Petition — Crow Dog v. United States

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—

| Supreme Court, U. &

ate S.

JUN 21 3975

In THE

Supreme Court of the Bute Stites". me |

Ocroper Term, 1975

No. 75-1 8 4 3

Lzonarp Crow Dos,

Petitioner,

—Y,—

Unirep States or AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Sanrorp Jay Rosen

Rosen, Remcuo & HENDERSON

3504 Clay Street

San Francisco, California 94118

JosePpH ReMCHO

Rosen, Remcuo & HENDERSON

155 Montgomery Street

San Francisco, California 94104

Attorneys for Petitioner

KENNETH TILSEN

400 Minnesota Building

St. Paul, Minnesota

Of Counsel

PAGE

Opinions Below ......... Sassiodeapssneeaaeasesiiilikaeleileiilaassiiaabciaabunsaoendai 1

SUITED: siicintescunecubiiitiabsiiheiinioshacdiisandsediitinantaaiallintebmpsdtiiane 3

IND SEIT osccecarienstacionemiosnieniaittai hndttinicieitnmniatenioi 3

Constitutional Provisions, Statutes and Rules Involved 5

PI cio 6

The pre-trial procedure ....0...............-.cccesee0- otitis 6

The hearing on pre-trial motions ................2........0000-+- 9

Fee TE ninicinsisiteibbinlaldhsshinpeabtitisdeieiticndion PST ORE IE er 14

The evidence against Crow Dog ...00.......2....0.cccec0ee-es 15

I iadinictteshiiibndinteteinlibaripnantencintnidiiniomensiichenss 19

Oe BI ncphtitecntrntncitesarniecttitaneparencnci 19

The Court of Appeals decision .........0.....0......e.eeeceeeeee 21

Reasons for ID GI WH aisctetcdiessaiinniesintiritintinininicimsnnsinin 21

I. The decision below is inconsistent with control-

ling decisions of this Court requiring the gov-

ernment to disclose to criminal defendants all

material exculpatory evidence .................2c0cece0ee 23

Il. The decision below raises important questions

with respect to the widely criticized government

practice of selectively recording and transcrib-

ing grand jury testimony that have not been but

should be decided by this Court ........0..0....see 32

Ill. The decision below, that the intentional intru-

sion of government informers within the coun-

cils of the legal defense violates none of Crow

Dog’s rights and does not entitle him to dis-

closure of the informants’ files, conflicts with

decisions in other Circuits, is inconsistent with

controlling decisions of this Court and raises

important questions that should be resolved by

BD SG ccieniiciesectsinssesnstntestaitionanitntpdianaiititonianinpiicsteininnes 37

I i i ilies " ait iei las ioe 42

PAGE

APPENDIX: 5

Opinion of the U.S. Court of Appeals, Eighth Circuit,

filed March 31, 1976 ra ~~ oa

Order of the U.S. District Court, N.D. Iowa, Cedar

Rapids Division, dated August 4, 1975 ...............-..0-+ 42a

Order of the U.S. District Court, N.D. Iowa, Cedar

Rapids Division, dated June 3, 1975 .........-.-..--:-ccese0ee T7la

Order of the U.S. District Court, N.D. Iowa, Cedar

Rapids Division, dated May 30, 1975 snd 77a

Order of U.S. District Court, District of South Dakota,

Western Division, dated May 12, 1976 ..................... 86a

Order of U.S. District Court, District of South Dakota,

Western Division, dated May 2, 1975 wee 9SB

Decision of the U.S. District Court, District of South

Dakota, Western Division, dated March 12, 1975 ........ 109a

United States Constitutional Provisions ........................ ll5a

Ra a iailbctenicleeitis 117a

Federal Rules of Criminal Procedure ............................ 124a

ili

TaBLE OF AUTHORITIES

PAGE

Cases:

Alderman v. United States, 394 U.S. 165 (1969) ......5, 31, 40

Bailey v. United States, 416 F.2d 1110 (D.C. Cir. 1969) 30

Black v. United States, 385 U.S. 26 (1966) 0000 39

Bursey v. Weatherford, 528 F.2d 483 (4th Cir. 1975),

petit. for cert. filed, U.S. ——, 44 U.S.L. Week

3610 (April 19, 1976) (No. 75-1510) 0.022... eeceeeeeseeeee 38

Campbell v. United States, 365 U.S. 85 (1961) -..00000.2..... 36

Coplon v. United States, 191 F.2d 749 (D.C. Cir. 1951),

cert. denied, 342 U.S. 926 (1952) ...ecececccccccee0e 39

Ex Parte Crow Dog, 109 U.S. 556 (1883) ..e.ccecccccoceccne-. 22

Dennis v. United States, 384 U.S. 855 (1966) 000020... 36

Giglio v. United States, 405 U.S. 150 (1972) —000... 31

Glasser v. United States, 315 U.S. 60 (1942) 2... 39

Goldberg v. United States, —— U.S. ——, 47 L. Ed. 2d

603 (1976) ia ialmenpreigienanenieaian 31, 32

Hoffa v. United States, 385 U.S. 293 (1966) -..00000...... 39, 40

Moore v. Illinois, 408 U.S. 786 (1972) -.........eceeeseeeseeeeee 26

Napue v. Illinois, 360 U.S. 264 (1959) 20 29, 31

Neil v. Biggers, 409 U.S. 188 (1972) .2.............sccsccececcesees 28

Nye & Nissen v. United States, 336 U.S. 613 (1949) ...... 30

O’Brien v. United States, 386 U.S. 345 (1967) -...0.000..... 39

PAGE

Schlinsky v. United States, 379 F.2d 735 (1st Cir.), cert.

denied, 394 U.S. 920 (1967) .. . 34

Taglianetti v. United States, 398 F.2d 558 (1st Cir.

1968), aff’d per curiam, 394 U.S. 316 (1969) ........ 38-39, 40

United States v. Aloisio, 440 F.2d 705 (7th Cir.), cert.

denicd, 404 U.S. 824 (1971) 34

United States’ v. Arradondo, 483 F.2d 980 (8th Cir.

1973), cert. denied, 415 U.S. 924 (1974) 34

United States v. Banks, 368 F. Supp. 1245 (D.S.D.

1973) 3, 7

United States v. Banks, 383 F. Supp. 368 (D.S.D. 1974),

app. dismissed, 513 F.2d 1329 (8th Cir, 1975) ....7-8, 10, 11,

12, 16, 22, 24, 41

United States v. Battisti, 486 F.2d 961 (6th Cir.

1973)... 33, 34

United States v. Baumgarten, 517 F.2d 1020 (8th Cir.),

cert, denied, 423 U.S. 878 (1975) ‘. 30-31

United States v. Cramer, 447 F.2d 210 (2d Cir. 1971),

cert. denied, 404 U.S. 1024 (1972) 33, 34, 36

United States v. Crow Dog, 399 F. Supp. 288 (N.D.

Iowa 1975) ... 10, 11, 20

United States v. Crutchley, 502 F.2d 1195 (3rd ~“‘ir.

| ae 34

United States v. Gambrill, 449 F.2d 1148 (D.C. Cir.

BOUL) ccccvcrsvscsrntsvessinssintsstniieiiiateiisiiliinlits-.- siguiiaiamaaaias 28

United States v. Gartner, 518 F.2d ¢ “(a Cir.), cert.

denied, —— U.S. ——, 96 S. Ct. 222 (1975) ................ 38

United States v. Geensital, 301 F. Supp. 39 (D.R.L.

1969) 7 34

PAGE

United States v. Hensley, 374 F.2d 341 (6th Cir.), cert.

demted, 368 U.S. 923 (1967) .............0c-reccerececccoscseseseseceoseee 34

United States v. Hill, 464 F.2d 1287 (Sth Cir. 1972) ... 30

United States v. Holder, 399 F. Supp. 220 (w.S.D.

EES Se Ee ae 2,9

United States v. John, 508 F.2d 1134 (8th Cir.), cert.

I 34

United States v. Kelton, 446 F.2d 669 (8th Cir. 1971) ... 31

United States v. King, 478 F.2d 494 (9th Cir.), ati,

denied, sub nom. Light, et al. v. United States, 414

ec 34

United States v. Larcieri, 497 F.2d 317 (3rd Cir. 1974) 34

United States v. Mandujano, —— U.S. ——, 44 U.S.L.

a 35

United States v. McCord, 509 F.2d 891 (7th Cir.), cert.

denied, —— U.S. , 46 L. Ed. 2d 51 (1975) ............ 34

United States v. Peden, 472 F.2d 583 (2d Cir. 1973) .... 34

United States v. Rispo, 460 F.2d 965 (3rd Cir. 1972) .... 38

United States v. Thoreson, 428 F.2d 654 (9th Cir. 1970) 35

United States v. Wade, 388 U.S. 218 (1967) 20000 .. 28

United States v. Williams, 341 U.S. 58 (1951) 22000... 30

United States v. Zarzour, 432 F.2d 1 (5th Cir. 1970) .... 38

Via v. Cliff, 470 F.2d 271 (3rd Cir. 1972) 00. 38

Washington v. Texas, 388 U.S. 14 (1967) -20 36

U.S. Constitution :

EE EES 4, 41

EES 4,5, 41

Cg EE 4, 5, 35, 41

I a rcseermemenecons 4, 5, 35, 38, 39, 41

I snemeenasecel 4, 5, 41

PAGE

Federal Rules of Criminal Procedure :

ET ae 33, 36

Rule 6(e) ... 5, 36

Rule 21(a) 7

Statutes:

United States Code:

18 U.S.C. §2 . 5, 6

18 U.S.C. $111 .............. 5, 6

18 U.S.C. $1114 ....... 5, 6

& £ se 5, 6

18 U.S.C. § 2112 .......... 5, 6

18 U.S.C. § 3500 5

18 U.S.C. § 3500(e)(3) .. 36

28 U.S.C. §1254(1) .. 3

Other Authorities:

Final Report of the Select Committee to Study Govern-

mental Operations With Respect to Intelligence Ac-

tivities: Supplemental Detailed Staff Reports on

Intelligence Activities and the Rights of Americans:

Book III, pp. 225-270, “The Use of Informants in

F.B.I. Domestic Intelligence Operations” (U.S. Sen.

Rep. No. 94-755, April 23, 1976) ....

Book II at pp. 67-82 ...............

8 Moore’s Federal Practice—Criminal Rules 16.02(2)

at 6-17 (1975)

Note, New Threat to First Amendment Freedoms, 37

Geo. Wash. L. Rev. 634 (1969)

PAGE

Report of the ABA Special Committee on Fed. Rules

of Procedure 106-07 (Aug. 1965)

Report of the ABA Special Committee on Fed. Rules

of Procedure 94-95 (Feb. 1971) .

1 Wright, Federal Practice and Procedure, Criminal

§ 103 at 161 (1969) 2... nas - 35

PR are

In THE

- Supreme Court of the United States

Ocrosper Term, 1975

P No. 75+...---------

—

Leonarp Crow Dos,

Petitioner,

—Vv.—

Unirep Stares or AMERICA,

Respondent.

—>-

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The petitioner, Leonard Crow Dog, who was defendant

below, prays that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the

Eighth Circuit, entered in this case on March 31, 1976.

Opinions Below ,

The opinion of the United States Court of Appeals for

the Eighth Circuit, affirming the final judgment of conviction

in the United States District Court for the Northern Dis-

trict of Lowa, is unreported. It is set forth in the Appendix,

infra, at p. la.

The August 4, 1975 Order of the United States District

Court for the Northern District of lowa denying two pre-

trial motions to dismiss and denying post trial motions for

‘

judgment of acquittal or new trial and for post trial relief

is reported at 399 F. Supp. 228. It is also set forth in the

Appendix, infra, at p. 42a.

The June 3, 1975 Order of the United States District

Court for the Northern District of Iowa, denying the

government’s motion to amend that court’s Order of May

30, 1975, concerning discovery and other pretrial order is

unreported. It is set forth in the Appendix, infra, at p. “la.

The district court’s Order of May 30, 1975 is also unre-

ported. It is set forth in the Appendix, infra, at p. 77a.

The May 12, 1975 Order of the United States District

Court for the District of South Dakota denying petitioner’s

motion to dismiss, granting in part and denying in part his

motion to produce grand jury minutes, consolidating his

trial with that of two other defendants, and severing a

third count of his indictment, is unreported. It is repro-

duced in the Appendix, infra, at p. 86a.

The May 2, 1975 Order of the United States District

Court for the District of South Dakota, denying in part

and granting in part petitioner’s motion concerning deter-

mination of venue and changing venue to the United States

District Court for the Northern District of Iowa, is re-

ported as United States v. Holder, 399 F. Supp. 220. It is

also included in the Appendix, infra, at p. 93a.

The March 12, 1975 Order of Chief Judge Fred J. Nichol,

of the United States District Court for the District of

South Dakota, granting the government’s motion to recuse,

is unreported. It is set forth in the Appendix at p. 109a.

Other orders have been entered in the case, both by the

Court of Appeals and the district courts, but are not in-

cluded in the Appendix. With one exception, these were

each essentially minute Orders. A December 17, 1973 Memo-

randum Decision denying a defense motiou to dismiss in-

dictments arising out of the 1973 occupation-siege of the

town of Wounded Knee, South Dakota, on grounds, inter

alia, of unlawfully se octive prosecution, is reported as

United States v. Banks, 368 F, Supp. 1245. The petitioner’s

motion to dismiss the indictments then outstanding against

him, but later superseded by the ones under which he was

convicted, was in effect also denied by that Memorandum

Decision. However, that decision does not appear in the

Docket Sheets of the instant case that were a part of the

Record transmitted to the Court of Appeals. That Memo-

randum Decision is not reproduged in the Appendix to this

Petition.

