Appendix — Keeble v. United States

Supreme Court brief1973

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INDEX

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Chronological List of Relevant Docket Entries ............. 1

Transcript of Trial (Indictment) ......................0. 3

Transcript of Trial (Jury Instructions) .................. 4

Opinion of the USCA for the Eighth Circuit, dated April 11,

1972, Breitenstein, J. 2.0.0.0... ec cee eee eee 16

Judgment of the USCA for the Eighth Cireuit............ 24

Memorandum Decision of the USDC, District of South Dakota,

Central Division, dated May 31, 1972................... 25

Opinion of the USCA for the Eighth Circuit, dated July 27,

1972, Per Curiam ............. 0... cc ccc ccc ce eee eens 27

Judgment of the USCA for the Eighth Circuit, July 27,1972. 28

Order of the Supreme Court of the United States granting pe-

tion for writ of certiorari, etc., dated December 4,1972.... 29

March 9,1971

~ March 9, 1971

March 10, 1971

March 23, 1971

March 31, 1971

May 11, 1971

May 18, 1971

July 20, 1971

July 21, 1971

Sept. 2, 1971

Sept. 7, 1971

Sept. 17, 1971

April 11, 1972

April 24, 1972

April 27, 1972

PLO ADIN

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CHRONOLOGICAL List oF RELEVANT

Docket ENTRIES

Complaint filed before U.S. Magistrate in

Chamberlain, South Dakota.

Warrant issued for the arrest of defendant.

Return of Warrant of Arrest and defend-

ant granted an adjournment to seek an

attorney. Bond set at $3000.

Preliminary hearing held before U.S. Mag-

istrate in Chamberlain, South. Dakota.

Defendant bound over to U.S. District

Court for arraignment and trial.

Indictment filed in U.S. District Court.

Central Division, South Dakota.

Arraignment held and defendant enters

plea of not guilty to charge of assault

with intent to do great bodily injury.

Hearing on motions for suppres##on of evi-

dence which were denied. Motion for

separate trial was granted.

Trial held in U.S. District Court with the

jury panel of the Western Division in

Deadwood, South Dakota.

Verdict of Guilty filed.

Judgment and sentence of Court entered.

Notice of appeal to Eighth Circuit Court

of Appeals filed.

Motion for leave to appeal as a poor’ per-

son filed by defendant.

Order granting leave to appeal as poor

person, also ordering copy of transcript

be provided, to the defendant and ap-

pointing attorney.

Judgment filed by Eighth Circuit Court of

Appeals remanding to the District Court

for an evidentary hearing.

Hearing on Remand held in U.S. District

Court in Sioux Falls, South Dakota.

Continued hearing concluded in U.S. Dis-

trict Court, Sioux Falls, South Dakota.

May 31, 1972 Memorandum decision filed by Honorable

Fred Nichol, C.J. . U.S. District Court.

July 27, 1972 Eighth Circuit Court of Appeals affirms

District Court Judgment and enters

f order.

Aug. 28,1972 Case entered on docket of the Supreme

Court under number 72-5323.

Writ of Certiorari granted and motion

for leave to proceed.in forma pauperis

granted by the Supreme Court.

Dee. 4, 1972

Unitep States District Court, District oF

Souto Daxora, CenTRAL Division

Transcript of Trial (Indictment)

[130] THe Court: At this time the United States Attor-

ney may read the indictment, announce the plea of the

defendant as to the charge contained therein, and make his

opening statement. Mr. Hurd.

Mr. Hurp: May it please the Court; Mr. Meierhenry.

Ladies and gentlemen of the jury. The Grand Jury in and

for the District of South Dakota returned an indictment

against Francis Ambrose Keeble, which, eliminating the

formal portions thereof, reads as follows :

[131] The Grand Jury charges: On or about the 7th day

of March, 1971, in Indian country, at Fort Thompson,

within the Crow Creek Indian Reservation, a reservation

under the jurisdiction of the United States, in the District

-of South Dakota, Francis Ambrose Keeble and Alfred

Milton Kennedy, Indians, without justifiable or excusable

cause, did willfully and knowingly assault Robert Isaac

Pomani, with intent to inflict great bodily injury, by beating

him, in violation of 18 U.S.C. Section 1153 and South Da-

fota Compiled Laws Section 22-18-12.

To this indictment as returned by the Grand Jury, the

defendant, Mr. Keeble, has entered a plea of not guilty.

Transcript oF TriaL (INsTRUCTIONS)

[313] THe Court: Ladies and gentlemen of the jury. Most

of you [314] have served on one or more of these cases in

Federal Court, and you know that the practice differs in

Federal Court from state court. In state court you ‘get a

copy of the instructions of the Court in writing to look at

and read in the jury room. In Federal Court our practice

differs. We instruct you orally, and it therefore behooves

you to pay very close attention to the oral instructions which

the Court is now about to give you.

Now that you’ve heard the evidence and the argument, it

becomes my duty to give you the instructions of the Court

as to the law applicable to this case.

It is your duty as jurors to follow the law as stated in

the instructions of the Court, and to apply the rules of law

so given to the facts as you find them from the evidence in

the case.

You are not to single out one instruction alone as stating

the law, but must consider the instructions as a whole.

Neither are you to be concerned with the wisdom of any

rule of law stated by the Court, because regardless of any

opinion you may have as to what the law ought to be, it

would be a violation of your sworn duty to base a verdict

upon any other view of the law than that given in the

instructions of the Court; just as it would be a violation of

your sworn duty, as judges of the facts, to base a [315] ver-

dict upon anything but the evidence in the case.

Justice, through trial by jury, must always depend upon

the willingness of each individual juror to find the truth as

to the facts from the same evidence presented to all the

jurors, and to arrive at a verdict by applying the same rules

of law, as given in the instructions of the Court.

You have been chosen and sworn as jurors in this case

to try the issues of fact presented by the allegations of the

indictment and the denial made by the Not Guilty plea of

the accused. You are to perform this duty without bias or

prejudice as to any party. The law does not permit jurors

to be governed by sympathy, prejudice, or public opinion.

Both the accused and the public expect that you will care-

fully and impartially consider all the evidence in the case,

follow the law as stated by the Court, and reach a just ver-

dict, regardless of the consequences.

Now, this is a criminal case. The defendant, Francis

Ambrose Keeble, is charged, along with Alfred Milton Ken-

nedy, with the crime of assault with intent to inflict great

bodily injury. The substance of the indictment is as follows:

That on or about the 7th day of March, 1971, in Indian

country, at Fort Thompson, within the Crow Creek Indian

Reservation, a reservation under the jurisdiction [316] of

the United States, in the District of South Dakota, Francis

Ambrose Keeble and Alfred Milton Kennedy, Indians, with-

out justifiable or excusable cause, did wilfully and know-

ingly assault -Robert Isaac Pomani, with intent to inflict

great bodily injury, by beating him, in violation of Federal

and state law.

To this charge the defendant Keeble has entered a plea of

Not Guilty, which places in issue cach material allegation

of the indictment.

It is proper to point out that only the defendant Francis

Keeble is on trial in this ease. There has been some testi-

mony concerning Alfred Kennedy. You are instructed that

you are only concerned with the guilt or innocence of Fran-

cis Keeble.

You will note that the indictment charges that the offense

was committed ‘‘on or about’’ a certain date. The proof

need not establish with certainty the exact date of the

alleged offense. It is sufficient if the evidence in the case

establishes beyond a reasonable doubt that the offense was

committed on a date reasonably near the date alleged.

It has been stipulated and agreed in this case that this

offense or this occurrence took place within the confines of

the Crow Creek Indian Reservation, in Indian country, in

the District of South Dakota; and that the [317] defendant,

Francis Keeble, is an Indian, thereby giving this court

jurisdiction of this action, so you will need not, in your

deliberations in this case, give any particular attention to

those elements of the charge.

Briefly, it is the contention of the government that the

defendant, Francis Ambrose Keeble, an Indian, along with

Alfred Milton Kennedy, another Indian, on ‘or about the

7th day of March, 1971, on the Crow Creek Indian Reserva-

tion, without justifiable or excusable cause, assaulted

)

Robert Isaac Pomani, with intent to inflict great poms

injury, by beating him.

The defendant contends that said assault was in self. de-

fense, and while in a state of intoxication, and that the de-

fendant Keeble had no intent to inflict great bodily injury

on Mr. Pomani.

You are cautioned that there is no contention by the gov-

ernment that the beating in question resulted in the death

of the victim. In fact there is medical testimony to the effect

that the death was the result of exposure. The defendant is

not charged with beating Pomani to death, but only with

beating with intent to inflict great bodily injury.

It is provided by statute that whoever assaults another

with intent to inflict great bodily injury is guilty of a felony.

[318] As defined by statute, an assault is any willful and

unlawful attempt or offer, with force or violence, to do

corporal or bodily hurt to another.

The phrase ‘‘great bodily injury’’ as used in the statute

means something more than a slight bodily injury or bat-

tery ; it means a bodily injury of a grave and serious nature.

An assault with intent to do bodily harm is justifiable

when committed by any person in the lawful defense of such

person, when there is reasonable ground to apprehend a

design to commit a felony, or to do some great personal

injury, and imminent danger of such design being ac-

complished.

Such assault is excusable when committed by accident and

misfortune, upon sudden and sufficient provocation, pro-

vided that no undue advantage is taken nor any dangerous

weapon used.

The defendant has interposed the defense of self-defense.

Now the Court is going to instruct you on the law as to self-

defense. You are instructed that as a matter of law, the

defense of self-defense is a legal defense; and that if the

defendant, Francis Keeble, at the time of the assault, was

not the aggressor, and had reasonable cause to believe and

did believe from the acts or conduct of the deceased person,

Robert Pomani, that the [319] deceased had a design to take

his, that is, Keeble’s, life or to do him, that is, Keeble, great

bodily injury, then the defendant Keeble would be justified

in acting in self-defense ; that in defense of himself, the de-

fendant could use all the force and means which he believed

_—_ —-

to be reasonably necessary and which would appear to a

reasonable person in the same or similar circumstances to

have been necessary to protect himself.

’ The important question in practically every case in which

self-defense is relied upon is: was the beating of the de-

ceased because of an honest and reasonable belief that it

was necessary to save his life, that is, Keeble’s life, or save

Keeble from imminent danger of great personal injury, or

was it by reason of anger or in retaliation for some injury

or indignity previously received. A person has a right to

defend himself in all imminent danger, but he has no right

to wreak a vengeance for some real or fancied wrong that

may have been done him.

It is incumbent on the defendant to show justification

where his claim is self-defense. This does not mean he must

prove his defense beyond a reasonable doubt. If there is in

your mind a reasonable doubt as to whether the beating was

committed in justifiable self-defense, then the defendant is

entitled to an acquittal; but if you are satisfied beyond a

reasonable doubt that the beating was not justifiable in

self-defense, then you should disregard such defense al-

together. :

A person may defend his home or habitation against

anyone who manifestly intends or endeavors, in a violent

or riotous manner, to enter that home or habitation, or

who remains there after having been requested to leave, and

who appears to intend violence to any person in that home.

The amount of force which the person may use in resist-

ing such trespass is limited by what would appear to a rea-

sonable person, in the same or similar circumstances, neces-

sary to resist the violent or unlawful entry. He may resist

force with force, increasing it in proportion to the intrud-

er’s persistence in violence, if the circumstances which are

apparent to the homeowner are such as would excite similar

fears and a similar belief in a reasonable person.

A person who is threatened with an attack that justifies

the exercise of the right of self-defense, as I’ve explained

it to you, need not retreat. In the exercise of his right of

self-defense, he may stand his ground and defend himself

by the use of all force and means which would appear to be

necessary to a reasonable person in a similar situation and

with similar knowledge, and he may pursue his assailant

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until he has secured himself from [321] danger, if that

course likewise appears reasonably necessary. This law

applies even though the assailed person might more easily

have gained safety by flight or by withdrawing from the

scene,

Although intoxication or drunkenness alone will never

provide a legal excuse for the commission of a crime, tlie

fact that a person may have been intoxicated at the time of

the commission of a crime may negate the existence of a

specific intent.

So, evidence that a defendant acted or failed to act while

in a state of intoxication is to be considered in determining

whether or not the defendant acted, or failed to act, with

specific intent, as charged.

If the evidence in the case leaves the jury with a rea-

sonable doubt whether, because of the degree of his intoxi-

cation, the mind of the accused was capable of forming, or

did form, specific intent to commit the crime charged, the

jury should acquit the accused.

The jury will always bear in mind that the law never im-

poses upon a defendant in a criminal case the burden or

duty of calling any witnesses or producing any evidence.

In a case where two or more persons are charged with

the commission of a crime, as in this case, the guilt of any

defendant may be established without proof that he per-

sonally did every act constituting the offense charged.

[322] The statute reads: Whoever commits an offense

against the United States, or aids, abets, counsels, com-

mands, induces, or procures its commission, is punishable

as a principal.

In other words, every person who willfully participates

in the commission of a crime may be found to be guilty of

that offense. Participation is willful if done voluntarily

and intentionally, and with the specific intent to do some-

thing the law forbids, or with the specific intent to fail to

do something the law requires to be done, that is to say,

with bad purpose either to disobey or to disregard the law.

In order to aid and abet another to commit a crime, it

is necessary that the accused willfully associate himself in

some way with the criminal venture, and willfully partici-

pate in it as he would in something he wishes to bring

about, that is to say, that he willfully seek by some act or

omission of his to make the criminal venture succeed.

- 9

You of course may not find any defendant guilty unless

you find beyond a reasonable doubt that every element of

the offense, as defined in these instructions, was committed

by some person or persons, and that the defendant partici-

pated in its commission. Mere presence at the scene of the

crime and knowledge that a crime is being committed [323]

are not sufficient to establish that the defendant aided and

abetted the crime, unless you find beyond a reasonable

doubt that the defendant was a participant, and not merely

a knowing spectator.

The crime charged in this case is a serious crime, and

requires proof of specific intent before the defendant can

be convicted. Specific intent, as the term implies, means

more than the general intent to commit the act. To estab-

lish specific intent the government must prove beyond a

reasonable doubt that the defendant knowingly did an act

which the law forbids, purposély intending to violate the

law.

Now, intent ordinarily may not be proved directly, be-

cause there is no.way of fathoming or scrutinizing the

operations of the human mind. But you may infer the de-

fendant’s intent from the surrounding circumstances. You

may consider any statement made and done or omitted by

the defendant, andall other facts and circumstances in evi-

dence which indicate his state of mind. It is ordinarily rea-

sonable to infer that a person intends the natural and

probable consequences of acts knowingly done or knowingly

omitted.

