Petition — Peltier v. United States
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WALL BoD,
IN THE
Supreme Court of the United States
OcTOBER TERM, 1978
No. 78-893
LEONARD PELTIER,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
MicuHake. E. Ticar
JOHN J. PRIVITERA
1302 18th Street, N.W.
Washington, D.C. 20036
ARTHUR KINOY
76 N. Fullerton
Montclair, New Jersey 07042
WiniaM M. KUNSTLER
13 Gay Street
New York, New York 10014
Counsel for Petitioner.
Press or Byron 8. AnaMs PRInTING, INc., WASHINGTON, D.C
S
TABLE OF CONTENTS
ese ds ceccce
sr ee ee wenceces
I ccc acs cescveccccecs
SRI I I oon bcos dccccaeacceccccecs
ec cecceces
The Trial: Evidence of Government Misconduct
The Trial: The Myrtle Poor Bear Episode ......
Evidence of Other Crimes, and Other Weapons .
Reasons For GRANTING THE WRIT ................--;
3
Il.
ilf.
IV.
V.
The Extradition Was Based In Part On Fraud.
This Court’s Supervisory Power Should Be
Exercised To Enter An Order In Arrest Of
ee Or ap eke cee cece s
The Decision Of The Court Of Appeals Misreads
Federal Rule Of Evidence 403 As A Bar To A
Defendant’s Fifth Amendment Right To Due
Process And Sixth Amendment Compulsory
Process Right To Present Competent, Relevant
Re ee ME led cbicccwrerccsscccss
Other Cireuits Have Held That Evidence Of
Spoliation, Witness Coercion And Subornation
Of Perjury Is Admissible To Prove Conscious-
I ee ED Kode tie tiedccccccerss
Other Circuits Have Held That A Defendant Is
Entitled To A Jury Instruction That Govern-
ment Threats To Witnesses May Be Regarded
As Evidence Of The Weakness Of The Govern-
IRE ce acne tuaeedecidehbebernecess
The Court Of Appeals Has Vitiated The Control
Of The Admission Of Other Crimes Evidence To
Be Found In Federal Rule Of Evidence 404(b)
And Required By Other Circuits ..............
a")
)
i)
ce)
eo NOC rR WD WO W
12
15
16
(ii)
TABLE OF CONTENTS (cont’d) Page
VI. The Decision Below Conflicts With The Decision
Of Other Courts Of Appeals As To The Admissi-
bility Of Other Weapons Evidence ............ 21
CI as dnd oc kaa be AR a ode oka ch bee dabs 22
PEPE eo 6k nee ee ed Raabe seo or aes ne we rane la
EE ck Sx bb eee vee ei eee sy Chea bbws o karan 43a
I Gee as ea vin iu Ge Kee nc cdbe vec ea Oka ehok eas 53a
TABLE OF AUTHORITIES
Cases Page
Alberty v. United States, 162 U.S. 499 (1896) ........ 20
Allen v. United States, 164 U.S. 492 (1896) .......... 16
Chambers v. Mississippi, 410 U.S. 284 (1973) ...... 14, 15
Cosgrove v. Winney, 174 U.S. 64 (1899) ............ 12
Frisbie v. Collins, 342 U.S. 519 (1952) .............. ll
Hickory v. United States, 160 U.S. 408 (1895) ...... 20
Johnson v. Browne, 205 U.S. 309 (1907) ............ 11
Ker v. Illinois, 119 U.S. 436 (1886) ................ 11
Moody v. United States, 376 F.2d 525 (9th Cir. 1967) . 21
Tatum v. United States, 190 F.2d 612 (D.C. Cir. 1951) 17
Thomas v. United States, 376 F.2d 564 (5th Cir. 1967) 21
United States v. Adeock, 558 F.2d 397 (8th Cir. 1977) 19
United States v. Alfonso-Perez, 535 F.2d 1362
CO Ca ee sb aseccy che oN cree ak events nacesen 17
United States v. Benedetto, 571 F.2d 1246
Ce SP, Sci ck ohc cawcssaedensanbtiacasaes 19
United States v. Bohr (No. 78-1096) slip op.
CO CRE Uy Te Se kon cick evs vive sdedcses 19
United States v. Burr, 25 F. Cas. 30 (No. 24692d )
(CIR. Wei Te hiv v9 0b sbacs daadeceeasieuecves 15
(iii)
United States v. Burr, 25 F. Cas. 187 (No. 14694)
CER We IR dscns deah.cvcsnensvcseh sacbis's
United States v. Clemons, 503 F.2d 486 (8th Cir. 1974)
United States v. Haggett, 438 F.2d 396 (2d Cir.),
cert. denied, 402 U.S. 946 (1971) ............6...
United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977)
cert. denied, 435 U.S. 1000 (1978) ...........0 eee
United States v. Honore, 450 F.2d 31 (9th Cir. 1971)
cert. denied, 404 U.S. 1048 (1972) ..............
United States v. Jones, 570 F.2d 765 (8th Cir. 1978) ..
United States v. Long, 574 F.2d 761 (3d Cir. 1978) ..
United States v. Loud Hawk, (Nos. 76-1906, 76-2127, )
slip op. (July 26, 1977), rehearing en bane granted
pending remand (9th Cir. March 6, 1978) ........
United States v. Myers, 550 F.2d 1036 (5th Cir. 1977)
United States v. Palmieri, 456 F.2d 9 (2d Cir.), cert.
denied sub nom., Wisniewski v. United States, 406
Se NE er dae 5 cb dak iba Re eo ed bse 6s
United States v. Partin, 493 F.2d 750 (5th Cir. 1974)..
15
19
16
17
United States v. Rauscher, 119 U.S. 407 (1886) ..10, 11, 12
United States v. Reid, 410 F.2d 1223 (7th Cir. 1969) ..
United States v. Robinson, 560 F.2d 507 (2d Cir. 1977)
(en banc) cert. denied, 435 U.S. 905 (1978) ........
United States v. Schennault, 429 F.2d 852
I Coa we he coh n a6 8 680.08
United States v. Toscanino, 500 F.2d 267
I a ae ka ce ea oo cle ecelsse a 6h an Goes
United States v. Turner, 485 F.2d 976 (D.C. Cir. 1973)
United States v. Vole, 435 F.2d 774 (7th Cir. 1970) ...
United States v. Warledo, 557 F.2d 721
ES Se rear ebl see be eaecoks
United States v. Weir, 575 F.2d 668 (8th Cir. 1978) ..
United States v. Williams, 577 F.2d 188
Rs eter i ks cheeses sis xecene
Washington v. Texas, 388 U.S. 14 (1967) ..........
21
21
11
15
16
21
18
(iv)
Page
Wong Sun v. United States, 371 U.S. 471 (1963) .... 20
RvuLEs AND STATUTES:
Federal Rule of Appellate Procedure 10(e) ........ 9
Federal Rule of Evidence 403 .............0006. 12, 13, 14
Federal Rule of Evidence 404(b) ............00000- 17
EBs Coe | | Pere a ene 21
2% UBL. 4 5GGRGE). .. ccivcikcicnevetracnsaeeeeae 21
98 UBL. GIBB) 2 on cinccdsvsectasuenceeeeeee 2
Orurr AUTHORITIES:
Garcia-Mora, M., Criminal Jurisdiction of a State
Over Fugitives Brought From a Foreign Country
by Force or Fraud: A Comparative Study,
92 Ind.L.d. 498 (30GT) 6vcsdvccncnuaneseeenees 11
Webster-Ashburton Treaty of 1842, as amended,
S Bea, SRS oo is0ccevctuscces ena eee 10
Westen, P., Compulsory Process, 73 Mich. L. Rev. 71
CRGTE) x o.c.000s'c00e-seaanes eee nee 14, 15
Westen, P., Compulsory Process II, 74 Mich. L. Rev.
BGR (16S) ..... ecvcscwaseneeusneeseeeenee 14
Wigmore, III, Evidence § 278 (Chadbourne rev. 1970) 12
Wigmore, III, Evidence $§ 960 and 1005 at 805, 969
(Chadbourne rev. 19VG) ..cccccscccncuceusnennes 13
IN THE
Supreme Court of the United States
OctToBER TERM, 1978
No.
LEONARD PELTIER,
Petitioner,
Vv.
UNITED STaTEs OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Petitioner, Leonard Peltier, prays that a writ of
certiorari issue to review the judgment of the United
States Court of Appeals for the Eighth Circuit, affirm-
ing his conviction in the United States District Court
for the District of North Dakota of two counts of first-
degree murder, in violation of 18 U.S.C. §§ 1111 and
1114, ascribing criminal responsibility for the deaths
of two FBI agents. The petitioner is incarcerated in
the federal penitentiary at Marion, Illinois, having
been sentenced to two consecutive life terms.
2
OPINIONS BELOW
The opinion of the court of appeals, as amended on
denial of rehearing, not yet officially reperted, is
printed as Appendix A.
JURISDICTION
The judgment of the court of appeals was entered
on September 24, 1978. A timely petition for rehearing
was denied on October 27, 1978. On November 17,
1978, Mr. Justice Blackmun granted a timely applica-
tion for extension of time in which to file this petition
to and including December 4, 1978. This Court has
jurisdiction under 28 U.S.C. § 1254(1).
QUESTIONS PRESENTED
1. May an extradition from a foreign country pur-
suant to an international treaty be based in part on
affidavits acknowledged by the United States govern-
ment to be false?
2. Is it a violation of an accused’s rights to compul-
sory process and due process of law to exclude the
competent, relevant testimony of a defense witness
that government witnesses had intimidated and co-
erced her to sign false affidavits?
3. When a jury has heard evidence of government
threats to witnesses, is an accused entitled to a jury
instruction that the threats may be evidence of the
weakness of the government’s case?
4. Is it proper under Federal Rule of Evidence
404(b) to introduce into evidence lengthy and detailed
accounts of other crimes and unrelated other weapons
evidence going to collateral matters such as flight?
3
STATEMENT OF THE CASE
On June 26, 1975, three people were killed by gun-
fire at Pine Ridge Indian Reservation in South Da-
kota: one American Indian, Joe Stuntz, and two FBI
agents, Williams and Coler. The death of Joe Stuntz
has not prompted any criminal charges. Four American
Indian males were charged with murdering the two
FBI agents: Jimmy Eagle, Dino Butler, Bob Robideau
and Leonard Peltier. The government dismissed the
charges against Jimmy Eagle. A jury acquitted Dino
Butler and Bob Robideau in Cedar Rapids, Iowa.
Leonard Peltier was extradited from Canada and tried
separately.
The case against Leonard Peltier, as against Butler
and Robideau, was entirely circumstantial. The govern-
ment’s theory throughout both trials was that Williams
and Coler were present on the reservation in an at-
tempt to locate and arrest Jimmy Eagle, and were
“ambushed” by Peltier and others.
Leonard Peltier was on the reservation June 26; he
fled. T. 1539-58." He had come to Pine Ridge at the
request of a board of tribal elders who knew his rep-
utation as an organizer and leader, T. 3590, and he
divided his time there between the compound of houses
where the three deaths occurred and a nearby tent area
set up in a traditional, religious fashion. T. 856-57,
3519-22.
Many of the residents in the tent area were members
1 The defense was precluded from showing that Peltier was, with
reason, afraid the FBI would kill him, and showing the climate of
terror on the reservation. T. 3820, 3923. These facts would have
shown that Peltier had reasons other than consciousness of guilt to
leave.
4
of the American Indian Movement (AIM). Several
witnesses testified that the occupants in the tent area
feared an assault by Bureau of Indian Affairs officers
and some of the more reactionary residents on the
reservation, who had been known to harass and assault
members of AIM. T. 401, 858, 1120, 1421, 1578. In fact,
this climate of fear and oppression had prompted the
elders to invite Peltier to the reservation. T. 3593-94.
When Peltier fled, he sought refuge in Canada.
The Extradition
Peltier was indicted in the United States and ar-
rested in Canada on February 7, 1976. The United
States instituted extradition proceedings. The indict-
ment was presented to the Canadian authorities along
with an alleged eyewitness account of the murders. Two
affidavits, said to have been signed by an Indian woman
named Myrtle Poor Bear, were tendered by the United
States to the Canadian government.’
The affidavits were dated February 23, 1976 and
March 31, 1976, respectively. In them Poor Bear swore
she saw Peltier shoot the two agents.
An extradition order was entered.
While Peltier was appealing the extradition order
to the Minister of Justice of Canada, the Butler-Robi-
deau trial for the same offense was underway at Cedar
Rapids. Myrtle Poor Bear was on the government’s
witness list. In response to a discovery request, the
government produced a Myrtle Poor Bear affidavit
2 These two affidavits were reprinted in the Appendix as Affidavit
2 and Affidavit 3 at 45a-50a.
Seas a.
5
dated February 19, 1976, in which she swore she had
left the reservation before June 26.°
Affidavit 1 was presented to the Minister of Justice
of Canada as newly discovered evidence but the extra-
dition was allowed to stand.
The Trial: Evidence Of Government Misconduct
There were no eyewitnesses to the killings. Only
three government witnesses placed Peltier and others
in the vicinity of the agents’ car: Wish Draper, Michael
Anderson and Norman Brown. T. 788, 1037-38, 1445-
46. All three witnesses were young American Indians.
They also said they had been threatened, intimidated,
or physically abused by FBI agents during the investi-
gation, including the government’s principal witness
Agent Adams. T. 841-44, 1097-100, 4802-06. Draper
testified that he had been handcuffed and tied to a
chair for three hours during an FBI interview. T.
1084. Defense witness Gene Day testified that the FBI
agents threatened to take her children from her if she
did not speak to them, and Norman Brown (recalled by
the defense) stated that FBI threats had led him to
testify falsely before the grand jury in this case. T.
3554, 4812.
In order to put the evidence of government miscon-
duct which the jury was allowed to hear in proper per-
spective, the defense requested the following instruc-
tion, which the trial court refused to read:
“Testimony has been adduced in this case which
8 This affidavit is reprinted in the Appendix as Affidavit 1 at
43a-45a.
6
if believed by you shows that the government in-
duced witnesses to testify falsely. If you believe
that the government, or any of its agents, induced
any witnesses to testify falsely in this case [or in
any related case], this is affirmative evidence of the
weakness of the government’s case.”
The Trial: The Myrtle Poor Bear Episode
Myrtle Poor Bear was listed as a government witness
in this case. Relying on this assurance, defense counsel
was led to say in the opening statement that she was an
“unbelievable” witness based on the three inconsistent
affidavits.
During the government’s case a shadow of doubt was
cast over the Poor Bear affidavits by the testimony of
four government witnesses that she had never been
seen or heard of in the Jumping Bull Compound on the
reservation where the three deaths took place, T. 849,
1118, 1597, 2701-03, and by the testimony of Dean
Hughes, the chief investigator on the case, that he had
no knowledge of when or how she became an informant.
