U.S. v. Bartlett

• Decision Date: 08 September 1988
• Docket Number: No. 87-5244,87-5244
• Citation: 856 F.2d 1071
• Parties: 27 Fed. R. Evid. Serv. 321 UNITED STATES of America, Appellee, v. John David BARTLETT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1071

856 F.2d 1071

27 Fed. R. Evid. Serv. 321

UNITED STATES of America, Appellee, v. John David BARTLETT, Appellant.

No. 87-5244.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 11, 1988.

Decided Sept. 8, 1988.

Laurence J. Zastrow, Pierre, S.D., for appellant.

Mikal Hanson, Asst. U.S. Atty., Pierre, S.D., for appellee.

Before HEANEY, BOWMAN and MAGILL, Circuit Judges.

HEANEY, Circuit Judge.

John David Bartlett appeals from a judgment of the district court entered in accordance with a jury verdict finding him guilty of assault with intent to commit rape in violation of 18 U.S.C. Sec. 113(a). We affirm.

I.

On March 14, 1979, Bartlett, an enrolled member of the Cheyenne River Sioux Tribe, was arrested and charged under state law with the attempted rape of Henrietta Ruth Janis at the Eagle Butte Legal Services Office on the Cheyenne River Sioux Reservation in South Dakota. On April 24, 1979, Bartlett pled guilty in South Dakota state court and was sentenced to a statutory maximum prison term of ten years. Bartlett immediately began serving his state sentence.

On February 9, 1982, after exhausting his state court remedies, Bartlett filed a petition for a writ of habeas corpus in the federal district court of South Dakota. The petition alleged that the South Dakota state court was without jurisdiction because the federal government had exclusive jurisdiction to try offenses committed by Indians on the Cheyenne River Sioux Reservation pursuant to 18 U.S.C. Sec. 1153. The district court agreed and on April 19, 1982, filed a Memorandum and Order granting the petition. This Court affirmed the decision of the district court, Bartlett v. Solem, 691 F.2d 420 (8th Cir.1982) (en banc), and was ultimately affirmed by the United States Supreme Court. Solem v. Bartlett, 465 U.S. 463, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984).

When counsel for the government learned of the Supreme Court's decision, he immediately contacted state penal authorities to determine if Bartlett still presented a danger to the community. The state authorities expressed their belief that Bartlett continued to pose such a danger. Thus, on March 7, 1984, one week before the statute of limitations would have run, the government obtained an indictment charging Bartlett with assault with intent to commit rape.

On September 25, 1984, Bartlett filed a motion to dismiss for pre-indictment delay. On April 5, 1985, the district court granted the motion and ordered Bartlett released from custody. In so doing, the court found that the government's decision to delay bringing an indictment until Bartlett's habeas action had been definitively decided on appeal was not reasonable in light of its consistent assertion of jurisdiction over crimes on the reservation. United States v. Bartlett, No. Cr. 84-30018 (D.S.Dak.1985). In addition, the district court found that Bartlett's continued incarceration and the death or disappearance of several witnesses who might have provided exculpatory evidence actually prejudiced his ability to present a defense. Id. ¹

On appeal, this Court reversed and remanded for a new trial finding that Bartlett had failed to demonstrate sufficient actual prejudice to warrant dismissal. ² United States v. Bartlett, 794 F.2d 1285, 1290-93 (8th Cir.), cert. denied, 479 U.S. 934, 107 S.Ct. 409, 93 L.Ed.2d 361 (1986). In so doing we stated:

The case before us is presented on a limited record developed at a pre-trial hearing. Conceivably, when the issues are fully tried, there may be additional evidence presented that Bartlett sustained actual and substantial prejudice as a result of the loss of the witnesses. The district court is free to reevaluate whether the delay has caused Bartlett such prejudice as to impair the fairness of the trial.

Id. at 1294 (citation omitted).

Following the remand, Bartlett renewed a previous motion for a psychiatric examination. On September 4, 1986, the district court entered an order granting the motion. Upon examination, Bartlett was found competent to stand trial. On January 12, 1987, the jury trial began and, on January 14, 1987, the jury returned a verdict of guilty. On February 18, 1987, the trial court sentenced Bartlett to the maximum penalty permitted by statute and ordered a study and observation pursuant to 18 U.S.C. Sec. 4205(c) and (d). On June 12, 1987, following completion of the study, the court sentenced Bartlett to eighteen years imprisonment.

II.

