Appendix — United States v. Eagle Elk

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 81-2425

UNITED STATES OF AMERICA, APPELLEE,

v.

ROBERT EAGLE ELK, JR., A/K/A BoBBY BEAR,

APPELLANT

Submitted May 20, 1982

Decided June 30, 1982

PER CURIAM

On May 21, 1981, the appellant, Robert Eagle Elk,

Jr. was indicted for voluntary manslaughter under 18

U.S.C. §§ 1158 and 1112 (1976). On November 26,

1981, a jury returned a verdict of guilty on the lesser

included offense of involuntary manslaughter, and the

district court! entered judgment on December 11, 1981.

Of the several trial court errors upon which Eagle Elk

grounds this appeal only his assertion that the trial

court erred in failing to suppress a statement that he

made to a federal investigator following a polygraph ex-

amination concerns us on appeal. For the reasons set

forth herein, we reverse.

Only a brief outline of the facts is necessary for pur-

poses of this decision. Eagle Elk’s conviction stemmed

The Honorable Andrew W. Bogue, Chief Judge, United

States District Court for the District of South Dakota.

2a

from the beating death of Richard Schreiner on April

25, 1981. Eagle Elk, Schreiner, and another individual,

Anthony Jacobs, were traveling together on the eve-

ning of April 25, 1981, in Eagle Elk’s automobile.

Schreiner was carrying a rifle. Apparently, an argu-

ment broke out between Schreiner and Eagle Elk. Ac-

cording to Eagle Elk, Schreiner poked him in the side

with the rifle, and Eagle Elk stopped the automobile.

Schreiner jumped out of the car and while threatening

Eagle Elk, cocked, aimed and pulled the trigger on the

rifle. When the rifle failed to fire, Eagle Elk grabbed

the rifle from Schreiner and struck him in the face with

a fist. Schreiner then took out a pistol and cocked the

pistol while again threatening Eagle Elk. Eagle Elk

struck Schreiner on the left side of the neck with the

butt of the rifle. The blow knocked Schreiner to the

ground. At this point, he set the rifle next to the pas-

senger side of the automobile and took cover.

Eagle Elk testified at trial that Jacobs became in-

volved in the affray when, as Jacobs was attempting to

get out of the back seat of the car, Schreiner pushed

the car door and pinned Jacobs’ legs between the car

door and the car. A fight between Jacobs and Schreiner

then ensued in which Jacobs, brandishing a knife,

slashed at Schreiner. According to Eagle Elk, Jacobs

then grabbed the rifle laying against the car and struck

Schreiner in the head with the rifle, knocking him to

the ground. Jacobs then smashed the rifle butt over

Schreiner’s head again with sufficient force to break the

stock of the rifle into two pieces.

Anthony Jacobs denied that he participated in any

way in the altercation. According to Jacobs, it was Ea-

gle Elk who, after striking Schreiner in the face with

his fist and knocking him to the ground, struck

Schreiner in the head a total of four times with the butt

of the gun.

3a

After his arrest,? Eagle Elk, upon the advice of coun-

sel, volunteered to undergo a polygraph examination on

July 23, 1981. Eagle Elk’s counsel was not present

while the examination was being conducted. The exami-

nation was conducted by a Federal Bureau of Investiga-

tion officer, Agent Diem. Prior to being given the poly-

graph, Eagle Elk was advised by Agent Diem of his

Miranda rights, signed a form stating that he under-

stood those rights, and signed a polygraph interview

consent form. The examination was conducted outside

the presence of Eagle Elk’s counsel. According to Eagle

Elk, after the polygraph examination was completed,

Agent Diem advised him that he was not telling the

truth, and continued the interrogation. The govern-

ment admitted that appellant was not given an addi-

tional Miranda warning after the polygraph examina-

tion but prior to this interrogation. During this

interrogation Eagle Elk made an incriminating state-

ment to the effect that he had struck Schreiner twice in

the head with the rifle. According to Eagle Elk he re-

quested to see his attorney prior to making this incrim-

inating statement. However, Agent Diem testified at a

suppression hearing held October 13, 1981, that Eagle

Elk had not requested to see his attorney until after the

incriminating statement had been made.

