sec. 231 (a) (3), there is no requirement under 18 U.S.C. Sec. 111 that
the person assaulted be "lawfully engaged in the lawful performance" of
his official duties.
A review of the evidence presented
by the government in its case in chief leads this Court to conclude that,
taking the evidence most favorable to the government, a reasonable mind
might fairly conclude guilt beyond a reasonable doubt. See, e.g.,
United States v. McCall, 148 U.S.App.D.C. 444, 460 F.2d 952 (1972). The
motion for judgment of acquittal as to Counts III, X and XI is denied.
CONCLUSION
To summarize, this Court has granted
the motion for judgment of acquittal as to Counts I, IV, V, VII and VIII
of indictments [F. Supp. 378] CR73-5034 and CR73-5035. This Court
has denied the motion for judgment of acquittal as to Counts II, III and
IX of indictments CR73-5034 and CR73-5035, and has denied similar motions
for judgment of acquittal as to Counts X and XI (Counts I and II of indictments
CR73-5062 and CR73-5063.)