UNITED STATES OF AMERICA, Plaintiff,
vs.
STANLEY HOLDER, Defendant. UNITED
STATES OF AMERICA, Plaintiff,
v.
CARTER CAMP, Defendant. UNITED
STATES OF AMERICA, Plaintiff, v. LEONARD CROW DOG, Defendant
CR Nos. 74-5098, CR 74-5099, CR 74-5100
United States District Court For The
District Of South Dakota, Western Division
399 F. Supp. 220, 1975 U.S. Dist.
Decision
May 2, 1975
Mr. William F. Clayton, U.S. Attorney,
Sioux Falls, South Dakota, assisted by Assistant U.S. Attorneys R. D. Hurd
and David R. Gienapp of the same address, for Plaintiff. Kenneth E. Tilsen,
St. Paul, Minnesota, for Leonard Crow Dog. Joseph Beeler, Coconut Grove,
Florida, for Carter Camp. Frances Schreiberg, Berkeley, California, Wounded
Knee Legal Defense/Offense Committee, Council Bluffs, Iowa, for Stanley
Holder.
McManus, District Judge, sitting
by designation.
[F. Supp. 223] ORDER
This matter is before the court on
defendants' resisted motion for determination of venue, or in the alternative,
for transfer of venue, filed April 16, 1975.
These criminal prosecutions arise out
of alleged unlawful activities by the three defendants during the "Wounded
Knee Takeover," an incident occurring on the Pine Ridge Indian Reservation,
South Dakota, between February 27, 1973 and May 8, 1973. The procedural
history of these prosecutions is an essential ingredient to a comprehension
of the issues posed by defendants' motions now pending in this court. A
brief recitation of that procedural chronology follows.
On March 20, 1973, a federal grand
jury in South Dakota returned identical nine-count indictments against
defendant Carter Camp and four other individuals -- Clyde Bellecourt, Pedro
Bissonette, Russell Means and Dennis Banks.1
Charged in these indictments were eight substantive violations and one
conspiracy offense.
Subsequently, additional indictments
were returned against these five individuals on April 10, 1973, charging
each of them with two more substantive counts.2
At the same time, eleven-count indictments were returned against defendants
Stanley Holder and Leonard Crow Dog,3
each alleging verbatim the same offenses, except for naming the accused,
as had been charged against the five aforementioned persons.
The seven defendants in these previous
actions moved the court to consolidate their cases for trial. The Honorable
[F.
Supp. 224] Fred J. Nichol, Chief Judge of the District of South Dakota,
ordered a joint trial of the cases against Means and Banks, but denied
the motion with respect to the other defendants.
Review of this denial was sought in
the 8th Circuit Court of Appeals through a petition for writ of mandamus.
The petition was denied by the appellate court on August 29, 1973. However,
the court entered a separate order directing that all seven cases be under
the direct supervision of Chief Judge Nichol, the cases previously having
been partially the responsibility of another judge in the District, the
Honorable Andrew W. Bogue.
Upon motion of the defendants and a
showing of prejudice against the defendants in South Dakota, Judge Nichol,
by order of October 29, 1973, transferred venue pursuant to Rule 21(a),
FRCrP, to St. Paul, Minnesota, in the cases against Means, Banks, Bellecourt,
Camp, Holder, and Crow Dog.
Joint trial of Means and Banks commenced
on January 8, 1974. One count of the indictments was dismissed prior to
trial, United States v. Banks, 368 F. Supp. 1245, 1248 (D. S.D. 1973),
and judgment of acquittal was rendered by the court on five of the remaining
substantive counts at the close of the Government's case. United States
v. Banks, 383 F. Supp. 368 (D. S.D. 1974).
During jury deliberations on the remainder
of the case, one juror became ill and unable to continue. Citing the Government's
refusal to consent to an eleven-member jury as another event in a cumulative
series of Government misconduct during the trial, the court orally dismissed
the remaining counts of the indictment on September 13, 1974. This ruling
was supplemented with a written decision, United States v. Banks,
383 F. Supp. 389 (D. S.D. 1974), from which an appeal was dismissed because
the Double Jeopardy Clause prohibited review under the Criminal Appeals
Act, 18 USC § 3731 (1970). United States v. Banks, 513 F.2d
1329 (8th Cir. 1975).
Meanwhile, on December 12, 1974, the
three indictments involved in the instant cases were returned against defendants
Holder, Camp, and Crow Dog by another grand jury in South Dakota.4
All defendants are charged in two identical counts,5
and defendants Camp and Crow Dog are each charged with a separate third
count.6
The original four indictments against
these defendants were dismissed on February 5, 1975, upon the Government's
request pursuant to Rule 41(a), FRCrP. Subsequently, Judge Nichol recused
himself from the cases now pending, and they have been assigned to the
undersigned judge.