T. 2915-19.
The government elected not to call her. The defense
then sought to call Myrtle Poor Bear in Peltier’s de-
fense to demonstrate that the government had resorted
to fabrication of evidence, obstruction of justice, sub-
ornation of perjury and intimidation, all classic indicia
of consciousness of a weak cause, and to lay bare the
bias and hostility of two government witnesses, Woods
and Price. The trial court entered a material witness
order unopposed by the government.
Poor Bear was ealled by the defense, but the jury
7
never heard a word of her testimony. It was preserved
for review in an offer of proof.’
She recanted virtually every allegation in the affi-
davits, swearing that FBI agents Woods and Price, two
government witnesses at the trial, threatened to kill her
if she would not inculpate Peltier. She swore that she
had been taken to the Jumping Bull Compound to
survey the area, previously unknown to her, prior to
signing the affidavits. T. 4584-650. Also during the offer
of proof, the defense sought to discover who prepared
the affidavits. Agent Skelly said Woods and Price pre-
pared the affidavits. T. 4501. Price said that he had
interviewed Poor Bear but that the affidavits were pre-
pared by a United States Attorney or the Canadian
counsel representing the United States at the extra-
dition. T. 4540.
During the oral argument before the eighth circuit,
the United States Attorney admitted that the Poor
Bear affidavits were false. An excerpt from the tran-
script of the hearing is reprinted as Appendix C to this
petition at 53a-56a.
Evidence Oi Other Crimes, And Other Weapons
Evidence of other crimes and weapons introduced by
the government over strenuous and repeated objection
permeate the entire record. In the interest of brevity,
only a few are recited here:
1. A prior unrelated attempted murder charge
in Milwaukee. T. 3417. Since the trial of this case,
“One of the U.S. Attorneys stated, during the offer of proof,
why Myrtle Poor Bear had not been called as a government witness.
He said, ‘‘There is no question that we had considered calling her
as a witness. We did not for various reasons, including the garbage
that is coming out now.’’ T. 4601.
8
Peltier has been acquitted of that charge. The
court of appeals expanded the record to include
the acquittal pursuant to Peltier’s F.R.App.P.
10(e) motion.
2. The explosion of an automobile in Wichita,
Kansas, in which a large number of unrelated
weapons and explosives were found. T. 1640-50,
2191-2216. Three firearms recovered at the scene
were admitted along with several pictures of the
explosion-damaged vehicle, several pictures of the
eight or more firearms recovered from the vehicle,
and several pictures of shells and hand grenades
found at the scene. Testimony of the details of the
items was heard by the jury. Peltier was not an
occupant of the car and was not in the vicinity. T.
814-18, 1641-42, 2133-95.
3. Evidence of a burglary and truck theft at a
home in Oregon (including fingerprint analysis),
and a detailed account of an Oregon state trooper’s
alleged attempt to arrest Peltier at a motor home
which was stopped on the highway. The trooper
testified that Peltier fired a shot at him and fled.
The government introduced — of four-
teen firearms, eight of which had obliterated serial
numbers, and several hand grenades which were
found in the motor home. The government offered
ali of this evidence, which consumes several hun-
dred pages of the transcript, T. 2217-2572, for the
ostensible purpose of showing that Peltier was in
flight. T. 2171-91.°
4. Peltier’s possession of unrelated weapons at
his arrest in Canada. T. 2746-92.
5 Peltier was indicted in the County of Malheur, Oregon, for
attempted murder and attempted use of a dangerous weapon for
this incident. Soon after the charge was used against him in the
trial below, the county court dismissed the charges. Peltier was
never charged with the alleged burglary and truck theft in Oregon
which was used against him in this case. Dennis Banks, Peltier,
Anna Mae Aquash (who has since been killed) and others were
ee
Y
5. Testimony as to dynamite, hand grenades and
unrelated weapons with obliterated serial numbers
seized in the FBI’s raid on the Rosebud Reserva-
tion 180 miles east of the Pine Ridge Reservation
in September of 1975, at which Peltier was not
present. T. 2573-600.
No cautionary or limiting instruction was given re-
garding any of this evidence until the end of the case.
Instruction No, 40,
REASONS FOR GRANTING THE WRIT
lL The Extradition was Based in Part on Fraud. This Court's
Supervisory Power Should be Exercised to Enter an Order
in Arrest of Judgment.
Renewed attention to the question of international
rights by our own State Department and modern insti-
tutions such as the Human Rights Committee of the
United Nations has quickened the academic and ju-
dicial debate over the conduct of states in extradition
proceedings. This case asks the Court to examine and
remedy as a matter of domestic law, a breach of the
good faith which must be demanded in dealings among
contemporary nations. The relief we are requesting
here is not based solely on this Court’s inherent power
or the sound principles of international fair dealing
charged in federal court in Oregon with several firearms and ex-
plosive possession charges after the vehicles stopped on the high-
way in Oregon were searched. The district court dismissed all of
these charges and the ninth circuit affirmed the dismissals. United
States v. Loud Hawk, (Nos. 76-1906, 76-2127) slip op. (July 26,
1977), rehearing en banc granted pending remand (9th Cir., March
6, 1978). Pursuant to Peltier’s F.R.App.P.'10(e) motion in the
court of appeals, the record in this case was expanded to include
the dispositions of these charges.
10
established long ago, but a recognition that these recent
developments are embodied in our Constitution.*
The Poor Bear affidavits were a significant portion
of the evidence tendered to the Canadian authorities
in the extradition proceedings. She was the only person
who claimed to be an eyewitness to the killings. The
United States government has now admitted that the
affidavits were false in their entirety.
The treaty under which the extradition in this case
took place was the Webster-Ashburton Treaty of 1842,
as amended, 8 Stat. 572. The false affidavits were part
of the “evidence of criminality” required by Article X
of the treaty. This violation of the clear intent and
meaning of an extradition treaty deprived the trial
court of jurisdiction. In similar instances, this Court
has directed entry of an order in arrest of judgment.
United States v. Rauscher, 119 U.S. 407 (1886).
In Rauscher an order in arrest of judgment was
entered because a defendant’s presence was obtained
by the misrepresentation that he was to be tried for
murder, and he was then tried for a different offense.
The government’s conduct in this case was a far more
egregious affront to international law and to the sover-
eignty of another nation consisting as it did of falsi-
fying the “evidence” demanded by the treaty. Such
misconduct must be redressed as a matter of domestic
law. The government’s action is “fraud upon the rights
®The Pine Ridge Reservation is land within the territorial
jurisdiction of an independent nation of peoples, the Lakota
Nation. For the purposes of this point, it must be noted that
Leonard Peltier does not concede the jurisdiction of the United
States to demand extradition from a foreign country for an alleged
offense which occurred within the territorial jurisdiction of the
Lakota Nation.
8
of the party extradited and... bad faith to the country
which permitted his extradition.” Rauscher, 119 U.S.
at 422. “No such view of solemn public treaties between
the great nations of the earth can be sustained by a
tribunal called upon to give judicial construction to
them,” Id.
Of course, it has been held that a trial may proceed
when the defendant’s presence is secured by abduction,
see, e.g., Ker v. Illinois, 119 U.S. 436 (1886), and F'ris-
bie v. Collins, 342 U.S. 519 (1952). But this rule has
been much criticized. E.g., M. Garcia-Mora, Criminal
Jurisdiction Of A State Over Fugitives Brought From
A Foreign Country By Force Or Fraud: A Compara-
tive Study, 32 Ind.L.J. 428 (1957), and at least one
court of appeals has disavowed it, United States v.
Toscanino, 500 F.2d 267 (2d Cir. 1974).
The consistent course of decision both here and
abroad has, however, denied jurisdiction when custody
is obtained in violation of a treaty. The principles of
Rauscher have been applied not only where an Ameri-
can court has tried an accused for a crime other than
the one for which extradition was granted, but also
where there has been an action clearly contrary to the
specific authorization of the treaty by the receiving
nation that betrays the good faith necessary to relations
between sovereigns.
In Johnson v. Browne, 205 U.S. 309 (1907), the de-
fendant sought refuge in Canada. The United States
had requested his extradition to serve a sentence for a
crime which the Canadian government had said was not
extraditable. The United States reindicted the de-
fendant for an extraditable offense, obtained the extra-
dition order, dismissed the charges and placed the de-
12
fendant in jail for the original sentence. The holding in
Rauscher was applied. Likewise, in Cosgrove v. Win-
ney, 174 U.S. 64 (1899), this Court held that the extra-
dition process was abused when e defendant was ar-
rested while out on bail, after extradition, for a crime
which was an unextraditable offense.’ The rule is clear:
Blatant government misconduct in international pro-
ceedings cannot be countenanced.
Il. The Decision of the Court of Appeals Misreads Federal Rule
of Evidence 403 as a Bar to a Defendant's Fifth Amendment
Right to Due Process and Sixth Amendment Compulsory
Process Right to Present Competent, Relevant Evidence in
His Behalf.
The defense theory of the case was that the FBI
had resorted to extraordinary, and sometimes illegal,
means in proceeding against Peltier. The relevance of
the Poor Bear testimony, and the purpose for which
she was called as a defense witness, was that the govern-
ment misconduct was evidence of government con-
sciousness of a weak cause. When there has been
attempted subornation, coercion of a witness, or spolia-
tion of evidence, “. . . the inference, indeed, is one of
the simplest in human experience ... ,” and “the infer-
ence is an indefinite one, that the whole cause must be
an unfounded one since such means are employed to
sustain it.” III, Wigmore, Evidence § 278 (Chadbourne
rev. 1970). The misconduct goes directly to the gov-
ernment’s knowledge of the merits of the entire case.
7When the court of appeals was presented with this issue, it
did not apply the Rauscher principle, yet. stated :
‘‘The use of the affidavits of Myrtle Poor Sear in the extra-
dition proceedings was, to say the least, a clear abuse of the
investigative process by the FBI. This was conceded by gov-
ernment counsel on the hearing in this Court.’’ Appendix
38a-39a n.18,
ce sain a wait ae
13
The Poor Bear testimony was also offered for a
much simpler proposition which the court of appeals
did not address. She testified that two prosecution wit-
nesses had threatened, coerced and intimidated her to
make false declarations. The rule here is well estab-
lished. Witness bias and corruption in the form of
hostility or attempts to suborn perjury is never col-
lateral. It may be proven by extrinsic evidence and
proof of either is admissible to contradict a witness’
testimony or prove incredibility. III Wigmore, Evt-
dence §§ 960 and 1005 at 805, 969 (Chadbourne rev.
1970). See, e.g., United States v. Schennault, 429 F.2d
852 (7th Cir. 1970) and United States v. Haggett, 438
F.2d 396 (2d Cir.), cert. denied, 402 U.S. 946 (1971).
Ordinarily trial court rulings under Rule 403 are
entitled to great deference, but the trial court here
didn’t make one. It held that the testimony was irrele-
vant. T. 4665.
The court of appeals, first stating that this proffer
was “certainly consistent” with the defense theory of
the case and that “the more prudent course might have
been to allow the defense to present the evidence,”
held that the evidence was properly excluded under
Federal Rule of Evidence 403.°
In a variety of contexts this Court has held that
rules of evidence cannot be applied to restrict a de-
fendant from obtaining and introducing evidence. In
Washington v. Texas, 388 U.S. 14 (1967), this Court
invalidated a state rule of evidence which prohibited an
®’Federal Rule of Evidence 403 reads: ‘‘Although relevant,
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulation evidence.’’
14
entire class of potential defense witnesses from testi-
fying on a defendant’s behalf. The state rule of evi-
dence could not suspend’ the fifth and sixth amend-
‘ments. The court of appeals appears to read Rule 403
broadly as a similar partial revocation of a defendant’s
constitutional right to compulsory process and due
process of law.
As Chambers v. Mississippi, 410 U.S. 284, 302 (1973),
which overturned the exclusion of a third party’s con-
fession as hearsay, makes clear, the constitutional right
of a defendant “to present witnesses in [his] own de-
fense” is not to be yielded up to unduly restrictive
evidentiary practice.
Once it was acknowledged that the testimony was
“certainly consistent” with the defense theory of the
ease, and therefore relevant, Rule 402 permitted dis-
cretion only after a finding that probative value was
substantially outweighed by the listed considerations.
The trial court made no such finding. The court of ap-
peals required a mere “weighing,” ignoring the burden
explicit in Rule 403. The scales are not even; “sub-
stantially” is not surplusage. It ts this very potnt that
conforms Rule 403 with the fifth and siath amend-
ments,
As one commentator has pointed out, Chambers
implies that when a defendant presents competent, rele-
vant evidence the burden shifts to the state to “demon-
strate that it is so inherently unreliable as to leave the
trier of fact no rational basis for evaluating its truth.”
P. Westen, Compulsory Process, 73 Mich. L. Rev. 71,
152 (1974). See generally P. Westen, Compulsory
Process II, 74 Mich. L. Rev. 191 (1975).
The misapplication of Rule 403 implicates basic
eS ee eee ee
15
constitutional values. Indeed, it denies the very purpose
for which the compulsory process clause was included
in the bill of rights, implicitly recognized by Chief
Justice Marshall, sitting on circuit, in United States v.
Burr, 25 F. Cas. 30 (No. 24692d) (C.C.D. Va. 1807),’
to allow an accused to explore and present to the jury
the other side of the government’s case.
IL Other Circuits have held that Evidence of Spoliation, Witness
Coercion and Subornation of Perjury is Admissible to Prove
Consciousness of a Weak Cause,
Chambers teaches, at the least, that evidence admis-
sible against an accused is admissible in his favor, as
noted by Professor Westen in Compulsory Process, 73
Mich. L. Rev. at 155. Had Leonard Peltier threatened
Poor Bear with harm if she did not testify falsely in
his favor, the government doubtless could have called
her as a witness to testify as to those events. If the
court of appeals is understood to find such evidence
generally inadmissible, it is not in agreement, as shown
below, with other circuits that have considered the
question. The only other explication of its holding is
that such evidence may only be proffered by one party
in a criminai case.
In United States v. Honore, 450 F.2d 31 (9th Cir.
1971), cert. denied, 404 U.S. 1048 (1972), evidence of a
defendant’s attempts to intimidate a witness was held
properly admitted as demonstrating consciousness of
guilt. Likewise, in United States v. Turner, 485 F.2d
976 (D.C. Cir. 1973), evidence of an attempted bribery
of a witness by the defendant was held admissible.
9 See also United States v. Burr, 25 F. Cas. 187 (No. 14694)
(C.C.D. Va. 1807). For an analysis of Marshall’s treatment of
compulsory process, see Compulsory Process, 73 Mich. L. Rev. at
101-08.
16
United States v. Palmtert, 456 F.2d 9 (2d Cir.),
cert. dented sub nom., Wisniewski v. United States, 406
U.S. 945 (1972), is similar to this case. During the
trial of that case, the defendant asked “A” to coerce
or bribe “X” and “Y”, the victims and principai wit-
nesses in the extortion offense being tried. “A” was un-
successful and confessed his attempt to the United
States Attorney’s office. He testified the next day as to
the statements and conduct of the defendant when he
asked “A” to coerce “X” and “Y”. The evidence was
admitted solely as to the defendant’s consciousness of
a weak cause, and held to be proper given a limiting
instruction.
