U.S. v. Looking Cloud

• Decision Date: 19 August 2005
• Docket Number: No. 04-2173.,04-2173.
• Citation: 419 F.3d 781
• Parties: United States of America, Plaintiff—Appellee, v. Fritz Arlo LOOKING CLOUD, Defendant—Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

419 F.3d 781

United States of America, Plaintiff—Appellee, v. Fritz Arlo LOOKING CLOUD, Defendant—Appellant.

No. 04-2173.

United States Court of Appeals, Eighth Circuit.

Submitted: January 10, 2005.

Filed: August 19, 2005.

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Terry H. Gilbert, argued, Cleveland, OH, for appellant.

Robert Aaron Mandel, argued, Assistant U.S. Attorney, Rapid City, SD (James E. McMahon, on brief), for appellee.

Before BYE, JOHN R. GIBSON, and GRUENDER, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Fritz Arlo Looking Cloud appeals his conviction for the first degree murder of Anna Mae Aquash following a jury trial. His grounds for appeal are: (1) admission of irrelevant, prejudicial evidence; (2) admission of hearsay and an improper limiting instruction; (3) ineffective assistance of counsel; and (4) insufficient evidence to support his conviction. The district court¹ sentenced him to life in prison. We affirm.

Aquash's badly decomposed body was discovered in 1976, and police began to suspect foul play after identifying her as having been involved with the American Indian Movement.² Due to lack of cooperation the investigation made little headway until agents began talking to Looking Cloud in the mid-90s. Looking Cloud and almost every other witness in the case were members of, and were actively involved in, the American Indian Movement at the time of Aquash's death. The government's theory at trial was that Looking Cloud and other American Indian Movement members killed Aquash, who was also a member, because they suspected she was a federal informant, working with the government.

When the rumor began to spread around the American Indian Movement that Aquash was an informant, she fled Pierre to Denver. A few weeks later, Looking Cloud, Theda Clark and John Graham (also called John Boy Patton)³ received orders from the American Indian Movement to bring Aquash back to South Dakota. They tied her up and drove her to Rapid City to question her about being an informant. Aquash was constantly guarded and her requests to be let free were refused. At some point, Aquash realized that she was about to be killed. Looking Cloud, Clark, and Graham met with other American Indian Movement members in Rapid City and eventually the three drove Aquash to an area near Wanblee. Aquash begged to go free, prayed, and cried. Looking Cloud and Graham marched Aquash up a hill and Graham shot her at the top of a cliff. Her body was either thrown or it tumbled to the bottom of that cliff.

I.

Looking Cloud argues that the district court erred in admitting evidence about the activities of the American Indian Movement because it was irrelevant to the murder charge or, alternatively, because it was overly prejudicial. Looking Cloud asserts that the government portrayed the American Indian Movement as a violent organization so that the jury would associate violence with Looking Cloud, who was a member.

Federal Rule of Evidence 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Relevant evidence is admissible but may be excluded under Rule 403 if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . ." Evidence is not unfairly prejudicial because it tends to prove guilt, but because it tends to encourage the jury to find guilt from improper reasoning. Whether there was unfair prejudice depends on whether there was an "undue tendency to suggest decision on an improper basis." United States v. Sills, 120 F.3d 917, 920 (8th Cir.1997) (citations omitted). Prejudicial evidence is not automatically excluded and we give great deference to the district court's balancing of the probative value and prejudicial impact of the evidence. United States v. Ruiz, 412 F.3d 871, 881 (8th Cir.2005). We review the district court's decision to admit evidence for abuse of discretion. Id. at 880. Looking Cloud objected to some, but not all, of the American Indian Movement evidence. To the extent he failed to object, our review is for plain error. See United States v. Sharpfish, 408 F.3d 507, 511 (8th Cir.2005).

The government's theory of the case was that Aquash's murder was organized and executed by Movement members. The government set out to prove that Looking Cloud received orders from decision-makers within the Movement to kill Aquash because she betrayed the Movement by becoming an informant. The government offered two distinct types of evidence: (1) evidence that witnesses or the people discussed by the witnesses were members of the American Indian Movement and knew each other through that organization, and (2) evidence of the violent activities in which the Movement was involved.

