U.S. v. Pino, 81-1538

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: Before HOLLOWAY, BARRETT and SEYMOUR; HOLLOWAY; Bratton
• Citation: U.S. v. Pino, 708 F.2d 523 (10th Cir. 1983)
• Decision Date: 26 May 1983
• Docket Number: No. 81-1538,81-1538
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Amos PINO, Defendant-Appellant.

Page 523

708 F.2d 523

UNITED STATES of America, Plaintiff-Appellee, v. Amos PINO, Defendant-Appellant.

No. 81-1538.

United States Court of Appeals Tenth Circuit.

May 26, 1983.

Dana L. Larson, Littleton, Colo., for defendant-appellant.

Richard J. Smith, Asst. U.S. Atty., Albuquerque, N.M. (William L. Lutz, U.S. Atty., and Benjamin Silva, Jr., Asst. U.S. Atty., Albuquerque, N.M., were on the brief), for plaintiff-appellee.

Before HOLLOWAY, BARRETT and SEYMOUR, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant-appellant Amos Pino, an Indian, brings this timely appeal from his conviction, after a jury trial, of involuntary manslaughter, ¹ a lesser included offense of the second degree murder offense charged by indictment, in the beating death of James Coho, another Indian, in Indian Country in violation of 18 U.S.C. Sec. 1153 and Sec. 1111. ²

For reversal, defendant argues (1) that the twenty-eight month delay between his offense and the indictment was violative of his Fifth Amendment due process rights; (2) that the trial court erred by denying defendant's motion to dismiss on the basis of prosecutorial misconduct before the grand jury; and (3) that he was deprived of his right to a fair and impartial jury by the jury selection procedures used in the District of New Mexico.

I

Considered in the light most favorable to the Government as it must be after the jury's verdict, the evidence tended to show the following circumstances:

On October 6, 1978, at about noon, defendant Amos Pino, his brother Elton Pino, and Wilfred Martine rode on horseback from their homes at the Indian community of Ramah to a bar named "Pablo's." There, they met with other Indians and drank beer and wine, and some whiskey. In late afternoon these three, along with James Coho and Vance Jake started back toward Ramah on horseback. Coho initially rode with defendant, but later switched to Jake's horse, at which point defendant rode ahead of the group.

During defendant's absence, Coho and defendant's brother Elton had an argument. The argument resulted in a brief scuffle, and Coho bloodied Elton's nose. The argument ceased, and the group proceeded onward. Upon defendant's return to the group, he demanded an explanation for his brother's bloodied nose. Fearing a beating, Jake left the scene on foot. Coho attempted to escape on horseback, but was overtaken by defendant and Elton. Martine testified that Coho dismounted and was beaten to the ground and kicked about the head and body by defendant and Elton. Defendant walked a few feet away from Coho and picked up a rock and came back and hit Coho's head; after defendant hit Coho with the rock, Martine felt bad and left the scene. (III R. 103-105, 143).

When Martine left he was followed by defendant and Elton. Jake returned, saw Coho's body lying at the side of the road, and ran home on foot.

The following morning Jake returned to the scene and found Coho groaning, still unconscious, his face swollen. He summoned assistance and Coho was eventually transported to an Albuquerque hospital. Despite emergency surgery, Coho died without ever regaining consciousness. The Medical Examiner's testimony was to the effect that Coho's death resulted from blunt blows to Coho's head, which caused his brain to hemorrhage and uncontrollably swell.

The F.B.I. began its investigation of the incident on October 11, 1978, the day of Coho's death, and completed the investigation on January 30, 1979. ³ (II R. 45-46). Defendant was interviewed twice, once in October and once in November 1978, both times denying any knowledge of the cause of Coho's fatal injuries. (II R. 32-33; see Defendant's Exhibits 8 and 9). Elton Pino was interviewed twice, on October 20 and November 17, 1978, and gave conflicting statements, the second of which implicated defendant in Coho's death. (See Defendant's Exhibits 2 and 3). Wilfred Martine was interviewed twice, on October 25 and 27, 1978, and gave conflicting statements, the second of which also implicated defendant in Coho's death. (See Defendant's Exhibits 4 and 5). Martine testified in conformity with the second statement at trial.

Calvin Guyman, the F.B.I. agent in charge of the case, testified that on completion of the investigation, he transmitted a report, including the report of the autopsy performed on Coho, to the United States Attorney's office in Albuquerque. (II R. 46). The United States Attorney reviewed the case and in June 1979, fearing a jurisdictional problem between the state and federal governments, requested that Guyman discuss the matter with the Valencia County, New Mexico, District Attorney to see if the matter might better be prosecuted by the state. Accordingly the matter was transferred to the state district attorney's office for review in July 1979. (II R. 46-47, 53).