Jurisdiction

The judgment of the Court of Appeals was entered on

March 31, 1976 in accordance with the Opinion entered on

that date. A timely petition for-rehearing and suggestion

for rehearing en banc was denied by a minute Order dated

April 22, 1976. By an Order of May 12, 1976, Justice

Blackmun extended the time for filing the Petition for Writ

of Certiorari to and including June 21, 1976. The jurisdic-

tion of this Court is invoked pursuant to 28 U.S.C.

§$1254(1).

Questions Presented

(1) Whether the defendant is entitled to a new trial due

to newly discovered exculpatory evidence which had been

suppressed by the government?

(2) Whether the defendant was entitled to an eviden-

tiary hearing to determine the existence and materiality

of the newly discovered exculpatory evidence which had

been suppressed by the government?

(3) Whether the defendant was entitled to a dismissal

or a new trial because the government’s intentional failure

to perpetuate the grand jury testimony of law enforcement

personnel who testified at trial violated the defendant’s

rights to confrontation and cross examination and equal

access to evidence under the Fifth and Sixth Amendments

to the United States Constitution, the Jencks Act and the

Federal Rules of Criminal Procedure?

(4) Whether this Court should, under the exercise of its

supervisory powers, order that all federal grand jury tes-

timony be recorded so that it can be made available to the

parties and courts in appropriate cases?

(5) Whether the defendant was entitled to a dismissal

or a new trial because the government deliberately placed

paid F.B.I. informants in the legal defense camp in vio-

lation of the defendant’s rights to freedom of speech and

association, privacy, effective assistance of counsel, due

process of law, and freedom from unreasonable searches

and seizures under the First, Fourth, Fifth, Sixth and

Ninth Amendments to the United States Constitution?

(6) Whether this Court should, under its supervisory

powers, grant the defendant dismissal or a new trial be-

cause of gross government misconduct, including the use

of paid informers in the defense legal camp?

(7) Whether the defendant was entitled to discovery

and disclosure of all material bearing upon the govern-

ment’s misconduct, including its use of paid informers in

the defense legal camp, and to the kind of proceedings on

these issues contemplated by Alderman vy. United States?

(8) Whether this Court should, under its supervisory

powers, establish rules for the serutiny-and control of gross

government misconduct, ineluding the use of paid informers

in the defense legal camp?

Constitutional Provisions, Statutes and

Rules Involved

United States Constitution

Amendment I, Appendix, infra at p. 115a.

Amendment IV, Appendix, infra, at p. 115a.

Amendment V, Appendix, infra, at p. 115a.

Amendment VI, Appendix, infra, at pp. 115a-116a.

Amendment IX, Appendix, infra, at p. 116a.

United States Code, Title 18

§ 2, Appendix, infra, at p. 117a.

§ 111, Appendix, infra, at p. 117a.

§ 1114, Appendix, infra, at pp. 118a-19a.

§ 1153, Appendix, infra, at pp. 119-20a.

§ 2112, Appendix, infra, at p. 120a,

§ 3500, Appendix, infra, at pp. 121a-23a,

Federal Rules of Criminal Procedure

Rule 6(e) (with April 26, 1976 amendments), Appen-

dix, infra, at p. 124a.

Statement of the Case

This Petition explores three basic areas for review. They

involve government suppression of exculpatory evidence,

selective recordation and transcription of grand jury testi-

mony, and intrusion of government informants into the

councils of the defense legal team. The record in the case

is fairly complex, consisting of numerous pleadings, as

well as a three volume transcript of motion proceedings

and a four volume transcript of proceedings at trial and a

simultaneous “taint” or suppression hearing.’ In addition,

the instant case is related to others arising out of the

occupation-seige of Wounded Knee, South Dakota in 1973.

Proper understanding of the Questions Presented and Rea-

sons for Granting the Writ require some substantial elabo-

ration of the record in this case and its relationship to

other cases.

Petitioner Leonard Crow Dog [hereinafter defendant or

Crow Dog] was convicted on June 5, 1975 of violating 18

U.S.C. §$111 and 1114 (interfering with and intimidating

postal inspectors) and 18 U.S.C. §§1153 and 2112 (unlaw-

fully taking a pistol from a postal inspector). Defendant

was convicted under 18 U.S.C. §2 as an aider and abettor

due to his presence at the scene of the incidents in question.

(Each of the above statutes is set forth infra, at App. pp.

117a-120a. )

The pre-trial procedure

These charges arose out of an incident that took place

on March 11, 1973, during the occupation-seige of Wounded

1 References to the Motions Transcript will be indicated as

Mot. Tr.; references to the Trial and “taint” hearing transcript

will be indicated as Tr.; references to material in the Appendix

to the Petition will be indicated as App.

a er

Knee, South Dakota, and involved the alleged detention of

four United States postal inspectors by members of the

American Indian Movement (AIM). The charges were con-

tained in an indictment that was handed down by a grand

jury in the District of South Dakota on December 12, 1974.

Carter Camp and Stanley Holder, co-defendants with Crow

Dog at trial, were each charged with the identical offenses

in separate indictments handed down on December 12, 1974.

The at ve indictments superceded indictments which had

been returned in March and April of 1973 against these

three men as well as four other men, who were aileged to

have been prominently involved in the Wounded Knee

incidents. The 1973 indictments charged each of the seven

individuals with conspiracy in one count and with substan-

tive offenses in ten other counts.

In June 1973, the seven defendants moved to consolidate

their cases for trial. The Hon. Fred J. Nichol, Chief Judge

of the United States District Court for the District of

South Dakota, ordered a joint trial for two of these defen-

dants, Dennis Banks and Russell Means, but denied con-

solidation to the others.

In October 1973, the seven defendants moved for a change

of venue pursuant to Fed. R. Crim. P. 21(a). They satis-

fied Judge Nichol that prejudice against them existed in

South Dakota, and venue was transferred to St. Paul,

Minnesota.

The Banks and Means trial began in St. Paul before

Judge Nichol in January 1974. One count of the indictment

against them had been dismissed pre-trial, United States

v. Banks, 368 F. Supp. 1245 (D.S.D. 1973); a judgment of

acquittal as to five counts was ordered at the close of the

government’s case, United States v. Banks, 383 F. Supp.

368 (D.S.D. 1974); thereafter, on September 13, 1974, the

remaining counts were dismissed due to a series of inci-

dents of government misconduct, United States v. Banks

383 F. Supp. 389 (D.S.D. 1974), app. dismissed, 513 F.2d

1329 (8th Cir. 1975).

New indictments were issued against defendant Crow

Dog, as well as Camp and Holder, on December 12, 1974,

two months after the final dismissal of the Banks and Means

prosecution. The new indictments were handed down by a

grand jury sitting in the District of South Dakota, effec-

tively returning prosecution of these defendants from St.

Paul, Minnesota, back to South Dakota. On January 28,

1975, Crow Dog pleaded not guilty to all counts in the new

indictment. The original 11-count indictments against Crow

Dog, Camp and Holder, which had been transferred to St.

Paul, were dismissed on February 5, 1975. Subsequently,

Judge Nichol recused himself and reassigned the cases

under the December 12, 1974 indictments to Chief Judge

Edward McManus, of the United States District Court for

the Northern District of Iowa, then sitting by designation

in the District of South Dakota. (See App. at pp. 109a-

114a.)

A pretrial conference was held on April 16, 1975. Numer-

ous defense motions were filed seeking, inter alia, dismissal

of the charges based upon denial of a speedy trial, bad faith

prosecution, governmental misconduct and a claim that

only hearsay testimony was presented before the grand

jury returning the indictments. Defense motions also

sought a determination of venue and transfer from the

district; production of the transcripts of the grand jury

testimony of those witnesses the government intended to

eall at trial; disclosure of each government informer or

— 6 eR ee ee de

tee SG Ay - 6

operative having contact with any defendant or any mem-

_ ber of the defense legal team; and disclosure of all exculpa-

tory and impeaching evidence. In addition, the govern-

ment filed a motion to consolidate the indictments against

the three defendants for the purposes of trial.

On May 2, 1975, the district court transferred venue to

the Northern District of Iowa, Cedar Rapids Division, be-

cause prejudice against Indians “created a reasonable like-

lihood of impairing defendants’ right to a fair trial in the

District of South Dakota.” The court rejected, however,

the defendants’ argument that the superseding indictments

were merely a continuation of the earlier indictments

against the same defendants and that, pursuant to Judge

Nichol’s earlier transfer order, venue was still in St. Paul,

Minnesota. United States v. Holder, 399 F. Supp. 220

(D.S.D. 1975). (App. at pp. 93a-108a.) The government’s

motion to consolidate was granted on May 12, 1975. In the

same order, the defendants’ motion to dismiss because of

improper grand jury testimony was denied, but their 1mo-

tion to produce the grand jury minutes was granted in part

and denied in part. (App. at pp. 86a-92a.)

The hearing on pre-trial motions

On May 27, 1975, a three-day evidentiary hearing com-

menced on the defendants’ motions for dismissal on grounds

of prosecutorial misconduct, discriminatory prosecution and

denial of speedy trial. Some of the discovery motions were

also considered and renewed at that hearing. After the

hearing the motions to dismiss were taken under advise-

ment, and were not passed upon until after the adverse

jury verdicts,

One of the issues treated in the hearing on these motions

concerned intrusion of government informers into the coun-

cils of the legal defense. On March 21 and 29, 1974, during

the trial of the Banks-Means case, Judge Nichol ordered

the government to disclose all “information pertaining to

FBI informants, including ‘evidence arguably relevant to

invasion of or contact with the defense attorney’s camp.’ ”

United States v. Crow Dog, 399 F. Supp. 228, 237. (App. at

p. 58a.) As Judge McManus found in the instant case, the

government placed a “strained construction” upon that

order. Ibid.

Although we are reluctant to make the charge, it is clear

that the same government attorneys who were responsible

for prosecution both of the Banks-Means case and of the

Crow Dog case, filed false and misleading affidavits with

Judge Nichol, denying any such contact with or invasion of

“the defense attorneys’ camp” by F.B.I. informants or

operatives. Judge McManus even went so far as to suggest

that the prosecutors’ false affidavits constituted “a possible

contempt matter to be dealt with by Judge Nichol in that

fashion if should he so desire.” 399 F. Supp. at 337. (App.

at p. 53a.) That the affidavits were false and misleading is

further confirmed by the frequently remarkable and bizarre

testimony at the hearing on the pretrial motions in the in-

stant case by the prosecutors and the F.B.I. special agents

with whom they were working. (See Mot. Tr. 56, line 19 to

82, line 18; Mot. Tr. 120, line 22 to 124, line 20; Mot. Tr.

146, line 7 to 149, line 11; Mot. Tr. 226, line 10 to 252, line

13; Mot. Tr. 287, line 18 to 307, line 18; Mot. Tr. 400, line

21 to 411, line 12; Tr. 436, line 20 to 446, line 16.)

After the final dismissal in the Banks-Means case, and

befor. the start of the trial in the instant case, the defense

learned that at least two government informants or opera-

tives, Douglas Durham and John Schafer (a/k/a Harry

or Gy Schaffer), had infiltrated the Wounded Knee Defense-

ome

Pa et ts TY ee eee @ 1

- — a

coe z=

Noms Se Se eee

Offense Committee. The Committee was a highly integrated

legal organization of Wounded Knee defendants, attorneys

and legal assistants, who were and remained responsible

for the legal representation of all seven of the original de-

fendants (including Crow Dog) who were originally in-

dicted in March and April of 1973. In fact, Kenneth Tilsen,

Crow Dog’s trial attorney in the instant case was also one

of Russell Mean’s attorneys in the trial before Judge Nichol.

The names of both Durham and Schafer appear on a list

of defense team members, which was employed by the pros-

ecutors when they conducted an extensive examination of

informant files in an attempt to comply with Judge Nichol’s

March 21 and 29, 1974 orders. (Mot. Tr. 240, line 21 to 242,

line 4.) Further, before submitting their false and mis-

leading affidavits to Judge Nichol, these prosecutors had

examined the files of Durham and Schafer. (Mot. Tr. 252,

line 10 to 253, line 9.) The prosecution’s explanation for

executing the false affidavits was that they had examined

the files “not to determine who the informants were but

what type of information was being passed by the in-

formants” (Mot. Tr. 233, lines 17-19), despite Judge

Nichol’s clear order “directing disclosure of information

pertaining to FBI informants, including ‘evidence arguably

relevant to invasion of or contact with the defense attor-

ney’s camp,’” United States v. Crow Dog, 399 F. Supp.

228, 237 (N.D. Lowa 1975). (App. at p. 53a.)

Durham had come to St. Paul, Minnesota from another

mid-Western City, where he had been working as an F.B.I.

informant and operative, to continue such work “in a secur-

ity capacity [ostensibly for the defendants] at the [ Banks-

Means) trial.” (Mot. Tr. 126, line 22 to 132, line 4.) For

this work, he was paid by the F.B.J. approximately $1,000

to $1,100 per month. (Mot. Tr. 131, line 23 to 132, line 4.)