This Court recognized as early as Allen v. United
States, 164 U.S. 492, 500 (1896), “that the fabrication
of testimony raises a presumption against the party
guilty of such practice.” The rule fashioned by the
court of appeals carves out an exception for the gov-
ernment when it is a party in a lawsuit.
IV. Other Circuits have held that a Defendant is Entitled
to a Jury Instruction that Government Threats to Witnesses
May be Regarded as Evidence of the Weaknese of the
Gevernmeat’s Case.
Although the trial court prevented the jury from
hearing the Poor Bear testimony, there was evidence
that the government threatened and intimidated
Brown, Draper, Anderson and Day and that the
threats induced Brown to testify falsely before the
grand jury. The defense sought to put this evidence in
perspective and requested the jury instruction set out
above. The courts below held that Peltier was not en-
titled to the instruction.
In Untted States v. Vole, 485 F.2d 774 (7th Cir.
ee ee Se eee
17
1970), the precise jury instruction which was requested
here was held properly given, but the court reversed
because a broader theory of the case instruction was
refused. It has been held that a defendant is entitled
to an instruction on his or her theory of the case,
“even though the evidence may be weak, insufficient,
inconsistent or of doubtful credibility.” Tatum v.
United States, 190 F.2d 612, 617 (D.C. Cir. 1951). Ac-
cord, United States v. Alfonso-Perez, 535 F.2d 1362,
1365 (2d Cir. 1976) and [/nited States v. Partin, 493
F.2d 750, 761-62 (5th Cir. 1974).
Here, the impeaching testimony of the principal
government witnesses was effectively precluded from
the jury’s consideration by the tria: court’s refusal to
instruct.
V. The Court of Appeals has Vitiated the Control of the Ad-
mission of Other Crimes Evidence to be found in Federal Rule
of Evidence 404(b) and Required by Other Circuits.
Since the adoption of the Federal Rules of Evidence
in 1975, no rule has engendered such contrariety of
judicial expression as 404(b).?° Some differences arise
from the peculiar facts of the many cases reviewed; an
attempt to reconcile and eliminate these variances in
the details of application would be exhausting and
likely futile. Differences that go to the limits of the
rule, such as to scope (e.g., whether other crimes evi-
dence must go to a material issue in the ease; whether
10 Rale 404(b) provides:
Other Crimes, Wrongs, Or Acts.
Evidence of other crimes, wrongs or acts is not sdmissible
to prove the character of a persun in order to shdw that he
acted in conformity therewith, It may, however. be admissible
for other purposes, such as proof of motive, opportunity,
intent, preparation, plan. knowledge, identity, or absence of
mistake or accident.
18
the list of permitted purposes to be found in the rule
is “inelusory” or exhaustive) are of another order
entirely. Not only are such differences capable of res-
olution, but the varying views expressed in the array
of appellate opinions offer no consistent guide to the
conscientious trial judge on an issue of importance
and frequent occurrence.
Here, substantial evidence was admitted of “other
crimes” (burglary of a home, theft, and alleged at-
tempted murder of a police officer) in connection with
an incident in Oregon. The incident occurred four
months after the offense being tried, was proved with
scrupulous attention to detail, and was offered for the
ostensible purpose of demonstrating that Peltier was
in flight a few months after the crimes charged and
thus conscious of his guilt.”
Admission of this evidence expands the “exception”
in Rule 404(b) so broadly as to negate the rule itself.
Proof of “flight” is not such a listed purpose. The sec-
ond cireuit has stressed the view that the listed pur-
poses are not exhaustive, but “inclusory,” United States
vy. Williams, 577 F.2d 188, 192 (2d Cir. 1978) or “in-
clusionary,” United States v. Benedetto, 571 F.2d 1246,
1248 (2d Cir. 1978). A view shared by the third, e.9-»
United States v. Long, 574 F.2d 761, 766 (3d Cir.
1978), and ninth, e.g., United States v. Hearst, 563
F.2d 1331, 1336 n.3 (9th Cir. 1977), cert. denied, 485
U.S. 1000 (1978), circuits. The fifth circuit has taken
a different and narrower view, e.g., United States v.
11 There were several other instances where the government was
allowed to prove other crimes in addition to the one here used to
illustrate the issue, e.g., that Peltier was facing charges of at-
tempted murder in Wisconsin. (He was acquitted subsequent to
the trial at issue, see opinion below n.6.)
19
Myers, 550 F.2d 1036, 1044 (5th Cir. 1977).% The
eighth circuit has variously adopted both readings."
‘2 “Because the risk of prejudice is so great, we have held
that there are two conditions that must be satisfied before evidence
of other crimes may be admitted. First, the threshold prerequisites
to admission must be met. There prerequisites are :
(1) Proot of the other similar crimes must be plain, clear and
convincing.
(2) The other crimes must not be too remote in time from the
charged offense,
(3) The evidence of the other crimes must be introduced for a
purpose sanctioned by Rule 404(b) of the Federal Rules of
Evidence.
(4) The element of the charged offense that the evidence of
other crimes is introduced to prove must be a material issue in
the case,
(5) There must be a substantial need for the probative value
of the evidence of the other crimes.
See United States v. Taglione, 546 F.2d 194, 199 (5th Cir. 1977);
United States v. Bloom, 538 F.2d 704, 708 (5th Cir, 1976); United
States v. San Martin, 505 F.2d at 921-22; United States v. Broad-
way, 477 F.2d at 994-95, Second, the probative value of the evi-
dence of other crimes must outweigh the prejudice to the defendant
that may result from its admission. Fed.R. Evid. 403;’’
18 The eighth cireuit has two contradictory lines of ‘‘other erimes’’
authority, with virtually no cross-citation between them, A ‘‘test’’
was established in United States v. Clemons, 503 F.2d 486, 489 (8th
Cir, 1974), echoing the fifth cireuit. Compare, ¢.g., United States
v. Weir, 575 F.2d 668 (8th Cir. 1978) (reversing a conviction
where threats to assassinate an informant were admitted in viola-
tion of Fed.R.Evid. 403; Clemons not cited), and United States
v. Jones, 570 F.2d 765 (8th Cir. 1978) (reversing the conviction
of a physician for distribution of narcotics by prescription when
other similar narcotic prescriptions were admitted; Clemons cited),
with, ¢.g., United States v. Bohr (No. 78-1096) slip op. (8th Cir.
July 12, 1978, (affirming conviction for wire fraud where similar
crimina! act was relevant to identify under 404(b) ; Clemons cited),
and United States v. Adcock, 558 F.2d 397 (8th Cir. 1977)
(affirming Hobbs Act conviction where similar criminal acts
established ‘‘intent’’; Clemons not cited).
20
No matter what view is taken as to the inclusory or
exhaustive nature of the list of permitted purposes,
this case poses the prior question of whether material-
ity is a necessary prerequisite to any evidence of other
crimes,
This Court has repeatedly held that evidence of
Hight is to be received, if at all, with great caution.
“(We have consistently doubted the probative value
in criminal trials of evidence that the accused fled the
scene of an actual or supposed crime Wong Sun v.
United States, 371 U.S, 471, 483 n.10 (1963), citing,
e.g., Alberty v. United States, 162 U.S. 499 (1896) and
Hickory v. United States, 160 U.S. 408 (1895). When
the government chooses “other crimes’ evidence—
which is itself a suspect mode of proof—as a means of
showing flight, the possibility of prejudice is multiplied
and the probative value correspondingly weakened.
The series of inferences that must be drawn from flight
before a material issue in a criminal trial can even be
approached has recently been outlined by the fitih eir-
cuit: “(1) from the defendants behavior to flight;
(2) from flight to consciousness of guilt; (3) from
consciousness of guilt to consciousness of guilt con-
cerning the crime charged; and (4) from consciousness
of guilt concerning the crime charged to actual guilt of
the crime charged.” Myers, 550 F.2d at 1049.
The conflict between Myers and this case is only
one example of the differing approaches of the courts
of appeals on this issue, Some differences go simply to
details of application of Rule 404(b); here, there is a
conflict as to the limits of the rule. The burgeoning
body of inconsistent court of appeals opinions indicates
that the administration of justice now requires this
Court’s consideration of the boundaries of the rule.
ee
tn i ee call Mil lel Sl Dl OE ae ny CT
ee
oe ea es Pe ee
il
21
VL The Decision Below Conflicts with the Decision of Other
Courts of Appeals as to the Admissibility of Other Weapons
Evidence.
Evidence of numerous weapons, unrelated to the
crime charged and unconnected to Peltier, were intro-
duced by the government over strenuous objection.”
The court of appeals held that the weapons were prop-
erly admitted, in conflict with the view of other
circuits.
Only recently, the tenth circuit unanimously reversed
the convictions of five defendants convicted of con-
spiracy to violate the Hobbs Act, 18 U.S.C, § 1951 and
possession of unregistered incendiary bombs, 26 U.S.C.
§ 5861(d), based upon the improper admission of one
rifle against one of the codefendants. United States v.
Warledo, 557 F.2d 721 (10th Cir. 1977). Accord,
United States v. Reid, 410 F.2d 1223 (7th Cir. 1969) ;
Thomas v. United States, 376 F.2d 564 (5th Cir. 1967) ;
and Moody v. United States, 376 F.2d 525 (9th Cir.
1967). Cf., United States v. Robinson, 560 F.2d 507
(2d Cir. 1977) (en banc), cert. dented, 435 U.S. 905
(1978) (introduction of evidence of gun in possession
14The court of appeals amended its opinion upon denial of
rehearing by adding a paragraph which stated that the admission
of other weapons and other crimes evidence was harmless error
because Peltier’s trial counsel didn’t object to most of it. See
Appendix at 23a. This seems to ignore the pretrial record in the
district court where a lengthy and broad motion in limine was
filed, to exclude the evidence of other crimes and weapons which
the defense anticipated the government would seek to introduce
based on the way the trial was conducted in Cedar Rapids. The
motion in limine was denied. Moreover, even a quick perusal of the
record makes clear that one of the central topics of discussion
between bench and bar was the admissibility of the other crimes
and other weapons evidence. Specific objections were raised con-
stantly. A few examples can be found at T. 152-6, 169-73, 814-18,
1692-732, 2133-44, 2148, 2172-91, 2195, 2434.
22
of defendant at time of arrest offered to prove iden-
tity, held not prejudicial under Federal Rule of
Evidence 403).
CONCLUSION
For all of the above reasons, it is respectfully prayed
that the writ of certiorari be granted.
Respectfully submitted,
MIcHAEL FE. TiGar
JOHN J. PRIVITERA
1302 18th Street, N.W.
Washington, D.C. 20036
ARTHUR KINOY
76 N. Fullerton .
Montclair, New Jersey 07042 A P P E N D I X
WruiaM M. KunNsTLER
13 Gay Street
New York, New York 10014
Counsel for Petitioner.
Dated: December 4, 1978
i-
la
APPENDIX A
Unitep States Court or APPEALS
FOR THE EIGHTH CIRCUIT
No. 77-1487
Unirep States or America, Appellee,
Vv.
Lreonarp Peitimr, Appellant.
Appeal from the United States District Court
for the District of North Dakota
Submitted: April 12, 1978
Filed: September 14, 1978
Before Gisson, Chief Judge, Ross and StTrepHenson,
Circwt Judges.*
Ross, Circutt Judge.
On June 26, 1975, two Special Agents of the Federal
Bureau of Investigation, Jack Coler and Ronald Williams,
were murdered on the Pine Ridge Indian Reservation in
South Dakota. Leonard Peltier, Robert Eugene Robideau,
Darrell Dean Butler, and James Theodore Eagle were
charged with the murders in a two-count indictment for
first-degree murder in violation of 18 U.S.C. §§ 2, 1111, and
*This appeal was originally submitted to a panel of Judges
Ross, Stephenson and Webster. Upon Judge Webster’s resignation
from the court, the appeal was resubmitted to Chief Judge Gibson,
and Judges Ross and Stephenson.
2a
1114, Robideau and Butler were jointly tried by a jury and
were acquitted. The government dismissed the charges
against Kagle. Subsequent to the Robideau-Butler trial,
Peltier was tried by a jury, was convicted on both counts,
and was sentenced to life imprisonment on each count, the
sentences to run consecutively. He appeals.
Peltier was not-a permanent resident of the Pine Ridge
Reservation. His presence there in June of 1975 was the
result of a political struggle between certain reservation
members who supported the structure of tribal government,
and supporters of the American Indian Movement (AIM)
who advocated a different form of government. In an effort
to alleviate the conflict, tribal elders had invited members
of AIM to stay at the reservation. Leonard Peltier, Darrell
Butler, Robert Robideau, Michael Anderson, Wilford
Draper, Norman Charles, Norman Brown, and Joe Stuntz,
all AIM members, accepted their invitation, They arrived
in the spring of 1975 and stayed in an encampment on the
reservation which became known as “Tent City.”
In June of 1975, Special Agents Coler and Williams were
engaged in felony criminal investigations on the Pine
Ridge Indian Reservation. On June 25 and 26, they were
attempting to locate and arrest four individuals, including
James Theodore Eagle, who were charged with armed
robbery and assault with a deadly weapon.
Shortly before noon on June 26, Special Agent Williams,
driving a 1972 Rambler, and Special Agent Coler, driving a
1972 Chevrolet, entered the Harry Jumping Bull Compound
on the reservation.’ The agents were following three in-
dividuals riding in a red and white van that had entered the
''The eompound consists of a number of houses and buildings,
and is located a short distance off Highway 18 between Oglala and
Pine Ridge, South Dakota. It is approximately a quarter of a mile
northwest of Tent City.
3a
compound shortly before them.’ The van stopped at a fork
in the road leading to Tent City. The agents stopped at the
bottom of a hill. Williams advised Coler on the radio that
the occupants of the van were about to fire on them. Firing
commenced, Other AIM members who were present at the
Jumping Bull Compound or Tent City thereafter joined in
the shooting.
The agents took heavy fire. Over 125 bullet holes were
found in their cars. In contrast, only five shell casings at-
tributable to the agents’ guns were ever found at the scene.
Both agents were wounded by bullets fired from a distance.
Special Agent Coler was wounded by a bullet that traveled
through the trunk lid of his car and struck his right arm.
The force of the bullet almost took his arm off, rendering
him completely disabled and causing him to lose blood
rapidly. He crawled to the left side of his car, away from
the gunfire. Williams was shot in the left shoulder. The bul-
let traveled from his shoulder, under his arm and into his
side. Although wounded, Williams removed his shirt and
attempted to make a tourniquet for Coler’s arm. Williams
at some point was also shot in the right foot.
These wounds were not fatal. The agents were killed with
a high velocity, smal. caliber weapon fired at point blank
range. Williams attempted to shield his face from the blast
with his right hand, turning his head slightly to the right.
The murderer placed the barrel of his gun against Wil-
liams’ hand, and fired. The bullet ripped through Williams’
hand, into his face, and carried away the back of his head.
