U.S. v. Montour

• Decision Date: 18 September 1991
• Docket Number: No. 1566,D,1566
• Citation: 944 F.2d 1019
• Parties: UNITED STATES of America, Appellee, v. Arthur MONTOUR, a/k/a Kakwirakeron, Defendant-Appellant. ocket 90-1463.
• Court: U.S. Court of Appeals — Second Circuit

Page 1019

944 F.2d 1019

UNITED STATES of America, Appellee, v. Arthur MONTOUR, a/k/a Kakwirakeron, Defendant-Appellant.

No. 1566, Docket 90-1463.

United States Court of Appeals, Second Circuit.

Submitted June 10, 1991.

Decided Sept. 18, 1991.

Victor Aronow, Phoenix, Ariz., for defendant-appellant.

Frederick J. Scullin, Jr., U.S. Atty., N.D.N.Y., John G. Duncan, Asst. U.S. Atty., Syracuse, N.Y., for appellee.

Before FEINBERG, NEWMAN and WINTER, Circuit Judges.

WINTER, Circuit Judge:

Arthur Montour, a/k/a Kakwirakeron, appeals from his conviction by a jury before Judge McCurn for conspiring to resist and impede and for resisting and impeding the execution of search warrants. His principal objection is to the sufficiency of the evidence, although he also argues that the trial court erred in failing to strike several overt acts from the indictment and denied his Sixth Amendment right to present witnesses on his behalf. We reject each of these arguments and affirm.

BACKGROUND

A. The Reservation Disturbances

Arthur Montour is a member of the Mohawk Indian tribe and a resident of the St. Regis/Awkwasasne Mohawk Indian Reservation ("St. Regis", "reservation"). Between late May and late July 1989 he was involved in a number of encounters between the New York State Police and the Warrior Society, a group of Mohawks living on St. Regis who believe in the sovereignty of the Mohawk Nation.

1. The May Meeting. During the latter part of May 1989, a number of confrontations between the police and the Warrior Society occurred, during which members of the Warrior Society protested State Police presence on St. Regis, whether for routine patrols or in response to particular complaints. Concerned about this situation, Major Ronald Brooks of the New York State Police contacted Eli Tarbell, the owner of a business establishment on St. Regis, to try to set up a meeting with members of the Warrior Society. Soon afterward, Major Brooks received a telephone call from Montour, and the two of them arranged to meet.

On May 27, 1989, Brooks, Montour, Captain Robert B. Leu of the New York State Police, and a number of persons from the Mohawk Nation met at a truck stop on St. Regis. A lengthy discussion ensued about the sovereignty of the Mohawks and the rights of the State Police to enforce laws on the reservation. Montour told Brooks that the police had no authority or jurisdiction on St. Regis, and that the Warrior Society viewed the police presence there as a violation of Mohawk sovereignty. An informal agreement was reached at this meeting: from then on, when a confrontation was at hand, the police would call Brooks and the residents of St. Regis would call Montour, in the hopes of their resolving the problem.

2. The June 6, 1989 Roadblock. In early June, some St. Regis residents telephoned the police and requested their assistance in ending reservation gambling. In response, the police obtained search warrants for several establishments, including Tony's Vegas International ("TVI") and the Bear's Den (adjoining reservation gambling establishments, located at the intersection of Route 37 and McGee Road). Two warrants were executed during the early evening hours of June 6.

As a result of this police activity, two marked State Police patrol cars were physically blocked later that evening at the Hogansburg Four Corners area of Route 37 by Montour and other residents of St. Regis. This prevented the cars from moving onto the reservation. Major Brooks was contacted regarding this situation, and his presence was requested by Montour.

Brooks responded to the scene, along with Leu and Captain Sitler of the New York State Police. Brooks discussed the situation with Montour, who stated that he viewed the police raids as an intrusion into Mohawk sovereignty. Montour did, however, offer to stop Warrior Society patrols on St. Regis for five days, in order to reduce tensions and allow everyone to cool down. At the conclusion of this conversation, Montour asked the Mohawks present to disband the roadblock and they did so. Three more search warrants were executed the following day.

3. The July 20, 1989 Roadblocks. During the early morning hours of July 20, 1989, the Federal Bureau of Investigation ("FBI") and the New York State Police attempted to execute six federal search warrants, eleven federal arrest warrants, and one criminal summons on the St. Regis reservation. Approximately 150 New York State Police officers accompanied 50 FBI agents onto the reservation in that effort.

