UNITED STATES of
America, Plaintiff/Respondent,
vs.
Leonard PELTIER, Defendant/Petitioner
Crim. No. C77-3003
(Civ. No. A3-82-60)
United States District Court For The District Of North Dakota, Southeastern
Division
553 F. Supp. 890, 1982 U.S. Dist. Decision
December 30, 1982
Rodney S. Webb, U.S. Atty., D.N.D., Fargo,
North Dakota, Evan L. Hultman, U.S. Atty., North Dakota, Iowa, Cedar Rapids,
Iowa, Richard Vosepka, Asst. U.S. Atty., D. Minnesota, Minneapolis, Minnesota,
Lynn E. Crooks, Asst. U.S. Atty., D.N.D., Fargo, North Dakota, for
plaintiff/respondent. William M. Kunstler, New York, New York, Michael E. Tigar
and John J. Privitera, Tigar, Buffone & Doyle, Washington, District of
Columbia, Bruce Ellison, Rapid City, South Dakota, for defendant/petitioner.
Benson, Chief Judge.
{F. Supp. 893} MEMORANDUM AND ORDER
BENSON, Chief
Judge.
Petitioner
Leonard Peltier has filed a motion to vacate judgment and for a new trial
pursuant to 28 U.S.C. § 2255.1
Petitioner Peltier, Robert Eugene Robideau, Darrell Dean Butler, and
James Theodore Eagle were charged in a two count indictment with the murders of
two Special Agents of the Federal Bureau of Investigation in violation of 18
U.S.C. §§ 2, 1111, and 1114. Robideau and Butler were jointly tried by a jury
and were acquitted. The charges against Eagle were dismissed by the government.
Subsequent to the Robideau-Butler trial, petitioner Peltier was tried by a
jury, was convicted on both counts, and was sentenced to life imprisonment on
each count, the sentences to run consecutively. The conviction was affirmed on
appeal. United States v. Peltier, 585 F.2d 314 (8th Cir.1978), cert. denied,
440 U.S. 945, 99 S. Ct. 1422, 59 L. Ed. 2d 634 (1979).
Petitioner,
through counsel, filed the § 2255 motion at issue here on April 20, 1982. The
matter was briefed extensively and came at issue on October 1. The motion was
filed subsequent to the receipt by petitioner‘s counsel of documents from the
government in a pending federal action filed under the Freedom of Information
and Privacy Acts, 5 U.S.C. §§ 552 and 552a. Peltier v. Department of
Justice, CA No. 79-2722 (D.D.C.). According to petitioner, this newly
discovered evidence indicates ”that the government engaged in deliberate
deception of this Court and the jurors by the presentation of known false
evidence and the suppression of exculpatory evidence in order to obtain a
conviction.“ Petitioner’s Motion to Vacate Judgment and for a New Trial
at 1, Peltier v. United States, Crim. No. C77-3003 (Civil No. A3-82-60)
(D.N.D. filed April 20, 1982). Petitioner claims that these actions by the
government violated his fifth amendment right of due process of law and
violated his sixth amendment right of confrontation and compulsory process.
Petitioner‘s
Motion to Vacate Judgment and for a New Trial is based almost exclusively upon
a claimed due process violation resulting from the alleged failure of the government
to disclose exculpatory evidence as required by Brady v. Maryland, 373
U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
The
nondisclosure of Brady materials is cognizable in a section 2255 motion.
Lindhorst v. United States, 658 F.2d 598, 601 {F. Supp. 894} n. 3
(8th Cir.1981), cert. denied, 454 U.S. 1153, 102 S. Ct. 1024, 71 L. Ed. 2d
310 (1982); Houser v. United States, 508 F.2d 509, 517-18 (8th Cir.1974).
Under Brady ”suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material to
either guilt or punishment, irrespective of the good faith or bad faith of the
prosecution.“ Brady v. Maryland, 373 U.S. at 87, 83 S. Ct. at 1196.
”Suppression“ in the context of Brady material has been held to mean
nondisclosure. Lindhorst v. United States, 658 F.2d at 605 n. 8, citing United
States v. Agurs, 427 U.S. 97, 106-07, 96 S. Ct. 2392, 2398-99, 49 L. Ed. 2d
342 (1976). See also Evans v. Janing, 489 F.2d 470, 475 (8th
Cir.1973).
Petitioner
specifically alleges nondisclosure of the following as Brady violations:
(1) a memorandum indicating that tests matching the .223 shell casing found in
the trunk of Agent Coler’s car with Peltier‘s AR-15 rifle were conducted with
negative results, and documents indicating that it is highly unlikely that the
government’s ballistics expert failed to study the .223 casing for several
months; (2) FBI reports demonstrating the involvement of other vehicles in the
incident, specifically a red pickup, a red Scout, a red jeep, and an orange and
white pickup; (3) documents indicating that it would be difficult, if not
impossible, for FBI Agent Frederick Coward, Jr., to have identified Peltier at
the scene through a high power rifle scope, given the distance and weather
conditions involved; (4) FBI teletype and memoranda indicating the existence of
conflicting pathology reports; (5) material gathered by the FBI during its
investigation inculpatory of several individuals not prosecuted for the deaths
of the agents; and (6) documents suggesting that persons other than those
identified to the jury were present at the scene during the confrontation.