During the course of the Banks-Means trial, Durham

had 15 to 20 contacts with special agent Raymond Williams,

20 to 25 contacts with special agent Robert Taubert and 2

to 3 contacts with special agent Douglas Hoferer, each of

whom was assigned to the Mmneapolis Office of the F.B.1.

(Mot. Tr. 133, line 16 to 134, lune 12.) There is no question

that Durham was present at conferences between the de-

fendants and their lawvers. (£.g., Mot. Tr. 123, lines 4-9;

Mot. Tr. 152, lines 6-8; Mot. Tr. 265, iines 2-5.) Further,

Williams admitted that he “very likely discussed” the case

during the trial with special agent Ray Gammon, who was

in the courtroom throughout the Banks-Means trial. And

Williams was unable to testify that he did not discuss his

operatives with Gammon during that trial. (Mot. Tr. 145,

line 2 to 146, line 6.)

At the hearing on the defendants’ motions to dismiss in

the instant case, Williams was the only F.B.I. special agent

to testify who had been in direct contact with Durham. The

cross-examination of Williams, however, was severely

limited because of a departmental rule forbidding F.B.I.

agents from answering certain types of questions without

permission from their superiors. (Mot. Tr. 134, line 22 to

137, line 17; Mot. Tr. 179, lines 9-13.) Further, although

the court received and reviewed Durham’s F.B.I. file (and

that of Schafer, as well as other documents in camera, e.g.,

Mot, Trans. 138, line 5 to 139, line 9), defendants’ counsel

was denied any opportunity to examine the in camera

exhibits. The defendants repeatedly complained that effec-

tive cross-examination, both of Williams and the prosecu-

tors, was being denied because the in camera exhibits

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remained undisclosed. These complaints and their renewed

motion for leave to examine the in camera exhibits ini-

tially were taken under advisement. (F.g., Mot. Tr. 135,

line 8 to 137, line 17; Mot. Tr. 180, line 18 to 181, line 7;

Mot. Tr. 253, lines 10-15; Mot. Tr. 348, line 17 to 349, line 4;

Mot. Tr. 446, line 17 to 447, line 19; Mot. Tr. 453, line 3 to

455, line 21.) However, the motions were denied in a writ-

ten order of May 30, 1974. (App. at pp. 77a-85a.)

Thus no cross-examination was conducted concerning any

fact in Durham’s file, which was six inches thick (Mot. Tr.

160, lines 6-15), or in the other in camera files and exhibits.

Obviously, defendants’ counsel was unable to prove or test

anything concerning the natire of the material and in-

formation passed by Durham or other informants to the

I’.B.1. and the prosecution, or to determine the bearing that

this material and information might have had on Crow

Dog’s prosecution.

The district court’s written order of May 30, 1975 dis-

posed of the defendants’ outstanding discovery motions.

The court denied a request that it examine in camera all

government files relating to the cases for exculpatory evi-

dence; and denied the defense motions to examine the

names and files of informants and other in camera exhibits.

It did order the government tv provide the defendants prior

to trial with any information concerning misconduct of

government witnesses and bearing on their credibility. It

also ordered the government to produce for the court’s in

camera inspection the names and files of all informants

“who arguably have had contact with the legal team of the

defendants,” and to produce affidavits by the prosecutors

addressing the relation of any informants to the proceed-

ings. (App. at pp. 77a-85a.)

Three affidavits, by the same prosecutors who had grossly

misconstrued Judge Nichol’s disclosure orders of March 21

and 29, 1974, were filed on June 2 and 16, 1975. The pros-

ecutors admitted

That during the period of January 1, 1973, to May

31, 1975, the total number of government informants

utilized during the Wounded Knee affair, and in connec-

tion with all prosecutions arising therefrom, was 313.

They also declared,

That no information secured by any of these inform-

ants concerning defense strategy relating to the

present cases or previous cases involving the same

defendants has been passed on to the investigative

agency or the prosecutors.

(Affidavit of William F. Clayton, R.D. Hurd, and David

R. Gienapp, filed June 16, 1975) (Emphasis added).

The trial

The trial began on June 2, 1975 with the jury selection

which consumed one day. The prosecution began presenting

its case on June 3, 1975, and concluded the next day on

June 4, 1975. The only testimony it offered was by three

of the four postal inspectors involved in the March 11,

1{ 73 incident, Gene Graham, Donald Schneider and Jack

Hanson.

Before each of the prosecution witnesses testified, he was

subjected to examination at eye-witness identification

“taint” or suppression hearings outside of the jury’s pres-

ence. (Tr. 236, lines 8-13; Tr. 237, line 1 to 284, line 16

(Graham) ; Tr. 394, line 24 to 401, line 12 (Hanson) ; Tr. 408,

line 19 to 443, line 7 (Schneider).) Motions to suppress

eye-witness identification of the defendant Crow Dog by

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Graham and Schneider were made on the grounds, inter alia,

that the identification by these prosecution witnesses was

tainted by improper photo-layout and other improper pre-

trial identification procedures. (2.g., Tr. 234, line 10 to

236, line 13; Tr. 285, line 21 to 287, line 3 (Graham) ; Tr. 443,

line 21 to 450, line 18 (Schneider).) These motions were

denied. (£.g., Tr. 287, lines 11-14 (Graham); Tr. 450, lines

19-24 (Schneider). However, after Hanson’s interrogation

at the suppression hearing, the prosecution announced that

he would not identify any of the defendants at the trial. (Tr.

402, lines 14-16; Tr. 406; lines 3-16.)

It was not contested at trial that, on March 11, 1973, four

postal inspectors were taken prisoner or “interfered” with

outside of Wounded Knee, transported into town and held

captive for several hours at a museum, before being released

unharmed. Nor was it contested that government property

was taken from them. At issue was the alleged role of the

defendants. With respect to Crow Dog’s participation, the

testimony of the prosecution’s three witnesses is contradic-

tory and otherwise faulted.

The evidence against Crow Dog

Inspector Hanson did not identify any of the defendants.

However, he testified, consistently with an eleven-page re-

port he sent on April 16, 1973, to the United States Attor-

ney, that a person (whom the prosecution agreed was un-

questionably Crow Dog (Tr. 494, line 23)), “entered the

museum, gave us his dialogue and left without having taken

an active part in the kidnapping, robbery or release” (Tr.

495, lines 14-17; Tr. 499, lines 13-18). According to Hanson,

this persou Spoke about concerns to the Indian people, and

the general theme of the talk was the Wounded Knee mas-

sacre of 1890. (Tr. 491, line 21 to 492, line 10.)

Inspector Graham testified that after entering the

museum at Wounded Knee, he surrendered the keys to his

briefcase to a man he identified as Crow Dog. (Tr. 305, line

5 to 309, line 12.) He also testified that Crow Dog lectured

to the postal inspectors for five or ten minutes and “com-

mented that we should be searched in groin area for radios.”

No such search took place. (Tr. 310, lines 1-22; Tr. 352, lines

3 to 10.)

After the March 11, 1973, incidents, Graham learned

that Leonard Crow Dog was the spiritual leader of the

American Indian Movement (Tr. 347, line 2 to 348, line

6), and “came to identify him with the individual that

lectured us in the museum” (Tr. 348, lines 4-6). However,

he could not explain how he made this identification. (Tr.

348, lines 1-14). In fact, he admitted that he was mistaken

in his belief that he saw Crow Dog’s picture in a newspaper,

in connection with a story in April or May, 1973, about a

trip some of the Indians were taking to Washington, D.C.

(Tr. 350, line 16 to 351, line 15; Tr. 277, line 17 to 279, line 13

(taint hearing) ).

It never was disclosed how Graham came to identify

Crow Dog. He did, however, have ample opportunity,

in consultation with F.B.I. agents and government prose-

cutors, to do so. And, at the taint hearing, he admitted

that it was possible he may have been shown and not

recognized a photograph of Crow Dog immediately after

the incident. (Tr. 283, lines 13-15 (taint hearing).) Graham

testified twice before grand juries concerning the incident,

once shortly after his release in March, 1973, and once in

December, 1974, (Tr. 332, lines 19-24; Tr. 349, lines 1-5.)

He also testified about these events at the Banks-Means

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trial (Tr. 334, line 6 to 335, line 5), and once in Lincoln,

Nebraska (Tr. 335, lines 14-19). He spent considerable

time in the prosecutors’ offices during these occasions.

(Tr. 333, line 13 to 336, line 2.) He was interviewed seven

or eight times by the F.B.I. concerning the incident and

filed at least four separate reports of the incident with

his superiors. (Tr. 336, line 7 to 337, line 17.) But before

the trial, he never mentioned that Crow Dog had “com-

mented that we should be searched in the groin area for

radios.” (Tr, 351, line 22 to 353, line 18.)

Further, Graham was familiar with the eleven-page let-

ter sent by Hanson on April 16, 1973, to the United States

Attorney (Tr. 337, line 17 to 338, line 2), and with its

statement that Crow Dog “did not take any active part in

the kidnapping, robbery or release.” (Tr. 339, line 13 to

340, line 19.) Yet, he never took issue with Hanson’s testi-

mony about “Mr. Crow Dog’s non-participation in the event

other than what you call lecturing.” (Tr. 340, lines 9-13;

Tr. 356, lines 3-9.)

In an interview with an F.B.I. agent, resulting in that

agent’s report of August 3, 1973 (Tr. 341, lines 2-7),

Graham stated that there was one item that he apparently

failed to mention in his previous statement. (Tr. 354, line

19 to 356, line 1.) According to the F.B.1. agent’s report,

As he was entering the museum someone behind him

asked for the car keys. Graham said he then turned

around and handed the keys to a person whose identity

he later determined to be Leonard Crow Dog. (Tr.

341, lines 16-19.)

At trial, Graham’s testimony conflicted with his prior

statements, and was internally contradictory as well. He

testified that the event with the car keys never took place

(Tr. 342, lines 5-23), that the key ‘o his briefcase and not

his car keys was involved (Tr. 341, line 23 to 342, line 19),

that his contact with Crow Dog occurred about one half

an hour after he, Graham, had entered the museum (Tr.

343, limes 3-19), that he did not see the defendant before

he got into the museum (Tr. 388, lines 2-5), and that when

he first saw the defendant he had already been loosely tied

(Tr. 386, lines 6-8). He also testified that he saw Crow Dog

either in the museum or during the course of his release

(‘I'r. 385, lines 7-11), that Crow Dog asked Graham for his

keys after Crow Dog had delivered his speech (Tr. 381,

line 17 to 382, line 15), that Crow Dog then went outside

and, Graham “believes,” then came back inside (Tr.

379, lines 19-24), that he saw Crow Dog at least twice on

March 11, 1973 (Tr. 379, line 25 to 380, line 8), and finally

that he saw Crow Dog only once (Tr. 384, lines 5-18; Tr.

389, lines 1-11).

Inspector Schneider also identified Crow Dog. He testi-

fied that “there was a time when either Mr. Crow Dog, or

a man by the name of Dan Holder, came in and asked for

the keys to Inspector Graham’s car, and also Nelson’s brief-

case.” (Tr. 511, lines 18-21.) He also contended that he

first saw Crow Dog in front of the museum and heard him

say they were prisoners of war (Tr. 512, lines 11-13), that

Crow Dog entered the museum with them and repeated his

statement about them being prisoners of war (Tr. 512, line

22 to 513, line 1), and that Crow Dog suggested that a very

thorough search, including a search of their crotches, be

conducted for hidden microphones (Tr. 513, lines 1-7).

Schneider also testified that Crow Dog gave him his coat

and watch when he asked for it. (See Tr. 518, lines 11-17.)

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According to Schneider, “we were then cautioned by an

' Indian that’ lectured to us on the evil ways of the white

man.” (Tr. 531, lines 3-9.) This lecture lasted about 45

minutes. (Tr. 539, line 11.) He stated that Crow Dog was

not the lecturer. (Tr. 539, lines 11-22, Tr. 350, lines 7-21.)

According to Schneider, he first identified Crow Dog in

the F.B.I. office in Minneapolis on April 17, 1975, when the

prosecutors, F.B.I. agents and postal inspector-witnesses

met after the pre-trial conference to prepare for trial. (Tr.

541, line 7 to 545, line 14.) This identiication took place

nearly twenty-six months after the events in question.

‘After the testimony of their three witnesses, the prosecu-

tion rested. (Tr. 565, line 22.) The defendants renewed

motions to strike certain testimony, on grounds, inter alia,

of surprise and tainted identification evidence. (E.g., Tr.

571, lines 11-25.) They also moved for a judgment of ac-

quittal based upon the insufficiency of the evidence against

them (Tr. 576, lines 9-12.) All such motions were denied.

(Tr. 593, lines 2-10.)

The conviction

The defendants rested without presenting any testimony

(Tr. 599, lines 6-9), and immediately renewed their motion

for judgment of acquittal. (Tr. 599, line 23 to 600, line 9.)

That motion was again denied by the court. (Tr. 600, lines

10-11.) On June 5, 1975, after deliberating for three hours,

the jury returned guilty verdicts as to all charges against

Crow Dog and his co-defendants. (Tr. 696, line 2 to 699,

line 7.)

