U.S. v. Roy

• Decision Date: 20 May 2005
• Docket Number: No. 04-2310.,04-2310.
• Citation: 408 F.3d 484
• Parties: UNITED STATES of America, Appellee, v. Michael P. ROY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

408 F.3d 484

UNITED STATES of America, Appellee, v. Michael P. ROY, Appellant.

No. 04-2310.

United States Court of Appeals, Eighth Circuit.

Submitted: December 14, 2004.

Filed: May 20, 2005.

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Timothy Joseph Langley, Federal Public Defender, argued, Sioux Falls, SD, for appellant.

Thomas J. Wright, Asst. U.S. Attorney, argued, Sioux Falls, SD, for appellee.

Before WOLLMAN, LAY, and COLLOTON, Circuit Judges.

WOLLMAN, Circuit Judge.

Michael P. Roy was convicted of one count of assault with a dangerous weapon in violation of 18 U.S.C. § 113(a)(3) (count 1), one count of assault resulting in serious bodily injury in violation of 18 U.S.C. § 113(a)(6) (count 2), and two counts of assaulting a federal officer in violation of 18 U.S.C. § 111 (counts 3 and 4). The district court sentenced him to three concurrent ninety-month terms of imprisonment. On appeal, Roy argues that the district court: (1) incorrectly ruled that the victim of his assault qualified as a federal officer; (2) erred in refusing to grant his motion to force the government to elect between or consolidate counts 3 and 4 of his indictment; (3) improperly admitted a videotape of his booking; (4) possessed insufficient evidence on which to apply a five-level enhancement for infliction of bodily injury under United States Sentencing Guidelines Manual (U.S.S.G.) § 2A2.2(b)(3)(E) (2003); and (5) computed his sentence based on facts not found by the jury, in violation of his Sixth Amendment rights. We affirm in part and reverse in part.

I.

In the early morning hours of May 19, 2003, Scott Van Roekel, a member of the Flandreau City Police Department and who, as set forth below, was also acting as a member of the Flandreau Santee Sioux Tribal Police Department, responded to a disturbance call on the Flandreau Santee Sioux Reservation in Flandreau, South Dakota. According to Van Roekel's dispatcher, an individual named Michael Roy was vandalizing the duplex of Glen Rederth, a fellow resident of Roy's housing development.

Upon arriving at the scene in his marked police cruiser, Van Roekel observed Roy walking back toward his duplex from Glen Rederth's duplex. After spotting Van Roekel, Roy ran into his duplex. Van Roekel then asked Roy about the vandalism, speaking to him through an open window in the duplex. Roy responded by repeatedly telling Van Roekel that he was going to kill him, occasionally adding that he possessed a shotgun. Van Roekel then contacted Flandreau City and Flandreau Santee Sioux Tribal Chief of Police Kenneth James and requested that he come to the scene. After James's arrival, both officers continued to try to persuade Roy to exit his duplex. Roy again threatened to kill both officers. He specifically stated that he was going to kill "you white people,"¹ and additionally made threats against James's daughter. Roy also told the officers that they could not enter his home without a search warrant.

Approximately five minutes later, Roy exited his duplex and began raising his arms up and down and yelling in a Native American dialect. James instructed Van Roekel to apprehend Roy, and Van Roekel began to run in Roy's direction. Roy spotted Van Roekel and, despite Van Roekel's repeated commands to stop, ran into his duplex and closed his door behind him. Van Roekel then kicked the door open and entered the darkened duplex. Roy and Van Roekel immediately began to struggle, and Van Roekel executed a leg sweep in order to bring Roy to the floor. During this confrontation, Van Roekel felt a sharp pain in his abdominal region. Van Roekel nevertheless continued to subdue Roy and, with James's assistance, eventually succeeded in handcuffing him. In the process of subduing Roy, both James and Van Roekel noticed that Roy had dropped a large pocketknife.

Roy continued his verbal abuse of the officers after being handcuffed, adding that the officers could not do this to him. Eventually, the officers placed Roy in Van Roekel's police cruiser. Van Roekel then examined his abdominal region and discovered a two- to three-inch cut in his stomach above the navel, from which some three inches of material protruded.

Roy was subsequently charged in a fourcount indictment. Prior to trial, Roy argued before the magistrate judge that: (1) the government could not properly indict him for assaulting a federal officer because Van Roekel did not qualify as such; and (2) the government should have been required to elect between or consolidate the two counts of assaulting a federal officer because the two counts were multiplicitous. The magistrate judge denied both motions. Roy then successfully sought to extend his time to object to the magistrate judge's report and recommendation until ten days after the completion of his trial. See D. Ct. Order of October 31, 2003, at 1; Fed.R.Crim.P. 45(b)(1)(A). At trial, Roy was convicted on all four counts. The district court later denied Roy's objections to the magistrate judge's report and recommendation, which effectively reasserted the positions Roy had taken before the magistrate judge. See D. Ct. Order of February 10, 2004, at 1.