In considering
petitioner‘s contention that he is entitled to a new trial, the focus must be
on the materiality, to either guilt or punishment, of the evidence alleged to
have been suppressed. In United States v. Agurs, 427 U.S. 97, 96 S. Ct.
2392, 49 L. Ed. 2d 342 (1976), the Supreme Court discussed the three quite
different situations to which Brady arguably applies. Each involves the
discovery after trial of information which had been known to the prosecution
but unknown to the defense. In the first situation, ”the undisclosed evidence
demonstrates that the prosecution’s case includes perjured testimony and that
the prosecution knew, or should have known of the perjury.“ United States v.
Agurs, 427 U.S. at 103, 96 S. Ct. at 2397 (footnote omitted). A conviction
obtained by the knowing use of perjured testimony is considered by the Court to
be ”fundamentally unfair“ and is to be set aside ”if there is any reasonable
likelihood that the false testimony could have affected the judgment of the
jury.“ Id. (footnote omitted). As summarized in United States v.
Runge, 593 F.2d 66, 73 (8th Cir.), cert. denied, 444 U.S. 859, 100 S.
Ct. 123, 62 L. Ed. 2d 80 (1979):
Where the use of known perjury involves
prosecutorial misconduct, it constitutes ”corruption of the truth-seeking
function of the trial process.“ The government may be responsible even if the
prosecutor did not actually know the testimony was perjured, but should have
known, or if he or she did not elicit false testimony, but allowed it to go
uncorrected when it appeared. Even false testimony which merely impeaches a
witness‘ credibility may require a new trial.
Id. (citations omitted). See Giglio v. United States, 405 U.S.
150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972); Napue v. Illinois,
360 U.S. 264, 269, 79 S. Ct. 1173, 1177, 3 L. Ed. 2d 1217 (1959); Lindhorst
v. United States, 658 F.2d 598, 602 (8th Cir.1981), cert. denied,
454 U.S. 1153, 102 S. Ct. 1024, 71 L. Ed. 2d 310 (1982). Petitioner argues that
this standard of materiality should be applied to evidence of ballistic tests,
other vehicles, and scope sighting, alleged to be newly discovered.
The second
situation discussed in Agurs to which Brady applies is
characterized by a pretrial request for specific evidence. United States v.
Agurs, 427 U.S. at 104, 96 S. Ct. at 2397. The standard of materiality when
{F. Supp. 895} a specific request has been made is whether ”the
suppressed evidence might have affected the outcome of the trial.“ Id. The
Court noted that
although there is, of course, no duty to
provide defense counsel with unlimited discovery of everything known by the
prosecutor, if the subject matter of such a request is material, or indeed if a
substantial basis for claiming materiality exists, it is reasonable to require
the prosecutor to respond either by furnishing the information or by submitting
the problem to the trial judge. When the prosecutor receives a specific and
relevant request, the failure to make any response is seldom, if ever,
excusable.
Id. at 106, 96 S. Ct. at 2398. Petitioner argues that this standard
of materiality should be applied to the evidence concerning the autopsy
reports, Jimmy Eagle and other suspects.
The third
situation to which Brady applies, according to the Agurs Court,
is where exculpatory information is possessed by the prosecution but unknown to
the defense attorney. In such cases the duty of the prosecutor is the same
whether defense counsel makes a general request or no request at all. If the
prosecutor fails to disclose the information and the omission is of sufficient
significance to result in the denial of defendant’s right to a fair trial the
prosecutor will have violated his constitutional duty of disclosure. However,
the mere possibility that an item of undisclosed information might have helped
the defense or might have affected the outcome of the trial does not establish
”materiality“ in the constitutional sense. The reviewing court must evaluate
the omission in the context of the entire record. If the omitted evidence
creates a reasonable doubt that did not otherwise exist, constitutional error
has been committed. If there is no reasonable doubt about guilt whether or not
the additional evidence is considered, there is no justification for a new
trial. Id. at 107-113, 96 S. Ct. at 2399-2402. Petitioner in this case
does not appear to be relying on this ”third situation“ application of Brady.
I. PERJURED
TESTIMONY
Petitioner has
not demonstrated that the prosecution‘s case, especially with regard to the
evidence of ballistics tests, other vehicles, or the scope sighting, included
perjured testimony and that the prosecutor knew or should have known of the
perjury.
A. Ballistics
Testimony of Special Agent Hodge
Relying upon
an alleged inconsistency between the trial testimony of Special Agent Evan
Hodge, a specialist in the Firearms and Tool Marks Identification Unit of the
Federal Bureau of Investigation (FBI), and a recently discovered FBI teletype,
petitioner has alleged that Special Agent Hodge intentionally misled the jury
or more probably perjured himself when he testified at the trial of Peltier.
