United States of
America, Appellee,
vs.
Leonard Peltier, Appellant.
No. 77-1487
United States Court Of Appeals, Eighth Circuit
585 F.2d 314, 1978 U.S. App. Decision
September 14, 1978, Decided
Appeal from the United States District Court
for the District of North Dakota William M. Kunstler, New York City (argued),
and Michael E. Tigar, Washington, D.C. (argued), Arthur Kinoy, New York City,
on brief for appellant. Evan L. Hultman (former U. S. Atty.), Waterloo, Iowa
(argued), Lynn E. Crooks, Asst. U. S. Atty., Fargo, N. D., Robert L. Sikma, Asst.
U. S. Atty., Sioux City, Iowa, and Richard E. Vosepka, Jr., Asst. U. S. Atty.,
Minneapolis, Minn., on brief for appellee.
Before GIBSON, Chief Judge, and ROSS and
STEPHENSON, Circuit Judges. n*
{F.2d 318}
On June 26,
1975, two Special Agents of the Federal Bureau of Investigation, Jack Coler and
Ronald Williams, were murdered on the Pine Ridge Indian Reservation in South
Dakota. Leonard Peltier, Robert Eugene Robideau, Darrell Dean Butler, and James
Theodore Eagle were charged with the murders in a two-count indictment for
first-degree murder in violation of 18 U.S.C. §§ 2, 1111, and 1114. Robideau
and Butler were jointly tried by a jury and were acquitted. The government
dismissed the charges against Eagle. Subsequent to the Robideau-Butler trial,
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. He
appeals.
Peltier was
not a permanent resident of the Pine Ridge Reservation. His presence there in
June of 1975 was the result of a political struggle between certain reservation
members who supported the structure of tribal government, and supporters of the
American Indian Movement (AIM) who advocated a different form of government. In
an effort to alleviate the conflict, tribal elders had invited members of AIM
to stay at the reservation. Leonard Peltier, Darrell Butler, Robert Robideau,
Michael Anderson, Wilford Draper, Norman Charles, Norman Brown, and Joe Stuntz,
all AIM members, accepted their invitation. They arrived in the spring of 1975
and stayed in an encampment on the reservation which became known as “Tent
City.”
In June of
1975, Special Agents Coler and Williams were engaged in felony criminal investigations
on the Pine Ridge Indian Reservation. On June 25 and 26, they were attempting
to locate and arrest four individuals, including James Theodore Eagle, who were
charged with armed robbery and assault with a deadly weapon.
Shortly before
noon on June 26, Special Agent Williams, driving a 1972 Rambler, and Special
Agent Coler, driving a 1972 Chevrolet, entered the Harry Jumping Bull Compound
on the reservation.1 The
agents were following three individuals riding in a red and white van that had
entered the compound shortly before them.2 The van stopped at a fork in the road leading to Tent City. The
agents stopped at the bottom of a hill. Williams advised Coler on the radio
that the occupants of the van were about to fire on them. Firing commenced. Other
AIM members who were present at the Jumping Bull Compound or Tent City
thereafter joined in the shooting.
The agents
took heavy fire. Over 125 bullet holes were found in their cars. In contrast,
only five shell casings attributable to the agents’ guns were ever found at the
scene. Both agents were wounded by bullets fired from a distance. Special Agent
Coler was wounded by a bullet that traveled through the trunk lid of his car
and struck his right arm. The force of the bullet almost took his arm off,
rendering him completely disabled and causing him to lose blood rapidly. He
crawled to the left side of his car, away from the gunfire. Williams was shot
in the left shoulder. The bullet traveled from his shoulder, under his arm and
into his side. Although wounded, Williams removed his shirt and attempted to
make a tourniquet for Coler‘s arm. Williams at some point was also shot in the
right foot.
These wounds
were not fatal. The agents were killed with a high velocity, small caliber
weapon fired at point blank range. Williams attempted to shield his face from
the blast with his right hand, turning his head slightly to the right. The
murderer placed the barrel of his gun against Williams’ hand and fired. The
bullet ripped through Williams‘ hand, into his {F.2d 319} face, and
carried away the back of his head. He was killed instantly. The murderer shot
Coler, who was unconscious, across the top of the head. The bullet carried away
a part of his forehead at the hairline. The shot was not fatal, however. The
murderer then lowered his rifle a few inches and shot Coler through the jaw.
The shell exploded inside his head, killing him instantly.
The evidence
against Peltier was primarily circumstantial. Viewed in the light most
favorable to the government,3
the strongest evidence that Peltier committed or aided and abetted the
murders is 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 after the
agents were informed that none of them was Jimmy Eagle.
3. Peltier had reason to believe that the
agents were looking for him, rather than Jimmy Eagle. He stipulated at trial
that there was an arrest warrant outstanding, charging him with attempted
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. He
also made other incriminating statements.
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.4 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
shoot-out 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 {F.2d 320} 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.
After a
twenty-five day trial, Peltier was convicted by a jury of both counts of
first-degree murder. He alleges on appeal5 that:
1. Certain evidence introduced at trial was
so prejudicial and inflammatory that its admission constituted a denial of due
process;
2. The trial court refused to instruct the
jury on his defense that he was a victim of an F.B.I. frame-up, and refused to
allow him to introduce much of the available evidence of F.B.I. misconduct,
thereby depriving him of a fair trial and of his right to compulsory process;
3. The trial court’s refusal to reread
testimony requested by the jury constituted an abuse of discretion;
4. The trial court had no jurisdiction to
try him because the United States Government deliberately violated the
Webster-Ashburton Treaty;
5. Prosecution is barred by the doctrine of
collateral estoppel.
We affirm.
I
Admission of
Flight, Other Crimes, and Weapons Evidence
In proving its
case against Peltier, the government was required to introduce a great deal of
evidence regarding the firearms used by the participants of the shoot-out, the
firearms recovered upon a search of Tent City shortly after the murders, and
the various ammunition components recovered upon a search of the entire crime
scene shortly after the murders. Since the case against Peltier was
circumstantial, the evidence {F.2d 321} was necessary to negate the
participation in the actual murders by others who were present.
In the course
of introducing this evidence, the government offered evidence which the
defendant describes as inadmissible other crimes and weapons evidence. Most of
this evidence related to the circumstances surrounding the discovery of the
admittedly relevant firearms evidence described above. Defendant complains of
the admission of this evidence, even though much of it was admitted without
objection.
A. Other
Crimes Evidence
The
admissibility of other crimes evidence is governed by Fed.R.Evid. 404(b), which
provides:
(b) Other crimes, wrongs, or acts. Evidence
of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show that he acted in conformity therewith. It may, however,
be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.
We have held
that evidence of other crimes, wrongs, or acts that is vague and speculative is
not admissible under Rule 404(b). United States v. Jones, 570 F.2d 765, 768
(8th Cir. 1978); United States v. Maestas, 554 F.2d 834, 837 n.2 (8th Cir.),
Cert. denied, 431 U.S. 972, 97 S. Ct. 2936, 53 L. Ed. 2d 1070 (1977).
Furthermore, an issue on which other crimes evidence is admissible must be
raised at trial. United States v. Adcock, 558 F.2d 397, 402 (8th Cir.), Cert.
denied, 434 U.S. 921, 98 S. Ct. 395, 54 L. Ed. 2d 277 (1977); United States v.
Maestas, supra, 554 F.2d at 837; United States v. Clemons, 503 F.2d 486, 489
(8th Cir. 1974).
Evidence that
is admissible under the terms of Rule 404(b) may nevertheless be excluded under
the provisions of Fed.R.Evid. 403, which provides:
Although relevant, evidence may be excluded
if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.
In reviewing a
discretionary decision to admit evidence under Rule 403, we give great
deference to the trial judge who saw and heard the evidence. United States v.
