532 F.2d 1182 (8th Cir. 1976), 75-1617, United States v. Crow Dog

Docket Nº:75-1617.
Citation:532 F.2d 1182
Party Name:UNITED STATES of America, Appellee, v. Leonard CROW DOG, Appellant.
Case Date:March 31, 1976
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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532 F.2d 1182 (8th Cir. 1976)

UNITED STATES of America, Appellee,


Leonard CROW DOG, Appellant.

No. 75-1617.

United States Court of Appeals, Eighth Circuit

March 31, 1976

Submitted Nov. 13, 1975.

Rehearing and Rehearing En Banc Denied April 22, 1976.

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Kenneth E. Tilsen, St. Paul, Minn., Jacqueline D. Quick, St. Paul, Minn., on brief, for appellant.

R. D. Hurd, Asst. U. S. Atty., Sioux Falls, S. D., William F. Clayton, U. S. Atty., David R. Gienapp, Asst. U. S. Atty., Sioux Falls, S. D., and Tom P. May, Legal Intern, on brief, for appellee.

Before GIBSON, Chief Judge, LAY and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

This direct criminal appeal is taken by appellant Leonard Crow Dog following his conviction by a jury of violating 18 U.S.C. §§ 111 and 2112. It is alleged on this appeal that a variety of trial and pretrial errors committed by the government and by the district court 1 require reversal of that conviction. We find no such reversible error and thereby affirm.

The great majority of the arguments raised on this appeal relate to procedural matters. The facts surrounding the incident which led to the indictment of Leonard Crow Dog are relevant only with regard to his claim that the evidence was insufficient to support his conviction. Accordingly, a thorough recitation of those facts will be reserved until that issue is discussed. However, in order to evaluate appellant's various contentions regarding procedural error, a detailed survey of the history of this case must be set forth.


Appellant Leonard Crow Dog was charged in a three-count indictment handed down by a grand jury in the District of South Dakota on December 12, 1974. These charges arose out of an incident that took place on March 11, 1973, in Wounded Knee, South Dakota, involving the alleged detention of four United States postal inspectors by members of the American Indian Movement (AIM). 2 Count I alleged that Crow Dog willfully impeded, interfered with and intimidated Postal Inspector Gene Graham while he was performing official duties in violation of 18 U.S.C. §§ 111 and 1114. Count II charged that Crow Dog by force and violence unlawfully took a pistol belonging to the United States from the person of one Jack Hanson in violation of 18 U.S.C. §§ 1153 and 2112, and Count III alleged that Crow Dog had taken various goods from the Wounded Knee trading post with a combined value in excess of $100, a violation of 18 U.S.C. §§ 1153 and 661. An identical indictment was returned against Carter Camp. Stanley Holder was indicted separately on counts I and II.

These December 12 indictments superseded indictments which had been returned in March and April of 1973 against these same three men plus Dennis Banks, Russell Means, Pedro Bissonette, and Clyde Bellecourt.

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The earlier indictments charged all seven men with conspiracy in one count and alleged substantive offenses in ten other counts. In June 1973 these seven defendants moved to consolidate their cases for trial alleging, among other things, that seriatim trials would result in a denial of a speedy trial to some of the defendants. The district court 3 ordered a joint trial for Means and Banks but denied consolidation to the others. Review of that denial was attempted in this court by the filing of a petition for a writ of mandamus which was denied.

In October 1973 these same defendants moved for a change of venue pursuant to Fed.R.Crim.P. 21(a) and, after satisfying the court that prejudice against them existed in South Dakota, venue was transferred to St. Paul, Minnesota. The so-called "leadership" trial of Means and Banks began in January 1974 and ended with the district court's dismissal of all charges against them on September 13, 1974. See United States v. Banks, supra, 383 F.Supp. at 397. As previously noted, superseding indictments naming Crow Dog, Camp and Holder were returned on December 12, 1974. The original 11-count indictments against them were dismissed on February 5, 1975. Thereafter, Judge Nichol recused himself and reassigned the Crow Dog, Holder, and Camp cases to Judge Edward McManus, sitting by designation in the District of South Dakota.

