United States v. Redstone

• Decision Date: 03 December 1973
• Docket Number: No. 73-1221 to 73-1224.,73-1221 to 73-1224.
• Citation: 488 F.2d 300
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Emerson David REDSTONE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dale REDSTONE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

488 F.2d 300 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Emerson David REDSTONE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Dale REDSTONE, Defendant-Appellant.

Nos. 73-1221 to 73-1224.

United States Court of Appeals, Eighth Circuit.

Submitted September 12, 1973.

Decided December 3, 1973.

Benjamin C. Pulkrabek, Bismarck, N. D., for appellant Dale Redstone.

C. J. Schauss, Mandan, N. D., for appellant Emerson Redstone.

Lynn E. Crooks, Asst. U. S. Atty., Fargo, N. D., for appellee.

Before GIBSON and BRIGHT, Circuit Judges, and TALBOT SMITH, Senior District Judge.^*

TALBOT SMITH, Senior District Judge.

The case before us arises out of the stabbing of one Kerry Brunette, allegedly by the Redstone brothers, appellants, and defendant Patrick George Kills Crow. Following jury trial they were convicted in the United States District Court for the District of North Dakota of assault with a dangerous weapon, in violation of 18 U.S.C. § 113(c). Kills Crow and Dale Redstone were sentenced to two years' imprisonment; Emerson Redstone was sentenced to imprisonment for twenty months. Dale Redstone and Emerson Redstone also received concurrent sentences of two years and twenty months, respectively, for violation of the terms of their probation in a previous case. The present appeals are brought by the Redstone brothers from the judgments of conviction and from the orders revoking their probation.

Two issues, broadly stated, are presented by these appeals: 1) whether the site of the offense lay within the territorial jurisdiction of the United States; and 2) whether the trial court prejudicially erred in allowing Dale Redstone's wife to testify, albeit in a limited fashion, as a witness for the prosecution.

I.

Jurisdiction of the district court was stipulated by the parties as follows:

It is stipulated among the parties that this crime, if it was committed at all, was committed within the boundaries of the Fort Lincoln Military Reservation, also known as the United Tribes Training Center, and that the same is under the exclusive jurisdiction of the United States of America.

Appellants now urge that the district court, in fact, lacked jurisdiction. Because subject matter jurisdiction cannot be waived by the parties, conferred by consent or the lack of jurisdictional basis ignored by the court, we examine the question. Baker v. Riss & Co., 444 F.2d 257 (8th Cir. 1971); Babcock & Wilcox Co. v. Parsons Corp., 430 F.2d 531 (8th Cir. 1970); Roberson v. Harris, 393 F.2d 123 (8th Cir. 1968); Chicago, Burl. & Quincy R. R. v. Willard, 220 U.S. 413, 31 S.Ct. 460, 55 L.Ed. 521 (1911).

In order for an offense to fall within the confines of 18 U.S.C. § 113, it must occur "within the special maritime and territorial jurisdiction of the United States * * *."

"Territorial jurisdiction" is defined elsewhere as, inter alia, "any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building." 18 U.S.C. § 7(3).

In 1895 North Dakota enacted a statute consenting to purchase of lands for certain purposes by the federal government. The statute, still in effect, reads:

The legislative assembly consents to the purchase or condemnation by the United States of any tract within this state for the purpose of erecting forts, magazines, arsenals, and other needful buildings, upon the express condition that all civil process issued from the courts of this state, and such criminal process as may issue under the authority of this state against any person charged with crime, may be served and executed thereon in the same manner and by the same officers as if the purchase or condemnation had not been made. 10 N.D.C.C. § 54-01-07.

During the same year, a companion statute,¹ also in force to the present day, was enacted ceding jurisdiction to lands acquired by the federal government for military posts.

The offense in question occurred at the United Tribes Training Center, located on the Fort Lincoln Military Reservation in Burleigh County, North Dakota. Fort Lincoln was built on property purchased from Thomas and Sarah J. Mellon by the federal government in 1898. In view of the foregoing statutes, then, it is plain that the offense occurred within the territorial jurisdiction of the United States.