Bohr, 581 F.2d 1294, at 1298-1299 (8th Cir. 1978); United States v. Weir, 575
F.2d 668, 670 (8th Cir. 1978); United States v. Matlock, 558 F.2d 1328, 1332
(8th Cir.), Cert. denied, 434 U.S. 872, 98 S. Ct. 218, 54 L. Ed. 2d 152 (1977);
United States v. Maestas, supra, 554 F.2d at 836.
We will
discuss each claim of erroneously admitted evidence separately.
1. Milwaukee,
Wisconsin Incident
At the trial,
the parties stipulated to the following facts: On November 22, 1972, Peltier
was charged with attempted murder in Milwaukee, Wisconsin. He was arrested,
pleaded not guilty, and was released on bond. On July 29, 1974, he failed to
appear for trial on the charge, his bond was forfeited, and a bench warrant was
issued for his arrest. Peltier was aware of the outstanding arrest warrant for
attempted murder and knew that if he were taken into custody by law enforcement
officials, he would be returned to Milwaukee to stand trial.
The defendant
agreed to stipulate to these facts only after the district court rejected his
argument that they were not relevant. The government argues that this evidence
was admissible under Rule 404(b) to prove motive, because it tended to show why
Peltier reacted with deadly force when followed by the F.B.I. agents. We agree.
The key issue at trial was the identity of the murderer, and evidence tending
to show motive was clearly relevant. United States v. Stover, 565 F.2d 1010,
1013 (8th Cir. 1977); Gregory v. United States, 365 F.2d 203, 205 (8th Cir.
1966), Cert. denied, 385 U.S. 1029, 87 S. Ct. 759, 17 L. Ed. 2d 676 (1967).
Moreover, the
probative value of the evidence was not substantially outweighed by the danger
of unfair prejudice, as is contended by Peltier on appeal. The evidence {F.2d
322} was highly probative, especially when considered in conjunction with a
statement Peltier made after his arrest in Canada to the effect that the two
agents were shot when they came to serve him with a Wisconsin warrant.
Furthermore, the government took steps to minimize the danger of unfair
prejudice. The fact that the person Peltier allegedly assaulted in Wisconsin
was an off-duty police officer was withheld from the jury. The stipulation was
read to the jury at the end of the government‘s case. Finally, the following
cautionary instruction was given:
Evidence has been admitted relating to other
crimes, wrongs or actions alleged to have been committed by the defendant in
this case. Such evidence is not to be considered to prove the character of the
defendant in order to show that he acted in conformity therewith on June 26,
1975.
Evidence of a charge against the defendant
in Wisconsin and his alleged flight to avoid trial was introduced to show a
possible motive the defendant may have had to avoid apprehension on June 26,
1975. The defendant is presumed to be innocent of the Wisconsin charge and the
evidence relating to that charge must be considered by the jury only on the
issue of motive.
We hold that
the district court did not abuse its discretion in admitting this evidence.6
2. Ontario,
Oregon
On November
14, 1975, Oregon State Police stopped two vehicles near Ontario, Oregon: a
motor home and a Plymouth station wagon. Peltier was one of the occupants of
the motor home, and fled the scene, turning to fire at the state trooper. Upon
searching both vehicles, Oregon authorities recovered from the motor home
Special Agent Coler’s revolver in a paper bag bearing Peltier‘s thumbprint, and
from the station wagon several shell casings that had been fired from Coler’s
revolver.
The defendant
alleges error in the admission of much of the “other crimes” evidence offered
by the government relating to the Oregon incident.
A. Evidence of
flight
In addition to
the testimony that Peltier fled the scene, turning to fire at the arresting
officer, the government introduced testimony that the following items were
recovered upon a search of the vehicle:
i. fourteen firearms, eight of which had
obliterated serial numbers, and numerous boxes of shells;
ii. tool boxes containing wiring, pocket
watches with wires leading out of them, tools, pliers, and empty shell casings;
iii. pieces of paper in each vehicle upon
which were written code numbers and words as follows: # 510 bomb; # 54 pigs; #
527 ammo; # 529 cops; # 528 dynamite; # 524 roadblock. Both vehicles were
equipped with CB radios, and the motor home was equipped with a scanner to pick
up other frequencies;
iv. nine hand grenades.
In addition to
the testimony, pictures of most of the items described in (i), (ii), and (iv)
and the pieces of paper described in (iii) were also admitted into evidence.
The defendant
objected to the admissibility of much of this evidence; the government contends
that it was properly admitted as evidence of flight. It is well settled that
flight of the accused subsequent to the commission of a crime is, in certain
instances, “a circumstance proper to be laid before the jury as having a
tendency to prove his guilt.” Allen v. United States, {F.2d 323} 164
U.S. 492, 499, 17 S. Ct. 154, 41 L. Ed. 528 (1896). Accord, United States v.
White, 488 F.2d 660, 662 (8th Cir. 1973), and cases cited therein. However, in
the face of Supreme Court decisions expressing doubt as to the probative value
of flight, See Wong Sun v. United States, 371 U.S. 471, 483 n. 10, 83 S. Ct.
407, 9 L. Ed. 2d 441 (1963); Alberty v. United States, 162 U.S. 499, 511, 16 S.
Ct. 864, 40 L. Ed. 1051 (1896); Hickory v. United States, 160 U.S. 408, 418, 16
S. Ct. 327, 40 L. Ed. 474 (1896), the lower courts have generally scrutinized
the facts of each case to determine whether the jury should be given the
opportunity to draw an inference of guilt from a defendant‘s flight.
The probative
value of flight evidence has recently been analyzed in United States v. Myers,
550 F.2d 1036, 1049 (5th Cir. 1977). There the court held that the probative
value of flight as circumstantial evidence of guilt
depends upon the degree of confidence with
which four inferences can be drawn: (1) from the defendant’s behavior to
flight; (2) from flight to consciousness of guilt; (3) from consciousness of
guilt to consciousness of guilt concerning the crime charged; and (4) from
consciousness of guilt concerning the crime charged to actual guilt of the
crime charged.
The validity
of drawing these inferences in turn depends upon the number of evidentiary
manifestations suggesting defendant‘s decision to flee was prompted by
considerations related to the crime in question. As the court stated in Bailey
v. United States, 135 U.S.App.D.C. 95, 416 F.2d 1110, 1115 (1969), “guilt, as a
factual deduction, must be predicated upon a firmer foundation than a
combination of unelucidated presence and unelucidated flight.”
We hold that
there was a sufficient number of such evidentiary manifestations to make
evidence of flight and of resistance to arrest7 highly probative of consciousness of guilt,
and hence guilt itself in this instance. First, Peltier fled the scene of the
crime immediately after its commission. His actions in Oregon were a
continuation of that immediate flight. Second, the fact that the motor home and
station wagon were traveling arsenals linked by communication devices and code
words designed for avoidance of arrest was significant evidence of Peltier’s
state of mind. Finally, and most important, evidence linking Peltier to the
murders was discovered upon a search of the vehicle from which he fled. The
presence in the motor home of Agent Coler‘s revolver, in a bag having Peltier’s
thumbprint on it, was one of the key pieces of evidence against Peltier. Under
these circumstances, we find that the evidence of flight was highly probative.
Peltier argues
that the evidence of flight was inadmissible because it did not relate to
flight occurring immediately after the murders, and because the government did
not show that at the time of the flight in Oregon, the defendant had been
charged with, or knew he was being sought for, the murder of the two agents.8 In support of his argument, he cites United
States v. White, supra, 488 F.2d 660, and United States v. Jackson, 572 F.2d
636 (7th Cir. 1978).