Petitioner alleges that Hodge testified that a conclusive firing pin comparison
between the .223, Ex. 34B, shell casing found in the trunk of Agent Coler’s
car, and the AR-15 rifle recovered from Wichita, Kansas, could not be performed
due to the rifle‘s damaged condition, but that newly discovered evidence
indicates that a firing pin comparison between the rifle and the .223 casing
was in fact performed and produced negative results. The alleged newly
discovered evidence is an October 2, 1975 FBI teletype included among the FOIA
materials provided to petitioner. The teletype reads in pertinent part:
”Recovered .223 caliber Colt rifle . . . contains different firing pin than
that in rifle used at RESMURS scene.“ Appendix at 107, Motion to Vacate
Judgment and for a New Trial.
Petitioner has
misstated Hodge’s trial testimony. The record shows his testimony to be as
follows:
Government‘s Exhibit 34-A, because of it’s
condition, could not be fired. However, I could remove the bolt out of
Government‘s Exhibit 34-A and place it in another firearm, AR-15 rifle, and
test fire it in that manner.
This I did and compared the markings,
microscopic markings placed on the cartridge {F. Supp. 896} cases that I
fired using the bolt of Government’s Exhibit 34-A with Government‘s Exhibit 26
--, I’m sorry, 34-B.
Q When did you make the comparison on
Government‘s Exhibit 34B?
A I don’t really know the day that I did
it. It would have been sometime late in the year 1975 or early 1976.
Q And do you have an opinion as to the
comparison which you made between the known items fired from the firing pin of
[the AR-15 rifle from Wichita] . . . and the firing pin impression of . . .
[the .223 casing found in the trunk of Coler‘s car]?
A No sir. I could not form a conclusion.
But based on either the firing pin or the breach face as to whether the . . . [
.223 casing] had been fired in [the AR-15 rifle]. . . .
Trial
Transcript at 3234-35. Agent Hodge then went on to discuss the conclusions he
was able to make on the basis of ejector mark comparisons.
The teletype
and an October 31, 1975 laboratory report authored by Hodge are obviously
related. The laboratory report was received in evidence as Exhibit 135. It
referred to tests done on some .223 shell casings and the AR-15 rifle, Exhibit
34A. The October 31, 1975 laboratory report appeared to be inconsistent with a
February 1, 1976 laboratory report also authored by Hodge which referred to
tests done on shell cases recovered from the general RESMURS area. Exhibit 34B,
found in the trunk of Special Agent Coler’s automobile, was specifically
covered in the report. The court allowed the inconsistent earlier report to be
received in evidence and go to the jury even though defense counsel declined to
give Hodge a Rule 613(b), Federal Rules of Evidence, opportunity to explain the
discrepancy. Because the inconsistent report was admitted, even though
inadmissible under the rule, the court did not permit defense counsel to argue
the discrepancy. The jury in its consideration of the inconsistent reports
could have concluded on the basis of Hodge‘s testimony that the .223 shell
casings referred to in the October report did not include the casing, Exhibit
34B, found in the trunk of Coler’s automobile. Petitioner‘s allegation that
Hodge gave perjured testimony is a clear misstatement of the record and is
obviously without substance or materiality.
B. Evidence of
Other Vehicles
Petitioner
next alleges that the government deliberately deceived the court and the jury
by suppressing reports and statements of the deceased agents describing open
vehicles, such as jeeps and pickups, as having been involved in the initial
chase and later escape. Even though ”bits of contradictory testimony . . .
occasionally emerged,“ Motion to Vacate Judgment and for a New Trial at
20, petitioner argues that there was limited evidence available to the defense
as to the actual existence of vehicles other than Peltier’s van having
been chased that day.
In placing the
evidence of other vehicles in the first category of Agurs, petitioner is
apparently relying on the conflicting testimony of government witness Michael
Anderson on this issue. He claims that Anderson‘s trial testimony is of a
mysterious origin, Motion to Vacate Judgment and for a New Trial at 34,
and that the alleged suppression of a grand jury transcript raises the
inference, along with Anderson’s pretrial statements, that he was in Tent City
at the time the shooting started and not on the roof of the Siers residence. Id.
n. 39. Additionally, in support of his claim that Anderson perjured himself,
petitioner sets out examples of arguably inconsistent testimony of witnesses,
inferring that the inconsistencies arose because one or more of the witnesses,
principally Anderson, deliberately lied under oath and that the government knew
or should have known that he was perjuring himself.
Petitioner‘s
claim that Anderson may have perjured himself is without merit. At the time of
trial, conflicting evidence was presented to the jury as to what Anderson said
he saw and whether he was in a position to see the vehicle being followed by
Special Agents Coler and Williams. Additionally {F. Supp. 897} defense
counsel did a thorough job of attempting to impeach Anderson’s credibility.
Anderson testified at trial that he was denied an attorney during
interrogation, Trial Transcript at 839, was threatened with a beating by
Special Agent Adams, id. at 841-43, and was not prosecuted for a burglary in
Arizona, weapons and explosives charges in Kansas, or in this case, in exchange
for his testimony. Id. at 845. Wilfred Draper testified at trial that
Anderson had been with him, Joe Stuntz, Norman Charles and Norman Brown in Tent
City when the shooting started. Id. at 913. Assessing the credibility of
the witnesses lies within the province of the jury. United States v.