It is true that 40 U.S.C. § 255 provides that "unless and until the United States has accepted jurisdiction over lands hereinafter to be acquired * * *, it shall be conclusively presumed that no such jurisdiction has been accepted." But the presumption against acceptance of jurisdiction in § 255 is applicable only to land acquired subsequent to the 1940 amendment. United States v. Johnson, 426 F.2d 1112 (7th Cir. 1970), cert. denied, 400 U.S. 842, 91 S. Ct. 86, 27 L.Ed.2d 78 (1970); Markham v. United States, 215 F.2d 56 (4th Cir. 1954), cert. denied, 348 U.S. 939, 75 S. Ct. 360, 99 L.Ed. 735 (1955); United States v. Heard, 270 F.Supp. 198 (W.D. Mo.1967). Prior to 1940, acceptance was apparently presumed in the absence of evidence to the contrary. Humble Pipe Line Co. v. Waggonner, 376 U.S. 369, 84 S.Ct. 857, 11 L.Ed.2d 782 (1964).

The fact that the land leased to the United Tribes Training Center by the federal government is no longer used for military purposes is irrelevant. Humble Pipe Line Co. v. Waggonner, supra; Arlington Hotel Co. v. Fant, 278 U.S. 439, 49 S.Ct. 227, 73 L.Ed. 447 (1929); Benson v. United States, 146 U.S. 325, 13 S.Ct. 60, 36 L.Ed. 991 (1892); cf. United States v. Heard, supra. Jurisdiction has been established.

II.

Early in the trial it became apparent that the government intended to call Dale Redstone's wife, Corstella Redstone, as a witness for the prosecution, and that Dale Redstone, in that event, would claim his privilege to exclude adverse spousal testimony. Accordingly, the trial judge held an evidentiary hearing out of the presence of the jury to determine the validity of the marriage. Following the presentation of evidence by both sides, the court ruled "that there is, in fact, a marriage; that the privilege does exist; that the privilege of Mr. Dale Redstone has not been waived, and that this witness may not testify against Dale Redstone." In response to the ruling, the government proposed to limit Mrs. Redstone's testimony to the activities of Emerson Redstone and Kills Crow. Dale Redstone objected to the government's suggested procedure on the ground that any testimony of his wife, however limited, would prejudice him. Emerson Redstone and Kills Crow objected on the ground that they were entitled to the benefit of Dale Redstone's privilege excluding his wife's testimony and on the ground that her truncated testimony, limited as suggested, would leave the jury with the false impression that only two defendants were present at the Redstone home the night of the offense.

At the evidentiary hearing's end, the trial judge concluded:

My approach is going to be this: * * * I\'m going to leave Dale Redstone in this trial until I hear how the testimony comes out. If at that point I determine * * * that the testimony of Mrs. Redstone is relevant and * * * "has substantial influence or is reasonably likely to have substantial influence on the jury," then I\'m going to declare a mistrial of Mr. Redstone * * *.

Shortly before Mrs. Redstone was to be called to the witness stand, counsel and all three defendants met with the trial judge in chambers. The court presented the following instruction which he proposed to read to the jury before Mrs. Redstone testified:

Corstella Redstone is called by the United States and her testimony may be considered only as evidence affecting the charges against Emerson Redstone and Patrick George Kills Crow. Her evidence may not be considered by you with reference to the charges against Dale Redstone, her husband. She has been instructed to limit her testimony to the conduct of Emerson Redstone and Patrick George Kills Crow. If she should fail to limit it, you are instructed to disregard any testimony she may give insofar as it bears on the charge against Dale Redstone.

Emerson Redstone and Kills Crow immediately renewed their objection that a false impression would be left with the jury if Mrs. Redstone limited her testimony. The trial court conceded that possibility and agreed to confine himself "to an instruction that the jury is to disregard any testimony she may give insofar as it bears on the charge against Dale Redstone."

Mrs. Redstone was called as a witness, and Dale Redstone objected on the ground of "the husband and wife privilege." The remaining defendants objected "for the reasons stated in Chambers." The court overruled the objections of Emerson Redstone and Kills Crow, found that "the Defendant Dale Redstone is entitled to the benefit of the husband-wife privilege," and instructed the jury as follows:

Mrs. Corstella Redstone has been called by the United States and her testimony may be considered only as evidence affecting the charges against Emerson Redstone and Patrick George Kills Crow. Her testimony may not be considered by you with reference to the charge against Dale Redstone, her husband.

Mrs. Redstone then testified to the activities of Emerson Redstone and Kills Crow at her home the night of the offense. At one point she testified that she had witnessed the two defendants hitting the victim, Kerry Brunette. She also testified that Kills Crow had told her that same evening that Emerson Redstone had stabbed Brunette.

Brunette followed Mrs. Redstone on the witness stand. He testified that all three defendants had beaten him while he was visiting the Redstone home, and that Mrs. Redstone had tried to stop them.

At the close of the government's case, all three defendants moved to strike Mrs. Redstone's testimony. The trial court denied the motion, stating:

At this stage it is my feeling

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