Post-trial proceedings

On June 27, 1975, the defendants filed a post-trial motion

for acquittal or new trial based primarily upon insufficiency

of the evidence, the government’s failure to disclose evi-

dence and problems with the in-court identification of the

defendants. A second post-trial motion was filed on July

25, 1975, seeking to supplement the record and to secure

an evidentiary hearing with respect to newly discovered

evidence. The defendants contended that the newly dis-

covered evidence was an identifiable group of photographs

which apparently had been used in the process of identifying

the defendants and had been suppressed by the govern-

ment. This group of photographs probably included photo-

graphs of the defendants, and was also likely to have been

shown to the prosecution witnesses when they were ques-

tioned by the F.B.I. immediately after they were released

on March 11, 1973. (See Motion for Post-Trial Relief, and

supporting affidavits and exhibits; Supplemental Affidavit

and Reply to Government’s Response to Motion for Post-

Trial Relief.) Yet, each of the prosecution witnesses to

present in-court identifications stated that to the best of

his recollection he did not see any photograph of any of the

defendants when he was interrogated by the F.B.I. on

March 11, 1973. (Tr. 239, lines 3-24; Tr. 283, lines 1-21;

Tr. 437, lines 3-16.)

On August 4, 1975, the court denied all outstanding de-

fense motions for dismissal, judgment of acquittal, new

trial and evidentiary hearing. United States v. Crow Dog,

399 F. Supp. 288 (N.D. Iowa 1975). (App. at pp. 42a-70a.)

On August 5, 1975, Crow Dog was sentenced to three years

on Count I (interference with postal inspectors) and eight

years on Count II (robbery of government property), the

sentences to run concurrently. Execution of the sentences

was suspended and Crow Dog was placed on probation for

five years. On February 4, 1976, probation was revoked

because he was convicted of subsequent offenses. An ap-

peal is now pending in the United States Court of Appeals

for the Eighth Circuit from a subsequent conviction in

which he was ordered to serve a prison term. (8th Cir. No.

75-1934. )

}

‘

The Court of Appeals decision

In the instant case, the Court of Appeals affirmed the

judgment of conviction against Crow Dog. It held, inter

alia, that he had not demonstrated that he was entitled to a

further hearing or a new trial because the government had

suppressed exculpatory evidence, he had not demonstrated

that his rights to a speedy indictment and trial had been

violated, and he had not demonstrated that there was in-

sufficient evidence to sustain the conviction. Further, inas-

much as he had not demonstrated that he had in fact been

prejudiced by discriminatory and bad faith prosecution

and government misconduct, including invasion of the de-

fense legal team by government informants, he was not

entitled to dismissal on those grounds. He was also not

entitled to reversal or dismissal because of the govern-

ment’s systematic failure to record and transcribe the grand

jury testimony of law enforcement personnel. (App. at

pp. 1a-40a.) On this last point, Judge Lay concurred sepa-

rately, sharply criticizing the government’s practice and

cautioning the district courts within the Eighth Circuit to

promulgate local rules requiring the recording of such

grand jury testimony. (App. at pp. 40a-4l1a.)

Reasons for Granting the Writ

This case brings before the Court certain police and

prosecutorial practices of the federal government that are

at best shoddy. In fact, they are a serious danger to our

liberties. The argument for review is all the more com-

pelling because of the context of this case. These practices

occurred in the course of a criminal prosecution arising out

of a highly publicized political event, the Wounded Knee

occupation-seige. The first federal prosecution of any of

the Indian leaders involved in that event, the Banks-Means

case, ended, after a nine month jury trial, with court-ordered

dismissals for gross and flagrant misconduct by the same

government lawyers who prosecuted the instant case. The

petitioner, Leonard Crow Dog, had been rebuffed by the

government in his timely efforts to secure an early trial of

the charges against him by consolidating his trial with that

of Banks and Means. Crow Dog is an acknowledged Indian

Medicine Man and spiritual leader of numerous Indian

Tribes, who traces his ancestry to a successful applicant for

review by this Court, Ea Parte Crow Dog, 109 U.S. 556

(1883). The evidence of Crow Dog’s guilt of the offenses

charged as an aider and abettor was barely adequate to

sustain the conviction and might well not have survived

further scrutiny, had ihe government not rendered it im-

possible for a proper and exhaustive testing of the evidence

against him to occur.

Before the trial court and in the Court of Appeals, de-

fendant raised numerous challenges to his prosecution and

conviction. They are surveyed at some length in the opin-

ions contained in the Appendix to this Petition. It is ap-

propriate to examine those opinions to appreciate the full

range of defects that were challenged by defendant. They

suggest something of the total circumstances of the case,

in which the array of government forces brought to bear

ultimately upon this defendant reflects poorly upon our sys-

tem of criminal justice and raises more questions than it

answers.

In this Petition only three of the government’s practices

in the case are addressed. For they are the ones, under the

technical rules for review by this Court, that are most avail-

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able to us. But they raise many of the serious questions.

They involve the government’s willful or negligent failure

to disclose exculpatory evidence, the government’s purpose-

ful and systematic practice of failing to preserve material

evidence, and the government’s flagrant use of paid in-

formers who infiltrate and compromise the councils of a

criminal defendant’s legal team.

The decision below is inconsistent with controlling

decisions of this Court requiring the government to dis-

close to criminal defendants all material exculpatory

evidence.

The Court of Appeals acknowledged that “[a] more diffi-

cult question is presented with regard to appellant’s allega-

tion that the government failed to disclose exculpatory

evidence to the defense in violation of the dictates of Brady

v. Maryland,” 373 U.S. 83 (1963). (App. at p. 14a.) Never-

theless, that court concluded that the defendant is entitled

to neither an evidentiary bearing on this issue nor to a new

trial. (App. at pp. 14a-22a.)

Immediately after the incident giving rise to the indict-

ments, each prosecution witness to make in-court identifica-

tions spent several hours in the F.B.I. office in the Bureau

of Indian Affairs building in Pine Ridge, South Dakota

examining a stack of phetographs. (Tr. 268, lines 8-25

(Graham) ; Tr. 283, lines 1-21 (Graham) ; Tr. 437, lines 3-16

(Schneider) ; see Tr. 488, lines 17-24 (Schneider).) These

witnesses do not recall seeing any photographs of Crow

Dog, and made no identification of the defendant at that

time. (Tr. 239, lines 3-24 (Graham); Tr. 283, lines 1-21

(Graham) ; Tr. 437, lines 3-16 (Schneider).) Before, dur-

ing and after the trial, defendant made motions for dis-

covery of these photographs. (April 16, 1975, Motion to

Compel Attorneys for the Government to Disclose Evidence

Favorable to the Defendants; Tr. 270, lines 1-19; July 25,

1975, Motion for Post-Trial Relief, and attachments; Au-

gust 5, 1975, Supplemental Affidavit and Reply to Govern-

ment’s Response to Defendants’ Motion for Post-Trial Re-

lief.) They have never been provided to defendant nor to

the courts below.

During the trial the prosecutor stated that the govern-

ment had supplied defense counsel with “all [the] photo-

graphs that we have....” (Tr. 270, lines 15-16.) After

trial, in connection with a different case, however, defen-

dant’s attorney discovered the existence of an identifiable

group of photographs which probably contained pictures

of the defendant and which were likely to have been shown

to the government’s witnesses in the instant case during

their interrogation by F.B.I. agents on March 11, 1973.

The government does not deny the existence of this group

of photographs, or that it may contain pictures of the de-

fendant and may have been shown to the government wit-

nesses on March 11, 1973. (See July 29, 1975, Response to

Defendants’ Motion for Post-Trial Relief; Memorandum

for the United States in Opposition to Defendant’s Motion

for Stay, at pp. 4-5, U.S.S.C. October 1975 Term No. A-

1009.) Rather, in its unsworn statements, the government

appears to admit that the photographs in question were

shown to Judge Nichol in the Banks-Means case, and were

found by him to be not relevant to that case. Further, the

government's statements suggest that the photographs in

question were “probably” “mug shots” of persons who had

been arrested during incidents in Custer and Rapid City,

South Dakota, and since Crow Dog was not arrested on

either of those occasions there would be no photograph of

him among that group.

No hearing, procedure or even ex puwrie disclosure to the

courts below, and in camera examination by them, of the

relevant government records and photographs has been con-

ducted to determine whether the group of photographs in

question exists, or was shown to the government’s witnesses

on March 11, 1973, or whether Crow Dog’s picture is in-

cluded in the group. Despite the paucity of dispositive evi-

dence on the issue, in reviewing the record the Court of

Appeals concluded that “the ‘existence and content of the

photographs ... are open to serious doubt.” (App. at p.

14a.) The Court of Appeals also concluded “that it is en-

tirely plausible, if not probable, that the photographs shown

to the inspectors [on March 11, 1973] were mug shots of

persons arrested in those two earlier incidents and did not

include appellant Crow Dog.” (App. at p. 17a.)

Especially considering the prior history, in the instant

and related cases, of dissembling, misstatement and mis-

conduct generally by the very prosecutors who are assur-

ing the courts in unsworn statements of the “facts” concern-

ing the photographs in question, we submit that a ‘eter-

mination of these facts cannot be made on the record in the

instant case. Perhaps because it shared our discontent with

the state of the record, and the prosecution’s demonstrated

lack of regard for veracity and due process of law, the

Court of Appeals “assum[ed], arguendo, that [Crow

Dog’s] contentions with regard to the photographs would

be sufficient under ordinary circumstances to require a hear-

ing....” (App. et p. 17a.) The court nevertheless affirmed

the convictions without requiring such a hearing. In its

view, “a remand for a hearing in this case would serve no

useful purpose . . . [because] the evidentiary use of the

photographs could not have constituted the type of exculpa-

tory evidence which would have required the granting of a

new trial under Brady standards.” Jbid. The Court of

Appeals’ understanding and application of these standards,

in the total context of this case, raises serious questions

that should be resolved by this Court.

The Court of Appeals applied the three-pronged stand-

ard articulated in Moore v. Illinois, 408 U.S. 786 (1972),

“for use in testing a claimed violation of due process on

these [Brady] grounds.” (App. at p. 17a.) Assuming the

existence of the photographs, the court found, in terms of

Moore v. lilinois, supra, 408 U.S. at 794-95, that Crow Dog

had demonstrated ‘‘(a) suppression by the prosecution

after a request by the defense, [and] (b) the evidence’s

favorable character for the defense .. .” (App. at pp.

17a-18a.)

The court concluded, however, that Crow Dog failed to

demonstrate that the photographs met the third Moore

v. Illinois, 408 U.S. at 795, standard, which concerns “the

materiality of the evidence” (See App. at pp. 18a-22a).

As it misunderstood that third standard, the court ruled

that: “the nature of the suppressed evidence is such that

it could not have been used by skilled counsel to develop

‘a reasonable doubt of guilt in the minds of enough jurors

to avoid a conviction.’” (App. at p. 19a) (citations omitted).

First the court decided that even if the suppressed evi-

dence demonstrated that the prosecution’s eye-witness had

failed to identify Crow Dog at a photo-display conducted

immediately after their release, the trial court “would [not]

have found that the in-court identifications were so tainted

as to preclude their reliability.” (App. at p. 19a.) The basis

for this remarkable supposition is that “the record of the

thorough taint hearing conducted by the trial court as to

each inspector adequately rebuts this charge and supports

the district court’s conclusion that an independent basis

for identification existed in each instance.” (App. at pp.

19a-20a. )

But the record of the testimony both at the taint hear-

ings and before the jury demonstrate that the suppressed

evidence might well have caused a different result at the

taint hearing. And if the two in-court identifications had

been suppressed, the government could hardly have gone

forward with the prosecution.

The record of the already precarious basis for the two

eye-witness identifications of Crow Dog is summarized in

the Statement of the Case, supra, at pp. 15-19. One wit-

ness, Graham, never explained how h came to identify

the defendant. In fact, he had to admit numerous mistakes

in his testimony concerning how he came to make the iden-

tification. The other witness, Schneider, failed to identify

the defendant, despite ample opportunity to do so, until

the eve of trial some twenty-six months after the events in

question. Each of these witnesses disagreed with one an-

other as to important facts concerning the defendant’s

alleged participation in the events in question. Each of

these witnesses in turn disagreed with a third witness,

Hanson, who was present at those events, but who made no

in-court identification. However, shortly after the events

in question, Hanson had filed a comprehensive report stat-

ing that Crow Dog took no active part in the interference

or theft, other than his lecturing of the postal inspectors.

Surely on this suite of the record, the instant case differs

significantly from Neil v. Biggers, 409 U.S. 188, 201 (1972),

where the Court sustained an eye-witness identification

only because it found ample reason for its reliability:

There was, to be sure, a lapse of seven months be-

tween the rape and the confrontation. This would be

a seriously negative factor in most cases. Here, how-

ever, the testimony is undisputed that the victim made

no previous identification at any of the showups,

lineups, or photographic showings. Her record for

reliability was thus a good one, as she had previously

resisted whatever suggestiveness inheres in a showup.

Weighing all the factors, we find no substantial likeli-

hood of misidentification.

The record in the instant case is more like the situation

that pertained in United States v. Gambrill, 449 F. 2d 1148

(D.C. Cir. 1971), where the court reversed a conviction in

which the victim, who made an in-court identification of

two defendants, had been unable to identify one of them

at a lineup six days after the crime. See United States

v. Wade, 388 U.S. 218, 241 (1967), where the Court ruled

that, in determining whether an identification was unlaw-

fully tainted, several factors must be considered, inelud-

ing: “failure to identify the defendant on a prior occasion,

and the lapse of time between the alleged act and the lineup

identification.”