An act is done ‘‘knowingly”’ if done voluntarily and in-

tentionally, and not because of mistake or accident or

other innocent reason.

[324] The purpose of adding the word ‘‘knowingly”’ in

the indictment was to insure that no one would be convicted

for an act done because of mistake, or accident, or other

innocent reason.

As stated before, with respect to the offense charged in

this case, specific intent must be proved beyond reasonable

doubt before there can be a conviction.

‘‘Unlawfully’’ means contrary to law. So, to do an act

‘“‘unlawfully’’ means to do willfully something which is

contrary to law.

The essential elements of the offense of assault with /

intent to inflict great bodily injury, each of which must be ’

—_—— RAY vex PRESS PAN NENT ET OO EBE NUN STIR ARTE

proved by the government beyond a reasonable doubt, are,

first, that the defendant Keeble, at the time and place

alleged in the indictment, committed an assault or aided

and abetted Alfred Kennedy in committing an assault upon

the person of another, and second, that the same was com-

mitted with the specific intent on the part of the defendant

Keeble to inflict great bodily injury and without justifiable

or excusable cause.

Evidence has been introduced that the defendant made a

certain statement substantially admitting the crime charged

to certain government agents. Before you take into con-

sideration as evidence said statement, you must first find

that before making the statement that first, [325] defendant

was informed he had a right to remain silent, and that any-

thing he said could be used against him ;

And second, that the defendant was informed he had a

right to have counsel present at the interview;

And third, that the defendant was informed if he could

not afford counsel, counsel would be furnished him without

cost.

If no counsel was present at the time the alleged state-

ment was made by the defendant, the government must

prove to your satisfaction beyond a reasonable doubt that

the defendant intelligently and understandingly waived the

right to have counsel present at the interview.

In addition to making the foregoing findings before

you take into consideration the alleged statement in evi-

dence, you must also find that the statement was voluntary,

in accordance with the next instruction which I will now

give you.

With respect to any statements, oral or written, in the

nature of an admission or confession, the jury must weigh

such statements with caution, and scrutinize the circum-

stances surrounding them to determine whether they were

made freely and voluntarily. If the jury finds that such

statement was made freely and voluntarily by the defend-

dant, with knowledge of the nature of such statements or

statement, and without fear or coercion, either physical

[326] or psychological, or promise of reward, the jury may

consider this statement, together with all the other evi-

dence, in determining the innocence or guilt of the defend-

ant.

— ;

However, if the jury finds that the statement was not

made freely and voluntarily by the defendant, the jury

should disregard the statement entirely. Of course you

can always consider the other evidence even if you dis-

regard the statement.

The rules of evidence ordinarily do not permit witnesses

to testify as to opinions or conclusions. An exception to

this rule exists as to those whom we call ‘‘expert wit-

nesses.’’ And I’m thinking now of Dr. Vose. Witnesses who,

by education and experience, have become expert in some

art, science, profession, or calling, may state an opinion as

to relevant and material matter, in which they profess to be

expert, and may also state their reasons for the opinion.

You should consider each expert opinion received in

evidence in this case, and give it such weight as you may

think it deserves. If you should decide that the opinion of

an expert witness is not based upon sufficient education and

experience, or if you should conclude that the reasons given

in support of the opinion are not sound, you may reject the

opinion entirely.

[327] Now, the law presumes a defendant to be innocent

uf crime. Thus a defendant, although accused, begins the

trial with a ‘‘clean slate’’—with no evidence against him.

And the law permits nothing but legal evidence presented

before the jury to be considered in support of any charge

against the accused. So the presumption of innocence alone

is sufficient to acquit a defendant, unless the jurors are

satisfied beyond a reasonable doubt of the defendant’s

guilt from all the evidence in the case.

Now, the burden of proving a defendant guilty beyond a

reasonable doubt rests upon the government. This burden

never shifts throughout the trial. If the government fails to

prove the defendant guilty beyond a reasonable doubt, the

jury must acquit him.

Now, a reasonable doubt is a fair doubt, based upon rea-

son and common sense, and arising from the state of the

evidence. It is rarely possible to prove anything to an

absolute certainty. Proof beyond a reasonable doubt is such

as you would be willing to rely and act upon in the most

important of your own affairs. A defendant is never to be

convicted on mere suspicion or conjecture.

A reasonable doubt may arise not only from the evi-

f % OTP. RED BRII ES . — « —

EAT ERLE ET RI PREIS PEs HRI eee RS UST ROS TA SSO © Wee

dence produced, but also from a lack of evidence. Since the

burden is always upon the prosecution to prove the accused

guilty beyond a reasonable doubt of every [328] essential

element of the crime charged, a defendant has the right to

rely upon failure of the prosecution to establish such proof.

A defendant may also rely upon evidence brought out on

cross examination of witnesses for the prosecution.

A reasonable doubt exists in any case when, after careful

and impartial consideration of all the evidence in the case,

the jurors do not feel convinced to a moral certainty that a

defendant is guilty of the charge.

If two conclusions can reasonably be drawn from the evi-

dence, one of innocence and one of guilt, the jury should

adopt the one of innocence.

An indictment is but a formal method of accusing a de-

fendant of a crime. It is not evidence of any kind against

the accused, and does not create any presumption or permit

any inference of guilt.

There are two types of evidence from which a jury may

properly find a defendant guilty of a crime. One is direct

evidence, such as the testimony of an eyewitness. The other

is circumstantial evidence—the proof of a chain of cir-

cumstances pointing to the commission of the offense.

As a general rule, the law makes no distinction between

direct and circumstantial evidence, but simply requires that,

before convicting a defendant, the jury must [329] be satis-

fied of the defendant’s guilt beyond a reasonable doubt from

all the evidence in the case.

Statements and arguments of counsel are not evidence

in the case unless made as an admission or stipulation of

fact.

Unless you are otherwise instructed, the evidence in the

case always consists of the sworn testimony of the wit-

nesses, regardless of who may have called them, and all

exhibits received in evidence, regardless of who may have

produced them, and all applicable presumptions stated in

these instructions.

Any evidence as to which an objection was sustained by

the Court, and any evidence ordered stricken by the Court,

must be entirely disregarded.

_ Anything you may have seen or heard outside the court-

room, and any evidence to which an objection was sus-

tained, must be entirely disregarded.

You are to consider only the evidence in the case. But

in your consideration of the evidence, you are not limited

to the bald statements of the witnesses. In other words,

you are not limited solely to what you see and hear as the

witnesses testify. On the contrary, you are permitted to

draw, from facts which you find have been proved, such

reasonable inferences as seem justified in the light of your

own experience.

[330] You, as jurors, are the sole judges of the credibility

of the witnesses and the weight their testimony deserves.

You should carefully scrutinize all the testimony given,

the circumstances under which each witness has testified,

and every matter in evidence which tends to indicate

whether a witness is worthy of belief. Consider each wit-

ness’ intelligence, motive and state of mind, and demeanor

and manner while on the stand. Consider also any relation

each witness may bear to either side of the case; the man-

ner in which each witness might be affected by the verdict ;

and the extent to which, if at all, cach witness is either sup-

ported or contradicted by other evidence in the case.

Inconsistencies or discrepancies in the testimony of a wit-

ness, or between the testimony of different witnesses, may

or may not cause the jury to discredit such testimony. Two

or more persons witnessing an incident or a transaction

may see or hear it differently ; and innocent misrecollection,

like failure of recollection, is not an uncommon experience.

In weighing the effect of a discrepancy, always consider

whether it pertains to a matter of importance or an unim-

portant detail, and whether the discrepancy results from

innocent error or intentional falsehood.

[331] After making your own judgment, you will give

the testimony of each witness such credibility, if any, as

you may think it deserves.

A witness may be discredited or impeached by contra-

dictory evidence; or by evidence that at some other time

the witness has said or done something, or has failed to

say or do something, which is inconsistent with the witness’

present testimony.

If you believe any witness has been impeached and thus

discredited, it is your exclusive province to give the testi-

mony of that witness such credibility, if any, as you may

think it deserves.

If a witness is shown knowingly to have testified falsely

Nae ee Fee Tey ie eS Sete ey a aes ° Pen ae

# PRS EAT

CRG EAI ELE ERA IS

concerning any material matter, you have a right to dis-

trust such witness’ testimony in other particulars; and you

may reject all the testimony of that witness or give it such

credibility as you may think it deserves.

It is the duty of attorneys on each side of a case to object

when the other side offers testimony or other evidence

which the attorney believes is not properly admissible.

Upon allowing testimony or other evidence to be intro-

duced over the objection of an attorney, the Court does not,

unless expressly stated, indicate any opinion as to the

weight or effect of such evidence. As stated [332] before,

the jurors are the sole judges of the credibility of all wit-

nesses and the weight and effect of all evidence.

The verdict must represent the considered judgment of

each juror. In order to return a verdict, it is necessary that

each juror agree thereto. Your verdict must be unanimous.

It is your duty, as jurors, to consult with one another

and to deliberate with a view to reaching an agreement, if

you can do so without violence to individual judgment.

Each of you must decide the case for yourself, but do so

only after an impartial consideration of the evidence with

your fellow jurors. In the course of your deliberations, do

not Mesitate to reexamine your own views and change your

opi if convinced it is erroneous. But do not surrender

your honest conviction as to the weight or effect of evi-

dence solely because of the opinion of your fellow jurors,

or for the mere purpose of returning a verdict.

You are not partisans. You are judges—judges of the

facts. Your sole interest is to ascertain the truth from the

evidence in the case.

It is proper to add the caution that nothing said in these

instructions—nothing in any form of verdict prepared for

your convenience—is to suggest or convey in any way or

manner any intimation as to what verdict I [333] think you

should find. What the verdict shall be is the sole and exclu-

sive duty and responsibility of the jury.

Upon retiring to the jury room, you will select one of

your number to act as your foreman. The foreman will pre-

side over your deliberations, and will be your spokesman

here in court.

Only one form of verdict has been prepared for your

convenience. It reads as follows: We, the Jury, find thé de-

fendant, Francis Ambrose Keeble, —and then there 3 a

wan

blank space—of assault with intent to inflict great bodily

injury, as charged in the Indictment. When you have unani-

mously agreed, your foreman will write in the word either

‘‘Guilty’’ or ‘‘Not Guilty’’ in the blank space, and then

sign and date the verdict.

The punishment provided by law for the offense charged

in the indictment is a matter exclusively within the province

of the Court, and should never be considered by the jury in

any way, in arriving at an impartial verdict as to the guilt

or innocence of the accused.

If it becomes necessary during your deliberations to

communicate with the Court, you may send a note by the

Marshal, and never attempt to communicate with the Court

except in writing. And bear in mind always that you are

not to reveal to the Court or any person how the jury

stands, numerically or otherwise, on the question of the

[334] guilt or innocence of the defendant, until after you

have reached a unanimous verdict.

I’l] ask counsel to aproach the Bench, please.

(Respective counsel then aproached the Bench, and the

following record was made :)

Tue Covrr: I’ll inquire of counsel for the government if

he has any objections to the instructions.

Mr. Hurp: The government has no objections and takes

no exceptions to the Court’s instructions.

Tue Court: I’ll inquire of counsel for the defendant if

he has any objections to the instructions.

Mr. MererHenry: No objections to the instructions as

given, but does object to the fact that there isn’t an instruc-

tion on simple asault.

Tue Court: The Court takes into consideration in ruling

on that objection that Section 1153 of Title 18 of the United

States Code, which lists the ten, now thirteen, major

crimes in Indian country, does not include the crime of

simple assault; and that therefore this court has no juris-

diction over the crime of simple assault, that being a matter

for the tribe ;‘and therefore, the Court overrules the objec-

tion for failure to instruct on the question of simple assault.

Anything else?

Mr. MererHenry: No.

Tue Court: Very well.

EEL ELE TOG ELKIN SEL SEE DILEESELE, ERNE NIE TE LE EN AEG TS BI I se agree

Unirep States Court OF APPEALS

roR THE EicHTH CIRCUIT

No. 71-1529

Unrrep States oF AMERICA

: Appeal from the

PLAINTIFF-APPELLEE, ted States Dis-

Vv. trict Court for the

Francis A, KEEBLE, gid of South

DEFENDANT-APPELLANT.

Submitted: February 17, 1972.

Filed: April 11, 1972.

Before Brerrensten,* Bricut, and SrepHENsON, Circuit

Judges.

BreEITENSTEIN, Circuit Judge.

Defendant-appellant Keeble was found guilty by a jury

of assault on one Pomani with intent to commit great

bodily injury, in violation of 18 U.S.C. § 1153 and 8.D.C.L.

§ 22-18-12. He was sentenced to five years imprisonment.

Defendant and Pomani were both Indians. The assault

took place on an Indian reservation in South Dakota.

On March 6, 1971, defendant and Pomani had spent some

time drinking and had gone to defendant’s home on the

reservation. A fight between them ensued, When defend-

ant went to bed, Pomani was in the house and conscious.

When defendant awakened, Pomani was not in the house

and his body was found outside. Defendant and his wife

reported the incident to Captain Cruse, an employee of

the Bureau of Indian Affairs and a police officer at the

reservation. A post-mortem revealed that Pomani diced

of exposure.

The first question raised is the admission in evidence

of defendant’s confession. The surrounding circumstances

* Of the Tenth Circuit, sitting by designation.

waa

are these. After defendant reported the incident, Captain

Cruse arrested him for disorderly conduct, a tribal offense,

about 8:30 A.M., March 7, and gave a Miranda warning.

Questioning was not pursued because of defendant’s in-

toxicated condition and nothing pertaining thereto was

received in evidence at the trial. At about 10:30 A.M.

Cruse called Agent Breci of the~gederal Bureau of In-

vestigation and reported Pomani’s* death. Agent Breci

arrived from Sioux Falls, South Dakota, approximately

160 miles away, about noon on March 8. After giving a

Miranda warning, the agent interrogated defendant for

about three hours and received a written statement which

incriminated defendant in the beating of Pomani.

On March 9, defendant was brought before the Tribal

Court and pleaded guilty to the tribal offense. On the same

day Breci swore to a complaint charging defendant with

a federal offense. Defendant was brought before a magis-

trate on March 11. A motion to suppress the statement

given to the FBI agent was denied and the statement was

received in evidence.

A period of about 99 hours elapsed between defendant’s

arrest and his appearance before the magistrate. Rule

5(a), F.R.Crim.P., requires an arresting officer to ‘‘take

the arrested person without unnecessary delay before the

nearest available commissioner or before any other nearby

officer empowered to commit persons charged with offenses

against the laws of the United States.’’ Defendant argues

that 99 hours does not satisfy the ‘‘unnecessary delay’’

requirement and requires the suppression of the statement.

