US v. Atkinson

• Decision Date: 05 February 1996
• Docket Number: No. CR 95-30013.,CR 95-30013.
• Citation: 916 F. Supp. 959
• Parties: UNITED STATES of America, Plaintiff, v. Philip Henry ATKINSON, a/k/a Phillip Henry Creek, a/k/a Philip Henry Stands, Waylon Eric Duran, and Miguel J. Duran, Defendants.
• Court: U.S. District Court — District of South Dakota

916 F. Supp. 959

UNITED STATES of America, Plaintiff, v. Philip Henry ATKINSON, a/k/a Phillip Henry Creek, a/k/a Philip Henry Stands, Waylon Eric Duran, and Miguel J. Duran, Defendants.

No. CR 95-30013.

United States District Court, D. South Dakota, Central Division.

February 5, 1996.

Mikal G. Hanson, Asst. U.S. Atty., Pierre, SD, for plaintiff.

Bernard E. Duffy, Ft. Pierre, SD, for Philip Atkinson.

Anita Lynne Fuoss, Murdo, SD, for Waylon Eric Duran.

Robert T. Hiatt, Pierre, SD, for Miguel J. Duran.

KORNMANN, District Judge.

Defendants were charged with kidnapping, assault with a deadly weapon, and assault resulting in serious bodily injury. At the conclusion of the government's case, defendant Miguel J. Duran's ("Miguel") motion for judgment of acquittal was granted with respect to the charge of kidnapping. All other motions for judgment of acquittal were denied or a ruling was reserved. The jury convicted defendant Philip Stands ("Philip") of kidnapping, assault with a deadly weapon, and assault resulting in serious bodily injury. The jury convicted Waylon Duran ("Waylon") of assault with a deadly weapon and assault resulting in serious bodily injury. The jury convicted Miguel of assault resulting in serious bodily injury.

Defendants have moved for judgment of acquittal or, in the alternative, for a new trial on the grounds of insufficiency of the evidence, insufficiency of the indictment, or lack of jurisdiction.

JURISDICTION

The defendants contend the Court lacks jurisdiction over this case because the prosecution did not prove that the site of the crime was ever "Indian country". The jury was instructed:

Section 1151 of Title 18, United States Code, provides in part that: The term "Indian country" ... means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

At trial, Larry Marshall, an employee of the Rosebud Sioux Tribe's land management office, using an aerial photograph and a plat from his office, testified that the site was on tribal trust land. He also, as a lay person, testified to a different version, namely that the site in question was not "Indian country." The exhibits used by Mr. Marshall were received into evidence and submitted to the jury who also heard his testimony.

Defendants were charged under 18 U.S.C. § 1153, which extends to federal courts jurisdiction over certain major crimes committed by Indians in Indian country. The burden is on the government to prove, as a jurisdictional requisite, that the major crime was committed by an Indian in Indian country. United States v. Torres, 733 F.2d 449, 454 (7th Cir.1984), United States v. Jewett, 438 F.2d 495, 497 (8th Cir.1971).

The locus of the offense is an issue for the trier of fact. United States v. Gipe, 672 F.2d 777, 779 (9th Cir.1982). The government produced evidence that the site in question was on tribal trust land. While there is no doubt that better evidence could have been submitted, admission of secondary evidence is within the broad discretion of the trial court. United States v. Jewett, 438 F.2d at 497.

With respect to each offense, the jury was instructed that one of the essential elements was that the act took place within Indian country. To return a verdict of guilty, the jury had to find such to be true beyond a reasonable doubt. In rendering its guilty verdict, the jury made such a finding. United States v. Eder, 836 F.2d 1145, 1147 (8th Cir.1988). Since evidence was submitted and the jury was properly instructed as to the burden of proof and the necessary elements, which included jurisdiction, the motions for judgment of acquittal based on lack of jurisdiction are denied.

SUFFICIENCY OF SUPERSEDING INDICTMENT

The defendants contend the superseding indictment was insufficient because of a variance in the description of the site location in it and the evidence elicited at trial. A variance in proof is important only if it affects the substantial rights of the accused. Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935). The requirement that the allegations and the proof must correspond is based upon the concepts that the accused shall be definitely informed as to the charges so he is able to present his defense and not be taken by surprise at the trial, and also, that the accused may be protected against another prosecution for the same offense. Id.