A pretrial conference on these cases was held on April 16, 1975, at which numerous defense motions were filed seeking, inter alia, dismissal of the charges based upon denial of a speedy trial, bad faith prosecution and governmental misconduct; disclosure of all exculpatory and impeaching evidence by the prosecution; and a determination of venue and transfer from the district. In addition, the government filed a motion to consolidate the indictments against these three men for purposes of trial. On May 2, 1975, the district court transferred venue in these cases to the Northern District of Iowa, Cedar Rapids Division, stating that prejudice against Indians "created a reasonable likelihood of impairing defendants' right to a fair trial in the District of South Dakota." However, the court rejected defendants' argument that the superseding indictments were merely a continuation of the earlier charges brought against these same men and that venue was still in St. Paul, Minnesota, pursuant to Judge Nichol's earlier transfer order. United States v. Holder, 399 F.Supp. 220 (D.S.D.1975). The government's motion to consolidate was granted by the court on May 12, 1975.

On May 27, 1975, a hearing on the motions regarding the denial of a speedy trial, prosecutorial misconduct, and discriminatory prosecution began. After three days of testimony, argument and the presentation of extensive documentary evidence on each of these issues, the motions to dismiss were taken under advisement by the court.

In an order entered on May 30, 1975, the district court disposed of the various discovery motions that had been filed by defendants. In summary, the court denied a request to examine all government files in camera for exculpatory evidence, ordered the government to provide defendants prior to trial with any information concerning government witnesses which bore on their credibility, and further ordered the government to produce for the court's in camera inspection the names and files of all informants involved in the case.

The consolidated trial against these three defendants commenced with the institution of the jury selection process on June 2, 1975. Pursuant to a defense motion, counsel for both sides were allowed to supplement the court's voir dire of the jury with their own questioning of individual jurors. The jury selection process took an entire day, the great majority of which was consumed by questions asked by counsel for the three defendants.

The prosecution began presenting its case following the swearing in of the jury and opening statements on June 3, 1975. After two and one-half days of testimony, principally by three of the postal inspectors who

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were involved in the Wounded Knee incident, the prosecution rested. Motions to strike certain testimony and for a judgment of acquittal based upon insufficiency of the evidence were made by defense counsel and denied by the court. Defendants rested without presenting any testimony and immediately renewed their motion for judgment of acquittal. That motion was once again denied by the court. The jury returned a guilty verdict against Crow Dog and his co-defendants as to all charges on June 5, 1975. 4

A post-trial motion was filed on June 27, 1975, in which the defendants sought a judgment of acquittal or a new trial based primarily upon the grounds of sufficiency of the evidence, the government's failure to disclose evidence, and problems with the in-court identification of the defendants. A second post-trial motion was filed on July 25, 1975, seeking an evidentiary hearing on the basis of newly discovered evidence, i. e., a group of photographs which were allegedly used for the purpose of identifying defendants and which had been suppressed by the government. The motion contended that the photographs included pictures of the defendants, that they had been shown to the postal inspectors on the day of the incident, and that no identification of defendants was made at that time. All of these motions were denied by the district court in a lengthy memorandum and order filed on August 4, 1975. United States v. Crow Dog, 399 F.Supp. 228 (N.D.Iowa 1975). On August 5, 1975, Crow Dog was sentenced to three years on Count I and eight years on Count II, the sentences to run concurrently. Execution of the sentences was suspended and Crow Dog placed on probation for a period of five years. Co-defendants Holder and Camp failed to appear for sentencing.


The first issue which we consider on this appeal is that of venue. Appellant contends that the trial court erred in ruling that the superseding indictments began an independent prosecution which required a new determination of venue. 399 F.Supp. at 224-27. This, it is contended, violated appellant's constitutional right against having venue changed against his consent, as well as rights that he enjoyed under Fed.R.Crim.P. 21(a). Appellant further alleges that principles of collateral estoppel and law of the case precluded the district court from "overruling" the prior transfer of venue to St. Paul, Minnesota, by Judge Nichol. We disagree.

The Constitution in Article III, section 2, and the Sixth Amendment affords a defendant in a criminal trial the right to be tried in the state and district where the alleged crime occurred. However, the Sixth Amendment also provides the right to a fair trial before an impartial jury. This latter right is deemed to be a fundamental element of due process. Singer v. United...

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