Determination of Venue
Defendants move the court to enter
an order declaring venue to have been determined by the previous ruling
of Judge Nichol to be in the District of Minnesota, Third Division, for
the instant cases. Alternatively, the defendants ask for a transfer of
venue under Rule 21(a), FRCrP, to the District of Minnesota. Defendants
further request [F. Supp. 225] a hearing to present evidence in
support of their motion.
The argument presented to bolster the
defendants' first alternative request is that these proceedings, having
been instituted by superseding indictments, are a continuation of the former
prosecutions. Venue for trial of the charges alleged in the previous indictments
had been set in the District of Minnesota. That ruling, it is urged, is
the law of the case, should not be overturned by a coordinate judge, and
furthermore should bar relitigation under the principle of collateral estoppel.
It is the court's view that defendants' position on this aspect of their
motion is not well taken.
In a federal criminal case, the Constitution
of the United States imparts to the accused a right to a trial in the vicinage
of the crime. Specifically, Art. III, Sec. 2 provides in part:
"The trial of all crimes . . . shall
be held in the state where the said crime shall have been committed. .
. ."
And the Sixth Amendment provides in
part:
"In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have been committed
. . .."
However, concurrently with the right
to a trial in the state and district where the offense was committed, the
Sixth Amendment also guarantees the right to an impartial jury. Singer
v. United States, 380 U.S. 24, 36, 85 S. Ct. 783, 13 L. Ed. 2d 630 (1965).
The right to a fair trial before an impartial tribunal is a fundamental
ingredient of due process. In re Murchison, 349 U.S. 133, 136, 75 S.
Ct. 623, 99 L. Ed. 942 (1955); United States v. McNally, 485 F.2d
398, 402 (8th Cir. 1973).
The due process right to a fair trial
inures to the benefit of an accused in a federal trial through the Fifth
Amendment, Jones v. Gasch, 131 U.S. App. D.C. 254, 404 F.2d 1231,
1234 (1967); Vandergrift v. United States, 313 F.2d 93, 96 (9th
Cir. 1963), and in a state trial through the Fourteenth Amendment. Estes
v. Texas, 381 U.S. 532, 534-35, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965);
Irvin
v. Dowd, 366 U.S. 717, 721-22, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961).
Pretrial publicity may so infuse prejudice into the populace from which
a jury is to be drawn as to violate this right to a fair trial.
Irvin
v. Dowd, supra; Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417,
10 L. Ed. 2d 663 (1963).
It is in the interplay between these
two constitutional rights that Rule 21(a), FRCrP,7
comes into prominence. The Rule provides a procedural device for the defendant
to waive his right to a trial in the place where the crime was committed
in order to maximally protect his right to a fair and impartial hearing.
United
States v. Marcello, 280 F. Supp. 510 (E.D. La. 1968), aff'd
423 F.2d 993 (5th Cir. 1970), cert. denied, 398 U.S. 959, 90 S.
Ct. 2172, 26 L. Ed. 2d 543 (1970).
A transfer for trial under Rule 21(a)
can only be made upon motion by the defendant and a showing by him to the
court's satisfaction that he cannot obtain a fair trial at any court point
in the district. McNally, supra at 403; Marcello, supra at
513-14. The prejudice shown by the defendant must relate to the improbability
of obtaining a fair hearing at the time of trial on the charges in the
pending case. United [F. Supp. 226] States v. Partin, 320 F.
Supp. 275, 279-80 (E.D. La. 1970). And the determination to transfer under
this Rule cannot be made until an indictment or information stating the
charges is on record. In re Investigation of World Arrangements, Etc.,
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, cert. denied,
344 U.S. 904, 73 S. Ct. 283, 97 L. Ed. 698 (1952).
Here the defendants argue that the
indictments currently of record are a mere continuation of the former proceedings
because the charges are essentially the same as some charges contained
in the previous indictments and further that the charges arise from the
same set of factual events which led to the charges in the earlier indictments.
It is argued that Counts I and II of the present indictments were included
in paragraph 3 of Count IX, the conspiracy count, in the original indictments
as part of an allegation relating the scope of the conspiracy. In the court's
opinion, the substantive charges in the current indictments are not identical
with or a mere continuation of the conspiracy count in the now-dismissed
indictments.
Count III in defendant Camp's pending
indictment is identical with Count III of the original indictment except
that the name of the assaulted FBI agent has been changed. This too appears
to the court as a substantial change in the offense charged. However, Count
III of Crow Dog's current indictment is substantially the same as Count
I of the previous indictment, the only change being a one day difference
in the date of the alleged offense. See Stewart v. United States,
395 F.2d 484, 487 (8th Cir. 1968).
Thus the question posed is whether
an order changing venue in a federal criminal prosecution is conclusive
as to the venue where the original indictment is dismissed after motion
by the Government under Rule 48(a) but a superseding indictment charges
some identical offenses plus other offenses arising from the same incident
which precipitated the first indictment.
