UNITED STATES of America, Plaintiff,
vs.
Leonard CROW DOG, Defendant. UNITED
STATES of America, Plaintiff.
v.
Stanley Richard HOLDER, Defendant.
UNITED STATES of America, Plaintiff, v. Carter CAMP, Defendant
Nos. CR 75-18, CR 75-19, CR 75-20
United States District Court For The
Northern District Of Iowa, Cedar Rapids Division
399 F. Supp. 228, 1975 U.S. Dist.
Decision
August 4, 1975
William F. Clayton, U. S. Atty., Sioux
Falls, South Dakota, R. D. Hurd and David R. Gienapp, Asst. U. S. Attys.,
for plaintiff. Kenneth E. Tilsen, St. Paul, Minnesota, for Leonard Crow
Dog. Joseph Beeler, Coconut Grove, Miami, Florida, for Carter Camp. Frances
Schreiberg, Berkeley, California, Wounded Knee Legal Defense/Offense Committee,
Council Bluffs, Iowa, for Stanley Holder.
McManus, Chief Judge.
[F. Supp. 233] ORDER
McMANUS, Chief Judge.
This matter is before the court on
defendants' two resisted motions to dismiss, one for denial of the right
to speedy prosecution and trial, and the other for discriminatory prosecution
and government misconduct, both filed April 16, 1975. Also before the court
are defendants' resisted post-trial motion in the alternative for judgment
of acquittal or new trial filed June 27, 1975, and their resisted motion
for post-trial relief filed July 25, 1975.1
Defendants in each of these actions
have been charged with committing criminal acts during the "Wounded Knee
Takeover," an incident occurring on the Pine Ridge Indian Reservation,
South Dakota, between February 27 and May 8, 1973. The procedural history
of these cases has been summarized by this court in its prior ruling of
May 2, 1975, granting a change of venue, and that discussion is incorporated
by reference herein.
Counts I and II2
in each of the three indictments were consolidated for trial pursuant to
Rule 13, FRCrP, by order of May 12, 1975. Following a jury trial, a verdict
of guilty on both counts was returned against all three defendants. Separate
third counts against defendant Crow Dog in No. CR 75-18 and against defendant
Camp in No. CR 75-20 were dismissed upon motion by the government subsequent
to the jury's verdict.
Oral testimony and documentary evidence,
including numerous in camera exhibits, were presented at a three-day
hearing on defendants' pre-trial motions. Affidavits ordered by the court
to be submitted by the government have also been filed in connection with
these motions.3
All motions are ripe for decision and are considered sequentially below.
[F. Supp. 234] Motion
to Dismiss for Discriminatory Prosecution
Defendants move this court to dismiss
the indictments against them on the grounds that prosecution of these charges
has been instituted and continued in bad faith and on a constitutionally
impermissible basis, and that the government has committed gross misconduct
during the course of said prosecution. The motion relies upon defendants'
rights under the Fifth, Sixth, and Ninth Amendments to the United States
Constitution, the Federal Rules of Criminal Procedure, and the inherent
discretionary powers of the district courts.
Discriminatory enforcement and application
of a valid statute by state officials constitutes a denial of equal protection
under the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U.S. 356,
373-74, 6 S. Ct. 1064, 30 L. Ed. 220 (1886). While Yick Wo specifically
involved unequal administration of a public ordinance by a city licensing
board, the underlying principle has been held applicable to the actions
of prosecutors and police officials. Two Guys from Harrison-Allentown,
Inc. v. McGinley, 366 U.S. 582, 588, 81 S. Ct. 1135, 6 L. Ed. 2d 551
(1961); United States v. Falk, 479 F.2d 616, 618 (7th Cir.1973);
Shock
v. Tester, 405 F.2d 852, 855-56 (8th Cir. 1969).
The Fourteenth Amendment's prohibition
against a state taking action which would "deny to any person within its
jurisdiction the equal protection of the laws" restricts conduct of the
federal government as well through the Fifth Amendment. Bolling v. Sharpe,
347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 (1954); Mow Sun Wong v. Hampton,
500 F.2d 1031, 1037-38 (9th Cir. 1974); Washington v. United States,
130 U.S.App.D.C. 374, 401 F.2d 915, 922 (1968).
Mere conscious exercise of some selectivity
in prosecution is not a constitutional violation. Oyler v. Boles,
368 U.S. 448, 456, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962). The defense of
discriminatory enforcement requires a showing of intentional and purposeful
selection based on an unjustifiable standard such as race or religion.