If the time of the arrest be taken as that when Captain

Cruse had probable cause to hold defendant for a federal

offense, about 25% hours elapsed before the beginning of

the FBI interrogation and about 28% hours before the

completion of the defendant’s written statement. About

70 hours later, he was taken before a magistrate. The

delay was apparently ignored by the trial judge who, so

far as we can ascertain from the record, based his denial

of the motion to suppress on the ground that the state-

ment was voluntarily given after a sufficient Miranda

warning.

We must determine whether the defendant’s waiver of

Miranda rights obviates compliance with Rule 5(a) and

ne ONAL OW MIM VISIO FLIP TLY TLE MMS EOI SING 0p A WEDS Mase PT pat eli

the requirements of McNabb v. United States, 318 U.S.

332, and Mallory v. United States, 354 U.S. 449. In Miranda

v. Arizona, 384 U.S. 436, 463, n. 32, the Supreme Court

said that its decision therein does not indicate that the

McNabb-Mallory rules ‘‘can be disregarded.’’ We agree

with Frazier v. United States, D.C.Cir., 419 F.2d 1161,

1166, n. 25, that Mallory does not require exclusion of

an otherwise admissible statement because of brief delay

in obtaining a Miranda waiver. The same principle was

followed in O’Neal v. United States, 5 Cir., 411 F.2d 131,

cert. denied, 396 U.S. 827, and Pettyjohn v. United States,

D.C.Cir., 419 F.2d 651, in each of which there was a short

interval between the arrest and the statement. That is not

the case here and the Miranda warning did not cure the

delay in taking the defendant before a magistrate.

Rule 5(a) applies only to persons arrested and held

under federal law. United States v. Elliott, 8 Cir., 435

F.2d 1013, 1015. The government says that defendant

was arrested for disorderly conduct, a tribal and not federal

offense, and that at the time of the FBI interrogation he

was being lawfully held for the tribal offense. The arresting

officer, Captain Cruse, was a federal employee working for

the Bureau of Indian Affairs. Decisions considering federal

interrogation of a suspect lawfully in state custody are not

pertinent because here defendant at all times was in federal

custody.

Cruse made the arrest under the Code of Indian Tribal

Offenses, 25 C.F.R. § 11.49. The government urges that

Rule 5(a) is inapplicable because the FBI interrogation

occurred while defendant was under lawful detention for

.the tribal offense. See 25 C.F.R. $11.17. In spite of the

arrest for the tribal offense, we believe that no later than

10:30 A.M. on the.7th Cruse had probable cause to arrest

defendant for violation of 18 U.S.C. § 1153, and at that time

the arrest also became one for probable violation of that

section. It is irrelevant whether Cruse made a specific

statement to that effect. Brown v. United States, D.C.Cir.,

365 F.2d 976, 979.

The statement was obtained by an FBI agent who had

15 years experience in working with Indians. We are con-

vinced that the Miranda warning was fully, fairly, and

adequately given and that the execution of the waiver by

eS,

| 19

the defendant was given knowingly and voluntarily. Our

concern is the effect of the delay of more than one day

between the arrest and the statement and of almost three

days between the statement and the appearance before

the magistrate.

This brings us to the Omnibus Crime Control and Safe

Streets Act of 1968, 82 Stat. 197. Title II thereof, 18 U.S.C.

§ 3501, relates to the admissibility of confessions. Sub-

section (a) says that confessions are admissible if volun-

tarily given; that the judge, out of the presence of the jury,

shall determine voluntariness; and that if voluntariness is

found the statement may be received in evidence and con-

sidered by the jury under appropriate conditions and

instructions. ©

Subsection (b) provides that in determining voluntari-

ness, the judge shall take into consideration ‘‘all the cir-

cumstances surrounding the giving of the confession’? in-

cluding five specified items, one of which is the time lapse

between arrest and arraignment if the confession was made

between them. The statute says that the presence or ab-

sence of any of the enumerated factors ‘‘need not be con-

clusive on the issue of voluntariness of the confession.’’

Subsection (c) says that a confession is not made inadmis-

sible solely because of delay in bringing the accused before

a magistrate if (1) the trial judge finds that the confession

was voluntary, (2) the weight to be given the confession is

left to the jury, and (3) the confession was made ‘‘within

six hours immediately following his arrest or other deten-

tion’’ with this proviso:

‘‘That the time limitation contained in this subsec-

tion shall not apply in any case in which the delay in

bringing such person before such magistrate or other

officer beyond such six-hour period is found by the

trial judge to be reasonable considering the means of

transportation and the distance to be traveled to the

nearest available such magistrate or other officer.’’

In the case at bar, the submission of the confession to _

the jury satisfied the requirements of subsection (a). Like-

wise, the factors mentioned in subsection (b), with the

exception of the time lapse between arrest and confession,

were considered by the trial judge in his determination

Boor Y 5 PUSLIINA VOLE BLINN iS NONI LES LT NALA EMAL ION II 8 07 WOOP MUN

that a proper Miranda warning had been given. The trial

judge did not comply with the proviso of subsection (c).

The defendant makes no attack on the constitutionality

of § 3501 and we proceed on the basis that it is constitu-

tional. The pertinent legislative history is given in United

States v. Halbert, 9 Cir., 436 F.2d 1226, 1233-1236, and

need not be repeated here. In Halbert there was more

than a six-hour delay between arrest by state officers and

confession to a federal agent. The trial court suppressed

the confession because the delay was beyond that permitted —

by § 3501(c). On the government’s appeal, the Court of

Appeals reversed. It said (Ibid. at 1231):

‘¢ * * * it is obvious that the prime purpose of Con-

gress‘in the enactment of § 3501 was to ameliorate the

effect of the decision in Mallory v. United States * * *,

to remove delay alone as a cause for rejecting admis-

sion into evidence of a confession and to make the

voluntary character of the confession, the real test of

its admissibility.’’

The court held that a delay of more than six hours before

confession was a factor to be taken into consideration; that

the confession was voluntary; that the delay after the

confession was not pertinent; and that the trial court erred

in suppressing the confession solely because of the delay.

Tbid. at 1237.

Unlike Halbert our situation is not the exclusion of a

confession for the sole\reason of a greater than six-hour

delay. Rather, our problem is the admission of the con-

\_ fession without any consideration of the delay factor.

More pertinent is this circuit’s decision in Grooms v.

United States, 8 Cir., 429 F.2d 839. That had to do with a

greater than six-hour delay between state arrest and federal

interrogation. The prime concern was whether there was a

working arrangement between the state and federal officers.

The court held that there was none. The short reference to

§ 3501(c), Ibid. at 843, says only that it does not broaden

the scope and effect of McNabb, Mallory, and Rule 5(a) or

nullify ‘‘the body of case law which has sanctioned the in-

custody interrogation and the subsequent arraignment that

was followed in this case.’’ Ibid. Our reading of the opinion

convinces us that the reference to ‘‘the body of case law’’

TAREE =:

relates to the problem of working arrangements which is

not present in the instant case. We believe that Grooms

must be confined to the facts then before the court; it did

not eliminate the delay factor from consideration in the

determination of voluntariness.

Bright v. United States, 8 Cir., 274 F.2d 696, concerned

a McNabb-Mallory problem arising before the enactment

of § 3501. The court commented that the basis of applica-

tion of the Mallory exclusion is ‘‘not an abstract measuring

of time * * * but a scrutiny of whether the statement in

its circumstances seems to be the preduct of artificial de-

lay.’’ Ibid. at 697. The court went on to say (Ibid. at 698) :

‘‘Application of the MeNabb rule thus involves a

scrutiny and evaluation by the trial court of whether

the circumstances and incidents of a statement made

by a prisoner, as related to time and opportunity for

taking him before a commissioner, constitute the state-

ment as a product of improper encroachment on his

right to such an appearance.”’

Bright recognizes that delay may be a factor in determin-

ing voluntariness and is relevant to the treatment of delay

within the framework of § 5501. Greoms did not overrule

Bright.

Subsection (¢) of (3501 provides the method for treat-

ment of delay. It complements subsections (a) and (b),

and does not say that a delay of more than six hours makes

the confession automatically inadmissible. After considera-

tion of the delay between arrest and confession, a court may

still find that the confession is voluntary under {§ 3501(b)

and admit it under § 3501(a). See discussion by Professor

Wright in 1 Fed. Pract. & Proc. 74-76. We agree with

Halbert, supra, 436 F.2d at 1237, that post-confession delay

is not pertinent to the determination of voluntariness.

In the case at bar the record shows no consideration by

the trial judge of the delay factor’s effect, if any, upon

the voluntariness of the confession and to. determination

of reasonableness as provided by subsection (¢). In the

circumstances the case must be remanded for consideration

of the delay factor in accordance with § 3301.

Defendant moved to suppress photographs taken of his

home by officers on the morning of his arrest. The motion

Bie s es TRAGER TE TTAB RBS, The NET RAINS EE Nee RURAL a SE Re

was denied and the photographs received in evidence. The

pertinent facts adduced at the hearing on the motion to

suppress are these. Defendant and his wife came to the

home of Captain Cruse early in the morning. Both were

intoxicated. The wife said that defendant had killed her

brother and she knew it because defendant had said that

he did. Cruse arrested defendant for disorderly conduct.

Cruse and two other officers then went to the defendant’s

premises. From the highway they saw a body in a field

and went to it. On examination they found that it was

Pomani, that he was dead, and that he appeared to have

been severely beaten. The body was 57 feet from the house.

One of the officers went to the house, looked in a window,

and observed a state of great disarray and ‘‘blood all over

the floor.’? The door was ajar and no one was home. One

of the officers obtained a camera and pictures were taken

of the condition of the house. .No search warrant had been

obtained. The arrest of the defendant had occurred at Fort

Thompson, some distance away.

The thrust of the defendant’s argument is that the ap-

proach to and entry of the house was an unwarranted search

in violation of the Fourth Amendment and the principles

stated in Collidge v. New Hampshire, 403 U.S. 443. We take

a different view. The officers had been told that a man had

been killed. They went to the premises and found a body

which exhibited severe beating. They then conducted an

investigation of the immediate area which took them to the

side of the house where through the window they saw con-

fusion and blood stains. Their entry through a partly

opened door was incident to the discovery of the body and

practically contemporaneous therewith. The pictures taken

depicted the scene of the crime. We find no Fourth Amend-

ment violation and agree that the pictures were properly

received in evidence.

Defendant’s argument that the trial court should have

instructed the jury on the lesser included offense of simple

assault is foreclosed by Kills Crow v. United States, 8 Cir.,

451 F.2d 323.

The case is remanded to the district court for further

proceedings to determine the voluntariness of the confession

in the light of the requirements of § 3501. After such hear-

ing as may be appropriate, the court shall make its findings

and conclusions and promptly transmit them, with a tran-

script of whatever hearing is held, to this court. This court

retains jurisdiction for all other purposes.

Briout, Circuit Judge, concurring:

I join in Judge Breitenstein’s opinion except for the

treatment of the search and seizure issue. I retain reserva-

tions about the validity of the warrantless search and sci-

zure under Fourth Amendment standards. See United

States v. Goldcenstein, No. 71-1294 (8th Cir., March 23,

1972) ; Root v. Gauper, 438 F.2d 361 (8th Cir. 1971). Never-

theless, I would not reverse this conviction because I find

the error to be harmless beyond a reasonable doubt.

STEPHENSON, Circuit Judge, (dissenting).

I maintain the view expressed in my dissent in Crow v.

United States, 451 F.2d 323, 327 (CA8 1971), that once a

federal court properly acquires jurisdiction over a federal

crime, it possesses jurisdiction over any crime which is

necessarily included therein. For this reason, I would re-

verse on the lesser offense issue. However, I join the ma-

jority in its disposition of the other questions presented by

this case.

Unirep States Court oF APPEALS

FOR THE EiGgHTH CIRCUIT.

No. 71-1529

Unirep States oF AMERICA,

APPELLEE, Appeal from the United

States District Court

Vs. for the District of

Francis A. Kress, South Dakota.

APPELLANT. |

Jupcment—[Filed, Apr. 11, 1972, Robert C. Tucker, Clerk]

This Cause came on to be heard on the original files of

the United States District Court for the District of South

Dakota and briefs filed by the respective parties and was

argued by counsel.

On Consideration Whereof, it is now here ordered and

adjudged by this Court that this cause, be, and is hereby

remanded to the said District Court for further proceedings

consistent with the majority opinion of this Court this day

filed herein.

Aprit 11, 1972

_—

Unitep States District Court

District or SoutH Dakota

CentTRAL Division

CR71-23C

Unitep States or AMERICA,

PLAINTIFF

vs.

Francis A. KEEBLE,

| . DEFENDANT

Memoranpum Decision—May 31, 1972

Messrs. R. D. Hurp and Rosert D. Hrrine, Assistant

United States Attorneys, appeared in behalf of the

plaintiff ;

and

Mr. Mark Merernenry, of Rosebud, South Dakota, ap-

peared in behalf of the defendant.

On April 24, 1972, a hearing on remand of this case was

held pursuant to the order of the Eighth Circuit Court of

Appeals in United States v. Keeble, Criminal No. 71-1529

(8th Cir., April 11, 1972). At the hearing evidence was taken

concerning the effect of the delay between probable cause

for arrest and confession, and the delay between probable

cause for arrest and the arraignment, as the same affects

the voluntariness of the defendant’s confession. Evidence

was also taken concerning the reasonableness of that delay

in light of 18 U.S.C.A. See. 3501(c).

The Court finds that under the provisions of 18 U.S.C.A.

Sec. 3501(c), the delay was not reasonable. Section 3501 (c)

provides that if the delay between ‘‘arrest or other deten-

tion in the custody of any law-enforcement officer or law-

enforcement agency’’ and the ‘‘bringing (of) such person

before a magistrate’’ is more than six hours it can be rea-

sonable only if ‘‘the means of transportation and the dis-

tance to be traveled to the nearest available’? magistrate

are the cause for the delay. Here the nearest United States

Magistrate was 25 to 30 miles from Fort Thompson at

= PISA os SSPE, SAD, EOE, GEER fh UR te NR RA NOC? SO ae Se PLEIN NE RRP a es

Chamberlain. The two towns are connected by a paved

highway making travel by automobile readily accessible.

Upon these facts a delay of 25% hours to 2874 hours between

probable cause for arrest and defendant’s confession was

not reasonable. The lapse of 99 hours between probable

cause for arrest and defendant’s appearance before a magis-

trate also was not reasonable.

The unreasonableness of the lapse of time between arrest

and confession and between arrest and arraignment is not

conclusive on the issue of the voluntariness of a confession,

and this Court finds that from a complete review of the

record herein that defendant’s confession was voluntary.

