United States v. Crow Dog

• Decision Date: 04 August 1975
• Docket Number: No. CR 75-18 to CR 75-20.,CR 75-18 to CR 75-20.
• Citation: 399 F. Supp. 228
• Parties: UNITED STATES of America, Plaintiff, v. Leonard CROW DOG, Defendant. UNITED STATES of America, Plaintiff. v. Stanley Richard HOLDER, Defendant. UNITED STATES of America, Plaintiff, v. Carter CAMP, Defendant.
• Court: U.S. District Court — Northern District of Iowa

399 F. Supp. 228

UNITED STATES of America, Plaintiff, v. 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 to CR 75-20.

United States District Court, N. D. Iowa, Cedar Rapids Division.

August 4, 1975.

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William F. Clayton, U. S. Atty., Sioux Falls, S. D., R. D. Hurd and David R. Gienapp, Asst. U. S. Attys., for plaintiff.

Kenneth E. Tilsen, St. Paul, Minn., for Leonard Crow Dog.

Joseph Beeler, Coconut Grove, Miami, Fla., for Carter Camp.

Frances Schreiberg, Berkeley, Cal., Wounded Knee Legal Defense/Offense Committee, Council Bluffs, Iowa, for Stanley Holder.

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.

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. 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 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...