548 F.3d 641 (8th Cir. 2008), 07-1914, United States v. Spotted Elk

Docket Nº:07-1914, 07-1923, 07-1925, 07-1931, 07-1937.
Citation:548 F.3d 641
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Colin SPOTTED ELK, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Flint Thomas Red Feather, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Rusty Richards, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Marvella Richards, Defendant-A
Case Date:November 26, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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548 F.3d 641 (8th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

Colin SPOTTED ELK, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Flint Thomas Red Feather, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Rusty Richards, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Marvella Richards, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Geraldine Blue Bird, Defendant-Appellant.

Nos. 07-1914, 07-1923, 07-1925, 07-1931, 07-1937.

United States Court of Appeals, Eighth Circuit.

November 26, 2008

Submitted: Feb. 11, 2008.

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Brad Lee, argued, Rapid City, SD, for appellant, Colin Spotted Elk.

Daniel L. Pahlke, argued, Rapid City, SD, for appellant, Marvella Richards.

Dennis C. Whetzal, argued, Rapid City, SD, for appellant, Flint Red Feather.

Ted Wilson Hinesley, argued, Edgemont, SD, for appellant, Rusty Richards.

Terry L. Pechota, argued, Rapid City, SD, for appellant, Geraldine Blue Bird.

Mark E. Salter, AUSA, argued, Sioux Falls, SD, for appellee.

Before WOLLMAN, JOHN R. GIBSON, and SHEPHERD, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

This is the appeal of five defendants convicted of multiple drug and gun crimes in connection with their operation of a drug trafficking business on the Pine Ridge Oglala Sioux Reservation in South Dakota.

Geraldine Blue Bird argues that the district court erred in failing to suppress evidence discovered as a result of Fourth Amendment violations; in allowing the government to strike one venire-member and in excusing another venire-member for cause; in entering a judgment of conviction for gun and drug offenses without sufficient evidence; in allowing hearsay statements and opinion testimony; in admitting evidence seized pursuant to a warrant that the government did not produce in discovery; and in determining an appropriate sentence.

Colin Spotted Elk argues that his Sixth Amendment confrontation rights were violated when the district court admitted testimony that Blue Bird had implicated him in a scheme to cover up the conspiracy. Spotted Elk also contends that his conviction on Count VI must be reversed because the jury was wrongly instructed that taking a gun in exchange for drugs would satisfy the “ use" element of 18 U.S.C. § 924(c); the government confesses error on this point in light of Watson v. United States, __ U.S. __, 128 S.Ct. 579, 169 L.Ed.2d 472 (2007), which was decided while this appeal was pending.

Marvella Richards 1 contends that the prosecutor improperly used a peremptory strike to eliminate a venire-member on

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account of her race. She also contends that the district court erred in assessing a two-level enhancement in her Sentencing Guidelines offense level for use of a minor to commit a crime and that the district court's sentence was unreasonable under 18 U.S.C. § 3553(a).

Rusty Richards contends that the district court should have severed his case from the others and that he should have been sentenced as a minimal participant.

Flint Thomas Red Feather contends that the district court committed numerous errors in sentencing him.

We reverse Spotted Elk's gun conviction under § 924(c), and remand for resentencing on the remaining counts of conviction; we remand Red Feather's sentence for findings regarding the scope of his joint criminal undertaking and the foreseeability to him of his co-conspirators' drug transactions; and we affirm in all other respects.

I. The Evidence at Trial.

The evidence in this eleven-day trial showed that Geraldine Blue Bird headed up a cocaine sales organization that supplied drug users on the Pine Ridge Oglala Sioux Reservation. Blue Bird's organization consisted primarily of her extended family and intimate friends, many of whom lived together in a neighborhood in Pine Ridge known as the Igloos, where they retailed cocaine they picked up in Denver.

The charges to be proved were contained in an eight-count indictment, which alleged a conspiracy to distribute cocaine, a conspiracy to distribute marijuana, various discrete acts of possession of cocaine with intent to distribute, and carrying or using firearms during and in relation to drug trafficking violations.2

The evidence at trial was principally of two kinds: co-conspirators testifying under various arrangements with the government and police officers describing the investigations that led to the arrest of Blue Bird and the other defendants.

