U.S. v. Grey Bear, s. 86-5264

• Decision Date: 31 December 1987
• Docket Number: Nos. 86-5264,86-5265,s. 86-5264
• Citation: 836 F.2d 1086
• Parties: UNITED STATES of America, Appellee, v. Loren Michael GREY BEAR, Tayron Dale Dunn, a/k/a Terry Dunn, Leonard George Fox and John Emmanuel Perez, a/k/a John Perez, Appellants. UNITED STATES of America, Appellee, v. Jesse Dean CAVANAUGH, Paul Henry Cavanaugh, Maynard James Dunn, Timothy Sylvester Longie, Jr., Roger Darrel Charboneau, Dwayne Allen Charboneau, Richard John LaFuente, a/k/a Ricky LaFuente, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1086

836 F.2d 1086

UNITED STATES of America, Appellee, v. Loren Michael GREY BEAR, Tayron Dale Dunn, a/k/a Terry Dunn, Leonard George Fox and John Emmanuel Perez, a/k/a

John Perez, Appellants.

UNITED STATES of America, Appellee, v. Jesse Dean CAVANAUGH, Paul Henry Cavanaugh, Maynard James

Dunn, Timothy Sylvester Longie, Jr., Roger Darrel

Charboneau, Dwayne Allen Charboneau, Richard John LaFuente,

a/k/a Ricky LaFuente, Appellants.

Nos. 86-5264, 86-5265.

United States Court of Appeals,

Eighth Circuit.

Dec. 31, 1987.

Rodney S. Webb, U.S. Atty., Dennis D. Fisher, Norman G. Anderson and Lynn E. Crooks, Asst. U.S. Attys., Fargo, N.D., for appellee.

Before LAY, Chief Judge, HEANEY, Circuit Judge, and ROSENN, ^* Senior Circuit Judge.

PER CURIAM.

This matter comes before the panel on a petition for rehearing. The government raises two issues: (1) Whether this court will remand to the trial court to enter judgment on an "implied verdict" on lesser included charges, or alternatively, instruct the trial court that the government may retry some of the defendants for assault resulting in serious bodily injury; and (2) whether this court's opinion conforms with Eighth Circuit and Supreme Court cases in holding that there was prejudicial misjoinder of defendants. As to the latter issue, the government also seeks a rehearing en banc. Upon consideration of the briefs and issues raised, the panel denies the petition for rehearing.

Assault Charges

In our original opinion, 828 F.2d 1286, the convictions of eight defendants for second degree murder were set aside for lack of sufficient evidence. The government does not challenge in its petition for rehearing or its petition for rehearing en banc either the holding that there was insufficient evidence to sustain the second degree murder convictions or the dismissal of the assault charge against one of the defendants.

The form of verdict submitted to the jury at trial included alternative charges of first degree murder, second degree murder, and assault resulting in serious bodily injury. The jury found, inter alia, eight defendants guilty of second degree murder, and, as instructed, left the verdict forms blank as to the assault charges.

The government urges this court to remand and instruct the trial court to enter judgments of guilty on the lesser charges of assault. The government relies on United States v. Cobb, 558 F.2d 486 (8th Cir.1977) and DeMarrias & United States, 453 F.2d 211 (8th Cir.1972) as establishing the propriety of this procedure. ¹ See also Morris v. Mathews, 475 U.S. 237, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986). The government argues alternatively that these cases at least support a retrial against the eight defendants on the assault charges, and that the double jeopardy clause does not bar this direction.

These arguments have not been presented to the trial court; they were not presented to this court in the government's original brief. Assuming a retrial may be held, a jury could find the evidence insufficient to sustain guilty verdicts for assault against some or all of the defendants. Deciding now whether these defendants may be retried would require this court to render an advisory opinion. The issue is clearly not ripe for appellate adjudication and we may not pass upon it at this time. Our statement is without prejudice to the government raising these issues before the district court.

On this basis the panel denies the petition for rehearing.

* The HONORABLE MAX ROSENN, Senior United States...