Tollett
v. Laman, 497 F.2d 1231, 1233 (8th Cir. 1974); United States v.
Steele, 461 F.2d 1148, 1151 (9th Cir. 1972). See Snowden v. Hughes,
321 U.S. 1, 8, 64 S. Ct. 397, 88 L. Ed. 497 (1944). The exercise of protected
First Amendment activities is included among those bases upon which discrimination
is constitutionally impermissible. Falk, supra at 620; Steele,
supra at 1151; United States v. Crowthers, 456 F.2d 1074, 1080
(4th Cir. 1972).
Defendants contend that the instant
prosecutions are part of an effort by the government to selectively enforce
the laws against those Indians who are members or sympathizers of the American
Indian Movement (AIM). They further argue that the misconduct of the government
associated with these prosecutions evinces bad faith on the part of the
government, that is, a motive to harass and intimidate rather than an honest
attempt to bring criminals to justice. The bad faith, it is urged, indicates
that the selectiveness in prosecution was purposeful and intentional, with
the goal of suppressing the First Amendment rights of Indians to associate
freely with AIM and to adopt the views espoused by that organization.
Freedom of association is protected
by the First Amendment, e. g., Williams v. Rhodes, 393 U.S. 23,
30, 89 S. Ct. 5, 21 L. Ed. 2d 24 (1968), and criminal prosecutions selectively
instituted purposefully to quash the exercise of that freedom would constitute
a denial of equal protection. See Steele, supra at 1151; Crowthers,
supra at 1080. But the court is unable to conclude that the criminal
cases pending here against the defendants were brought purposefully and
intentionally on the basis that the defendants were affiliated with AIM.
Defendants have presented three lines
of evidence to support their theory of discriminatory prosecution. First,
defendants cite statistical records maintained [F. Supp. 235] and
published by the Justice Department which indicate an extremely low conviction
rate in criminal cases arising from Wounded Knee in comparison with the
average conviction rate for all criminal cases instituted by the Justice
Department. There was testimony that the factual basis for many of the
criminal charges brought against participants in Wounded Knee was weaker
than in most criminal cases pursued by the Justice Department.
But these bald statistical correlations
do not imply that their causation was a desire to discriminatorily prosecute
AIM supporters. They do indicate a low conviction rate for the government,
but the reason for this could be logistical difficulties in prosecuting
criminal charges arising from a massive civil disorder, or a host of other
factors. These figures do not compel an inference that the government has
been using the criminal process to selectively harass and intimidate members
of AIM.
Defendants allege and have presented
testimony by individual AIM members to the effect that non-AIM members
have not been prosecuted for violent criminal conduct, often directed at
AIM sympathizers, whereas charges have been brought against AIM members
for similar or less severe criminal acts. Approximately twenty specific
instances of such forceful crimes as murder and shooting through an AIM
member's house were related to the court, with allegations that no meaningful
investigation into these incidents was conducted by the Federal Bureau
of Investigation (FBI), and that no arrests were made or indictments sought
even when incriminating evidence was present.
Upon the presentation of this testimony,
the court directed the FBI to deliver its investigatory files regarding
each of these occurrences to the court for an in camera examination.
The files having been produced and thoroughly reviewed by the court, it
is the opinion of this court that the allegations of the defendants are
unfounded. The files do not reveal a lack of investigatory effort on the
part of the FBI towards non-AIM members, nor do they indicate a failure
to prosecute once meaningful evidence had been discovered.
The frequency of violence on the Pine
Ridge Indian Reservation, during the Wounded Knee affair and subsequent
to it, is deplorable. But the evidence simply does not show that the efforts
of the government to limit criminal conduct and to bring the perpetrators
of it to justice have been discriminatorily directed at the AIM faction.
Finally, defendants call attention
to an incident which occurred at an unauthorized roadblock being maintained
by one Richard Wilson and other supporters of the tribal council. Testimony
adduced at the hearing on this motion as well as evidence produced in United
States v. Banks & Means, consolidated Nos. CR 73-5034, CR 73-5035,
CR 73-5062, and CR 73-5063 (D.S.D.1974), established that an automobile
was forcibly stopped at this roadblock and a rifle pointed at one of the
occupants of the car, Kent Frizzel, Solicitor General of the Department
of the Interior. Defendants argue that the failure to prosecute any of
those present at the roadblock for this assault, or for maintaining the
roadblock as an interference with the passage of vehicles containing food
and medical supplies, the passage of such vehicles having been directed
by court order of the Honorable Andrew Bogue, indicates a policy of selective
nonenforcement against Wilson and his followers.
