U.S. v. Casper, s. 76-1182

• Decision Date: 22 September 1976
• Docket Number: 76-1032 and 76-1181,76-1203,76-1031,Nos. 76-1182,s. 76-1182
• Parties: UNITED STATES of America, Appellee, v. Geneva M. RED FEATHER, Appellant. UNITED STATES of America, Appellee, v. Joseph BILL, Appellant. UNITED STATES of America, Appellee, v. Sioux CASPER, Appellant. UNITED STATES of America, Appellee, v. Christopher Oliver LAND, Appellant. UNITED STATES of America, Appellee, v. Martina Ellen WHITE BEAR, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1275

541 F.2d 1275

UNITED STATES of America, Appellee, v. Geneva M. RED FEATHER, Appellant.

UNITED STATES of America, Appellee, v. Joseph BILL, Appellant.

UNITED STATES of America, Appellee, v. Sioux CASPER, Appellant.

UNITED STATES of America, Appellee, v. Christopher Oliver LAND, Appellant.

UNITED STATES of America, Appellee, v. Martina Ellen WHITE BEAR, Appellant.

Nos. 76-1182, 76-1203, 76-1031, 76-1032 and 76-1181.

United States Court of Appeals,

Eighth Circuit.

Submitted June 15, 1976.

Decided Aug. 25, 1976.

Rehearing En Banc Denied Sept. 16, 1976.

As Modified On Denial of Rehearing Sept. 22, 1976.

Kenneth E. Tilsen, St. Paul, Minn., for appellants; Jacquelin D. Quick, St. Paul, Minn., and Joseph Beeler, Coconut Grove, Fla., on brief.

Keith E. Uhl, Sp. Asst. U. S. Atty., Des Moines, Iowa, for appellee; Allen L. Donielson, U. S. Atty., Des Moines, Iowa, filed appearance; Harold O. Bullis, U. S. Atty., Fargo, N. D., William F. Clayton, U. S. Atty., Sioux Falls, S. D., on brief.

Before HEANEY, ROSS and STEPHENSON, Circuit Judges.

PER CURIAM.

These consolidated direct criminal appeals are taken following the verdict of the trial court ¹ that appellants herein were guilty of The first issue we address is the sufficiency of the evidence. Appellants were charged with violating the Civil Obedience Act of 1968, 18 U.S.C. § 231(a) (3), which provides in relevant part:

attempting to interfere with United States Marshals and FBI agents during a civil disorder at Wounded Knee, South Dakota, in 1973 in violation of 18 U.S.C. § 231(a)(3). ² The issues raised by appellants include whether the evidence presented was sufficient to sustain their convictions and whether the evidence established that the federal law enforcement personnel at Wounded Knee were lawfully engaged in the lawful performance of their official duties. In addition, we must determine whether the trial court erred in holding that prior district court opinions did not collaterally estop the government from relitigating in the instant case the issue of the lawfulness of the federal officers' functions at Wounded Knee. After careful examination of these contentions, we affirm appellants' convictions on the basis of the trial court's thorough and well reasoned opinion. United States v. McArthur, 419 F.Supp. 186 (D.N.D.1975).

Whoever commits or attempts to commit any act to obstruct, impede, or interfere with any fireman or law enforcement officer lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder which in any way or degree obstructs, delays, or adversely affects commerce or the movement of any article or commodity in commerce or the conduct or performance of any federally protected function (shall be subject to punishment).

In order to obtain a conviction under this statute for the crime charged in the indictments involved herein, the district court properly held that the government had the burden of proving beyond a reasonable doubt the following elements:

1. That a civil disorder existed at the time of any alleged violation;

2. That such civil disorder was resulting in interference with a federally protected function;

3. That one or more law enforcement officers were lawfully engaged in the lawful performance of their official duties incident to and during the commission of such civil disorder;

4. That the Defendant attempted to commit an act for the intended purpose of obstructing, impeding, or interfering, either by himself or with someone else, in a violent manner with such law enforcement officer or officers;

5. That such attempt to act was done willfully and knowingly.

United States v. McArthur, supra, 419 F.Supp. at 190.

