U.S. v. Dupris

• Decision Date: 02 November 1981
• Docket Number: 81-1771,Nos. 81-1699,s. 81-1699
• Citation: 664 F.2d 169
• Parties: UNITED STATES of America, Appellant, v. Glen D. DUPRIS, Appellee. In re UNITED STATES of America, Petitioner.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 169

664 F.2d 169

UNITED STATES of America, Appellant, v. Glen D. DUPRIS, Appellee In re UNITED STATES of America, Petitioner.

Nos. 81-1699, 81-1771.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 17, 1981.

Decided Nov. 2, 1981.

David L. Bergren, argued, Fort Pierre, S. D., for appellee.

Terry L. Pechota, U. S. Atty., D. South Dakota, Sioux Falls, S. D., William C. Bryson, argued, Atty., Dept. of Justice, Washington, D. C., for the U. S.

Tom D. Tobin, argued, Tobin Law Offices, P. C., Winner, S. D., William W. Shakely, argued, David Albert Mustone, Tobin Law Offices, P. C., Washington, D. C., for the Counties of Dewey, Ziebach, and Corson, South Dakota, and the County of Sioux, North Dakota, as amici curiae.

Before BRIGHT, HENLEY, and ARNOLD, Circuit Judges.

BRIGHT, Circuit Judge.

These proceedings involve an application in this court for original writ of mandamus directed to the Honorable Andrew W. Bogue, now Chief Judge for the District of South Dakota (No. 81-1771), and an appeal from an order denying the Government's motion to dismiss an information against defendant Glen Dupris on grounds that significant items of evidence have been lost or misplaced (No. 81-1699). This court must now determine whether in circumstances here presented the district court could reject on public interest grounds the Government's motion to dismiss a criminal charge.

I. Background.

Unusual circumstances underlie the motion to dismiss and its denial by the trial court. On June 1, 1977, the Government filed an information charging Dupris, a juvenile, with burglary and larceny by breaking and entering a clothing store in Eagle Butte, South Dakota, within the boundaries of the Cheyenne River Indian Reservation. Thereafter, on October 12, 1977, Dupris moved to dismiss for lack of federal jurisdiction to prosecute the crime charged because the place of the offense in Eagle Butte was no longer "Indian country." ¹

Because of the importance of the jurisdictional issue affecting law enforcement in this area, the trial court permitted intervention by interested parties, including the Cheyenne River Sioux Tribe and several counties in South Dakota and North Dakota. The district court agreed with Dupris' contention and dismissed the action on jurisdiction grounds. United States v. A Juvenile, 453 F.Supp. 1171 (D.S.D.1978).

The Government appealed and this court reversed with one judge on the panel dissenting. United States v. Dupris, 612 F.2d 319 (8th Cir. 1979). Dupris then petitioned the United States Supreme Court for a writ of certiorari.

After this court had filed its opinion and denied a rehearing en banc, and while the petition for certiorari remained pending before the Supreme Court, the Government filed a motion to dismiss the information. The United States, represented by the Solicitor General, advised the Supreme Court in its brief in opposition to the petition for writ of certiorari as follows:

At the outset, we note that there is no longer a truly live controversy between the parties. The issue sought to be presented has no practical consequence for petitioner because, on May 2, 1980, the United States Attorney for the District of South Dakota moved to dismiss, with prejudice, all pending charges against petitioner. Notwithstanding the action of the United States Attorney, petitioner has declined to withdraw the present petition and the district court has declined to rule on the government's motion pending this Court's action on the petition. See Fed.R.Crim.P. 48(a). ⁴ Accordingly, although the case is not moot, as a technical matter, we submit that this Court ought not entertain on the merits a petition for certiorari to review a decision that cannot adversely affect the applicant.

The Solicitor General's brief also addressed the merits of the jurisdictional issue. The Government argued that the Eighth Circuit applied appropriate legal principles in determining that Eagle Butte, an area within the original boundaries of the Cheyenne River Reservation, had not been disestablished by the 1908 congressional enactment, Act of May 29, 1908, 35 Stat. 460, opening the territory in question to white settlement.

The Supreme Court took the following action on Dupris' petition:

Certiorari Granted-Vacated and Remanded

No. 79-6290. DUPRIS V. UNITED STATES. C.A. 8th Cir. Motion of Cheyenne River Sioux Tribe of Cheyenne River Reservation for leave to file a brief as amicus curiae granted. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded to the United States District Court for the District of South Dakota (Central Division) to consider the question of mootness. Reported below: 612 F.2d 319. (446 U.S. 980, 100 S.Ct. 2959, 64 L.Ed.2d 836.)

