U.S. v. Cook, 92-1241

• Decision Date: 15 September 1992
• Docket Number: No. 92-1241,92-1241
• Parties: UNITED STATES of America, Appellee, v. Edward Dean COOK, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 218

972 F.2d 218

UNITED STATES of America, Appellee, v. Edward Dean COOK, Appellant.

No. 92-1241.

United States Court of Appeals Eighth Circuit.

Submitted June 9, 1992.

Decided Aug. 5, 1992.

Rehearing and Rehearing En Banc

Denied Sept. 14, 1992.

Rehearing Denied Sept. 15, 1992.

Virginia G. Villa, Minneapolis, Minn., argued (Daniel M. Scott and Virginia G. Villa, on brief), for appellant.

Richard George Morgan, Minneapolis, argued (Thomas B. Heffelfinger and Richard G. Morgan, on brief), for appellee.

Before WOLLMAN, Circuit Judge, and BRIGHT and ROSS, Senior Circuit Judges.

DONALD R. ROSS, Senior Circuit Judge.

Edward Dean Cook appeals his conviction and sentence on two counts of assaulting a federal officer with a dangerous weapon, in violation of 18 U.S.C. § 111. For reversal, Cook asserts that the evidence was insufficient to support a conviction on either count and that the district court erred in making an upward departure under the Sentencing Guidelines. We affirm.

I.

On June 29, 1991, just inside the southern border of the Red Lake Indian Reservation in Minnesota, Officer Ruth Wittner, a Minnesota State Patrol officer, observed a vehicle stopped on the shoulder of Highway 89 with its car door opened into the traffic lane and Cook bent out of the door. Upon inquiry, Cook told the officer that his blood pressure was acting up. The officer, noticing that Cook was an American Indian, radioed the Bureau of Indian Affairs Law Enforcement Center (BIA) on the reservation for assistance. As the officer made her report, a blue car pulled in front of Cook's car, its occupants spoke with Cook, and the car drove away. Cook also drove away.

Shortly thereafter, Officer Wittner again saw Cook's car and the same blue car on the shoulder of Highway 89 just outside the reservation border. As the officer's patrol car approached, Cook's car made a U-turn and headed back to the reservation. Observing a beer can outside the driver's door of the blue car, Officer Wittner ordered the driver of the blue car to remain stopped. As the officer approached the blue car, the driver revved the car's engine and drove straight at her, forcing her to jump out of the way.

Officer Wittner testified that Cook's car returned to the scene and she ordered him to pull over. Instead, Cook made a U-turn and drove straight at her, forcing her to jump out of the way. Cook's vehicle then headed back to the reservation.

Shortly after Officer Wittner reported these incidents to the BIA Center, Cook led Sergeant Daryl Lussier, a BIA officer, and Officer Wittner on a high speed chase through sections of the reservation. The chase ended in a residential area where many of Cook's friends and relatives lived. Because Cook and Sgt. Lussier had driven through the yards of several residents, a crowd of approximately 20 people gathered at the scene. As Sgt. Lussier was getting out of his car, Cook allegedly hit Sgt. Lussier with a tire jack stand and fled the scene.

Following the June 29, 1991 incident, a federal warrant was issued for Cook's arrest. Approximately one month later, on August 2, 1991, Cook was spotted on the reservation. Again, he resisted arrest by leading BIA officers on a high speed chase through the reservation. That chase ended on a dirt road, where Cook apparently got his vehicle stuck in the sand. As the first BIA officer, Dwight Bellanger, got out of his vehicle, Cook allegedly took a rifle equipped with a scope out of his car and repeatedly took aim at the officer, forcing him to take cover behind the door of his squad car. When the second BIA officer Julius Schoenborn, arrived on the scene, Cook walked with the rifle around a corner of the road and disappeared into a wooded area.

On August 12, 1991, Cook turned himself over to federal authorities. He was charged in a superseding indictment with two counts of assaulting a federal officer (Count I--assault on a BIA officer with a metal tire jack stand; Count II--assault on or interference with a BIA officer with a rifle).

At trial, the facts surrounding the alleged June 29, 1991 assault were in dispute. Officer Wittner testified that as Sgt. Lussier was getting out of his car with his baton drawn, Cook walked towards him waving a pipe in the air (later identified as a metal tire jack stand), which he then brought down on Sgt. Lussier. Officer Wittner attempted to leave her car to assist Sgt. Lussier, but a man held her captive by blocking her car door. She testified that when Sgt. Lussier drew his revolver, Cook backed away and ran into his aunt's house. Officer Wittner also testified that at that point the crowd became hostile, throwing beer cans at Sgt. Lussier and yelling at both officers.

At trial, Sgt. Lussier gave a similar account of the June 29, 1991 assault. He also testified that, in addition to the scar on his arm caused by the tire jack stand, he suffered a mouth injury during the fight with Cook and eventually lost two teeth. The jury was shown a photograph of the bruise on Sgt. Lussier's arm, which showed an outline of ridges consistent with ridges commonly found on a tire jack stand.

At trial, Cook denied striking Sgt. Lussier with a tire jack stand. He testified that he only acted in self defense after Sgt. Lussier ran at him swinging his baton. He admitted that he led the officers on a high speed chase, and that prior to the chase he had been drinking. He also admitted that he resisted Sgt. Lussier's attempt to arrest him, stating, "I resisted him. I will always resist him."

Relatives and friends who witnessed the scuffle testified in Cook's defense. Although the specific details of the scuffle varied from witness to witness, many of them testified that they did not see Cook with a tire iron, and that they saw Sgt. Lussier go after Cook, put him into a headlock, and hit Cook in the head with his baton.

With regard to the alleged August 2, 1991 assault, Officer Bellanger testified that after the chase ended on the dirt road, Cook repeatedly took aim at him with a rifle equipped with a scope. Officer Schoenborn also testified that when he arrived on the scene he observed Cook walking away from the scene with a rifle in his hand.

Following a three-day jury trial, Cook was found guilty on both assault counts. At sentencing, the district court ¹ granted the government's motion for upward departure and sentenced Cook to 120 months imprisonment on each count, both sentences to run concurrently with each other. Cook now appeals.

II.

Cook argues that the evidence was insufficient to sustain the jury's finding of guilt on either Count I or Count II. With regard to Count I, Cook argues that the evidence was insufficient to prove that he wielded a tire jack stand on June 29, 1991. He relies on the testimony of his relatives and friends, who testified that they did not see him with a metal tire jack stand during the scuffle. Cook speculates that the officer's injuries were caused by beer cans thrown by the crowd after Sgt. Lussier drew his weapon.

With regard to the August 2, 1991 incident charged in Count II, Cook argues that the evidence was insufficient to prove that he threatened Officer Bellanger with a rifle or that he carried a rifle as he left the scene, because the...