At sentencing, the district court applied a five-level enhancement to Roy's base offense level, finding that the injury inflicted upon Van Roekel fell between the sentencing guidelines' definitions of "serious bodily injury," which mandated a four-level enhancement, and "permanent or life-threatening bodily injury," which mandated a six-level increase. See U.S.S.G. § 2A2.2, cmt. n. 1 (2003); U.S.S.G. § 2A2.2(b)(3)(E) (2003). The district court also imposed a four-level enhancement based upon Roy's use of a dangerous weapon and a three-level enhancement based upon its finding that Roy knew or had reasonable cause to believe that Van Roekel was a law enforcement officer at the time of the assault. See U.S.S.G. §§ 2A2.2(b)(2)(B) (use of a dangerous weapon), 3A1.2(b)(1) (assault of law enforcement officer) (2003). When added to Roy's base offense level of 15, these enhancements resulted in a total offense level of 27. The total offense level, in combination with Roy's criminal history category (Category II), resulted in a guidelines range of 78 to 97 months. The district court sentenced Roy to 90 months on each of counts 1 and 2 and 90 months to cover both counts 3 and 4, all terms to run concurrently.

II.

A.

Roy first argues that counts 3 and 4 of his indictment should have been dismissed because the government failed to prove that Van Roekel was a federal officer, for purposes of 18 U.S.C. § 111, at the time of the incident. Roy raised his objections in a pretrial motion before the magistrate judge, a motion at the close of evidence, and a post-trial objection to the magistrate judge's report and recommendation.

Section 111(a)(1) proscribes assaults on any person identified in 18 U.S.C. § 1114 "while engaged in or on account of the performance of official duties." Such persons include "any officer or employee of the United States or of any agency in any branch of the United States Government."² 18 U.S.C. § 1114. Whether an officer in Van Roekel's position, i.e., an officer of the Flandreau City and Flandreau Santee Sioux Tribal Police Department, qualifies as a federal officer is a "threshold legal question" for the court. United States v. Bettelyoun, 16 F.3d 850, 853 (8th Cir.1994). Whether Van Roekel himself was such an officer, as well as whether he was engaged in official duties at the time of the incident, are questions of fact for the jury. Id.

The Secretary of the Interior (Secretary), through the Bureau of Indian Affairs (Bureau), is charged with providing or assisting in the provision of law enforcement services on Indian lands. 25 U.S.C. § 2802(a). In connection with this responsibility, the Secretary "may charge [Bureau] employees with a broad range of law enforcement powers." United States v. Schrader, 10 F.3d 1345, 1350 (8th Cir. 1993); 25 U.S.C. § 2803. In addition to utilizing Bureau employees, "[t]he Secretary may enter into an agreement for the use... of the personnel or facilities of a Federal, tribal, State, or other government agency" to assist in the provision of law enforcement services in Indian Country. 25 U.S.C. § 2804(a). The Secretary may authorize an officer of the agency contemplated by such an agreement "to perform any activity the Secretary may authorize under section 2803." Id. "When acting under such authority, `a person who is not otherwise a Federal employee shall be considered to be an employee of the Department of the Interior'" for purposes of 18 U.S.C. §§ 111 and 1114. Schrader, 10 F.3d at 1350 (quoting 25 U.S.C. § 2804(f)).

For calendar year 2003, the Secretary and the Flandreau Santee Sioux Tribe entered into a contract for the provision of law enforcement services. Such contracts are known as "638 contracts," referring to the public law number that authorized them. Id. One of the Flandreau Santee contract's stated purposes was "[t]o provide a joint Law Enforcement Agreement between the City [of Flandreau] and Flandreau Santee Sioux Tribe." To that end, the contract stipulated that "[t]he Flandreau Police Department shall provide law enforcement services for all lands within the boundaries of the City of Flandreau and on all trust lands under the jurisdiction of the [Flandreau Santee Sioux] Tribe."

Our first task, like that of the district court, is to determine whether the 638 contract, taking into account the manner in which it delegates the Bureau's law enforcement authority, is sufficient to authorize officers of the Flandreau City Police Department to exercise the Bureau's law enforcement functions under 25 U.S.C. § 2804(a). Bettelyoun, 16 F.3d at 853. We hold that it is. Although the contract does not expressly delegate the Bureau's law enforcement functions to the Flandreau Santee Sioux Tribe, to be passed in turn to the Flandreau City Police Department, section 2804(a) imposes no...