U.S. v. Wynde

• Decision Date: 24 July 1978
• Docket Number: No. 77-1930,77-1930
• Citation: 579 F.2d 1088
• Parties: UNITED STATES of America, Appellee, v. Theodore Duane WYNDE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1088

579 F.2d 1088

UNITED STATES of America, Appellee, v. Theodore Duane WYNDE, Appellant.

No. 77-1930.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 13, 1978.

Decided June 26, 1978.

Rehearing and Rehearing En Banc Denied July 24, 1978.

Drew C. Johnson (argued), Maloney, Kolker, Fritz, Hogan & Johnson, filed briefs, Aberdeen, S.D., for appellant.

David V. Vrooman, U. S. Atty., Sioux Falls, S.D., for appellee.

Before HEANEY and STEPHENSON, Circuit Judges, and BECKER, ^* Senior District Judge.

WILLIAM H. BECKER, Senior District Judge.

This is an appeal from a judgment of conviction of the appellant (defendant) Wynde by a jury in the United States District Court for the District of South Dakota. ¹ The defendant was convicted of a violation of § 922(h), ² Title 18, United States Code (§ 922(h)), prohibiting receipt, by a convicted felon, of a firearm previously shipped or transported in interstate commerce.

§ 922(h) is a part of the Gun Control Act of 1968, Pub.L. No. 90-618 (Oct. 22, 1968), 3 U.S.Code, Cong. and Admin.News, 90th Congress, Second Session, p. 4410, Title I, § 102, 82 Stat. 1216, which amended the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351 (June 19, 1968), 2 U.S.Code, Cong. and Admin.News, 90th Congress, Second Session, p. 2112, Title IV, § 902, 82 Stat. 228.

Material Facts

On July 7, 1977, a Federal Grand Jury returned an indictment charging the defendant with a violation of § 922(h). The defendant pleaded not guilty to the charge of the indictment, but thereafter was found guilty by the verdict of the jury (R. 194). The defendant filed post-trial motions for judgment of acquittal and, in the alternative, for a new trial (T. ³ 2). The court denied these motions (PT. ⁴ 122-125). This appeal followed.

The evidence viewed in the light most favorable to the appellee follows.

Counsel for both parties stipulated that the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year, specifically, that on August 5, 1971, the defendant was convicted in a South Dakota Circuit Court of assault with a dangerous weapon without the intent to kill (R. 4).

On December 7, 1976, the Four Seasons Sports Center, in Webster, South Dakota, received a Model 190 Winchester .22 rifle, serial number 1963117, from the Northland Sports and Supply of Minot, North Dakota (Government's Exhibits 2 & 3; R. 7-11). This serial number is unique among Winchester firearms (R. 112). On May 16, 1977, Earl Evans purchased the same rifle at the Four Seasons Sports Center (R. 14). At the request of Jean Wynde, wife of the defendant, Evans loaned the rifle to Jean Wynde on May 31, 1977 (R. 16, 130). Jean Wynde borrowed the rifle in order that Nicco, one of her sons, could shoot gophers (R. 129-130). Evans laid the firearm in the back end of a blue Ford station wagon belonging to Jean Wynde (R. 17, 131-132). During the period May 31 to June 2, 1977, no one used the rifle in the presence of Jean Wynde (R. 130).

At approximately 12:00-12:30 a. m., June 2, 1977, Robert J. Hopkins (Hopkins) went from Don's Bar to the Fireside Bar, both in Waubay, South Dakota (R. 37-38). Between 12:30 and 1:00 a. m., Hopkins returned to Don's Bar and bought a case of beer (R. 40). Hopkins then invited the defendant, Jean Wynde, Harriet Keeble, and Charles Owen (all of whom were at the Fireside Bar) to drink the beer with him later that evening (R. 26, 40). Hopkins and the defendant put the beer in Jean Wynde's station wagon, locked the doors, and rolled up the windows of the station wagon (R. 40).

That morning at approximately 1:00 to 1:30 a. m., before the closing of the Fireside Bar, Hopkins, the defendant, Jean Wynde, Harriet Keeble, and Charles Owen went to Jean Wynde's station wagon (R. 24-25). There they discovered that the right front window of the station wagon had been broken, and that the beer had been stolen (R. 26-27). Someone said that Kenny Fayant and Russell Owen had taken the beer (R. 27). Harriet Keeble testified that Hopkins told them that Wilford Fayant's two sons had done it (R. 59-60). The defendant was upset; he said "we was going to get whoever did it" (R. 27, 53-54, 156). The defendant, Jean Wynde, Hopkins, Keeble, and Owen got into the station wagon ⁵ and drove to the home of Wilford Fayant (Fayant), father of Kenny Fayant (R. 28-29). The defendant was the driver (R. 27).

They arrived at the Fayant residence at 6:00 a. m. The defendant stopped the station wagon about 150 to 200 yards from the house (R. 28-29, 44). Hopkins testified that the defendant took the rifle from the front seat of the station wagon, loaded it with "shells" (cartridges), and fired a shot ⁶ at the Fayant house ⁷ (R. 30). Both the defendant and his wife testified that there were no other firearms in the car (R. 144-145, 166). Hopkins testified that the rifle, Government's Exhibit 3, resembled the rifle fired by the defendant (R. 33).