This court is inclined to agree with
the opinion of Judge Nichol in United States v. Banks, 368 F. Supp.
1245 (D.S.D.1973), when presented with the argument of selective prosecution
based on the government's inaction towards this roadblock or its instigators.
The fact that indictments have not been brought against any of those involved
in this incident, considered in the context of a disorder where literally
hundreds of infractions were being committed, does [F. Supp. 236]
not by itself raise a serious doubt as to the motives of the prosecutor.
368 F. Supp. at 1252.
Three cases cited with strong reliance
by the defendants are inapposite here. In United States v. Falk, supra,
the appellate court vacated a conviction on a charge of failure to possess
a draft card and remanded to the trial court with directions to hold a
hearing on the issue of discriminatory prosecution. The court held that
the published government policy of not prosecuting violators of the card
possession regulations together with other factors established a prima
facie case of improper discrimination in enforcing the law, which it
was the government's burden to rebut at the hearing. 479 F.2d at 623.
Though a hearing was held in this case,
it was not premised on the ground that defendants had already shown by
their filings a prima facie case of selective prosecution, but rather
the hearing was intended to develop the facts. The facts brought forth
through the testimony and documentary evidence do not establish a reasonable
doubt concerning the prosecutors' motives in the instant cases, especially
compared to the strong inference of discriminatory purpose made out in
Falk.
Similarly, the factual patterns in
these cases do not rise to the level of discriminatory law enforcement
brought forth in Duncan v. Perez, 445 F.2d 557 (5th Cir. 1971) and
Medrano
v. Allee, 347 F. Supp. 605 (S.D.Tex.1972). These cases involved civil
rights actions to enjoin state prosecutions. Assuming that the factors
delimited by the courts in those cases would also warrant dismissal of
federal criminal indictments, the court is of the opinion that the facts
shown here do not show the clear racially discriminatory prosecution in
Duncan
or the bad faith harassment through various law enforcement techniques
to destroy the freedom of association in Medrano. See United States
v. Banks, supra, 368 F. Supp. at 1252-53.
In summary, the court concludes 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.
Defendants' motion raises a second
theory for dismissal, a concept of such widespread government misconduct
in the course of a criminal proceeding as to render the proceeding unconscionable
under the due process clause because of irretrievable prejudice to a defendant's
right to a fair trial. United States v. Banks, 374 F. Supp. 321,
333 (D.S.D.1974). Government misconduct which has not incurably prejudiced
the possibility of a fair trial so as to result in a denial of due process
may nonetheless be grounds for dismissal under the court's inherent supervisory
powers over the administration of criminal justice. United States v.
Banks, 383 F. Supp. 389, 392-393 (D.S.D.1974), appeal dismissed,
513 F.2d 1329 (8th Cir. 1975). See McNabb v. United States, 318
U.S. 332, 340, 63 S. Ct. 608, 87 L. Ed. 819 (1942); Smith v. Katzenbach,
122 U.S.App.D.C. 113, 351 F.2d 810, 816 (1965).
Twelve particular instances of misconduct
are alleged by defendants, supplemented by a general allegation of other
unenumerated occurrences of government misconduct. The majority of these
allegations concern activities which took place during the trial of Banks
and Means or other Wounded Knee defendants.
Unless these particular deeds are viewed
as so grossly prejudicial that they taint all prosecutions arising from
Wounded Knee, or at least all of the "leadership cases," a position which
this court does not accept, then these actions are not relevant to dismissal
of the present cases unless repeated here. The court has not found the
type of conduct alleged, such as failure to comply with court orders or
presentation of perjured testimony, to have reoccurred here.
[F. Supp. 237] Insofar
as the prosecutorial conduct in Banks & Means was prejudicial to
the rights of the defendants in that case, they received a remedy through
the dismissal of all charges against them. Banks, supra, 383 F. Supp.
at 397. The strained construction placed by the government upon an order
of court issued by Judge Nichol directing disclosure of information pertaining
to FBI informants, including "evidence arguably relevant to invasion of
or contact with the defense attorney's camp," is a possible contempt matter
to be dealt with by Judge Nichol in that fashion should he so desire.