Keeble knew the nature of the offense of which he was

suspected at the time of making the confession. He knew

and was advised that he did not have to make a statement

and that if he did it could be used against him. He knew

he had a right to an attorney. Defendant was familiar with

the Fort Thompson jail, he was detained in a reasonably

adequate and livable cell, and he was not coerced or threat-

ened. From a totality of the circumstances the Court finds

the confession of Francis A. Keeble to have been voluntarily

given.

Done and entered at Sioux Falls, South Dakota, this

31st day of May, 1972.

By THe Court

/s/ Frepv J. NicHoL

Chief Judge

PRY SO LAE ELEN OLED ELIOT LG GAO PEO

Unitep States Court or APPEALS

For tHE Eicutx Circuit

No. 71-1529

UnitTEeD STATES OF eT ae Appeal from the

J United States Dis-

vs. > trict Court for the

Francis A. KEEBLE, i of South

APPELLANT. | aol

Submitted : February 17, 1972.

Filed: July 27, 1972.

Before BreiTenstTEIN,* BricHt, and STEPHENSON, Circuit

Judges.

Per Curiam.

We remanded this case to the district court for further

proceedings to determine the voluntariness of the con-

fession in the light of the requirements of 18 U.S.C. § 3501.

The trial court conducted an evidentiary hearing and held

that the delay between the probable cause for arrest and

the defendant’s confession was not reasonable; that such

unreasonableness is not conclusive on the issue of the

voluntariness of the confession; that the defendant was

aware of his rights; that he was not coerced or threatened ;

and that from ‘‘a totality of the circumstances’’ the Court

finds the confession to have been voluntarily given. We

have considered the record and agree. In our opinion non-

cofapliance with § 3501(c) does not of itself render the

confession inadmissible. Such non-compliance is a factor,

along with others, which must be given consideration by

the trial court.

Affirmed.

* Of the Tenth Circuit, sitting by designation.

Unrrep States Court or APPEALS

FOR THE EicHTH CIRCUIT

No. 71-1529

Unirep States oF AMERICA,

APPELLEE,

Vs.

Franeis A. KEEBLE,

APPELLANT.

JupGMENT—July 27, 1972

AppeaL FRoM the United States District Court for the

District of South Dakota.

Tus Cause came on to be heard on the record from the

United States District Court for the District of

South Dakota and was argued by counsel.

On ConsIDERATION WHEREOF, it is now here ordered and

adjudged by this Court, that the judgment and sentence of

the said District Court, in this cause, be, and the same is

hereby, affirmed.

REGIE

Supreme Court oF THE Unitep States

No. 72-5323

Francis A. KEeEsie,

PETITIONER,

Unitrep States

On petition for writ of Certiorari to the United States

Circuit Court of Appeals for the Kighth Circuit,

On consideration of the motion for leave to proceed herein

in forma pauperis and of the petition for writ of certiorari,

it is ordered by this Court that the motion to proceed in

forma pauperis be, and the same is hereby, granted; and

that the petition for writ of certiorari be, and the same is

hereby, granted limited to question 2 presented by the peti-

tion which reads as follows:

‘2. Whether the District Court’s refusal to give a

lesser included offense instruction under 18 U.S.C. 1153

violated the Fifth Amendment’s due process guaran-

tee.’’

DeceMBerR 4, 1972

vz U.S. Government Printing Office: 1973—493-328/461

- PETITIONERS

BREF

boss ec v

Phone Th DK, d

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

No. 72-5323

FRANCIS A. KEEBLE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

rine sci x ro a Gy SSE a

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR THE PETITIONER

s®

4 se ¢'

vo” os MARK V. MEIERHENRY

»S S$ 4 Box 227

o* Rosebud, South Dakota 57570

oo Attorney for Petitioner

Washington. OC « THIEL PRESS e@ (202) 393.0625

(i)

TABLE OF CONTENTS

OPINION BELOW ... 1... ccc cc cee ee eee eens ]

JURISDICTION ..w ccc ccc cece eres enves l

QUESTION PRESENTED .........---- +++ ee eeeees 2

STATUTE INVOLVED .......... 2 cece reer eeees 2

STATEMENT <0... eee teeter enes 3

SUMMARY OF ARGUMENT .......-.-.--- ++ esse: 3

ARGUMENT:

I. Jurisdiction Over Crimes Committed Within an

Indian Reservation Is Determined by Federal

Law But the Definition of the Crime Is the

Definition of the State Wherein the Crime

Occurred 1.1... eee Cette 5

A. Congress, Alone, Has the Power To

Determine What Courts Shall Have Juris-

diction Over Crimes Committed Within an

Indian Reservation ..............2082 2 ees 5

B. Following the Crow Dog Decision, Congress

Created the Jurisdictional Pattern by Act of

Congress, March 3, 1885, Which Is Presently

in Force and Under Which the Petitioner

Wee Ted ong ook ce here eee wee eee us 9

C. Although Jurisdiction To Try the Petitioner

Is Federal, the Federal Court Must Look to

State Law To Define the Alleged Crime ......... 13

D. Congress Intended that South Dakota Law

for the Crime Assault with Intent To Do

Bodily Injury Be Used and the State Statute

Should Be Read To Include Lesser Offenses

To Fulfill the Intent of Congress ............. 16

ae rate La = Sn. . ——

a RANE LY PK MPR RET LESS RET CT

amen

MET ee

(ii)

Il. But for the Jurisdictional Question, the Facts of

This Case Are Clear that a Lesser-Included

Offense Instruction Would Be Given as

Requested in Federal Courts .........--0 0005: 17

Ill. The Due Process Clause of the United States

Constitution Is Supreme and Other Enactments

of Statute Must Give Way if in Conflict to the

Individual’s Constitutionally Protected Rights ....... 21

CONCLUSION cc ccc ccc ccc cere c ene e ese cscens 26

TABLE OF AUTHORITIES

Cases:

American Tobacco Company v. Werckmeister, 207

US 204. FESO. TAUI9G7T) oc cess wvessctesgies 17

Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676 (1959). ..... 24

Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773 (1946) ......... 26

Berra v. United States, 351 U.S. 131, 76 S.Ct. 685

(F956) once sc cee sss er eeetenesceeeseecases 18

Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693 (1954) ...... 25

Ex Parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396 (1883)... . 7, 8,9

Ex Parte Gon-Shay-Ee, 130 U.S. 343, 9 S.Ct. 542

( .) ee ee ee ee 12, 24

Kills Crow v. United States, 451 F.2d 323 (8th Cir.,

1971) cert. denied, 405 US.999 .........-- 22, 23, 24, 25

Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781

(Sic 22

McCall v. United States, 1 Dak. 320, 46 NW 608

(Terr. Dak. 1876) 20... cee eee ee eee eens l

Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149

(AU) ee ee ere re 22

People v. Odell, 1 Dak. 197, 46 NW 601 (Terr. Dak.

(iii)

Rochin v. California, 342 U.S. 165, 72 S.Ct. 205

N98 ore oo ee ee es is eee wes 22

Sansome v. United States, 380 U.S. 343, 85 S.Ct.

1004 (1965) ... 2.2... 0.2.2 ee eee eee 18,19

Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330

CTGFRD oak ee ashes ewes Ee ERs hee eee 22

Stevenson v. United States, 162 U.S. 313, 16 S.Ct.

Bao CLG9O). ove oo eee ee eee Eee wee eee es 18

United States v. Bramblett, 348 U.S. 503, 75 S.Ct.

504 (1955) ......... eee Spee eee eee ene saees 17

United States v. Campos-Serrano, 430 F.2d 173 (7th

‘Cir., 1970), 92 S.Ct. 471 (1971) .. 2.2.0.2... 0..2008.. 16

United States v. Celestine, 215 U.S. 278, 30 S.Ct. 93

OUP ok ee ie ee ee ee ee ee oe 26

United States v. Comer, 421 F.2d 1149 (D.C. Cir.

PO) oa ee ee ee ee ee eee ees eee 18, 21

United States v. Crow Dog, 3 Dak. 196, 14 NW 437

C1GR2E 6 eee a eh eee ae on os ee eRe 4b esas ORES 6,7

United States v. Huff, 442 F.2d 885 (D.C. Cir.1971) ...... 18

United States v. Kagma, 118 U.S. 375, 6 S.Ct. 1109

(1886) .......... Oi S68 oe eee ER Re een ee 11

United States v. Keeble, 459 F.2d 757 (8th Cir.

Fie) eee eee hee eeG She ee ae dee eee e eee 24

United States ex rel O’Connor v. State of New Jersey,

405 F.2d 632 (3rd Cir., 1969), cert. denied Yeager

v. O’Connor, 395 U.S. 923, 89 S.Ct. 1770 (1969) ...... 21

United States v. Rider, 282 F.2d 476 (9th Cir. 1960) ...... 15

United States v. Sinclair, 444 F.2d 888 (D.C. Cir.

| a a a a er 18

United States v. Whitaker, 447 F.2d 314 (D.C. Cir.

1971) Eve e440 es Oboe ee eee wee ee ey eee 18,19

Walker v. United States, 418 F.2d 1116 (D.C. Cir.

P9GG) eee oe eee EGG Keo oe ed Oey vee eu ees 18

ee SEERSO WT RRA FEO RE RE eas Tey ea RRQ cers Pe RN -

(iv)

Westmoreland v. United States, 155 U.S. 545, 15

S.Ct. 243 (1894) 2... ee eee eee eee 26

United States Statutes:

Treaty of April 29, 1868, 15 Stat. <1 eae 8

Treaty of February 24, 1869, 15 Stat.635 ......-.---- 6

Act of Congress, June 1, 1872, 17 Stat. ee ee oe 18

Act of Congress, February 28, 1877, 19 Stat.254 ....... 8

Act of Congress, March 3, 1885, 23 CO ae |}, or 11

Criminal Code:

USO. 9153. oc oe ese oa econ seen es passim

(USC. 3G) one ck hee wns eee ee es 11,14, 21, 25

Miscellaneous:

Congressional Record, House, 1885,p.935 .....---+-- 10

South Dakota Complied Laws, 1967, 22-18-12 ...... 13, 20

South Dakota Complied Laws, 1967, 23-45-23 ....----- 16

United States Code and Administrative News, 1966 .. . 14, 15

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

No. 72-5323

. FRANCIS A. KEEBLE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR THE PETITIONER

OPINION BELOW

The opinion of the Court of Appeals for the Eighth

Circuit (App. 16) is reported at 459 F.2d 757.

JURISDICTION

The judgment of the Court of Appeals for the Eighth

Circuit was entered on July 27, 1972. The petition for a

rect ereara a .

a a ee a a an Cee ae ame

2 .

writ of certiorari was placed on the docket August. 28,

1972. A writ of certiorari was granted on December 4,

1972. The jurisdiction is founded upon 28 U.S.C.

1254(1).

QUESTION PRESENTED

Whether the District Court’s refusal to give a lesser

included offense instruction under 18 U.S.C. 1153

violated the Fifth Amendment’s due process guarantee.

STATUTE INVOLVED

18 U.S.C. 1153 as amended April 11,.1968, Public

Law 90-284, Title V, Section 501, 82 Stat. 80, provides:

OFFENSES COMMITTED WITHIN

INDIAN COUNTRY

Any Indian who commits against the person or

property of another Indian or other person any of

the following offenses, namely, murder, man-

slaughter, rape, carnal knowledge of any female, not

his wife, who has not attained the age of sixteen

years, assault with intent to commit rape, incest,

assault with intent to kill, assault with a dangerous

weapon, assault resulting in serious bodily injury,

arson, burglary, robbery, and larceny within the

Indian country, shall be subject to the same laws

and penalties as all other persons committing any of

the above offenses, within the exclusive jurisdiction

of the United States.

As used in this section, the offenses of rape and

assault with intent to commit rape shall be defined

in accordance with the laws of the State in which

the offense was committed, and any Indian “who

commits the offenses of rape or assault with intent

to commit rape upon any female Indian within the

Indian country shall be imprisoned at the discretion

of the court.

As used in this section, the offenses of burglary,

assault with a dangerous weapon, assault resulting in

serious bodily injury, and incest shall be defined and

punished in accordance with the laws of the State in

which such offense was committed.

STATEMENT

On May 21, 1971, petitioner was found guilty of 18

U.S.C. 1153, assault with intent to inflict great bodily

harm, upon Robert Pomani. The crime occurred on the

_Crow Creek Indian Reservation in South Dakota. The

petitioner appealed the conviction to the Eighth Circuit

Court of Appeals which after remanding the case to the

district court for an evidentiary hearing, affirmed.

(App. 27).

The Petitioner contended at trial and on appeal that

he should have been given a lesser-included offense

instruction of assault, Both the district and circuit court

denied the lesser-included instruction on jurisdictional ©

grounds.

SUMMARY ARGUMENT

Petitioner, an American Indian, was tried under a

unique jurisdictional statute. The statute vests in federal

courts jurisdiction over thirteen crimes committed by an

Indian upon an Indian Reservation. The specific crime

under which the petitioner was charged is defined by

state law under this unique federal statute. Under state

law and Rule 31(c) of the Federal Rules of Criminal

Procedure, petitioner should have been given a lesser-

included offense instruction at trial. The lower court

denied petitioner’s request on the grounds that federal

courts have jurisdiction over the major crimes but are

without jurisdiction over the lesser offenses. Thus, no

lesser-included offense instruction can be given to the

jury.

Petitioner contends that the Due Process Clause of the

United States Constitution is violated by the lower

court’s refusal to instruct on lesser offenses. First, the

petitioner contends that the intent of Congress was to

have Indians tried in the same manner as all others in

federal courts. In refusing to instruct, the lower courts

have misconstrued the intent of Congress for trial of

Indian people. :

If the petitioner’s contention that Congress intended

to have lesser-included instructions is incorrect, petitioner

urges this Court to find 18 U.S.C. 1153 as applied

violates the Due Process Clause of the Fifth Amendment.

Whatever may be the historical relationship of the

Federal Government and Indian tribes, the petitioner as a

citizen is protected by the Constitution and should be

tried as an equal to other citizens in Federal Courts.

The result of the jurisdictional scheme of Congress is

to provide Indian persons committing certain crimes

upon Indian reservations less than the full protection of

the law. This Indian petitioner contends that when tried

for a crime against the United States he must be tried in

the same manner as all other persons. If under the federal

statutes, he cannot be tried in the same manner; the

protection of the Fifth Amendment’s Due Process Clause

must strike a conviction under those statutes.

