U.S. v. Cavanaugh
| Citation | 948 F.2d 405 |
| Decision Date | 07 October 1991 |
| Docket Number | Nos. 90-5157,s. 90-5157 |
| Parties | UNITED STATES of America, Appellee, v. Jessee Dean CAVANAUGH, Appellant. UNITED STATES of America, Appellee, v. Paul Henry CAVANAUGH, Appellant. UNITED STATES of America, Appellee, v. Tayron Dale DUNN, a/k/a Terry Dunn, Appellant. UNITED STATES of America, Appellee, v. Timothy Sylvester LONGIE, Jr., Appellant. UNITED STATES of America, Appellee, v. Roger Darrel CHARBONEAU, Appellant. UNITED STATES of America, Appellee, v. Dwayne Allen CHARBONEAU, Appellant. UNITED STATES of America, Appellee, v. Leonard George FOX, Appellant. UNITED STATES of America, Appellee, v. Loren Michael GREY BEAR, Appellant. to 90-5163 and 90-5271 to 90-5274. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Thomas L. Zimney, Grand Forks, N.D., argued, for Jesse Cavanaugh.
Michael F. Daley, Grand Forks, N.D., argued, for Dwayne Charboneau.
David M. Box, Grand Forks, N.D., argued (Gerald J. Haga, Grand Forks, N.D., on brief), for Paul Cavanaugh.
David C. Thompson, Fargo, N.D., argued, for Loren Grey Bear.
M. Daniel Vogel, Fargo, N.D., for Tayron Dale Dunn.
Ronald M. Dosch, Devils Lake, N.D., for Timothy Longie, Jr.
Alan J. Larivee, Grand Forks, N.D., for Roger Darrel Charboneau.
Mark R. Fraase, Fargo, N.D., for Leonard Fox.
Lynn E. Crooks (Dennis D. Fisher and Norman G. Anderson, on brief), Fargo, N.D., for U.S.
Before LAY, Chief Judge, HEANEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
The defendants were originally indicted for first degree murder in violation of 18 U.S.C. § 1111 (1988), assault resulting in serious bodily injury in violation of 18 U.S.C. § 113(f) (1988), and other miscellaneous charges not material here. The defendants, who now appeal, were each found guilty of second degree murder. The jury did not pass upon the assault charge. The jury was discharged and no mistrial was declared on the assault count. On appeal, defendants obtained reversals of their convictions for second degree murder based upon insufficient evidence, see United States v. Grey Bear, 828 F.2d 1286 (8th Cir.1987) ("Grey Bear I "). 1 Thereafter, upon motion of the government, the district court, without a new trial, entered judgments of conviction against each defendant. In this appeal the defendants raise various claims including the argument that double jeopardy bars any retrial on the assault charge. For the reasons stated below, we reverse and vacate the judgments of conviction against each defendant.
The facts have been extensively discussed in this court's first decision, United States v. Grey Bear, 828 F.2d 1286 (8th Cir.1987) ("Grey Bear I "). On August 28, 1983, Edward Peltier's disfigured body was found lying on a highway on the Devils Lake Indian Reservation. An autopsy revealed he had been killed after being run over by a motor vehicle. The government eventually charged eleven defendants, including these eight who now appeal, with separate counts of first degree murder in violation of 18 U.S.C. § 1111 (1988), and assault resulting in serious bodily injury in violation of 18 U.S.C. § 113(f) (1988). Loren Grey Bear, Jesse Cavanaugh, and John Perez also were charged with witness tampering, and Grey Bear and Leonard Fox were charged with perjury. All the defendants had been drinking throughout the evening with Peltier at a party at the Juarez residence on the reservation. The government's theory was that a series of confrontations between Peltier and various groups of the defendants that took place over a brief time span at various places near the Juarez residence resulted in Peltier being beaten. The government contended that the fights eventually turned into mob action, which escalated to the point that Peltier was murdered when a truck driven by Richard LaFuente ran over him. The government argued that all the defendants participated in the mob action and were liable for aiding and abetting the murder.