Eagle Elk argues that under Edwards v. Arizona,

451 U.S. 477, 101 S.Ct. 1880, 68 L. Ed.2d 378 (1981), his

incriminating statement allegedly made after re-

questing to see his counsel should have been sup-

pressed. In Edwards the Supreme Court held that in-

terrogation must cease when an accused requests

counsel, and that an accused is not subject to further

2 Eagle Elk was arrested on April 28, 1981. On April 25, 1981,

the night of Schreiner's death, Eagle Elk had been interviewed

by an investigator with the Oglala Sioux Tribal Police. Prior to

this interview. Eagle Elk was fully advised of his constitutional

rights. [Tr. 44

4a

interrogation unless he initiates further conversation

with the police. Id. at 484-85, 101 S.Ct. at 1884-85. We

do not believe Edwards controls the instant case in that

at the suppression hearing the trial court accepted

Agent Diem’s testimony that Eagle Elk did not request

an attorney until after he had made the incriminating

statement. Such findings of fact by the trial court in

suppression proceedings are subject to reversal only if

they are found to be clearly erroneous, see, e.g. United

States v. Poitra, 661 F. 2d 98, 98 (8th Cir. 1981); United

States v. Doby, 598 F. 2d 1137, 1140 (8th Cir. 1979), and

we cannot conclude on the basis of the record that the

trial court made a clearly erroneous determination in

the instant case.

However, Eagle Elk also contends that his incrimi-

nating statement should have been suppressed because,

in the absence of an additional Miranda warning after

the polygraph examination but prior to further in-

terrogation, the statement must be viewed as not be-

ing voluntarily made. In light of this court’s recent deci-

sion in Fields v. Wyrick, 682 F. 2d 154 (8th Cir. 1982),

we feel compelled to agree. In Fields this court re-

versed a rape conviction on the grounds that it was ob-

tained as a result of an involuntary confession. The rel-

evant circumstances in Fields are virtually identical to

those in the instant case. Fields, upon the advice of

counsel, consented to a polygraph examination to be

conducted by an agent of the United States Army

Criminal Investigation Division (CID). Fields’ attorney

was not present at the examination. Before the test

was administered, Fields was fully advised of his con-

stitutional rights and he signed a written form consent-

ing to the polygraph examination. When the agent ad-

ministering the examination advised Fields that the

test indicated he was not telling the truth and subjected

Fields to further interrogation without additional

Miranda warnings, Fields made the incriminating

5a

statement that he had engaged in consensual sexual in-

tercourse with the eighty-one year old victim.

This court held that “Fields did not knowingly and in-

telligently waive his right to have counsel present at

the interrogation described above. Fields’ incriminating

statements were, therefore, not voluntarily made and

should have been suppressed.” Fields v. Wyrick,

supra, at 158. Without engaging in an extensive dis-

cussion of the court’s reasoning which led to this conclu-

sion, we simply note that we are unable to distinguish

the relevant factual circumstances presented by the in-

stant case from those in Fields. Therefore, on the basis

of this court’s decision in that case, we reverse appel-

lant’s conviction for involuntary manslaughter, and re-

mand to the district court with directions to order the

release of the appellant or provide a new trial within a

reasonable period of time.“

As noted previously, Eagle Elk has raised several other is-

sues on this appeal relating to rulings made by the district court

during trial proceedings. In light of our reversal of Eagle Elk's

conviction, we need not reach these other assignments of error.

However, because Eagle Elk may undergo a second trial, at

least brief mention should be made of the appellant's challenges

to a district court ruling precluding the appellant from using

Anthony Jacobs’ prior conviction on petty theft for impeach-

ment purposes.

Jacobs’ conviction stemmed from the theft of gunpowder from

his father’s garage. The district court, citing United States v.

