U.S. v. Lincoln

• Decision Date: 14 October 1980
• Docket Number: No. 80-1160,80-1160
• Parties: UNITED STATES of America, Appellee, v. Quentin Ira LINCOLN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1313

630 F.2d 1313

UNITED STATES of America, Appellee, v. Quentin Ira LINCOLN, Appellant.

No. 80-1160.

United States Court of Appeals Eighth Circuit.

Submitted June 9, 1980.

Decided Oct. 14, 1980.

James R. Britton, U. S. Atty., Fargo, N. D., for appellee.

Alan J. Larivee, Murray, Olson, Larivee & Bohlman, Grand Forks, N. D., for appellant.

Before ROSS, Circuit Judge, GIBSON, Senior Circuit Judge, and HANSON, ^* Senior District Judge.

HANSON, Senior District Judge.

On November 27, 1979, appellant Quentin Ira Lincoln, an Indian, was charged by grand jury indictment with the murder of Julie Robertson within the boundaries of the Devils Lake Sioux Indian Reservation in violation of 18 U.S.C. §§ 1153 and 1111. Trial was to a jury, which returned a verdict of guilty of the lesser included offense of voluntary manslaughter. Judgment of conviction was entered on the verdict; Lincoln was sentenced to six years imprisonment. This appeal raises issues concerning the sufficiency of the indictment, the sufficiency and weight of the evidence, the district court's instructions to the jury, and certain remarks made by the government's attorney during closing argument. We affirm.

1. The Indictment.

18 U.S.C. § 1111(a) defines murder as follows:

(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree.

The indictment read as follows:

Charge: Violation of Title 18, U.S.C., Sections 1111 and 1153

THE GRAND JURY CHARGES:

On or about the 14th day of August, 1979, near Fort Totten, North Dakota, in the District of North Dakota, within the exterior boundaries of the Devils Lake Sioux Indian Reservation, in Indian country, and within the exclusive jurisdiction of the United States, QUENTIN IRA LINCOLN, an Indian, with malice aforethought, murdered Julie Robertson by beating her.

Prior to trial there was evidently confusion in some minds as to whether the indictment charged Lincoln with murder in the first or second degree. The post-indictment arrest warrant stated that he was to be arrested for first degree murder. The papers appointing defense counsel for Lincoln also indicated that the charge was first degree murder. On the afternoon of the first day of trial, after the jury had been selected but before opening statements were made, counsel for Lincoln moved that the indictment be dismissed "based upon the fact that the indictment does not state an essential element of the crime charged. Nowhere in the indictment does it indicate at all anything about premeditation which would be necessary for a charge of first degree murder. The indictment specifically talks about malice aforethought only ...." Counsel further stated that "(i)t is my understanding that the highest charge that can be brought at this time is second degree murder." After some discussion the district court indicated that it would reserve ruling on the motion until the next morning, to which defense counsel replied, "That's fine, thank you." The government proceeded with its opening statement and presentation of evidence; defense counsel reserved his opening statement until the close of the government's evidence. The next morning, before the government proceeded with its case, the district court ruled as follows:

It is fundamental that one of the purposes of the indictment is to inform the Defendant of the charge which has been brought against him. In this case the Defendant has only been charged with murder, under the definition of murder. Obviously, therefore, he has not been given notice that he has been charged with first degree murder, so the jury will be instructed that the charge in this case is murder in the second degree.

The trial proceeded on that basis without further objection, and the jury was so instructed.

On appeal, Lincoln argues that the district court erred in not dismissing the action because the indictment failed to charge first degree murder. The gist of the argument is that the government intended to charge first degree murder; that the indictment was insufficient for this purpose (as the district court ruled); that the indictment was fatally ambiguous as to whether first or second degree murder was charged; that in holding that only second degree murder was charged the district court improperly amended the indictment; and that in any case Lincoln was prejudiced by the fact that the district court did not rule on the motion to dismiss until the second day of trial. We find no merit in these contentions.

