553 F.2d 1242 (10th Cir. 1977), 76-1024, United States v. Appawoo

Docket Nº:76-1024, 76-1056.
Citation:553 F.2d 1242
Party Name:UNITED STATES of America, Appellant, v. Ronnie APPAWOO and Gerald Mountainlion, Appellees. UNITED STATES of America, Appellant, v. Ernest Rabbit CASEY, Appellee.
Case Date:April 28, 1977
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1242

553 F.2d 1242 (10th Cir. 1977)

UNITED STATES of America, Appellant,


Ronnie APPAWOO and Gerald Mountainlion, Appellees.

UNITED STATES of America, Appellant,


Ernest Rabbit CASEY, Appellee.

Nos. 76-1024, 76-1056.

United States Court of Appeals, Tenth Circuit

April 28, 1977

        Argued and Submitted Nov. 18, 1976.

Page 1243

        Kenneth S. Geller and John P. Rupp, Attys., Dept. of Justice, Washington, D. C. (Richard L. Thornburgh, Asst. Atty. Gen., and Ramon M. Child, U. S. Atty., Salt Lake City, Utah, with them on the Brief), for appellant.

        Charles C. Brown, Salt Lake City, Utah, for appellees, Ronnie Appawoo and Gerald Mountainlion.

        Brant H. Wall, Salt Lake City, Utah (Gregory B. Wall, Salt Lake City, Utah, with him on the Brief), for appellee, Ernest Rabbit Casey.

        Before SETH and HOLLOWAY, Circuit Judges, and CHILSON, United States Senior District Judge [*].

        SETH, Circuit Judge.

        The Government has taken these appeals from the granting of motions for acquittal entered by Judge Ritter in the United States District Court for the District of Utah.


        In United States v. Casey, No. 76-1056, an information was filed against the defendant, an American Indian, charging an assault with deadly weapons resulting in serious injury of another Indian in Indian country in violation of 18 U.S.C. § 1153. 18 U.S.C. § 1153 provides that such an assault shall be defined and punished in accordance with state law. Defendant asserted, and by motion sought to have the charge dismissed on the ground that had he not been an Indian, he would have been charged instead under the federal assault statute, 18 U.S.C. § 113, which provides for a lesser penalty and is harder for the Government to prove than the Utah statute.

Page 1244

        Thus the issue was raised before trial as to whether the section under which defendant was charged, 18 U.S.C. § 1153, was constitutional as to him. This was by a motion to dismiss the information. United States v. Cleveland, 503 F.2d 1067 (9th Cir.), was cited by defendant as authority for his position.

        The Government replied to the motion by asserting that 18 U.S.C. § 1153 was constitutional as applied to defendant. Also it urged that if it was not, the court could disregard the charge insofar as it was based on that section, and proceed under an amended information, then offered, based on 18 U.S.C. § 113(c).

        The trial judge refused to hear defendant's motion before trial began, and directed the Government to proceed with the trial.

        The jury was impaneled and sworn, and the Government called witnesses to prove that defendant had attacked his sister by striking her in the forehead with his fist and by stabbing her in the stomach with a file. The incident was described and a doctor testified as to the wound caused by the file. The Government then rested, and the trial judge, after excusing the jury, heard arguments on the motion of defendant to dismiss. The trial judge granted the motion and thereafter entered a "judgment of acquittal."

        The reason for the granting of the motion to dismiss during the course of trial had no connection with, nor was it based on the facts developed to that point in the trial. There was no factual determination made before or in the granting of the motion, thus in reality it was a dismissal of the information on constitutional grounds. The ruling came after the trial began because the court had refused to hear the motions before trial as required by Rule 12, Fed.R.Crim.P., in the absence of any showing or reference in any manner whatever to good cause for deferring a consideration and ruling. We must take notice of the practice of this trial judge to hear pretrial motions after the jury has been sworn. We have considered several previous instances where this has been done, and there are references in the records to show that this is done to prevent...

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