With respect to the issue of government
informants' involvement in the instant cases, the court is of the opinion
that neither considered separately as a denial of the Sixth Amendment right
to the assistance of counsel, nor as one element in a cumulative series
of acts of misconduct, should a dismissal be ordered here.
Pursuant to this court's order, the
FBI informant files of John Schafer and Douglas Durham, whose disclosure
in March of this year of a close association with Dennis Banks during the
latter's criminal trial in St. Paul precipitated the dispute regarding
compliance with Judge Nichol's order referred to above, were filed as in
camera exhibits in this action. The court further ordered the government
attorneys to review all informant files related to Wounded Knee and prosecutions
arising therefrom, and to file with the court an affidavit stating inter
alia that no information secured by any informants concerning defense
strategy pertaining to any charges brought against these defendants was
passed on to the investigative agency or prosecuting attorneys.
The court has meticulously examined
the FBI files covering the activities and reports of Durham and Schafer
and has found no evidence therein that either of these informants acted
as an agent provocateur during the Wounded Knee takeover. These records
likewise indicate that no defense strategy related to charges against the
instant defendants and obtained through proximity to defense attorneys
was passed on by these two informants to the FBI or the government prosecutors.
The government has submitted the affidavits
directed by the court. Based on the court's in camera examination
and the attestations contained in the affidavits signed by the government
attorneys, the court is satisfied that any information concerning charges
pending against these defendants, even if overheard by an informant from
conversations of a defense attorney intended to be confidential, was not
communicated to the FBI or government attorneys.
Mere presence of an informant during
strategy sessions of defense attorneys is not per se violative of
the right to freely communicate with counsel guaranteed by the Sixth Amendment.
Hoffa
v. United States, 385 U.S. 293, 306-308, 87 S. Ct. 408, 17 L. Ed. 2d
374 (1966); United States v. Rosner, 485 F.2d 1213, 1224 (2nd Cir.
1973). See United States v. Zarzour, 432 F.2d 1, 3-4 (5th Cir. 1970).
Since defense strategy was not passed on to the FBI or prosecuting attorneys,
and absent the gross intrusion into the attorney-client relationship present
in Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749 (1951)
or Caldwell v. United States, 92 U.S.App.D.C. 355, 205 F.2d 879
(1953), the court concludes that no Sixth Amendment violation occurred
here. Hoffa, supra, 385 U.S. at 306-307, 87 S. Ct. 408.
Another item of misconduct specified
in defendants' motion is massive prejudicial pre-trial publicity caused
by the government. This argument is not well taken. The court is not aware
of nor has any evidence been produced showing massive prejudicial publicity
in the Northern District of Iowa area prior to trial. Venue in these cases
was transferred to this district upon defendants' motion for change of
venue in order to avoid the effects of deep-seated prejudices or previous
adverse media [F. Supp. 238] coverage which were arguably present
in the District of South Dakota. National news broadcasts of the Wounded
Knee affair some two years ago are not likely to have infused the populace
in this district with such prejudice that they would be unable to render
a verdict based on the evidence presented in court. See Murphy v. Florida,
421 U.S. 794, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975); Irvin v. Dowd,
366 U.S. 717, 722-23, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961).
The remaining items of alleged misconduct
enumerated in defendants' motion are either of limited relevancy to the
present cases as discussed above, or are clearly without merit from the
record and require no further comment. It is the view of the court that
the government has not engaged in misconduct related to these cases which
would irreparably prejudice defendants' rights to a fair trial, and dismissal
is not warranted either under the Fifth Amendment or the court's supervisory
powers.
Motion to Dismiss for Denial
of Speedy Trial
The substance of defendants' motions
relating to speedy prosecution is that the failure to try them together
with Russell Means and Dennis Banks in January of 1974 has violated their
rights under the Fifth and Sixth Amendments to the United States Constitution
and FRCrP 48, and that these charges should accordingly be dismissed.
Sixth Amendment
In Barker v. Wingo, 407 U.S.
514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) the Supreme Court delineated
the criteria by which claims of deprivation of a speedy trial are to be
judged. This case establishes a balancing test, in which the conduct of
both the prosecution and defendant are weighed, and identifies four factors
which are of prime importance: length of delay, the reason for the delay,
the defendant's assertion of his right, and prejudice to the defendant.
