U.S. v. Appawoo

• Decision Date: 28 April 1977
• Docket Number: Nos. 76-1024,76-1056,s. 76-1024
• Citation: 553 F.2d 1242
• Parties: UNITED STATES of America, Appellant, v. Ronnie APPAWOO and Gerald Mountainlion, Appellees. UNITED STATES of America, Appellant, v. Ernest Rabbit CASEY, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1242

553 F.2d 1242

UNITED STATES of America, Appellant, v. Ronnie APPAWOO and Gerald Mountainlion, Appellees.

UNITED STATES of America, Appellant, v. Ernest Rabbit CASEY, Appellee.

Nos. 76-1024, 76-1056.

United States Court of Appeals Tenth Circuit.

Argued and Submitted Nov. 18, 1976.

Decided April 28, 1977.

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.

I.

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.

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 appeals by the Government of rulings on such motions. See United States v. Ritter, Tenth Circuit No. 76-1011, and United States v. Smith, 495 F.2d 668 (10th Cir.). See also the statements in the record in a case which was consolidated for argument with this one, United States v. Appawoo and Mountainlion, No. 76-1024.

We have given careful consideration to United States v. Martin Linen Supply Co., --- U.S. ----, 97 S.Ct. 1349, 51 L.Ed.2d 642, wherein the Court considered the application of the double jeopardy clause to judgments of acquittal. See also United States v. Fay and Tiernan, 553 F.2d 1247 (10th Cir.), and the cases cited therein. As indicated in United States v. Martin Linen Supply Co., neither the form of the order entered by the trial judge nor the terminology used is determinative. Thus neither the form of the order nor its recitation that it is an "acquittal" is controlling. See also United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232; United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608. The Court, in Martin Linen Supply, after referring to the fact that form does not control, said: "Rather, we must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged." The record here demonstrates that the ruling on the motion was unrelated to any facts developed by the Government's case or any other facts. There was no resolution of some or all of the factual elements of the offense charged. Instead the motion was based solely on constitutional grounds, and had nothing to do with the elements of the offense. Under Rule 29, judgments of acquittal may be entered when the evidence is insufficient to support a conviction, viewing the evidence favorably to the Government. United States v. Tager, 481 F.2d 97 (10th Cir.). There was no reference by the trial court to the proof adduced by the Government, and the record demonstrates that the burden was met. The trial court's action was a dismissal of the information based on the legal issues raised in defendant's motion to dismiss filed before trial.

In Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425, the jury had been sworn and the trial commenced when the trial judge noticed that the indictment was defective. The defect was not subject to an amendment, and the judge declared a mistrial despite defendant's objection. The defendant was indicted again and tried. The Supreme Court held that there had been no violation of the double jeopardy clause as manifest necessity and the ends of justice necessitated the mistrial. The procedural situation before us is similar to that in Somerville, and again the designation of the order used is not significant.

Since the realities of the matter cannot be changed by the form in which the order was cast, we must hold that the appeal of the Government does not violate the double jeopardy clause of the Fifth Amendment.

This court in United States v. Analla, 490 F.2d 1204 (10th Cir.), vacated on other grounds, 419 U.S. 813, 95 S.Ct. 28, 42 L.Ed.2d 40, held that the portion of 18 U.S.C. § 1153 was constitutional in that it did not violate the right of equal protection. This case was concerned with the law of New Mexico as compared with the federal assault statute. The holding was referred to by this court in United States v. Maestas, 523 F.2d 316 (10th Cir.), and is the prevailing rule in this Circuit on the issue, and this panel is bound by it. Other Circuits have reached a contrary result. See United States v. Big Crow, 523 F.2d 955 (8th Cir.), and United States v. Cleveland, 503 F.2d 1067 (9th Cir.). However, the Supreme Court in United States v. Gabriel Francis Antelope, --- U.S. ----, 97 S.Ct. 1395, 51 L.Ed.2d 701, has probably put the matter to rest. Thus we hold that the trial court was in error in dismissing the information.

II.

In No. 76-1024, United States v. Appawoo and Mountainlion, the defendants are Indians and were charged with intentionally and knowingly assaulting other Indians in Indian country in violation of 18 U.S.C. § 1153. The information asserted that the defendants had fired a 22-caliber rifle and a 30-caliber M-1 rifle at a car occupied by three other Indians, and had beaten the same persons with a rifle and their fists.

Before trial the defendants, separately represented, each filed motions to dismiss the information on the ground that 18 U.S.C. § 1153 as applied to them was unconstitutional because it violated their right to equal protection of the laws. The point urged was that the statute when applied to an Indian defendant required the application of Utah state law which resulted in a less demanding burden of proof and greater punishment than would the general federal assault statute (18 U.S.C. § 113) which would be applicable to non-Indians. A memorandum of authorities was submitted with the motion. This issue was raised and considered in United States v. Casey, No. 76-1056, by the same trial judge, and was consolidated in this court for argument with this case.

The motions to dismiss were not considered by Judge Ritter prior to trial as required by the rules. Counsel on both sides were familiar with the trial and handling of similar motions in the Casey case referred to above.

The Government sought before trial to...