The Court of Appeals also held, in the instant case, that

“the suppressed identification evidence could not have had

such a major bearing on the credibility of the postal in-

spectors as to require a new trial under Brady standards.”

(App. at p. 20a.) The basis for this decision was that,

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according to the court, it was virtually conceded that Crow

' Dog was present at some time during the postal inspec-

tors’ captivity inside the Wounded Knee museum, and that

he lectured them. (App. at pp. 20a 2la.) Therefore, at

trial the defendant “would have used the suppressed evi-

dence [only] for the purpose of impeaching the postal

inspectors with respect to their subsequent identification

of Leonard Crow Dog as a man who did certain acts in

addition to lecturing while inside the museum.” (App. at

p. 21a.)

The court recognized t..at “there were contradictions and

inconsistencies in their testimony on the issue of Crow

Dog’s role in the incident.” (App. at p. 2la.)*? The court

observed that able defense attorneys’ explored these in-

consistencies at length in cross-examination and that, in

the court’s view, “[i]Jn many respects, the claimed sup-

pressed identification evidence would have been cumula-

tive.” Hence, the court held that “the evidence could not

have played a determinative role in the outcome of the

trial.” (App. at p. 21a.) Certainly this ruling is at least

apparently inconsistent with this Court’s holding in Napue

v. Illinois, 360 U.S. 264, 270 (1959), “that the fact the jury

was apprised of other grounds for believing that the wit-

ness ... may have had an interest in testifying against

petitioner . . .” did not render harmless the prosecution’s

knowing use of tainted testimony.

As the Court of Appeals observed,

Evidence was presented in this case which showed

that appellant Crow Dog (1) met the postal inspectors

2 The contradictions included a direct conflict between Graham

and Schneider as to whether it was Crow Dog who had lectured

the postal inspectors.

outside the museum building in which they were sub-

sequently held and informed them that they were

“prisoners of war” and would be treated accordingly;

(2) entered the building with the inspectors and re-—

peated the prisoner of war statement to them as they

were being bound and gagged; (3) lectured the captive

inspectors on the problems of Indian people in the

areas of health and education; (4) warned that the

inspectors might be carrying concealed recording or

recording or radio transmitting equipment on their

bodies and that they should be searched; and, (5) took

keys to a locked briefcase from one of the inspectors.

(App. at p. 30a.)

As to each of these points, the testimony among the three

prosecution witnesses was in sharp conflict. In fact, the

testimony of each of the two eye-witnesses, Graham and

Schneider, who made in-court identifications of Crow Dog

was internally inconsistent. The only issue as to which

there was no conflict within the prosecution’s evidence in-

volved Crow Dog’s mere presence at some point while the

postal inspectors were held captive in the museum.

However, mere presence at the site of a crime is not

sufficient to establish guilt either of a substantive offense

or of aiding and abetting. E.g., United States v. Williams,

341 U.S. 58, 64 n. 4 (1951); United States v. Hill, 464 F.

2d 1287, 1289 (8th Cir. 1972); Budey v. United States,

416 F. 2d 1110, 1113 (D.C. Cir. 1969). See Nye & Nissen

v. United States, 336 U.S. 613, 619 (1949). To be guilty of

aiding and abetting, the accused must have assisted or en-

couraged the commission of the crime and he or she must

have had a specific intent or purposive attitude to promote

or facilitate the crime. See, e.g., United States v. Baum-

a Jebidetuy FE Sy ite tah ao

ww Fee

Wa ae i BR IE Fr Al ORLA Gate ae SE car RN ene

garten, 517 F. 2d 1020 (8th Cir.), cert. denied, 423 U.S.

- 878 (1975); United States v. Kelton, 446 F. 2d 669 (8th

Cir. 1971).

Thus, the government’s evidence concerning Crow Dog’s

alleged conduct while present in the museum was essential

to the conviction. And the credibility of Graham and

Schneider was central to the government’s case. Assuming

their credibility could have been impeached with the sup-

pressed photographic evidence, Crow Dog clearly would be

entitled to a new trial. Giglio v. United States, 405 US.

150 (1972); Napue v. Illinois, 360 U.S. 264 (1959). At the

very least, Crow Dog is entitled to an evidentiary hearing

to determine the facts concerning the photographs in ques-

tion so that a proper determination of materiality and

prejudice can be made. See, e.g., Alderman v. United States,

394 U.S. 165 (1969).

A writ of certiorari should issue in this case so that

the Court can rearticulate its standards, disregarded by

the court below as well as other circuit courts (see, e.g.,

App. at p. 19a), for determining whether suppressed ex-

culpatory evidence exists and whether it is material. Cf.

Goldberg v. United States,

603, 618 n. 21 (1976).

U.S. ——, 47 L. Ed. 2d

Il.

The decision below raises important questions with

respect to the widely criticized government practice of

selectively recording and transcribing grand jury testi-

mony that have not been but should be decided by this

Court.

The government has also rendered it impossible for the

defendant or even the courts to secure additional evidence

that may be both exculpatory and material. One of the

prosecution witnesses, Graham, testified that when he went

to Wounded Knee on March 11, 1973, he knew he would be

testifying before a grand jury in the next day or two, and

he in fact testified before that grand jury. (Tr. 332, lines

19-24.) No transcript of that testimony exists, for, as the

prosecutor conceded: “As is the policy in our office, law

enforcement testimony before the Grand Jury is not tran-

seribed.” (Tr. 333, lines 5-7.) When he testified before the

grand jury in March of 1973, Graham testified “as to what

happened to us on March 11th.” (Tr. 348, line 25.) He also

testified about those events before a grand jury, presum-

ably the one to hand down the instant indictments, in De-

cember of 1974. No transcript was kept of that testimony

either. (Tr. 349, lines 1 to 350, line 5.)

Had the transcripts of Graham’s testimony before the

grand jury existed, the defendant would have been entitled

to discover them. Using them, the defendant might well

have so undereut Graham’s eye-witness identification as to

cause its suppression or to vitiate its credibility. See

Goldberg v. United States, —— U.S. —, 47 L.Ed. 2d 603,

618 n. 21 (1976), where the court ruled that “Tslinee the

courts cannot ‘speculate whether [Jencks material] could

have been utilized effectively’ at trial, the harmless-error

doctrine must be strictly applied in Jencks Act cases.”

(Citation omitted.)

Before the courts below, defendant contended that “the

intentional failure by the government to have grand jury

testimony of law enforcement personnel recorded consti-

tuted [prejudicial] error.” (App. at p. 39a.) Following a

long line of its own decisions, the Court of Appeals rejected

this contention, holding that “there is no constitutional or

statutory requirement that grand jury testimony be re-

corded.” (App. at p. 39a.) Judge Lay, concurring sepa-

rately, agreed with the majority but cautioned the district

courts within the Eighth Circuit that:

... the time has come for district courts to adopt local

rules requiring the government to record grand jury

testimony of law enforcement persc ~el. (App. at p.

40a.)

Judge Lay joined the almost universal chorus of circuit

courts and judges who have acquiesced in the government’s

intentional practice of selective recordation, while condemn-

ing it and warning of its ultimate demise. But see, United

States v. Cramer, 447 F.2d 210, 220-23 (2d Cir. 1971), cert.

denied, 404 U.S. 1024 (1972), where Judge Oakes, dissent-

ing, would have held the government’s failure to record to

be a violation of F.R.Cr.P. 6(d), “if not the due process

clause of the Fifth Amendment.” But cf., United States

v. Battisti, 486 F.2d 961 (6th Cir. 1973), where the Sixth

Circuit refused to issue a writ of mandamus directing a

district judge not to require the government to record all

grand jury testimony.

Among the circuit courts to state or strongly imply such

criticism are:

The First Circuit: Schlinsky v. United States, 379

F.2d 735 (1st Cir.), cert. denied, 394 U.S. 920 (1967) ;

see United States v. Gramolini, 301 F. Supp. 39 (D.R.1.

1969), where the court imposed a recordation rule

prospectively.

The Second Cireuit: United States v. Peden, 472

F.2d 583, 584 (2d Cir. 1973) ; United States v. Cramer,

447 F.2d 210, 214 (2d Cir. 1971), cert. denied, 404 U.S.

1024 (1972).

The Third Cireuit: United States v. Crutchley, 502

F.2d 1195, 1200 (3rd Cir. 1974); United States v.

Lardieri, 497 F.2d 317, 318 n.2 (3rd Cir. 1974).

The Sixth Circuit: United States v. Battisti, 486

F.2d 961 (6th Cir. 1973); United States v. Hensley,

374 F.2d 341, 352 (6th Cir.), cert. denied, 388 U.S. 923

(1967).

The Seventh Circuit: United States v. McCord, 509

F.2d 891 (7th Cir.), cert. denied, —— U.S. ——, 46

L.Ed.2d 51 (1975); United States v. Aloisio, 440 F.2d

705, 708 n.2 (7th Cir.), cert. denied, 404 U.S. 824 (1971),

commending the United States District Court for the

Northern District of Illinois for adopting an appro-

priate mandatory recordation rule.

The Kighth Cireuit: United States v. John, 508 F.2d

1134, 1142 (8th Cir.), cert. denied, 421 U.S. 962 (1975) ;

United States v. Arradondo, 483 F.2d 980, 984 n.4

(8th Cir. 1973), cert. denied, 415 U.S. 924 (1974).

The Ninth Cireuit: United States v. King, 478 F.2d

494, 508 (9th Cir.), cert. denied sub. nom. Light, et al.

v. United States, 414 U.S. 846 (1973) warning that

“the Government is courting disaster when it fails to

record grand jury proceedings”; United States v.

Thoreson, 428 F.2d 654, 666 (9th Cir. 1970); id., 428

F.2d at 668-69 (Ely, J. concurring).°

In its most recent discussion of grand juries, this Court

declared that:

The grand jury is an integral part of our constitu-

tional heritage .... Its historic office has been to pro-

vide a shield against arbitrary and oppressive action,

by insuring that serious criminal accusations will be

brought only upon the considered judgment of a repre-

sentative body of citizens acting under oath and under

judicial instruction and guidance. (United States v.

Mandujano, —— U.S. ——, 44 U.S.L. Week 4629, 4632

(May 19, 1976).)

It is at least arguable, that given the awesome powers

and responsibilities of grand juries, systematic and pur-

poseful failure by the government to record and transcribe

grand jury testimony of law enforcement personnel vio-

lates the due process clause of the Fifth Amendment as

well as an accused’s rights to confrontation and effective

cross-examination under the Sixth Amendment. Further,

this government practice is a flagrantly unlawful strategem

to circumvent the Jencks Act, which requires disclosure to

the accused of “a statement, however taken or recorded,

or a transcription thereof, if any, made by said witness to

’The commentators, too, have consistently proposed that all

grand jury testimony be recorded. See, Report of the ABA Special

Committee on Fed. Rules of Procedure 94-95 (Feb. 1971) ; Report

of the ABA Special Committee on Fed. Rules of Procedure 106-07

(Aug. 1965); 1 Wright, Federal Practice and Procedure,

Criminal §103 at 161 (1969); 8 Moore’s Federal Practice—Crim-

inal Rules 6.02(2) at 6-17 (1975).

a grand jury.” 18 U.S.C. 3500 (e)(3). Finally, it appears to

contravene F.R.Cr.P. 6(d) which obviously contemplates

recordation of grand jury testimony, see United States

v. Cramer, 447 F.2d 210, 220-23 (2d Cir. 1971) (Oakes, J.

dissenting), cert. denied, 404 U.S. 1024 (1972), and renders

it virtually impossible for an accused effectively to exercise

the right, recognized in F.R.Cr.P. 6(e), to seek a dismissal

for misconduct before the grand jury.‘

In the leading decision on the right of an accused to

secure the grand jury testimony of witnesses against him

or her, this Court squarely ruled that the accused is en-

titled to equal access to such testimony: “In our adversary

system for determining guilt or innocence it is rarely justi-

fiable for the prosecution to have exclusive access to a

storehouse of relevant fact. Exceptions to this are justi-

fiable only by the clearest and most compelling considera-

tions.” Dennis v. United States, 384 U.S. 855, 873 (1966).

Cf. Washington v. Texas, 388 U.S. 14 (1967). The Court

should grant a writ of certiorari to determine whether the

government’s selective failure to record and transcribe

grand jury testimony thus violates an accused’s rights

under the Constitution, the Jencks Act or the Federal Rules

of Criminal Procedure, or otherwise calls for an exercise

of this Court’s supervisory powers over the federal courts

and criminal justice system. Cf. Campbell v. United States,

365 U.S. 85, 98 (1961), where the Court raised but did

not reach the question of whether Jencks Act sanctions

would be applicable in the event the government destroyed

Jencks Act material.

‘Defendant made such a motion on April 16, 1975. It was de-

nied without any consideration of evidence, for none could be

produced because of the government’s failure to record testimony.

(App. at pp. 86a-92a.)

The decision below, that the intentional intrusion of

government informers within the councils of the legal

defense violates none of Crow Dog’s rights and does

not entitle him to disclosure of the informants’ files,

conflicts with decisions in other Circuits, is incon-

sistent with controlling decisions of this Court and raises

important questions that should be resolved by this

Court.