Fearwell, 595 F.2d 771, 776 (D.C. Cir. 1978), refused to allow

defendant to impeach Jacobs on the basis of his conviction be-

cause it determined that petit theft did not involve “dishonesty

or false statement” as required under Fed. R. Evid. 60%a)(2).

Cf. United States v. Hayes, 553 F. 2d 824, 827 (2d Cir.), cert.

denied, 434 U.S. 867, 98 S.Ct. 204, 54 L.Ed.2d 143 (1977)

(dicta—petit larceny not admissible under Rule 60%a)(2) ); Gov-

ernment of Virgin Islands v. Testamark, 528 F. 2d 742, 743 (3d

Cir. 1976) (petit larceny does not necessarily involve crimen

falsi so as to be admissible for impeachment purposes). But &.

United States v. Brown, 603 F.2d 1022, 1029 (Ist Cir. 1979)

6a

ROSS, Circuit Judge, specially concurring.

I concur in the result in this case only because I am

firmly convinced that it is required by this court’s re-

cent broad holding in Fields v. Wyrick, supra. Never-

theless, for the reasons stated in my dissenting opinion

in Fields, | am steadfast in my belief that Fields was

wrongly decided and inconsistent with this court’s prior

decision in United States v. Little Bear, 583 F.2d 411

(8th Cir. 1978).

The majority’s conclusion in Fields v. Wyrick that

the defendant’s confession was involuntary does not

rest on considerations of coercive conduct by the poly-

graph administrator, Fields’ age, intelligence, emotion-

al condition, or any other factors which clearly would be

relevant to a determination of whether he might not

have voluntarily, knowingly, and intelligently made the

incriminating statement or waived his right to have

counsel present. Instead, the majority relies solely on

the facts that: (1) polygraph interrogation inherently

holds “significant potential for abuse,” see Fields v.

Wyrick, supra, at 159, (2) even though Fields sub-

mitted to the polygraph upon the advice of his counsel,

was fully advised of his constitutional rights and signed

a written consent to the polygraph examination, there

was “no evidence that Fields or his lawyer anticipated

that the CID officer would attempt to elicit incriminat-

ing statements from Fields after the examination

(petit larceny conviction could be used for impeachment);

United States v. Carden, 529 F.2d 443, 446 (5th Cir.), cert.

denied, 429 U.S. 848, 97 S.Ct. 134, 50 L.Ed.2d 121 (1976) (petit

larceny admissible since it involved dishonesty). In the circum-

stances of this case we cannot conclude that the district court

erred in refusing to admit Jacobs’ prior petit theft convictions.

7a

was run,” id. at 160. and (3) Fields was questioned im-

mediately after administration of the polygraph without

being reminded of his right against self-incrimination

and his right to have counsel present. /d. at 160.

Thus, I am left with no alternative but to conclude

that the majority in Fields has created a per se rule

that, even though a defendant has been fully advised of

his constitutional rights and has consented to a poly-

graph interrogation, his confession made after he has

been advised that his polygraph examination shows de-

ceit is involuntary unless the defendant is given an ad-

* As I noted in my dissent in Fields v. Wyrick, 682 F. 2d 154.

at 162 (8th Cir. 1982) (Ross, J., dissenting), the following de-

tailed statement of rights was read to Fields before the poly-

graph was administered:

“Before I ask you any questions, you must understand

your rights. You do not have to answer my questions or

say anything. Anything you say or do can be used as evi-

dence against you ina criminal trial. You have a right to

talk to a lawyer before questioning or have a lawyer pres-

ent with you during the questioning. This lawyer can be a

civilian lawyer of your own choice, or a military lawyer,

detailed for you at no expense to you. Also, you may ask

for a military lawyer of your choice by name and he will be

detailed for you if superiors determine he’s reasonably

available. / you are now going to discuss the offense un-

der investigation, which is rape, with or without a lawyer

present, you have a right to stop answering questions at

any time or speak to a lawyer before answering further,

even if you sign a waiver certificate. Do you want a lawyer

at this time?” Defendant answered “No.”