Sullivan, 618 F.2d 1290, 1295 (8th Cir.1980). Petitioner has alleged the
legal conclusion, unsupported by facts, that Anderson perjured himself. The
arguments relating to other vehicles is but a repeat of issues presented to the
jury, which issues were thoroughly argued. If there is any evidence available
from which one might conclude perjury was involved, that evidence was presented
to the jury or available to defendant at trial.
C. Special
Agent Coward‘s Identification of Peltier at the Murder Scene
Petitioner
next claims that the FOIA documents contain a memo concerning an attempt by the
government mid-trial to duplicate the sighting of Peltier at the murder scene
by Special Agent Frederick Coward, Jr. Special Agent Coward testified at trial
that he recognized Peltier as one of the four individuals running away from the
Jumping Bull house. Trial Transcript at 1168. The identification was made at a
distance of greater than 800 yards, id. at 1303, through a 2 X 7 power
rifle scope, id. at 1168, while the individuals were running at an angle
but slightly in his direction. Id. at 1169. Agent Coward was extensively
cross-examined regarding the sighting.
Here again the
allegation of perjury appears to be based on arguably inconsistent testimony of
witnesses and a misinterpretation of the trial record. At trial petitioner
attempted to impeach Special Agent Coward through the testimony of James R.
Hall, a local firearms dealer. Mr. Hall testified on April 8, the 20th day of
the trial, that he had tried ”day before yesterday“ to duplicate the sighting
described by Special Agent Coward, but could not, even though his subject was
standing still and facing him. He was accompanied by an FBI agent. Id.
at 3785-3790. Among the alleged undisclosed evidence, petitioner includes a
memorandum sent to Special Prosecutor Hultman, on April 6th, the day of Witness
Hall’s test, relating to a test made that day. It appears quite obvious the
test referred to is the test conducted that day by defense Witness Hall, but
even if it were a separate test by the FBI the same day, it would not be
material. Evidence of other failures to duplicate the sightings under the
conditions described by Agent Coward do not substantiate a claim of perjury on
the part of Agent Coward. It is the province of the jury to assess the
credibility of witnesses. United States v. Sullivan, 618 F.2d at
1295.
Petitioner
also relies on documents indicating that the FBI questioned other persons who
possessed vision enhancing devices in the RESMURS area on June 26. The
sightings by others were done under different conditions than the sighting by
Agent Coward, see Appendix at 566, Motion to Vacate Judgment and for
a New Trial (binoculars); id. at 568 (binoculars); id. at 571
(binoculars); id. at 574 (scope rifle; no other conditions specified),
and as such do not contradict the sightings done by Agent Coward. Petitioner
has therefore failed to prove perjury with regard to the sighting of Peltier
made by Agent Coward.
Because he has
failed to demonstrate the use of perjured testimony on the part of government
witnesses, petitioner is not entitled to use the Agurs ”any reasonable
likelihood that the false testimony could have affected the judgment of the
jury“ standard of materiality.
II. THE
STANDARD OF MATERIALITY IN THE ABSENCE OF PERJURED TESTIMONY
As previously
discussed in this opinion, the question of whether nondisclosed {F. Supp.
898} evidence is sufficiently material to require its disclosure in cases
not involving the use of perjured testimony is determined by initially
considering whether the defense has made a specific or merely a general request
for its disclosure prior to trial. If a specific request was made, evidence is
deemed material if its disclosure might have affected the outcome of the trial.
United States v. Agurs, 427 U.S. at 104, 96 S. Ct. at 2397. If only a
general request or no request was made, evidence will be considered material
only if it ”creates a reasonable doubt that did not otherwise exist when
evaluated in the context of the entire record. Id. at 112, 96 S. Ct. at
2401.
A request for
disclosure of particular information cannot be labeled as either “specific” or
“general” in a vacuum. Scurr v. Niccum, 620 F.2d 186, 190 (8th
Cir.1980). “Rather, the question must be asked whether, under all the
circumstances presented by the case the request was such as to give the
prosecution reasonable notice of what the defense desired.” Id.
Specificity is therefore a function of several factors including the literal
language of the defense request itself, the apparent exculpatory character of
the evidence sought, and the reasonableness of the explanation for the
prosecution not exposing the evidence or not considering it to be material. Id.
To determine whether this case involved a general or a specific request, it is
therefore necessary to examine the record of defense requests and government
representations.
The file
reveals that there were no general discovery motions filed by the defendant in
this case chiefly due to an agreement concerning discovery that had been made
between defense counsel and the United States Attorney‘s office. The agreement
was to the effect that the United States Attorney’s Office would provide the
defendant with “any statements made by the Defendant; any record of a previous
conviction of Defendant; all documents and tangible objects relevant to this
case; and the reports of any examinations or tests made in connection with this
case.” United States v. Peltier, Crim. No. C77-3003 (Motion for Leave to
File Additional Pretrial Motions filed Feb. 18, 1977). The court was to be
involved only if a dispute regarding discovery arose. Id. At the
pretrial conference held in this case on January 14, 1977, Evan Hultman, the
United States Attorney for the District of Iowa represented that “there has
been literally total disclosure in this case,” Transcript of Pretrial
Conference at 29, United States v. Peltier, Crim. No. C77-3003 (Jan. 11,
1977), and that “all documents, literally all of the 302s literally are within
their possession right now.” Id. at 32.