ARGUMENT

JURISDICTION OVER CRIMES COMMITTED WITH-

IN AN INDIAN RESERVATION IS DETERMINED

BY FEDERAL LAW BUT THE DEFINITION OF THE

CRIME IS THE DEFINITION OF THE STATE

WHEREIN THE CRIME OCCURRED.

A. Congress, Alone Has the Power To Determine

what Courts Shall Have Jurisdiction Over Crimes

Committed Within an Indian Reservation.

On October 18, 1876, Jack McCall was “indicted on

the federal side of the district court for the murder of

William Hickok, alias ‘Wild Bill’.” The indictment charges

that the offense was committed in the Sioux Indian

Reservation at a place in said reservation called “‘Dead-

wood.” McCall v. United States, 1 Dak. 320, 46 N.W. 608

(Terr. of Dak. 1876). Jack McCall was found guilty of

shooting “Wild Bill” and was sentenced to death by

hanging on January 3, 1877. McCall on appeal contended

that he should have been tried in the territorial side of

the court rather than in the federal side of the territorial

court. The Supreme Court of Dakota Territory answered

Jack at page 613, “[a]s to the objection that the

defendant should have been indicted and tried on the

other side of the court, it is well settled that a trial for

homicide committed in an Indian Reserve must be on the

federal side of the territorial court, and is governed by

United States Statutes and the rules of common law.”

Six years later the Supreme Court of Dakota Territory

heard another defendant who like Jack McCall objected

to the jurisdiction of the trial court but on different

PEE a PI IES LON ILS MOE EER SEIDEL LILLE ELIE LL LE IR LI IE TPIT

grounds, Crow Dog’s (in Lakota, Kan-Gi-Shun-Ca) con-

tention was that neither the territorial side nor the

federal side of the Dakota Court had jurisdiction over

him for the crime of murder.

Crow Dog was found to have killed Chief Spotted Tail

near Rosebud on the Great Sioux Reservation in August

of 1881. It is ironic that the Supreme Court of Dakota

Territory cited a treaty signed by Spotted Tail to vest

jurisdiction over his murderer Crow Dog. The Court

found that the Treaty proclaimed February 24, 1869 (15

St. 635) provided: fc

“if bad men among the Indians shall commit a wrong

or depredation upon the person or property of

anyone, white, black, or Indian, subject to the

authority of the United States, and at peace

therewith, the Indians herein named solemnly agree

that they will, upon proof made to their agent and

notice by him, deliver up the wrong doer to the

United States, to be tried and punished according to

its laws” United States v. Crow Dog, 3 Dak. 196, 14

N.W. 437 (1882).

Prior to this treaty the Court found that there was no

jurisdiction. The Court explained:

“the act of Congress (Rev. St. 2145) extending the

crimes act to the Indian Country contains in section

2146 these exceptions: It shall not extend to crimes

committed by one Indian against the person or

property of another Indian, nor to any Indian

committing any offense in the Indian Country who

has been punished by the local law of the Tribe, or

to any case where by treaty stipulation the exclusive

jurisdiction over such offense is or may be secured

to the Indian Tribes respectively” United States v.

Crow Dog, supra, 14 N.W. at 437.

————

The Dakota Court found that the treaty was the

equivalent of an Act of Congress. The treaty therefore

operated to repeal the exception of Rev. Stat. 2145 and

applied the general rule to the Brule Sioux of which Crow

Dog was one. The Dakota Court held:

“The exception of Indians committing crimes against

other Indians is general. This treaty and agreement

takes these Indians out of such exception, and

applies to them the general rule. Any other view

would deny them the right guaranteed by solemn

treaty, and would make the covenant of the

government a mockery”. United States v. Crow Dog,

supra, 14 N.W. at 438.

Crow Dog also objected to instructions on burden of

proof. The trial judge’s charge to the jury was held

proper. The Supreme Court of Dakota Territory found

the proper charge to be: “if they had a reasonable doubt

of which of the two degrees of criminal homicide he was

guilty they must give him the benefit of such doubt, and

convict, if at all, of the lesser, to-wit, manslaughter.”

United States v. Crow Dog, supra, 14 N.W. at 440.

Unlike Jack McCall, Crow Dog’s case did not end with

the Supreme Court of Dakota Territory. The Supreme

Court of the United States overruled the Dakota Court in

Ex Parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396 (1883).

Justice Matthews first explained the territorial court

structure:

“In the present case the Sioux Reservation is within

the geographical limits of the Territory of Dakota,

and being excepted out of it only in respect to the

territorial government the district court of that

territory within the geographical boundaries of

whose district it lies, may exercise jurisdiction under

the laws of the United States over offenses made

punishable by them, committed within its limits.

[excluding authority] The district court has two

distinct jurisdictions. As a territorial court it admin-

isters the local law of the territorial government; as

invested by act of Congress with jurisdiction to

administer the laws of the United States, it has all

the authority of circuit and district courts, so that,

in the former character, it may try a prisoner for

murder committed in the territory proper, under the

local law, which requires the jury to determine

whether the punishment shall be death or imprison-

ment for life; (laws Dak. 1883, c. 9;) and, in the

other character, try another for a murder committed

within the Indian Reservation, under a law of the

United States, which imposes, in case of conviction,

the penalty of death.” Ex Parte Crow Dog, 109 U.S.

at 600, 3 S.Ct. at 398 (1883)

The Supreme Court found that the offenses occurred

within Indian Country and that the United States had

jurisdiction under Section 2145, Rev. St., generally.

Noting that Section 2146, Rev. St., excepted Indian

persons from Section 2145, Rev. St., the Court stated the

issue to be decided: “The argument in support of the

jurisdiction and conviction is, that the exception con-

tained in section 2146, Rev. St., is repealed by the

operation and legal effect of the treaty with the different

tribes of the Sioux Indians of April 29, 1868, (15 Stat.

635;) and an Act of Congress, approved February 28,

1877, 19 St. 254,” Ex Parte Crow Dog, 109 U.S. at 562;

3 S.Ct. at 400.

In overruling the Supreme Court of Dakota Territory,

the exception (Section 2146, Rev. St.) being “‘special and

express” and the words of the treaty “relied on as a

repeal are general and inconclusive” the court found that

the statute was still valid. Since a general act is not to be

construed to repeal a previous particular act, the United

States had no jurisdiction over Crow Dog. Ex-Parte Crow

Dog, 109 U.S. at 570, 571, 3 S.Ct. at 405.

As of December 17, 1883, the law in Dakota was

settled. Non-Indian persons committing any crimes in

Indian Country made unlawful by Congress were to be

tried on the federal side of the territorial court. Crimes

committed within Indian Reservations by one Indian

upon another were for the tribe’s disposition.

B. Following the Crow Dog Decision, Congress

Created the Jurisdictional Pattern by Act of

Congress, March 3, 1885, Which Is Presently in

Force and Under Which the Petitioner Was

Tried.

Congress was besieged with demands for legislation

that would eliminate the exception of Section 2146, Rev.

St. The Secretary of the Interior in his annual report of

1884 requested legislation. During debate in the House of

Representatives Congressman Cutcheon quoted from the

Secretary’s report:

I again desire to call attention to the necessity for

legislation for punishment of crimes on the Indian

Reservation. Since my last report, the Supreme

Court of the United States decided in the case of

‘Ex Parte Crow Dog,’ indicted for murder, that the

district court of Dakota was without jurisdiction,

when the crime was committed on the reservation

gby one Indian against another. If offenses of this

character can not be tried in the courts of the

United States there is no tribunal in which the crime

of murder can be punished. Minor offenses may be

punished through the agency of the ‘court of Indian

offenses’ but it will hardly do to leave the punish-

————— a ht a ie Lath POS Ie Oe LOM ELI LOLS EE TT PURGE Es ELST OT ODS RD Re 8a yp No Deleted ce

ment of the crime of murder to a tribunal that exists

only by the consent of the Indians on the reserva-

tion. If the murder is left to be punished according

to the old Indian custom, it becomes the duty of the

next of kin to avenge the death of his relative by

either killing the murderer or some of his kinsmen—

the laws of the State or territory wherein the

reservation is situated ought to be extended over the

reservation and the Indians should be compelled to

obey such laws and be allowed to proclaim the

protection thereof. Congressional Record—House

p. 935, 1885.

Congress acted upon the request of the dene of

the Interior. Congress by amendment to the Indian

Appropriation Bill Act, Congress March 3, 1885, added

c. 341 section 9 which read:

That immediately upon and after the date of the

passage of this act all Indians committing against the

person or property of another Indian or other

person any of the following crimes, namely, murder,

mafslaughter, rape, assault with intent to kill, arson,

burglary, and larceny, within any territory of the

United States, and either within or without the

Indian Reservation, shall be subject therefor to the *®

laws of said territory relating to said crimes, and

shall be therefore in the same courts, and in the

same manner, and shall be subject to the same

penalties, as are all other persons charged with the

commission of the said crimes respectively; and said

courts are hereby given jurisdiction in all such cases;

and all such Indians committing any of the above

described crimes against the person or property of

another Indian or other person, within the bound-

aries of any state of the United States, and within

the limits of any Indian Reservation, shall be subject

to the same laws, tried in the same courts, and in the

same manner, and subject to the same penalties, as

are all other persons committing any of the above

crimes within the exclusive jurisdiction of the

United States. 23 Stat. 385.

This act was held to be constitutional in United States

v. Kagma, 118 U.S. 375, 6 S.Ct. 1109 (1886). This act is

the origin of 18 U.S.C. 1153, as amended, and of 18

U.S.C. 3242, as amended. This act of 1885 was novel in

two important jurisdiction features. First, the act asserted

jurisdiction over Indians within states of the Union if on

Indian Reservations. Secondly, it subjected Indians to

trial in the territorial side of the territorial courts. In

Dakota Territory as of March 3, 1885, an Indian

committing the seven crimes enumerated would be tried

on the territorial side under the laws of Dakota.

Thus if Crow Dog had committed the same acts for

which he stood trial prior, he would, after March 3, 1885,

have been indicted in the territorial side of the Dakota

Court and would have been tried by the laws of Dakota.

The jurisdictional scheme remained until South Dakota

became a state of the union in 1889. Upon statehood, the

jurisdictional scheme as it now exists was created.

Prior to March 3, 1885, the law of the Tribe was the

supreme authority over acts considered criminal under

the Common Law within Indian Reservation. The change

to the Indian person in Dakota territory was therefore

immense. The Supreme Court of the United States’ view

of the purpose of the act: “...is very clearly a

continuation of the policy upon which congress entered

several years previously, of attempting, so far as possible,

and consistext with justice and existing obligations, to

reduce the Indians to individual subjection to the laws of

the country, and dispense with their tribal relations.” Ex

EEE

PERALTA AOR IER MRR ARE) OAS tg Le IRND IRE SEO T

[A tas we at at ee ee ee ee

"eT

Parte Gon-Shay-ee, 130 U.S. 343, 350, 9 S.Ct. 542, 544

(1889).

The case of Ex Parte Gon-Shay-ee fully explains the

purpose of the March 3, 1885 Act. The petitioner in that

case contended that he should not have been tried on the

federal side of the Territory of Arizona’s courts. The

Supreme Court agreed stating through Justice Miller.:

The framers of this act were very careful, ...

where the offense was committed within the

territorial limits of a state, to declare that a violation

of the laws of the United States in regard to these

crimes of murder, etc., should be tried in the Courts

exercising the jurisdiction of the United States to

punish offenses against the United States. With

regard to the territories, however, it is different. The

declaration is that Indians shall be tried by the

courts of the territory, and according to its laws,

and shall be subject to the penalties which those

laws prescribe. They are to be tried in the same

manner and in the same courts as are all other

persons charged with the commission of said crimes,

respectively, and the said courts are given jurisdic-

tion in all such cases. Ex Parte Gon-Shay-ee, supra,

U.S. at 352, S.Ct. at 545.

During the period after March 3, 1885 that Dakota

remained a territory, the laws of Dakota in all respects

governed the trial of Indians for the ““7 Major Crimes.” If

an Indian person were indicted for “assault with intent to.

kill,” he must be tried in the “‘same manner’ as all other

persons. He would have been given a lesser included

offense instruction.

All Indian persons after South Dakota’s statehood in

1889 who committed crimes within the boundaries of an

Indian Reservation within the State were to be tried by

the Federal Courts.

The petitioner, Francis Keeble, was tried in Federal

Court under the Federal Rules of Criminal Procedure. He

requested a lesser-included-offense instruction and it was

denied. (T.p. 334; App. p. 15).

C. Although Jurisdiction To Try the Petitioner Is

Federal, the Federal Court Must Look to State

Law To Define the Alleged Crime.

The petitioner was charged by indictment which in

part read that he was “‘in violation of 18 U.S.C. 1153 and

South Dakota: Complied Laws 22-18-12.’ Congress has

expanded the original ““7 Major Crimes” to “13 Major

Crimes.” The original seven are defined and punished

under federal statutes. The additional six obtain their

definition and punishment from the law of the State

wherein the crime occurred. The punishment of two of

the later six, rape and assault with intent to commit rape,

is governed by 18 U.S.C. §1153 but the definition of

crime is that of the state.

The petitioner is, therefore, charged as follows under

the pertinent statutes in the indictment:

18 U.S.C. 1153: “Any Indian who commits against ©

the person...of another Indian or other per-

son . . . assault resulting in serious bodily injury .. .

within the Indian Country, shall be subject to the

same laws and penalties as all other persons com-

mitting any of the above offenses, within the

exclusive jurisdiction of the United States.

As used in this section . . . assault resulting in serious

bodily injury ... shall be defined and punished in

accordance with the laws of the State in which such

offense was committed.”

S.D.C.L., 1967, 22-18-12: ‘Whoever assaults- an-

other with intent to inflict great bodily injury shall

be punished upon conviction thereof, by imprison-

ment in the state penitentiary for not less than one

year nor more than five years, or in the county jail

not exceeding one year, or by fine not exceeding

$500, or both such fine and imprisonment.”

The crime of “assault resulting in serious bodily

injury” was added to section 18 U.S.C. 1153 by Act of

Congress April 11, 1968, 82 Stat. 73.. Title V “Offenses

Within Indian Country.” reads as follows:

Section 501 Section 1153 of Title 18 of the United

States Code is amended by inserting immediately

after “weapon,” the following; “assault resulting in

serious bodily injury.”

It should be noted that 18 U.S.C. 3242 was not

amended. 18 U.S.C. 3242 was last amended by an Act of

Congress, November 2, 1966, 80 Stat. 1100. It now

includes all the offenses save the one petitioner is charged

with in the indictment. The petitioner would contend

that Congress in error did not amend 18 U.S.C. 3242 in

1968 when the additional offense was added. Each of the

other twelve offenses being contained in 18 U.S.C. 3242

as amended and the last crime added being excluded it is

clear that this was due to oversight and not intent.