State „. Fields, 338 S. W. 2d 348, 350 n.1 (Mo.Ct. App. 1976)

(emphasis added).

Apparently, the majority in Fie/ds has now engrafted an ad-

ditional requirement that unless additional Miranda warnings

are given after the polygraph but before further questioning,

the initial Miranda warnings and waiver must be supplemented

by not only advising the defendant that anything he says or

does during the questioning may be used against him, and that

he may stop answering questions or speak to a lawyer at any

time, but must advise the defendant that questions may be

asked after the polygraph examination had been completed.

8a

ditional Miranda warning between the polygraph and

the immediately subsequent questioning, or the zovern-

ment has explicitly advised the defendant prior to the

polygraph that he may undergo questioning after the

polygraph examination. Apparently, this rule obtains

regardless of whether the defendant might be consid-

ered to understand completely his rights to remain si-

lent and to have an attorney present at any time. See

Fields v. Wyrick, supra, at 163 (Ross, J., dissenting).

As I noted in Fields, the majority in Fields failed to of-

fer convincing support for such a rule.“

Moreover, I believe that any attempt to distinguish

the instant case from Fields would result in reliance on

the kind of irrelevant factual differences which charac-

terizes the majority’s attempt in Fields to distinguish

this court’s prior opinion in United States v. Little

Bear, supra. In Little Bear the defendant was ques-

tioned by BIA agents concerning her husband's death.

Although the majority in Fie/ds refers to the Supreme

Court's recent decision in Edwards u. Arizona, 451 U.S. 477,

101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) as somehow providing

some support for its holding in Fields, see, e.g., Fields v.

Wyrick, supra, at 158, I am at a loss to see how Edwards has

any relevance whatsoever to the questions presented in Fields

or in the instant case. Moreover, the majority in Fields appears

to admit this when it states: “The per se rule enumerated in

Edwards does not resolve the issue present here,” since Fields

“{nitiated further dialogue with the authorities after his right to

counsel had been invoked.” Fields v. Wyrick, supra, at 158.

As the Supreme Court noted in Edwards

lf *** in the course of a meeting initiated by the ac-

cused, the conversation is not wholly one-sided, it is likely

that the officers will say or do something that clearly

would be “interrogation.” In that event, the question would

be whether a valid waiver of the right to counsel and the

right to silence had occurred, that is, whether the pur-

ported waiver was knowing and intelligent and found to be

so under the totality of the circumstances, including the

necessary fact that the accused, not the police, reopened

the dialogue with the authorities.

9a

She was fully advised of her constitutional rights and

signed a waiver form. Two months later she was again

questioned, this time by an FBI agent, and she con-

sented to take a polygraph examination. Prior to taking

the polygraph she was given a “Consent to be Inter-

viewed with Polygraph” form which she signed. She

was also advised by the agent of her constitutional

rights and she signed that form’s waiver provision.

During the polygraph examination Little Bear was

asked if she stabbed her husband. She responded in the

affirmative and said she wanted to talk about it. At this

point she was not reminded of her right to an attorney

or to remain silent. Upon further interrogation, Little

Bear signed a written confession. On appeal, Little

Bear contended that the confession should have been

suppressed because it was not voluntarily given under

the circumstances. This court held that the trial court

did not err in concluding that “Mrs. Little Bear had vol-

untarily confessed and knowingly and _ intelligently

waived her rights even though no second, post-poly-

graph Miranda warning was given.” 583 F. 2d at 414.

In distinguishing Little Bear, the majority in Fields

relied primarily on the fact that “Little Bear had not re-

tained counsel when she went to take the polygraph,”

and therefore, “the Court was not required to deter-

mine whether the agent’s procedure had deprived Lit-

tle Bear of a previously asserted right to deal with the

authorities through counsel.” Fields v. Wyrick, supra,

at 161, n. 13. However, it must be noted that Fields, al-

though retaining counsel, had not asserted his right to

counsel at the polygraph examination, and in fact, as

the majority noted in Fields, must be viewed as having

initiated the further dialogue with authorities. /d. at

158. As the Supreme Court’s opinion in Edwards v.

Arizona clearly indicates, in either the Little Bear fac-

tual circumstances or the Fields factual circumstances,

the basic standard for determining the voluntariness of

10a

the confession is the same, i.e., “whether a valid waiver

of the right to counsel and the right to silence had

occurred, that is, whether the purported waiver is

knowing and intelligent *** under the totality of the

circumstances 451 U.S. at 486 n.9, 101 S.Ct. at

1885 n.9 See id. at 482, 101 S.Ct. at 1883.