On appeal, Bartlett raises seven issues: (1) whether his prosecution and punishment violates the Fifth Amendment prohibition of double jeopardy, (2) whether the district court erred in refusing to instruct the jury on the issue of "diminished capacity," (3) whether the district court erred in admitting a confession, (4) whether the district court erred in admitting testimony of a psychologist concerning statements made by Bartlett during a prior evaluation, (5) whether the district court erred in refusing to admit alleged prior false accusations of rape made by the victim, (6) whether the indictment should have been dismissed for pre-indictment delay, and (7) whether the district court had jurisdiction. ³ We address these issues in turn.

A. Double Jeopardy

Bartlett's case raises two distinct double jeopardy issues: first, whether the subsequent federal prosecution was proper, and second, whether it subjected him to multiple punishment for the same offense.

1. Propriety of the Subsequent Prosecution

It is well settled that a state prosecution is no bar to a subsequent federal prosecution absent a showing that one sovereign was acting as "merely a tool" of the other in order to avoid the prohibition against double jeopardy. See e.g., Abbate v. United States, 359 U.S. 187, 194-95, 79 S.Ct. 666, 670, 3 L.Ed.2d 729 (1959) (reviewing cases); Bartkus v. Illinois, 359 U.S. 121, 123-24, 79 S.Ct. 676, 678, 3 L.Ed.2d 684 (1959); United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 142, 67 L.Ed. 314 (1922). Bartlett does not claim that the federal prosecutor was acting as a tool of South Dakota in pursuing the subsequent prosecution. Nonetheless, he urges the Court to exercise its "supervisory power" and to dismiss the indictment because the federal prosecutor acted in bad faith and in a discriminatory manner in prosecuting him.

Specifically, Bartlett argues that his prosecution was brought in contravention of the Justice Department's Petite policy. As this Court has written, the Petite policy:

[W]as first expressed by Attorney General William P. Rogers in a news release dated April 6, 1959. In that news release, the Attorney General stated that the power of the federal government to prosecute a defendant who had previously been prosecuted in a state court for the same act or acts should be sparingly used. Specifically, he expressed the view that such prosecutions should not occur "unless the reasons are compelling." He doubted "that it is wise or practical to attempt to formulate detailed rules to deal with the complex situation which might develop, particularly because a series of related acts are often involved." However, he expressed the view that prior to trial of a federal case following a state prosecution, a recommendation should be submitted by the United States Attorney to the appropriate Assistant Attorney General, and no such recommendation should be approved without its having first been brought to the attention of the Attorney General.

Delay v. United States, 602 F.2d 173, 176 (8th Cir.1979), cert. denied, 444 U.S. 1012, 100 S.Ct. 660, 62 L.Ed.2d 641 (1980) (footnotes omitted).

The United States Supreme Court in granting the Solicitor General's request to dismiss an indictment brought in contravention of the Petite policy noted:

The policy * * * limits the federal prosecutor in the exercise of his discretion to initiate or to withhold, prosecution for federal crimes. The policy is useful to the efficient management of limited Executive resources and encourages local responsibility in law enforcement. But it also serves the more important purpose of protecting the citizen from any unfairness that is associated with successive prosecutions based on the same conduct.

In this respect, the policy represents the Government's response to repeated expressions of concern by Members of this Court. In United States v. Lanza, 260 U.S. 377, 383, 67 L.Ed. 314, 43 S.Ct. 141 (1922), for example, Mr. Chief Justice Taft quoted the following passage from Fox v. Ohio, [46 U.S.] 5 How 410, 435, 12 L.Ed. 213 (1847):

"It is almost certain, that, in the benignant spirit in which the institutions both of the state and federal systems are administered, an offender who should have suffered the penalties denounced by the one would not be subjected a second time to punishment by the other for acts essentially the same, unless indeed this might occur in instances of peculiar enormity, or where public safety demanded extraordinary rigor."

Rinaldi v. United States, 434 U.S. 22, 27-28, 98 S.Ct. 81, 84, 54 L.Ed.2d 207 (1977) (per curiam).

The government contends that the Petite policy does not apply to Bartlett's case because the state prosecution was set aside on jurisdictional grounds and not on the merits. We need not, however, determine the applicability of the policy to Bartlett's case. Despite the worthy goals the Supreme Court has recognized the policy serves, this Court has found that the Petite policy does not generally confer substantive rights. See United States v. Moore, 822 F.2d 35, 36 (8th Cir.1987); United States v. Staples, 747 F.2d 489, 491 (8th Cir.1984); Delay, 602 F.2d at 178; but see Delay, 602 F.2d at 179 (Heaney, J. concurring in the result) (stating, "In my view, when a defendant has properly raised this policy * * * we should follow the lead of the Supreme Court * * * and hold that the policy against multiple prosecutions serves the important purpose of protecting the citizen from any unfairness that is associated...