In United
States v. White, supra, 488 F.2d at 662, the defendant fled from police
attempting to arrest him for an incident that had occurred over five months
previously. There was no evidence that at the time of the flight he knew he was
being sought for the crime charged. We held in the context of that case that
admission of the evidence of flight and the giving of a {F.2d 324}
flight instruction was not appropriate because evidence of flight was not
sufficiently reliable as an indication of guilt. Within the framework of the
Myers Analysis, United States v. Myers, supra, 550 F.2d 1036, the evidence in
White was simply too speculative to allow the jury to draw an inference of
consciousness of guilt concerning the crime charged.
White does not
require that where flight occurs a substantial time after the crime, evidence of
that flight is properly admitted only if the government can prove with direct
evidence that the defendant knows he is being sought for the crime charged. As
the foregoing discussion indicates, there was sufficient circumstantial
evidence that the defendant knew he was wanted for the murders of the F.B.I.
agents.
Peltier also
argues that, notwithstanding the relevance of the evidence, its probative value
was substantially outweighed by the possibility of prejudice, and therefore it
was inadmissible. We disagree. As we stated above, the evidence in this
instance was highly probative. In the context of this case, the evidence did
not prejudicially distort the general case against the defendant. As we related
above, evidence pertaining to a great number of firearms and ammunition
components was admitted as part of the government‘s case without objection by
the defendant. The Pine Ridge shoot-out had many participants and there was no
dispute as to the large number of firearms possessed by the AIM members. This
additional firearms testimony could not have had nearly as strong an impact on
the jury as in the cases cited by the defendant for the proposition that
firearms evidence is highly prejudicial. See, e. g., United States v. Robinson,
560 F.2d 507, 513-14 (2d Cir. 1977) (en banc), Cert. denied, 435 U.S. 905, 98
S. Ct. 1451, 55 L. Ed. 2d 496 (1978); United States v. Warledo, 557 F.2d 721,
724-26 (10th Cir. 1977). Furthermore, the evidence was not presented in an
inflammatory manner; in relation to the length of the trial, the time necessary
for its presentation was brief. See United States v. Maestas, supra, 554 F.2d
at 837 n.4. Finally, an elaborate cautionary instruction9 was given, warning the jury against placing
undue reliance on flight as evidence of guilt.
Finally,
Peltier argues he offered to stipulate to his presence in Oregon and to the
fact he was in flight, and that had the court accepted his offer to stipulate,
other evidence of the Oregon incident would have been unnecessary. As a general
rule, the government is not bound by the defendant’s offer to stipulate. United
States v. Spletzer, 535 F.2d 950, 955 (5th Cir. 1976); United States v.
Caldwell, 178 U.S.App.D.C. 20, 46, n.134, 543 F.2d 1333, 1359 n.134 (1974);
United States v. Brickey, 426 F.2d 680, 686 (8th Cir.), Cert. denied, 400 U.S.
828, 91 S. Ct. 55, 27 L. Ed. 2d 57 (1970). As stated long ago by the court in
Parr v. United States, 255 F.2d 86, 88 (5th Cir.), Cert. denied, 358 U.S. 824,
79 S. Ct. 40, 3 L. Ed. 2d 64 (1958):
The reason for the rule is to permit a
party “to present to the jury a picture of the events relied upon. To
substitute for such a picture a naked admission might have the effect to rob
the evidence of much of its fair and legitimate weight.”
As the court
pointed out in United States v. Spletzer, supra, 535 F.2d at 955, however, this
rule is subject to the provisions of Fed.R.Evid. 403. The Advisory Committee in
its notes accompanying Rule 403 suggested that:
{F.2d 325} In reaching a decision
whether to exclude on grounds of unfair prejudice * * * (t)he availability of
other means of proof may also be an appropriate factor.
As a general
rule, trial courts should seriously consider offers to stipulate in deciding
whether to exclude or admit evidence under Rule 403. Cf. United States v. Cook,
538 F.2d 1000, 1005 (3d Cir. 1976). After careful analysis, however, we
conclude that the district court did not abuse its discretion in refusing to
exclude the government‘s evidence relating to the Oregon incident merely
because of defendant’s offer to stipulate. The defendant never indicated a
willingness to stipulate to any of the details of his flight, but only to the
flight itself. Such a stipulation, barren of any detail, would have robbed the
government of most of the probative value of the admissible flight evidence as
tending to show consciousness of guilt of the murders.
If, in fact,
the evidence of the weapons found in the Oregon incident was inadmissible, in
view of all of the other weapons introduced into evidence without objection,
the addition of these weapons was, in our opinion, harmless error beyond a
reasonable doubt.
B. Unrelated
robbery of ranch house
The government
introduced testimony that on or about November 14, 1975, a .3030 rifle and a
pickup truck were stolen from a residence near Ontario, Oregon. Peltier‘s
fingerprints were found in the residence. When Peltier was apprehended in
Canada, he had in his possession the .3030 rifle stolen from Oregon.
The government
argues that this testimony was relevant to prove Peltier was indeed the person
who fled from the motor home in Oregon and to show flight. Because Coler’s
revolver was found in the motor home, we agree evidence proving Peltier‘s
presence there was relevant. We also agree that Peltier’s actions of arming
himself and stealing a vehicle for transportation were relevant to show
continuing flight.
Peltier argues
that the probative value of the evidence was substantially outweighed by the
danger of unfair prejudice, especially in light of his willingness to admit his
presence in Oregon. The other crimes evidence was not more highly probative of
Peltier‘s presence in Oregon than his admission would have been, and the
evidence of flight was essentially cumulative. Even if we held that the trial
court abused its discretion in admitting this evidence, however, again we are
convinced the error was harmless beyond a reasonable doubt. United States v.
Weir, supra, 575 F.2d at 671. See Harrington v. California, 395 U.S. 250, 23 L.
Ed. 2d 284, 89 S. Ct. 1726 (1969); Chapman v. California, 386 U.S. 18, 17 L.
Ed. 2d 705, 87 S. Ct. 824 (1967); Fed.R.Evid. 103. The evidence of Peltier’s
guilt was strong. The evidence in question was but a miniscule portion of the
trial. Moreover, a cautionary instruction was given.10
B. Weapons
Evidence
The
government, in addition to offering into evidence certain firearms that had
been fired by various participants of the shoot-out at Pine Ridge, also
introduced evidence relating to the circumstances surrounding the recovery of
those firearms. Included in the government‘s presentation was evidence of other
firearms and explosive devices. Peltier vigorously disputes the admissibility
of this evidence, and argues that its prejudicial impact on the jury mandates reversal
of his conviction.
1. Wichita,
Kansas
As we stated
above, the escape party fled to the Rosebud Reservation after the murders and
remained there for a time before {F.2d 326} splitting up. Robideau,
Charles, and Anderson then proceeded south, and the car in which they were
riding exploded on the Kansas Turnpike. Police recovered a large number of
weapons and explosives from the car, including the AR-15 linked to the crime
scene and Special Agent Coler’s rifle. Peltier was not an occupant of the car
and was not in the vicinity. Admitted into evidence were three of the firearms
recovered at the scene of the explosion, several pictures of the
explosion-damaged vehicle, several pictures of the eight or more firearms
recovered from the vehicle, and several pictures of shells and of hand grenades
found at the scene. Testimony of the details of the police search of the area
and the discovery of the items admitted was heard by the jury.
In his brief,
Peltier does not clearly articulate the specific evidence relating to the
Wichita incident to which he objects. At trial, he objected to the relevance of
the pictures of the vehicle after the explosion. We hold that the district
court properly found the pictures to be relevant to explain the condition of the
weapons introduced into evidence at the trial. A crucial question was whether
the .223 casing found in Coler‘s trunk was fired from the AR-15 found in
Wichita. The ballistics expert testified that he was unable to fire the weapon
because of its condition. He was, however, able to remove the bolt, place it on
another AR-15, and conduct limited comparisons.