The co-conspirator testimony came from Blue Bird's family and friends who had taken part in the drug operation. In rough outline, their testimony showed that the family drug business began with Blue Bird's son Colin Spotted Elk, who began selling marijuana from what was called the “ blue house" in the Igloos in the 1990s. Eventually, Blue Bird gained control of what was once her son's business, and by the time of the 2002-2005 period at issue

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in the indictment, she made the important decisions and controlled the money. Spotted Elk was eventually relegated to the third tier of control, while a succession of three women, Dawnee Frogg, Janine Cottier, and Jody Richards, occupied the position of second in command. Spotted Elk supervised the retail sellers, who called themselves the “ Igs" and many of whom had a distinctive tattoo. Rusty Richards and Flint Thomas Red Feather were retail-level sellers, and Red Feather also helped with packaging cocaine, holding cocaine, and counting money. Marvella Richards, Blue Bird's niece, would hold the cocaine and “ reup" the retail-level sellers. “ Reupping," in their patois, meant turning in the proceeds from one consignment of cocaine, usually an “ eight pack" of eight half-gram packets, and receiving a new consignment. The organization charged $50 per half gram of cocaine, but would accept some barter. In particular, Blue Bird would accept electronic benefit (or “ EBT" ) cards which were issued by the government as food assistance, but Blue Bird would discount the cash value of the cards by half or more. The organization also accepted guns in payment for drugs on occasion. Spotted Elk, in particular, was interested in guns, and he authorized Thomas Spotted Bear to accept a gun in exchange for a half gram of cocaine. By the time the business was in full swing in 2005, Blue Bird herself or some group of her associates would travel to Denver about once a month to buy a kilogram of cocaine.

Blue Bird's business was apparently something of an open secret in Pine Ridge, since the stream of customers was so great as to cause traffic jams, particularly on the first of the month, which was pay day on the reservation. In June 2005, Blue Bird moved from the reservation to Rapid City, South Dakota, but many of her family and friends stayed on in her blue trailer and in the blue house in the Igloos.

The trial evidence detailed how police surveilled the houses she owned in the Igloos, as well as the house she had moved into at 629 Indiana in Rapid City, South Dakota, and gradually amassed evidence of the cocaine operation going on at those places. First, early in the morning of March 20, 2005, Oglala Sioux Tribal Police Officer David Whary was dispatched to Blue Bird's blue trailer in the Igloos on a call that someone was being assaulted there. Justin Hawk Wing met the officers outside the trailer and told officers they could go inside, which they did. Once inside, Whary moved through the house in a protective sweep; in plain view he saw pieces of aluminum foil with burn marks, which suggested to him that someone had been smoking cocaine; cut up squares of magazine paper; a pipe; plastic baggies with marijuana in them; and EBT cards in many different names, including names of people who were not in or apparently living in the trailer.

Second, in September 2005, Agents Daniel Cooper of the FBI and Derrick Hill of the ATF conducted a “ trash pull," picking up the contents of trash containers set outside the curtilage at the Rapid City house. In the trash, they found burned aluminum foil and spoons, which are commonly used to smoke or process cocaine, as well as pieces of magazine paper cut up into squares and plastic bags knotted up to allow use of one corner of the bag. They also found notes listing names, amounts of money and quantities, which Agent Cooper testified appeared to him to be a ledger for tracking who had what amounts of drugs. Additionally, the trash yielded a bindle of cocaine weighing .34 ounces.

Third, on September 17, 2005, Officer Whary arrested Blue Bird at Dale Richards' house in Pine Ridge on outstanding

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warrants (apparently on matters unrelated to drugs). As he took her into the Tribal jail, she asked him how much her bond would be and told him that she had $5,000 in cash in her pocket. Later, during her booking, she did in fact produce almost that amount of cash. While she was being booked, Blue Bird was seen “ aggressively" pushing something down in her pants. A female officer, Pamela Janis, took Blue Bird into a private room in order for her to change into jail clothes. Officer Janis noticed Blue Bird moving a cart with her leg. When Blue Bird had changed clothes, Janis looked under the cart and found a package wrapped in duct tape, which contained two plastic baggies, each containing eight bindles of what was later determined to be cocaine. Janis picked up the package off the floor and looked at Blue Bird, who said, “ Can I talk to you? I need to talk...

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