United States v. McArthur

• Decision Date: 23 June 1976
• Docket Number: Crim. No. Cl-75-27 to Cl-75-34.
• Citation: 419 F. Supp. 186
• Parties: UNITED STATES of America, Plaintiff, v. Richard Dean McARTHUR.
• Court: U.S. District Court — District of South Dakota

419 F. Supp. 186

UNITED STATES of America, Plaintiff, v. Richard Dean McARTHUR.^*

Crim. No. Cl-75-27 to Cl-75-34.

United States District Court, D. North Dakota, Southwestern Division.

October 17, 1975.

As Amended June 23, 1976.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Keith E. Uhl, Sp. Asst. U. S. Atty., Des Moines, Iowa, for plaintiff.

Kenneth Tilsen, St. Paul, Minn., Joseph Beeler, Miami, Fla., for defendants.

VanSICKLE, District Judge.

The Defendants have been indicted for attempting to interfere with United States Marshals and Federal Bureau of Investigation agents at Wounded Knee, South Dakota, during occupation of that village by American Indian Movement members or supporters.

Trial has been set to the Court on a stipulated set of facts. Transfer of the cases to the District of North Dakota was at the request of the Defendants, pursuant to Rule 21(b) of the Federal Rules of Criminal Procedure.¹

The indictments are under 18 U.S.C. § 231(a)(3), which states:

"Whoever commits or attempts to commit any act to obstruct, impede, or interfere with any fireman or law enforcement officer lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder which in any way or degree obstructs, delays, or adversely affects commerce or the movement of any article or commodity in commerce or the conduct or performance of any federally protected function—

Shall be fined not more than $10,000 or imprisoned not more than five years, or both."

The government recognized that these Defendants, if guilty, were guilty under that portion of the statute which addresses itself to attempts.

In order to find any of the Defendants guilty, it is necessary that the government establish beyond a reasonable doubt each and all of the following essential elements:

1. That a civil disorder existed at the time of any alleged violation;

2. That such civil disorder was resulting in interference with a federally protected function;

3. That one or more law enforcement officers were lawfully engaged in the lawful performance of their official duties incident to and during the commission of such civil disorder;

4. That the Defendant attempted to commit an act for the intended purpose of obstructing, impeding, or interfering, either by himself or with someone else, in a violent manner with such law enforcement officer or officers;

5. That such attempt to act was done willfully and knowingly.

See United States v. Jaramillo, 380 F.Supp. 1375, 1376, (D.Neb.1974), appeal dismissed, 510 F.2d 808 (8th Cir. 1975); United States v. Banks-Means, 383 F.Supp. 368 (D.S.D. 1974); United States v. Red Feather, 392 F.Supp. 916 (D.S.D.1975).

I find that at all times material to the issues in this case:

1. That a civil disorder existed, and

2. That such civil disorder was resulting in interference with a federally protected function.

As to: Cl-75-27 Richard Dean McArthur Cl-75-28 Melvin Lee Houston Cl-75-29 John Milford Thomas Cl-75-31 Lawrence Anthony Tennecour

They were arrested March 8, 1973, approximately 200 yards southwest of Roadblock No. 3. Thomas, Tennecour, and Houston attempted to flee after the initial order to halt. The four men, among themselves, had three shotguns and a .22 caliber rifle. They either gave no statements or gave statements indicating that they were simply in the area to see what was going on. None of the Defendants were residents of Wounded Knee. Tennecour indicated he had lived in Rapid City for about a month, but the residences of the other three are not established.

Do these facts establish an "attempt to obstruct" under the statute? The fact of an abortive attempt to flee is evidence pointing to guilt, but it, standing alone, is at best equivocal evidence. The fact that each carried a rifle or shotgun is again evidence, but at best equivocal. Both weapons are normal arms for people in that area to possess and to carry. And the evidence does not help me to decide whether the non-resident three were experienced in reservation life and reservation ways, and thus accustomed to weapons.

That the situation would draw the idle curious, and even idle curious who would arm themselves for self-defense or whatever, is understandable when we remember that on March 8, 1973, the civil disorder was only nine days old and receiving an increasing crescendo of news media exploitation.

Thus, I find that the proof as to these Defendants is equivocal, and the felony charge is not proved beyond a reasonable doubt.

Accordingly, these Defendants will be acquitted.