To the extent they are revealed in the public record in the

instant case, the facts concerning the intentional intrusion

of government informers into the'councils of the integrated

legal team handling the defense of the original seven

Wounded Knee defendants, including Crow Dog, are re-

cited in the Statement of the Case, supra, at pp. 9-14.

Crow Dog and his attorney were not permitted to examine

the F'.B.I. files of these informers, nor other relevant ex-

hibits that were filed and examined by the courts below in

camera, However, based upon its examination of the rec-

ord, and the F.B.I. files on the informer Durham, the Court

of Appeals found that:

“here is no evidence in the record that Durham

was present during the discussion of any defense

strategy relevant to appellant Crow Dog’s trial nor is

there any indication that he passed on any such infor-

mation to the F.B.I. KF urther, by the time of Crow

Dog’s trial in June 1975 Durham had been exposed

as an informant.

... Any close proximity with appellant Crow Dog is

neither alleged nor apparent from the record. No pre-

judice to appellant has been shown to arise from this

tangential relationship with his case. (App. at p. 37a.)

On this evaluation of the “facts”, essentially untested by ad-

versary process, the Court adopted “the position that in

the absence of a showing of actual prejudice:

[T]here must be the actual gaining, rather than the

mere opportunity for gaining, of information relative

to a charge against [a] defendant, and the information

must be obtained by the informant from intrusion into

the attorney-client relationship.” (App. at pp. 37a-

38a.) (Citation omitted)

According to the court, “no such ‘gaining’ or ‘intrusion’ has

been shown in the instant case.” (App. at p. 38a.)

The rule articulated by the Eighth Circuit, and applied

to the untested facts in this case, appears consistent with

the rule adopted in several other circuits. See United

States v. Zarzour, 432 F.2d 1 (5th Cir. 1970) ; United States

v. Gartner, 518 F.2d 633 (2d Cir.), cert. denied, —— US.

, 96 S.Ct. 222 (1975). It apparently conflicts, however,

with decisions in other circuits that intentional govern-

mental intrusion in the attorney-client relationship is a

per se violation of a defendant’s constitutional rights, es-

pecially under the Sixth Amendment. See Bursey v.

Weatherford, 528 F.2d 483 (4th Cir. 1975), petit. for cert.

filed, —— U.S. —-, 44 U.S.L. Week 3610 (April 19, 1976)

(No. 75-1510); Via v. Cliff, 470 F.2d 271, 275 (8rd Cir.

1972); United States v. Rispo, 460 F.2d 965, 976 (3rd Cir.

1972); T'aglianetti v. United States, 398 F.2d 558, 570 (1st

Cir. 1968), aff’d per curiam, 394 U.S. 316 (1969) ; Caldwell

v. United States, 205 F.2d 879 (D.C. Cir. 1953); Coplon v.

United States, 191 F.2d 749 (D.C. Cir. 1951), cert. denied,

342 U.S. 926 (1952).

The standard adopted by the Court of Appeals is also

inconsistent with the controlling decisions of this Court.

In cases involving violations of the Sixth Amendment

right to counsel this Court has never required a showing of

actual prejudice. Notably, in Glasser v. United States,

315 U.S. 60, 75-76 (1942), the Court held that a determina-

tion of “the precise degree of prejudice sustained” would

be “at once difficult and unnecessary.” The right to counsel

“is too fundamental and absolute jo allow courts to indulge

in nice calculations as to the amount of prejudice arising

from its denial.” All the Court required a defendant to

show was that there was an opportmnity for prejudice which

“may conceivably impair counsel’s effectiveness.” (Km-

phasis added.) Certainly this approach has been followed

by the Court in recent years, in reversing convictions where

the government has unlawfully overheard conversations

between defendants and their attorneys. O’Brien v. United

States, 386 U.S. 345 (1967); Black v. United States, 385

U.S. 26 (1966).

In Hoffa v. United States, 385 U.S. 293 (1966), this Court

expressly acknowledged that government intrusion into the

attorney-client relationship properly result in reversals of

the trials at which they occur. 385 U.S. at 306-08. Hoffa it-

self, however, involved only the question:

Whether evidence obtained by the Government by

means of deceptively placing a secret informer in the

quarters and councils of a defendant during one crim-

inal trial so violates the defendant’s Fourth, Fifth and

Sixth Amendment rights that suppression of such evi-

dence is required in a subsequent trial of the same

defendant on a different charge. (385 U.S. at 295, Em-

phasis added.)

Unlike in Hoffa, here the question is whether “the Gov-

ernment’s intrusion upon the defendant’s relationship with

his lawyer ‘invalidates the trial at which it occurred.’” 385

U.S. at 307.

At the very least, in this case the record raises the ques-

tion as to whether defendant’s counsel, not merely the

courts, should be permitted to examine the file showing

the intruder’s relationship to the case and his reports to

the F.B.I. Alderman v. United States, 394 U.S. 165 (1969) ;

United States v. Huss, 482 F.2d 38 (2d Cir. 1973) ; Taglia-

netti v. United States, supra, 398 F.2d 558 (1st Cir. 1968),

aff'd per curiam, 394 U.S. 316 (1969). Especially is this

true, where, as here, there is no question of protecting the

identity of the informer and neither the government nor the

the courts below has provided any reason for refusing to

permit defense counsel to inspect the file.

Review of these issues by the Court is especially appro-

priate at this time. Use and misuse by the tederal govern-

ment of informants has become epidemic. In one recent

fiscal year, the F.B.I. reported that 4,800 arrests were

made on the basis of informant information. See Note,

Police Undercover Agents: New Threat to First Amend-

ment Freedoms, 37 Geo. Wash. L. Rev. 634 (1969), citing

F.B.I. Annual Report. Recent revelations of the F.B.1.’s

COINTEL Program, and its promiscuous and lawless use

of informers and undercover agents are alarming. See,

e.g., Final Report of the Select Committee to Study Gov-

ernmental Operations With Respect to Intelligence Activi-

ties: Supplemental Detailed Staff Reports on Intelligence

Activities and the Rights of Americans: Book III, pp. 225-

270, “The Use of Informants in F.B.I. Domestic Intelli-

gence Investigations” (U.S. Sen. Rep. No. 94-755, April

23, 1976). See also, Jd., Book II at pp. 67-82.

Knowledge of these widespread abuses imposes upon

every responsible government agency an obligation to scru-

tinize closely and control such official lawlessness. The

occasion is appropriate in the instant case for the Court

to conduct plenary review to determine the bearing of such

activity on the First, Fourth, Fifth, Sixth and Ninth Amend-

ment rights of criminal defendants, to impose sanctions

under the Court’s supervisory powers over federal courts

and prosecutors, and to establish rules for controlling

police and prosecution use of informers.

Sanctions were imposed in United States v. Banks, 383

F.Supp. 389, 392 (D.S.D. 1974), app. dismissed, 513 F.2d

1329 (8th Cir. 1975), a case closely related to the instant

one. Use of government informers was not specifically at

issue when the trial court dismissed that case, because the

government’s testimony concerning the informers had not

yet been shown to be false. Now it is known to have been

false; now it is known that the government had at least one

paid informant who intruded within the councils of Crow

Dog’s legal defense team. The extent of the intrusion, how-

ever, remains unknown and untested in adversary proceed-

ing, except for the fact that the government employed some

313 informants during the Wounded Knee affair. (Affi-

davit of William F. Clayton, R.D. Hurd, and David R.

Gienapp, filed June 16, 1975.) This Court should review

the case to determine what judicial steps are appropriate

in light of the known facts.

CONCLUSION

< For the foregoing reasons, the petition for writ of cer-

tiorari should be granted.

Respectfully submitted,

Sanrorp Jay Rosen

Rosen, Remcno & HeNnvDERSON

3504 Clay Street

San Francisco, California 94118

JoserPH REMCHO

Rosen, Remcuo & HENDERSON

155 Montgomery Street

San Francisco, California 94104

Attorneys for Petitioner

KenneTH TILSEN

400 Minnesota Building

St. Paul, Minnesota

Of Counsel

June 1976

APPENDIX

“7

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 75-1617

United States of America,

Appellee,

Vv.

Leonard Crow Dog,

Appellant.

Appeal from the United States District

Court for the Northern District of Iowa.

Submitted: November 13, 1975

Filed: March 3l, 1976

Before GIBSON, Chief Judge, LAY and

STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

This direct criminal appeal is ta-

ken by appellant Leonard Crow Dog fol-

lowing his conviction by a jury of vio-

lating 18 U.S.C. §§111 and 2112. It is

alleged on this appeal that a variety of

trial and pretrial errors committed by

the government and by the district court

require reversal of that conviction. We

find no such reversible error and there-

by affirm. |

The great majority of the arguments

raised on this appeal relate to procedu-

ral matters. The facts surrounding the

incident which led to the indictment of

Leonard Crow Dog are relevant only with

regard to his claim that the evidence

was insufficient to support his convic-

tion. Accordingly, a thorough recita-

tion of those facts will be reserved un-

til that issue is discussed. However,

in order to evaluate appellant's various

contentions regarding procedural error,

a detailed survey of the history of this

case must be set forth.

Appellant Leonard Crow Dog was

charged in a three-count indictment

handed down by a grand jury in the Dis-

trict of South Dakota on December 12,

1974. These charges arose out of an

incident that took place on March ll,

1973, in Wounded Knee, South Dakota, in-

The Honorable Edward J. McManus, Chief

Judge, United States District Court for

the Northern District of Iowa.

volving the alleged detention of four

United States postal inspectors by mem-

bers. of the American Indian Movement

(AIM). Count I alleged that Crow Dog

willfully impeded, interfered with and

intimidated Postal Inspector Gene Graham

while he was performing official duties

in violation of 18 U.S.C. §§111 and 1114.

Count II charged that Crow Dog by force

and violence unlawfully took a pistol

belonging to the United States from the

person of one Jack Hanson in violation |

of 18 U.S.C. §§1153 and 2112, and Count

III alleged that Crow Dog had taken var-

ious goods from the Wounded Knee trad-

ing post with a combined value in ex-

cess of $100, a violation of 18 U.S.C.

§§1153 and 661. An identical indict-

ment was returned against Carter Camp.

Stanley Holder was indicted separately

on counts I and II.

These December 1z indictments super-

seded indictments which had been returned

in March and April of 1973 against these

same three men plus Dennis Banks, Russell

An understanding of the Wounded Knee in-

cident and the role played therein by

the American Indian Movement may be gained

by reference to a number of district court

opinions which evolved from the trial of

AIM leaders Dennis Banks and Russell Means.

See United States v. Banks, 383 F. Supp.

385 (D.S.D. ; ed States v. Banks,

383 F. Supp. 368 (D.S.D. 1974).

sien

Means, Pedro Bissonette, and Clyde Belle-

court. The earlier indictments charged

all seven men with conspiracy in one count

and alleged substantive offenses in ten

other counts. In June 1973 these seven

defendants moved to consolidate their

cases for trial alleging, among other

things, that seriatim trials would re-

sult in a denial of a speedy trial to

some of the defendants. The district

court’ ordered a joint trial for Means

and Banks but denied consolidation to the

others. Review of that denial was at-

tempted in this court by the filing of a

petition for a writ of mandamus which was

denied.

In October 1973 these same defend-

ants moved for a change of venue pur-

suant to Fed. R. Crim. P. 2l(a) and,

after satisfying the court that preju-

dice against them existed in South Dako-

ta, venue was transferred to St. Paul,

Minnesota. The so-called "leadership"

trial of Means and Banks began in Jan-

uary 1974 and ended with the district

court's dismissal of all charges against

them on September 13, 1974. See United

States v. Banks, supra, 383 F. Supp. at

397. As previously noted, superseding

indictments naming Crow Dog, Camp and

Holder were returned on December 12, 1974.

The original ll-count indictments against

them were dismissed on February 5, 1975.

The Honorable Fred J. Nichol, United

States District Judge for the District

of South Dakota.

5 a

Thereafter, Judge Nichol recused him-

self and reassigned the Crow Dog, Holder,

and Camp cases to Judge Edward McManus,

sitting by designation in the District

of South Dakota.

A pretrial conference on these

cases was held on April 16, 1975, at

which numerous defense motions were filed

seeking, inter alia, dismissal of the

charges based upon denial of a speedy

trial, bad faith prosecution and govern-

mental misconduct; disclosure of all ex-

culpatory and impeaching evidence by the

prosecution; and a determination of venue

and transfer from the district. In addi-

tion, the government filed a motion to

consolidate the indictments against these

three men for purposes of trial. On May

2, 1975, the district court transferred

venue in these cases to the Northern Di-

strict of Iowa, Cedar Rapids Division,

stating that prejudice against Indians

"created a reasonable likelihood of im-

pairing defendants' right to a fair trial

in the District of South Dakota." How-

ever, the court rejected defendants' ar-

gument that the superseding indictments

were merely a continuation of the earlier

charges brought against these same men

and that venue was still in St. Paul,

Minnesota, pursuant to Judge Nichol's

earlier transfer order. United States

v. Holder, 399 F. Supp. 220 (D.5.D. 19575).

The government's motion to consolidate

was granted by the court on May 12, 1975.