In light of
these representations, petitioner claims that all the critical
information concerning the autopsies and evidence relating to other suspects
was thought to have been produced. He apparently knew that not all the
information possessed by the government concerning this case had been produced.
For example, during the trial defense counsel made a specific Brady
request regarding the .223 cartridge casing found in the trunk of Agent Coler‘s
car. The request was made orally and specifically requested disclosure of the
name of the person who prepared the affidavit signed by Special Agent
Cunningham stating that he had found the casing, and any cover letters or other
documentation accompanying the affidavit when it was sent to Special Agent
Cunningham. Trial Transcript at 2166-67. The fact that defense counsel felt it
necessary to make specific requests for additional Brady material during
trial indicates their awareness that any previous requests, including their
agreement with the government, were of a general, rather than a specific
nature.
Petitioner
claims the discovery requests made by defense counsel in the Iowa trial of
codefendants Robert Eugene Robideau and Darrell Dean Butler qualify as specific
Brady requests for the purposes of his trial. However, he cites no law
supporting his position that the specific requests filed by the attorneys for
other codefendants in a separate trial puts the government on notice as to what
is specifically desired by defense counsel in this trial. It is the {F.
Supp. 899} responsibility of the attorneys representing a defendant to
select areas they believe may be the source of exculpatory material if they
wish to increase the government’s responsibility for production of
information.
Further, the
record is clear and the court takes judicial notice that petitioner‘s attorney
in these 2255 proceedings, Bruce Ellison, participated as one of the defense
lawyers in the Cedar Rapids trial. He also participated in the role of an
investigator in the Peltier trial. Also, John Lowe, one of the lead lawyers in
the Iowa trial, was also a lead lawyer in the Peltier trial. It seems quite
obvious that counsel for petitioner were fully cognizant of all disclosures and
all evidence produced in the Iowa trial. No showing has been made to this court
that specific requests for disclosure were not complied with. Under the
teaching of Agurs, the court finds that petitioner’s requests prior to trial
and at trial were general requests.
In the absence
of a specific request for production of evidence, Agurs also teaches
that an omitted disclosure, as previously stated in this opinion, is not of
constitutional significance unless viewed in the context of the entire record,
it creates a reasonable doubt as to a petitioner‘s guilt that did not otherwise
exist. There is no constitutional requirement that the prosecution make a
complete and detailed accounting to defense of all police investigatory work. Agurs
427 U.S. at 109, 96 S. Ct. at 2400. “Compliance with Brady neither
requires full disclosure as in civil cases, nor permits a combing of the
prosecutor’s files in search of evidence possibly favorable to the accused.” United
States v. Smith, 552 F.2d 257, 262 (8th Cir.1977) (citations omitted). It
would be “unreasonable” to impose upon the prosecutor the duty of personally
searching agency files for favorable evidence. Id.
Additionally,
the prosecution has no obligation to communicate preliminary, challenged or
speculative information. Giles v. Maryland, 386 U.S. 66, 98, 87 S. Ct.
793, 17 L. Ed. 2d 737 (1967). Therefore, as set out in Agurs, 427 U.S.
at 110, 96 S. Ct. at 2400, “the mere possibility that an item of undisclosed
information might have helped the defense, or might have affected the outcome
of the trial, does not establish materiality in the constitutional sense.”
However, the prosecutor is presumed to recognize the significance of evidence
highly probative of innocence in his file. Id. (citation omitted).
Applying the
foregoing legal analysis to the facts in this case, it is apparent there has
been no purposeful evasion of the prosecutor‘s duty amounting to suppression.
Much of the evidence petitioner labels Brady material is preliminary,
challenged or speculative information. Examples of this class of evidence are
the documents reporting the preliminary autopsy findings of Dr. Bloemendaal,
the possible involvement and presence of other people, and the various
descriptions of the vehicle the agents followed into the Jumping Bull
Compound.
Additionally,
when evaluated in the context of the entire record, none of the evidence
petitioner claims was withheld from him is such that it would create a
reasonable doubt that did not otherwise exist. According to the United States
Court of Appeals for the Eighth Circuit, the strongest evidence that Peltier
committed or aided and abetted in the murders was as follows:
1. The van that the agents followed into
the Jumping Bull Compound was occupied by Peltier, Norman Charles and Joseph
Stuntz.
2. At the time, Peltier had access to
information that he was being followed by FBI agents. One of the occupants of
the van, Norman Charles, had been picked up along with two other AIM members,
Anderson and Draper, by Coler and Williams the day before. The three had been
transported to Pine Ridge in Williams’ car, and were later released . . .
.
3. Peltier had reason to believe that the
agents were looking for him, rather than Jimmy Eage. He stipulated at trial
that there was an arrest warrant outstanding, charging him with attempted {F.
Supp. 900} murder. Upon his arrest in Canada months later for the murders
of the agents, Peltier remarked that the two agents were shot when they came to
arrest him.