The intent of Congress as to the importance of

defining the crime in language of state statutes is best

illustrated in the Senate Report which accompanied

passage of the 1966 amendments. U.S. Cong. and Admin.

News, 1966, p.3653. In that report, Congress noted that

the Courts had limited the scope of rape to its common

law meaning thereby excluding carnal knowledge. The

report states:

“(t]he courts in construing these provisions (18

U.S.C. 1153) have held in a line of decisions that,

(

notwithstanding the fact that the statute states that

the offense of rape is to be defined in accordance

with the laws of the state, the section is to be

interpreted as limiting the scope of the offense to its

common law meaning” U.S. Code and Admin.

News, 1966, p. 3655.

The report then noted the decision in United States v.

Rider, 282 F.2d 476 (9th Cir. 1960), in which the Court

found that a “literal application of the statute”’ limited

federal jurisdiction to the common law definition of rape.

The bill was intended to “clarify the law in several areas

of criminal justice and thereby provide for a more logical

and fair administration of criminal justice....” U-S.

Code and Admin. News, 1966, 3656.

Congress reacted by including the offense of carnal

knowledge. Congress’ intent is clear from this report that

crimes are to be defined according to state law. Further,

that the crime need not be mentioned in 18 U.S.C. 1153

if the state definition encompasses the other offenses

under the general terminology. Since assault with intent

to do bodily injury “ex necessitate’ includes assault in

South Dakota, Congress intended that Federal Courts

. have jurisdiction over this crime as well. People v. Odell,

1 Dak. 197, 46 NW 601, 602. The Law of Dakota has

been clear since the Supreme Court of Dakota Territory

declared in 1875: 4

It therefore seems to be the settled law that a

defendant tried on indictment for assault and

battery with intent to kill, may be convicted ‘ieee

of the crime charged or of an assault and battery

with intent to do bodily harm, or for a simple

assault. People v. Odell, 1 Dak. 197, 46 N.W. 601,

603 (1875).

The Dakota Court in this case of first instance further

stated:

That the man who commits the crime of assault

and battery with intent to kill, ex necessitate has

* also committed the lesser offense of an assault and

battery, and an assault with intent to do bodily

harm, and when charged with the higher might be

convicted of either of the lower, Section 402 of the

Code of Criminal Procedure [Now S.D.C.L., 1967,

23-45-23] provides that “the jury may find the

defendant guilty of any offense, the commission of

which is necessarily included in that with which

he is charged in the indictment, or of any attempt to

commit the offense. People v. Odell, supra, 46 N.W.

at 602. :

D. Congress Intended that South Dakota Law for

the Crime Assault with Intent To Do Great

Bodily Injury Be Used and the State Statute

Should Be Read To Include Lesser Offenses To

Fulfill the Intent of Congress.

Petitioner contends that under the state definition of

the crime charged, assault is included. The intent of

Congress is clear that the state definition is to be used.

Therefore, the petitioner upon request should have been

given the lesser included offense instruction of assault.

“If an absolutely literal reading of a statutory pro-

vision is irreconcilably at war with the clear congressional

purpose, a less literal construction must be considered.”

United States v. Campos-Serrano, 430 F.2d 173 (7th Cir.

1970), 92 S.Ct. 471, 474 (1971). “That criminal statutes

are to be construed strictly is a proposition which calls

for the citation of no authority. But this does not mean

that every criminal statute must be given the narrowest

possible meaning in complete disregard of the purpose of

the legislature.” United States v. Bramblett, 348 U.S.

503, 510, 75 S.Ct. 504, 508 (1955).

An absolutely literal reading of 18 U.S.C. 1153 is at

war with the congressional intent.

“In construing a statute we are not always confined

to a literal reading, and may consider its object and

purpose, the things with which it is dealing, and the

condition of affairs which led to its enactment, so as

to effectuate rather than destroy the spirit and force

of the law the legislature intended to enact”

American Tobacco,@@gipany v. Werckmeister, 207

U.S. 284, 293, 28 SC: 72, 74 (1907).

The statute should therefore read to include the state

interpretation which includes assault within the crime

charged in the indictment.

BUT FOR THE JURISDICTIONAL QUESTION, THE

FACTS OF THIS CASE ARE CLEAR THAT A

LESSER-INCLUDED OFFENSE INSTRUCTION

WOULD BE GIVEN AS REQUESTED IN FEDERAL

COURTS.

On lesser included offense instructions, the Supreme

Court last stated: .

The basic principles controlling whether or not a

lesser included offense charge should be given in a

particular case have been settled by this Court. Rule

31 (c) of the Federal Rules of Criminal Procedure

provides in relevant part, that the ‘defendant may be

found guilty of an offense necessarily included in

the offense charged’ thus, [i]n a case where some of

the elements of the crime charged themselves

constitute a lesser crime, the defendant, if the

—

evidence justifie[s] it...[is] entitled to an

instruction which would permit a finding of guilt of

the lesser offense. Sansome v. United States, 380

U.S. 343, 349, 85 S.Ct. 1004, 1009 (1965); citing,

Berra v. United States, 351 U.S. 131, 76 S.Ct. 685

(1956); Stevenson v. United States, 162 U.S. 313,

16 S.Ct. 839 (1896).

This quotation from Sansome v. United States outlines

the federal law on lesser included offense instructions.

Rule 31(c) of the Federal Rules of Criminal Procedure

carries forth the Act of June 1, 1872 article 9, 17 Stat.

198.

“Thus, in an appropriate case, failure to grant an

instruction on a lesser included offense requested by the

defense is reversible error” United States v. Comer, 421

F.2d 1149, 1153, (D.C. Cir. 1970). Most lower federal

courts are generous with instructions “... [i] f counsel

asks for a lesser included offense instruction it should be

freely given.” United States v. Sinclair, 444 F.2d 888,

889 (D.C. Cir. 1971). See also: Walker v. United States,

418 F.2d 1116 (D.C. Cir. 1968); United States v. Huff,

442 F.2d 885 (D.C. Cir. 1971). “If the evidence is such

that a jury can rationally—and is likely—to choose the

lesser offense, then the interests of justice call for the

defense to have the option of the lesser included

offense—whether the prosecution chose to put it in the

indictment or has the right later to request it or not.”

United States v. Whitaker, 447 F.2d 314, 321 (D.C. Cir.

1971).

In the Whitaker case, the District of Columbia Circuit

set five conditions which must be met to give a lesser

included offense. This circuit’s conditions appear to be

the most expanded test:

1. “‘a proper request must be made,”

2. “the elements of lesser offense must be identical

to part of the elements of the greater offense,”

3. “there must be some evidence which would

justify conviction of the lesser offense,”

4. “the proof on the elements or elements differen-

tiating the two crimes must be sufficiently in

dispute so that the jury may consistently find

the defendant innocent of the greater and guilty

of the lesser included offense,”

5. “in general the chargeability of lesser included

offenses rests on a principle of mutuality, that

if proper, a charge may be demanded by either

the prosecution or defense.”

United States v. Whitaker, supra, at 317.

Petitioner’s situation fulfills the tests in Sansome vy.

United States and United States v. Whitaker. Following

the order of the Whitaker decision, each of the five

conditions must be decided in favor of a lesser-included

offense in this case.

A proper request was made in the form of objection to

the exclusion of an instruction on assault. (T. 334, App.

15) The trial judge in overruling the objection for failure

to instruct stated:

The Court takes into consideration in ruling on that

objection that Section 1153 of Title 18 of the

United States Code, which lists the ten, now

thirteen, major crimes in Indian Country, does not

include the crime of simple assault; and that

therefore this court has no jurisdiction over the

crime simple assault, . . . (T. 334, App. 15).

The objection was properly made and denied therefore

the first part of the test is met.

The elements of the lesser offense are identical to part

of the elements of the greater offense charged in this

case. As 18 U.S.C. 1153 demands, the crime of assault

resulting in serious bodily injury is defined in accordance

with state law. The definition of SDCL 1967, 22-18-12 is

such that the lesser crime of assault is a part of the

elements of the larger crime. The element not included is

intent. The trial court defined assault for the jury. (T.

318, App. 6) The crime of assault must be present as

well as the additional element of intent to inflict great

bodily injury.

The jury could properly find that an assault did take

place. Defendant placed evidence into the record from his

testimony that would justify conviction of assault. He

admitted striking Robert Pomani. (T. 229) The defense

offered did not deny that an assault took place. The

petitioner stated that the assault took place in self-

defense. (T. 224, T. 252) The petitioner further denied

that he ever intended to injure Robert Pomani seriously.

(T. 242-243, T. 249)

The jury was instructed that “the defendant contends

that said assault was in self-defense, and while in a state

of intoxication, and that the defendant Keeble had no

intent to inflict great bodily injury on Mr. Pomani.” (T.

317, App. 6) The jury could have properly found that

the petitioner assaulted Mr. Pomani but had no intent to

inflict great bodily injury. The element of intent was in

dispute and the jury could find consistently that the

greater offense was not committed and the lesser was.

The fourth element of the test is present.

The crimes fall within the fifth part of the test on

mutuality. The crimes are such that the greater fails if the

lesser is not present. All elements of the greater are

™

included in the lesser except one—intent to do serious

bodily injury.

The petitioner were he not an Indian charged under 18

U.S.C. 1153 under federal law would have been given a

lesser-included offense instruction. Failure to give such

instruction where proper is error. United States v. Comer,

421 F.2d 1149 (D.C. Cir, 1970). The only basis for such

denial is the race of the defendant. “A defendant in a

criminal case is as entitled to a proper determination of

the degree of guilt as he is to a determination of the

question of guilt itself.”” United States ex rel O’Connor v.

State of New Jersey, 405 F.2d 632, 638, (3rd Cir. 1969),

cert. denied; Yeager v. O’Connor, 395 U.S. 923, 89 S.Ct.

1770 (1969).

Ill.

THE DUE PROCESS CLAUSE OF THE UNITED

STATES CONSTITUTION IS SUPREME AND

OTHER ENACTMENTS OF STATUTE MUST GIVE

WAY IF IN CONFLICT TO THE INDIVIDUAL’S

CONSTITUTIONALLY PROTECTED RIGHTS.

To petitioner’s knowledge, this case raises for the first

time in this Court the question whether the denial of a

lesser included offense instruction when proper violates

the Due Process Clause. If this Court should find that

such denial violates the Due Process Clause and also find

that Congress so intended to deny such instructions by

enactment of 18 U.S.C. 1153, petitioner contends that

18 U.S.C. 1153 is unconstitutional. Petitioner’s view is

that the lower courts have ignored the intent of Congress.

Congress did not intend to accord Indian defendants less

rights than others but in 18 U.S.C. 3242 took care to

insure such rights as Due Process. Petitioner’s view of this

case is that the District Court has jurisdiction to try the

matter and instruct on all offenses included within.

The Fifth Amendment to the Constitution provides

that the petitioner shall not be tried and sentenced

“without due process of law.” Due Process is violated

either in procedure (Rule 31 F. Rules Cr. Procedure) or

substance (jurisdiction 18 U.S.C. 1153) by not allowing

lesser included offense instructions: to be given to

American Indians tried in Federal Courts under the “13

Major Crimes.”

