U.S. v. Oakie

• Decision Date: 27 January 1994
• Docket Number: 92-3622,Nos. 92-3268,s. 92-3268
• Citation: 12 F.3d 1436
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Delano Romanus OAKIE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kirk Morin OAKIE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1436

12 F.3d 1436

UNITED STATES of America, Plaintiff-Appellee, v. Delano Romanus OAKIE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Kirk Morin OAKIE, Defendant-Appellant.

Nos. 92-3268, 92-3622.

United States Court of Appeals,

Eighth Circuit.

Submitted May 11, 1993.

Decided Dec. 17, 1993.

Rehearing and Suggestion for Rehearing

En Banc Denied Jan. 27, 1994

in No. 92-3622 and

Jan. 28, 1994 in No. 92-3268.

Jerry L. Wattier, Pierre, SD, argued, for Delano Oakie.

Jamie L. Post, Pierre, SD, argued, for Kirk Oakie.

David L. Zuercher, U.S. Atty., Pierre, SD, argued, for plaintiff-appellee.

Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

LOKEN, Circuit Judge.

Delano Romanus Oakie and Kirk Morin Oakie, residents of the Cheyenne River Indian Reservation in South Dakota, appeal their convictions for assault with a dangerous weapon in violation of 18 U.S.C. Secs. 1153 and 113(c), use of a firearm during a crime of violence in violation of 18 U.S.C. Sec. 924(c), and assaulting a federal officer with a dangerous weapon in violation of 18 U.S.C Sec. 111. Delano Oakie also appeals his sentence and his additional conviction for being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1). Defendants argue numerous issues on appeal. We affirm.

I. Sufficiency of the Evidence.

As defendants challenge the district court's ¹ ruling that the evidence was sufficient to convict, we review that evidence in the light most favorable to the government. See United States v. LaChapelle, 969 F.2d 632, 633 n. 1 (8th Cir.1992). On the evening of October 18, 1991, Tribal Officer Leslie Shooter came to the home of LaMarr Avery, Delano Oakie's next door neighbor, looking for a suspect in an alcohol-related disturbance earlier that evening. At that time, Delano Oakie was driving Avery's borrowed car with Kirk Oakie, their friend Wallace Rooks, and Delano's nephew, Shane Oakie, as passengers. All had been drinking heavily. The group was about to pull into the Oakie/Avery common driveway when Delano saw Officer Shooter's tribal police car parked at the Avery residence. Delano turned the Avery car around and sped away, telling his passengers he wished to avoid tribal warrants for his arrest.

Thinking his suspect might be in Avery's fleeing vehicle, Officer Shooter gave chase, turning on his car's red flashing overhead lights as he left the driveway. When the Avery car did not stop, Officer Shooter turned on his siren and shined his car's spotlight on the fleeing vehicle. Delano accelerated, leading Officer Shooter over a rough dirt trail and pastures and crashing through several barbed wire fences.

As the chase continued, Delano asked Wallace Rooks to locate a rifle that Delano had retrieved from Avery's house and placed in the rear of Avery's car earlier that evening. Rooks grabbed the rifle and knocked out the car's rear window. Kirk Oakie found bullets under the seat, handed one to Rooks, and told Rooks to "hurry up and shoot that fucker." Rooks fired five or six shots at Officer Shooter's car through the rear window opening, with Kirk handing Rooks the bullets one at a time. One bullet struck the police car's windshield; glass fragments shattered Officer Shooter's glasses, sprayed into his eyes, and cut his cheek and eyebrow. Officer Shooter stopped his car, laid down on the front seat, and informed the police dispatcher that he had been shot and needed assistance.

Fearing serious injury, Officer Shooter resumed driving to find help. He caught up with the Avery vehicle parked on the road. Delano Oakie, standing outside that car, aimed the rifle at Officer Shooter's car and fired at least once. Seeing the muzzle flash, Officer Shooter stopped his car and laid down in the front seat until the Avery vehicle drove away. Defendants eventually abandoned the car at a gravel pit and walked to Wallace Rooks's home, where they spent the night. Delano Oakie asked Rooks to hide the rifle. Rooks placed it under his sister's mattress.

Defendants argue that this evidence was insufficient, primarily because Rooks did most of the shooting. We disagree. Applying our familiar sufficiency of the evidence standard, see United States v. Schmidt, 922 F.2d 1365, 1368 (8th Cir.1991), we conclude that there was more than enough evidence to convict each defendant of assault with a dangerous weapon with intent to do bodily harm and of using a firearm during a crime of violence (or of aiding and abetting Rooks to commit those crimes), and to convict Delano Oakie of being a felon in possession of the rifle used in the assaults.

