United States v. Kills Plenty, 71-1661.

• Decision Date: 13 September 1972
• Docket Number: No. 71-1661.,71-1661.
• Parties: UNITED STATES of America, Appellee, v. Percy KILLS PLENTY, Appellant,
• Court: U.S. Court of Appeals — Eighth Circuit

466 F.2d 240 (1972)

UNITED STATES of America, Appellee, v. Percy KILLS PLENTY, Appellant,

No. 71-1661.

United States Court of Appeals, Eighth Circuit.

Submitted May 10, 1972.

Decided September 13, 1972.

John J. Simpson, Winner, S. D., for appellant.

Edward Carpenter, Asst. U. S. Atty., William F. Clayton, U. S. Atty., Sioux Falls, S. D., Robert D. Hiaring, Asst. U. S. Atty., for appellee.

Before MATTHES, Chief Judge, and HEANEY and STEPHENSON, Circuit Judges.

MATTHES, Chief Judge.

The root question in this criminal case is centered on the doctrine of collateral estoppel. The operative facts are important.

Percy Kills Plenty, appellant, is an Indian. On September 5, 1970, he was driving an automobile in Indian country within the Rosebud Indian Reservation. The automobile collided with another motor vehicle proceeding in the opposite direction. Raymond Matthew Good Kill, a passenger in appellant's automobile, sustained injuries which proved fatal. A criminal complaint was filed on September 11, 1970, in the Rosebud Sioux Tribal Court, by "Rosebud Sioux Tribe, Plaintiff," charging appellant with driving while under the influence of intoxicating liquor in violation of Section 2.7 of Chapter 12 of the revised law and order code of the Rosebud Sioux Tribe.¹ A jury trial in the Rosebud Sioux Tribal Court on January 18, 1971, resulted in appellant's acquittal.

On May 21, 1971, an indictment was filed in the United States District Court for the District of South Dakota charging that appellant had committed involuntary manslaughter in violation of 18 U.S.C. §§ 1112 and 1153.²

The case came on for trial September 23, 1971. At the outset of the proceedings, appellant's counsel moved for dismissal of the charge on the grounds of double jeopardy or collateral estoppel. Counsel reasoned that involved in the manslaughter charge was the element of driving while intoxicated, that this issue had been litigated in the tribal court, and that appellant had been acquitted of that offense and therefore could not be tried for manslaughter because intoxication was an integral part of the manslaughter charge. The government resisted the motion and it was denied. During the arguments prior to the court's ruling, the United States Attorney stated, inter alia, "It is the government's position that it is not necessary for the government to establish that Mr. Kills Plenty was, in fact, intoxicated in order to establish the offenses sic as set out in the indictment . . ." This statement prompted appellant's counsel to move to strike from the indictment the following clause: "by operating or driving a motor vehicle while under the influence of intoxicants." This motion also was denied.

There was evidence pro and con bearing upon appellant's condition immediately prior to and following the collision. Some witnesses testified that they smelled alcohol in and about appellant's automobile. The testimony of others indicated that appellant was not intoxicated. The doctor who examined appellant in the hospital where he had been taken for treatment of the injuries he had suffered was of the opinion that appellant was intoxicated.

From other evidence the jury could find that appellant operated his automobile on the left or wrong side of the highway and into collision with the oncoming automobile and thus committed an act in an unlawful manner. Appellant attempted to persuade the jury to believe he turned to his left because he was blinded by the lights of an automobile approaching him on his side of the highway.

In submitting the case to the jury the court instructed that the essential elements of involuntary manslaughter are:

(1) The unlawful killing of a human being without malice;

and

(2) "That such killing was done in the commission of a lawful act which might produce death and that such act was done either in an unlawful manner or without due caution or circumspection."

Additionally, the court instructed "that it is unlawful to operate a motor vehicle upon a public highway while in a state of intoxication." The jury returned a verdict finding appellant guilty as charged.

From the judgment of conviction committing appellant to imprisonment for two years this appeal was taken.

