U.S. v. Taken Alive, No. 07-1638.

CourtU.S. Court of Appeals — Eighth Circuit
Writing for the CourtRiley
Citation513 F.3d 899
PartiesUNITED STATES of America, Appellee, v. Ralph E. TAKEN ALIVE, Jr., Appellant.
Decision Date29 January 2008
Docket NumberNo. 07-1638.
513 F.3d 899
UNITED STATES of America, Appellee,
v.
Ralph E. TAKEN ALIVE, Jr., Appellant.
No. 07-1638.
United States Court of Appeals, Eighth Circuit.
Submitted: December 13, 2007.
Filed: January 29, 2008.

[513 F.3d 900]

Richard L. Russman, argued, Averdeen, SD, for appellant.

Thomas J. Wright, AUSA, argued, Sioux Falls, SD, for appellee.

Before RILEY, COLLOTON, and BENTON, Circuit Judges.

RILEY, Circuit Judge.


After a jury convicted Ralph. E. Taken Alive, Jr. (Taken Alive) of voluntary manslaughter, in violation of 18 U.S.C. §§ 1112 and 1153; assault with a dangerous weapon, in violation of 18 U.S.C. §§ 1153 and 113(a)(3); and assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1153 and 113(a)(6), the district court1 sentenced Taken Alive to 316 months' imprisonment. On appeal, Taken Alive contends (1) the district court erred in denying his motion to sever; (2) the district court also erred in denying his motion to dismiss counts one and two of the indictment; and (3) insufficient evidence supports the conviction as to count one, voluntary manslaughter. We affirm.

513 F.3d 901

I. BACKGROUND

Beginning in late 2005 and continuing into early 2006, Taken Alive was involved in a sexual relationship with Susan Bears Heart (Bears Heart). In early. February 2006, Bears Heart took an overnight trip with Justin Farrell (Farrell). Upon her return, Taken Alive confronted Bears Heart and asked if she and Farrell had sex, Bears Heart said no.

On February 9, 2006, Taken Alive, Bears Heart, Farrell, Farrell's brother Brian, and Jasper Iron Cloud (Iron Cloud) celebrated Iron Cloud's birthday, consuming a large quantity of alcohol. Taken Alive argued with Farrell about who was the better lover, in Bears Heart's presence. Farrell asked Bears Heart to sit on his lap while Taken. Alive was present, Farrell asserts that after the party broke up, Taken Alive and Farrell were alone when Taken Alive, without provocation or warning, .hit Farrell on the arms and face with a pipe or club. Eventually Farrell, bleeding profusely from his face, escaped, got in his car, and attempted to drive home. After a time, Farrell was forced to stop because he was dizzy. Farrell climbed into the car's backseat and dozed off.

A passerby noticed the car and called the police. Bureau of Indian Affairs Police Officer Jason Lawrence (Officer Lawrence) found Farrell in the car with a laceration and bump on his forehead and his clothes covered in blood. Farrell told Officer Lawrence that Taken Alive beat him up. Officer Lawrence called for an ambulance which transported Farrell to the hospital in Mobridge, South Dakota.

At the hospital, the treating nurse practitioner asked what had happened and Farrell reported Taken Alive beat him with a club. The nurse practitioner testified Farrell reported his pain as ten, on a scale of one to ten, and Farrell had several injuries including multiple lacerations to the forehead, swelling around the orbit of the right eye, and an immobile right wrist. X-rays confirmed Farrell had a continuous left frontal skull fracture extending to the left frontal sinus and a fractured right wrist. At trial, Farrell testified the beating had impaired his sense of smell.

On March 9, 2006, Taken Alive was traveling to his uncle's funeral with his cousin Waldo Red Fox (Red Fox), Clayton Elling (Elling) and Elling's girlfriend, Deb Looking Back (Looking Back). The' group acquired a half gallon of whiskey to drink during the trip from Mobridge, South Dakota, to Little Eagle, South Dakota. All four occupants were getting intoxicated. During, the trip, Elling twice commented he had beaten up Taken Alive's father, who was also Red Fox's uncle.

Before reaching Little Eagle, the travelers stopped outside of Little Eagle so the men could urinate. All the men exited the Car, leaving the heavily intoxicated Looking Back in the car. Red Fox confronted Elling about his comments, Elling pushed Red Fox, and Red. Fox then punched Elling in the face, Taken Alive pushed Red Fox aside and challenged Elling to "see if you can do to me what ... [you] did to my dad." Taken Alive and Elling began to wrestle near the car. As the fight continued, Red Fox returned to the car.

After five to ten minutes, Taken Alive returned to the car alone, entered the vehicle and drove away. Red Fox asked about Elling, and Taken Alive replied, "Shut the fuck up." Later, Red Fox asked Taken Alive if he had left Elling "in the water or if he knocked him out?" Taken Alive again replied, "Shut the fuck up." Elling was never seen alive again.

