585 F.2d 314 (8th Cir. 1978), 77-1487, United States v. Peltier

Docket Nº:77-1487.
Citation:585 F.2d 314
Party Name:UNITED STATES of America, Appellee, v. Leonard PELTIER, Appellant.
Case Date:September 14, 1978
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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585 F.2d 314 (8th Cir. 1978)

UNITED STATES of America, Appellee,

v.

Leonard PELTIER, Appellant.

No. 77-1487.

United States Court of Appeals, Eighth Circuit

September 14, 1978

Submitted April 12, 1978.

As Modified on Denial of Rehearing and Rehearing En Banc

Oct. 27, 1978.

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William M. Kunstler, New York City (argued), and Michael E. Tigar, Washington, D. C. (argued), Arthur Kinoy, New York City, on brief for appellant.

Evan L. Hultman (former U. S. Atty.), Waterloo, Iowa (argued), Lynn E. Crooks, Asst. U. S. Atty., Fargo, N. D., Robert L. Sikma, Asst. U. S. Atty., Sioux City, Iowa, and Richard E. Vosepka, Jr., Asst. U. S. Atty., Minneapolis, Minn., on brief for appellee.

Before GIBSON, Chief Judge, and ROSS and STEPHENSON, Circuit Judges. [*]

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ROSS, Circuit Judge.

On June 26, 1975, two Special Agents of the Federal Bureau of Investigation, Jack Coler and Ronald Williams, were murdered on the Pine Ridge Indian Reservation in South Dakota. Leonard Peltier, Robert Eugene Robideau, Darrell Dean Butler, and James Theodore Eagle were charged with the murders in a two-count indictment for first-degree murder in violation of 18 U.S.C. §§ 2, 1111, and 1114. Robideau and Butler were jointly tried by a jury and were acquitted. The government dismissed the charges against Eagle. Subsequent to the Robideau-Butler trial, Peltier was tried by a jury, was convicted on both counts, and was sentenced to life imprisonment on each count, the sentences to run consecutively. He appeals.

Peltier was not a permanent resident of the Pine Ridge Reservation. His presence there in June of 1975 was the result of a political struggle between certain reservation members who supported the structure of tribal government, and supporters of the American Indian Movement (AIM) who advocated a different form of government. In an effort to alleviate the conflict, tribal elders had invited members of AIM to stay at the reservation. Leonard Peltier, Darrell Butler, Robert Robideau, Michael Anderson, Wilford Draper, Norman Charles, Norman Brown, and Joe Stuntz, all AIM members, accepted their invitation. They arrived in the spring of 1975 and stayed in an encampment on the reservation which became known as "Tent City."

In June of 1975, Special Agents Coler and Williams were engaged in felony criminal investigations on the Pine Ridge Indian Reservation. On June 25 and 26, they were attempting to locate and arrest four individuals, including James Theodore Eagle, who were charged with armed robbery and assault with a deadly weapon.

Shortly before noon on June 26, Special Agent Williams, driving a 1972 Rambler, and Special Agent Coler, driving a 1972 Chevrolet, entered the Harry Jumping Bull Compound on the reservation. 1 The agents were following three individuals riding in a red and white van that had entered the compound shortly before them. 2 The van stopped at a fork in the road leading to Tent City. The agents stopped at the bottom of a hill. Williams advised Coler on the radio that the occupants of the van were about to fire on them. Firing commenced. Other AIM members who were present at the Jumping Bull Compound or Tent City thereafter joined in the shooting.

The agents took heavy fire. Over 125 bullet holes were found in their cars. In contrast, only five shell casings attributable to the agents' guns were ever found at the scene. Both agents were wounded by bullets fired from a distance. Special Agent Coler was wounded by a bullet that traveled through the trunk lid of his car and struck his right arm. The force of the bullet almost took his arm off, rendering him completely disabled and causing him to lose blood rapidly. He crawled to the left side of his car, away from the gunfire. Williams was shot in the left shoulder. The bullet traveled from his shoulder, under his arm and into his side. Although wounded, Williams removed his shirt and attempted to make a tourniquet for Coler's arm. Williams at some point was also shot in the right foot.

These wounds were not fatal. The agents were killed with a high velocity, small caliber weapon fired at point blank range. Williams attempted to shield his face from the blast with his right hand, turning his head slightly to the right. The murderer placed the barrel of his gun against Williams' hand and fired. The bullet ripped through Williams' hand, into his

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face, and carried away the back of his head. He was killed instantly. The murderer shot Coler, who was unconscious, across the top of the head. The bullet carried away a part of his forehead at the hairline. The shot was not fatal, however. The murderer then lowered his rifle a few inches and shot Coler through the jaw. The shell exploded inside his head, killing him instantly.