Defendant also
objected to the pictures of the hand grenades on the grounds of relevance and
prejudicial impact. The government argued that the hand grenades found at
Wichita were the type found at Tent City shortly after the murders, and that
the pictures of the hand grenades found at Wichita were relevant to link the
occupants of the vehicle to certain firearms found at the scene of Pine Ridge.
We agree with the trial court that the pictures were relevant, and that their
probative value was not substantially outweighed by the danger of unfair
prejudice to the defendant. Both sides stipulated that Peltier was not present
at Wichita at the time of the explosion. We do not agree that this evidence
caused the jury to speculate about other bad acts attributable to him, as the
defense contends.
Peltier argues
generally that the introduction of firearms evidence was highly prejudicial.
However, as we stated earlier, Peltier does not make clear which of the Wichita
evidence he claims was erroneously admitted. He did object at trial to Ex.
34-A, the AR-15 found in burned condition at Wichita, as irrelevant. We hold
that the district court did not err in finding that Ex. 34-A was relevant. The
government contended that it was the AR-15 carried by Peltier at Pine Ridge on
the day of the murders and offered ballistics evidence linking it to the
murders.
At the trial,
Peltier did not object when the testimony and pictures of the eight or more
firearms recovered from the vehicle were introduced by the government. Nor did
he object when Ex. 30-A, Special Agent Coler’s .308 rifle or Ex. 30-1, a
firearm found in burned condition at Wichita, were offered. He stipulated to
the admissibility of Ex. 30-AA, a .308 rifle, as a replica of Agent Coler‘s
.308 rifle when it was in good condition.
Even if we
construed Peltier’s brief on appeal to raise an objection to all of this
evidence relating to the Wichita incident, we would hold that the admission of
the evidence was not plain error. The circumstances of the recovery of the
AR-15 and Coler‘s rifle were relevant. The firearms evidence could not be
labeled highly inflammatory and prejudicial, in light of the wealth of firearms
evidence admitted previously without objection. Moreover, Peltier was not
present when the explosion and recovery of the firearms occurred.
Finally,
Peltier offered to stipulate to the discovery of the AR-15 and Coler’s rifle in
Kansas. The government rejected the offer. As we held above, the government
generally is not bound by an offer to stipulate, and we are not convinced that
this evidence requires a different rule.
{F.2d 327} 2. Rosebud
On September
5, 1975, F.B.I. agents went to the Rosebud Indian Reservation, located about
180 miles east of the Pine Ridge Reservation, to arrest five persons charged
with assault with a deadly weapon. While conducting a search incident to the
arrest of several persons,11
they recovered Special Agent Williams‘ .357 service revolver and several
rifles linked ballistically to the case. Testimony revealed that the following
items were found:
a. seven firearms, several of which had
obliterated serial numbers (the serial numbers on Special Agent Williams’
service revolver and on Ex. 29-A, the M-1 .30 caliber Gerand rifle which Butler
carried on the day of the murders were obliterated);
b. a knapsack full of dynamite and hand
grenades;
c. a suitcase full of blasting caps;
d. a bag containing spent rounds and live
ammunition for various calibers;
e. walkie-talkie radios.
Peltier again
alleges that the evidence of unrelated firearms and other weapons was unduly
prejudicial because of its inherently inflammatory nature, arguing that its
sole effect was to cause the jury to speculate about other bad acts of the
defendant.
Again, no
objection was made to the admissibility of any of this evidence. Much of it was
clearly relevant and strongly probative. Special Agent Williams‘ revolver, six
spent cartridges from Williams’ revolver, six spent cartridges from Special
Agent Coler‘s revolver, the M-1 rifle carried by Butler on the day of the
murders, and the 44 Ruger carbine used by Joe Stuntz and carried out of Pine
Ridge by Michael Anderson on the day of the murders were all seized at Rosebud.
The relevance
of the remaining evidence is questionable. Assuming without deciding that it
was erroneously admitted, we hold there was no plain error. No pictures or
demonstrative evidence were admitted only testimony, the purpose of which was
to detail the discovery of the evidence directly related to the Pine Ridge
episode. The parties agreed that Peltier was not present at Rosebud on the day
the evidence was seized; the testimony revealed possession of weapons and
explosive devices by Other persons, and was not unfairly prejudicial to the
defendant. United States v. Graham, supra, 548 F.2d at 1313.
3. Alberta,
Canada
On February 7,
1976, Peltier was arrested in Canada. The arresting officer testified that at
the time of his arrest, Peltier had in his possession the .3030 rifle stolen in
Oregon, other property stolen from the Oregon ranch house, two pistols, and an
M-1 semiautomatic rifle.
At the trial,
Peltier made no objection to the admission of the two pistols or the .3030
rifle found in his possession at the time of his arrest. Likewise, he did not
object to the testimony regarding his possession of the property, including the
.3030 rifle stolen from the Oregon ranch house, or his possession of an M-1
semiautomatic rifle. We hold that the admission of this evidence was not plain error.
4. Not
Prejudicial Error
Ordinarily the
admission into evidence of weapons, or pictures of weapons, which are not
directly related to the crime, and to which proper objection is made, is
prejudicial to the defendant and in many cases it has been held to be
reversible error. See United States v. Robinson, supra, 560 F.2d at 513-16;
United States v. Warledo, supra, 557 F.2d at 725, and cases cited therein. In
this case however almost all of the weapons, and some pictures which were not
directly related to the crime, were admitted without objection. Some of these
weapons and pictures of weapons were objected to by the defendant and as to
these exhibits we hold the admission to be harmless error for these reasons:
First, there were many weapons which were admitted without objection or were
properly admitted as being found or {F.2d 328} used at the scene of the
crime. The addition of the pictures and weapons which were not directly related
to the crime and to which Peltier’s counsel objected, could only be held to be
cumulative and therefore not prejudicial.
Secondly, the
direct and circumstantial evidence of Peltier‘s guilt was strong and, in our
opinion, the admission of these additional exhibits did not prejudice the
defendant’s chances for acquittal.
II
F.B.I.
Frame-up
The defense
theory at the trial was that shortly after the murders, agents of the F.B.I.
focused upon Peltier as a principal suspect, and thereafter conspired to
manufacture evidence against him, resorting to threats, intimidation, and
subornation in an effort to secure his conviction. On appeal, Peltier contends
that the district court ruled inadmissible the bulk of his proof of fabricated
evidence and refused to charge the jury on the law applicable to the defense
theory of the case, thereby depriving him of his right to compulsory process
and to a fair trial.
A. Refusal to
Give Defense Instruction
The
instruction which the court refused to give, Defendant‘s Proposed Jury
Instruction No. 19, read as follows:
Testimony has been adduced in this case
which if believed by you shows that the Government induced witnesses to testify
falsely. If you believe that the Government, or any of its agents, induced any
witness to testify falsely in this case (or in any related case), this is
affirmative evidence of the weakness of the Government’s case.
Defendant
contends the court erred in refusing to give this instruction, citing certain
evidence admitted at trial allegedly proving the frame-up and several cases
which stand for the proposition that the defendant in a criminal case is
entitled to have presented to the jury instructions encompassing any theory of
defense which is supported by law and which has some foundation in the
evidence, however tenuous. See United States v. Brown, 540 F.2d 364, 380-81
(8th Cir. 1976); United States v. Nance, 502 F.2d 615, 619 (8th Cir. 1974),
Cert. denied, 420 U.S. 926, 95 S. Ct. 1123, 43 L. Ed. 2d 396 (1975); United
States v. Vole, 435 F.2d 774, 776-77 (7th Cir. 1970).