The eleven defendants were tried jointly. At the close of the evidence, the trial court instructed the jury on assault resulting in serious bodily injury, first degree murder and the lesser included offenses of second degree murder and voluntary manslaughter. The jury was instructed that if they found a defendant had participated in an assault that resulted in the victim's death, the jury should determine the form of homicide committed. The trial court then instructed the jury not to return a verdict finding a defendant guilty of both homicide and assault resulting in serious bodily injury. See Grey Bear IV, 883 F.2d at 1385. The jury convicted LaFuente of first degree murder, Maynard Dunn of assault resulting in serious bodily injury, and the other nine defendants of second degree murder. The jury also convicted the defendants charged with perjury and witness tampering of those offenses.
On appeal, this court found sufficient evidence to uphold the first degree murder conviction of LaFuente and the second degree murder conviction of Perez. The court found insufficient evidence to sustain the convictions for the other eight defendants found guilty of second degree murder as well as insufficient evidence to sustain Maynard Dunn's assault conviction. The court also held that prejudicial misjoinder required retrial of LaFuente on the murder charge and three other defendants on the perjury and witness tampering charges. Grey Bear I, 828 F.2d at 1293-99. Following the court's decision, the government filed a petition for rehearing by the panel. The government argued that a judgment of conviction on the assault count should be entered against the eight defendants whose convictions were vacated because of insufficient evidence of second degree murder, or in the alternative a new trial should be ordered on the assault charge. In support of its motion, the government cited cases in which appellate courts had found insufficient evidence for the greater offense but sufficient evidence to sustain a guilty verdict on the lesser included offense and ordered conviction entered on the lesser included offense. Pointing out that the government had neither briefed nor argued the sufficiency of the evidence on the assault count in their original brief, the panel refused to grant a rehearing, but stated that the government could raise the argument before the district court. Grey Bear II, 836 F.2d at 1087.
The government then petitioned the court en banc only as to the panel's misjoinder holding. The government did not challenge the initial panel's finding on the insufficiency of the evidence of second degree murder. The en banc court divided five to five on the misjoinder issue, resulting in affirmance of the district court's decision that joinder was proper. 2
The government next requested the district court to enter summary conviction on the assault charge against the eight defendants whose second degree murder convictions had been vacated in Grey Bear I. The government conceded that the fatal injuries caused by the automobile running over Peltier could not constitute the serious bodily injury of the assault charge, but argued that the jury found that the assault and beating before the run-over occurred caused serious bodily injury apart from the fatal injuries. In the alternative, the government asked for a new trial on the assault charge against the eight defendants. Without reviewing the evidence, the district court held that assault resulting in serious bodily injury was a lesser included offense of murder, and that under the trial court's instructions the jury necessarily found the defendants guilty of assault resulting in serious bodily injury before finding them guilty of murder. The court entered summary conviction against the defendants on Count II of the original indictment, assault resulting in serious bodily injury. Mem. Op. (D.N.D. Jan. 6, 1990). We reverse.
On appeal, the defendants argue that the district court lacked authority to enter summary convictions, and that even if the court possessed such authority, it was improper in this situation. The defendants also contend that retrial on the assault charge is barred under double jeopardy principles. Alternatively, the defendants each contend that the evidence at trial was insufficient as a matter of law to support either entry of summary conviction or a new trial on the assault charge. 3
It is well established if an appellate court deems the evidence insufficient as a matter of law to support a jury's guilty verdict on a greater offense but finds the evidence sufficient to support a conviction on a lesser included offense, it may enter a judgment of conviction on the lesser included offense. See, e.g., United States v. Franklin, 728 F.2d 994, 1000-01 (8th Cir.1984); United States v. Ellsworth, 647 F.2d 957, 965 (9th Cir.1981), cert. denied, 456 U.S. 944, 102 S.Ct. 2008, 72 L.Ed.2d 465 (1982); DeMarrias v. United States, 453 F.2d 211, 215 (8th Cir.1972); see also Morris v. Mathews, 475 U.S. 237, 247, 106 S.Ct. 1032, 1038, 89 L.Ed.2d 187 (1986) (). The rationale for such a procedure is clear. A greater offense contains all of the elements of a lesser included offense, plus something more. When a jury convicts on the greater offense, it implicitly has found the defendant's conduct also violated the lesser included offense. Therefore, when a reviewing court sets aside a conviction for the greater offense because of insufficient evidence, it can evaluate whether the evidence was sufficient for the jury to convict on the lesser included offense. If the evidence was in fact sufficient on the lesser charge, entry of judgment and appropriate sentencing on that charge is proper.
In this case, the government asked the district...
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