The first type of evidence showed Looking Cloud's association with the Movement and its members. This evidence is comparable to the admission of a defendant's association with a group or gang, who engage in violent activities. We have admitted evidence of a defendant's association with a group where the association establishes motive or opportunity to commit the crime. See Sills, 120 F.3d at 920. Where a group plays a role in the crime the defendant is charged with, evidence of the nature and extent of the defendant's association with that group may be necessary. See, e.g., United States v. Johnson, 28 F.3d 1487, 1497 (8th Cir.1994). However, a defendant cannot be convicted because of his association with a group. United States v. Lemon, 239 F.3d 968, 971-72 (8th Cir.2001) (affirming admission of gang-related evidence because it did not become a "pervasive theme"); Johnson, 28 F.3d at 1497-98 (affirming admission of evidence that served to clarify connections between the defendants but did not serve as a substitute for linking the defendant to the crime). In Sills and Johnson, we affirmed the district court's admission of gang-related evidence because although the evidence linked the defendants to a gang, it fell far short of encouraging the jury to base its verdict on guilt by association. Sills, 120 F.3d at 920; Johnson, 28 F.3d at 1497.

The murder of Aquash could only be explained within the context of the American Indian Movement and its activities. Aquash and Looking Cloud were both members, as was virtually every person who came into contact with Aquash before her death. Aquash was moved through a network of American Indian Movement members from Denver to Rapid City to Rosebud before she was killed. The evidence showed how the members' preoccupation with Aquash escalated until her death. The government introduced evidence that influential members of the Movement had concluded that Aquash was an informant, and that the Movement delegated the task of killing her to Looking Cloud, Clark, and Graham. Evidence of how those who surrounded Aquash in the last months of her life were intimately involved with the Movement tended to make the government's theory—that the Movement orchestrated Aquash's murder—more probable. Proof of Looking Cloud's involvement in the Movement was crucial to explain why he would have killed Aquash.

There was a low risk that, from evidence of mere membership in the Movement, the jury would associate violent activity with Looking Cloud. The evidence linked Looking Cloud to the American Indian Movement, but it did not encourage the jury to find him guilty because of his association with the Movement.

For the second type of evidence, Darlene Nichols testified as to several incidents of violence involving the American Indian Movement. Three of these, the riot in Custer involving several hundred people, the seventy-one day occupation of Wounded Knee, and a shoot-out near her home which killed two FBI agents, were the most violent events discussed and were also the least related to Aquash and Looking Cloud. In other words, evidence of these three events is the least probative and the most prejudicial.

Evidence of the activities engaged in by Movement members provided context for the Movement and showed how loyal and dedicated its members were, and how extensively involved they were in the Movement. The events mentioned by Nichols depicted a violent conflict between the Movement and the federal government. This conflict showed why the Movement would be enraged if one of its own members turned against it to become a government informant. This background information helped the jury understand why the Movement would go so far as to order the execution of a suspected government informant.

If any of the evidence of the violent acts involving the Movement was admitted in error, that error was harmless. An error is harmless "if, after reviewing the entire record, we determine that the substantial rights of the defendant were unaffected, and that the error did not influence or had only a slight influence on the verdict." United States v. Crenshaw, 359 F.3d 977, 1003-04 (8th Cir.2004) (quoting United States v. Carroll, 207 F.3d 465, 470 (8th Cir.2000)). These events were mentioned in passing by Nichols, and they did not become the focus of the trial. There was no in-depth discussion of the degree of violence or injuries caused by the events. The information was elicited in a matter-of-fact way and was not inflammatory. The jury would not have been unduly influenced by the evidence.

We hold that the district court neither abused its discretion nor committed plain error in admitting the evidence related to the American Indian Movement.

II.

Looking Cloud's second evidentiary argument is that the district court erred in admitting evidence that Aquash was a government informant because it was inadmissible hearsay. The district court permitted several witnesses to testify that people within the American Indian Movement had accused Aquash of being an informant and that...