None of these factors are dispositive in and of themselves but rather are
related factors and must be considered together with such other circumstances
as may be relevant to the particular case. See, e. g., United States
v. Baumgarten, 517 F.2d 1020 (8th Cir. 1975); United States v. Geller,
481 F.2d 275 (9th Cir. 1973); United States v. Lasker, 481
F.2d 229, 237 (2nd Cir. 1973); United States v. Phillips, 482 F.2d
191 (8th Cir. 1973); United States v. Toy, 157 U.S.App.D.C. 152,
482 F.2d 741 (1973). It has been observed, however, that when dealing with
the Sixth Amendment, delay would almost always be considered harmless error
unless there has been a showing of prejudice. United States v. Clay,
481 F.2d 133 (7th Cir. 1973).
Turning to an examination of the factors
as they relate to these cases, it is the court's view that the delay must
be measured from the date of the original indictments, or approximately
25 months. In United States v. Marion, 404 U.S. 307 at 321, 92 S.
Ct. 455 at 463, 30 L. Ed. 2d 468 (1971) the court made clear that the protections
of the Sixth Amendment were triggered by "either a formal indictment or
information or else the actual restraints imposed by arrest and holding
to answer a criminal charge." Here defendants have been continuously under
restraints as a result of charges which arise out of the same incident.
While the second indictment is much narrower than the original, the charges
are of such a nature that they must be considered together for speedy trial
purposes.
This delay then must serve as a "triggering
mechanism" prompting consideration of the other balancing factors. Barker
v. Wingo, supra, 407 U.S. 530-31, 92 S. Ct. 2182. Here, however, a
consideration of the other factors leads this court to the conclusion that
defendants were not deprived of the right to a speedy trial.
Initially, the court would observe
that the initial case was quite complex, which, under Barker, would
[F.
Supp. 239] justify some sort of delay. Indeed, in this case defendants
appear to have raised no objection to the period from indictment until
January of 1974 and desired the time for preparation of their own case
and the urging of pre-trial motions. Likewise, the delay from January until
the termination of the Means-Banks trial was largely the result of defendants'
unwillingness to participate in simultaneous trials.
Of more importance in consideration
of this motion is the nature of defendants' demand and absence of clear
request for a prompt trial. As the Supreme Court said in Barker v. Wingo,
at 536, 92 S. Ct. at 2195:
"But barring extraordinary circumstances,
we would be reluctant indeed to rule that a defendant was denied this constitutional
right on a record that strongly indicates, as does this one, that the defendant
did not want a speedy trial."
Here defendants' demand was not for
a speedy trial but for a joint trial, and under the circumstances in these
cases, it appears that this is precisely what they desired. The government
was prepared to go ahead with simultaneous trial if that was defendants'
desire, but they apparently did not.
Finally, defendants have made no showing
of prejudice. For the most part defendants were free on bail, eliminating
any substantial claim of prejudicial incarceration. Likewise, though given
the opportunity, defendants have failed to show any impairment of their
defense or anxiety or apprehension over the ultimate outcome of the case.
FRCrP 48
FRCrP 48 is a codification of the inherent
power of a court to dismiss a case for want of prosecution. 8A Moore's
Federal Practice 48.03(1). It is not coextensive with the Sixth Amendment
guarantee but rather implements that right. See, e. g., United States
v. Clay, 481 F.2d 133, 135 (7th Cir. 1973); Hodges v. United States,
408 F.2d 543 (8th Cir. 1969); Cohen v. United States, 366 F.2d 363
(9th Cir. 1966); United States v. Mark II Electronics of Louisiana,
Inc., 283 F. Supp. 280 (E.D.La.1968). Rule 48(b) gives the court discretion
to dismiss an indictment where there has been unnecessary delay even though
there has been no Sixth Amendment violation and under certain circumstances
where no prejudice has been shown. See, e. g., United States v. Clay,
supra; United States v. McKee, 332 F. Supp. 823 (D.Wyoming 1971); United
States v. Navarre, 310 F. Supp. 521 (E.D.La.1969). While it appears
that the rule imposes a more stringent standard upon the government than
the Sixth Amendment, the precise limits and the standards for the exercise
of this discretion are unclear. See United States v. Dallago, 311
F. Supp. 227 (E.D.N.Y.1970); United States v. Mark II Electronics of
Louisiana, Inc., supra. The Eighth Circuit has indicated that the same
factors which are relevant under the Sixth Amendment are likewise relevant
under Rule 48(b). Hodges v. United States, supra.
Here, under the circumstances outlined
above, the court is not inclined to dismiss the indictment on these grounds.