4. Michael Anderson, one of the AIM members
who was firing at the cars from one of the houses in the Jumping Bull Compound,
testified that after both sides had been shooting at one another from a
distance, and at least one of the agents had been wounded, he saw Peltier,
Robideau and Butler standing down at the agents‘ cars. Peltier at the time was
holding an AR-15. Shortly after he saw the three down at the agents’ cars, he
began to walk back to Tent City, a distance of about a quarter of a mile. When
he arrived at Tent City, Peltier, Robideau and Butler were already there, as
was Williams‘ car. F.B.I. agents who later searched the area recovered
Williams’ badge and billfold on the ground near the junction of the roads
leading to the houses and Tent City. It was at this junction that Peltier‘s van
had stopped shortly before the firing commenced.
5. According to the doctor who performed
the autopsies, the agents were shot with a high velocity, small caliber weapon.
Peltier’s AR-15, the civilian counterpart of the M-16, was the highest velocity
weapon fired that day. No other person was seen by any trial witness on June 26
with an AR-15. Peltier carried his AR-15 out with him when he and the other
participants of the shootout escaped from the reservation and fled to the
Rosebud Reservation, where they remained for some time before splitting up.
Robideau, Charles and Anderson went south after leaving Rosebud. Anderson
testified that he loaded their car with weapons, one of which was an AR-15,
before they left South Dakota. On September 10, 1975, the car exploded on the
Kansas Turnpike, and police recovered from the car the AR-15 which the
government contended Peltier used on the day of the murders.
6. Ammunition components linked
ballistically to the same AR-15 were found at the crime scene. The ballistics
expert was unable to fire the AR-15 because it had been damaged in the
explosion on the Kansas Turnpike. However, he was able to remove the bolt from
it, place the bolt in another AR-15, and test fire the replacement AR-15. The
expert testified that a .223 cartridge casing found in the trunk of Coler‘s car
had been loaded into and extracted from the AR-15. He also testified that a.22
caliber copper bullet jacket found in the ground underneath the bodies of Coler
and Williams had rifling impressions consistent with the rifling of the barrel
of an AR-15. There was no testimony to indicate that either Robideau or Butler
was seen the afternoon of the murders with a weapon that fired.22 caliber
bullets.
7. Wilford Draper, a member of the escape
party that left Tent City the evening of the murders, testified that he
overheard Peltier, Butler and Robideau discussing certain details of the
murders on the evening of June 26, 1975.
8. Peltier was stopped by police months
later in the State of Oregon. He fled the scene, turning to fire on one of the
police officers. The motor home in which he was riding was searched, and
Special Agent Coler’s revolver was found in a bag bearing Peltier‘s thumbprint.
United States
v. Peltier, 585 F.2d at 319-20.
This court
does not find that the recently disclosed government documents cast doubt upon
four of the eight factual findings listed above as contended by petitioner, or
any of them. The documents indicating that Special Agents Williams and Coler
were following a vehicle other than a red and white van do not negate or
discredit the eyewitness testimony presented at trial. Michael Anderson, Trial
Transcript at 772-75, Angie Long Visitor, id. at 2267 and 2672, and Norman
Brown, id. at 1514-15, identified Peltier’s red and white van and placed
it at the scene of the shooting. No other cars except those belonging to the
F.B.I. agents and two junked vehicles (a station wagon and a green car) were
identified as being in the area. Id. at 2686-87. The {F. Supp. 901}
defense attempted to rebut this testimony by arguing that it was a vehicle
other than Peltier‘s van that Coler and Williams followed into the Jumping Bull
Compound. It is apparent from the trial transcript that Special Agent Williams’
radio transmission concerning a vehicle he was about to chase was heard
differently by different people. For example, Special Agent Adams testified
that Williams had referred to the vehicle as a “pick-up,” Trial Transcript at
72, and Special Agent Waring testified that Williams talked about a “red and
white vehicle.” Id. at 1836. Defense exhibit 75, a portion of an FBI radio
log, contained radio transmissions mentioning a “red pick-up.” The FOIA
documents reveal that the possible involvement of other vehicles in the
incident was explored by the FBI. However, none of the documents place any
vehicles at the crime scene at the time of the murders other than Peltier‘s van
and an inoperative vehicle belonging to June Little. The documents are
cumulative of the evidence presented at trial and in the context of the entire
record do not create a reasonable doubt as to Peltier’s guilt that did not
otherwise exist.
Likewise,
petitioner is not entitled to relief on the basis of documents indicating that
persons other than those charged with the murders were actually present at the
murder scene and were at least likely to have committed the killings.
Petitioner claims that the recent disclosures show not only the identity of
other persons, but the FBI‘s belief as to their actual or likely involvement in
the killings of Special Agents Coler and Williams. Petitioner was tried,
however, on the theory that he was guilty of aiding and abetting in the murders
of the agents. The involvement of others was conceded throughout the trial. In
closing argument the government conceded that Leonard Peltier “didn’t do
everything” involved in the deaths of the agents, Trial Transcript at 4972, but
contended that he was “responsible” for them. Id. at 4974.
Support for
the government‘s contention can be found in evidence presented at trial. As
noted by the Court of Appeals, “the evidence of Peltier’s guilt was strong.” United
States v. Peltier, 585 F.2d at 325. Several witnesses described him as
being the leader of the group. He conceded in opening statement that he was
present the day of the shooting. Trial Transcript at 47. Mike Anderson
testified that the vehicle the agents were chasing belonged to Peltier and that
Peltier, Joseph Stuntz and Norman Charles were in it. Id. at 775.