He was killed instantly. The murderer shot Coler, who was
unconscious, across the top of the head. The bullet carried
away a part of his forehead at the hairline. The shot was
not fatal, however. The murderer then lowered his rifle a
* The agents had been told that Eagle might be riding in a red
vehicle.
4a
few inches and shot Coler through the jaw. The shell ex-
ploded inside his head, killing him instantly.
The evidence against Peltier was primarily circum-
stantial. Viewed in the light most favorable to the govern-
ment,’ the strongest evidence that Peltier committed or
aided and abetted the murders is as follows:
i. The van that the agents followed into the Jumping
Bull Compound was occupied by Peltier, Norman
Charles and Joseph Stuntz.
». At the time, Peltier had access to information that
he was being followed by FBI agents. One of the oceu-
pants of the van, Norman Charles, had been picked
up along with two other AIM members, Anderson
and Draper, by Coler and Williams the day before.
The three had been transported to Pine Ridge in Wil-
liams’ car, and were later released after the agents
were informed that none of them was Jimmy Eagle.
3. Peltier had reason to believe that the agents were
looking for him, rather than Jimmy Eagle. He stipu-
lated at trial that there was an arrest warrant out-
standing, charging him with attempted murder. Upon
his arrest in Canada months later for the murders of
the agents, Peltier remarked that the two agents were
shot when they came to arrest him. He also made other
incriminating statements.
‘** «The verdiet of a jury must be sustained if there is substan-
tial evidence, taking the view most favorable to the Government,
to support it.’ ’’ amling v. United States, 418 U.S. 87, 124 (1974),
quoting Glasser vy. United States, 315 U.S. 60, 80 (1942). As we
pointed out in United States v. Lambros, 564 F.2d 26, 28 (8th
Cir.), cert. denied, 430 U.S. 930 (1977), the same standard of
review applies in cases where the conviction rests on cireumstan-
tial evidence, because cireumstantia! evidence is equally as proba-
tive of guilt as direet evidence.
5a
4. Michael Anderson, one of the AIM members who
was firing at the cars from one of the houses in the
Jumping Buil Compound, testified that after both sides
had been shooting at one another from a distance, and
at least one of the agents had been wounded, he saw
Peltier, Robideau and Butler standing down at the
agents’ cars. Peltier at the time was holding an AR-15.
Shortly after he saw the three down at the agents’ cars,
he began to walk back to Tent City, a distance of about
a quarter of a mile. When he arrived at Tent City,
Peltier, Robideau and Butler were already there, as
was Williams’ car. F.B.I. agents who later searched
the area recovered Williams’ badge and billfold on the
ground near the junction of the roads leading to the
houses and Tent City. It was at this junction that
Peltier’s van had stopped shortly before the firing com-
menced.
5. According to the doctor who performed the autop-
sies, the agents were shot with a high velocity, small
caliber weapon. Peltier’s AR-15, the civilian counter-
part of the M-16, was the highest velocity weapon fired
that day.* No other person was seen by any trial witness
on June 26 with an AR-15. Peltier carried his AR-15
out with him when he and the other participants of the
shoot-out escaped from the reservation and fled to the
Rosebud Reservation, where they remained for some
time before splitting up. Robideau, Charles and Ander-
son went south after leaving Rosebud. Anderson testi-
* When seen standing at the cars, Peltier carri
Butler an M-1. Robideau had been seen on coke agen
carrying a Commando Mark III, a .45 caliber semiautomatic
weapon. The velocity of a commercially loaded .223 caliber cart-
ridge fired from an AR-15 is 3200 feet/second, a .30/06 caliber
cartridge fired from an M-1, 2700 feet/second. and a .45 caliber
cartridge fired from a Commando Mark III over 1000 feet/second.
6a
fied that he loaded their car with weapons, one of which
was an AR-15, before they left South Dakota. On Sep-
tember 10, 1975, the car exploded on the Kansas Turn-
pike, and police recovered from the car the AR-15
which the government contended Peltier used on the
day of the murders.
§. Ammunition components linked ballistically to the
same AR-15 were found at the crime scene. The bal-
listics expert was unable to fire the AR-15 because it
had been damaged in the explosion on the Kansas
Turnpike. However, he was able to remove the bolt
from it, place the bolt in another AR-15, and test fire
the replacement AR-15. The expert testified that a .223
cartridge casing found in the trunk of Coler’s car had
been loaded into and extracted from the AR-15. He
also testified that a .22 caliber copper bullet jacket
found in the ground underneath the bodies of Coler
and Williams had rifling impressions consistent with
the rifling of the barrel of an AR-15. There was no
testimony to indicate that either Robideau or Butler
was seen the afternoon of the murders with a weapon
that fired .22 caliber bullets.
7. Wilford Draper, a member of the escape party
that left Tent City the evening of the murders, testified
that he overheard Peltier, Butler and Robideau discus-
sing certain details of the murders on the evening of
June 26. 1975.
§. Peltier was stopped by police months later in the
State of Oregon. He fled the scene, turning to fire on
one of the police officers. The motor home in which
he was riding was searched, and Special Agent Coler’s
revolver was found in a bag bearing Peltier’s thumb-
print.
After a twenty-five day trial, Peltier was convicted by
7a
a jury of both counts of first-degree murder. He alleges on
appeal * that:
1. Certain evidence introduced at trial was so preju-
dicial and inflammatory that its admission constituted
a denial of due process;
2. The trial court refused to instruct the jury on
his defense that he was a victim of an F.B.I. frame-up,
and refused to allow him to introduce much of the avail-
able evidence of F.B.I. misconduct, thereby depriving
him of a fair trial and of his right to compulsory
process;
3. The trial court’s refusal to reread testimony re-
quested by the jury constituted an abuse of discretion:
4. The trial court had no jurisdiction to try him
because the United States Government deliberately
violated the Webster-Ashburton Treaty;
5. Prosecution is barred by the doctrine of collateral
estoppel.
* The appellate attorneys also seem to be raisi i
the competency of trial counsel. Peltier was initially cna
on appeal by his trial attorneys, who filed a brief on his behalf
On November 2, 1977, this court permitted new counsel to enter
the case. Peltier’s second set of attorneys, in oral argument
argued that Peltier’s trial attorneys should have called FBI
Director Clarence Kelley as a witness for the defense, and that
their failure to do so was prejudicial to Peltier. We have carefull
examined the record in the trial court and on appeal, and od
concluded that the defendant’s trial counsel were ‘annie,
capable, and informed, and engaged in sophisticated trial decisions
on strategy. Their decision not to call Clarence Kelley, who did
testify in the Butler-Robideau trial, was clearly such a tactical
decision. We have read the transcri t of K ’ i
the Butler-Robideau trial, and find ‘ie its salcaias to taieee
trial was highly doubtful. The allegations of Peltier’s counsel on
“nage amounts to no more than hindsight and second-guessing
< one lawyer concerning trial tactics used by another lawyer
eltier was equally well-represented at trial and on appeal ong
We affirm.
I
Admission of Flight, Other Crimes, and Weapons Evidence
In proving its case against Peltier, the government was
required to introduce a great deal of evidence regarding the
firearms used by the participants of the shoot-out. This
evidence included the firearms in the possession of the
dead agents and the AIM members on June 26, the firearms
recovered upon a search of Tent City shortly after the
murders, and the various ammunition components recovered
upon a search of the entire crime scene shortly after the
murders. Since the case against Peltier was circumstantial,
the evidence was necessary to negate the participation in
the actual murders by others who were admittedly present.
In the course of introducing the admittedly relevant
firearms evidence, the government offered evidence which
the defendant describes as inadmissible other crimes and
weapons evidence. Most of this evidence related to the cir-
cumstances surrounding the discovery of the admittedly
relevant firearms evidence described above. Defendant
complains of the admission of this evidence, even though
much of it was admitted without objection.
A. Oruer Crimes Evipence
The admissibility of other crimes evidence is governed by
FED. R. EVID. 404(b), which provides:
(b) Other crimes, wrongs, or acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted
in conformity therewith. It may, however, be admis-
sible for other purposes, such as proof of motive, op-
portunity, intent, preparation, plan, knowledge, identi-
ty, or absence of mistake or accident.
9a
We have held that evidence of other crimes, wrongs, or acts
that is vague and speculative is not admissible under Rule
404(b). United States v, Jones, 570 F.2d 765, 768 (8th Cir.
1978) ; United States v. Maestas, 554 F.2d 834 n.2 (8th
Cir.), cert. denicd, 431 U.S. 972 (1977). Furthermore, an
issue on which other crimes evidence is admissible must be
raised at trial. United States v. Adcock, 558 F.2d 397, 402
(Sth Cir.), cert, denied, 434 U.S. 921 (1977); United States
v. Maestas, supra, 554 F.2d at 837; United States v. Clem-
ons, 003 F.2d 486, 489 (8th Cir, 1974).
Evidence that is admissible under the terms of Rule
404(b) may nevertheless be excluded under the provisions
of FED. R. EVID. 403, which provides:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumu-
lative evidence.
In reviewing a discretionary decision to admit evidence
under Rule 403, we give great deference to the trial judge
who saw and heard the evidence. United States v. Bohr. No.
78-1096, slip op. at 6 (Sth Cir, July 26, 1978) ; United States
v. Weir, 575 F.2d 668, 670 (Sth Cir. 1978) ; United States v.
Matlock, 558 F.2d 1328, 1332 (8th Cir.), cert. denied, 434
pee 872 (1977) ; United States v. Maestas, supra, 554 F.2d
at 836.
We will discuss each claim of erroneously admitted evi-
dence separately.
1. Milwaukee, Wisconsin Incident
At the trial, the parties stipulated to the following facts:
On N ovember 22, 1972, Peltier was charged with attempted
murder in Milwaukee, Wisconsin. He was arrested, pleaded
10a
not guilty, and was released on bond, On July 29, 1974, he
failed to appear for trial on the charge, his bond was for-
feited, and a bench warrant was issued for his arrest. Pel-
tier was aware of the outstanding arrest warrant for at-
tempted murder and knew that if he were taken into
custody by law enforcement officials, he would be returned
to Milwaukee to stand trial.
The defendant agreed to stipulate to these facts only
after the district court rejected his argument that they were
not relevant. The government argues that this evidence was
admissible under Rule 404(b) to prove motive, because it
tended to show why Peltier reacted with deadly force when
followed by the F.B.I. agents. We agree. The key issue at
trial was the identity of the murderer, and evidence tending
to show motive was clearly relevant. United States v.
Stover, 565 F.2d 1010, 1013 (8th Cir. 1977); Gregory v.
United States, 365 F.2d 203, 205 (8th Cir. 1966), cert. de-
nied, 385 U.S. 1029 (1967).
Moreover, the probative value of the evidence was not
substantially outweighed by the danger of unfair prejudice,
as is contended by Peltier on appeal. The evidence was
highly probative, especially when considered in conjunction
with a statement Peltier made after his arrest in Canada
to the effect that the two agents were shot when they came
to serve him with the Wisconsin warrant. Furthermore, the
government took steps to minimize the danger of unfair
prejudice. The fact that the person Peltier allegedly as-
saulted in Wisconsin was an off-duty police officer was with-
held from the jury. The stipulation was read to the jury at
the end of the government’s case. Finally, the following
cautionary instruction was given:
Evidence has been admitted relating to other crimes,
wrongs or actions alleged to have been committed by
the defendant in this case. Such evidence is not to be
ne
a eS
lla
considered to prove the character of the defendant in
order to show that he acted in conformity therewith on
June 26, 1975.
Evidence of a charge against the defendant in Wis-
consin and his alleged flight to avoid trial was intro-
duced to show a possible motive the defendant mav
have had to avoid apprehension on June 26, 1975. The
defendant is presumed to be innocent of the Wisconsin
charge and the evidence relating to that charge must
be considered by the jury only on the issue of motive.
We hold that the district court did not abuse its discretion
in admitting this evidence.®
2. Ontario, Oregon
On November 14, 1975, Oregon State Police stopped two
vehicles near Ontario, Oregon: a motor home and a Ply-
mouth station wagon. Peltier was one of the occupants of
the motor home, and fled the scene, turning to fire at the
state trooper. Upon searching both vehicles, Oregon au-
thorities recovered from the motor home Special Agent
Coler’s revolver in a paper bag bearing Peltier’s finger-
print, and from the station wagon several shell casings that
had been fired from Coler’s revolver.
she defendant alleges error in the admission of much of
the other crimes” evidence offered by the government ro-
lating to the Oregon incident.
* Subsequent to the trial in the instant case Peltier i
and acquitted of the charge of attempted a ae en
officer in Milwaukee, Wisconsin. He now argues that his acquittal
dramatically illustrates the lack of probative value of the evidence
We disagree. The evidence is probative of Peltier’s state of mind
on the day of the murders. That state of mind was not affected b
the disposition of the charge subsequent to the murders Further.
more, the cautionary instruction adequately cured any unfair
prejudice which could have arisen f Wome
the pending assault charge. rom the jury’s knowledge of
12a
a. Evidence of flight
In addition to the testimony that Peltier fled the scene,
turning to fire at the arresting officer, the government intro-
duced testimony that the following items were recovered
upon a search of the vehicle:
i. fourteen firearms, eight of which had obliterated
serial numbers, and numerous boxes of shells;
ii. tool boxes containing wiring, pocket watches with
wires leading out of them, tools, pliers, and empty shell
Casings;
iii, pieces of paper in each vehicle upon which were
written code numbers and words as follows: #510—
bomb; #54—pigs; #527—ammo; #529—cops; #528
—dynamite; #524—roadblock. Both vehicles were
equipped with CB radios, and the motor home was
equipped with a scanner to pick up other frequencies;
iv. nine hand grenades.
In addition to the testimony, pictures of most of the items
described in (i), (ii), and (iv) were also admitted into
evidence.
The defendant objected to the admissibility of much of
this evidence ; the government contends that it was properly
admitted as evidence of flight. It is well settled that flight
of the accused subsequent to the commission of a crime is,
in certain instances, “a circumstance proper to be laid be! »re
the jury as having a tendency to prove his guilt.’’ Allen v.
United States, 164 U.S. 492, 499 (1896). Accord, United
States v. White, 488 F.2d 660, 662 (8th Cir. 1973), and cases
cited therein. However, in the face of Supreme Court
decisions expressing doubt as to the probative value of
flight, see Wong Sun v. United States, 371 U.S. 471, 483
n.10 (1963); Alberty v. United States, 162 U.S, 499, 511
(1896) ; Hickory v. United States, 160 U.S. 408, 418 (1896),
13a
the lower courts have generally scrutinized the facts of
each case to determine whether the jury should be given
the opportunity to draw an inference of guilt from a de-
fendant’s flight.