The majority in Fields also appears to have found

some distinguishing significance in the label attached to

and the wording of the furm Little Bear signed in con-

senting to the polygraph examination. The FBI form

which Little Bear signed was entitled “Consent to be

Interviewed with Polygraph” and stated that she

agreed to the “use of a polygraph *** during this inter-

view or any part of it.” Uwited States v. Little Bear,

supra, 583 F.2d at 412. The majority in Fields con-

strued this form to somehow indicate a broader scope of

consent to be interrogated than did the CID form in

Fields.

First, it must be emphatically noted that there is ab-

solutely no indication in the opinion in Little Bear that

the court’s decision even remotely turned on the word-

ing of the FBI polygraph consent form. Furthermore,

placing any legal or practical significance upon the use

of the word “interview” in the FBI consent form used

in Little Bear appears to raise inconsequential form

over real substance.

Little Bear, Fields and the instant case all involve

factual circumstances in which a defendant has clearly

and fully been advised on at least two occasions prior to

the administration of the polygraph of the constitutional

rights to remain silent and to the presence of counsel

during any questioning by the authorities. Further-

more, I can find no evidence in any of these cases that

the defendants did not fully comprehend the meaning

and the consequences of a waiver of those rights. As J

stated in Fields, in these circumstances, “it is difficult

to understand ho one more recitation of Miranda

lla

warnings would prove knowing and intelligent waiver if

waiver of two prior sets of warnings, one of which was

given minutes before lan incriminating statement is

made} does not.” Fields v. Wyrick, supra, at IU (Ross,

J., dissenting). Nevertheless, Fie/ds seems to dictate

that, in the circumstances of this case, another

Miranda warnings should have been given between the

polygraph examination and the following interrogation

in order to find Eagle Elk’s confession voluntary. For

this reason, I am eompelled to concur in the court's

holding in the instant case that Eagle Elk's incriminat-

ing statement made during the post-polygraph ques-

tioning was not voluntarily made, and, consequently,

his conviction obtained through the use of that state

ment must be reversed.

JOHN R. GIBSON, Circuit Judge, concurring.

I concur in the per curiam opinion of the court only

because Fields v. Wyrick, 682 F.2d 154 (8th Cir. 1982)

requires this action. I agree with Judge Ross in his spe-

cially concurring opinion that Fields v. Wyrick is in

conflict with United States v. Little Bear, 583 F.2d 411

(8th Cir. 1978). Fields v. Wyrick, supra, relies on Hen-

ry v. Dees, 658 F. 2d 406 (5th Cir. 1981) although, unlike

Henry, it did not involve a defendant with limited men-

tal ability. I agree with the reasoning in Judge Ross’

specially concurring opinion. I am concerned that

Fields v. Wyrick has created a per se rule that finds no

waiver even when repeated Miranda warnings had

been given.

12a

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

WESTERN DIVISION

CR 81-50050-01

UNITED STATES OF AMERICA, PLAINTIFF

v.

ROBERT EDWARD EAGLE ELK, JR. DEFENDANT.

TRANSCRIPT OF HEARINGS

Taken at

United States Courthouse

Rapid City, South Dakota

October 13, 1981

BEFORE HONORABLE ANDREW W. BOGUE, CHIEF

JUDGE

* XR X * *

60 THE COURT: In view of the testimony given

and the absence of any further testimony by the De-

fendant in this case, I would state this: First of all the

Court did consider all the circumstances surrounding

the statement, whether it is called an admission against

interest or confession or not, and it doesn’t appear that

it would fall within the- well, I’m not going to say that.