Appellants initially contend that the evidence failed to establish that they had committed any acts which constituted an attempt to interfere with federal officers as prohibited by section 231(a)(3). ³ In our view, the evidence presented to the trial court established beyond a reasonable doubt that the appellants possessed the requisite specific intent to complete the crime with which they were charged and that they had engaged in affirmative conduct which was sufficient to constitute an attempt to commit that crime. United States v. Mandujano, 499 F.2d 370, 372-77 (5th Cir. 1974) The evidence revealed that appellants Red Feather, Bill, White Bear, and Casper were apprehended by Bureau of Indian Affairs (BIA) patrolmen on April 25, 1973, in a grassy area within the patrolled perimeter that had been established by federal law enforcement officials around the occupied village of Wounded Knee. ⁴ At the time of their arrest these appellants were lying in the grass in an apparent attempt to conceal themselves. On or near them was found a shotgun, a .30 caliber rifle, two cartridge belts, and several hundred rounds of ammunition, including 800 rounds of 7.62 millimeter cartridges and several hundred .30 caliber cartridges. Following apprehension, Ms. Red Feather stated that she was attempting to enter Wounded Knee on foot with the guns and ammunition. Her three companions made no statements to the federal authorities regarding their intentions. ⁵

cert. denied, 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975); United States v. Coplon, 185 F.2d 629, 633 (2d Cir. 1950), cert. denied, 342 U.S. 920, 72 S.Ct. 362, 96 L.Ed. 688 (1952). See also United States v. Oviedo, 525 F.2d 881, 883-86 (5th Cir. 1976).

Appellant Land was arrested on March 10, 1973, by Deputy United States Marshals patrolling the Wounded Knee defense perimeter. At the time of his arrest Land had in his possession several boxes of ammunition, some fireworks, and six knives. He stated to authorities at the time that he wanted to enter Wounded Knee in order to assist the Indians.

Based upon these facts, the district court concluded:

I find that these Defendants did (attempt to) carry, on foot, surreptitiously, through a patrolled perimeter, arms and ammunition which had a substantial capacity to reach out and wound or kill. I find that they intended it for a center from which ammunition was being fired at law enforcement officers, which did wound and kill. That is sufficient conduct to amount to an attempt.

United States v. McArthur, supra, 419 F.Supp. at 191. After an independent review of the entire record, ⁶ we hold that this finding is consistent with the law and amply supported by the evidence under the reasonable doubt standard. See Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 99 L.Ed. 150 (1954); United States v. Kelton, 519 F.2d 366, 367 (8th Cir. 1975). Cf. United States v. Clunn, 457 F.2d 1273, 1275 (10th Cir. 1972).

Appellants further contend that the evidence was insufficient to prove beyond a reasonable doubt that the federal officers at Wounded Knee were "lawfully engaged in the lawful performance of (their) official duties" as required under section 231(a)(3). Instead, they claim that use was made of the armed forces at Wounded Knee during the civil disorder to such an extent that it constituted a violation of the Posse Comitatus Act, 18 U.S.C. § 1385 ⁷ and thus rendered the actions of the federal officers at Wounded Knee unlawful for purposes of a section 231(a)(3) conviction.

With respect to this contention, the district court carefully considered the extent of the military involvement at Wounded After discussing the various rationales expressed in these opinions, the district court below announced its own legal standard for determining whether a violation of the posse comitatus statute had occurred:

                Knee as evidenced in the record.  In addition, the court extensively reviewed in its opinion the legal standards adopted by other district courts in addressing the Wounded Knee posse comitatus issue.  See United States v. Red Feather, 392 F.Supp. 916 (D.S.D.1975); 8  United States v. Means, 383 F.Supp. 368, 374-77 (D.S.D.1974); United States v. Jaramillo, 380 F.Supp. 1375 (D.Neb.1974)
                

Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded Knee in such manner that the military personnel subjected the citizens to the exercise of military power which was regulatory, proscriptive, or compulsory in nature, either presently or prospectively?

If the evidence adduced does raise that question of fact, then the government has failed to prove the third element of the offense. If not, then the third element of the offense stands established by the prima facie lawfulness of the performance of their duties by federal government officials as provided for in 18 U.S.C. § 3052 and § 3053.

United States v. McArthur, supra, 419 F.Supp. at 194.

Examination of the factual record as to the extent of the military involvement in the instant case ⁹ led the court to conclude:

Thus, I do find that while the evidence of "use of any part of the Army or Air Force" is relevant to the issue of "lawful performance", I further find that it was not material enough to taint the presumption that "one or more" law enforcement officers were acting in performance of their duties.

United States v. McArthur, supra, 419 F.Supp. at 195. We affirm this finding.

The final issue advanced in this appeal is whether the district court erred in finding that the government was not collaterally estopped from litigating the posse comitatus issue in this case having had the issue resolved against it in at least one prior final decision. ¹⁰ The district court initially discussed the applicability of the principles of mutuality in a criminal context and determined that "(i)t would seem indefensible to refuse to apply collateral estoppel on the basis of lack of mutuality merely because this is a criminal action and not a civil one." Thus, the lack of privity between the defendants in this action and the prior actions was not found to bar the advancement of a collateral estoppel defense below.

The district court next addressed the issue of whether the use of...