United States v. Kydney
| Decision Date | 05 September 2013 |
| Docket Number | 8:13CR165 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. SAMUEL P. KYDNEY, Defendant. |
| Court | U.S. District Court — District of Nebraska |
This memorandum supplements findings made on the record at trial on August 15, 2013. The court sustained the defendant's motion for a judgment of acquittal on Count I of the Indictment at the close of the government's case.
In Count I of the Indictment, the government charged that:
Filing No. 1, Indictment at 1.
In Count II of the Indictment, the government charged simple assault under federal law, as follows:
Filing No. 1, Indictment at 1.
The evidence at trial, viewed in the light favorable to the government, showed that the alleged victim, Christopher Jessen, acquired an eight-year lease on property on the Santee Sioux Reservation as the successful bidder at an auction sometime in November of 2012. The defendant, Samuel Kydney, and his mother, Grace Kydney, were the previous lessors and wished to remain tenants on the property. Jessen intended to farm the land, specifically, he intended to tear up the prairie hayfield on the property and farm it. Grace Kydney bid against Jessen at the auction.
Jessen testified he first met Sam Kydney when Kydney came to the Jessens' house to discuss his family's remaining on the property as tenants sometime in mid-December 2012. Jessen and his wife both testified it was a civil or cordial meeting. Jessen agreed to lease the house on the property to the defendant and his mother, but stipulated that he did not want animals on the property. He was concerned that livestock would get into his field and damage his crop. At that time, he estimated the Kydneys had about 30 goats, a couple of donkeys, and a horse. He later brought a lease agreement, containing a modified "no animals" provision, to the Kydneys' house for them to sign. Both the defendant and his mother signed the lease agreement.
Under the procedures in place for the acquisition of the property, Jessen was required to pay the former lessee, Grace Kydney, for improvements to the property.Jessen testified that he wrote a check for $2,900 to Grace Kydney, but it was somehow lost in the mail and she never received it. Jessen testified that he later agreed that the Kydneys could lease 14 acres and could keep some of the animals, but no goats, and in exchange, Jessen would keep the $2,900 he owed Grace Kydney. Jessen testified that he first told the Kydneys that they could not have animals on the property in mid-December of 2012, but set a deadline of March 1, 2013. He later extended the deadline to May 1, 2013.
He also testified that Grace Kydney told him she thought there was an Indian burial ground on the property. An individual from an archeological society inspected the property and said he couldn't find anything.
Between the time Jessen acquired the lease and the incident that is the subject of the indictment, Jessen had spoken to the defendant several times. First, when the defendant came to the Jessens' house to inquire about remaining on the property. Next, when Jessen brought the lease to the Kydneys for signature, and then on the first of each month when the defendant paid the rent until the modified lease was negotiated. He also testified that in late March of 2013, while tearing out trees on the hayfield, he saw the defendant target practicing near the Kydneys' house. Jessen testified they engaged in small talk at that time. He also testified that he had never seen the defendant on the farm ground without a weapon.
Jessen testified that on the day of the incident at issue, April 2, 2013, he was working the field near the Kydneys' house. He had sent a text message to Sam Kydney the previous night, telling Kydney to check on the goats, which apparently were having babies, because Jessen had seen several baby goats on the property. Jessen testifiedthat he did not tell the defendant to kill the goats. On April 2, 2013, he was doing dirt work in the field and cleanup from the earlier removal of trees. He saw the defendant walking up a hill carrying a gun. He stated he had not seen any goats that day. Jessen was in an enclosed tractor. He stated that he pulled up to the defendant and asked him what he was doing. The defendant replied that he had been told by his mother to go and kill every baby goat he could find. He stated they talked for a while and Jessen took off in his tractor in a southeasterly direction.
He then observed the defendant running "commando-style" across the field to the fence line. The defendant then turned and walked back. Jessen then heard six or seven shots and saw dirt kick up 40 yards to his right. When he looked back at the defendant, the defendant had his gun shouldered. Jessen testified the defendant raised the gun, pointed it directly at Jessen, and lowered it. The defendant later ran some distance and reached down and held up a bloody baby goat. Kydney then carried the baby goat back in the direction of his house and then sat on the hood of a car.
Jessen testified the defendant's gun appeared to be an AR style semiautomatic weapon. He stated that the proximity of the shots made him uncomfortable, "it was too close for comfort."
Jessen testified that he then went to find Roger Guenther, who was helping him with the work, and told Guenther something to the effect that Sam Kydney had been "shooting at a goat" and "kind of shooting in his general direction." Jessen and Guenther continued to work in the area for a while. Jessen stated that the defendant continued to hold the gun while sitting on the car. He stated that he and Guentherstayed about 15 minutes longer and then Jessen went home in his pickup and Guenther drove the tractor home.
On cross-examination, Jessen stated that the initial encounter with the defendant in December was civil, just talking back and forth, and neither party was angry. He testified that after the $2,900 was not delivered to Grace Kydney, he offered them more land to lease and agreed to let them keep a few animals in exchange for keeping the $2,900. He also stated that the Kydneys always paid their rent on time and it did not appear that the Kydneys had any problem with the arrangement.
Jessen testified he related the story to his wife, Michaela Jessen. She later testified, generally corroborating Mr. Jessen's testimony. Roger Guenther also testified. He stated that he heard shots and otherwise corroborated Mr. Jessen's testimony.
Federal Bureau of Investigation ("FBI") Agent Jeff Howard also testified. He stated he began his investigation after receiving information that a farmer named Chris Jessen reported that the defendant had pointed a gun at him and fired shots in his direction on the Santee Sioux Reservation. Agent Howard interviewed Chris Jessen and Roger Guenther over the phone and later executed a search warrant at the defendant's house. Agent Howard testified he conducted a five-minute interview with Jessen a few days after the incident and a fifteen-minute interview on April 22, 2013. Neither interview was recorded.
He stated that Jessen told him in the second interview that when the shots were fired, the defendant was 150 feet (50 yards) behind Jessen and 120 feet (40 yards) to his right. Agent Howard testified that Jessen specifically told him that the weapon thedefendant used was an AR15 .223 with a microdot scope. He also stated that a .223 has a much bigger caliber bullet than a .22. Further, he testified that Jessen did not tell him about having sent a text to Kydney the night before the incident. Jessen provided the copies of the texts to Agent Howard on or about July 22, 2013. Agent Howard did nothing in the way of further investigation after getting the copies of the texts.
As part of his investigation, he contacted the defendant's mother, who worked at the reservation casino, on April 19, 2013. At Agent Howard's request, she called her son and asked him to come to the casino. The defendant voluntarily came to the casino. The defendant was not told what the meeting was about.
Agent Howard conducted an interview with the defendant and recorded it. An audio-recording of those parts of the interview that relate to the charges was admitted into evidence and played for the court and the jury. See Exhibit ("Ex.") 12, audio-recording; Ex. 13, transcript. Agent Howard testified that Sam Kydney was cooperative, was not combative, and freely talked about what had happened.
In the interview, Kydney told the agent he was taking care of the goats with the gun and had no intention of shooting or threatening or scaring Mr. Jessen. Further, the defendant told Agent...
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