United States v. Red Feather, CR73-5176.

• Decision Date: 07 April 1975
• Docket Number: No. CR73-5176.,CR73-5176.
• Citation: 392 F. Supp. 916
• Parties: UNITED STATES of America v. Geneva RED FEATHER et al.
• Court: U.S. District Court — District of South Dakota

392 F. Supp. 916

UNITED STATES of America v. Geneva RED FEATHER et al.

No. CR73-5176.

United States District Court, D. South Dakota.

April 7, 1975.

COPYRIGHT MATERIAL OMITTED

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

Wounded Knee Legal Defense/Offense Comm., Council Bluffs, Iowa, for defendant.

MEMORANDUM OPINION

BOGUE, District Judge.

The United States of America in its motion entitled Motion In Limine moves this Court to order counsel for the defendants to be restricted from making statements about, or introducing any evidence in any form, or in any other manner referring to (1) the loan and/or sale of military equipment to the Department of Justice used in its operations during the occupation in 1973 of Wounded Knee, South Dakota; (2) the presence of Department of Defense observers at Wounded Knee; and (3) any other involvement in 1973 of the Department of Defense at Wounded Knee, South Dakota.

Each of the defendants is charged by indictment with violating 18 U.S.C. § 231(a)(3) which provides:

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.

In order to meet its burden under 18 U. S.C. § 231(a)(3), the government must prove beyond a reasonable doubt each of the following elements:

1. That a civil disorder existed at the time the defendant was arrested;

2. That such civil disorder interfered 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 committed or attempted to commit any 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 act or attempt to act was done willfully and knowingly.

The government's Motion In Limine, under consideration here, is concerned only with the third element listed above and presents the general question: What evidence is relevant and material to prove or disprove that "law enforcement officer(s)" were "lawfully engaged in the lawful performance of (their) official duties" under 18 U.S.C. § 231(a)(3).

Statutory authority clearly establishes the lawfulness of the activities of the United States marshals, agents of the Federal Bureau of Investigation, and other federal civil authorities present at the occupation of Wounded Knee in 1973. 18 U.S.C. § 3052 provides:

The Director, Associate Director, Assistant to the Director, Assistant Directors, inspectors, and agents of the Federal Bureau of Investigation of the Department of Justice may carry firearms, serve warrants and subpoenas issued under the authority of the United States and make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.

18 U.S.C. § 3053 provides:

United States marshals and their deputies may carry firearms and may make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.

28 U.S.C. § 570 provides:

A United States marshal and his deputies, in executing the laws of the United States within a State, may exercise the same powers which a sheriff of the State may exercise in executing the laws thereof.

S.D.C.L. § 7-12-1 (1967) provides:

The sheriff shall keep and preserve the peace within his county, for which purpose he is empowered to call to his aid such persons or power of his county as he may deem necessary. He must pursue and apprehend all felons, and must execute all writs, warrants, and other process from any court or magistrate which shall be directed to him by legal authority.

S.D.C.L. § 7-12-1 (1967), combined with 28 U.S.C. § 570, grants to United States marshals equal standing and authority with South Dakota sheriffs to "keep and preserve the peace" and "pursue and apprehend all felons."

The four statutes cited above unquestionably provided the United States marshals and agents of the Federal Bureau of Investigation with full authority to be present and to undertake the law enforcement activities which occurred during the occupation at Wounded Knee. The government must, of course, adduce other evidence to prove the third element of the charge beyond a reasonable doubt, but the statutory authority does provide a permissive presumption that the law enforcement officers were "lawfully engaged" and that they "lawfully" performed their "official duties" of making arrests, preserving the peace, and containing the occupiers of Wounded Knee while negotiations ensued. By use of the term permissive presumption, this Court simply means that the jury will be permitted but will not be required to accept the existence of the presumed fact, even in the complete absence of contrary evidence. Neither the burden of persuasion nor the burden of proof shifts to the defendants. Such a presumption in the absence of contrary evidence could be deemed sufficient to withstand a motion for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure. This type of inference or permissive presumption simply leaves the jury free to accept or reject as it sees fit.

The defendants may choose to adduce evidence at trial to contradict the government's proof in an effort to prevent the government from proving this element beyond a reasonable doubt. Any evidence that the United States marshals or agents of the Federal Bureau of Investigation or other law enforcement officers violated the defendants' constitutional rights, for example, violation of the Fourth, Fifth or Sixth Amendments in the manner of arrest or search or in any other stage, is clearly relevant and material to this element of the offense. Although such proof may not be relevant or material to the first clause of the element, i. e. that "law enforcement officer(s)" were "lawfully engaged", such proof is relevant to the second clause of the element, i. e. that law enforcement officers were performing their official duties lawfully. It is fundamental that if the law enforcement officers performed official duties such as arrest and search in violation of the defendants' constitutional rights, the law enforcement officers would clearly not be performing their official duties lawfully. The evidence gathered in violation of the defendants' constitutional rights could be subjected to the exclusionary rule by this Court and such evidence would be unavailable to the government to prove its case beyond a reasonable doubt.

The government's Motion In Limine anticipates the defendants' plan to adduce evidence to show that the United States marshals and agents of the Federal Bureau of Investigation on duty at Wounded Knee during the 1973 occupation were not performing their official duties lawfully for the reason that their conduct is unlawful under 18 U.S.C. § 1385. This statute provides:

Whoever, except in cases and under circumstances 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 not more than $10,000 or imprisoned not more than two years, or both.

The government's claim that defendants plan to introduce evidence that the United States marshals and agents of the Federal Bureau of Investigation used the United States Army or Air Force, contrary to 18 U.S.C. § 1385, as a posse comitatus or otherwise to execute the laws, raises the following specific issue: whether evidence of military involvement during the occupation of Wounded Knee, irregardless of the degree or character of such involvement, is relevant and material and therefore admissible to show that federal law enforcement officers were not lawfully performing their official duties under 18 U.S.C. § 231(a)(3).

In the motion under consideration the government incorporated by reference the trial transcripts and documentary evidence of United States of America v. Jaramillo, 8 Cir., 510 F.2d 808; United States of America v. Sturdevant, 8 Cir., 510 F.2d 808; United States of America v. Means, Appellate Nos. 74-1676 and 74-1677; United States of America v. Banks, Appellate Nos. 74-1678 and 74-1679. The United States believes these transcripts fully identify the participation of the Department of Defense at Wounded Knee and establishes the testimony which would be obtained if testimony were taken in the instant cases regarding the role of the Department of Defense at Wounded Knee. The defendants agree that these transcripts contain much of the same evidence that would be offered in the remaining non-leadership Wounded Knee cases which contain an 18 U.S.C. § 231(a)(3) charge, but claims that additional evidence exists of military involvement which will be offered at trial.

The evidence of military involvement contained in the transcripts, in essence, falls into the following categories: use by federal civil law enforcement officers of material and equipment furnished by the United States Army and the South Dakota National Guard; the presence of United States Army personnel who were ordered to Wounded...