Later that day, an intoxicated Taken Alive went to the residence of his niece, Lexi Zephier (Zephier). Taken Alive proceeded to enter the residence, sat down, and watched television. Zephier testified

513 F.3d 902

Taken Alive was mumbling to himself and she heard him say, "I fucking kicked his ass." Zephier later reported these comments to Red Fox, who reported the statements to the FBI.

Still later that day, Taken Alive drove to his cousin Bridgett Taken Alive's (Bridgett) home. Bridgett testified Taken Alive, while riding in a car later that same day, admitted beating up Looking Back's boyfriend (Elling) earlier that day. Under cross examination, Bridgett twice stated she was sure Taken Alive said he, not Red Fox, beat up Elling earlier that day.

On March 17, 2006, eight days after the funeral, Officer Lawrence was notified Elling was missing, and no one had heard from Elling for more than a week. A search ensued which was hindered by two snow storms. Elling's body was found on March 23, 2006.

Forensic pathologist Donald Habbe (Dr. Habbe) performed Elling's autopsy. Dr. Habbe testified Elling's death was consistent with someone who had been disabled from an assault and then died of hypothermia. Elling suffered twenty-three rib fractures, which occurred on all sides of his body. Some of the fractured ribs were displaced, protruding into the chest area. Dr. Habbe testified...

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56 practice notes
  • U.S. v. Kirk, No. 07-3215.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • June 19, 2008
    ...is met. Thus, Rule 8 generally favors joinder "to promote the efficient administration of justice." United States v. Taken Alive, 513 F.3d 899, 902 (8th Cir.2008). Joint trials, on all counts of an indictment, are generally preferable for several reasons. First, separate trials necessarily ......
  • United States v. Blacksmith, CR. 14-50004-JLV
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • May 4, 2015
    ..."[Rule 8(a)] is broadly construed in favor of joinder to promote the efficient administration of justice." United States v. Taken Alive, 513 F.3d 899, 902-03 (8th Cir. 2008) (citing United States v. Little Dog, 398 F.3d 1032, 1037 (8th Cir.Page 52005); United States v. Rock, 282 F.3d 548, 5......
  • United States v. Recker, No. 12-CR-2027-LRR
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • March 1, 2013
    ...439 (8th Cir. 2010) (quoting United States v. McCarther, 596 F.3d 438, 441-42 (8th Cir. 2010)); see also United States v. Taken Alive, 513 F.3d 899, 902 (8th Cir. 2008) ("The rule is broadly construed in favor of joinder to promote the efficient administration of justice."). When determinin......
  • U.S. v. Casteel, No. 1:08-cr-00053.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • July 29, 2009
    ...another crime, the defendant does not suffer any additional prejudice if the two crimes are tried together." United States v. Taken Alive, 513 F.3d 899, 903 (8th Cir.2008) (internal quotations and citations omitted). On the other hand, "`a high risk of undue prejudice [exists] whenever ... ......
  • Request a trial to view additional results
56 cases
  • U.S. v. Kirk, No. 07-3215.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • June 19, 2008
    ...is met. Thus, Rule 8 generally favors joinder "to promote the efficient administration of justice." United States v. Taken Alive, 513 F.3d 899, 902 (8th Cir.2008). Joint trials, on all counts of an indictment, are generally preferable for several reasons. First, separate trials necessarily ......
  • United States v. Blacksmith, CR. 14-50004-JLV
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • May 4, 2015
    ..."[Rule 8(a)] is broadly construed in favor of joinder to promote the efficient administration of justice." United States v. Taken Alive, 513 F.3d 899, 902-03 (8th Cir. 2008) (citing United States v. Little Dog, 398 F.3d 1032, 1037 (8th Cir.Page 52005); United States v. Rock, 282 F.3d 548, 5......
  • United States v. Recker, No. 12-CR-2027-LRR
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • March 1, 2013
    ...439 (8th Cir. 2010) (quoting United States v. McCarther, 596 F.3d 438, 441-42 (8th Cir. 2010)); see also United States v. Taken Alive, 513 F.3d 899, 902 (8th Cir. 2008) ("The rule is broadly construed in favor of joinder to promote the efficient administration of justice."). When determinin......
  • U.S. v. Casteel, No. 1:08-cr-00053.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • July 29, 2009
    ...another crime, the defendant does not suffer any additional prejudice if the two crimes are tried together." United States v. Taken Alive, 513 F.3d 899, 903 (8th Cir.2008) (internal quotations and citations omitted). On the other hand, "`a high risk of undue prejudice [exists] whenever ... ......
  • Request a trial to view additional results

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