We complied with this mandate and on July 24, 1980, issued the following order.

Pursuant to the directive of the Supreme Court of the United States, the judgment of this court filed November 27, 1979, is hereby vacated, and the cause is remanded to the United States District Court for the District of South Dakota (Central Division) to consider the question of mootness.

Mandate forthwith.

The underlying jurisdictional issue has produced a substantial difference of judicial opinions. As indicated above, Judge Bogue determined that the federal government did not have jurisdiction to prosecute Dupris for a crime committed in Eagle Butte. Judge Heaney and Judge Ross wrote a majority opinion to the contrary, while Judge McMillian, agreeing with Judge Bogue, dissented. The entire court, without opinion, denied a petition for rehearing en banc.

To complicate matters, the South Dakota Supreme Court has expressed views consistent with that of Judge Bogue in Stankey v. Waddell, 256 N.W.2d 117 (S.D.1977). Understandably, state and federal law enforcement personnel and judges in South Dakota earnestly desire a final decision on whether federal or state authorities have jurisdiction over crimes committed on those parts of the Cheyenne River Reservation which Congress opened to white settlement in the Act of 1908.

II. The Ruling of the District Court.

With that background, we turn to the ruling here in question. With Dupris' petition for a writ of certiorari pending before the Supreme Court, the prosecutor moved to dismiss the information, with prejudice, under Rule 48(a) ² of the Federal Rules of Criminal Procedure, stating that "nearly three years have elapsed since this suit was filed, significant items of evidence have been lost or misplaced during that time, witnesses' memories have faded in the interim, and, therefore, the interests of justice will be best served by dismissing said Information."

On May 28, 1981, the district court denied the motion to dismiss as not in the best interests of the public. The court did not dispute the Government's representation that crucial evidence had been lost, but focused on the importance of resolving the jurisdictional issue in its memorandum opinion:

The jurisdictional issue involved in this case is one that is bound to arise again. It would be ludicrous to make this case moot at this time by granting the Government's motion to dismiss. Certainly, this issue will come before this Court again, at which time this Court would rule the same way it did originally. Even though the decision reached by the Eighth Circuit was a split decision, presumably, the Eighth Circuit would again reverse this Court. At that point the Supreme Court would again be faced with this issue. The question in this case needs to be answered and dismissal at this time would not promote judicial efficiency.

The Supreme Court's vacation of the Eighth Circuit's November 27, 1979 judgment has left this area of the law in a state of confusion. Law enforcement officials must be uncertain whether the land in question and land similarly situated is within federal or state jurisdiction. This situation should not be allowed to continue until another case makes the long trek through a district court and a court of appeals before finally winding up in front of the Supreme Court.

Because of the need for the jurisdictional issue raised by this case to be addressed by the Supreme Court, this Court feels that it would be in the best interests of the public to deny the Government's motion to dismiss. This Court therefore determines that the above-entitled matter is not moot and the Supreme Court should be advised of this decision. (United States v. Dupris, CR77-30056-01, slip op. at ⁴

4. Although the United States Attorney intended that the dismissal should be with prejudice, his May 2 motion omitted to so provide in terms. Consequently, an amended motion was filed on May 6, 1980, which motion asks that the information be dismissed "with prejudice on the grounds and for the reasons that nearly three years have elapsed since this suit was filed. Significant items of evidence have been lost or misplaced during that time, witnesses' memories have faded in the interim, and, therefore, the interests of justice will be best served by dismissing said Information." * * * The United States Attorney having re-evaluated his case and having determined that petitioner's prosecution is no longer viable, it is hardly conceivable that the government's motion should not be granted in due course. See United States v. Cowan, 524 F.2d 504 (5th Cir. 1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2168, 48 L.Ed.2d 795 (1976).

(D.S.D. May 28, 1981).)

On this appeal, the Government contends that the trial court exceeded bounds of proper discretion conferred upon it by the "leave of court" language of Fed.R.Crim.P. 48(a). In addition, the Government seeks a writ of mandamus to compel the district court to dismiss the information.

The amici curiae, various counties in South and North Dakota, defend the court's order as an appropriate exercise of discretion. ³ Amici also contest this court's jurisdiction to decide the merits of th...