The probative value of flight evidence has recently been
analyzed in United States v. Myers, 550 F.2d 1036, 1049
(5th Cir. 1977), There the court held that the probative
value of flight as circumstantial evidence of guilt
depends upon the degree of confidence with which four
inferences can be drawn: (1) from the defendant’s be-
havior to flight; (2) from flight to consciousness of
guilt; (3) from consciousness of guilt to consciousness
of guilt concerning the crime charged; and (4) from
consciousness of guilt concerning the crime charged to
actual guilt of the crime charged.
The validity of drawing these inferences in turn depends
upon the number of evidentiary manifestations suggesting
defendant’s decision to flee was prompted by considerations
related to the crime in question, As the court stated in
Batley v. United States, 416 F.2d 1110, 1115 (D.C. Cir.
1969), “guilt, as a factual deduction, must be predicated
upon a firmer foundation than a combination of uneluci-
dated presence and unelucidated flight.”
We hold that there was a sufficient number of such evi-
dentiary manifestations to make evidence of flight and of
resistance to arrest’ highly probative of consciousness of
guilt, and hence guilt itself in this instance. First, Peltier
fled the scene of the crime immediately after its commission.
His actions in Oregon were a continuation of that immedi-
ate flight. Second, the fact that the motor home and station
7 Evidence that the defendant resisted arrest is similarly ad-
missible as showing consciousness of guilt. United States v. Graham,
548 F.2d 1302, 1313 n.13 (8th Cir. 1977).
l4a
wagon were traveling arsenals linked by communication de-
vices and code words designed for avoidance of arrest was
significant evidence of Peltier’s state of mind. Finally, and
most important, evidence linking Peltier to the murders was
discovered upon a search of the vehicle from which he fled.
The presence in the motor home of Agent Coler’s revolver,
in a bag having Peltier’s fingerprint on it, was one of the
key pieces of evidence against Peltier. Under these circum-
stanees, we find that the evidence of flight was highly
probative.
Peltier argues that the evidence of flight was inadmissible
because it did not relate to flight occurring immediately
after the murders, and because the government did not
show that at the time of the flight in Oregon, the defendant
had been charged with, or knew he was being sought for, the
murder of the two agents.* In support of his argument, he
cites United States v. White, supra, 488 F.2d 660, and
United States v. Jackson, No. 77-1796 (7th Cir. March 29,
1978).
In United States v. White, supra, 488 F.2d at 662, the de-
fendant fled from police attempting to arrest him for an
incident that had oceurred over five months previously.
There was no evidence that at the time of the flight he knew
he was being sought for the crime charged. We held in the
context of that case that admission of the evidence of
flight and the giving of a flight instruction was not appro-
priate because evidence of flight was not sufficiently reliable
’ There was evidence that at the time of his arrest several months
after the Oregon incident, Peltier was in fact aware that he was
being sought for the murders of the two F.B.I. agents. One of the
officers who arrested Peltier in Canada testified that Peltier
acknowledged he knew he was wanted for the murders. Peltier
also stated he would have resisted arrest by deadly force if he had
known the police officers were nearby, saying: ‘‘I have got nothing
to lose * * ®,’’
r=
———SEE=
15a
as an indication of guilt. Within the framework of the
Myers analysis, United States v. Myers, supra, 550 F.2d
1036, the evidence in White was simply too speculative to
allow the jury to draw an inference of consciousness of
guilt concerning the crime charged.
White does not require that where flight occurs a sub-
stantial time after the crime, evidence of that flight is
properly admitted only if the government can prove with
direct evidence that the defendant knows he is being sought
for the crime charged. As the foregoing discussion indi-
cates, there was sufficient circumstantial evidence that the
defendant knew he was wanted for the murders of the
F.B.1. agents.
Peltier also argues that, nothwithstanding the relevance
of the evidence, its probative value was substantially out-
weighed by the possibility of prejudice, and therefore it
was inadmissible. We disagree. As we stated above, the
evidence in this instance was highly probative. In the con-
text of this case, the evidence did not prejudically distort the
general case against the defendant. As we related above,
evidence pertaining to a great number of firearms and am-
munition components was admitted as part of the govern-
ment’s case without objection by the defendant. The Pine
Ridge shoot-out had many participants and there was no
dispute as to the large number of firearms possessed by the
AIM members. This additional firearms testimony could not
have had nearly as strong an impact on the jury as in the
cases cited by the defendant for the proposition that fire-
arms evidence is highly prejudicial. See, e.g., United States
v. Robinson, 560 F.2d 507, 513-14 (2d Cir. 1977) (en banc),
cert. denied, 98 S. Ct. 1451 (1978); United States v. War-
ledo, 557 F.2d 721, 724-26 (10th Cir. 1977). Furthermore,
the evidence was not presented in an inflamatory manner; in
relation to the length of the trial, the time necessary for its
presentation was brief. See United States v. Maestas, supra,
554 F.2d at 837 n.4. Finally, an elaborate cautionary instruc-
16a
tion® was given, warning the jury against placing undue
reliance on flight as evidence of guilt.
Finally, Peltier argues he offered to stipulate to his
presence in Oregon and to the fact he was in flight, and
that had the court accepted his offer to stipulate, other evi-
dence of the Oregon incident would have been unnecessary.
As a general rule, the government is not bound by the de-
fendant’s offer to stipulate. United States v. Spletzer, 535
F. 2d 950, 955 (5th Cir. 1976); United States v. Caldwell,
543 F.2d 1333, 1359 n.134 (D.C. Cir. 1974) ; United States v.
Brickey, 426 F.2d 680, 686 (8th Cir.), cert. denied, 400 US.
828 (1970). As stated long ago by the court in Parr v. United
States, 255 F.2d 86, 88 (5th Cir.), cert. denied, 358 U.S.
824 (1958):
The reason for the rule is to permit a party “to present
to the jury a picture of the events relied upon. To
substitute for such a picture a naked admission might
have the effect to rob the evidence of much of its fair
and legitimate weight.’
*The jury was instructed that:
The intentional flight or concealment of a defendant imme-
diately after the commission of a crime, or after he is accused
of a crime that has been committed, is not of course sufficient
in itself to establish his guilt; but is a fact which, if proved,
may be considered by the jury in the light of all the other
evidence in the case, in determining guilt or innocence.
Whether or not evidence of flight or concealment shows a
consciousness of guilt, and the significance to be attached to
any such evidence, are matters exclusively within the province
of the jury.
In your consideration of the evidence of flight or conceal-
ment you should consider that there may be reasons for this
which are fully consistent with innocence. These may include
fear of being apprehended, unwillingness to confront the
police, or reluctance to appear as a witness. Also, a sense of
guilt does not necessarily reflect actual guilt.
17a
As the court pointed out in United States v. Spletzar,
supra, 535 F.2d at 955, however, this rule is subject to the
provisions of FED, R. EVID. 403. The Advisory Com-
mittee in its notes accompanying Rule 403 suggested that:
In reaching a decision whether to exclude on grounds
of unfair prejudice * * * [t]he availability of other
means of proof inay also be an appropriate factor.
As the court pointed out in United States v. Spletzer,
offers to stipulate in deciding whether to exclude or admit
evidence under Rule 403. Cf. United States v. Cook, 538
F.2d 1000, 1005 (3d Cir. 1976). After careful analysis, how-
ever, we conclude that the district court did not abuse its
discretion in refusing to exclude the government’s evidence
relating to the Oregon incident merely because of defend-
ant’s offer to stipulate. The defendant never indicated a
willingness to stipulate to any of the details of his flight,
but only to the flight itself. Such a stipulation, barren of
any detail, would have robbed the government of most of
the probative value of the admissible flight evidence as
tending to show consciousness of guilt of the murders.
If, in fact, the evidence of the weapons found in the
Oregon incident was inadmissible, in view of all of the
other weapons introduced into evidence without objection,
the addition of these weapons was, in our opinion, harmless
error beyond a reasonable doubt.
b. Unrelated robbery of ranch house
The government introduced testimony that on or about
November 14, 1975, a .30/30 rifle and a pickup truck were
stolen from a residence near Ontario, Oregon. Peltier’s
fingerprints were found in the residence. When Peltier was
apprehended in Canada, he had in his possession the .30/30
rifle stolen from Oregon.
The government argues that this testimony was relevant
to prove Peltier was indeed the person who fled from the
18a
motor home in Oregon and to show flight. Because Coler’s
revolver was found in the motor home, we agree evidence
proving Peltier’s presence there was relevant. We also
agree that Peltier’s actions of arming himself and stealing
a vehicle for transportation were relevant to show con-
tinuing flight.
Peltier argues that the probative value of the evidence
was substantially outweighed by the danger of unfair
prejudice, especially in light of his willingness to admit
his presence in Oregon. The other crimes evidence was not
more highly probative of Peltier’s presence in Oregon than
his admission would have been, and the evidence of flight
was essentially cumulative. Even if we held that the trial
court abused its discretion in admitting this evidence, how-
ever, again we are convinced the error was harmless be-
yond a reasonable doubt. United States v. Weir, supra,
575 F.2d at 671. See Harrington v. California, 395 U.S. 250
(1969) ; Chapman v. California, 386 U.S. 18 (1967); FED.
R. EVID. 103 The evidence of Peltier’s guilt was strong.
The evidence in question was but a miniscule portion of
the trial. Moreover, a cautionary instruction was given.”
B. Weapons EvipencrE
The government, in addition to offering into evidence
certain firearms that had been fired by various participants
of the shoot-out at Pine Ridge, also introduced evidence
relating to the circumstances surrounding the recovery of
10 The jury was instructed that:
Evidence relating to the Oregon incidents and the defend-
ant’s alleged actions in connection with those incidents was
also admitted for limited purposes. First, you may consider it
insofar as you may find it relates to items of physical evidence
that have been connected to the crime scene. Second, you may
consider evidence of defendant’s alleged actions in the Oregon
incidents in determining whether he was in flight to avoid
prosecution or for some other purpose.
19a
those firearms. Included in the government’s presentation
was evidence of other firearms and explosive devices.
Peltier vigorously disputes the admissibility of this evi-
dence, and argues that its prejudicial impact on the jury
mandates reversal of his conviction.
1. Wichita, Kansas
As we stated above, the escape party fled to the Rosebud
Reservation after the murders and remained there for a
time before splitting up. Robideau, Charles, and Anderson
then proceeded south, and the car in which they were rid-
ing exploded on the Kansas Turnpike. Police recovered a
large number of weapons and explosives from the car, in-
cluding the AR-15 linked to the erime scene and Special
Agent Coler’s rifle. Peltier was not an occupant of the car
and was not in the vicinity. Admitted into evidence were
three of the firearms recovered at the scene of the explosion,
several pictures of the explosion-damaged vehicle, several
pictures of the eight or more firearms recovered from the
vehicle, and several pictures of shells and of hand grenades
found at the scene. Testimony of the details of the police
search of the area and the discovery of the items admitted
was heard by the jury.
In his brief, Peltier does not clearly articulate the specific
evidence relating to the Wichita incident to which he ob-
jects. At trial, he objected to the relevance of the pictures
of the vehicle after the explosion. We hold that the district
court properly found the pictures to be relevant to explain
the condition of the weapons introduced into evidence at
the trial. A crucial question was whether the .223 casing
found in Coler’s trunk was fired from the AR-15 found in
Wichita. The ballistics expert testified that he was unable
to fire the weapon because of its condition. He was, how-
ever, able to remove the bolt, place it on another AR-15,
and conduct limited comparisons.
20a
Defendant also objected to the pictures of the hand
grenades on the grounds of relevance and prejudicial im-
pact. The government argued that the hand grenades found
at Wichita were relevant to link the occupants of the vehicle
to certain firearms found at the scene of Pine Ridge. We
agree with the trial court that the pictures were relevant,
and that their probative value was not substantially out-
weighed by the danger of unfair prejudice to the defend-
ant. Both sides stipulated that Peltier was not present at
Wichita at the time of the explosion. We do not agree that
this evidence caused the jury to speculate about other bad
acts attributable to him, as the defense contends.
Peltier argues generally that the introduction of firearms
evidence was highly prejudicial. However, as we stated
earlier, Peltier does not make clear which of the Wichita
evidence he claims was erroneously admitted. He did object
at trial to Ex. 34-A, the AR-15 found in burned condition
at Wichita, as irrelevant. We hold that the district court
did not err in finding that Ex. 34-A was relevant. The
government contended that it was the AR-15 carried by
Peltier at Pine Ridge on the day of the murders and offered
ballistics evidence linking it to the murders.
At the trial, Peltier did not object when the testimony
and pictures of the eight or more firearms recovered from
the vehicle were introduced by the government. Nor did he
object when Ex. 30-A, Special Agent Coler’s .308 rifle or
Ex. 30-1, a firearm found in burned condition at Wichita,
were offered. He stipulated to the admissibility of Ex. 30-
AA, a .308 rifle, as a replica of Agent Coler’s .308 rifle
when it was in good condition.
Even if we construed Peltier’s brief on appeal to raise
an objection to all of this evidence relating to the Wichita
incident, we would hold that the admission of the evidence
was not plain error. The circumstances of the recovery of
the AR-15 and Coler’s rifle were relevant. The firearms
2la
evidence could not be labeled highly inflammatory and
prejudicial, in light of the wealth of firearms evidence ad-
mitted previously without objection. Moreover, Peltier was
not present when the explosion and recovery of the firearms
occurred.
Finally, Peltier offered to stipulate to the discovery of
the AR-15 and Coler’s rifle in Kansas. The government
rejected the offer. As we hold above, the government gen-
erally is not bound by an offer to stipulate, and we are not
convinced that this evidence requires a different rule.
2. Rosebud
On September 5, 1975, F.B.I. agents went to the Rosebud
Indian Reservation, located about 180 miles east of the
Pine Ridge Reservation, to arrest five persons charged
with assault with a deadly weapon. While conducting a
search incident to the arrest of several persons," they
recovered Special Agent Williams’ .357 service revolver
and several rifles linked ballistically to the case. Testimony
revealed that the following items were found:
a. seven firearms, several of which had obliterated
serial numbers (the serial numbers on Special Agent
Williams’ service revolver and on Ex. 29-A, the M-1
.30 caliber Gerand rifle which Butler carried on the
day of the murders were obliterated) ;
b. a knapsack full of dynamite and hand grenades;
¢c. a suitease full of blasting caps;
d. a bag containing spent rounds and live ammuni-
tion for various calibers;
e. walkie-talkie radios.
Peltier again alleges that the evidence of unrelated fire-
arms and other weapons was unduly prejudicial because
. "One of those present at the Rosebud Reservation was Darrell
utler.
22a
of its inherently infammatory nature, arguing that its sole
effect was to cause the jury to speculate about other bad
acts of the defendant.
Again, no objection was made to the admissibility of any
of this evidence. Much of it was clearly relevant and
strongly probative. Special Agent Williams’ revolver, six
spent cartridges from Williams’ revolver, six spent cart-
ridges from Special Agent Coler’s revolver, the M-1 rifle
carried by Butler on the day of the murders, and the 44
Ruger carbine used by Joe Stuntz and carried out of Pine
Ridge by Michael Anderson on the day of the murders
were all seized at Rosebud.
The relevance of the remaining evidence is questionable.