On May 27, 1975, a hearing on the

motions regarding the denial of a speedy

trial, prosecutorial misconduct, and

2 SS

discriminatory prosecution began. After

three days of testimony, argument and

the presentation of extensive documentary

evidence on each of these issues, the mo-

tions to dismiss were taken under advise-

ment by the court.

In an order entered on May 30, 1975,

the district court disposed of the various

discovery motions that had been filed by

defendants. In summary, the court denied

a request to examine all government files

in camera for exculpatory evidence, order-

ed the government to provide defendants

prior to trial with any information con-

cerning government witnesses which bore

on their credibility, and further ordered

the government to produce for the court's

in camera inspection the names and files

of all informants involved in the case.

The consolidated trial against these

three defendants commenced with the insti-

tution of the jury selection process on

June 2, 1975. Pursuant to a defense mo-

tion, counsel for both sides were allowed

to supplement the court's voir dire of

the jury with their own questioning of

individual jurors. The jury selection

process took an entire day, the great ma-

jority of which was consumed by questions

asked by counsel for the three defendants.

The prosecution began presenting its

case following the swearing in of the

jury and opening statements on June 3,

1975. After two and one-half days of

testimony, principally by three of the

postal inspectors who were involved in

the Wounded Knee incident, the prosecu-

tion rested. Motions to strike certain

testimony and for a judgment of acquit-

tal based upon insufficiency of the evi-

dence were made by defense counsel and

denied by the court. Defendants rested

without presenting any testimony and

immediately renewed their motion for

judgment of acquittal. That motion was

once again denied by the court. The jury

returned a guilty verdict against Crow

Dog and his co-defendants as to all

charges on June 5, 1975.4

A post-trial motion was filed on

June 27, 1975, in which the defendants

sought a judgment of acquittal or a new

trial based primarily upon the grounds

of sufficiency of the evidence, the govern-

ment's failure to disclose evidence, and

problems with the in-court identification

of the defendants. A second post-trial

motion was filed on July 25, 1975, seek-

ing an evidentiary hearing on the basis

of newly discovered evidence, i.e., a

group of photographs which were alleged-

ly used for the purpose of identifying

defendants and which had been suppressed

by the government. The motion contended

that the photographs included pictures

of the defendants, that they had been

- shown to the postal inspectors on the

day of the incident, and that no identifi-

cation of defendants was made at that

Count III of the December 12, 1974,

indictments handed down against Camp

and Crow Dog was severed prior to trial

and then dismissed by the government

following the jury's verdict.

time. All of these motions were denied

by the district court in a lengthy

memorandum and order filed on August 4,

1975. United States v. Crow pod. 399 F.

Supp. 2 -D. Iowa ° n August

5, 1975, Crow Dog was sentenced to three

years on Count I and eight years on Count

II, the sentences to run concurrently.

Execution of the sentences was suspended

and Crow Dog placed on probation for a

period of five years. Co-defendants

Holder and Camp failed to appear for

sentencing.

Il.

The first issue which we consider

on this appeal is that of venue. Appel-

lant contends that the trial court erred

in ruling that the superseding indict-

ments began an independent prosecution

which required a new determination of

venue. 399 F. Supp. at 224-27. This,

it is contended, violated appellant's

constitutional right against having venue

changed against his consent, as well as

rights that he enjoyed under Fed. R. Crim:

P. 2l1(a). Appellant further alleges

that principles of collateral estoppel

and law of the case precluded the district

court from "overruling" the prior transfer

of venue to St. Paul, Minnesota, by

Judge Nichol. We disagree.

The Constitution in Article III,

section 2, and the Sixth Amendment af-

fords a defendant in a criminal trial the

right to be tried in the state and district

where the alleged crime occurred. How-

ever, the Sixth Amendment also provides

the right to a fair trial before an im-

partial jury. This latter right is

deemed to be a fundamental element of

due'process. Singer v. United States,

380 U.S. 24, 26 (ise); Tn re Marchi

son, 349 U.S. , 555); Unite

States v. McNally, 485 F.2d 398, 40Z

r. ’ cert. denied, 415

U.S. 978 (1974). In recognition of

this right, it is well-established that

pre-trial publicity may have had such

an impact upon the populace from which

the jury is drawn as to create a proba-

bility or at least a “reasonable like-

lihood" that this right of impartiality

has been violated. Sheppard v. Maxwell,

384 U.S. 333, 362 (1 ; irwin v. Dowd,

366 U.S. 717, 721 (1961);. Sanerey Vv.

, cert. denied, 416 U.S. 994 (1974).

With this contingency in mind, Fed. R.

Crim. P. 2l(a) provides for transfer of

venue by the district court upon a m~

tion by the defendant to that effect and

a proper showing of prejudice. See United

States v. Delay, 500 F.2d 1360, 1365

(Sth Ci 57a, United States v. McDaniel,

449 F.2d 832, 84l1- re ,

cert. denied, 405 U.S. 992 (1972). A pre-

requisite to a transfer determination is

that an indictment or information stating

the charges is on record. In re Investi-

ation of World Arrangements, 107 F.Supp.

255--630-1D-D.C> 1952) 7 mandamus denied

sub nom. In re Texas Co., 201 F.2d 177

(D.C. Cir.), cert. denied, 344 U.S. 904

(1952).

Appellant Crow Dog made such a Rule

2l1(a) motion in the District of South

Dakota following his indictment on 11

counts in 1973. The district court

l0a

granted the motion and transferred

venue to St. Paul, Minnesota. However,

that indictment was dismissed in early

1975 pursuant to Fed. R. Crim. P. 48(a).

The effect of this dismissal was to bring

that prosecution to an end. See general-

ty Gonzalis v. Lynch, 282 P.2a 358, 257

Ia. Crim. iosty- The superseding

three-count indictment began an independ-

ent prosecution. Venue as to that indict-

ment was properly set in South Dakota,

the state and district where the alleged

crimes took place. Any prior transfer of

venue in a previous indictment had no

effect on the subsequent indictment.

Allowing an initial transfer of venue

to bind all subsequent indictments

brought against that defendant out of a

common factual setting as urged by appel-

lant would be inconsistent with the inter-

play of constitutional rights reflected

in Fed. R. Crim. P. 18 and 2l(a).° The

district court's decision regarding ve-

nue did not constitute an abuse of dis-

cretion. Rizzo v. United States, 304

F.2d 810, 8 r.), cert. nied,

A defendant is, of course, entitled

to seek a transfer of venue subsequent

to the filing of a superseding indictment

and the dismissal of the original indict-

ment on which transfer had been granted.

In ruling on that motion, the court could

take judicial notice of the evidence ad-

duced at the previous hearing on the

transfer issue and accord it whatever

weight it sees fit. Such a motion was

made in the instant case resulting in

ll a

371 U.S. 890 (1962). See also United

tates v. Jobe, 487 F. °

* =—I573), cert. denied, 416 U.S.

955 (1974).

Appellant's contentions with regard

to the applicability of collateral es-

toppel and law of the case principles to

the initial transfer of venue to St. Paul

are entirely without merit. Collateral

estoppel prevents the relitigation of

an issue previously determined between

parties or their privies. See Ashe v.

Swenson, 397 U.S. 436, 443-44 (1565).

The venue of the superseding indictment

was not such an issue. As previously

noted, the theory of one continuous

prosecution against Crow Dog has —

rejected. The only issue determined by

the prior transfer order was that a

fair trial could not be held in the

District of South Dakota at that point

in time with regard to that particular

indictment. Collateral estoppel is

not applicable. Further, the princi-

ples of law of the case are inapplica-

ble by virtue of similar reasoning.

The selection of the transferee district

was within the court's discretion under

Fed. R. Crim. P. 21(a).

5 cont.

the transfer of the action to the

ern fistrict of Iowa. Under Fed.

ey P. 2l1(a) the court is not re-

quired to transfer the proceedings to.

the district specified in defendant's

motion.

12a

Itt.

The next issues we consider relate

to alleged deficiencies and errors in

the discovery process attributable to the

government. Appellant contends that the

district court erroneously admitted evi-

dence at trial which had not been proper-

ly disclosed to the defense prior to

trial and further that the court erred

in denying appellant's motion for a new

trial based upon the discovery of pur-

portedly exculpatory evidence which had

been suppressed by the government in vio-

lation of the dictates of Brady v. Mary-

land, 373 U.S. 83 (1963). ur examina-

tion of both these issues discloses no

basis for relief.

Appellant argues initially that the

admission of certain evidentiary "sur-

prises” by the government fatally tainted

the trial and conviction. That evidence

included testimony by two of the postal

inspectors with regard to actions and

Statements by appellant Crow Dog during

the Wounded Knee confinement which had

not been previously revealed. This evi-

dence included inconsistencies with and

additions to prior statements made by the

inspectors as to the role played by the

appellant during the incident. Further,

the government introduced at trial a

picture of Crow Dog's co-defendants

which had not been shown to defense coun-

sel prior to that time. Although the

United States Attorney supplied defense

counsel prior to trial with a ten-page

general narrative statement outlining

the prosecution's evidence, it is alleged

that the failure to disclose these spe-

l3a

cific items of evidence should have

rendered them inadmissible at trial. We

disagree.

Discovery matters are committed to

the sound discretion of the district

court and are reviewable only upon an

abuse of that discretion. United States

v. Swanson, 509 F.2d 1205,

r. ; United States v. Bl

F.2d 902, 905 (8th Cir.), cert. dénied,

406 U.S. 922 (1972). It is well estab-

lished that

an error in administering the

discovery rules is not re-

versible absent a showing

that the error was prejudi-

cial to the substantial

rights of the defendants.

United States v. Cole, supra, 453 F.2d

at 904.

In the instant case appellant makes

no specific content’on as to any pre~-

judice which flowed from the nondis-

closure of these evidentiary specifics,

nor is any prejudice apparent from the

record. We note that the photograph in

question appeared in a local newspaper

at the time of the incident and was

easi'y obtainable by the defense. With

regard to the postal inspectors’ "sur-

prise" testimony, the record reveals

that the inspectors were thoroughly

cross-examined as to variances in their

recollections of Crow Dog's participa-

tion in the alleged crimes. While de-

fense coungel contends they were sur-

prised by certain portions of testimony,

lé4a

at no time was a continuance sou

that basis. Since no showing _ synnog

judice has been made, we find no abuse

of the district court's discretion in

admitting this evidence over defense

objections.

A more difficult question is pre-

sented with regard to appellant's alle-

gation that the government failed to

disclose exculpatory evidence to the de-

fense in violation of the dictates of

ace Maryland, supra. The evidence

on consists of a group of photo-

graphs which were allegedly pr =

the postal inspectors by FBI agents

at Pine Ridge, South Dakota, very short-

ly after the inspectors had been released.

by the Indians. It is claimed that the

postal inspectors were unable to identify

any of the defendants in these photographs.

Our careful examination of the record

in this case convinces us, however,

that nondisclosure of these photographs

did not constitute reversible error.

The existence and content of the photo-

graphs described by defense counsel are

open to serious doubt. But even assum-

ing the photographs' existence, their

use would have been confined to minimal

impeachment purposes and thus they were

not sufficiently material to the issue

of innocence or guilt to require re-

versal or remand of this case.

It appears from the record that

the inspectors were shown a "stack of

photographs" on the day of the incident

in the FBI headquarters at Pine Ridge,

South Dakota, and that they did not at

that time identify appellant Crow Dog or

either of the co-defendants from those

15a

pictures. However, these photos have

never been specifically identified by

the government. The prosecution re-

presented to the trial court and to

this court that there was no record

kept as to which pictures or photos

were shown to the inspectors at that

time. Based upon photographs which

were known to be available to the FBI

agents at the place and time in question,

the government stated that the pictures

were probably of persons who had been

arrested during incidents in Custer and

Rapid City, South Dakota. Since Crow

Dog was not arrested on either of those

occasions, there would be no picture of

him among the group. ' Thus, those photo~

graphs would be of no particular use in

his defense.

Appellant's counsel contends, how~

ever, that there is a very high proba~

bility that Crow Dog is among those

pictured in the heretofore unidentified

photographs. Further, he alleges here,

as he did in a post-trial motion to the

same effect in the trial court, that a

series of events unrelated to this liti-

gation gave him knowledge of the exist-

ence of some 60 photographs contained

in two named FBI files which were, he

believes, the ones shown to the inspect-

ors following their release. Appel-

lant does not believe that the pictures

were merely mug shots of persons arrest~

ed at those two incidents. Rather, he

believes that they were taken at the

scene on those two dates and, given

appellant Crow Dog's prominent role in

those incidents, there existed a sub-

stantial probability that he would be

pictured in one or more of the photo-

l6a

graphs. No hearing was conducted by the

district court on this issue. However,

the court _in its August 4, 1975, order

stated that the motion for post-trial

rélief on Brady grounds did not "set

forth a su cient basis relevant to the

cases at bar to warrant a new trial."

399 F. Supp. at 242. Appellant now con-

tends that the nondisclosure of the photo-

graphs, following the request that they

be produced, constituted a Brady viola-

tion which requires that a new trial be

granted. At the very least, it is

urged that Crow Dog is entitled to an

evidentiary hearing at which the photo-

graphs could be viewed and their prior

use, if any, for identification purposes

could be ascertained.

Initially, we note that appellant's

contention that he is among those pic-

tured in the photographs allegedly shown

to the inspectors is highly specula-

tive and based upon very thin evidence.

