U.S. v. Eagle

• Decision Date: 30 July 1976
• Docket Number: No. 75-1926,75-1926
• Citation: 539 F.2d 1166
• Parties: 1 Fed. R. Evid. Serv. 290 UNITED STATES of America, Appellee, v. James Theodore EAGLE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1166

539 F.2d 1166

1 Fed. R. Evid. Serv. 290

UNITED STATES of America, Appellee, v. James Theodore EAGLE, Appellant.

No. 75-1926.

United States Court of Appeals,

Eighth Circuit.

Submitted May 11, 1976.

Decided July 30, 1976.

Marvin Amiotte, South Dakota Legal Services, Mission, S. D., for appellant.

William F. Clayton, U. S. Atty., Sioux Falls, S. D., for appellee; Bruce W. Boyd, Asst. U. S. Atty., Rapid City, S. D., and Michael Hickey, Pierre, S. D., on brief.

Before VOGEL, Senior Circuit Judge, and HEANEY and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

James Theodore Eagle, an Indian, appellant here and defendant below, was convicted in the United States District Court for the District of South Dakota of an assault with a dangerous weapon upon the person of James Catches, another Indian, with the assault taking place on the Pine Ridge Indian Reservation, in violation of 18 U.S.C. § 1153, as amended, and of having used a firearm in the commission of the offense in violation of 18 U.S.C. § 924(c)(1). The district court sentenced the defendant to imprisonment for three years on each of the two counts of the indictment with the sentences to be served consecutively. The defendant appeals.

We affirm the conviction and sentence on Count I, the § 1153 count. As to Count II, the § 924(c)(1) count, we reverse and remand the case with directions that Count II be dismissed.

I.

The government's evidence at trial showed that, on the afternoon of May 17, 1975, James Catches was riding from Oglala, South Dakota to Pine Ridge, South Dakota in a car driven by Dale Janis. There were three other men in the car: Lloyd Bissonette, Maurice Waters and Ezzard Tobacco. All had been drinking to some degree on that day. The men had traveled about a mile from Oglala when they stopped, near a historical marker, to add oil to their car's engine. The spot where they stopped was on the Reservation.

All the men were in the car, and they were about to leave the marker when a green car came weaving down the road toward them. This car stopped in the middle of the highway. Two men with rifles emerged. One of these men was identified by three of the occupants of the first car Janis, Walters and Bissonette as the defendant, James Eagle. Janis attempted to drive his car around the green car. As he was doing so, he heard three shots. One of the shots struck the arm of James Catches above the wrist, causing a severe wound.

The defendant presented an alibi defense. Nonetheless, the jury found him guilty on both counts. As stated, consecutive three year sentences were imposed.

Appellant subsequently moved for a new trial on the basis of newly discovered evidence. Among the grounds presented was an allegation that one of the jurors, Keith Long, had admitted that he realized during the trial that Eagle was one of the men charged with the shooting of two FBI agents at Oglala, in an unrelated incident. Appellant's counsel filed an affidavit, in which he asserted that he learned this from Charles Dorothy, another attorney, who claimed to have spoken to juror Long.

A hearing was held on the new trial motion. Appellant moved to subpoena the jurors, but the motion was denied. Charles Dorothy did testify; he stated that Long told him that he did realize during the trial that Eagle was connected with the FBI shootings. Dorothy said that Long did not communicate this belief to the judge or to any court official.

The government submitted the affidavit of juror Long. Long admitted that during the trial he had speculated that Eagle might be one of the men charged in the FBI deaths. ¹ However, he asserted that this speculation was not discussed with any other juror, and did not affect his own decision in the case.

On this evidence, the district court denied the motion for new trial. A timely appeal was taken from both the conviction and the denial of the new trial motion.

Appellant presents these arguments for reversal: that the trial court erred in denying his motion to subpoena the jurors; that the court did not have jurisdiction of the § 924(c)(1) charge; that the evidence was not sufficient to support the verdict; and that the imposition of consecutive sentences was improper.

II.

A defendant who seeks to overturn a verdict by proof of jury misconduct must overcome two obstacles. First, he must produce evidence which is not barred by the rule of juror incompetency. Secondly, his evidence must be sufficient to prove "grounds recognized as adequate to overturn the verdict." See Government of Virgin Islands v. Gereau, 523 F.2d 140, 148 (3d Cir. 1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976).