No case deciding this point has been
cited by the parties, and the court has likewise found no clear precedent.
Reported decisions from state courts have reached contrary results. Compare
Ex parte Lancaster, 206 Ala. 60, 89 So. 721 (1921), and Johnston
v. State, 118 Ga. 310, 45 S.E. 381 (1903), (previous ruling is determinative),
with
Gonzalis v. Lynch, 282 P.2d 255 (Okla. Crim. 1955), and State ex
rel. English v. Normile, 108 Mo. 121, 18 S.W. 975 (1891), (dismissal
of prior case terminates jurisdiction in transferee court and venue must
be determined anew in subsequent prosecution). These cases are not controlling
here, of course, because they deal with interpretations of particular state
venue statutes, and further differ in that the second prosecution had always
been brought on charges identical to the first.
However, the reasoning of the court
in Gonzalis, supra, would seem applicable here. Dismissal of the
indictment brought the initial prosecution to an end. The superseding indictment8
begins an independent prosecution, especially where new charges are included,
with venue in the state and district where the crime was committed and
not [F. Supp. 227] transferable prior to the return of the indictment.
See
World Arrangements, supra. Of course, defendant can again move for a transfer
of venue under Rule 21, and the trial judge can take judicial notice of
the evidence adduced in the previous ruling, giving it such weight as in
his discretion it merits on the question of continuing prejudice.
Defendants' contentions that collateral
estoppel and the deference given to prior rulings by judges of coordinate
jurisdiction should prevent this court from determining that venue is not
in the District of Minnesota are inapposite here. Collateral estoppel refers
to litigation of the exact issue in a previous case. The issue of whether
defendants can obtain a fair trial in South Dakota on the instant charges
at the present time was not decided in the prior ruling. Similarly, since
Judge Nichol's order did not reach the issue of venue on the cases now
pending, it is not overruled by this decision.
Finally, defendants argue that by not
declaring venue to be set in Minnesota, the effect is to allow the Government
to transfer venue back to South Dakota. As the court has previously noted,
this analysis fails because the instant proceedings are new cases in which
the defendants' constitutional rights to a trial in the locality of the
crime are attached at the outset.
Indeed the defendants' feared effect
could well result if their proposition were accepted by the court. In a
proper case, the defendant might wish to have a subsequent indictment asserting
different charges tried in the vicinity of the crime, as where new evidence
caused dismissal of a prior indictment and may have also changed public
reaction. But to hold that a transfer of venue ordered in the previous
case was conclusive as to venue on any subsequent charges arising
from the same facts would have the effect of allowing the Government to
determine venue in the second case to the detriment of the defendant's
constitutional right. A better resolution is to have venue placed in the
vicinity of the crime at the instigation of the new charges, with defendant
having the option once again to waive his right and seek a transfer under
Rule 21.
Transfer of Venue
Defendants move alternatively to have
these cases transferred for trial to the District of Minnesota pursuant
to Rule 21(a), FRCrP. In support of this motion, defendants incorporate
by reference the briefs and supporting documents submitted on the change
of venue motion in the previous cases against Means, Banks and the defendants
herein. An oral hearing is requested to present further evidence, but in
light of the court's conclusions below, no further hearing is necessary.
To obtain a change of venue under Rule
21(a), the burden is upon the defendants to establish a reasonable likelihood
that prejudice in the District of South Dakota will prevent a fair and
impartial trial. United States v. Marcello, supra at 513-14; United
States v. Kline, 205 F. Supp. 637, 639-40 (D. Minn. 1962). Ordinarily,
the proper time for determining whether widespread prejudice prohibits
selecting an impartial jury is during voir dire. United States v. McNally,
supra at 403; Blumenfield v. United States, 284 F.2d 46, 51
(8th Cir. 1960), cert. denied, 365 U.S. 812, 81 S. Ct. 693, 5 L.
Ed. 2d 692 (1961); United States v. Kline, supra at 640.
However, when the probability of prejudice
is great because of deeply-rooted passions or recent massive publicity,
the efficacy of voir dire in screening the prospective jurors is
diminished. Groppi v. Wisconsin, 400 U.S. 505, 510, 91 S. Ct. 490,
27 L. Ed. 2d 571 (1971); Irvin v. Dowd, supra at 727-28. In such
a situation the court may become satisfied even prior to voir dire
that the probability of a fair trial in the district is minimal. United
States v. Marcello, supra at 514. See [F. Supp. 228] United
States v. Rossiter, 25 F.R.D. 258 (D. Puerto Rico 1960).
