# Petition — Crow Dog v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0129%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 430 U.S. 929 ## Text — | 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 i 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 iv 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 vi 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) 41 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 4 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 7 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 10 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 11 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 12 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 . hed ok, —" we ee oe et eng -Ts ek ers & 13 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.) 14 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 ee eerie er Ee Pies actin ited oes sin 15 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.) 16 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 - Cet ee EOL alte tenet Catt Sanmetn Datel 17 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 18 (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.) = me oi ht betes Aa Adland a ; } : 19 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 20 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. ) : i } 4 ‘ . ¢ % i : 21 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- 4 ; F : a 4 4 y 3 ; : ae tenet Ee ee | C3 “J 3 3 I P| a 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. I, 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 24 (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 27 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, Pads Rh tatty Maa nithigly Bite cinas sel tae wicdahteteaet aki oh Sit it a cs 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- : wt . a Jebidetuy FE Sy ite tah ao ee ww Fee Wa ae i BR IE Fr Al ORLA Gate ae SE car RN ene 31 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. 34 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.) 37 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- 40 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, 41 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. 2a 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. I. 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- iL The Honorable Edward J. McManus, Chief Judge, United States District Court for the Northern District of Iowa. 3a 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 2 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 4a 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. 3 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 7a 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 4 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 9a 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, r. 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, Ly 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 See also United States v. Ba arten, 517 F.2d 1020, 1025 (Sth cir. i375); United States v. Cummings, 507 F.2d 324, 330 (8th Cir. 1374} After careful consideration of the four factors from Barker, we are satis- fied that no denial of the right to a speedy trial occurred in the instant case. Appellant further alleges that his rights under the Fifth Amendment were denied by virtue of the delay in issuing z The transcripts reveal that during the period of the postal inspectors' captivi- ty somewhere between 40 and 50 specta- tors were in or near the museum. 27a the superseding indictment. See United States v. Marion, 404 U.S. . is claim is without merit. The standard employed in deter- mining whether prejudice has taken place as a result of pre-indictment delay is "whether the delay has impaired the de- fendant's ability to defend himself." United States v. Golden, 436 F.2d 941, ir.), cert. denied, 404 U.S. 910 (1971). See also United States v. Jackson, 504 F.2d 337 (8th Cir. 1974), Cert. denied, 420 U.S. 964 (1975). We agree with the district court's find- ing that there has been no showing to substantiate appellant's claim of pre- judice or intentional delay. See United States v. Jackson, supra, 504 F.2d at 339 n.2; United States v. Rucker, 496 F.2d 1241, 1242-44 (8th Cir. 1974). Although the superseding indictments were not handed down until some 20 months after the incident, Crow Dog had been under indictment for a crime encompassing the same set of events during almost that entire period. Any defense efforts made in regard to that first indictment carried over to the second and thus negated the chance of an impaired defense. The district court's finding in this regard is not clearly erroneous. United States v. Jackson, supra, 504 F.2d at 341. Similarly unmeritorious is appel- lant's contention that the district court erred in failing to dismiss his case for want of prosecution under Fed. R. Crim. P. 48(b). That rule gives the court discretion to dismiss an indict- ment for unnecessary delay even if no as 28a Sixth Amendment violation is found. See United States v. Clay, 481 F.2d I33, 135 (7th Cir.) sart. denied, ’ rele 414 U.S. 1009 (1973). This court has held, however, that most of the same factors which are relevant for Sixth Amendment purposes are applicable to Rule 48(b) motions. See Hodges v. United States, 408 Poa sas set r. 9). Having already dis- cussed the Barker standards at length and found no denial of Sixth Amendment rights, we conclude that the district court's denial of a dismissal pursuant to Rule 48(b) was not an abuse of dis- cretion. See Hodges v. United States supra, 408 F.2d at 551. : Vv. We next review appellant's claim that the evidence presented against him at trial was insufficient as a mat- ter of law to sustain his conviction as an aider and abettor. It is asserted that the government's testimony failed to show that Crow Dog did any affirmative act to further the accomplishment of the criminal acts charged, namely, rob- bery of a pistol belonging to the United States and intimidation of an interfer- ence with the performance of duties by a federal postal inspector. In evalua- ting this contention, we are guided by the principle that this court must view the evidence in the light most favorable to the verdict and accept all reasonable inferences that flow therefrom. Uni- ted States v. Baumgarten, 517 F.2d 1020, r ? nited States v. Wiebold, 507 F.2d 932, 533 (8th Cir. ; United States v. Britton, 500 | 29a F.2d 1257, 1258 & n.4 (8th Cir. 1974); Koolish v. United States, 340 F.2d 513, 519 (8th Cir.), cert. denied, 381 U.S. 951 (1965). Applying that standard to the in- stant case, we find that the evidence is sufficient to support appellant Crow Dog's conviction on both counts. Aiding and abetting requires proof by the government that the defendant had a “pur- poseful attitude” and in some manner participated in the un- lawful deed. United States v. Hill, 464 F.2d 1287 (8th Cir. 1972); United States v. Kelton, 446 F.2d 669, 671 (8th Cir. 1971); United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938). See also United States v. Atkins, 473 F.2d 308, 310- 13 (8th Cir.), cert denied, 412 U.S. 93l, 93 S. Ct. 2751, 37 L.Ed.2d 160 (1973). Essentially, this requires the existence of "some affirm- ative participation which at least encourages the perpe- trator." United States v. Thomas, 469 F.2d 145, 147 (8th Cir. 1972). See also United States v. Wiebold, 507 F.2d 932, 934 (8th Cir. 1974). United States v. Ba arten, supra, Bl? F.2d at ldo). Bae also Perriea v. United States, 347 U.S. 1, 5 (1554); Nye & Nissen v. United States, 326 Cs tia —"y 30a U.S. 613, 618-19 (1949), Evidence was presented in this case which showed that appellant Crow Dog (1) met the postal inspectors out- side the museum building in which they were subsequently held and informed them that they were “prisoners of war" and would be treated accordingly; (2) entered the building with the in- spectors and repeated the prisoner of war statement to them as they were being bound and gagged; (3) lectured the cap- tive inspectors on the problems of In- dian people in the areas of health and education;? (4) warned that the inspec- tors might be carrying concealed re- cording or radio transmitting equip- ment on their bodies and that they should be searched; and, (5) took keys to a locked briefcase from one of the inspectors. We feel that this evidence » Appellant contends, somewhat impre- cisely, that the act of lecturing would not have provided a sufficient basis in and of itself to support his conviction as an aider and abettor, especial.y with regard to the alleged act of robbery. By virtue of the fact that there is other evidence in the record from which Crow Dog's active role in the incident can be inferred, we need not reach this question. It is our view, however, that appellant Crow Dog's act of speech loses its First Amendment protection ewhen coupled with criminal activity. 3la provides [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0129%3A1. Public record. Not legal advice.