We reject
defendant‘s contention that the trial court erred in refusing to give the
proposed instruction. In the first place, proposed Instruction No. 19 does not
incorporate what defendant contends was his theory of defense: that the
government framed him by manufacturing evidence and inducing witnesses to
testify falsely. The proposed instruction is essentially one relating to the credibility
of witnesses, and was dealt with in the court’s general instructions 30, 38,
and 45 on impeachment and credibility. The principle espoused in Brown and
Nance was meant to apply to a more comprehensive defense instruction or series
of defense instructions. As the court stated in Laughlin v. United States, 154
U.S.App.D.C. 196, 207, 474 F.2d 444, 455 (1972), Cert. denied, 412 U.S. 941, 93
S. Ct. 2784, 37 L. Ed. 2d 402, Reh. denied, 414 U.S. 882, 94 S. Ct. 169, 38 L.
Ed. 2d 130 (1973), in refusing to apply the principle to the proposed
instruction that the jury must acquit the defendant if it believed defense
testimony denying guilt:
What is required before the theory of the
case rule comes into play is a more involved theory involving “law” or fact, or
both, that is not so obvious to any jury.
It is a matter
of common sense that a government prosecution based on false testimony is a
“weak” one.
In the second
place, there is no evidentiary support for the instruction as written. Three
critical government witnesses, Anderson, Draper, and Brown, who participated in
the events of June 26 at Pine Ridge, did testify on cross-examination that
F.B.I. agents threatened, intimidated, or physically abused them while
questioning them in the initial stages of the investigation about their
knowledge of the murders. Brown, in his testimony as a witness for the {F.2d
329} defense, also stated that he testified falsely before the grand jury
as a result of fear of the F.B.I. All three witnesses testified than when they
were Interviewed, at early stages of the investigation, their answers to the
F.B.I.‘ § questions were inconsistent with the truth for one reason or another.
However, upon further questioning at the trial by the government attorney, they
stated that the testimony they gave at the trial was the truth, as they best
remembered it. Thus, their testimony provided no support for the proposed
defense instruction that the government induced them to Testify falsely in this
trial or in a related trial.12
Since the
proposed instruction was essentially a credibility instruction already covered
by the instructions given to the jury, and since there was no evidence that the
government induced the witnesses to testify falsely at the trial, we perceive
no error in the court’s failure to give the proposed instruction. United States
v. Rabbitt, 583 F.2d 1014 at 1024 (8th Cir. Sept. 5, 1978); United States v.
Fuel, 583 F.2d 978 at 989-990 (8th Cir. Aug. 16, 1978).
Failure to
Give a More Comprehensive Theory of the Defense Instruction
The next issue
is whether the trial court should have given a more comprehensive theory of the
defense instruction. Peltier relies heavily on United States v. Vole, supra,
435 F.2d at 776, where the court found the failure to give the following
instruction reversible error:
You are instructed that it is the defendant
Vole‘s theory of this case that Charles Masini conspired with other persons to
frame him for a counterfeiting conspiracy. If the facts adduced in support of
the defendant Vole’s theory create in your mind a reasonable doubt of his guilt
of these charges, then you must find the defendant Vole not guilty of these
charges.
Peltier, while
attempting to prove his theory that he was the victim of an F.B.I. frame-up,
did not request a similar instruction. We find the court‘s failure to give such
an instruction was not plain error. Cf. United States v. Hamilton, 420 F.2d
1096, 1098-99 (7th Cir. 1970). We have concluded that the jury could not have
been misled by the failure to receive a theory of defense instruction. The
court’s instructions clearly stated the government‘s burden of proof, the
matter of credibility of witnesses was covered in great detail, and defense
counsel vigorously asserted the theory of defense throughout the trial and in
closing argument in an effort to discredit the government’s case.
We note,
furthermore, that Peltier‘s contentions of manufactured evidence are far from
convincing. The district court allowed Peltier to present the following
evidence relating to his theory of defense:
1. Discovery
of the .223 caliber casing. The .223 caliber cartridge casing allegedly found
in the trunk of Coler’s car was critical evidence against Peltier. In an
affidavit used in the Canadian extradition proceedings, F.B.I. Agent Cunningham
stated that he had found the .223 cartridge casing in Coler‘s trunk. However, a
302 report13 prepared by
Cunningham on June 29, 1975, failed to document discovery of the casing.
Cunningham later recanted that portion of his affidavit relating to his
discovery of the cartridge.
Other evidence
presented at the trial strongly contradicts Peltier’s claim that the cartridge
was not found in Coler‘s trunk. Winthrop Lodge, an F.B.I. fingerprint expert,
testified that he found the .223 cartridge casing in the trunk of Coler’s car
on June 29, 1975, when he was examining the car for fingerprints. He produced
his handwritten field notes, which documented his discovery. He further
testified that the car had been searched and had been towed to a garage in Hot
Springs, South Dakota. He {F.2d 330} turned the casing over to Cortlandt
Cunningham, who began his examination of Coler‘s vehicle immediately after
Lodge finished. The fact that Cunningham signed an affidavit that he had found
the cartridge casing was merely a technical error.
2. Sighting of
Peltier and Eagle. Special Agent Coward testified that late in the afternoon on
the day of the murders,14 he
saw through the telescopic sight on his rifle two individuals, one of whom he
identified as the defendant, at the scene of the crime. Coward also interviewed
BIA Officer Stoldt, who was with him when he sighted the defendant. In his 302
report, which showed the date of the interview as June 28, 1975, Coward stated
that Stoldt told of sighting two persons, one of whom looked like Jimmy Eagle,
through his binoculars. Coward interviewed Stoldt again on September 4, 1975,
and reported that Stoldt was now positive that he had seen Eagle and had also
seen Peltier on June 26. Stoldt was called as a defense witness, denied that he
talked to Coward on June 28, and stated that he was uncertain on June 26 that
one of the persons he sighted was Eagle.
Peltier
contends that the discrepancy between Coward’s and Stoldt‘s accounts was proof
that Coward participated in the frame-up by falsely recording evidence. Again,
however, the government offered an explanation for the apparent discrepancy.
Stoldt testified that he talked to Coward only on June 26 and September 4,
1975, and not on June 28. Coward’s testimony at trial was consistent with
Stoldt‘s; he stated that he interviewed Stoldt and dictated his 302 report on
June 26, and that the secretary simply made a typing error in dating the report
June 28. Both witnesses at trial reaffirmed their sightings of Eagle and
Peltier on June 26. In his second 302 of November 4, Coward wrote: “ ”Stoldt
stated that during the first statement he had given to the F.B.I. A few days
after the shooting of the agents, he told the agents then * * * that he saw
Jimmy Eagle in the group that he had just identified.’ “ (Emphasis added.)
Coward explained that when he wrote the second 302, he dated Stoldt‘s statement
by referring back to the first 302 which showed his first interview as being on
June 28. He also stated that on further reflection, he remembered that his
first interview with Stoldt was on June 26.
3. Association
of .223 Cartridge Casing with AR-15. An October 1975, F.B.I. lab report
contained a finding that the .223 cartridge casing recovered from the trunk of
Coler’s car could not be associated with any of the weapons which had been
submitted to it for analysis. However, a February 1976, F.B.I. report contained
a finding that the .223 casing could be associated with the Wichita AR-15.
Peltier
describes as ”mysterious“ the association of the .223 casing with the Wichita
AR-15 four months after a report which concluded that no association could be
found. However, the firearms expert, Evan Hodge, testified that he first began
to examine Ex. 34-B, the .223 cartridge casing, in December of 1975 or January
of 1976. Defense counsel did not cross-examine him on the truth of this
statement.
Because the
instructions to the jury clearly set out the government‘s burden of proof,
because the defense counsel stressed the theory of defense throughout the trial
and in closing argument, and because of the nature of the defendant’s proof of
the alleged frame-up, we find no plain error in the court‘s failure to give a
theory of the defense instruction.