Here, the affidavits and other supporting
materials filed in previous cases, particularly the survey data, indicate
not only massive publicity surrounding the whole incident, but more significantly
a deeply-felt prejudice toward Indians which was tremendously reinforced
by the Wounded Knee affair. While the volume of inflammatory media coverage
has subsided, and temporary feelings thereby allowed to ameliorate, the
court is satisfied upon reviewing the documentary evidence and the Government's
resistance thereto that the long-term prejudices which were evident at
the time of the prior change of venue are still present and create a reasonable
likelihood of impairing the defendants' rights to a fair trial on the charges
now outstanding against them in connection with the Wounded Knee takeover.
Having found the necessity for transfer,
Rule 21(a) permits the court to transfer the cases to any other district
"whether or not such district is specified in defendant's motion." The
motion itself constitutes a waiver of the constitutional right to trial
in the district where the crime was committed. United States v. Marcello,
supra at 520; Rule 21, FRCrP, Advisory Committee Notes, Comment 3.
The court may exercise its discretion and choose the district to which
the cases are to be transferred. United States v. Angiulo, 497 F.2d
440, 441 (1st Cir. 1974); United States v. Marcello, supra at 520;
8 Moore's Federal Practice para. 21.01[1]. Accordingly, venue in these
cases is transferred to the Northern District of Iowa, Cedar Rapids Division.
It is therefore
ORDERED
1. Motion in the alternative denied
on determination of venue and granted in part on change of venue as indicated
in text; the Clerk shall forthwith forward the files in these cases to
the Clerk of the United States District Court for the Northern District
of Iowa.
2. Trial of these cases shall commence
at 9:00 a.m. June 2, 1975, at the United States Courthouse, Cedar Rapids,
Iowa.
1 The indictments were returned as
follows:
(1) Clyde Bellecourt, CR 73-5031;
(2) Pedro Bissonette, CR 73-5032;
(3) Carter Camp, CR 73-5033;
(4) Dennis Banks, CR 73-5034;
(5) Russell Means, CR 73-5035.
2 These supplemental indictments were
numbered as follows:
(1) Dennis Banks, CR 73-5062;
(2) Russell Means, CR 73-5063;
(3) Clyde Bellecourt, CR 73-5064;
(4) Carter Camp, CR 73-5065;
(5) Pedro Bissonette, CR 73-5066.
3 The indictments returned against
defendants Holder and Crow Dog were numbered CR 73-5067 and CR 73-5077,
respectively.
4 The indictments were returned as
follows:
(1) Stanley R. Holder, CR 74-5098;
(2) Carter Camp, CR 74-5099;
(3) Leonard Crow Dog, CR 74-5100.
5 Count I charges defendants with wilfully
impeding a Postal Inspector while in the performance of his duties, in
violation of 18 USC §§ 111 and 1114 (1970). Count II charges
defendants with robbing another of personal property belonging to the United
States within the Pine Ridge Indian Reservation, in violation of 18 USC
§§ 1153 and 2112 (1970).
6 Count III in CR 74-5099 charges defendant
Camp with assaulting an agent of the FBI with a deadly weapon while the
agent was performing his official duties, in violation of 18 USC §§
111 & 1114 (1940). Count III in CR 74-5100 charges defendant Crow Dog
with wilfully taking with intent to steal personal property of another
valued at more than $100 within the Pine Ridge Indian Reservation, in violation
of 18 USC §§ 661 and 1153 (1970).
7 Rule 21(a), Federal Rules of Criminal
Procedure, provides:
The court upon motion of the defendant
shall transfer the proceeding as to him to another district whether or
not such district is specified in the defendant's motion if the court is
satisfied that there exists in the district where the prosecution is pending
so great a prejudice against the defendant that he cannot obtain a fair
and impartial trial at any place fixed by law for holding court in that
district."
8 The Government may obtain a second
indictment charging identical or similar offenses and arising from the
same events as a previous indictment either prior to or after dismissal
of the earlier indictment under Rule 48(a), FRCrP. DeMarrias v. United
States, 487 F.2d 19 (8th Cir. 1973), cert. denied, 415 U.S.
980, 94 S. Ct. 1570, 39 L. Ed. 2d 877 (1974); United States v. Clay,
481 F.2d 133 (7th Cir. 1973), cert. denied, 414 U.S. 1009, 94 S.
Ct. 371, 38 L. Ed. 2d 247 (1973); United States v. Bowles, 183 F.
Supp. 237 (D. Me. 1958). Of course, the statute of limitations may run
if a lapse of time occurs between dismissal and reindictment, or if the
indictments are at all contemporaneous, continuous custody may trigger
delay infringing a defendant's Sixth Amendment right to a speedy trial.
See
United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d
468 (1971).
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