United States v. Holder, 74-5098 to 74-5100.
| Decision Date | 02 May 1975 |
| Docket Number | No. 74-5098 to 74-5100.,74-5098 to 74-5100. |
| Citation | 399 F. Supp. 220 |
| Parties | UNITED STATES of America, Plaintiff, v. Stanley HOLDER, Defendant. UNITED STATES of America, Plaintiff, v. Carter CAMP, Defendant. UNITED STATES of America, Plaintiff, v. Leonard CROW DOG, Defendant. |
| Court | U.S. District Court — District of South Dakota |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
William F. Clayton, U.S. Atty., Sioux Falls, S. D., R. D. Hurd and David R. Gienapp, Asst. U. S. Attys., for plaintiff.
Kenneth E. Tilsen, St. Paul, Minn., for Leonard Crow Dog.
Joseph Beeler, Coconut Grove, Miami, Fla., for Carter Camp.
Frances C. Schreiberg, Berkeley, Cal., Wounded Knee Legal Defense/Offense Committee, Council Bluffs, Iowa, for Stanley Holder.
This matter is before the court on defendants' resisted motion for determination of venue, or in the alternative, for transfer of venue, filed April 16, 1975.
These criminal prosecutions arise out of alleged unlawful activities by the three defendants during the "Wounded Knee Takeover," an incident occurring on the Pine Ridge Indian Reservation, South Dakota, between February 27, 1973 and May 8, 1973. The procedural history of these prosecutions is an essential ingredient to a comprehension of the issues posed by defendants' motions now pending in this court. A brief recitation of that procedural chronology follows.
On March 20, 1973, a federal grand jury in South Dakota returned identical nine-count indictments against defendant Carter Camp and four other individuals — Clyde Bellecourt, Pedro Bissonette, Russell Means and Dennis Banks.1 Charged in these indictments were eight substantive violations and one conspiracy offense.
Subsequently, additional indictments were returned against these five individuals on April 10, 1973, charging each of them with two more substantive counts.2 At the same time, eleven-count indictments were returned against defendants Stanley Holder and Leonard Crow Dog,3 each alleging verbatim the same offenses, except for naming the accused, as had been charged against the five aforementioned persons.
The seven defendants in these previous actions moved the court to consolidate their cases for trial. The Honorable Fred J. Nichol, Chief Judge of the District of South Dakota, ordered a joint trial of the cases against Means and Banks, but denied the motion with respect to the other defendants.
Review of this denial was sought in the 8th Circuit Court of Appeals through a petition for writ of mandamus. The petition was denied by the appellate court on August 29, 1973. However, the court entered a separate order directing that all seven cases be under the direct supervision of Chief Judge Nichol, the cases previously having been partially the responsibility of another judge in the District, the Honorable Andrew W. Bogue.
Upon motion of the defendants and a showing of prejudice against the defendants in South Dakota, Judge Nichol, by order of October 29, 1973, transferred venue pursuant to Rule 21(a), FRCrP, to St. Paul, Minnesota, in the cases against Means, Banks, Bellecourt, Camp, Holder, and Crow Dog.
Joint trial of Means and Banks commenced on January 8, 1974. One count of the indictments was dismissed prior to trial, United States v. Banks, 368 F. Supp. 1245, 1248 (D.S.D.1973), and judgment of acquittal was rendered by the court on five of the remaining substantive counts at the close of the Government's case. United States v. Banks, 383 F.Supp. 368 (D.S.D.1974).
During jury deliberations on the remainder of the case, one juror became ill and unable to continue. Citing the Government's refusal to consent to an eleven-member jury as another event in a cumulative series of Government misconduct during the trial, the court orally dismissed the remaining counts of the indictment on September 13, 1974. This ruling was supplemented with a written decision, United States v. Banks, 383 F. Supp. 389 (D.S.D.1974), from which an appeal was dismissed because the Double Jeopardy Clause prohibited review under the Criminal Appeals Act, 18 U.S.C. § 3731 (1970). United States v. Banks, 513 F.2d 1329 (8th Cir., 1975).
Meanwhile, on December 12, 1974, the three indictments involved in the instant cases were returned against defendants Holder, Camp, and Crow Dog by another grand jury in South Dakota.4 All defendants are charged in two identical counts,5 and defendants Camp and Crow Dog are each charged with a separate third count.6
The original four indictments against these defendants were dismissed on February 5, 1975, upon the Government's request pursuant to Rule 41(a), FRCrP. Subsequently, Judge Nichol recused himself from the cases now pending, and they have been assigned to the undersigned judge.
Defendants move the court to enter an order declaring venue to have been determined by the previous ruling of Judge Nichol to be in the District of Minnesota, Third Division, for the instant cases. Alternatively, the defendants ask for a transfer of venue under Rule 21(a), FRCrP, to the District of Minnesota. Defendants further request a hearing to present evidence in support of their motion.
The argument presented to bolster the defendants' first alternative request is that these proceedings, having been instituted by superseding indictments, are a continuation of the former prosecutions. Venue for trial of the charges alleged in the previous indictments had been set in the District of Minnesota. That ruling, it is urged, is the law of the case, should not be overturned by a coordinate judge, and furthermore should bar relitigation under the principle of collateral estoppel. It is the court's view that defendants' position on this aspect of their motion is not well taken.