B. Denial of
Right to Compulsory Process
The trial
court excluded certain evidence which Peltier contends was vital to his
defense, stating that:
(T)he Court’s position with reference to
evidence to be offered by the defense is simply that evidence relative to the
issues and the evidence presented by the government will be admitted. I will
state, however, that witnesses who have testified will not be impeached by a
showing of misconduct of the Federal Bureau {F.2d 331} of Investigation
Unless that misconduct relates to the testimony of the individual witnesses who
have testified or unless that misconduct relates to exhibits that have been
received in evidence. (Emphasis added.)
The most
significant evidence excluded was the testimony of Myrtle Poor Bear and Jimmy
Eagle.
1. Jimmy Eagle
Episode. Jimmy Eagle testified in an offer of proof that he was not on the Pine
Ridge Reservation on June 26, 1975. He was later arrested on another charge,
and F.B.I. agents who questioned him threatened to have him indicted for the
murders if he did not cooperate in the investigation. He did not cooperate and
was later indicted. As a result of the F.B.I. threats, his attorney warned him
to remain silent at all times because the government would probably place
informers in his cell.
After Eagle
had been incarcerated for a time, the government obtained statements of four of
his cellmates recounting Eagle‘s description to them of the events of June 26.
Eagle testified in the offer of proof that he never made any of the statements
attributed to him. Peltier contends the statements of the four cellmates were
so thorough, and conformed so completely to the F.B.I.’s theory of the murders,
that they impel the inference the F.B.I. concocted the statements and solicited
the cooperation of four felons who desired favorable treatment.
2. Myrtle Poor
Bear Episode. In February and March, 1976, Myrtle Poor Bear signed three
affidavits which related her eyewitness account of the murders of the two
agents on June 26, 1975. Two of these affidavits were considered by Canadian
officials in the extradition proceedings. In testimony given outside of the
presence of the jury at the trial, Poor Bear disclaimed virtually every
allegation contained in the affidavits. She testified that she had been forced
to sign the affidavits, which were prepared by the F.B.I., under threats of
physical harm.
The court
excluded the proffered testimony under Rule 403 of the Federal Rules of
Evidence. It found that the evidence was not material, and that any relevance
it might have was outweighed by the danger of confusion of the issues and
misleading the jury.
Peltier
contends that the trial court, in excluding the Jimmy Eagle and Myrtle Poor
Bear testimony, denied him his right to compulsory process. We disagree.
In Washington
v. Texas, 388 U.S. 14, 23, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967), the
Supreme Court held that the sixth amendment right to compulsory process
includes, in appropriate circumstances, the right to introduce relevant and
material testimony from a witness qualified to testify under an appropriate
standard of credibility. The Court reaffirmed the importance of allowing the
defendant to present his defense in United States v. Nixon, 418 U.S. 683, 711,
94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), stating that:
The right to the production of all evidence
at a criminal trial similarly has constitutional dimensions. The Sixth
Amendment explicitly confers upon every defendant in a criminal trial the right
”to be confronted with the witnesses against him“ and ”to have compulsory
process for obtaining witnesses in his favor.“ Moreover, the Fifth Amendment
also guarantees that no person shall be deprived of liberty without due process
of law. It is the manifest duty of the courts to vindicate those guarantees,
and to accomplish that it is essential that all relevant and admissible
evidence be produced.
However, the
right of a defendant to introduce the testimony of witnesses in his behalf is
not absolute. As the Supreme Court noted in Chambers v. Mississippi, 410 U.S.
284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973):
Few rights are more fundamental than that
of an accused to present witnesses in his own defense. E. g., Webb v. Texas,
409 U.S. 95, 93 S. Ct. 351, 34 L. Ed. 2d 330 (1972); Washington v. Texas, 388
U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); In re Oliver, 333 U.S.
257, 68 S. Ct. 499, 92 L. Ed. 682 (1948). In the exercise of this {F.2d 332}
right, the accused, as is required of the State, must comply with established
rules of procedure and evidence designed to assure both fairness and
reliability in the ascertainment of guilt and innocence.
An analogous
case is United States v. Nobles, 422 U.S. 225, 241, 95 S. Ct. 2160, 45 L. Ed.
2d 141 (1975), in which Justice Powell made this observation: ”The Sixth
Amendment does not confer the right to present testimony free from the
legitimate demands of the adversarial system; one cannot invoke the Sixth
Amendment as a justification for presenting what might have been a half-truth.“
Under the
Federal Rules of Evidence, the trial court has broad discretion in determining
the relevancy and admissibility of evidence. United States v. Briscoe, 574 F.2d
406, 408 (8th Cir. 1978); United States v. Bad Cob, 560 F.2d 877, 880 (8th Cir.
1977). It is only where the trial court excludes relevant evidence without
sufficient justification that the defendant‘s constitutional right to
compulsory process is violated. See United States v. Melchor Moreno, 536 F.2d
1042, 1045-46 (5th Cir. 1976). The evidence proffered by Peltier was
justifiably excluded in this instance under the provisions of Fed.R.Evid.
403.
The evidence
was only minimally relevant. Neither Jimmy Eagle nor Myrtle Poor Bear testified
as a government witness against Peltier. Furthermore, Peltier made no showing
that the integrity of the government’s evidence against him was in any way
tainted by the Myrtle Poor Bear and Jimmy Eagle episodes.
Peltier argues
that the evidence was relevant to show bias on the part of government witnesses
Anderson, Draper, and Brown. He argues that Poor Bear‘s and Eagle’s testimony,
if believed by the jury, might have caused the jury to speculate further as to
whether the knowledge Anderson, Draper, and Brown testified to was implanted in
their minds by coercive F.B.I. interrogation.
It is true
that ”evidence tending to show a substantial reason for bias or interest in an
important witness is never collateral or irrelevant. It may be * * * the very
key to an intelligent appraisal of the testimony of the (witnesses).“ Barnard
v. United States, 342 F.2d 309, 317 (9th Cir. 1965). See Davis v. Alaska, 415
U.S. 308, 316-17, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); Johnson v. Brewer,
521 F.2d 556, 561 (8th Cir. 1975). However, Eagle‘s and Poor Bear’s allegations
of F.B.I. harassment, even if true, shed very little, if any, light on the
credibility of Other witnesses, since the trial court allowed full inquiry into
the dealings of Anderson, Draper, and Brown with the F.B.I. In light of the
full presentation to the jury of F.B.I. actions which might have caused bias on
the part of these three witnesses, the testimony of Poor Bear and Eagle would
only have been cumulative.
Peltier also
argues that the Poor Bear and Eagle testimony was admissible to show the
intention of the F.B.I. to bring about his conviction, no matter what the cost.
This issue is a more difficult one. As we stated earlier, Peltier‘s theory of
the case was that the F.B.I. framed him by manufacturing evidence and inducing
witnesses to testify in accordance with its theory of the murders. The Poor
Bear and Eagle testimony was certainly consistent with that theory. However, we
do not find an abuse of discretion on the part of the district court in
excluding the evidence. The district court weighed the following factors:
a. the
defendant’s failure to point to specific evidence used against him, the
reliability of which was directly affected by the Poor Bear or Eagle episodes;
b. the lack of
probative value of the proffered evidence.
i. Myrtle Poor
Bear. It is apparent, from reading the trial transcript, that Myrtle Poor Bear
was not a reliable witness. Her testimony was at all times very vague, and she
often responded that she could not remember. Indeed, defense counsel,
anticipating that she would be called as a witness for the government,
described her in his opening statement as a ”witness whose {F.2d 333}
mental imbalance is so gross as to render her testimony unbelievable.“
ii. Jimmy
Eagle. In addition to offering Eagle‘s testimony, the defense also called two
of the four cellmates who gave the allegedly fabricated statements to the
government. Both witnesses affirmed the truth of their earlier statements to
the F.B.I., and denied that the F.B.I. induced them to make false statements.15 There was thus no real proof that the F.B.I.
solicited statements from the four cellmates. There was only proof that Eagle
denied making the statements.
c. The
probability that the government would offer countervailing evidence, thus
extending an already lengthy trial.
d. The danger
of unfair prejudice to the government. The proffered evidence would clearly
have tended to divert the jury’s attention from the issue before it Peltier‘s
guilt or innocence.