Guyman maintained contact with the state district attorney's office throughout the fall of 1979 and was advised that they were quite busy, but that they would review the case for possible submission to a state grand jury. In March 1980 the state district attorney, reluctant to proceed in an Indian case where jurisdiction was uncertain, transferred the case back to the United States Attorney's office. (II R. 47-48).

In May 1980 the United States Attorney's office in Albuquerque made the decision to proceed in the case. The Assistant United States Attorney recommended prosecution of Elton Pino before proceeding against defendant Amos Pino based on his evaluation that the case against Elton was the stronger one--there was a confession by Elton, but there was no confession by Amos Pino ⁴--and the statements concerning Amos's involvement were conflicting. (V R. 493-94). A juvenile proceeding was brought against Elton concerning the homicide and it resulted in an acquittal in October 1980. (See V R. 495).

Following Elton Pino's acquittal, the prosecuting attorney submitted evidence concerning Amos Pino's part in the beating of Coho to a federal grand jury on January 6, 1981. Elton Pino appeared and testified pursuant to subpoena. Elton first said that he had no knowledge of defendant's involvement in Coho's death. (Defendant's Exhibit 1 at 8-16). When he was confronted with his November 17, 1978, statement (Defendant's Exhibit 2), and after the prosecuting attorney said he would call as witnesses the F.B.I. agent and the B.I.A. agent who had taken that statement, Elton testified in accord with the statement that he and Amos had indeed beaten Coho. (Defendant's Exhibit 2 at 26-27, 29-33).

On February 11, 1981, the grand jury returned the instant second degree murder indictment charging that the defendant, an Indian, in the dependent Indian community of Ramah in Indian Country in New Mexico, did unlawfully kill James Coho, another Indian, with malice aforethought, in violation of 18 U.S.C. Sec. 1153 and Sec. 1111. Defendant moved both before and after trial for dismissal of the indictment on grounds of pre-indictment delay, prosecutorial misconduct before the grand jury, and invalid jury selection procedures. On both occasions the trial court held evidentiary hearings and denied defendant's motions. (II R. 1-80; V R. 491-550).

The case was tried to a jury. The version of the facts outlined above implicating Amos Pino in the kicking and beating of Coho was basically from the testimony of Wilfred Martine and Vance Jake. Elton Pino did not testify at the trial of his brother, Amos Pino.

Defendant Amos Pino took the stand at trial and testified that on October 6, 1978, he was at the bar and the group drank beer and also from three pints of "Thunderbird" wine they had. (Id. at 373, 422). Amos testified that they left the bar about five o'clock p.m.; after riding around, Amos went up on a hill, came back down and saw Elton had blood on his nose and shirt and hat (IV R. 396); Amos helped Elton get on Amos's horse; Amos saw Martine, but left Martine behind and Amos and Elton went to their aunt's place, and later that night, on to their parents' home. Amos vigorously denied attacking Coho at any time or seeing him injured; he said that at the time he last saw Coho, Coho was riding back toward the bar. (Id. at 407, 428).

Defendant's and Elton's sisters, Jean Pino and Lisa Pat, and Albert Pat, Lisa's husband, testified that in early 1981, while they were at a friend's home with their parents and other family members present, Elton came in drunk and so violent that he had to be tied up. Elton stated that he had killed James Coho. Jean Pino testified that Elton said "Go ahead and tell on me. I did it." (IV R. 344-45, 348-49, 351-52). Jean Pino further testified that Elton, while drunk, had approached her at a state fair in October 1978 and said he had killed James Coho, stating: "I killed him." (IV R. 341-43).

The jury returned a verdict of guilty against defendant Amos Pino on the lesser included offense of involuntary manslaughter. Defendant was sentenced to three years' imprisonment. (I R. 90, 135; V R. 548).

II

Defendant first contends that the delay of approximately twenty-eight months from the time of his offense until the indictment was returned violated his Fifth Amendment due process rights. ⁵

The Supreme Court has held that although a defendant's primary protection against the Government's prosecution of overly stale criminal charges is the statutes of limitations, the Fifth Amendment's Due Process Clause does have a "limited role to play in protecting against oppressive delay." United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977).

Under Marion and Lovasco we have applied a two-part due process test to identify oppressive pre-indictment delay violative of the Fifth Amendment:

[T]he rights of a defendant under the due process clause of the Fifth Amendment are not violated in the absence of a showing of actual prejudice resulting from the preindictment delay and that the delay was purposefully designed to gain tactical advantage or to harness the...