United States v. Wheeler

• Decision Date: 02 December 1970
• Docket Number: No. 23712.,23712.
• Citation: 434 F.2d 1195
• Parties: UNITED STATES of America, Appellee, v. Dewayne WHEELER, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

434 F.2d 1195 (1970)

UNITED STATES of America, Appellee, v. Dewayne WHEELER, Appellant.

No. 23712.

United States Court of Appeals, Ninth Circuit.

December 2, 1970.

Max F. Parrish (argued), of Parrish & Pincock, Pocatello, Idaho, for appellant.

Jay F. Bates (argued), Asst. U. S. Atty., Sherman F. Furey, Jr., U. S. Atty., Boise, Idaho, for appellee.

Before MADDEN, Judge of the United States Court of Claims,^* and HAMLEY and ELY, Circuit Judges.

ELY, Circuit Judge:

Wheeler is an Indian. He was convicted of the offense of rape by an Indian within an Indian reservation. 18 U. S.C. § 1153. On this appeal, Wheeler presents several contentions, and a variety of considerations, in combination, have impelled us to the conclusion that Wheeler is entitled to another trial.

The victim of the alleged rape was Wheeler's former wife, Carol Ann Diggie. Almost nine years before the incident in question, Mrs. Diggie and Wheeler had been divorced by the tribal court. Thereafter, she married Diggie and lived on the Fort Hall Reservation with him and their two children. On the night in question, Diggie and Wheeler encountered each other in a bar and drank intoxicants together until the bar was closed. Wheeler was extremely drunk when the men left the bar in the company of an unknown young lady. The trio met several companions with whom they proceeded to an outdoor area. About two o'clock in the morning, an argument occurred, and Wheeler was severely beaten by several members of the group. To escape from his assailants, he leaped into a nearby river and, by swimming and then walking, eventually found his way to the trailer home of the Diggies. His former wife was there alone with the sleeping children. It is far from clear what happened while Wheeler was in the trailer, but some time later he and Mrs. Diggie had sexual intercourse in a nearby field.

Mrs. Diggie's testimony was to the effect that Wheeler had entered the trailer belligerently and had been abusive toward her. She testified that he struck her several times, that he pushed her toward the bedroom, that she ran from the trailer looking for help, and that Wheeler caught her in the field and pulled her down. She claimed to have been temporarily stunned and to have awakened to find Wheeler on top of her. Although she, according to her testimony, was wearing a housecoat and pajamas with long pants, her former husband was able to remove her clothing and force entry over her "pleading." She also testified that it was the "pain" of Wheeler's first thrust that compelled her to lie quietly and to remain so throughout the union. Eventually, her husband arrived at the home in his automobile. She remained quiet, but immediately after the lights of her husband's vehicle were extinguished, she ran inside the trailer. Diggie did not at first believe her then statement to him that she had been forcibly raped, but she was apparently able to convince him, at last, that such was the fact.

As might be expected, Wheeler countered this testimony with an account that indicated consent on the part of his former wife. His version was that he, in a drunken and beaten condition, had gone to the home of his friend Diggie, seeking help. He then told of Mrs. Diggie's solicitude and of advances made by her as she reaffirmed her affection for him. There is the suggestion, of course, that the drunken Diggie, outraged over his wife's return, in disarray, himself inflicted whatever marks of violence appeared upon her.

In viewing the evidence in the light most favorable to the Government, as we are required to do, we cannot say that it, coupled with permissible inferences, was insufficient to support the conviction. See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L. Ed.2d 680 (1942). It would require somewhat less than ordinary human understanding, however, not to acknowledge that the convicting evidence is of doubtful strength. At the same time it was for the fact finder to determine if Wheeler, admittedly drunken and beaten, forced his former wife into the open field, raped her by force, and, by his penetration alone, caused her to remain silent as people passed close by.

Another consideration is that there was a major variance between one fact alleged in the indictment as an element of the offense and the elements as eventually outlined in the jury instructions. The indictment alleged...