At about 5:00 a.m., New York State Police Captain Kenneth Cook, along with a group of FBI agents and State Police officers, approached TVI westbound along Route 37. They were stopped in front of TVI by a roadblock along Route 37 consisting of four to six vehicles, as well as twenty to twenty-five Native Americans armed with high-powered rifles. As Cook exited his vehicle, he observed an individual later identified as Montour leaving the vicinity of the roadblock and moving toward the parking lot of TVI. Cook saw Montour making gestures and yelling.

Along with another police officer, Cook approached the area of the roadblock. As he neared, a number of individuals moved to the front of the cars, yelling and screaming. Cook informed them that he was on the reservation to execute a federal search warrant. In response, he was told that the police would not be allowed onto the reservation, and that they would be harmed if they attempted to continue along Route 37.

At approximately the same time, FBI Special Agent Greene arrived at TVI. As he walked toward the barricade, one of the individuals guarding it stepped out from behind a parked car and told Greene not to proceed any further or someone would get hurt. Some time later, the State Police and the FBI who were at the TVI roadblock returned to their vehicles and drove off in search of an alternate route onto the reservation in order to execute the warrants.

A second roadblock was observed on St. Regis at about 5:00 a.m. on July 20. It consisted of a number of vehicles on Route 37 just west of the Bear's Den, as well as At about 5:30 a.m., Sitler proceeded east along Route 37 in an unmarked car. As he approached the Bear's Den and TVI he observed a large number of vehicles in the parking lot of TVI as well as thirty to forty people. He also observed two cars across the roadway, blocking his progress. Realizing that he could go no further and was in a potentially volatile situation, he attempted to make a U-turn at the intersection of Route 37 and McGee Road. As he turned, approximately twelve to fifteen Mohawks attempted to block Route 37 and thereby prevent his westbound departure. As he accelerated past this group, several of the individuals made throwing motions, and a hard object struck and broke his windshield.

several Mohawks armed with high-powered weapons.

Also at about 5:30 a.m., Brooks received information at the command post about the roadblocks in front of the Bear's Den and TVI. He advised all of the police to hold their positions and attempted to contact Montour on a cellular phone Montour was known to carry. Brooks reached Montour and explained to him that the operation involved federal search warrants. Montour responded that, if the federal government was involved, such an action was a violation of all treaties and a declaration of war. Brooks briefly lost contact with Montour, reestablishing it at about 5:50 a.m. Brooks again expressed his concern about the roadblocks. Montour responded that the roadblocks would stay in place, and that they should negotiate the issue.

The search warrants and arrest warrants were subsequently executed at all locations except for TVI and the Bear's Den, where the roadblocks continued. At about 9:20 a.m., Brooks again contacted Montour, who informed Brooks that the roadblocks would remain because Montour expected further police raids on the reservation.

At about 10:00 a.m., New York State Police Undercover Investigator John Welch approached in an unmarked car a roadblock at the intersection of Routes 37 and 37C. He noted approximately ten to fifteen armed individuals and two cars blocking the roadway. He also observed Montour at the roadblock. After Montour gave his approval, the car immediately in front of Investigator Welch's was permitted through the roadblock, but Investigator Welch was not allowed through.

4. The July 21, 1989 Telephone Conversation. On July 21, 1989, Brooks had a final telephone conversation with Montour, who informed Brooks of a meeting Montour had attended with the Tribal Council (the three elected representatives of the reservation recognized by the state and federal governments). The Council had told Montour that they wished all roadblocks on St. Regis removed. However, Montour told Brooks that he would not remove his roadblocks. He further stated that, if the police removed the roadblocks on the edge of the reservation intended to prevent non-Indians and non-reservation residents from traveling into the area, Montour would then move Warrior Society roadblocks out to the edge of the reservation.

B. The Indictment and Trial

Montour was indicted by a grand jury on three separate counts relating to the incidents described above. The first count alleged that from or about May 27, 1989 until August 1, 1989, Montour participated in a conspiracy to violate 18 U.S.C. § 2231 (1988)--a conspiracy to interfere forcibly with the execution of search warrants, in violation of 18 U.S.C. § 371 (1988). The indictment detailed nine overt acts Montour or his co-conspirators were alleged to have committed in furtherance of this conspiracy. The second count charged Montour with a violation of 18 U.S.C. § 2231(a) and (b)--the forcible interference with the execution of a search warrant, and the use of a deadly or dangerous weapon in the commission of that act. Finally, the third count charged Montour with a violation of 18 U.S.C. § 924(c)(1) (1988)...