The evidence against Peltier was primarily circumstantial. Viewed in the light most favorable to the government, 3 the strongest evidence that Peltier committed or aided and abetted the murders is as follows:

  1. The van that the agents followed into the Jumping Bull Compound was occupied by Peltier, Norman Charles and Joseph Stuntz.

  2. At the time, Peltier had access to information that he was being followed by FBI agents. One of the occupants of the van, Norman Charles, had been picked up along with two other AIM members, Anderson and Draper, by Coler and Williams the day before. The three had been transported to Pine Ridge in Williams' car, and were later released after the agents were informed that none of them was Jimmy Eagle.

  3. Peltier had reason to believe that the agents were looking for him, rather than Jimmy Eagle. He stipulated at trial that there was an arrest warrant outstanding, charging him with attempted murder. Upon his arrest in Canada months later for the murders of the agents, Peltier remarked that the two agents were shot when they came to arrest him. He also made other incriminating statements.

  4. Michael Anderson, one of the AIM members who was firing at the cars from one of the houses in the Jumping Bull Compound, testified that after both sides had been shooting at one another from a distance, and at least one of the agents had been wounded, he saw Peltier, Robideau and Butler standing down at the agents' cars. Peltier at the time was holding an AR-15. Shortly after he saw the three down at the agents' cars, he began to walk back to Tent City, a distance of about a quarter of a mile. When he arrived at Tent City, Peltier, Robideau and Butler were already there, as was Williams' car. F.B.I. agents who later searched the area recovered Williams' badge and billfold on the ground near the junction of the roads leading to the houses and Tent City. It was at this junction that Peltier's van had stopped shortly before the firing commenced.

  5. According to the doctor who performed the autopsies, the agents were shot with a high velocity, small caliber weapon. Peltier's AR-15, the civilian counterpart of the M-16, was the highest velocity weapon fired that day. 4 No other person was seen by any trial witness on June 26 with an AR-15. Peltier carried his AR-15 out with him when he and the other participants of the shoot-out escaped from the reservation and fled to the Rosebud Reservation, where they remained for some time before splitting up. Robideau, Charles and Anderson went south after leaving Rosebud. Anderson testified that he loaded their car with weapons, one of which was an AR-15, before they left South Dakota. On

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    September 10, 1975, the car exploded on the Kansas Turnpike, and police recovered from the car the AR-15 which the government contended Peltier used on the day of the murders.

  6. Ammunition components linked ballistically to the same AR-15 were found at the crime scene. The ballistics expert was unable to fire the AR-15 because it had been damaged in the explosion on the Kansas Turnpike. However, he was able to remove the bolt from it, place the bolt in another AR-15, and test fire the replacement AR-15. The expert testified that a .223 cartridge casing found in the trunk of Coler's car had been loaded into and extracted from the AR-15. He also testified that a .22 caliber copper bullet jacket found in the ground underneath the bodies of Coler and Williams had rifling impressions consistent with the rifling of the barrel of an AR-15. There was no testimony to indicate that either Robideau or Butler was seen the afternoon of the murders with a weapon that fired .22 caliber bullets.

  7. Wilford Draper, a member of the escape party that left Tent City the evening of the murders, testified that he overheard Peltier, Butler and Robideau discussing certain details of the murders on the evening of June 26, 1975.

  8. Peltier was stopped by police months later in the State of Oregon. He fled the scene, turning to fire on one of the police officers. The motor home in which he was riding was searched, and Special Agent Coler's revolver was found in a bag bearing Peltier's thumbprint.

    After a twenty-five day trial, Peltier was convicted by a jury of both counts of first-degree murder. He alleges on appeal 5 that:

  9. Certain evidence introduced at trial was so prejudicial and inflammatory that its admission constituted a denial of due process;

  10. The trial court refused to instruct the jury on his defense that he was a victim of an F.B.I. frame-up, and refused to allow him to introduce much of the available evidence of F.B.I. misconduct, thereby depriving him of a fair trial and of his right to compulsory process;

  11. The trial court's refusal to reread testimony requested by the jury constituted an abuse of discretion;

  12. The trial court had no jurisdiction to try him because the United States Government deliberately violated the Webster-Ashburton Treaty;

  13. Prosecution...

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