Seeking an outright reversal and discharge, appellant advocates strongly and with conviction that this case falls within the ambit of the doctrine of collateral estoppel. Appellant argues, as he must in order to prevail, that the controlling issue litigated in this case was whether he drove and operated his automobile while intoxicated, an issue which he says was foreclosed and settled by his acquittal on the same charge in the tribal court. Appellant also submits, as he must if he is to obtain the relief sought, that the Rosebud Sioux Tribal Court and the United States District Court are arms of the same sovereign, i. e., the United States. The government takes issue with both of appellant's premises, asserting first that driving while intoxicated and involuntary manslaughter are separate and distinct offenses and next that the tribal court and the United States District Court cannot be considered arms of the same sovereign. In support of the former contention, the government argues that the ultimate factual issue litigated in the tribal court was that of legal intoxication, whereas the ultimate question in the federal prosecution was whether appellant had committed involuntary manslaughter within the meaning of the applicable statutes. The government contends further that mere admission of evidence regarding intoxication is insufficient to bar this prosecution under the doctrine of collateral estoppel.

The rule of collateral estoppel is "simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). Thus for collateral estoppel to bar a criminal prosecution, two factors must be present: (1) both adjudicatory entities must be arms of the same sovereign and (2) a factual issue essential to the first verdict must be an essential element of the second charge. In order to prevail in the present case, appellant must persuade the court that (1) the tribal courts and federal district courts are arms of the same sovereign and (2) the question of intoxication, which clearly was resolved in the first trial, is an essential element of involuntary manslaughter. This he has failed to do.

We pretermit discussion of the troublesome contention that tribal courts and United States District Courts derive their adjudicatory powers from the same sovereign.³ It is our conclusion that the collateral estoppel contention advanced in this case may be disposed of on the government's alternative position. Whether or not the tribal court and the federal court are arms of the same sovereign, we are not persuaded that the two cases share an ultimate factual issue. The sole question in the tribal court was whether appellant had been intoxicated while operating his automobile. The essential and decisive question in the federal district court was whether appellant had committed involuntary manslaughter as defined statutorily. See note 2, supra. The question of whether appellant had been intoxicated at the time of the collision clearly was not of ultimate significance in the latter case. Cf. United States v. DeMarrias, 441 F.2d 1304, 1306 (8th Cir. 1971). We hold therefore that this prosecution is not barred by collateral estoppel.

Remaining for our consideration are appellant's contentions that (1) he was denied equal protection and due process because the district court refused to order defense witnesses subpoenaed pursuant to Rule 17(b), Fed.R.Crim.P., and (2) he was prejudiced by improper argument of the United States Attorney. Neither claim is meritorious.

Appellant sought, by pretrial motion, to subpoena 27 witnesses. All but eight of the 27 were subpoenaed at the expense of the United States. The court's reason for declining to order subpoenas for the other 8 witnesses was fully delineated in a letter to appellant's counsel. The court took pains in this letter to point out that appellant was unable to give the court any satisfactory reason for having the 8 witnesses brought into court, and that appellant had been unable to inform the court as to whether the witnesses had information which would have been relevant to the charge and of assistance to appellant's defense.

It is settled beyond doubt that the issuance of subpoenas under Rule 17(b) is a matter within the sound discretion of the court. United States v. Morris, 451 F.2d 969, 971-972 (8th Cir. 1971); Slawek v. United States, 413 F.2d 957, 959-960 (8th Cir. 1969); Terlikowski v. United States, 379 F.2d 501, 507-508 (8th Cir. 1967). We find no abuse of discretion. In this connection it is significant to note that of the 19 witnesses subpoenaed appellant called only six. No explanation of why the remaining 13 were not used has been brought to our attention.

Finally, we find nothing improper in the closing argument of the United States Attorney. We are satisfied that what was said did not in the least prejudice the appellant or influence the jury in arriving at its verdict of guilty.

Finding no error, we affirm the judgment of conviction.

HEANEY, Circuit Judge (dissenting).

I would reverse the appellant's conviction and remand the matter to the District Court for a new trial, because the same parties relitigated the issue of intoxication in violation of the constitutional principle of collateral estoppel. See, Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

It is undisputed that the issue of intoxication was litigated in both the Tribal and District Courts, but it is argued that the principle of collateral estoppel is inapplicable because intoxication is not an essential element of the crime of...