II. The Federal Officer Issue.

The evidence was also sufficient to convict defendants of assaulting a federal officer in violation of 18 U.S.C. Sec. 111. Defendants argue that the government failed to prove that Shooter, a tribal officer, was a federal officer within the purview of Sec. 111 at the time of the assaults. Section 111 makes it a federal crime to assault anyone designated in 18 U.S.C. Sec. 1114, which includes "any officer or employee of the ... Department of the Interior ... assigned to perform investigative, inspection, or law enforcement functions." Officer Shooter testified that, at the time in question, he was employed by the Cheyenne River Sioux Tribe and was also a "Deputy Special Officer" of the Interior Department's Bureau of Indian Affairs ("BIA"). Dwain Holland, BIA's Area Special Officer for law enforcement, testified that BIA Deputy Special Officers are authorized to investigate any violation of federal law in Indian country, such as firearms violations, liquor violations, and assaults.

Whether a BIA Deputy Special Officer is an officer or employee of the Department of Interior for purposes of Sec. 111 is an issue of law for the court. Compare United States v. Lopez, 586 F.2d 978 (2d Cir.1978), cert. denied, 440 U.S. 923, 99 S.Ct. 1251, 59 L.Ed.2d 476 (1979); United States v. Reid, 517 F.2d 953, 958-60 (2d Cir.1975). The statute cannot be limited to BIA employees because that would make the reference in Sec. 1114 to "any officer or employee" surplusage. Section 111 was intended "to protect both federal officers and federal functions." United States v. Feola, 420 U.S. 671, 679, 95 S.Ct. 1255, 1261, 43 L.Ed.2d 541 (1975) (emphasis in original). Thus, both the language and the purpose of the statute compel the conclusion that a tribal law enforcement officer who has been designated a BIA Deputy Special Officer is entitled to the protections of Sec. 111 when performing the federal functions he or she has been deputized to perform. ² See United States v. Chunn, 347 F.2d 717, 721 (4th Cir.1965) (undercover state agent on loan to the Internal Revenue Service and assisting federal agents is a federal officer for purposes of Sec. 111); see also United States v. Torres, 862 F.2d 1025, 1029-30 (3d Cir.1988), and cases cited.

Whether Officer Shooter was in fact a BIA Deputy Special Officer, and whether he was performing federal "investigative, inspection, or law enforcement functions" at the time of the assaults, were fact questions for the jury. See United States v. Hanson, 618 F.2d 1261, 1264 (8th Cir.), cert. denied, 449 U.S. 854, 101 S.Ct. 148, 66 L.Ed.2d 67 (1980). ³ The district court properly instructed the jury on these issues, defendants did not object to the instruction, and the evidence was sufficient to support the jury's finding that Officer Shooter was engaged in his duties as a BIA Deputy Special Officer at the time of the assaults. Accordingly, defendants' motions for judgment of acquittal were properly denied.

III. Section 924(c) Issues.

Count II of the indictment charged that defendants "during and in relation to [an] Assault with a Dangerous Weapon ... did use and carry a firearm in violation of 18 United States Code Section 924(c)." Defendants argue that Count II failed to charge a crime since it did not allege that the defendants acted "knowingly." We approved a Sec. 924(c) indictment that did not expressly allege that the defendant acted knowingly in United States v. Mills, 835 F.2d 1262, 1263 (8th Cir.1987). Like the indictment in United States v. Gutierrez, 978 F.2d 1463, 1466-67 (7th Cir.1992), the indictment in this case closely tracked the language of the statute and therefore fairly imported the scienter requirement of Sec. 924(c). The case upon which defendants rely, United States v. Hawkins, 741 F.Supp. 1234 (N.D.W.Va.1990), has been explicitly rejected by its own circuit. See United States v. Sutton, 961 F.2d 476, 479 n. 2 (4th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 171, 121 L.Ed.2d 118 (1992).

Defendants further argue that they were placed in double jeopardy when they were tried for assault with a dangerous weapon, and for use of a firearm during that assault in violation of Sec. 924(c). We rejected this contention in United States v. Mills, 835 F.2d 1262, 1264 (8th Cir.1987), because "Congress has specifically authorized cumulative punishment under two statutes." The Sentencing Guidelines did not alter this legislative authority. See United States v. Halford, 948 F.2d 1054, 1056-57 (8th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1700, 118 L.Ed.2d 410 (1992).

IV. Alleged Errors at Trial.

A. Severance. Delano Oakie argues that the district court abused its discretion in denying his motion for severance. The motion was made on the fourth day of trial, when Delano learned that Kirk Oakie would not testify. Because defendants who are jointly indicted on similar evidence from the same or related events should normally be tried together, to warrant severance a defendant must show "real prejudice," that is, "something more than the mere fact that he would have had a better chance for acquittal had he been tried separately." United States v. Adkins, 842 F.2d 210, 211-12 (8th Cir.1988).

Delano Oakie first argues that severance was appropriate because Kirk Oakie would have testified in Delano's favor at a...