While the more
prudent course might have been to allow the defense to present the evidence, we
find no abuse of discretion in the trial court’s exclusion of the testimony of
Jimmy Eagle and Myrtle Poor Bear, in light of its low probative value, the
potential for further delay in the trial, and the danger of unfair prejudice to
the government.
We now
summarize briefly the remaining evidence excluded by the trial court which the
defendant contends further supported his defense that he was the victim of an
F.B.I. frame-up. We have concluded that the evidence would not have bolstered
the defense theory and was properly excluded.
Telescopic
Sight Demonstration. Coward and Stoldt testified that when they sighted Peltier
and Eagle on the day of the murders, they were approximately one-half mile from
them. The defendant requested that the members of the jury be permitted to look
through Coward‘s telescopic sight to satisfy themselves that an identification
could not be made from such a distance. The question of whether to permit jury
experiments rests within the discretion of the trial court. Friedman v. United
States, 347 F.2d 697, 709 (8th Cir.), Cert. denied, 382 U.S. 946, 86 S. Ct.
407, 15 L. Ed. 2d 354 (1965). We hold that the trial court’s refusal to allow
the jury members to look through the telescopic sight was not an abuse of
discretion here. The trial court did permit the defendant to introduce the
testimony of a firearms expert, who attempted to identify a familiar individual
through the same telescopic sight at a distance of one-half mile and was unable
to do so. The expert did Not testify that such an identification was
impossible. Furthermore, on cross-examination, the expert testified that a
number of factors could influence a person‘s ability to make such a sighting,
including atmospheric conditions, the eyesight of the observer, the lay of the
land, and prior training with a scope. Since these variables would affect each
juror’s experience with sighting through Coward‘s sight, we agree with the
district court that such an experiment would have little, if any, probative
value.
F.B.I. Lab
Reports. While the district court admitted into evidence the lab reports
regarding the association or lack of association between the .223 casing and
the Wichita AR-15, the court refused to allow defense counsel to mention the dates
of the reports in his argument to the jury, citing Fed.R.Evid. 613(b). Defense
counsel stated his firm agreement with the court’s ruling. The court‘s reason
for restricting counsel was that when the author of the reports, Evan Hodge,
was on the stand, counsel for the defense declined to question him as to the
reason for the apparent inconsistency, after the trial court suggested that he
do so. We hold that the district court did not abuse its discretion in so
limiting defense counsel’s argument. On redirect, in response to a question
from government {F.2d 334} counsel, Hodge stated that he first began to
examine Ex. 34-B, the .223 cartridge casing, in December of 1975 or January of
1976. On recross, defense counsel did not question Hodge on the timing of his
association of the Wichita AR-15 with the .223 casing, preferring to let the
lab reports speak for themselves. The lab reports were before the jury, which
could draw what inferences it chose.
Waring 302.
Special Agent Waring‘s 302 was an eight-page report which apparently had been
typed on two typewriters. The dates of dictation (June 26) and transcription
(June 30) were transposed. The defendant contended that the report had been
doctored at a later time to conform with the emerging theory of the case. The
district court refused to admit the report, but allowed extensive testimony
concerning the alleged difference in type.
Special Agent
Waring testified that he had dictated one of his 302s to two different
secretaries, who may have typed the 302 on two different typewriters. Defense
counsel, on cross-examination, questioned Waring about the fact that the 302
was typed on two different typewriters and suggested that Waring had had the
302 retyped so as to conform to an agreed upon version of the facts. Waring
denied the allegation. Defense counsel then sought to introduce the 302 into
evidence to allow the jury to witness the different types on the report. The
defense later called a witness who testified that the 302 in question did
indeed contain two different types. Even were we to hold that the trial court
erred in excluding the report, we fail to see how the defendant was prejudiced
by the trial court’s ruling, in view of the fact that the question of the
different types was examined in such detail in the testimony.
III
Refusal to
Read Testimony to Jury
During its
deliberation the jury made two requests that certain trial testimony be read: a
portion of Michael Anderson‘s testimony, and the two statements made by Peltier
after his comment at his arrest that, if he had known the persons approaching
him were law enforcement officers, ”he would blow (them) out of (their) shoes.“
The trial court refused the requests, instructing the jury instead to rely upon
its recollection of the witnesses’ testimony during trial.
The decision
to read testimony as requested by the jury rests within the sound discretion of
the trial judge. United States v. Ballard, 535 F.2d 400, 407 (8th Cir.), Cert.
denied, 429 U.S. 918, 97 S. Ct. 310, 50 L. Ed. 2d 283 (1976); United States v.
Mesteth, 528 F.2d 333, 334 (8th Cir. 1976). We have examined the requested
testimony and are satisfied that the trial court did not abuse its discretion.16 The testimony was not crucial to the
verdict, as the defendant contends, citing United States v. Rabb, 453 F.2d
1012, 1013-14 (3d Cir. 1971). Furthermore, the failure to read the testimony
did not create unfairness to him, as he contends, citing United States v.
Jackson, 257 F.2d 41 (3d Cir. 1958), since the requested testimony was favorable
to the government‘s case.
IV
Extradition
Peltier
contends, for the first time on appeal, that the trial court had no
jurisdiction to try him, because he was extradited from Canada in violation of
the Webster-Ashburton Treaty, 8 Stat. 572.
{F.2d 335} Article X of the Webster-Ashburton Treaty provides in pertinent
part that:
It is agreed that the United States and Her
Britannic Majesty shall * * * deliver up to justice all persons who, being
charged with the crime of murder * * * shall seek an asylum, or shall be found,
within the territories of the other: Provided that this shall only be done upon
such evidence of criminality as, according to the laws of the place where the
fugitive or person so charged shall be found, would justify his apprehension
and commitment for trial * * *. (Emphasis added.)
8 Stat. 576.
Peltier contends that the evidence of criminality presented to the Canadian
tribunal ”consisted of the false affidavits of Myrtle Poor Bear, obtained by
the government through coercion and deceit and known by the government to be
false.“ He contends that the presentation of false evidence violated the terms
of the treaty, thereby depriving the trial court of jurisdiction. He cites a
long line of cases beginning with United States v. Rauscher, 119 U.S. 407, 7 S.
Ct. 234, 30 L. Ed. 425 (1886), which stand for the proposition that the
demanding state may not charge and try the extradited defendant for a crime
other than one enumerated in the applicable extradition treaty, and for which
he was specifically extradited.
The government
argues that the jurisdiction of the trial court over the defendant is not
affected by the manner in which his presence before the court was obtained,
citing Frisbie v. Collins, 342 U.S. 519, 72 S. Ct. 509, 96 L. Ed. 541 (1952)
and Ker v. Illinois, 119 U.S. 436, 444, 7 S. Ct. 225, 30 L. Ed. 421 (1886). We
do not find it necessary to decide what standard should be applied to the
review of claims of government misconduct in international extradition proceedings,17 since, under any standard, Peltier’s claim
is, on its face, lacking in substance. Peltier does Not claim that he was
extradited solely on the basis of Myrtle Poor Bear‘s affidavits18 or that the other evidence presented to the
Canadian tribunal was insufficient to warrant extradition. It is clear from a
review of the trial transcript that other substantial evidence of Peltier’s
involvement in the murders was presented in the extradition proceedings, but
the record of those proceedings was not made available either to the trial
court or to this court.