Anderson also testified that the agents chased Peltier‘s van into a valley
where it stopped. Id. He next saw Peltier, Charles and Stuntz “hop out”
of the van and the FBI agents follow the van “down the hill.” Id. at
776. He then heard shooting. Id. Angie Long Visitor identified Peltier’s
van as the vehicle parked at the fork in the road. Id. at 2671-72.
Peltier was one of only three individuals seen near the bodies of the agents. Id.
at 788. A shell casing was found in the trunk of Special Agent Coler‘s car
which had been ejected from a weapon of the type Peltier was using that day. Id.
at 788 and 3247. Special Agent Coler’s revolver was found in a paper sack under
the seat of the recreational vehicle Peltier was driving before he fled on foot
to Canada. Id. at 2345-46. Peltier‘s fingerprint was found on the sack. Id.
at 2512.
No eyewitness
to the actual, final killing was produced at trial. Petitioner’s newly
discovered evidence does not demonstrate that Peltier was not involved in the
killings. The most that it shows is that other individuals may also have been
involved. Therefore, in the context of the entire record, the newly discovered
evidence indicating the possible involvement of other persons does not disclose
anything material that was not disclosed at trial and clearly does not create a
reasonable doubt as to petitioner‘s guilt that did not otherwise exist.
Additionally,
the recently discovered documents concerning the pathology evidence do not
create a reasonable doubt as to petitioner’s guilt that did not otherwise
exist.
At trial, the
testimony of two pathologists was presented. Dr. Bloemendaal testified that in
his opinion Agent Williams‘ gunshot wound to the head was “the last {F.
Supp. 902} gunshot wound that he had, [and] would have been immediately
fatal.” Trial Transcript at 593. Dr. Bloemendaal also testified that the
projectile that had entered Williams’ head and hand was “a high velocity
missile.” Id. at 593. Dr. Bloemendaal‘s opinion regarding the sequence of
Williams’ wounds was corroborated by Dr. Thomas Noguchi. Id. at 639.
Additionally, Dr. Noguchi testified that Agent Coler‘s head wounds were also
caused by a high velocity weapon. Id. at 635.
Petitioner
alleges that until the FOIA documents were disclosed, he was unaware of a prior
contradictory report authored by Dr. Bloemendaal. It is claimed that although
Dr. Bloemendaal testified that the last gunshot wound was fatal, he had
concluded otherwise from the first moments of the completion of the Williams
autopsy.
It is
inconceivable to this court how petitioner can claim that he was unaware of Dr.
Bloemendaal’s earlier opinion regarding the sequence of the wounds and
therefore that this evidence is newly discovered. Early in the investigation
FBI Director Clarence Kelly reported at a news conference that “we know that
the first wound suffered by Agent Williams was in his head and it killed him
instantly.” Text of News Conference of Clarence M. Kelly, Director Federal
Bureau of Investigation at Century Plaza Hotel (July 1, 1975) (Appendix at 220,
223, Motion to Vacate Judgment and for a New Trial). In addition to this
report of the autopsy findings, the autopsies were introduced into evidence at
trial as Trial Exhibit 7. Noted in Dr. Bloemendaal‘s autopsy of Agent Williams
is the fact that only a minimal amount of hemmorage was present in Agent
Williams’ side and arm wounds, indicating that these wounds may have been
sustained after death. Trial Exhibit 7 at 7, Autopsy of Ronald Williams
performed by Dr. R. D. Bloemendaal (June 27, 1975).
Even assuming
that petitioner‘s counsel was unaware of the earlier opinion of Dr. Bloemendaal
concerning the sequence of Agent Williams’ wounds, this newly discovered
evidence, evaluated in the context of the entire record, does not create a
reasonable doubt as to Peltier‘s guilt. Evidence of an earlier contrary opinion
would merely impeach the pathology evidence presented at trial. Indeed,
petitioner’s counsel interjected nine times during the direct and
cross-examination of Dr. Bloemendaal and Dr. Noguchi that the pathology was not
being challenged. Trial Transcript at 48, 49, 568, 586, 604, 605, 632, 640, 643
and 644.
Additionally
petitioner claims that the FOIA documents provide evidence contradictory to Dr.
Bloemendaal‘s testimony that Agent Williams was killed by a high velocity
bullet, and raise a serious question as to Dr. Noguchi’s similar testimony
regarding Agent Coler‘s fatal wounds. However, the documents cited by
petitioner merely summarize the statements made by Dr. Bloemendaal in his
autopsy reports. The autopsy report on Agent Coler does not characterize the
velocity of the gunshots. Trial Exhibit 7 at 3, Autopsy of Jack R. Coler
performed by Dr. R. D. Bloemendaal (June 27, 1975). The autopsy report of Agent
Williams clearly states that the gunshot wound to Agent Williams’ head
“appeared to be a high velocity missile.” Trial Exhibit 7 at 7, Autopsy of
Ronald Williams. Therefore, although the teletypes themselves may have been
newly discovered, that is discovered since trial, the information contained
within them clearly was not. As a result, these documents add nothing new to
the evidence presented at trial and considered in the context of the entire
record, do not create a reasonable doubt as to Peltier‘s guilt that did not
otherwise exist.