I will back off on that and say that whatever it is, a con-

fession or admission, that this Court did consider the

following circumstances, whether or not the Defendant

knew of the nature of the offense which he is charged or

which he has suspected at the time of making the con-

fession; the Court did consider whether or not the De- .

fendant was advised or knew he was not required to

make any statement and any such statement would be

used against him; and the Court further considered

13a

whether or not the Defendant had been advised prior to

questioning of his rights to assistance of counsel; the

Court further considered the circumstances surround-

ing whether or not the Defendant was without assist-

ance of counsel when questioned and when given such

confession; the Court does find that the request for the

polygraph was made [61] by counsel for the Defendant

on behalf of the Defendant; the Court further finds that

the giving of the polygraph test was voluntary.

The Court does not consider in its decision any state-

ment on the part of any witness as to whether or not

the Defendant has passed the polygraph test. I say

“passed” advisably. The witness did say he felt that

he—that the Defendant—was not telling the truth, or

words to that effect, and that does not enter into this.

It is not admissible in any Court of law to prove guilt of

any Defendant, so I am not considering that.

I have some questions about polygraph tests anyway

and the weight it should be given. This is not to be con-

sidered here and is not being considered here.

At any rate, the only reason it’s allowed in was to

show there was a test taken as part of the circum-

stances surrounding the obtaining of this admission or

confession, whichever the case may be.

The attorney did not make any objection to the poly-

graph test being made in his absence. Also the Defend-

ant did not object to the absence of his attorney while

the polygraph test was being taken.

Now, the Court believes that the Miranda warnings

were given properly by the party taking the state

ments, and the Court so finds. The court also finds that

by giving a [62] statement, by discussing anything with

the witness, Mr. Diem, that the Defendant knowingly

and intelligently waived his privilege against

self-incrimination.

l4a

Now, as to the statement which was given, the sec-

ond statement, as opposed to the first statement, the

Court finds that the Defendant did not request pres-

ence of his Counsel prior to the giving of the second

statement. The Court further finds that the Defendant

voluntarily, knowingly and intelligently waived his

right to have retained or appointed Counsel present at

that particular interrogation; this Court further finds

the the confession or statement, whichever it may be,

or admission, was really voluntarily made. The Court

under the law then grants the admission or will grant

the admission of the statement into evidence, but will

also instruct the jury properly as required by law.

l5a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

SEPTEMBER TERM, 1981

No. 81-2425

Filed October 5, 1982

UNITED STATES OF AMERICA, APPELLEE,

.

ROBERT EAGLE ELK, IR., a/k/a BOBBY BEAR,

APPELLANT.

This appeal from the United States District Court for

the District of South Dakota was considered on a

designated record from the United States District

Court and on briefs of the respective parties and was

argued by counsel.

After consideration, it is ordered and adjudged that

the judgment and commitment of the said District

Court in this cause be, and the same is hereby, re-

versed and remanded to the said District Court with di-

rections to order release of the appellant or provide a

new trial within a reasonable period of time in accord-

ance with the opinion of this Court

JUNE 30, 1982

A True Copy:

Attest:

/s/ Ropert D. St. VRAIN |

CLERK, U.S. CourRT oF APPEALS,

EIGHTH CIRCUIT

16a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

September Term 1981

No. 81-2425

UNITED STATES OF AMERICA, APPELLEE,

*.

ROBERT EAGLE ELK, IR., A/K/A BOBBY BEAR,

APPELLANT

APPEAL FROM THE UNITED STATES DISTRICT ‘*'RT

FOR THE DISTRICT OF SOUTH DAKOTA

The Court, having considered appellee's petition for

rehearing and suggestions for rehearing en bane and

being now fully advised in the premises, hereby orders

the petition for rehearing and suggestions for rehearing

en bane denied. Judges Ross and John R. Gibson would

grant the petition for rehearing en banc.

August 27, 1982