Assuming without deciding that it was erroneously ad-
mitted, we hold there was no plain error. No pictures or
demonstrative evidence were admitted—only testimony,
the purpose of which was to detail the discovery of the
evidence directly related to the Pine Ridge episode. The
parties agreed that Peltier was not present at Rosebud
on the day the evidence was seized; the testimony revealed
possession of weapons and explosive devices by other per-
sons, and was not unfairly prejudicial to the defendant.
United States v. Graham, supra, 548 F.2d at 1313.
3. Alberta, Canada
On February 7, 1976, Peltier was arrested in Canada.
The arresting officer testified that at the time of his arrest,
Peltier had in his possession the .30/30 rifle stolen in
Oregon, other property stolen from the Oregon ranch
house, two pistols, and an M-1 semiautomatic rifle.
At the trial, Peltier made no objection to the admission
of the two pistols or the .30/30 rifle found in his possession
at the time of his arrest. Likewise, he did not object to the
testimony regarding his possession of the property, includ-
ing the .30/30 rifle stolen from the Oregon ranch house, or
23a
his possession of an M-1 semiautomatic rifle. We hold that
the admission of this evidence was not plain error.
4. Not Prejudicial Error
Ordinarily the admission into evidence of weapons, or
pictures of weapons, which are not directly related to the
crime, and to which proper objection is made, is prejudicial
to the defendant and in many cases it has been held to be
reversible error. See United States v. Robinson, supra, 560
F.2d at 513-16; United States v. Warledo, supra, 557 F.2d
at 725, and cases cited therein. In this case, however almost
all of the weapons, and some pictures which were not direct-
ly related to the crime, were admitted without objection.
Some of these weapons and pictures of weapons were ob-
jected to by the defendant and as to these exhibits we hold
the admission to be harmless error for these reasons: First,
there were many weapons which were admitted without
objection or were properly admitted as being found or used
at the scene of the crime. The addition of the pictures and
weapons which were not directly related to the crime and
to which Peltier’s counsel objected, could only be held to
be cumulative and therefore not prejudicial.
Secondly, the direct and circumstantial evidence of
Peltier’s guilt was strong and, in our opinion, the admission
of these additional exhibits did not prejudice the defendant’s
chances for acquittal.
II
F.B.L Frame-up
The defense theory at the trial was that shortly after
the murders, agents of the F.B.I. focused upon Peltier as a
principal suspect, and thereafter conspired to manufacture
evidence against him, resorting to threats, intimidation, and
subornation in an effort to secure his conviction. On appeal,
24a
Peltier contends that the district court ruled inadmissible
the bulk of his proof of fabricated evidence and refused to
charge the jury on the law applicable to the defense theory
of the case, thereby depriving him of his right to compul-
sory process and to a fair trial.
A. RervusaL To Give Derense INSTRUCTION
The instruction which the court refused to give, De-
fendant’s Propoed Jury Instruction No. 19, read as follows:
Testimony has been adduced in this case which if
believed by you shows that the Government induced
witnesses to testify falsely. If you believe that the
Government, or any of its agents, induced any wit-
ness to testify falsely in this case [or in any related
case], this is affirmative evidence of the weakness of
the Government’s case.
Defendant contends the court erred in refusing to give
this instruction, citing certain evidence admitted at trial
allegedly proving the frame-up and several cases which
stand for the proposition that the defendant in a criminal
case is entitled to have presented to the jury instructions
encompassing any theory of defense which is supported by
law and which has some foundation in the evidence, how-
ever tenuous. See United States v. Brown, 540 F.2d 364,
380-81 (8th Cir. 1976); United States v. Nance, 502 F.2d
615, 619 (8th Cir. 1974), cert. denied, 420 U.S. 926 (1975) ;
United States v. Vole, 435 F.2d 774, 776-77 (7th Cir. 1970).
We reject defendant’s contention that the trial court
erred in refusing to give the proposed instruction. In the
first place, proposed Instruction No. 19 does not incorpo-
rate what defendant contends was his theory of defense:
that the government framed him by manufacturing evi-
dence and inducing witnesses to testify falsely. The pro-
posed instruction is essentially one relating to the credi-
bility of witnesses, and was dealt with in the court’s gen-
nee
25a
eral instructions 30, 38, and 45 on impeachment and credi-
bility. The principle espoused in Brown and Nance was
meant to apply to a more comprehensive defense instruc-
tion or series of defense instructions. As the court stated
in Laughlin v. United States, 474, F.2d 444, 455 (D.C. Cir.
(1972), cert denied, 412 U.S. 941, reh. denied, 414 U.S. 882
(1973), in refusing to apply the principle to the proposed
instruction that the jury must acquit the defendant if it
believed defense testimony denying guilt.
What is required before the theory of the case rule
comes into play is a more involved theory involving
“law” or fact, or both, that is not so obvious to any
jury.
It is a matter of common sense that a government prosecu-
tion based on false testimony is a “weak”? one.
In the second place, there is no evidentiary support for
the instruction as written. Three critical government wit-
nesses, Anderson, Draper, and Brown, who participated
in the events of June 26 at Pine Ridge, did testify on
cross-examination that F.B.I. agents threatened, intimi-
dated, or physically abused them while questioning them
in the initial stages of the investigation about their knowl-
edge of the murders. Brown, in his testimony as a witness
for the defense, also stated that he testified falsely before
the grand jury as a result of fear of the F.B.J. All three
witnesses testified that when they were interviewed, at early
stages of the investigation, they answered the F.B.I.’s
questions in a manner inconsistent with the truth for one
reason or another, However, upon further questioning at
the trial by the government attorney, they stated that the
testimony they gave at the trial was the truth, as they best
remembered it. Thus, their testimony provided no support
for the proposed defense instruction that the government
26a
induced them to testify falsely in this trial or in a related
trial.”
Since the proposed instruction was essentially a credi-
bility instruction already covered by the instructions given
to the jury, and since there was no evidence that the gov-
ernment induced the witnesses to testify falsely at the
trial, we perceive no error in the court’s failure to give
the proposed instruction.
Failure to Give a More Comprehensive Theory of the
Defense Instruction.
The next issue is whether the trial court should have
given a more comprehensive theory of the defense instruc-
tion. Peltier relies heavilfy on United States v. Vole, supra,
435 F.2d at 776, where the court found the failure to give
the following instruction reversible error:
You are instructed that it is the defendant Vole’s
theory of this case that Charles Masini conspired
with other persons to frame him for a counterfeiting
conspiracy. If the facts adduced in support of the
defendant Vole’s theory create in your mind a reason-
able doubt of his guilt of these charges, then you must
find the defendant Vole not guilty of these charges.
Peltier, vhile attempting to prove his theory that he
was the » -tim of an F.B.I. frame-up, did not request a
similar instruction. We find the court’s failure to give
such an instruction was not plain error. Cf. United States
v. Hamilton, 420 F.2d 1096, 1098-99 (7th Cir. 1970). We
have concluded that the jury could not have been misled
by the failure to receive a theory of defense instruction.
The court’s instructions clearly stated the government’s
‘? Brown also stated that he lied to the grand jury. However,
he affirmed, after his testimony regarding lying to the grand jury,
that his testimony at trial was the truth.
ae ee
27a
burden of proof, the matter of credibility of witnesses was
covered in great detail, and defense counsel vigorously
asserted the theory of defense throughout the trial and
in closing argument in an effort to discredit the govern-
ment’s case.
We note, furthermore, that Peltier’s contentions of manu-
factured evidence are far from convincing, The district
court allowed Peltier to present the following evidence
relating to this theory of defense.
1. Discovery of the .223 caliber casing. The .223 caliber
cartridge casing allegedly found in the trunk of Coler’s
car was critical evidence against Peltier. In an affidavit
used in the Canadian extradition proceedings, F.B.I. Agent
Cunningham stated that he had found the .223 cartridge
easing in Coler’s trunk. However, a 302 report * prepared
by Cunningham on June 29, 1975, failed to document dis-
covery of the casing. Cunningham later recanted that por-
tion of his affidavit relating to his discovery of the cart-
ridge.
Other evidence presented at the trial strongly contra-
dicts Peltier’s claim that the cartridge was not found in
Coler’s trunk. Winthrop Lodge, an F.B.I. fingerprint ex-
pert, testified that he found the .223 cartridge casing in
the trunk of Coler’s car on June 29, 1975, when he was
examining the car for fingerprints. He produced his hand-
written field notes, which documented his discovery. He
further testified that the car had been searched and had
been towed to a garage in Hot Springs, South Dakota. He
turned the casing over to Cortlandt Cunningham, who
began his examination of Coler’s vehicle immediately after
Lodge finished. The fact that Cunningham signed an aff-
** A 302 report is an F.B.I. form on which are transcribed notes
or recollections of F.B.I. agents made in the course of their
investigations.
28a
davit that he had found the cartridge casing was merely
a technical error.
2. Sighting of Peltier and Eagle. Special Agent Coward
testified that late in the afternoon on the day of the mur-
ders,’* he saw through the telescopic sight on his rifle two
individuals, one of whom he identified as the defendant, at
the scene of the crime. Coward also interviewed BIA
Officer Stoldt, who was with him when he sighted the de-
fendant. In his 302 report, which showed the date of the
interview as June 28, 1975, Coward stated that Stoldt told
of sighting two persons, one of whom looked like Jimmy
Eagle, through his binoculars. Coward interviewed Stoldt
again on September 4, 1975, and reported that Stoldt was
now positive that he had seen Eagle and had also seen
Peltier on June 26th. Stoldt was called as a defense wit-
ness, denied that he talked to Coward on June 28, and
stated that he was uncertain on June 26 that one of the
persons he sighted was EKagle.
Peltier contends that the discrepancy between Coward’s
and Stoldt’s accounts was proof that Coward participated
in the frame-up by falsely recording evidence. Again,
however, the government offered an explanation for the
apparent discrepancy. Stoldt testified that he talked to
Coward only on June 26 and September 4, 1975, and not
on June 28, Coward’s testimony at trial was consistent
with Stoldt’s; he stated that he interviewed Stoldt and
dictated his 302 report on June 26, and that the secretary
simply made a yping error in dating the report June 28.
Both witnesses at trial reaffirmed their sightings of Eagle
and Peltier on June 26. In his second 302 of November 4,
Coward wrote: “Stoldt stated that during the first state-
ment he had given to the F.B.I. a few days after the shoot-
ing of the agents, he told the agents then * * * that he saw
Jimmy Eagle in the group that he had just identified.’ ”’
‘* The agents were murdered at approximately 12:00 noon.
LE NS LOLA AL IG PAB OGLE EI POEL ETON A sw
29a
(Emphasis added.) Coward explained that when he wrote
the second 302, he dated Stoldt’s statement by referring
back to the first 302 which showed his first interview as
being on June 28. He also stated that on further reflection,
he remembered that his first interview with Stoldt was on
June 26.
3 Association of .223 Cartridge Casing with AR-15. An ©
October, 1975, F.B.I. lab report contained a finding that
the .223 cartridge casing received from the trunk of Coler’s
car could not be associated with any of the weapons which
had been submitted to it for analysis. However, a February,
1976, F.B.I. report contained a finding that the .223 casing
could be associated with the Wichita AR-15.
Peltier describes as “mysterious’’ the association of the
.223 casing with the Wichita AR-15 four months after a
report which concluded that no association could be found.
However, the firearms expert, Evan Hodge testified that
he first began to examine Ex. 34-B, the .223 cartridge
casing, in December of 1975 or January of 1976. Defense
counsel did not cross-examine him on the truth of this
statement.
Because the instructions to the jury clearly set ont the
government’s burden of proof, because the defense counsel
stressed the theory of defense th-oughout the trial and in
closing argument, and because of the nature of the defen-
dant’s proof of the alleged frame-up, we find no plain
error in the court’s failure to give a theory of the defense
instruction.
B. Dentat or Ricut to Computsory Process
The trial court excluded certain evidence which Peltier
contends was vital to his defense, stating that:
[T]he Court’s position with reference to evidence to
be offered by the defense is simply that evidence
30a
relative to the issues and the evidence presented by
the government will be admitted. I will state, however,
that witnesses who have testified will not be impeached
by a showing of misconduct of the Federal Bureau of
Investigation unless that misconduct relates to the
testimony of the individual witnesses who have testt
fied or unless that misconduct relates to exhibits that
have been received in evidence. (Emphasis added.)
The most significant evidence excluded was the testimony
of Myrtle Poor Bear and Jimmy Eagle.
1. Jimmy Eagle Episode. Jimmy Kagle testified in an
offer of proof that he was not on the Pine Ridge Reserva-
tion on June 26, 1975. He was later arrested on another
charge, and FB. agents who questioned him threatened to
have him indicted for the murders if he did not cooperate
in the investigation. He did not cooperate and was later
indicted. As a result of the F.B.I. threats, his attorney
warned him to remain silent at all times because the gov-
ernment would probably place informers in his cell.
After Eagle had been incarcerated for a time, the gov-
ernment obtained statements of four of his cellmates re-
counting Eagle’s description to them of the events of June
26. Eagle testified in the offer of proof that he never made
any of the statements attributed to him. Peltier contends
the statements of the four cellmates were so thorough, and
conformed so completely to the F.B.I.’s theory of the mur-
ders, that they impel the inference the F.B.I. concocted the
statements and solicited the cooperation of four felons
who desired favorable treatment.
2. Myrtle Poor Bear Episode. In February and March,
1976, Myrtle Poor Bear signed three affidavits which re-
lated her eyewitness account of the murders of the two
agents on June 26, 1975. Two of these affidavits were con-
sidered by Canadian officials in the extradition proceedings,
In testimony given outside of the presence of the jury at
3la
the trial, Poor Bear disclaimed virtually every allegation
contained in the affidavits. She testified that she had been
forced to sign the affidavits, which were prepared by the
F’.B.I., under threats of physical harm.
The court excluded the proffered testimony under Rule
403 of the Federal Rules of Evidence. It found that the
evidence was not material, and that any relevance it might
have was outweighed by the danger of confusion of the
issues and misleading the jury.
Peltier contends that the trial court, in excluding the
Jimmy Eagle and Myrtle Poor Bear testimony, denied
him his right to compulsory process. We disagree.
In Washington v. Texas, 398 U.S. 14, 23 (1967), the
Supreme Court held that the sixth amendment right to
compulsory process includes, in appropriate circumstances,
the right to introduce relevant and material testimony
from a witness qualified to testify under an anpropriate
standard of credibility. The Court reaffirmed the impor-
tance of allowing the defendant to present his defense in
United States v. Niwon, 418 U.S. 683, 711 (1974), stating
that:
The right to the production of all evidence at a
criminal trial similarly has constitutional dimensions.
The Sixth Amendment explicitly confers upon every
defendant in a criminal trial the right “to be con-
fronted with the witnesses against him” and “to have
compulsory process for obtaining witnesses in his
favor.’’ Moreover, the Fifth Amendment also guaran-
tees that no person shall be deprived of liberty with-
out due process of law. It is the manifest duty of the
courts to vindicate those guarantees, and to accom-
plish that it is essential that all relevant and admis-
sible evidence be produced.
