U.S. v. Hanson, s. 79-1656

• Decision Date: 22 April 1980
• Docket Number: Nos. 79-1656,s. 79-1656
• Citation: 618 F.2d 1261
• Parties: 5 Fed. R. Evid. Serv. 973 UNITED STATES of America, Appellee, v. Harry S. HANSON, Jr., Appellant. UNITED STATES of America, Appellee, v. Edward Dean COOK, Appellant. UNITED STATES of America, Appellee, v. Roland Eugene ROY, Appellant. UNITED STATES of America, Appellee, v. William Allen STATELY, a/k/a William Alan Stateler, Appellant. UNITED STATES of America, Appellee, v. Thomas Peter BARRETT, a/k/a Thomas H. Barrett, Appellant. to 79-1660.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1261

618 F.2d 1261

5 Fed. R. Evid. Serv. 973

UNITED STATES of America, Appellee, v. Harry S. HANSON, Jr., Appellant.

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

UNITED STATES of America, Appellee, v. Roland Eugene ROY, Appellant.

UNITED STATES of America, Appellee, v. William Allen STATELY, a/k/a William Alan Stateler, Appellant.

UNITED STATES of America, Appellee, v. Thomas Peter BARRETT, a/k/a Thomas H. Barrett, Appellant.

Nos. 79-1656 to 79-1660.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 17, 1980.

Decided April 1, 1980.

Rehearing and Rehearing En Banc Denied April 22, 1980.

Joseph S. Friedberg, Minneapolis, Minn., for appellant, Stately.

Thomas M. Kelly, Minneapolis, Minn., for appellant, Cook.

Scott F. Tilsen, Asst. Federal Public Defender, Minneapolis, Minn., for appellants, Hanson and Roy.

Neal J. Shapiro, Minneapolis, Minn., for appellant, Barrett.

Joseph S. Friedberg, Thomas M. Kelly, Scott F. Tilsen, Neal J. Shapiro, Minneapolis, Minn., and Donald J. Heffernan, St. Paul, Minn., on brief, for appellants.

Richard E. Vosepka, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Thorwald H. Anderson, Jr., U. S. Atty., Richard E. Vosepka, Asst. U. S. Atty., Robin Sjaastad and Andrea White, Legal Interns, Minneapolis, Minn., on brief.

Before LAY, Chief Judge, STEPHENSON, Circuit Judge, and THOMAS, ^* Senior District Judge.

THOMAS, District Judge.

Defendants appeal from a five count indictment charging one count of conspiracy to assault federal officers (Title 18, United States Code, Section 372) and four counts of assault on federal officers (Title 18, United States Code, Section 111). A trial by jury was commenced on July 9, 1979, before the Honorable Edward J. Devitt, Chief Judge, United States District Court, District of Minnesota. Defendants were found guilty on all counts. We affirm the judgment of the District Court.

These cases arise out of a protest involving the takeover of the Red Lake Indian Reservation Law Enforcement Center during the morning of May 19, 1979.

Such action was the culmination of the defendants' dissatisfaction with tribal chairman Roger Jourdain, whom the defendants considered a "dictator". During the twenty-two year reign Jourdain had alienated many of the people on the reservation with his handling of things such as tribal elections, use of tribal funds, housing on the reservation and use of the tribal court system. Defendants were especially incensed about the removal from office of defendant Hanson's wife as Tribal Treasurer on May 15, 1979.

On the evening of May 18, 1979, a group of persons gathered at the home of defendant Hanson to discuss the possibility of taking over the Law Enforcement Center. Such discussions were interspersed with drinking and political rhetoric. At approximately 4:30 a. m., the defendants left Hanson's dwelling and proceeded to the Law Enforcement Center.

Upon their arrival all five defendants confronted a female night dispatcher and a Bureau of Indian Affairs jailer, Clayton Van Wert. Four defendants were armed with automatic weapons, while one carried a sledgehammer.

As Van Wert and the dispatcher were held in the radio room, three other officers in the Law Enforcement Center were accosted at gunpoint by defendants Cook and Roy. These individuals were Bureau of Indian Affairs Police Officer Delwyn Dudley, BIA Chief Jailer David Brown, and Tribal Police Officer Foseph Dudley, who was also a Special Deputy Officer of the BIA.

All four officers were marched at gunpoint into the "drunk tank" cell where they were locked up.

Between 5:00 and 5:30 a. m., the officers were moved to a smaller "padded" cell in which they remained until about 9:00 a. m. when Van Wert was released. The three remaining officers were released around noon on May 19, 1979, by a police captain. When they got outside, the officers were intercepted by defendant Stately and handcuffed. They were driven away and later released. Each defendant at some point during the hostilities pointed a gun at the officers. ¹

Testimony from the trial court established that Van Wert, Delwyn Dudley and Brown were BIA employees of the Department of Interior and that Joseph Dudley was a Special Deputy of BIA, although a tribal employee. All were performing law enforcement duties on the Red Lake Indian Reservation.