Due Process
Defendants' final claim in this regard
is that the delay in the return of the present indictment has violated
defendants' rights under the Fifth Amendment to the United States Constitution.
In United States v. Marion,
404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971), while recognizing
that the statute of limitations provides the primary protection for delay
in prosecution, the court did recognize that preindictment delay on the
part of the government may violate defendant's rights under the Fifth Amendment.
Since Marion, the Eighth Circuit has measured defendant's claims
under the Fifth Amendment as involving a process of balancing the reasonableness
[F.
Supp. 240] of the delay against any resultant prejudice to the defendant.
See
e. g., United States v. Jackson, 504 F.2d 337 (8th Cir. 1974); United States
v. Norton, 504 F.2d 342 (8th Cir. 1974); United States v. Washington,
504 F.2d 346 (8th Cir. 1974).
In applying this test, the court in
Jackson
indicated that while in some circumstances prejudice might be inferred
from unjustified delay, generally where the government is not engaging
in intentional delay in order to gain a tactical advantage over the accused,
the defendant must affirmatively demonstrate prejudices. United Statesv.
Jackson, supra, at 339 n. 2.
Here, as above, defendants have made
no showing to substantiate their claims of prejudice or intentional delay.
These claims are at best conclusory. By most standards, the delay is not
substantial and there is no indication that an earlier indictment would
have resulted in an earlier trial. Further, in light of the circumstances
of this case and the magnitude of the prosecutions, the delay does not
appear to be unreasonable.
Motion in the Alternative for Judgment
of Acquittal or New Trial4
Following a jury verdict of guilty
on both counts for all three defendants, the latter have moved under Rule
29, FRCrP, for a judgment of acquittal as to each defendant on the ground
that the evidence is insufficient to sustain a conviction.
The standard to be applied in passing
upon a motion for judgment of acquittal is whether a reasonable mind might
fairly conclude guilt beyond a reasonable doubt, giving full play to the
right of the jury to determine credibility, weigh the evidence, and draw
justifiable inferences of fact. Curley v. United States, 81 U.S.App.D.C.
389, 160 F.2d 229, 232-233 (1947), cert. denied, 331 U.S. 837, 67
S. Ct. 1511, 91 L. Ed. 1850. See Conaway v. United States, 349 F.2d
907 (8th Cir. 1965), cert. denied, 382 U.S. 976, 86 S. Ct. 554,
15 L. Ed. 2d 467. The evidence and inferences drawn therefrom must be viewed
in the light most favorable to the government. United States v. Wolfenbarger,
426 F.2d 992, 994 (6th Cir. 1970); United States v. Fryer, 419 F.2d
1346, 1349 (8th Cir. 1969); Moore v. United States, 375 F.2d 877,
879-880 (8th Cir. 1967).
The defendants here were found guilty
on a theory of aiding and abetting the commission of the crimes charged
in the indictment. Specifically, they were convicted in Count I of wilfully
and unlawfully impeding postal inspector Graham while the latter was engaged
in the performance of his official duties, in violation of 18 U.S.C. §
111,5 and in
Count II of unlawfully, wilfully, and forcefully taking from the person
of inspector Hanson a pistol belonging to the United States, in violation
of 18 U.S.C. § 2112.6
Federal statutory law provides that
one who aids, abets, counsels, commands, induces or procures the commission
of a crime is punishable as a principal. 18 U.S.C. § 2. The United
States Supreme Court has described the requisites of aiding and abetting
in Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S. Ct.
766, 769, 93 L. Ed. 919 (1949):
In order to aid and abet another to
commit a crime it is necessary that a defendant "in some sort associate
[F.
Supp. 241] himself with the venture, that he participate in it as in
something that he wishes to bring about, that he seek by his action to
make it succeed." L. Hand, J., in United States v. Peoni, 2 Cir., 100
F.2d 401, 402.
To find one guilty as an aider and
abettor, it must be proven that he shared in the criminal intent of the
principal and that there was a community of unlawful purpose at the time
the act was committed. United States v. Untiedt, 493 F.2d 1056,
1058 (8th Cir. 1974); Snyder v. United States, 448 F.2d 716, 718
(8th Cir. 1971); Johnson v. United States, 195 F.2d 673, 675-676
(8th Cir. 1952). The intent required has also been described as a "purposive
attitude." United States v. Hill, 464 F.2d 1287, 1289 (8th Cir.
1972); United States v. Kelton, 446 F.2d 669, 671 (8th Cir. 1971).