Regard for the requirements of the Due Process

Clause “inescapably imposes upon this Court an

exercise of judgment upon the whole course of the

___ proceedings [resulting in a conviction] in order to

~~~aseertain whether they offend those canons of

decency and fairness which express the notions of

justice of English-speaking peoples even toward

those charged with the most heinous offense”

Malinski v. New York, 324 U.S. 401, 416, 65 S.Ct.

781, 789 (1945).

The Due Process Clause is a Constitutional safeguard

for persons of all races who are American citizens. “‘Due

Process of Law is a summarized constitutional guarantee

of respect for those personal immunities which, as Mr.

Justice Cardozo twice wrote for the Court, are ‘so rooted

in the traditions and conscience of our people as to be

ranked as fundamental’ Snyder v. Massachusetts, 291

U.S. 97, 105, or are ‘implicit in the concept of ordered

liberty’ Palko v. Connecticut, 302 U.S. 319, 325” Rochin

v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 208

(1952).

The Eighth Circuit Court of Appeals in the Kills Crow

v. United States, 451 F.2d 323 (8th Cir. 1971), cert.

denied 405 U.S. 999, 92 S.Ct. 1262 (1972) recognized -

“that section 1153 is founded upon a racial classifica-

tion.” Kills Crow, supra, at_325. The majority of the

Court concluded: “‘we think that the particular discrim-

inatory effect relied upon here over balances the value of

‘leaving with the tribal courts jurisdiction over such

offenses.” Kills Crow, supra, at 327. The Eighth Circuit

in reaching this result noted that historical guardian-ward

concept. It further noted that “the Indian population

itself has demonstrated its objection to interference with

the tribal court’ system” Kills Crow, supra, at 326.

The petitioner contends that the Eighth Circuit erred

in two distinct ways in denying the Kills Crow appeal and

using that case as authority to deny the petitioner’s.

First, it ignores that the petitioner whatever his Trace is

protected by the Due Process Clause. Second, it assumes

that if lesser-included offense instructions are given it will

do harm to the tribal courts. The second contention

ignores the fact that an Indian may not be brought to

Court unless indicted for one of the felonies in 18 U.S.C.

1153. Tribal Courts have no jurisdiction over these

offenses. The only time that the tribal courts would in

any way be affected: is if on the trial of a felony the

United States was unable to offer enough evidence on the

greater charge. If the lesser offense is one which the tribe

has jurisdiction, the Federal Courts may usurp some

authority. But to use this as a controlling factor in such a

due process situation, must fail.

In 1959, Mr. Justice Frankfurter wrote for the Court:

Decisions under the Due Process Clause require close

and perceptive inquiry into fundamental principles

of our society. The Anglo-American system of law is

based not upon transcendental revelation but upon

the conscience of society ascertained as best it may

be by a tribunal disciplined for- the task and

environed by the best safeguards for disinterested-

ness and detachment.” Bartkus v. Illinois, 359 U.S.

121, 128, 79 S.Ct. 676, 680 (1959).

The Due Process Clause protects the petitioner as an

individual and subjects him to the “law of the land.” No

more or less than any other person.

Congress is not a body of trial lawyers with ability to

predict every ramification of a statute on the actual trial

of a case. It clearly did not wish to create the crazy quilt

mode of trial demanded by the Eighth Circuit in Kills

Crow and Keeble. This Court in Ex Parte Gon-Shay-ee,

130 U.S. 343, 353, 9 S.Ct. 543, 546 (1889) noted the

importance of the “mode of trial.” The Court noted such

elements as venue and jury selection. The petitioner

contends that jury instructions are in no way less

important. The Court was aware that the assumption of

jurisdiction over Indians by the Federal Government

intended no procedural disadvantage:

It is of consequence that in this new departure

which Congress has made, of subjecting the Indians,

in this limited class of cases, to the same laws which

govern the whites within the territories where they

both reside, the Indian shall at least have all the

advantages which may accrue from that change,

which transfers him, as to the punishment for these

crimes, from the jurisdiction of his own tribe to the

jurisdiction of the government.... Ex Parte Gon-

Shay-ee, 130 U.S. 343, 353, 9 S.Ct. 543, 546

(1889).

The Eighth Circuit’s concept of protection of the

tribe’s authority over lesser offenses as more important

than the petitioner’s individual rights is not universally

accepted as proper judicial reasoning. The Court in Ex

Parte Gon-Shay-ee was concerned with individual rights

not tribal.

—

Judge Stephenson wrote dissenting in Kills Crow:

Whatever may be the soundness and contemporary

vitality of the ‘guardian and ward’ concept in other

contexts of the relationship between the Indian and

the federal government, I am unpersuaded by the

notion that such a theory can furnish a plausible

predicate for the conclusion that because Arnold

Francis Kills Crow is an Indian there is a rational

basis for extending him less than full Fifth Amend-

ment Due Process treatment. I think, contrarily,

that such a conclusion runs afoul of the well

established principle of Supreme Court decisional

law that the Fifth Amendment proscribes discrim-

ination that is ‘so unjustifiable as to be violative of

due process’ Bolling v. Sharpe, 347 U.S. 497, 499,

74 S.Ct. 693, 694, 98 L.Ed. 884 (1954). Kills Crow

v, United States, 451 F.2d 323, 328 (8th Cir. 1971),

cert. denied 405 U.S. 999, 92 S.Ct, 1262 (1972).

Judge Stephenson’s view is that the refusal to instruct

on lesser offenses is a denial of “a fundamental Due

Process right.”’ Kills Crow, supra, at 328. This Supreme

Court has not so declared but the petitioner contends

that Judge Stephenson’s view is correct.

To the petitioner’s knowledge, no lower court has

considered the importance of 18 U.S.C. 3242 in deciding

whether or not Congress intended for Indians to be tried

as all others in Federal Court. As mentioned prior, 18

U.S.C. 1153 and 18 U.S.C. 3242 were part of the original

jurisdiction granting bill, 23 Stat. 385. The wording of 18

U.S.C. 3242 clearly does not support the Eighth Circuit’s

contention that as to lesser-included offense instruction

due process was to be ignored. Congress declared in 18

U.S.C. 3242 that: “‘All Indians... shall be tried in the

same courts, and in the same manner, as are all other

ai SARTRE ASL

persons committing . . . crimes within the exclusive juris-

diction of the United States.

Indian persons although also United States citizens can

not make an election of whether to be tried as an Indian

or not. See: United States c. Celestine, 215 U.S. 278, 30

S.Ct. 93 (1909). On the other hand, adoption into an

Indian tribe can not for criminal jurisdictional purposes

change the status of a non-Indian. Seé: Westmoreland v.

United States, 155 U.S. 545, 15 S.Ct. 243 (1894).

Francis Keeble must be tried as an Indian under 18

U.S.C. 1153 but he must be given the protection of the

Constitution.

“Where federally protected rights have been invaded, it

has been the rule from the beginning that courts will be

alert to adjust their remedies so as to grant the necessary

relief.” Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773,

1717 (1946). The petitioner contends that the Eighth

Circuit erred by affirming the District Court’s refusal to

instruct on lesser offenses. The instruction should have

been given. Congress intended that it should be given; the

Criminal Rules direct that it should be given, Due Process

requires that it be given; and justice in the American

Federal system demands that it be given in this case.

CONCLUSION

For the reasons stated it is respectfully submitted that

the judgment of the court below should be reversed.

MARK V. MEIERHENRY

South Dakota Legal Services

Box 227

Rosebud, South Dakota

Attorney for Petitioner

Dated January 17, 1973

ilies: Ve *

y~ ctietin, >a. . nea

BRIEF FOR THE >

5 .

ma 5 oiognt 0s eee

Ree CeO eee ear ade i Ut. gan

a pee y ae es

2 Sat ay

ery OF arent -— 2. . Sd. een

| Argument: 3

x: I. The trial court properly declined to give

the requested instruction because the

court had no statutory jurisdiction over

the offense of simple assault __________-

II. The decision by congress not to extend

federal jurisdiction under the major

crimes act to unspecified lesser offenses

does not deny due process to Indians

charged under the act___......-.-._.-

A. The Major Crimes Act does not

invidiously discriminate against

WN i en nk

B. This court has never recognized a

constitutional right to an in-

struction on a lesser included

offense and should not create

4 such a right in this case-- ------

ES SEES ESTE DOTS el SRO UCR Re TE Neee R R

q CITATIONS

| Cases:

Berra v. United States, 351 U.S. 131_..__.--

Bolling v. Sharpe, 347 U.S. 497_....-..----

(I)

496-858—73——-1

Cases—Continued

Crow Dog, Ex parte, 109 U.S. 556

Henry v. United States, 432 F. 2d 114, cer-

tiorari denied, 400 U.S. 1011

Hunter v. Erickson, 393 U.S. 385

Katzenbach v. Morgan, 384 U.S. 641

Kelly v. United States, 370 F. 2d 227, certiorari

denied, 388 U.S. 913

Kennerly v. District Court of Montana, 400

Kills Crow v. United States, 451 F. 2d 323,

certiorari denied, 405 U.S. 999

Korematsu v. United States, 323 U.S. 214----

McCord, Petition of, 151 F. Supp. 132

McGinnis v. Royster, No. 71-718, decided

February 21, 1973 ;

Menominee Tribe v. United States, 391 US.

Sansone v. United States, 380 U.S. 343

Sparf and Hansen v, United States, 156 U.S. 51-

Spies v. United States, 317 U.S. 492

Talton v. Mayes, 163 U.S. 376

Todd v. United States, 158 U.S. 278

United States v. Davis, 429 F.2d 552

United States v. Jacobs, 113 F. 2d 203

United States v. Joe, 452 F. 2d 653, certiorari

denied, 406 U.S. 931

United States v. Kagama, 118 U.S. 375

United States v. Nardello, 393 U.S. 286--

United States v. Red Wolf, 172 F. Supp. 168 --

United States v. Rider, 282: ¥. 2d 476:

United States v. Sharpnack, 355 U.S. 286----

United.States v. Quiver, 241 U.S. 602

United States ex rel. De Plumer v. piesa 443

III

Cases—Continued

Page

Wunene ¥. £06, 366 U.S. 217... 3... 2... 20, 21

Worcester v. State of Georgia, 6 Pet. 515_____- 10

Constitution, statutes, and rules:

United States Constitution, Fifth Amend-

RE (oe SERRE Sy ieee “Ae OY ee ee 2, 20

Act of March 3, 1885, 23 Stat. 362, as amend-

ed, 18 U.S.C. 1153 (Major Crimes Act) c=. 2,

4, 7, 8, 9, 11, 12, 13, 18, 19, 20, 23

Indian Bill of Rights of 1968, 82 Stat. 78:

We Usa. lel ieee. oe 21

Be AAs, dente cs 5... 10

Wheeler-Howard Act, 48 Stat. 987, 25 U.S.C.

es ee 21

OG Bi ara oo eek oss oe 18

Be We 0a tis nonce ckvere io ikee hie 17

ann Serr)... kk. 13

Oe Sey SO tirkke ons so ck foc ek 13

We Wea: SONG ene 5 oko. wk kee 10

BR, Hs cine Cea wtns cn cudweckcen 16

18 U.S.C. $242. _...-.-- Sein hee Sats Oe 3, 18, 19

Be eee Es wh iene s nbn eke acces von dek 4

Oe MI BEng ere soet cc ~ doc Seen - nace 10

South Dakota Compiled Laws, 1967

Don Son widen nenscceceeninae: 4,13

F. R. Crim. P.:

MUNG ia ohn hb os oi Bick cee 8

We 3, 5, 16, 25

Miscellaneous:

H. Rep. 1446, 72d Cong., Ist RR Be 12

H. Rep. No. 721, 89th Cong., Ist Sess_____- 12

Hearings before ‘the Subcommittee on Con-

stitutional Rights of the Senate Committee

on the Judiciary on Constitutional Rights

of the American Indian, S. Res. 53, 87th

Cn, Ae a TI nn ie eo c's 21

Miscellaneous—Continued

Hearings before the Subcommittee on Con-

stitutional Rights of the Senate Committee

on the Judiciary on Constitutional Rights

of the American Indian, 8. Res. 58, 88th page

Coes ee es (ee @......--.--2.-5---- 21-22

Hearings before the Subcommittee on Con-

stitutional Rights of the Senate Committee

on the Judiciary on Constitutional Rights

of the American Indian, 89th Cong., Ist

PE, coach cee eck ain nehoe sas 22

Kerr, Constitutional Rights, Tribal Justice, and

the American Indian, 18 J. Pub. L- 311

a A nd edeancnwchoius 23

Note, The Indian Bill of Rights and the Consti-

tutional Status of Tribal Governments, 82

Pees, 1 ey, Cee 1 eee... ---- 52 22-23

Note, The Indian: The Forgotten American, 81

Harv, L. Rev. 1811 42008). .-.2s....-.-- 21

S. Rep. No. 721, 90th Cong., Ist Sess_- - -- = 12

Staff of Subcommittee on Constitutional

Rights of Senate Committee on the

Judiciary on Constitutional_ Rights of the |

American Indian, 89th Cong., 2d Sess. ~

8 gD RR ie a, eee 22

2 Wright, Federal Practice and Procedure,

DE GED. oA Ge ecnsnn Cibecasdnaae 24

_ eal

Gu the Supreme Gourt of the United States

OctToBER TERM, 1972

No. 72-5323

Francis A. K&reEBLE, PETITIONER

. Vv.

Unitep States oF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals remanding the

‘ case to the district court for further findings and the

subsequent, per curiam opinion affirming the convie-

tion are reported at 459 F. 2d 757, 762, and are re-

produced in the Appendix (hereinafter A.) at pages

16-23 and 27 respectively. The opinion of the district

court on remand (A, 25-26) is not reported.

JURISDICTION

The judgment of the court of appeals (A. 28) was

entered on July 27, 1972. The petition for a writ of

certiorari was filed on August 28, 1972, and was

(1)

— OS ae PIP NOs MRED ae MD OMT NE MN AS EE EIS OSU NIY OST TADR SS BORN RS ae INDE

> 4

granted on ember 4, 1972.’ The jurisdiction of this

Court res n 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the district court’s refusal to give a lesser

included offense instruction under 18 U.S.C. 1153 vio-

lated the Fifth Amendment’s due -process guarantee.

CONSTITUTIONAL PROVISION AND STATUTES INVOLVED

The Fifth Amendment provides in pertinent part:

* * * [N]or [shall any person] be deprived of

life, liberty, or property, without due process of

wie * =.

18 U.S.C. 1153 (the Major Crimes Act) provides:

Any Indian who commits against the person

or property of another Indian or other perso

any of the following offenses, namely, murder,

manslaughter, rape, carnal knowledge of any

female, not his wife, who has not attained the

age of sixteen years, assault with intent to

commit rape, incest, assault with intent to

kill, assault with a dangerous weapon, assault

resulting in serious bodily injury, arson, bur-

glary, robbery, and larceny within the Indian

country, shall be subject to the same laws and

penalties as all other persons committing any

of the above offenses, within the exclusive

jurisdiction of the United States.

As used in this section, the offenses of rape

and assault with intent to commit rape shall be

1 There is some discrepancy as to whether the judgment was

entered on July 27th or July 28th and thus whether the peti-

tion was precisely on time but as this is not jurisdictional we

take no further note of it.

—— :

defined in accordance with the laws of the State

in which the offense was committed, and any In-

dian who commits the offenses of rape or as-

sault with intent to commit rape upon any

female Indian within the Indian country shall

* be imprisoned at the discretion of the court.

As used in this section, the offenses of bur-—

glary, assault with a dangerous weapon, as-

sault resulting in serious bodily injury, and

incest shall be defined and punished in accord-

ance with the laws of the State in which such

offense was committed.

18 U.S.C. 3242 provides:

All Indians committing any of the following

offenses; namely, murder, manslaughter, rape,

earnal knowledge of any female, not his wife,

who has not attained the age of sixteen yearsy,.

assault with intent to commit rape, incest, as-

sault with intent to kill, assault with a danger-

ous weapon, arson, burglary, robbery, and

larceny on and within the Indian country shall

be tried in the same courts, and in the same

manner, as are all other persons committing

any of the above crimes within the exclusive

jurisdiction of the United States.

Rule 31(¢e) of the Federal Rules of Criminal Pro-

cedure provides:

fendant may be found guilty of:an offense

necessarily included in the offense charged or

of an attempt to commit either the offense

charged or an offense necessarily included

therein if the attempt is an offense.

South Dakota Compiled Laws of 1967, § 22-18-12,

provides: :

Whoever assaults another with intent to in-

flict great bodily injury shall be punished upon

conviction thereof by imprisonment in the state

penitentiary for not less than one year, nor

more than five years, or in the county jail not

exceeding one year, or by a fine not exceeding

five hundred dollars, or by both such fine and

imprisonment.

STATEMENT

Following a jury trial in the United States Dis-

trict Court for the District of South Dakota, peti-

tioner, an Indian of the Crow Creek Sioux Tribe,

was convicted of assault with intent to commit seri-

ous bodily injury in violation of the Major Crimes