Appellant here has not shown an ability to pass the first obstacle. The evidence which he proposes to produce by summoning the jurors to testify would not be competent to impeach the verdict. Accordingly, we conclude that the district court acted correctly in denying the motion to subpoena the jurors, and in denying the new trial motion.

Rule 606(b) of the Federal Rules of Evidence is a codification of the common law rule relating to juror testimony.

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. . . .

See generally Government of Virgin Islands v. Gereau, supra, 523 F.2d at 149; Downey v. Peyton, 451 F.2d 236, 239 (4th Cir. 1971); United States ex rel. Owen v. McMann, 435 F.2d 813, 819 (2d Cir. 1970), cert. denied, 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646 (1971). The general rule both at common law and under the Rules of Evidence is one of incompetency, with an exception made for testimony relating to extraneous information or improper influence in the jury room.

Appellant contends that Long, if subpoenaed, would testify that he realized during the trial that Eagle was connected with the FBI shootings. He contends that this realization constituted an "extraneous influence," and that Long's testimony is therefore competent under the exception to the general rule. He argues that he should be allowed to subpoena not only Long but also the remaining jurors to determine whether they entertained similar speculations.

Appellant's argument ignores a crucial fact: no contention has been made that juror Long voiced his suspicions about appellant's identity in the jury room. In fact, by affidavit Long denies mentioning his speculation. This is fatal to appellant's position.

A central purpose of the rule of juror incompetency is the prevention of fraud by individual jurors who could remain silent during deliberations and later assert that they were influenced by improper considerations. See Mattox v. United States, 146 U.S. 140, 148, 13 S.Ct. 50, 36 L.Ed. 917 (1892). If there were no rule of incompetency, the "secret thought of one" juror would have "the power to disturb the expressed conclusions of twelve." Id., 146 U.S. at 148, 13 S.Ct. at 52. For this reason, courts have insisted in cases of this sort that proof be limited to "overt acts which are susceptible to the knowledge of other jurors." Gafford v. Warden, 434 F.2d 318, 320 (10th Cir. 1970); see United States v. Howard,506 F.2d 865, 869 (5th Cir. 1975).

Appellant's allegations do not go beyond the mental process of juror Long. Appellant has alleged no overt acts susceptible to the other jurors' knowledge. He has thus not shown that competent evidence could be produced by summoning Long to testify, and so may not subpoena him.

Similarly, appellant has no right to subpoena the remaining jurors. He has made no specific allegations that any of them engaged in overt improper acts susceptible of proof. He clearly has no general right to subpoena the jurors in the absence of such allegations. United States v. Dye, 508 F.2d 1226, 1232 (6th Cir. 1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975); Smith v. Cupp, 457 F.2d 1098, 1100 (9th Cir.), cert. denied, 409 U.S. 880, 93 S.Ct. 208, 34 L.Ed.2d 135 (1972); Dickinson v. United States, 421 F.2d 630 (5th Cir. 1970).

It is clear that, in the absence of specific allegations of ability to adduce competent evidence, the district court properly denied both the motion to subpoena jurors and the motion for a new trial.

III.

Count II of the indictment is based on 18 U.S.C. § 924(c), which provides: "Whoever (1) uses a firearm to commit any felony for which he may be prosecuted in a court of the United States . . . shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment for not less than one year nor more than ten years." This statute creates an offense separate from the underlying felony. United States v. Howard, 504 F.2d 1281, 1286 (8th Cir. 1974); United States v. Sudduth, 457 F.2d 1198 (10th Cir. 1972). Its purpose is to prevent the carrying and use of firearms in the commission of federal felonies. See United States v. Howard, supra, 504 F.2d at 1286.

Appellant contends that although the statutory language is broad ("any felony"), Congress did not in fact intend that a prosecution for violating § 924(c)(1) would be available where the underlying felony is that charged here, an assault with a dangerous weapon in violation of 18 U.S.C. § 1153, the Major Crimes Act. We agree, and so vacate the Count II conviction.

A.

We reach this result first because § 1153 itself provides an increased penalty for use of a dangerous weapon. We are convinced that Congress did not intend § 924(c)(1) to be applicable in a...