In this case, all defendants were clearly informed of the charges against them, and capably presented their defenses. All prosecution witnesses were effectively cross-examined and evidence in the defendants' behalf was submitted. There was no confusion as to the understanding of the charges. By the same token, another prosecution for the same offense could not be maintained. The crimes are clearly identified so as to warrant a dismissal of any attempt for a second prosecution. The superseding indictment was sufficient, and the motions for judgment of acquittal based on insufficiency are denied.

The indictment charged that the kidnapping occurred at the site of the assault. Federal Rule of Criminal Procedure 7(c) provides in part that the "indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." "An indictment is sufficient if it informs the defendant of the charge and permits him to plead his conviction as a bar to another prosecution." United States v. Key, 717 F.2d 1206, 1210 (8th Cir.1983).

"The sufficiency of an indictment should be determined by practical, as distinguished from purely technical, considerations. Does it, under all the circumstances of the case, tell the defendant all that he needs to show for his defense, and does it so specify that with which he is charged that he will be in no danger of being a second time put in jeopardy? If it does do, it should be held good."

United States v. Matzkin, 14 F.3d 1014, 1019 (4th Cir.1994).

The United States Supreme Court held in Chatwin v. United States that the Federal Kidnapping Act has two elements:

the kidnapped victim shall have been (1) "unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away by any means whatsoever" and (2) "held for ransom or reward or otherwise."

Chatwin v. United States, 326 U.S. 455, 459, 66 S.Ct. 233, 235, 90 L.Ed. 198. The superseding indictment charged these two elements. Information about the place of the kidnapping is merely to establish jurisdiction. "The federal crime of kidnapping `continues as long as the victim is held.'" United States v. Morales, 11 F.3d 915, 921 (9th Cir.1993) (O'Scannlain, C.J., concurring), United States v. Garcia, 854 F.2d 340, 343 (9th Cir.1988). Therefore, regardless of where the inveigling or decoying occurred in this case, the crime continued to the spot where Torrez was assaulted. The superseding indictment as a practical matter was sufficient in establishing the jurisdiction of this court over the kidnapping count.

KIDNAPPING

Whether the crime of kidnapping is a proper legal indictment under the facts of this case is a more perplexing issue. The evidence at trial showed that Philip's common law wife by Indian tradition, Candida, was found by a police officer in an injured condition in the early morning hours. She reported no crime to the police. She told Philip she had been assaulted. Philip stated that he was going to cut the guy who raped his wife. Philip went on a systematic search, finally learned the first name of the alleged attacker, and eventually drove to Torrez' house in Rosebud. Philip, who had never met Torrez, invited Torrez to get into his vehicle to go drinking under the ruse that the two were blood relatives. Philip told Torrez he was going to show him some ancestral family land since they were related. Philip, Waylon, Dale Stands, Miguel and Torrez went to Candida's house in Horse Creek for Philip's purpose of having her identify Torrez as her attacker. Candida, by peeking out a window, at the insistence of Philip, identified Torrez as her attacker. The five men proceeded to White River to pawn jewelry to obtain money to buy more beer. After obtaining beer, Philip drove out of White River and off the road on a trial to a secluded area where the men got out of the car and continued to drink beer. Philip selected the site, believing they were not in "Indian country" and thus not subject to federal jurisdiction. Philip approached Torrez from behind and hit him in the back of the head with a club. Walyon joined in and the two continued to beat Torrez. Waylon removed Torrez' clothing, and defendants left Torrez badly injured, either unconscious or dead, in a remote area and with the weather cold. He managed to survive and made his way to the road where he was picked up the following day.

The Federal Kidnapping Act provides in part:

Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when ... any such act against the person is done within the special maritime and territorial jurisdiction of the United States ... shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.

18 U.S.C. § 1201(a)(2). History shows:

This statute was drawn in 1932 against a background of organized violence. Kidnapping by that time had become an epidemic in

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