The FBI 302 report, which came into the

hands of appellant Crow Dog's attorney

in connection with a wholly unrelated

criminal matter, refers to a stack of

60 photographs which the agent viewed

at the FBI command post in Pine Ridge,

South Dakota, on the afternoon of March

11, 1973, the same day and time that

the postal inspectors were there view-

ing photographs. The agent's report,

written on the date of that incident,

states that he looked at photos "of

individuals who had been arrested at

Custer, South Dakota, on February 6,

1973, and in Rapid City, South Dakota,

on February 9, 1973." The prosecution

has in this action consistently main-

tained that it was these same arrest

17a

photographs that were shown to the postal

. inspectors that day. Our examination

of the affidavits and the other mater-

ials presented to the district court con-

vinces us that it is entirely plausible,

if not probable, that the photographs

shown to the inspectors were mug shots

of persons arrested in those two earlier

incidents and did not include appellant

Crow Dog. Given the highly speculative

nature of the allegations raised by ap-

pellant Crow Dog in his post-trial mo-

tion, we do not believe that the district

court erred in failing to hold a post-

trial evidentiary hearing on this matter.

Even assuming, arguendo, that appel-

lant's contentions with regard to the

photographs would be sufficient under

ordinary circumstances to require a

hearing, it is our view that a remand

for a hearing in this case would serve

no useful purpose. Careful examination

of the record convinces us that the evi-

dentiary use of the photographs could

not have constituted the type of ex-

culpatory evidence which would have re-

quired the granting of a new trial under

Brady standards.

In Evans v. Janing, 489 F.2d 470,

474-78 ( gr. i , this court

fully explored the Brady standards and

adopted the three-pronged test from

Moore v. Illinois, 408 U.S. 786 (1972),

for use in testing a claimed violation

of due process on these grounds. Under

that test the relevant factors are

"(a) suppression by the prosecution

after a request by the defense, (b) the

evidence's favorable character for the

defense, and (c) the materiality of the

aes a

18a

evidence." 408 U.S. at 794-95. See

Ogden v. Wolff, 522 F.2d 816 (8th Cir.

5). See generally United States v.

Librach, 520 F.2d sah (8th Cir. 1975);

United States v. Agurs, 510 F.2d 1249,

The first prong of the Moore test

was met in the instant case. Sufficient

request was made for all exculpatory evi-

dence prior to trial and the specific

photographs in question were sought by

counsel during the trial. However, there

is no evidence in the record to support

a finding that the prosecutor deliberate-

ly and in bad faith suppressed these photo-

graphs. Rather, the suppression here, if

any, appears at most to be in the realm

of negligent nondisclosure. As such, the

appellant must provide “some showing of

fundamental unfairness as a result of the

suppression in order to merit relief."

Ogden v. Wolff, supra, 522 F.2d at 821.

With regard to the second prong of

the Moore test, it was noted by this court

in Evans v. Janing, supra, 489 F.2d at

476, that information indicating the

failure of a witness to identify the de-

fendant would be "potentially useful to

the defendant and therefore favorable to

his defense." The slight burden under

this element of the test is easily satis-

fied here.

The third prong, the materiality

of the suppressed evidence, is the most

difficult test to satisfy under Moore.

Appellant contends that the suppressed

photographic evidence, assuming that

Crow Dog is pictured therein, is highly

material to the issues of the alleged-

19a

ly tainted in-court identification of

Crow Dog and the general credibility

‘of the inspectors. We do not agree

inasmuch as appellant Crow Dog's pre-

sence in Wounded Knee at the time in

question is not in serious dispute.

In our view the nature of the sup-

pressed evidence is such that it could

not have been used by skilled counsel

to develop "a reasonable doubt of guilt

in josey. pa of enough jurors to avoid

a conviction." Shuler v. Wasmeright.

491 F.2d 1213, 1223 (Sth cir.

uoting from United States v. Miller,

tyr Faq 825, 832 (2d Cir. 109609). See

also Ogden v. Wolff, supra, 522 F.2d

at 822; Evans v. Janing, supra, 489 F.

2d at 477 & n.195; United States v. Kahn,

472 F.2d 272, 289 r.), cert. denied,

411 U.S. 982 (1973). A review of the re-

cord in the instant case fully illustrates

the limited utility this evidence would

have had at trial.

Appellant's claim of materiality

with regard to in-court identifications

of him by the postal inspectors is ap-

parently based upon his belief that with

the addition of the suppressed photo-

graphic evidence the court would have

found that the in-court identifications

were so tainted as to preclude their re-

liability. See Neil v. Biggars, 409

U.S. 188, 196-201 (1572); mmons v.

United States, 390 U.S. 377, 382-86

(1568). See generally United States v.

Wade, 388 U.S. 218 (1567) In our view

the record of the thorough taint hear-

ings conducted by the trial court as to

each inspector adequately rebuts this

charge and supports the district court's

20a

conclusion that an independent basis

for identification existed in each in-

stance.

Similarly, the suppressed identifi-

cation evidence could not have had such

a major bearing on the credibility of the

postal inspectors as to require a new

trial under Brady standards. Appellant

argues on this appeal that his identifi-

cation "as the person who committed cer-

tain acts is the key issue in this case."

We agree. However, we do not agree with

appellant's statement that the suppressed

evidence " is material to the question of

innocence or guilt and should be presented

to the jury."

It is readily apparent from the re-

cord that the identification of appellant

Crow Dog as being a person who was in

the museum at some time during the course

of the postal inspectors’ detention is be-

yond question. Nor does there seem to

be any significant doubt concerning the

fact that Crow Dog lectured the postal

inspectors during their captivity on a

variety of issues relating to Indian prob-

lems. The entire thrust of Crow Dog's

trial defense was predicated on the con-

tention that he could not be found guilty

of aiding and abetting a robbery on

evidence that merely established that he

came in and gave a speech. This point

was emphasized by counsel for Crow Dog

in his opening statement and closing

arguments to the jury... Further, de-

fense counsel stated to this court in

oral argument that he did not believe

that Crow Dog's presence within the mu-

seum in the role of a lecturer was "an

issue."

2la

Thus it seems clear that the sup-

pressed evidence would not have proved

or ‘disproved appellant Crow Dog's pre-

sence at the scene of the incident. In-

stead, appellant would have used the

suppressed evidence for the purpose of

impeaching the postal inspectors with

respect to their subsequent identifi-

cation of Leonard Crow Dog as a man who

did certain acts in addition to lectur-

ing while inside the museum. The in-

court identification of Leonard Crow

Dog at the scene by the postal inspect-

ors was strong and not seriously question-

ed. However, there were contradictions

and inconsistencies in their testimony

on the issue of Crow Dog's role in the

incident. These areas were fully ex-

plored in lengthy cross-examination by

all three able defense attorneys. In

many respects, the claimed suppressed

identification evidence would have been

cumulative. In any event, the evidence

could not have played a determinative

role in the outcome of the trial. It was

not sufficiently material on the ulti-

mate question of guilt or innocence so

that its suppression ganar beng pe vio-

lation of due process. See Giglio v.

United States, 405 U.s. I50, [83-54

; Napue v. Illinois, 360 U.S. 264,

269 (1953)

In conclusion, we find that while

there may have been a negligent nondis-

closure by the prosecution of favorable

evidence following the request by the

defense for production of same, the evi-

dence in question completely fails to

satisfy the materiality standards re-

quired by Moore and therefore does not

warrant further hearing or the granting

22a

of a new trial on the basis of a viola

tion of due process.

IV.

The next contention raised by appel-

lant is that he was denied his right to

speedy indictment and trial as guaranteed

by the Fifth and Sixth Amendments and by

Fed. R. Crim. P. 48(b). We disagree.

It is alleged that the period be-

tween Crow Dog's initial indictment on

April 10, 1973, and the commencement

of trial on June 2, 1975, constituted a

delay sufficient to require dismissal of

the indictment pursuant to the guidelines

established by the Supreme Court in Bark-

er v. Wingo, 407 U.S. 514 (1972). The

"ad hoc" Falencion test from Barker re-

quires consideration of the following

factors in determining whether a constitu-

tional violation has occurred: “Length

of delay, the reason for the delay, the

defendant's assertion of his right, and

prejudice to the defendant." Barker v.

Wingo, supra, 407 U.S. at 530 (footnote

omitted). e delay in the instant

case, when viewed in light of these

factors, was not constitutionally fatal.

We find initially that the length

of the delay in the instant case is

sufficient to trigger further inquiry.

Tt should be noted, however, that the

complexity of the Wounded Knee cases

generally serves to justify a somewhat

longer delay than would ordinarily have

been permitted prior to a finding that

the defendant had been presumptively

prejudiced. See Barker v. Wingo, supra,

407 U.S. at 530.

23a

The second factor, the reasons for

the delay, does not weigh heavily in the

balancing process for or against either

side in this case. Rather, our examina-

tion reveals that the delay was occasioned

by primarily "neutral" factors. See Bark-

er v. Wingo, supra, 407 U.S. at 531.

It is important to keep in mind the

fact that the sheer magnitude of the

Wounded Knee incident placed a heavy bur-

den on the federal courts responsible for

the prosecutions arising therefrom. Al-

location of manpower and resources was

of no little concern to both the prosecu-

tion and the defense in their preparation.

In addition, the logistics of bringing

to trial a large number of persons on a

wide variety of charges required a more

protracted period for discovery and pre-

trial matters than would normally be ex-

pected. Further, the nine month trial of

Dennis Banks and Russell Means after den-

ial of the motion to consolidate neces-

sarily postponed the non-leadership tri-

als. For example, defense counsel for

Crow Dog in this action was counsel for

Russell Means in that trial and the re-

sultant appeal process. Finally, the

government's acquisition of a supersed-

ing indictment against Crow Dog in

December 1974 on substantive charges

which were not previously brought re-

quired that further preparation time be

allowed to both sides. We note that a

speedy trial was had on those substantive

charges with less than seven months

elapsing between the time of the super-

seding indictment and the conviction of

appellant Crow Dog which is now on ap-

peal.

ro OR

24a

We have taken into consideration

all of these factors in analyzing the

reason for the delay. While responsibil-

ity for the delay appears to rest in some

measure on both the prosecution and de-

fense, we realize that the government

must ultimately bear the greater share.

However, it is clear that, to the ex-

tent the government is responsible for

the delay, it was not done in “an at-

tempt to gain a tactical advantage over

the defendant or to harass him." United

States v. Jackson, 508 F.2d 1001 (7th

Cir. 1575). Thus, on balance, we are not

inclined to give this factor great

weight for or against either side in de-

termining whether or not a denial of

speedy trial has taken place.

Appellant has also failed to satis-

fy the remaining two Barker elements.

First, there was no clearly articulated

assertion of defendant's right to a speedy

trial. Appellant contends that his mo-

tion to consolidate contained language

which was tantamount to such a request,

in that it stated that unless consolida-

tion was granted Crow Dog and the other

non-leadership defendants would be de-

nied that right. The trial court, in its

discretion, denied the motion. No subse-

quent demand for a speedy trial was made

by Crow Dog. Nor did defense counsel

express any particular interest in sepa-

rate simultaneous trials of all Wounded

Knee defendants. To have done so, it

is now contended, would have been in-

consistent with concepts of due process

and fairness. Under these unusual cir-

cumstances we find no active assertion

of the right to a speedy trial by appel-

lant Crow Dog. A request for a speedy

25a

trial will not be inferred from a set of

facts such as these which indicate that

the desire for a prompt trial was con-

ditioned upon a grant of the consolida-

tion motion.

Finally, we are unpersuaded that any

cognizable prejudice has occurred to Crow

Dog aS a result of the delay. The Supreme

Court in Barker specified that the three

major concerns in this area of prejudice

were "(i) to prevent oppressive pretrial

incarceration; (ii)-to minimize anxiety

and concern of the accused; and (iii) to

limit the possibility that the defense

will be impaired." 407 U.S. at 532

(footnote omitted). Appellant Crow Dog

was free on bond throughout ‘the entire

pendency of this-action and thus has no

claim basedon oppressive incarceration.

It _is-Claimed, however, that his prepa-

_“fFation of an effective defense was im-

peded by the passage of time. This con-

tention is wholly unmeritorious. The

discovery taken by the Wounded Knee

Legal Defense/Offense Committee was,

from its inception, for the benefit of

all defendants in criminal actions aris-

ing out of the Wounded Knee incident.

Appellant admits in his brief that much

of the testimony offered against him at

his trial had been previously given at

the Means/Banks trial. Any “fading of

memories" could have been revived and

refreshed by those prior transcripts.

As to the August 1974 death of

Angel Martinez, an eye-witness to the

events in the museum, we conclude that

any claim of resultant prejudice is

based entirely on speculation. The

record before this court does not indi-

ett cel

26a

cate what Martinez' testimony would or

could have been. Where, as here, no

specific claim of prejudice is made and

where eyewitness testimony abounds,® the

fact that a possible witness died during

the delay will not be weighed heavily

in the balance.

Thus, appellant Crow Dog is confined

to a claim of general prejudice arising

from the strain of being under indictment

and subject to the possibility of a

lengthy prison term. However, that alle-

gation by itself "does not establish pre-

judice where, as here, the defendant

neither asserts nor shows that the delay

weighed particularly heavily on him in

specific instances." Morris v. rick,

516 F.2d 1387, 1391 (8th Cir. Lean