However, the right of a defendant to introduce the testi-
mony of witnesses in his behalf is not absolute. As the
32a
Supreme Court noted in Chambers v. Mississippi, 410 U.S.
284, 302 (1973):
Few rights are more fundamental than that of an
accused to present witnesses in his own defense. E.g.,
Webb v. Texas, 409 U.S. 95 (1972); Washington v.
Texas, 388 U.S. 14, 19 (1967); In re Oliver, 333 U.S.
257 (1948). In the exercise of this right, the accused,
as is required of the State, must comply with estab-
lished rules of procedure and evidence designed to
assure both fairness and reliability in the ascertain-
ment of guilt and innocence.
An analogous case is United States v. Nobles, 422 U.S. 225,
241 (1975), in which Justice Powell made this observation:
“The Sixth Amendment does not confer the right to present
testimony free from the legitimate demands of the adver-
sarial system; one cannot invoke the Sixth Amendment
as a justification for presenting what might have been a
half-truth.”
Under the Federal Rules of Evidence, the trial court
has broad discretion in determining the relevancy and ad-
missibility of evidence. United States v. Briscoe, 574 F.2d
406, 408 (8th Cir. 1978); United States v. Bad Cob, 560
F.2d 877, 880 (8th Cir. 1977). It is only where the trial
court excludes relevant cvidence wilhout sufficient justifi-
cation that the defendan’s consitutional right to compulsory
process is violated. See United States v. Melchor Moreno,
536 F.2d 1042, 1045-46 (5th Cir. 1976). Exclusion of the
evidence proffered by Peltier was justifiably excluded in
this instance under the provision of FED. R. EVID. 403.
The evidence was only minimally relevant. Neither
Jimmy Eagle nor Myrtle Poor Bear testified as a govern-
ment witness against Peltier. Furthermore, Peltier made no
showing that the integrity of the government’s evidence
against him was in any way tainted by the Myrtle Poor
Bear and Jimmy Eagle episodes.
33a
Peltier argues that the evidence was relevant to show
bias on the part of government witnesses Anderson,
Draper, and Brown. He argues that Poor Bear’s and
EKagle’s testimony, if believed by the jury, might have
caused the jury to speculate further as to whether the
knowledge Anderson, Draper, and Brown testified to was
implanted in their minds by coercive F.B.I. interrogation.
It is true that “[e]vidence tending to show a substantial
reason for bias or interest in an important witness is never
collateral or irrelevant. It may be * * * the very key to an
intelligent appraisal of the testimony of the [witnesses].’’
Barnard v. United States, 342 F.2d 309, 317 (9th Cir.
1965). See Davis v. Alaska, 415 U.S. 308, 316-17 (1974);
Johnson v. Brewer, 521 F.2d 556, 561 (8th Cir. 1975). How-
ever, Eagle’s and Poor Bear’s allegations of F.B.I. harass-
ment, even if true, shed very little, if any, light on the
credibility of other witnesses, since the trial court allowed
full inquiry into the dealings of Anderson, Draper, and
Brown with the F.B.I. In light of the full presentation to
the jury of F.B.I. actions which might have caused bias on
the part of these three witnesses, the testimony of Poor
Bear and Eagle would only have been cumulative.
Peltier also argues that the Poor Bear and Eagle testi-
mony was admissible to show the intention of the F.B.I1.
to bring about his conviction, no matter what the cost.
This issue is a more difficult one. As we stated earlier,
Peltier’s theory of the case was that the F.B.I. framed him
by manufacturing evidence and inducing witnesses to tes-
tify in accordance with its theory of the murders, The
Poor Bear and Eagle testimony was certainly consistent
with that theory. However, we do not find an abuse of
discretion on the part of the district eourt in excluding the
evidence. The district court weighed the following factors:
a. the defendant’s failure to point to specific evi-
dence used against him, the reliability of which was
directly affected by the Poor Bear or Eagle episodes;
34a
b. the lack of probative value of the proffered evi-
dence.
i. Myrtle Poor Bear. It is apparent, from reading the
trial transcript, that Myrtle Poor Bear was not a reliable
witness. Her testimony was at all times very vague, and
she often responded that she could not remember. Indeed,
defense counsel, anticipating that she would be called as a
witness for the government, described her in his opening
statement as a “witness whose mental imbalance is so gross
as to render her testimony unbelievable.’’
ii. Jimmy Eagle. In addition to offering Eagle’s testi-
mony, the defense also called two of the four cellmates
who gave the allegedly controverted statements to the gov-
ernment. Both witnesses affirmed the truth of their earlier
statements to the F.B.I., and denied that the F.B.I, in-
duced them to make false statements.’* There was thus no
real proof that the F.B.I. solicited statements from the
four cellmates. There was only proof that Eagle denied
making the statements.
iii. The probability that the government would offer
countervailing evidence, thus extending an already lengthy
trial.
iv. The danger of unfair prejudice to the government.
The proffered evidence would clearly have tended to divert
the jury’s attention from the issue before it—Peltier’s
guilt or innocence,
While the more prudent course might have been to allow
the defense to present the evidence, we find no abuse of
discretion in the trial court’s exclusion of the testimony of
** The two witnesses testified outside the presence of the jury
that after their testimony at trial, they had been threatened by
Peltier himself that if they did not return to court and testify that
their earlier testimony had been induced by F.B.I. threats, their
lives would be in danger.
35a
Jimmy Eagle and Myrtle Poor Bear, in light of its low
probative value, the potential for further delay in the trial,
and the danger of unfair prejudice to the government.
We now summarize briefly the remaining evidence ex-
cluded by the trial court which the defendant contends
further supported his defense that he was the victim of an
F.B.I. frame-up. We have concluded that the evidence was
properly excluded and would not have bolstered the de-
fense theory.
Telescopic Sight Demonstration. Coward and Stoldt
testified that when they sighted Peltier and Eagle on the
day of the murders, they were approximately one-half mile
from them. The defendant requested that the members of
the jury be permitted to look through Coward’s telescopic
sight to satisfy themselves that an identification could not
be made from such a distance. The question of whether to
permit jury experiments rests within the discretion of the
trial court. Friedman v. United States, 347 F.2d 697, 709
(8th Cir.), cert. denied, 382 U.S. 946 (1965), We hold that
the trial court’s refusal to allow the jury members to look
through the telescopic sight was not an abuse of discretion
here. The trial court did permit the defendant to introduce
the testimony of a firearms expert, who attempted to iden-
tify a familiar individual through the same telescopic sight
at a distance of one-half mile and was unable to do so. The
expert did not testify that such an identification was im-
possible. Furthermore, on cross-examination, the expert
testified that a number of factors could influence a person’s
ability to make such a sighting, including atmospheric con-
ditions, the eyesight of the observer, the lay of the land,
and prior training with a scope. Since these variables
would affect each juror’s experience with sighting through
Coward’s sight, we agree with the district court that such
an experiment would have little, if any, probative value.
F.B.I. Lab Reports. While the district court admitted
into evidence the lab reports regarding the association or
36a
lack of association between the .223 casing and the Wichita
AR-15, the court refused to allow defense counsel to men-
tion the dates of the reports in his argument to the jury,
citing FED. R. EVID. 613(b). Defense counsel stated his
firm agreement with the court’s ruling. The court’s reason
for restricting counsel was that when the author of the
reports, Evan Hodge, was on the stand, counsel for the de-
fense declined to question him as to the reason for the
apparent inconsistency, after the trial court suggested that
he do so, We hold that the district court did not abuse its
discretion in so limiting defense counsel’s argument. On
redirect, in response to a question from government coun-
sel, Hodge stated that he first began to examine Ex. 34-B,
the .223 cartridge casing, in December of 1975 or January
of 1976. On recross, defense counsel] did not question
Hodge on the timing of his association of the Wichita AR-
15 with the .223 casing, preferring to let the lab reports
speak for themselves. The lab reports were before the jury,
which could draw what inferences it chose.
Waring 302. Special Agent Waring’s 302 was an eight-
page report which apparently had been typed on two type-
writers. The dates of dictation (June 26) and transcription
(June 30) were transposed. The defendant contended that
the report had been doctored at a later time to conform
with the emerging theory of the case. The district court
refused to admit the report, but allowed extensive testimony
concerning the alleged difference in type.
Special Agent Waring testified that he had dictated one
of his 302’s to two different secretaries, who may have
typed the 302 on two different typewriters. Defense coun-
sel, on cross-examination, questioned Waring about the
fact that the 302 was typed on two different typewriters and
suggested that Waring had had the 302 retyped so as to
conform to an agreed upon version of the facts. Waring
denied the allegation. Defense counsel then sought to intro-
duce the 302 into evidence to allow the jury to witness the
37a
different types on the report. The defense later called a
witness who testified that the 302 in question did indeed
contain two different types. Even were we to hold that the
trial court erred in excluding the report, we fail to see how
the defendant was prejudiced by the trial court’s ruling,
in view of the fact that the question of the different types
was examined in such detail in the testimony.
Ill
RerusaAu To Reap TEsTIMONY TO JURY
During its deliberation the jury made two requests that
certain trial testimony be read: a portion of Michael An-
derson’s testimony, and the two statements made by Peltier
after his comment at his arrest that, if he had known the
persons approaching him were law enforcement officers,
“he would blow [them] out of [their] shoes.’’ The trial
court refused the requests, instructing the jury instead to
rely upon its recollection of the witnesses’ testimony during
trial.
The decision to read testimony as requested by the jury
rests within the sound discretion of the trial judge. United
States v. Ballard, 535 F.2d 400, 407 (8th Cir.), cert. denied,
429 U.S. 918 (1976); United States v. Mesteth, 528 F.2d
333, 334 (8th Cir. 1976). We have examined the requested
testimony and are satisfied that the trial court did not
abuse its discretion.”* The testimony was not crucial to the
16 Peltier also contends that the trial court failed to exercise
any discretion at all, declaring ‘‘its rigid policy of traditionally
denying jury requests for testimony.’’ We have reviewed the trans-
cript and are not persuaded that the trial court’s comments may
properly be construed as stating such a policy. We note, however,
the holding of the United States Court of Appeals for the Seventh
Circuit, that:
[W]e believe a judge could properly adopt and follow a
routine practice of declining such requests unless supported
by some extraordinary showing of need.
United States v. McCoy, 517 F.2d 41, 45 (7th Cir.), cert. denied,
423 U.S. 895 (1975).
38a
verdict, as the defendant contends, citing United States v.
Rabb, 453 F.2d 1012, 1013-14 (3d Cir. 1971). Furthermore,
the failure to read the testimony did not create unfairness
to him, as he contends, citing United States v. Jackson,
257 F.2d 41 (3d Cir. 1958), since the requested testimony
was favorable to the government’s case.
IV
EXTRADITION
Peltier contends, for the first time on appeal, that the
trial court had no jurisdiction to try him, because he was
extradited from Canada in violation of the Webster-
Ashburton Treaty, 8 Stat. 572.
Article X of the Webster-Ashburton Treaty provides in
pertinent part that:
It is agreed that the United States and Her Britannic
Majesty shall * * * deliver up to justice all persons
who, being charged with the crime of murder * * ® shall
seek an asylum, or shall be found, within the terri-
tories of the other: provided that this shall only be
done upon such evidence of crimmality as, according
to the laws of the place where the fugitwe or person
so charged shall be found, would justify his apprehen-
sion and commitment for trial * * *. (Emphasis added.)
8 Stat. 576. Peltier contends that the evidence of criminality
presented to the Canadian tribunal “consisted of the false
affidavits of Myrtle Poor Bear, obtained by the government
through coercion and deceit and known by the government
to be false.” He contends that the presentation of false
evidence violated the terms of the treaty, thereby depriving
the trial court of jurisdiction. He cites a long line of cases
beginning with United States v. Rauscher, 119 US. 407
(1886), which stand for the proposition that the demanding
state may not charge and try the extradited defendant for
a crime other than one enumerated in the applicable ex-
39a
tradition treaty, and for which he was specifically oxtra-
dited. ;
The governinent argues that the jurisdiction of the trial
court over the defendant is not affected by the manner in
which his presence before the court was obtained, citing
Frisbie v. Collins, 342 U.S. 519 (1952) and Ker v, IIlinois
119 U.S. 436, 444 (1886). However, we do not find it idee
sary to decide what standard should be applied to the
review of claims of government misconduct in international
proceedings,” since, under any standard, Peltier's claim
Is, on its face, lacking in substance Peltier does not claim
that he was extradicted solely on the basis of Myrtle Poor
Bear’s affidavits * or that the other evidence presented to
the Canadian tribunal was insufficient to warrant extradi-
tion. It is clear from a review of the trial transcript that
other substantial evidence of Peltier’s involvement in the
murders was presented in the extradition proceedings, but
the record of those proceedings was not made available
either to the trial court or to this court.
_~——
'T'We note that the United States Court of A
note ppeals for the
Second Circuit has recently declined to give such broad effect to
Frisbie and Ker, holding in United States v. Toscani
267, 275 (2d Cir. 1974) that: 8 v. Toscanino, 500 F.2d
(W]e view due process as now requiring a court to divest
itself of jurisdiction over the person of a defendant where
it has been acquired as the result of the government’s de-
liberate, unnecessary and unreasonable invasion of the
accused’s constitutional rights.
** The use of the affidavits of Myrtle Poor Bear in the extraditi
proceedings was, to say the least, a clear abuse of the Sas
process by the F.B.I. This was conceded by government counsel
on the hearing in this court. It does not, however, follow that the
testimony of this obviously confused and ‘‘unbelievable’’ witness
should have been permitted under either theory advanced by
Peltier as hereinbefore set forth. See discussi
of this opinion. sighs eile
40a
V
COLLATERAL ESTOPPEL
Peltier alleges that his prosecution was barred by the
doctrine of collateral estoppel, since codefendants Robideau
and Butler were found not guilty by a jury on the basis
of evidence much of which was the same evidence adduced
against Peltier. Peltier was not a party to that proceeding,
and may not invoke the doctrine of collateral estoppel.
United States v. Brown, 547 F.2d 438, 444 (8th Cir.), cert.
denied, 430 U.S. 937 (1977). Cf. Turley v. Wyrick, 554 F.2d
840, 842 (8th Cir. 1977), cert. denied, 434 U.S. 1033 (1978).
The judgment of conviction is affirmed.
A true copy.
Attest:,
CuerK, U.S. Court or Appeats, Ericuts Crrcvir.
4la
APPENDIX B — AFFIDAVIT ONE
UNITED STATES OF AMERICA
STATE OF SOUTH DAKOTA
COUNTY OF PENNINGTON
Ly THe Matter or THe Exrrapition Act. R.S.C. 1970 Cuap.