The indictment was clearly sufficient to charge the crime of murder as defined in 18 U.S.C. § 1111(a); Lincoln does not claim otherwise. Moreover, we find no ambiguity as to whether first or second degree murder was charged. Had the grand jury wished to charge murder in the first degree, it would have been required to include in the indictment one or more of the special elements, as set forth in § 1111(a), peculiar to the more serious charge. Conversely, however, it was not necessary, in order to charge second degree murder only, to explicitly negate the additional elements of murder in the first degree. By omitting any mention of those additional elements the grand jury clearly and unambiguously charged murder in the second degree only: "Any other murder is murder in the second degree." Defense counsel indicated his understanding of this point during the discussion of his motion to dismiss. It would have been reversible error for the district court to hold otherwise. Ornelas v. United States, 236 F.2d 392 (9th Cir. 1956). The contention that the court amended the indictment by so holding is frivolous. What the government may have intended the charge to be is of no moment. There is no evidence that the grand jury intended to charge first rather than second degree murder; but its charging intention, as manifested in the indictment, controls. Finally, Lincoln has shown no prejudice whatever due to the half-day delay-to which his attorney consented-in the ruling on his motion to dismiss. He points to nothing he would have done differently if the ruling had been made earlier. The bare allegation of prejudice, without more, will not suffice.

II. Sufficiency and Weight of the Evidence.

After the jury returned its verdict, but before entry of judgment, Lincoln filed a motion for new trial. One ground for the motion was that the district court had erroneously denied his motion for judgment of acquittal made at the close of the government's evidence. The district court correctly treated this contention as a timely post-verdict motion for judgment of acquittal under Rule 29(c), F.R.Crim.P. Another ground for the motion for new trial was that the verdict was contrary to the weight of the evidence. The district court denied the motion for judgment of acquittal, and held that the verdict was not contrary to the weight of the evidence. We review these rulings separately.

A. Sufficiency.

A post-verdict motion for judgment of acquittal puts in issue the sufficiency of the evidence to sustain the verdict. It is in this respect precisely like an appeal from a judgment of conviction on the ground that the evidence was not sufficient to sustain the verdict on which the judgment was entered. The court reviewing the sufficiency of the evidence, whether it be the trial or appellate court, must apply familiar principles. It is required to view the evidence in the light most favorable to the verdict, giving the prosecution the benefit of all inferences reasonably to be drawn in its favor from the evidence. The verdict may be based in whole or in part on circumstantial evidence. The evidence need not exclude every reasonable hypothesis except that of guilt; it is sufficient if there is substantial evidence justifying an inference of guilt as found irrespective of any countervailing testimony that may have been introduced. If so, the issue of guilt or innocence has been properly submitted to the jury for its determination, and the motion for judgment of acquittal is properly denied. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Knife, 592 F.2d 472, 475 (8th Cir. 1979); United States v. Robinson, 71 F.Supp. 9, 10 (D.D.C.1947). We next review the evidence presented at the trial of this case with these principles in mind.

Robertson was a young woman of Native American ancestry whose immediate family lived in Chicago. She went to visit her grandmother, Mrs. Grace Lambert, in Fort Totten, North Dakota, on the Devils Lake or Fort Totten Indian Reservation, in August 1977. She found a job nearby and stayed on. She met Lincoln, a young man recently out of the Army, at the place where they were both employed. They began dating. Robertson, however, left the Dakotas to go first to Chicago for the summer of 1978 and then to college in Lawrence, Kansas that fall.

Robertson left college sometime in 1979 to go and live with Lincoln. They lived in or near Fort Yates, North Dakota, on the Standing Rock Indian Reservation. There is evidence that they lived less than settled lives. They evidently drank a good deal, and fought, sometimes with each other; he beat her up several times. At length Robertson ran away from Lincoln, returning on August 2, 1979 to live with her grandmother at Fort Totten. Lincoln followed her, wishing her to come back with him. She was ambivalent. Between August 2 and August 14, they saw a good deal of each other. Robertson's grandmother, Mrs. Lambert, disapproved of the relationship; she thought that Lincoln was a bad...