I. Justification as a Defense

Defendants assert a denial of their right to a fair trial and due process of law by the trial court's refusal to instruct the jury on the defense of "justification" or "choice of evils". They would in effect have us believe that their acts were justified and therefore not criminal in light of their alleged dehumanization by Mr. Jourdain. Such contention is beyond the realm of reality and has no merit.

This court has stated in United States v. Kroncke, 459 F.2d 697, 703 (8th Cir. 1972), quoting United States v. Moylan, 417 F.2d 1002, 1008 (4th Cir. 1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970):

Among philosophers and religionists throughout the ages there has been an incessant stream of discussion as to when, if at all, civil disobedience, whether by passive refusal to obey a law or by its active breach, is morally justified. However, they have been in general agreement that while in restricted circumstances a morally motivated act contrary to law may be ethically justified, the action must be non-violent and the actor must accept the penalty for his action. In other words, it is commonly conceded that the exercise of a moral judgment based upon individual standards does not carry with it legal justification or immunity from punishment for breach of the law.

Defendants cite Model Penal Code Section 3:02 (Proposed Official Draft, 1962), as recognizing a choice of evils defense in criminal law. The crux of the matter is that a jury should be asked to acquit a defendant because his act, though evil, is less evil than the wrong he seeks to prevent by its commission. While such may serve to lessen the bounds of responsibility in some circumstances, it does not suffice to afford justification for what took place here. Whatever the evils, if any, of Mr. Jourdain, they were not of a magnitude to justify anarchy.

II. Official Capacity and Duty Status of Each Alleged Assault Victim

To gain a conviction on the assault charges the Government had to prove the victims were officers or employees of the Department of the Interior and were engaged in or in performance of their official duties. Such issue is one of fact for determination by the jury. Walks on Top v. United States, 372 F.2d 422 (9th Cir. 1967). The position of the defendants is that the officers were in reality under the "control" of local political leaders such as to fall without the purview of this requirement. Additionally, the defendants suggest that the jury was ambiguously instructed as to the fact that it was up to them to make such a determination. We cannot agree.

Defendants themselves concede in their own briefs that Indian Field Service persons could be "employees" under the statute. See Stone v. United States, 506 F.2d 561 (8th Cir. 1974), cert. denied, 420 U.S. 978, 95 S.Ct. 1405, 43 L.Ed.2d 650. They remain steadfast however to their claim of improper jury instruction.

A look at the record ² shows that Judge Devitt clearly instructed the jury twice as to the government's burden of proof in this area. He stated:

The essentials which the government must prove in order to justify a verdict of guilty are:

First, that each defendant forcibly assaulted, impeded, intimidated or interfered with an officer of the Bureau of Indian Affairs of the United States Department of the Interior, while such officer was engaged in the performance of his official duties, as charged in the indictment.

Secondly, that each defendant used a deadly or dangerous weapon in the commission of that offense.

Thirdly, that he did it willfully.

Judge Devitt then restated these requirements. ³

First, that he did the assault, or the impeding upon a BIA officer when he was about his official job. Secondly, that he used a dangerous and deadly weapon in the commission of the offense, and thirdly, that he did it willfully.

The Government contends, and we agree, that in light of the foregoing, it is inconceivable that the judge did not correctly advise the jury that the assault must have been committed against a BIA officer in the performance of his official duties.

III. Intoxication as a Defense to Specific and General Intent Crimes

All parties concede that the trial court properly instructed the jury concerning the charge of conspiracy and its required element of specific intent. The problem presented, however, is whether a similar intoxication instruction should have been given regarding the assault counts. The defendants allege that the court's instructions regarding the issue of assault were contradictory and erroneous. They further complain that one of the elements listed by the trial judge to comprise the crime of assault was willfullness, which he previously defined as requiring specific intent. Defendants would distinguish the crime of assault from that of assault on a federal officer, the latter, in their view requiring specific intent. We disagree. The Supreme Court has stated in United States v. Feola, 420 U.S. 671, 95 S.Ct. 1264, 43 L.Ed.2d 541 (1975):

We conclude, from all this, that in order to effectuate the congressional purpose of according maximum protection to federal officers by making prosecution for assaults upon them cognizable in federal courts, § 111 cannot be construed as embodying an unexpressed requirement that an assailant be aware that his victim is a federal officer. All the statute requires is an intent to assault, not an intent to assault a federal officer.

Defendants agree that criminal assault is a general intent crime. The defense also supports the premise that voluntary intoxication cannot...