As to: Cl-75-33 Geneva M. Red Feather Cl-75-34 Joseph Bill Martina Ellen White Bear Sioux Casper

On April 25, 1973, these four persons were arrested by Bureau of Indian Affairs Patrolmen, about one and one-half miles northeast of Roadblock No. 5. At the time of arrest the persons were concealing themselves by lying in the grass. At the time of the arrest they had on or near their persons:

1 sealed tin of 800 rounds, 7.62 millimeter cartridges;

1 bolt action, 12 gauge shotgun with two shells in the magazine;

1 M1 Carbine, .30 caliber, Serial No. 7845, containing two magazines taped together with twenty-nine, .30 caliber rounds in each magazine and one .30 caliber round in the chamber.

1 cartridge belt containing eleven 12 gauge shotgun shells;

1 military type jacket containing several hundred .30 caliber cartridges;

1 cartridge belt containing twenty 12 gauge shotgun shells;

1 box containing six hundred nineteen .30 caliber cartridges.

Geneva M. Red Feather indicated she was attempting to walk into Wounded Knee for the purpose of transporting the guns and ammunition into Wounded Knee.

As to: Cl-75-32 Richard John Garnier

On March 20, 1973, at a point about 300 yards southeast of Roadblock No. 5, Federal Bureau of Investigation Agents arrested the Defendant and another person, after being alerted by an exchange of whistle sounds in the area. At the time of his arrest, Garnier had food and cigarettes near him and was armed with a .22 caliber rifle which had fourteen rounds in the magazine. Garnier indicated that he intended to take the supplies and rifle into Wounded Knee. He also stated several times, somewhat grandiloquently, that "I have come here to die anyway."

As to: Cl-75-30 Christopher Oliver Land

On March 10, 1973, the Defendant was arrested by Deputy United States Marshals patrolling between Roadblocks 4 and 8. (8 is not shown on the Court's exhibit.) At the time of his arrest, he had:

4 boxes of .22 caliber ammunition;

6 knives, not described further;

1 package of fireworks;

2 matchboxes containing several rounds of .22 ammunition.

The Defendant stated that he wanted to enter Wounded Knee in order to assist the Indians.

Defendants argue that since their conduct was interrupted, it remained in the stage of "preparation" and failed to amount to an "attempt." That was the English common law doctrine, but it is not the American common law doctrine. In the United States, the accused has been held to have passed "preparation" although he was interrupted before he took the last of his intended steps. Justice Holmes had discussed this problem in two Massachusetts cases while he was on the appellate bench. See cases cited in United States v. Coplon, 185 F.2d 629 (2nd Cir. 1950). Justice Holmes enlarged on the discussion in Holmes—The Common Law, p. 65 through p. 69. Justice Holmes said:

"Public policy, that is to say, legislative considerations, are at the bottom of the matter; the consideration being in this case, the nearness of the danger, the greatness of the harm, and the degree of apprehension felt."

I find that these Defendants did carry, on foot, surreptitiously, through a patrolled perimeter, arms and ammunition which had a substantial capacity to reach out and wound or kill. I find that they intended it for a center from which ammunition was being fired at law enforcement officers, which did wound. That is sufficient conduct to amount to an attempt.

The evidence also establishes the 4th and 5th elements of the crime; that is, the requisite, specific intent as to each Defendant.

18 U.S.C. § 231(a)(3) provides further the law enforcement officer who is the victim of the interference must be:

". . . lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder . . .."

Defendants urge that these law enforcement officers were not "lawfully engaged in the lawful performance of their official duties" because they received assistance in violation of the Posse Comitatus Act, 18 U.S.C. § 1385. The Posse Comitatus Act provides:

"Whoever, except in cases . . . expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined . . . or imprisoned . . ., or both."

Defendants argue that as part of the government's case, it must prove beyond a reasonable doubt that the law enforcement officers were "lawfully engaged in the lawful performance of their official duties," and that evidence of assistance in advice, personnel, and materiel by the military to the law enforcement officers, raises a question of whether the posse comitatus act was violated, thus raising a reasonable doubt on that issue.

Again, the third element of the crime charged, which the government must prove beyond a reasonable doubt is:

"3. That one or more law enforcement officers were lawfully engaged in the lawful performance of their official duties incident to and during the commission of such civil disorder;"

United States v. Jaramillo, supra, at p. 1376.

Or as Judge Urbom restated it:

". . . it is incumbent upon the court as fact finder to decide as a factual matter whether the performance of their duties by the law enforcement officers was lawful. More than that, the burden is upon the prosecution, before the defendants can be found guilty,

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