)-21 AND IN THE Matrer oF LEONARD PeLTIER, ALSO
KNOWN AS Leonarp LitrLe SHELL, LeonarD WILLIAMS,
JoHn Yettow Rose, Erwin YeELLOw Rose, Leonarp
JoHN PELTIER
Affidavit
Myrtle Poor Bear, being first duly sworn, deposes and
states:
1. 1 am an American Indian born February 20, 1952,
and reside at Allen, South Dakota, one of the United States
of America.
2. I first met Leonard Peltier in Bismarck, North Dakota,
during 1971. During March, 1975, I again met Leonard
Peltier at St. Francis, South Dakota, United States of
America. During April, 1975, I went to North Dakota to
see him as a gir! friend of his. About the last week of May
during 1975 I and Leonard Peltier went to the Jumping
Bull Hall near Oglala, South Dakota, United States of
America. There were several houses and about four or five
tents. When Leonard Peltier arrived, he gave orders on
what was to be done. I was his girl friend at this time.
About a week after we arrived, about the second week of
June, 1975, Leonard Peltier and several others began
planning how to kill either Bureau of Indian Affairs
Department, United States Government police or Federal
Bureau of Investigation, United States Government, agents
who might come into the area. Leonard Peltier was mostly
in charge of the planning. All persons involved in the
42a
planning had special assignments. There was also a de-
tailed escape route planned over the hills near the Jumping
Bull Hall area. I was present during this planning.
Leonard Peltier always had a rifle and usually had a
pistol near him. The pistol was usually under a car seat.
About one day before the Special Agents of the Federal
Bureau of Investigation were killed, Leonard Peltier said
he knew the Federal Bureau of Investigation or the Bureau
of Indian Affairs were coming to serve an arrest warrant
on Jimmy Eagle. Leonard Peltier told people to get ready
to kill them and he told me to get my car filled with gas to
be ready for an escape. I left Jumping Bull Hall at this
point and did not return. During August, 1975, I met
Leonard Peltier again at Crow Dog’s Paradise on the
Rosebud Indian Reservation, South Dakota, United States
of America. We talked about the killing of the two Federal
Bureau of Investigation agents near Jumping Bull Hall.
Leonard said it makes him sick when he thinks about it.
He said that one of the agents surrendered, but he kept
shooting. He said it was like a movie he was watching but
it was real, he was acting right in it. He said he lost his
mind and just started shooting. He said he shot them and
just kept pulling the trigger and couldn’t stop.
Subscribed and sworn to before me this 19th day of
February, 1976.
/3/
Deputy Clerk
United States District Court
District of South Dakota
/3/
Myrtle Poor Bear
1, Andrew W. Bogue, United States District Judge for
the District of South Dakota, do hereby certify that at-
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tached hereto is the Affidavit of Myrtle Poor Bear, sworn
to before Betty B. Berry, Deputy Clerk of the United
States District Court for the District of South Dakota,
whose signature appears on said Affidavit, and that the
said Betty B. Berry, was authorized to administer oaths
for general purposes and that the said Affidavit is in due
form of law,
In testimony whereof I have hereunto signed my name
and caused the seal of the said Court to be affixed at the
City of Rapid City in the state of South Dakota, this
day of February, 1976.
Anprew W. Boavur
United States District Judge
APPENDIX B — AFFIDAVIT TWO
UNITED STATES OF AMERICA
STATE OF SOUTH DAKOTA
COUNTY OF PENNINGTON
Ly THe Matter or THe Exrrapition Act. R.S.C. 1970 Cuap.
K-21 anp In THE Matter or Leonarp Pewttier, ALso
KNOWN AS Leonarp Lirtte Saev., Leonarp WiLuiaMs,
JoHN Yettow Rose, Erwin Yettow Rose, Leonarp
Joun PeLtTier
Affidavit
Myrtle Poor Bear, being first duly sworn, deposes and
states:
1. | am an American [ndian born February 20, 1952,
and reside at Allen, South Dakota, one of the United States
of America.
led ii rm SS
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9 | first met Leonard Peltier in Bismarck, North Dakota,
during 1971. During March, 1975, I again met Leonard
Peltier at St. Francis, South Dakota, United States of
America. During April, 1975, I went to North Dakota to
see him as a girl friend of his. About the last week of May
during 1975 I and Leonard Peltier went to the Jumping
Bull Hall near Oglala, South Dakota, United States of
America. There were several houses and about four or five
tents. When Leonard Peltier arrived, he gave orders on
what was to be done. 1 was his girl friend at this time.
About a week after we arrived, about the second week of
June, 1975, Leonard Peltier and several others began
planning how to kill either Bureau of Indian Affairs
Department, United States Government police or Federal
Bureau of Investigation, United States Government, agents
who might come into the area. Leonard Peltier was mostly
in charge of the planning. All persons involved in the
planning had special assignments. There was also a de-
tailed escape route planned over the hills near the Jumping
Bull Hall area. I was present during this planning.
Leonard Peltier always had a rifle and usually had a
pistol near him. The pistol was usually under a car seat.
About one day before the Special Agents of the Federal
Bureau of Investigation were killed, Leonard Peltier said
he knew the Federal Bureau of Investigation or the Bureau
of Indian Affairs were coming to serve an arrest warrant
on Jimmy Eagle. Leonard Peltier told people to get ready
to kill them and he told me to get my car filled with gas to
be ready for an escape, which I did. 1 was present the day
the Special Agents of the Federal Bureau of Investigation
were killed. | saw Leonard Peltier shoot the FBI agents.
During August, 1975, I met Leonard Peltier again at Crow
Dog’s Paradise on the Rosebud Indian Reservation, South
Dakota, United States of America. We talked about the
killing of the two Federal Bureau of Investigation agents
near Jumping Bull Hall. Leonard said it makes him sick
ee. wo~~~——~:~. aaa:
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when he thinks about it. He said that one of the agents
surrendered, but he kept shooting. He said it was like a
movie he was watching but it was real, he was acting right
in it. He said he lost his mind and just started shooting.
He said he shot them and just kept pulling the trigger and
couldn’t stop.
Subscribed and sworn to before me this 23rd day of
February, 1976.
/8/
Deputy Clerk
United States Distriet Court
District of South Dakota
/s/
Myrtle Poor Bear
I, Andrew W, Bogue, United States [strict Judge for
the District of South Dakota, do hereby certify that at-
tached hereto is the Affidavit of Myrtle Poor Bear, sworn
to before Betty B. Berry, Deputy Clerk of the United
States District Court for the District of South Dakota,
whose signature appears on said Affidavit, and that the
said Betty B. Berry, was authorized to administer oaths
for general purposes and that the said Affidavit is in due
form of law.
In testimony whereof | have hereunto signed my name
and caused the seal of the said Court to be affixed at the
City of Rapid City in the state of South Dakota, this
~ day of February, 1976,
/s/
Anprew W. Boaur
United States District Judge
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APPENDIX B — AFFIDAVIT THREE
UNITED STATES OF AMERICA
STATE OF SOUTH DAKOTA
COUNTY OF PENNINGTON
In tun Marrer or Tue Exrraprrion Act. R.S.C, 1970 Crap.
K-21 anp in THE Matter or Leonarp PeLtier, ALso
KNOWN As LeonarD Lirrte Saevt, Leonarp W1i.viAMs,
JouHn Yettow Rose, Erwin Yettow Rose, Leonarp
Joun Pevtrer
Affidavit
Myrtle Poor Bear, being first duly sworn, deposes and
states:
1. That | am the Myrtle Poor Bear, of Allen, South
Dakota, United States of America, who was the deponent
in an affidavit sworn the 23rd day of February, 1976. This
affidavit is sworn by me to give further information.
2. Attached hereto and marked Exhibit “A” to this, my
Affidavit, is a photograph marked February 12, 1976, and
I testify and depose that the person shown on the said
photograph is a person known to me as Leonard Peltier
and is the person | spoke of in my deposition of February
ye
3, 1976, and the person referred to herein as Leonard
Peltier,
3. L reeall the events of June 26, 1975, which occurred
at the area of Jumping Bull Hall near Oglala on the Pine
Ridge Indian Reservation in the State of South Dakota,
United States of Ame“ica.
4. Sometime during the early part of that day, at ap-
proximately 12:00 Noon, Leonard Peltier came into the
residence of Harry Jumping Bull which is located in the
area of Jumping Bull Hall and said, “They’re coming.’’
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[ understood this to mean that police or agents of the
Federal Bureau of Investigation were in the immediate
area. A short time later, | saw a car which I recognized
to be u government car near Harry Jumping Bull’s house.
I went down to the creek bottom a couple of hundred yards
from the house. I heard shooting. I left the creek bottom
area and walked approximately 50 yards to where I saw
two cars, both of which I recognized to be government
ears, because of the large radio antennaes mounted on the
rear of these cars and I had previously seen many cars of
a similar type driven by government agents in the same
area. When [ got to the car, Leonard Peltier was facing a
man which I believed to be a special agent of the Federal
Bureau of Investigation. This man was tall with dark hair.
This man threw a handgun to the side and said something
to the effect that he was surrendering. Leonard Peltier
was pointing a rifle in the direction of this man. The man
was holding his arm as if he was wounded and was leaning
against the car previously mentioned. There was another
man who I believed to be a special agent of the Federal
Bureau of Investigation lying face down on the ground
and there was blood underneath him. I started to leave and
was grabbed by the hair by another person and could not
get away. I turned again and saw Leonard Peltier shoot the
man who was standing against the car. I heard a shot come
from the rifle that Leonard Peltier was holding and I saw
that rifle jump up still in his hands. I saw that man’s
body jump into the air and fall to the ground. The man fell
face down on the ground. This happened in an instant. I
freed myself from the person that was holding me and ran
up to Leonard Peltier just as he was aiming his rifle at the
man who had just fallen to the ground. I pounded Leonard
Peltier on the back. He yelled something at me which I
cannot recall. I turned, ran and left the area. As I was
running away, | heard several more shots from the area
from which I had just fled.
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Subscribed and sworn to before me this 3lst day of
March, 1976.
/S/
Deputy Clerk
United States District Court
District of South Dakota
/s/
Myrtle Poor Bear
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APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 77-1487
LEONARD PELTIER, Appellant,
v.
Unrrep States or America, Defendant.
Excerpts rroM ARGUMENT
FROM Maanetic TAPE
Aprit 12, 1978
Jupce Ross: Assuming that she [Myrtle Poor Bear]
was incompetent, what about the affidavit that they used in
the extradition proceeding?
Mr. Hutrman: All right, Your Honor. When the——
To go back in time frame, Your Honor, so that maybe I
can better explain that, these affidavits were in the early
part of the year, in January, February. I don’t remember
the exact dates, but the dates were on the affidavits them-
selves. And at that time that was all that was known by
anybody concerning Myrtle Poor Bear. And I can stand
before this court and say that that is the only thing that the
prosecutor, because I was the representative for the
Government, that was the only thing of which I had any
knowledge of any kind. So the affidavits were accepted on
their face as being statements of a witness who was present
who was testifying in the affidavit under oath as to what
she saw.
Jupce Ross: But anybody who read those affidavits
would know that they contradict each other. And why the
FBI and Prosecutor’s office continued to extract more to
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put into the affidavits in hope to get Mr. Peltier back to
the United States is beyond my understanding.
Mr. Hutrman: Yes.
Jupce Ross: Because you should have known, and the
FBI should have known that you were pressuring the
woman to add to her statement.
Mr. Huurman: Your Honor, I personally was not present
at that stage. I read the affidavits after they had been sub-
mitted, so I want this court to know that.
Jupce Ross: The Government——
Mr. Huurman: And I don’t excuse, by my remark just
now to Your Honor, I don’t in any way excuse what the
court has just indicated. Your Honor, | have trouble with
that myself, and Your Honor that is the exact reason which
I did read these affidavits and put together the fact that—
And that gets to the second point, Judge Gibson and Judge
Ross. It was clear to me her story didn’t later check out
with anything in the record by any other witness in any
other way. So I concluded then, in addition to her incom-
petence, first, that secondly, there was no relevance of any
kind, Absolutely not one scintilla of any evidence of any
kind that had anything to do with this case. And it was
then that I personally made the decision that this witness
was no witness. First of all, because she was incompetent
in the utter, utter, utter ultimate sense of incompetency as
recognized by defense counsel on more than one occasion,
And there was some more indicia here in the record where
they likewise further did. But, secondly, as Judge Ross, you
are indicating, and I take no issue at that, Your Honor,
but when I then tested those statements once they came to
me, and that was after they had gone to Canada, and I had
a chance to look at them and tested them with all of the
record, all of the witnesses, there was not one scintilla that
showed Myrtle Poor Bear was there, knew anything, did
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anything, et cetera. And so, it is for those two reasons that
I believe the court, very realistically, and very fairly, and
in the total interest of justice determined for the reasons
that the court then gave, that Myrtle Poor Bear’s testimony
would go totally to a collateral matter, even if it were a
collateral matter with some relevancy.
Jupen Ross: But can’t you see, Mr. Hultman, what hap-
pened happened in such a way that it gives some credence
to the claim of the——
Mr, Hutrman: I understand, yes, Your Honor.
Jupar Ross; —the Indian people that the United States
is willing to resort to any tactic in order to bring somebody
back to the United States from Canada.
Mr. Huttrman: Judge——
Jupar Ross: And if they are willing to do that, they must
be willing to fabricate other evidence. And it’s no wonder
that they are unhappy and disbelieve the things that hap-
pened in our courts when things like this happen.
Mr. Huttrman: Judge Ross, I in no way do anything but
agree with you totally,
Juper Ross; And you try to explain how they get there is
not legally relevant in the case, and they don’t understand
that.
Mr. Huurman: I understand, Your Honor.
Jupae Ross: We have an obligation to them, not only te
treat them fairly, but not give the appearance of manu-
facturing evidence by interrogating incompetent witnesses.
Mr. Huttman: Your Honor, I agree wholeheartedly, and
I certainly have no quarrel with that, and that is why I
say, as [ indicated, I ultimately made a decision that I
made, and I made that decision personally. I think the trial,
itself, Your Honor, and the record in its totality, as well as
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its individuality will show the very posture that the court
has now indicated. And as a legal matter, I think that that
is correct. Although, I certainly accept what the court has
just said in totality, and I agree with it one hundred per-
cent, Your Honor.
Now, later on then, the counsel again indicated at Page
3455 at the record, that anyone who talked to her, and he
was referring to Myrtle Poor Bear, for even a few minutes
would immediately know that she was an unbelievable
witness. Now, those are just, that’s all from the defense’s
side of the house, Your Honor. That has nothing to do
from the Government’s side of the house. So I believe that
the ruling was a proper, discretionary one on the court,
and he would have opened up a Pandora’s Box into things
that had absolutely nothing to do with the ultimate issues
at trial, because she knew nothing, absolutely nothing,
without question, about what took place.
Juper Ross: Was she there at the time?
Mr. Hutrman: No, she was not. I don’t think there is any
question on the part of anybody, there is not one scintilla of
evidence that indicates, finally, that she is there and has
has anything to testify to the events.
Jupee Ross: All of this was in the affidavits?
Mr. Huurman: Yes, that is correct, Your Honor.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.