In a federal criminal case, the Constitution of the United States imparts to the accused a right to a trial in the vicinage of the crime. Specifically, Art. III, Sec. 2 provides in part:
"The Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed. . . ."
And the Sixth Amendment provides in part:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . .."
However, concurrently with the right to a trial in the state and district where the offense was committed, the Sixth Amendment also guarantees the right to an impartial jury. Singer v. United States, 380 U.S. 24, 36, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965). The right to a fair trial before an impartial tribunal is a fundamental ingredient of due process. In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955); United States v. McNally, 485 F.2d 398, 402 (8th Cir. 1973).
The due process right to a fair trial inures to the benefit of an accused in a federal trial through the Fifth Amendment, Jones v. Gasch, 131 U.S.App.D.C. 254, 404 F.2d 1231, 1234 (1967); Vandergrift v. United States, 313 F.2d 93, 96 (9th Cir. 1963), and in a state trial through the Fourteenth Amendment. Estes v. Texas, 381 U.S. 532, 534-35, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Irvin v. Dowd, 366 U.S. 717, 721-22, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Pretrial publicity may so infuse prejudice into the populace from which a jury is to be drawn as to violate this right to a fair trial. Irvin v. Dowd, supra; Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963).
It is in the interplay between these two constitutional rights that Rule 21(a), FRCrP,7 comes into prominence. The Rule provides a procedural device for the defendant to waive his right to a trial in the place where the crime was committed in order to maximally protect his right to a fair and impartial hearing. United States v. Marcello, 280 F. Supp. 510 (E.D.La.1968), aff'd 423 F. 2d 993 (5th Cir. 1970), cert. denied, 398 U.S. 959, 90 S.Ct. 2172, 26 L.Ed.2d 543 (1970).
A transfer for trial under Rule 21(a) can only be made upon motion by the defendant and a showing by him to the court's satisfaction that he cannot obtain a fair trial at any court point in the district. McNally, supra at 403; Marcello, supra at 513-14. The prejudice shown by the defendant must relate to the improbability of obtaining a fair hearing at the time of trial on the charges in the pending case. United States v. Partin, 320 F.Supp. 275, 279-80 (E.D.La.1970). And the determination to transfer under this Rule cannot be made until an indictment or information stating the charges is on record. In re Investigation of World Arrangements, etc., 107 F.Supp. 628, 630 (D.D. C.1952); mandamus denied sub nom. In re Texas Co., 201 F.2d 177, cert. denied, 344 U.S. 904, 73, S.Ct. 283, 97 L. Ed. 698 (1952).
Here the defendants argue that the indictments currently on record are a mere continuation of the former proceedings because the charges are essentially the same as some charges contained in the previous indictments and further that the charges arise from the same set of factual events which led to the charges in the earlier indictments. It is argued that Counts I and II of the present indictments were included in paragraph 3 of Count IX, the conspiracy count, in the original indictments as part of an allegation relating the scope of the conspiracy. In the court's opinion, the substantive charges in the current indictments are not identical with or a mere continuation of the conspiracy count in the now-dismissed indictments.
Count III in defendant Camp's pending indictment is identical with Count III of the original indictment except that the name of the assaulted FBI agent has been changed. This too appears to the court as a substantial change in the offense charged. However, Count III of Crow Dog's current indictment is substantially the same as Count I of the previous indictment, the only change being a one day difference in the date of the alleged offense. See Stewart...
To continue reading
Request your trial
-
U.S. v. Crow Dog
...these same men and that venue was still in St. Paul, Minnesota, pursuant to Judge Nichol's earlier transfer order. United States v. Holder, 399 F.Supp. 220 (D.S.D.1975). The government's motion to consolidate was granted by the court on May 12, On May 27, 1975, a hearing on the motions rega......
-
U.S. v. Stratton
...denied, 420 U.S. 990, 95 S.Ct. 1424, 43 L.Ed.2d 671 (1975); see United States v. Means, 409 F.Supp. 115 (D.S.D.1976); United States v. Holder, 399 F.Supp. 220 (D.S.D.1975); see also Margoles v. United States, 407 F.2d 727 (7th Cir.), cert. denied, 396 U.S. 833, 90 S.Ct. 89, 24 L.Ed.2d 84 (1......
-
U.S. v. Campa
...how the charged crime reinforced "deeply-rooted passions" and "deeply-held prejudice" within the community, United States v. Holder, 399 F.Supp. 220, 227-28 (D.S.D.1975), how the charged crimes related to the community reputation, United States v. Wheaton, 463 F.Supp. 1073, 1078 (S.D.N.Y. 1......
-
State v. Thomas
...in venue did not decide whether a fair trial could be obtained in Jackson County at the time of the second motion. See U. S. v. Holder, 399 F.Supp. 220, 227 (W.D.S.D.1975). Defendant also contends that, after his first indictment, his "rights to counsel, to compulsory process and to confron......