U.S. v. Black Cloud

• Decision Date: 11 January 1979
• Docket Number: No. 78-1425,78-1425
• Citation: 590 F.2d 270
• Parties: UNITED STATES of America, Appellee, v. Elmer Peter BLACK CLOUD, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 270

590 F.2d 270

UNITED STATES of America, Appellee, v. Elmer Peter BLACK CLOUD, Appellant.

No. 78-1425.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 17, 1978.

Decided Jan. 11, 1979.

Ralph A. Vinje, Bismarck, N. D., for appellant.

James S. Hill, Asst. U. S. Atty., Fargo, N. D., for appellee; James R. Britton, U. S. Atty., Fargo, N. D., on the brief.

Before BRIGHT, STEPHENSON and HENLEY, Circuit Judges.

STEPHENSON, Circuit Judge.

Elmer Peter Black Cloud appeals from his conviction by a jury in the District of North Dakota for violation of 18 U.S.C. § 922(h)(1), the receiving of a firearm by a convicted felon. On appeal Black Cloud contends that the trial court ¹ committed reversible error by failing to instruct the jury on the question of whether receipt of the firearm within the District of North Dakota was established, and by failing to answer correctly a question raised by the jury during its deliberation. We reverse and remand for a new trial.

At trial, both parties agreed by stipulation that Black Cloud had a prior felony conviction in Arizona, and that the firearm in question was transported in interstate commerce. However, the government produced conflicting evidence as to where the receipt of the firearm occurred, the question which is central to this appeal.

Black Cloud was arrested on December 3, 1977, near Fort Yates, North Dakota, on a tribal warrant for assault. At the time of the arrest, Black Cloud was sitting in an automobile, along with three other passengers, at the roadside approximately eleven miles north of the South Dakota border. The arrest was made within the Standing Rock Indian Reservation, which occupies land in both North and South Dakota. The firearm in question, a .20-gauge shotgun, was found under the front seat of the automobile in which Black Cloud was a passenger.

The government suggests that evidence of possession of the firearm by Black Cloud in the District of North Dakota is also circumstantial evidence that the receipt of the firearm was made within the District of North Dakota. Further, the government introduced the testimony of Cecil Elk, an employee of the Fort Yates Police Department, who identified the firearm in question as one which had apparently been stolen from his apartment in Fort Yates, North Dakota, during August 1977. However, other government witnesses testified that Black Cloud told them he had purchased the firearm in question in Wakpala, South Dakota.

At the close of the government's case, Black Cloud moved for a dismissal based upon the government's failure to prove that the firearm had been received in the district where the prosecution had been brought. The district court reserved ruling on this motion. Black Cloud then requested that the jury be instructed that as one of the essential elements of the offense it must be established that the receipt of the firearm by defendant occurred in the District of North Dakota. This requested instruction was denied. ² Although Black Cloud renewed his objection to the jury instructions, the jury received no instruction as to the fact question of where the firearm was received.

During its deliberation, the jury sent a written question to the court which asked, "Do all Federal cases on Standing Rock Reservation fall on the jurisdiction of this Federal Court?" Over the objection of Black Cloud, the court answered, "The authority of this Court to hear this matter is not dependent on the fact that the incident, if it occurred, occurred on any portion of the Standing Rock Reservation." Shortly after receiving this answer, the jury returned a verdict of guilty.

Black Cloud argues that the jury never actually considered the question of whether receipt of the firearm occurred in the District of North Dakota. As a result, there was no finding that venue was proper in that district. Fed.R.Crim.P. 18 provides that "(e)xcept as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed." Thus, the prosecution against Black Cloud must be in the district where the receipt of the firearm took place. See United States v. Overshon, 494 F.2d 894, 899 (8th Cir.), Cert. denied, 419 U.S. 853, 95 S.Ct. 96, 42 L.Ed.2d 85 (1974).

The issue of proper venue can be waived. United States v. Haley, 500 F.2d 302, 305 (8th Cir. 1974); United States v. Bohle, 445 F.2d 54, 58 (7th Cir. 1971). Where lack of proper venue is apparent on the face of an indictment, venue objections are waived if not made prior to trial. United States v. Bohle, supra, 445 F.2d at 58. However, when an indictment contains a proper allegation of venue so that a defendant has no notice of a defect of venue until the government rests its case, the objection is timely if made at the close of the evidence. Id.; United States v. Gross, 276 F.2d 816, 819 (2d Cir.), Cert. denied, 363 U.S. 831, 80 S.Ct. 1602, 4 L.Ed.2d 1525 (1960); 1 C. Wright, Federal Practice and Procedure § 306, at 600 (1969). But see United States v. Burkhart, 501 F.2d 993, 996 (6th Cir. 1974), Cert. denied, 420 U.S. 946, 95 S.Ct. 1326, 43 L.Ed.2d 424 (1975). In the present case, the indictment specifically charged Black Cloud with having received the firearm in question in the District of North Dakota. Accordingly, Black Cloud's objection, made at the close of the government's case, that the government had failed to prove venue was timely and the issue of venue has not been waived for purposes of appeal.

The government has the burden of proving that venue is proper. United States v. Winer, 519 F.2d 256, 257 (8th Cir. 1975); United States v. Haley, supra, 500 F.2d at 304. Whether the receipt of the firearm in question occurred in the ...