Presence at the scene must be accompanied by a culpable purpose before
it can be equated with aiding and abetting. Hill, supra at 1289;
Kelton,
supra at 671; Snyder, supra at 719.
The second essential element which
must be shown is some active participation by the accused which furthers
or encourages the crime. United States v. Irons, 475 F.2d 40, 42
(8th Cir. 1973); United States v. Thomas, 469 F.2d 145, 147 (8th
Cir. 1972); Johnson, supra at 675. Mere presence even when coupled
with negative acquiescence is not sufficient. Thomas, supra at 147;
Baker
v. United States, 395 F.2d 368, 371 (8th Cir. 1968); Johnson, supra
at 675.
The evidence in the instant case consisted
of testimony of three of the four postal inspectors allegedly impeded on
March 11, 1973, together with a limited number of photographs and other
exhibits. Viewing the evidence in a manner most favorable to government,
it is the view of the court that the guilty verdict on Count I was not
improper in light of the evidence.
All three defendants were placed by
testimony at the museum in Wounded Knee during the period in which the
postal inspectors were being held there against their will. The crime of
impeding and obstructing these postal inspectors was a continuing one,
occurring over a period of a few hours. There was testimony that at various
points during this time span all three defendants engaged in conduct which
evidenced a "purposive attitude" towards the forceful interference with
the postal inspectors.
Defendant Crow Dog proclaimed them
prisoners of war, directed that they be searched, obtained briefcase keys
from inspector Graham, and lectured them on the evils of the white man
while they were bound. Defendants Camp and Holder acted as a guard and
security officer, respectively, and both exerted custodial control over
the inspectors in leading them to their point of release. Testimony as
to such acts together with all the other evidence was sufficient to allow
the inference that the actors maintained a purposeful attitude which facilitated
the criminal venture of impeding and obstructing inspector Graham, and
they were thus aiders and abettors. See United States v. Barlow,
152 U.S.App.D.C. 336, 470 F.2d 1245 (1970); United States v. Thomas,
supra; United States v. Archer, 450 F.2d 1106 (8th Cir. 1971). Cf.
United States v. Barber, 429 F.2d 1394 (3rd Cir. 1970).
The evidence also sustains the jury's
verdict of guilty on Count II with respect to Defendants Crow Dog and Holder.
The testimony regarding Crow Dog's involvement with the search of the inspectors
and acquiring of keys from them plus the totality of the evidence was sufficient
to permit an inference of knowing participation which facilitated the removal
and robbery of the pistol belonging to the government.
With respect to Defendant Holder, the
question of sufficient evidence to sustain the verdict on Count II is a
close one. But resolving the evidence and reasonable inferences therefrom
in a manner most favorable to the government, the court is of the view
that the evidence permits the inference that this [F. Supp. 242]
defendant knowingly committed acts which encouraged or furthered the robbery
of the pistol. The record contains testimony that one who called himself
"Dan Holder," and who was identified as Defendant Stanley Holder by one
inspector at trial, engaged in three types of acts which incriminate him
as an aider and abettor. These acts were: (1) stating to the inspectors
that property which had been taken from them would be returned upon their
release, (2) repeated entrances into the museum while visibly armed with
a sidearm, and on one such instance, revealing to the inspectors his authority
as security officer and stating that he would keep them informed of their
status, and (3) wearing a jacket which was part of the personal property
which had been taken from the inspectors.
However, the court is unable to conclude
that any evidence in the record sustains the inference that Defendant Camp
knowingly associated himself with the crime of robbing inspector Hanson
of a government-owned pistol. The record is devoid of any testimony that
this defendant was present at the time the pistol was taken or that he
ever had knowledge that the pistol had been or was to be taken. Lack of
proof that this defendant had knowledge of the crime and intended that
it be committed, or of proof of such participation that knowledge and intent
could be inferred, requires that he be acquitted on the charge of aiding
and abetting the commission of the robbery alleged in Count II. See
United States v. Barlow, supra; Snyder v. United States, supra; United
States v. Smith, 418 F.2d 223 (6th Cir. 1969); Johnson v. United States,
supra.
Defendants' contention that they must
be acquitted on every count because the principals have not been identified
or convicted is without merit. There is ample evidence in the record to
establish that the crimes charged in the indictment were committed by one
or more principals. It is not necessary that the principal be convicted
or even identified if there is sufficient evidence to convict an accused
of aiding and abetting the commission of the crime. United States v.