Finally, it is
clear that the newly discovered ballistics test teletype is merely cumulative
of the evidence produced at trial. At trial, an October 1975 FBI laboratory
report stating that the .223 casing found in the trunk of Agent Coler’s car
could not be associated with any of the weapons submitted to the laboratory for
a comparison was placed in evidence. Trial Exhibit 135. However, a February
1976 report stating that the .223 casing had been associated with the Wichita
AR-15 was also placed in evidence. Trial Exhibit 192. Agent Hodge {F. Supp.
903} testified that he first began to examine the .223 casing in December
1975 or January 1976, thus explaining the discrepancy between the two reports.
Trial Transcript at 3388. Evidence of two ballistics tests performed on
different dates and the examiner‘s reasons for the difference in the results
was thereby presented to the jury.
Additionally,
Agent Hodge testified that the extractor mark comparison test performed
“positively identifies Government’s Exhibit 34B [the .223 casing] as having
been loaded into and extracted from Government Exhibit 34A [the AR-15],” Trial
Transcript at 3247, and that an extractor mark comparison “does not necessarily
mean that the cartridge case has been fired in that gun because the markings
can be placed on the cartridge case without actually firing the cartridge
case.” Id. at 3248. Presentation of an additional teletype reporting
negative test results prior to the testing of the .223 casing, no matter which
ballistics test was performed, would be merely cumulative and, in light of
Agent Hodge‘s trial testimony relating to whether or not the .223 casing had been
fired from the AR-15, would not create a reasonable doubt as to petitioner’s
guilt that did not otherwise exist.
Because the
alleged nondisclosures, evaluated in the context of the entire record, do not
create a reasonable doubt as to petitioner‘s guilt that did not otherwise
exist, no constitutional error, or even probability of constitutional error,
has been established. Assuming the documents referred to in defendant’s
petition were known by the prosecutor but not known by defense counsel at time
of trial, the prosecutor had no duty to disclose them to defense counsel, and
the alleged nondisclosures do not amount to suppression. Petitioner having
failed to meet the requirements of Moore v. Illinois, 408 U.S. 786,
794-95, 92 S. Ct. 2562, 2568, 33 L. Ed. 2d 706 (1972), reiterated in Agurs
at 109, 96 S. Ct. at 2400, no Brady violations have been established;
petitioner‘s right to due process of law has not been violated and petitioner
is not entitled to post-conviction relief.
Additionally,
petitioner has failed to prove violations of his sixth amendment rights of
confrontation and compulsory process. None of the alleged newly discovered
evidence demonstrates a corruption of the truth seeking process by the
government. The same claim or much of the same evidence was considered and
rejected by the Court of Appeals in its opinion affirming Peltier’s conviction,
United States v. Peltier, 585 F.2d at 330-334, and as such cannot be
considered as a basis for § 2255 relief. Houser v. United States, 508
F.2d at 514.
As a general
rule a hearing is afforded prior to the disposition of § 2255 motions
presenting factual issues. Lindhorst v. United States, 585 F.2d 361, 364
(8th Cir.1978) quoting Cain v. United States, 271 F.2d 337, 338 (8th
Cir.1959). However, no factual issues have been presented to the court by
defendant‘s petition which cannot be resolved by the record in the case.
Further, the hearing requirement is subject to the statutory qualification that
a hearing need not be held when “the motion and the files and records of the
case2 conclusively show that
the prisoner is entitled to no relief . . . .” 28 U.S.C. § 2255.
It is the
opinion of this court that the motion, files and records of this case
conclusively show petitioner is entitled to no relief. Petitioner’s request for
an evidentiary hearing is denied.
IT IS ORDERED
petitioner‘s motion to vacate judgment and for a new trial is denied.
1 Section 2255
provides, in pertinent part, the following:
A prisoner in
custody under sentence of a court established by Act of Congress claiming the
right to be released upon the ground that the sentence was imposed in violation
of the Constitution or laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate, set aside or correct the
sentence.
A motion for
such relief may be made at any time.
Unless the
motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief, the court shall cause notice thereof to be
served upon the United States Attorney, grant a prompt hearing thereon,
determine the issues and make findings of fact and conclusions of law with
respect thereto. If the court finds that the judgment was rendered without
jurisdiction, or that the sentence imposed was not authorized by law or
otherwise open to collateral attack, or that there has been such a denial or
infringement of the constitutional rights of the prisoner as to render the
judgment vulnerable to collateral attack, the court shall vacate and set the
judgment aside and shall discharge the prisoner or resentence him or grant a
new trial or correct the sentence as may appear appropriate.
2 Affidavits
submitted by the government are not a part of the files and records of the case
which can be taken to conclusively show that the prisoner is entitled to no
relief within the meaning of 28 U.S.C. §
2255. Lindhorst v. United States, 585 F.2d at 365, quoting Taylor
v. United States, 487 F.2d 307, 308 (2nd Cir.1973).