V
Collateral
Estoppel
Peltier
alleges that his prosecution was barred by the doctrine of collateral estoppel,
since codefendants Robideau and Butler were found not guilty by a jury on the
basis of evidence much of which was the same evidence adduced against Peltier.
Peltier was not a party to that proceeding, and may not invoke the doctrine of
collateral estoppel. United States v. Brown, 547 F.2d 438, 444 (8th Cir.),
Cert. denied, 430 U.S. 937, 97 S. Ct. 1566, 51 L. Ed. 2d 784 (1977). Cf. Turley
v. Wyrick, 554 F.2d 840, 842 (8th Cir. 1977), Cert. denied, 434 U.S. 1033, 98
S. Ct. 765, 54 L. Ed. 2d 780 (1978).
The judgment of conviction is affirmed.
* This appeal
was originally submitted to a panel of Judges Ross, Stephenson and Webster.
Upon Judge Webster‘s resignation from the court, the appeal was resubmitted to
Chief Judge Gibson, and Judges Ross and Stephenson.
1 The compound
consists of a number of houses and buildings, and is located a short distance
off Highway 18 between Oglala and Pine Ridge, South Dakota. It is approximately
a quarter of a mile northwest of Tent City.
2 The agents
had been told that Eagle might be riding in a red vehicle.
3 ” “The
verdict of a jury must be sustained if there is substantial evidence, taking
the view most favorable to the Government, to support it.’ ” Hamling v. United
States, 418 U.S. 87, 124, 94 S. Ct. 2887, 2911, 41 L. Ed. 2d 590 (1974),
Quoting Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680
(1942). As we pointed out in United States v. Lambros, 564 F.2d 26, 28 (8th
Cir.), Cert. denied, 434 U.S. 1074, 98 S. Ct. 1262, 55 L. Ed. 2d 779 (1977),
the same standard of review applies in cases where the conviction rests on
circumstantial evidence, because circumstantial evidence is equally as
probative of guilt as direct evidence.
4. When seen
standing at the cars, Peltier carried an AR-15 and Butler an M-1. Robideau had
been seen on various occasions carrying a Commando Mark III, a .45 caliber
semiautomatic weapon. The velocity of a commercially loaded .223 caliber
cartridge fired from an AR-15 is 3200 feetsecond, a .3006 caliber cartridge
fired from an M-1, 2700 feetsecond, and a .45 caliber cartridge fired from a
Commando Mark III over 1000 feetsecond.
5 The appellate
attorneys also seem to be raising a question of the competency of trial
counsel. Peltier was initially represented on appeal by his trial attorneys,
who filed a brief on his behalf. On November 2, 1977, this court permitted new
counsel to enter the case. Peltier‘s second set of attorneys, in oral argument,
argued that Peltier’s trial attorneys should have called F.B.I. Director
Clarence Kelley as a witness for the defense, and that their failure to do so was
prejudicial to Peltier. We have carefully examined the record in the trial
court and on appeal, and have concluded that the defendant‘s trial counsel were
aggressive, capable, and informed, and engaged in sophisticated trial decisions
on strategy. Their decision not to call Clarence Kelley, who did testify in the
Butler-Robideau trial, was clearly such a tactical decision. We have read the
transcript of Kelley’s testimony at the Butler-Robideau trial, and find that
its relevance to Peltier‘s trial was highly doubtful. The allegation of
Peltier’s counsel on appeal amounts to no more than hindsight and
second-guessing by one lawyer concerning trial tactics used by another lawyer.
Peltier was equally well-represented at trial and on appeal.
6 Subsequent to
the trial in the instant case, Peltier was tried and acquitted of the charge of
attempted murder of a police officer in Milwaukee, Wisconsin. He now argues
that his acquittal dramatically illustrates the lack of probative value of the
evidence. We disagree. The evidence is probative of Peltier‘s state of mind on
the day of the murders. That state of mind was not affected by the disposition
of the charge subsequent to the murders. Furthermore, the cautionary
instruction adequately cured any unfair prejudice which could have arisen from
the jury’s knowledge of the pending assault charge.
7 Evidence that
the defendant resisted arrest is similarly admissible as showing consciousness
of guilt. United States v. Graham, 548 F.2d 1302, 1313 n.13 (8th Cir. 1977).
8 There was
evidence that at the time of his arrest several months after the Oregon
incident, Peltier was in fact aware that he was being sought for the murders of
the two F.B.I. agents. One of the officers who arrested Peltier in Canada
testified that Peltier acknowledged he knew he was wanted for the murders.
Peltier also stated he would have resisted arrest by deadly force if he had
known the police officers were nearby, saying: “I have got nothing to lose * *
* .”
9 The jury was
instructed that:
The intentional
flight or concealment of a defendant immediately after the commission of a
crime, or after he is accused of a crime that has been committed, is not of
course sufficient in itself to establish his guilt; but is a fact which, if
proved, may be considered by the jury in the light of all the other evidence in
the case, in determining guilt or innocence. Whether or not evidence of flight
or concealment shows a consciousness of guilt, and the significance to be
attached to any such evidence, are matters exclusively within the province of
the jury.
In your
consideration of the evidence of flight or concealment you should consider that
there may be reasons for this which are fully consistent with innocence. These
may include fear of being apprehended, unwillingness to confront the police, or
reluctance to appear as a witness. Also, a sense of guilt does not necessarily
reflect actual guilt.
10 The jury was
instructed that:
Evidence
relating to the Oregon incidents and the defendant‘s alleged actions in
connection with those incidents was also admitted for limited purposes. First,
you may consider it insofar as you may find it relates to items of physical
evidence that have been connected to the crime scene. Second, you may consider
evidence of defendant’s alleged actions in the Oregon incidents in determining
whether he was in flight to avoid prosecution or for some other purpose.
11 One of those
present at the Rosebud Reservation was Darrell Butler.
12 Brown also
stated that he lied to the grand jury. However, he affirmed, after his
testimony regarding lying to the grand jury, that his testimony at trial was
the truth.
13 A 302 report
is an F.B.I. form on which are transcribed notes or recollections of F.B.I.
agents made in the course of their investigations.
14 The agents
were murdered at approximately 12:00 noon.
15 The two
witnesses testified outside the presence of the jury that after their testimony
at trial, they had been threatened by Peltier himself that if they did not
return to court and testify that their earlier testimony had been induced by
F.B.I. threats, their lives would be in danger.
16 Peltier also
contends that the trial court failed to exercise any discretion at all,
declaring “its rigid policy of traditionally denying jury requests for
testimony.” We have reviewed the transcript and are not persuaded that the
trial court‘s comments may properly be construed as stating such a policy. We
note, however, the holding of the United States Court of Appeals for the
Seventh Circuit, that:
(W)e believe a
judge could properly adopt and follow a routine practice of declining such
requests unless supported by some extraordinary showing of need.
United States
v. McCoy, 517 F.2d 41, 45 (7th Cir.), Cert. denied, 423 U.S. 895, 96 S. Ct.
195, 46 L. Ed. 2d 127 (1975).
17 We note that
the United States Court of Appeals for the Second Circuit has recently declined
to give such broad effect to Frisbie and Ker, holding in United States v.
Toscanino, 500 F.2d 267, 275 (2d Cir. 1974) that:
(W)e view due
process as now requiring a court to divest itself of jurisdiction over the
person of a defendant where it has been acquired as the result of the
government’s deliberate, unnecessary and unreasonable invasion of the accused‘s
constitutional rights.
18 The use of
the affidavits of Myrtle Poor Bear in the extradition proceedings was, to say
the least, a clear abuse of the investigative process by the F.B.I. This was
conceded by government counsel on the hearing in this court. It does not,
however, follow that the testimony of this obviously confused and
“unbelievable” witness should have been permitted under either theory advanced
by Peltier as hereinbefore set forth. See discussion, Supra, at p. 332 of this
opinion.