Untiedt, 493 F.2d 1056, 1060 (8th Cir. 1974); Pigman v. United States,
407 F.2d 237, 239 (8th Cir. 1969); Hendrix v. United States, 327
F.2d 971, 975 (5th Cir. 1964).
Finally, defendants move for a new
trial as to all counts on which a judgment of acquittal is not entered.
The grounds urged on behalf of the motion are that a new trial is required
in the interest of justice, that the verdict is contrary to the weight
of the evidence, and that the court erred in its rulings on various motions,
matters of trial procedure, and admission of evidence. The granting or
denial of a motion for new trial based on a review of the evidence is within
the sound discretion of the trial court. United States v. Stewart,
445 F.2d 897, 899 (8th Cir. 1971).
Upon a review of the record in this
case, it is the view of the court that there is substantial evidence to
support the verdict on Count I as to all defendants and on Count II as
to Defendants Crow Dog and Holder. It is also the court's opinion that
the alleged errors in previous rulings are not well taken for the reasons
heretofore given at the time of said rulings. Nor, in the view of the court,
do the matters raised in defendants' motion for post-trial relief filed
July 25, 1975 set forth a sufficient basis relevant to the cases at bar
to warrant a new trial.
It is therefore
Ordered
1. Motions to dismiss denied.
2. Motion for judgment of acquittal
granted as to Count II in CR 75-20, and Defendant Carter Camp is hereby
acquitted of the charges contained in Count II. Motion denied as to all
other counts.
3. Motion for new trial denied.
4. Motion for post-trial relief granted
in part and denied in part as indicated in text.
1 The motion for post-trial relief
filed July 25, 1975, asks the court to amend and supplement the previously
filed motion for new trial and to supplement the record on government misconduct.
These two forms of relief are granted, and the court has considered the
matters raised by the motion and supporting documents in ruling on the
motions for new trial and to dismiss for government misconduct. A third
request, for an evidentiary hearing on the issues raised by the recent
motion, is denied.
2 Counts I and II in each indictment
allege identical substantive offenses. Count I contains the charge of wilfully
impeding a postal inspector while in the performance of his duties, in
violation of 18 U.S.C. §§ 111 and 1114 (1970). Count II charges
defendants with robbing another of personal property belonging to the United
States, in violation of 18 U.S.C. § 2112 (1970).
3 In reaching its decision on the motion
to dismiss for discriminatory prosecution and government misconduct, the
court has reviewed and considered the briefs, affidavits, transcripts,
and all other documents and testimony presented in support thereof, including
the following:
(a) those portions of the transcript
in the trial of United States v. Banks & Means before the Honorable
Fred Nichol in St. Paul cited by the defendants;
(b) the briefs and documents filed,
together with the transcript of testimony adduced, at hearings on defendants'
motions to dismiss for discriminatory prosecution and government misconduct
in the Banks & Means case;
(c) appellant's and appellee's briefs
submitted to the Eighth Circuit on the appeal of the decision in United
States v. Banks & Means, 383 F. Supp. 389 (D.S.D.1974), as well
as the decision of the appellate court, 513 F.2d 1329 (1975);
(d) affidavits filed in this case by
both parties in support of their respective motions and resistances thereto,
and in particular the affidavits filed by the government in response to
the directives of the court;
(e) the record in the instant case,
including trial conduct and testimony;
(f) the motion for post-trial relief
filed July 25, 1975, together with supporting documents;
(g) the memorandum opinion of the Honorable
Andrew Bogue dated March 22, 1975, in the case of United States v. Escamilla,
CR 73-5138 (D.S.D.);
(h) the memorandum opinion of the Honorable
Warren Urbom dated June 19, 1975, in the cases of United States v. Cooper,
United States v. Fleury, et al., and United States v. Alvarado,
(D. Neb.), 397 F. Supp. 277.
4 Request for oral argument on this
motion is denied. Local Rule 16 (N.D.Ia.)
5 Section 111 of Title 18, United States
Code, provides in part:
Whoever forcibly assaults, resists,
opposes, impedes, intimidates, or interferes with any person designated
in section 1114 of this title while engaged in or on account of the performance
of his official duties, shall be fined not more than $5,000 or imprisoned
not more than three years, or both.
6 Section 2112 of Title 18, United
States Code, provides:
Whoever robs another of any kind or
description of personal property belonging to the United States, shall
be imprisoned not more than fifteen years.
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