Fayant walked to the car and talked to the defendant. They argued (R. 31). Fayant told the defendant that he would pay for the broken window (R. 82). Fayant could tell that the defendant had been drinking (R. 86). He saw a .22 Winchester rifle lying across the defendant's lap (R. 83). ⁸

The defendant, sitting in the driver's seat, struck Fayant in the face (R. 32). Fayant turned and walked toward the house. The defendant again fired the rifle (R. 33). When this shot was fired, Fayant was opening the house door. The bullet struck the house approximately two feet from where Fayant was standing (R. 84).

That same morning, Kerry Nelson (Nelson), nephew of the defendant, saw the defendant in a trailer house at the Enemy Swim Housing, which is in an Indian District (R. 90-91). The defendant removed a rifle and jacket from the front seat of Jean Wynde's station wagon and gave them to Nelson (R. 91-92). Nelson testified that the rifle resembled Government's Exhibit 3 (R. 92). Nelson then took the firearm to the house of his grandmother, Vivian Wynde, the defendant's mother, where Nelson was staying, and put it under the bed in his bedroom (R. 92-93). That afternoon Nelson turned the rifle over to Mr. DeCoteau, a tribal officer (R. 94).

Again that same morning, Eugene H. Trottier, criminal investigator for the Bureau of Indian Affairs, received a radio message concerning the shooting, interviewed Fayant, and arrested the defendant at the Enemy Swim Housing pursuant to a complaint charging the defendant with assault with a dangerous weapon, a violation of §§ 1153 and 113(c), Title 18, U.S.C. (R. 97-98; Appellee's Br., p. 5). Trottier removed seven empty cartridge cases from the front seat of Jean Wynde's station wagon (R. 98-99). Subsequently, he and Officer DeCoteau recovered the rifle, Government's Exhibit 3, at the Vivian Wynde residence. The rifle had five cartridges in it, and was free of fingerprints (R. 100, 104-105). Richard Schmidt, Special Agent of the F.B.I. and a firearms identification specialist in a F.B.I. Laboratory, testified that the cartridge cases found in the station wagon had been fired from the rifle (R. 109, 111). Mr. Schmidt also testified that Winchester did not have a firearms manufacturing plant in South Dakota (R. 112).

On or about October 25, 1977, after the defendant was found guilty by verdict of the jury, Vivian Wynde, the defendant's mother, asked Ms. Fern Mathias, who worked for the Wounded Knee Legal Defense-Offense Committee and for the Sisseton Indian Education Committee, to help in her son's defense (PT. 70-71, 102). Drew C. Johnson, counsel for the defendant, also requested the assistance of Ms. Mathias (PT. 102). The brother of Ms. Mathias, Milton Eastman, gave her copies of F.B.I. and B.I.A. (Bureau of Indian Affairs) reports containing pre-trial interviews with the witnesses (PT. 92).

The same day, Ms. Mathias asked several of the witnesses if the reports accurately related what they had told the law enforcement authorities. Ms. Mathias made "findings" that were then conveyed to the defendant's counsel, Drew C. Johnson; Mr. Johnson prepared six affidavits for execution by Vivian Wynde, Milton Eastman, Charles Owen, Harriet Keeble, Hopkins, and Fayant, based upon the "findings" of Ms. Mathias. On November 2, 1977, these affidavits were executed, filed, and served in support of the hearing of the defendant's post-trial motions (PT. 93-94; Appellee's Br., p. 9). The post-trial motions accused Assistant United States Attorney Bruce Boyd, F.B.I. Agent Bryan Mogen, and B.I.A. Agency Special Officer Eugene Trottier of investigative and prosecutorial improprieties (PT. 16, 31, 36-37; Appellee's Br., p. 9). Upon motion of the Government, the court granted a continuance in order to permit an investigation of these accusations (T. 18-19; Appellee's Br., p. 9).

David V. Vrooman, United States District Attorney for the District of South Dakota, instructed David G. Flanders, Assistant Special Agent in charge of the Minneapolis Division of the F.B.I., to interview the six original affiants under oath concerning the truthfulness of the statements made in their affidavits. Mr. Flanders interviewed and obtained signed sworn statements from Bruce Boyd, Bryan Mogen, and Eugene Trottier, and from five of the original affiants, Vivian Wynde, Milton Eastman, Charles Owen, Hopkins, and Fayant (PT. 3-4, Appellee's Br., p. 10). Harriet Keeble, the sixth original affiant, was interviewed and asked by Mr. Flanders to make a sworn statement, but she refused to comply with the request.

Resumed post-trial hearings were held on December 2, 1977. David V. Vrooman, who had not participated in the trial, represented the Government at the resumed post-trial hearings. The sworn statements obtained by F.B.I. Agent Flanders were received in evidence. These sworn statements refuted the material allegations made in affidavits submitted by the defense counsel at the November 2, 1977, hearing (PT. 21, 24-25, 31-32, 37-38; Appellee's Br....