Act, 18 U.S.C. 1153, an act applicable only to speci-

fied major offenses committed by Indians within

‘Indian country.’ He was sentenced to five years’ im-

prisonment. On appeal, the court initially remanded

for a hearing to determine whether petitioner's con-

fession made during a delay between petitioner's

arrest and his appearance before the United States

Magistrate had been voluntarily given, in accordance

with 18 U.S.C. 3501 (459 F. 2d 757; A. 16-23). One

Judge dissented from the remand, indicating that he

would reverse on the separate issue, presented here,

2 Petitioner has not questioned the incorporation of the South

Dakota statute proscribing “assault with intent to inflict great

bodily injury” under that clause of the Major Crimes Act that

refers to “assault resulting in serious bodily injury.” See gen-

erally, United States v. Nardello, 393 U.S. 286; United Stntes

v. Sharpnack, 355 U.S. 286.

ae 5

concerning the trial judge’s refusal to give a lesser

included offense instruction (A. 23). Following an

evidentiary hearing, the district court concluded that,

although the period of delay was unreasonable, the

statement was nevertheless voluntary (A. 25-26). The

court of appeals then affirmed the conviction in a-per

curiam opinion (A. 27).

The evidence adduced at trial* showed that on

the evening of March 6, 1971, petitioner was driv-

ing home with his son and his cousin Alfred Ken-

nedy, when Robert Pomani, the brother of petitioner's

wife, flagged them down and gét into the truck.

Petitioner, Pomani, and Kennedy had all been drink-

ing. They went to petitioner’s house (located on the

Crow Creek Indian Reservation), where they drank

and watched television. At Pomani's suggestion, peti-

tioner drove the group towards the town of Reliance

to buy more wine. En route, Pomani began to criti-

cize petitioner’s behavior towards petitioner's wife,

saying that petitioner was not ‘‘good enough” for

his sister and acensing him of adulterous relation-

ships. Pomani wanted to fight. Reluctant to fight on

the road petitioner turned towards home and _ the

argument was temporarily forgotten while they

bought a case of beer. At home, however, the argu-

ment resumed. Pomani swung at petitioner but missed

and petitioner hit him in the stomach, knocked him

*The following account is taken from petitioner's written

confession forming part of the record of the case and _peti-

tioner’s testimony at trial (Tr. 212-253). “Tr.” refers to the

transcript of pre-trial and trial proceedings. “II.” refers to the

transcript of the hearing conducted on remand.

a TOI RE STILT A RT OIL, AI RTE A ENE te

down and began to hit his face repeatedly. Kennedy

tried to get involved in the fight and, despite peti-

tioner’s warnings to stay out of “his fight,”

succeeded in breaking a bottle over Pomani’s head.

Petitioner asked Pomani if he had “had enough” and

Pomani, whose face and head were bleeding badly,

indicated that he had. Petitioner then left him and

went to bed. The next morning petitioner found Po-

mani dead, about fifty feet from the house.‘ In his

confession, petitioner stated that ‘‘[a]lthough I

wanted to give Pomani a good beating because he is

bigger than me and he had beat me many times in

the past, I did not intend to beat him to death.’’®

After finding the body, petitioner told his wife

he thought he had killed Pomani (Tr. 260). Peti-

tioner and his wife then discussed the situation with

his uncle (Tr. 189-192) and reported the incident

to Charles Cruse, an official of the Department of the

Interior serving as Captain of the Tribal Police at

Fort Thompson, South Dakota, on the Crow Creek

Indian Reservation (Tr. 38-39).* Cruse and two other

* Apparently Pomani was able to walk out of the house (sec

confession; Tr. 192), though there was some suggestion that he

may have been dragged outside unconscious (Tr. 188).

* Petitioner’s trial testimony did not differ materially from

the account given in his statement, though he did deny at trial

that Kennedy tried to enter the fight and hit Pomani with a

bottle (Tr. 251-252).

* Cruse arrested petitioner for disorderly conduct (i.e., public

intoxication), a tribal charge, and also held him because he

had reason to believe another offense had been committed (Tr.

43, 62; H. 82-83). On March 9, 1971, both petitioner and Ken-

nedy entered pleas of guilty to disorderly conduct charges in

tribal court. Each was sentenced to fifteen days’ incarceration,

and fined $20 (Tr. 62, 82-83).

officers went to petitioner’s house; through a window

and open door they observed that blood was smeared

over a large area of the living room (Tr. 153-154).

_ he prosecution introduced photographs of the in-

terior of the house and of Pomani’s swollen and dis-

eolored body (Tr. 159-164). Petitioner’s bloodstained

trousers and boots were also introduced into evidence

(Tr. 157-159).

The doctor who performed the autopsy said that

Pomani’s death was due to exposure to excessive cold,

but that the beating was a contributing factor (Tr.

181-182). The autopsy revealed lacerations ‘“‘through

the whole thickness of the scalp” (produced by

blows from a hard blunt instrument), a massive

bruising of the face, various other bruises and abra-

sions, some collapse of the lungs, and an accumula-

tion of fluid in the brain and lungs (Tr. 182-183).

Except for the lung condition, all injuries had been

caused by the beating (Tr. 183).

At the conclusion of the trial, petitioner requested

that the trial judge instruct the jury that they could

acquit petitioner of the charge against him and in-

stead convict him of ‘“‘simple assault’’ as a lesser

included offense. The court refused the instruction on

the ground that it had no jurisdiction over the crime

of simple assault since that crime was not included

in the Major Crimes Act, 18 U.S.C. 1153, noting that

simple assault is ‘‘a matter for the tribe” (A. 15; Tr.

334). The court of appeals affirmed the district court’s

ruling on this issue, relying on its prior opinion in

Kills Crow v. United States 451 F. 2d 323 (C.A. 8), cer-

tiorari denied, 405 U.S. 999, which held that in the

Ee ee SERRE SORE EN ICTS PESTER

8 ee

Major Crimes Act, Congress specifically and exclusively

set forth offenses committed within Indian country for

which Indians may be tried in federal courts, and

that it would be contrary to the legislative intent to

create additional federal crimes not there specified.

This Court granted certiorari limited to that issue.’

SUMMARY OF ARGUMENT

I. The Major Crimes Act, 18 U.S.C. 1153, ere-

ates federal jurisdiction over certain specified crimes

committed by Indians within Indian country. Unless

otherwise provided by Congress, the Indian tribes re-

tain jurisdiction over crimes comnitted by Indians

within Indian country not listed in the Major Crimes

Act. The Act lists assault resulting in serious bodily

injury as one of the crimes over which federal courts

have jurisdiction but does not list simple assault as

such a crime. An offense cannot be considered a

“lesser included offense” if the court has no jurisdic-

tion over that lesser offense and thus has no power to

tfy it or punish it. The district court was therefore

correct in refusing to instruct on simple assault as

a lesser included offense. The history of the Major

Crimes Act and the particularity with which Con-

gress has granted jurisdiction to federal courts sup-

ports this position.

IL. The decision of Congress to grant only limited

jurisdiction to federal courts over crimes committed

by Indians within Indian country does not deny due

< The petition for certiorari also raised the question whether

the introduction of the confession violated Rule 5 of the Fel-

eral Rules of Criminal Procedure.

_ 9

proeess to Indians tried under the Major Crimes Act.

The scheme of the Act is not one of invidious dis-

evimination but of preserving the jurisdiction of tri-

bal courts. This is a recognition of a valid Indian

interest, not a discrimination against Indians.

A lesser included offense instruction necessarily

cuts two ways. It allows a jury to convict when it

would otherwise have to acquit. It also allows the de-

fendant the benefit of a compromise verdict. This

eourt has never raised such an instruction to the

level of a constitutional right. It would be inappropri-

ate to do so in a ease such as this where the failure

to instruct on a lesser offense is a requirement of

maintaining appropriate limitations on the jurisdic-

tion’of the court where the charge is brought: More-

over, the petitioner has not heen prejudiced by refusal

of the court to grant the requested instruction.

ARGUMENT

THE TRIAI, COURT PROPERLY DECLINED TO GIVE THE RE-

QUESTED INSTRUCTION BECAUSE THE COURT HAD NO

STATUTORY JURISDICTION OVER. THE OFFENSE OF SIMPLE

ASSAULT

The government’s position on the “lesser included

offense” request in this case is that an offense cannot

be considered a “lesser” offense ‘‘included” in the

erime charged if the court has no jurisdiction over

that less serious offense, and thus no power to try

it or punish it. Under the statutory system Congress

has established, a federal court has only limited juris-

diction over crimes committed by Indians within In-

dian reservations, with all other offenses being re-

served to tribal courts.’ Thus, the trial judge here ee:

acted properly—indeed, necessarily—in declining to

instruct the jury that it could convict petitioner of

simple assault, a crime Congress has left to the his-

toric jurisdiction of the Indian tribal courts.

1. It has long been settled that, except where with-

drawn by Congress in the exercise of its constitu-

tional powers, jurisdiction over criminal offenses by

Indians in Indian country remains with the Indian

tribe. This jurisdiction can be withdrawn either by

a congressional act granting such jurisdiction to the

State,? or as here, by an act assuming jurisdiction

for the United States. In either event the statute is

to be construed so as to take away no more juris-

diction than Congress has clearly intended. See Ken-

nerly v. District Court of Montana, 400 U.S. 423. See

also Menominee Tribe v. United States, 391 US.

poe : :

In the absence of the explicit withdrawal of juris-

diction by Congress, the power to try and punish

criminal behavior by Indians within Indian country

inheres in tribal courts. The jurisdiction of these

tribal courts does not depend upon an express grant

of power from Congress but is a residual power of

tribal sovereignty often expressly recognized by

treaty. See Worcester v. State of Georgia, 6 Pet.

515; Talton v. Mayes, 163 U.S. 376; United States v.

Quiver, 241 U.S. 602, 605. These principles have been

* Except where Congress has established state jurisdiction. See

note 9, infra.

° See ¢.g., 18 U.S.C. 1162; 28 U.S.C. 1360; 25 U.S.C. 1821-

1326.

| 11

so firmly recognized that in 1883 this Court held

that federal courts had no jurisdiction over the mur-

der of an Indian by another Indian on a reservation,

because Congress had never clearly withdrawn such

jurisdiction from the sovereign tribe. Ex parte Crow

Dog, 109 U.S. 556. Against ‘the background of that

decision, Congress passed the Major Crimes Act, (Act

of March 3, 1885, 23 Stat. 362, 385) which made it

a federal crime for an Indian to commit any of seven

named major offenses against another Indian on an

Indian reservation.” That is the statute, 18 U.S.C.

1153 as amended, which formed the basis for peti-

tioner’s prosecution in a federal court.

2. The history of amendments to the original act

shows that when Congress has sought to expand the

federal court reach of the Act, it has done so spe-

cifically. After carnal knowledge was held not to be

within the term rape as used in the Major Crimes

Act," Congress amended the statute to include that

offense expressly.” Contrary to petitioner’s interpre-

tation, the amendment does not indicate that Con-

gress intended federal jurisdiction to extend similarly

to simple assault (Brief p. 16) ; indeed, the failure to

designate certain offenses that might be thought of

as “lesser included offenses” of those crimes listed,

while naming other subordinate offenses specifically,

10 The offenses were murder, manslaughter, rape, assault with

intent to kill, arson, burglary and larceny. The act also made

it a federal crime for an Indian to commit any of these acts off

a reservation if the reservation were in a territory rather than

~ a state.

1 United States v. Rider, 282 F. 2d 476 (C.A. 9).

12 Act of November 2, 1966, 80 Stat. 1100.

shows a congressional policy limiting federal juris-

diction to the crimes named. The inclusion of carnal

knowledge of a minor and the exclusion of simple

assault are consistent with the purpose of the act: to

give federal courts jurisdiction over major offenses but

not to intrude on exclusive tribal jurisdiction when

only relatively minor misconduct is involved. As to

more serious crimes, such as carnal knowledge, Con-

gress in recent years has regarded the tribes as unable

to impose adequate sanctions." As late as 1968, Con-

gress added to the Major Crimes Act the offense of

assault resulting in serious bodily injury. Once again

the dominant expressed. purpose as reflected by legis-

lative history was to insure that ‘‘serious’’ crimes be

punished “in proportion to the gravity of the

99 14

offense.

3. The Major Crimes Act in its present form enum-

erates thirteen major crimes over which federal courts

have exclusive jurisdiction when a crime is committed

by an Indiar’ in Indian country. The Act is specific

as to the kinds of assaults as to which it creates fed-

eral jurisdiction: assault with intent to kill, assault

with intent to commit rape, assault with a dangerous

weapon, or assault resulting in serious bodily injury

13 See H. Rep. No. 721, 89th Cong., Ist Sess., p. 6. When

new offenses were added in 1932, the House Committee on

Indian Affairs also noted a statutory purpose to punish an

Indian for “major” crimes since tribal sanctions were insuffi-

cient. H. Rep. No. 1446, 72d Cong., 1st Sess., p. 1.

4S. Rep. 721, 90th Cong., Ist Sess. (Report to accompany

H.R. 2516).

(see supra, pp. 2-3)."* Simple assault is not ineluded.”

The Major Crimes Act makes no reference to fed-

eral jurisdiction over ‘“‘lesser included offenses”

except those listed in the statute itself. Thus, man-

slaughter, separately listed, is generally considered

asser ineclided offense of murder, which is

ed. A -similar relationship exists between

also lis

carnal khowledge and rape, now both specifically coy-

ered. Ard of course, depending on the facts, several

of the “assault” crimes specifically mentioned in the

Act could be viewed as lesser offenses included in

others. This enumeration of offenses which Congress

wanted to make triable in federal courts tends to

confirm that Congress did not assume or intend that

crimes that might generally he thought of as lesser

included offenses would come within this narrow

The’ Act provides that the offense of assault resulting in

serious bodily injury and various other named offenses shall be

“defined and punished in accordance with the Jaws of the State

in which such offense was committed.” South Dakota Compiled

Laws, 1967, 22-18-12. prescribes penalties of imprisonment

from one to five years (and/or a fine not exceeding $500) for

assault “with intent to inflict great bodily injury.” Petitioner

received, the maximum imprisonment under this statute, five

years,

Tf the defendant were a non-Indian charged with an ag-

gravated assault the case would be governed by federal enclave

law pursuant to 18 U.S.C. 1152 (see Henry v. United States.

32 F. 2d 114, 118 (C.A. 9), certiorari denied, 400 U.S. 1011).

Since federal enclave law proscribes a wide variety of assaults,

including simple assault (see 18 U.S.C, 113(a)-(e)), the dis-

trict court could instruct as to a lesser included offense. The

difference between the two results, is, of course, a manifestation

of congressional concern for preserving tribal court jurisdi¢tion

over Indian defendants, a consideration that does not apply to

non-Indian defendants. See pp. 20-23, infra.

496--858—73——2

definition of federal criminal jurisdiction simply

because the greater offenses are covered. As the Court 3

of Appeals for the Tenth Circuit recently held in a q

similar setting (United States v. Joe, 452 F. 2d 653, ‘

654, certiorari denied, 406 U.S. 931) :

** * The Statute does not look to State law J

for the purpose of making its lesser included

State offenses Federal offenses proscribed by the

Statute. The sole purpose of looking to State law

under the Statute is to obtain the definition of

the offense * * * and only the definition. This

interpretation is not only compelled by the

plain language of the Statute but is also re-

quired by the fact, that in enacting the Statute,

Congress specifically included certain lesser in-

cluded offenses and is deemed to have done so

to the exclusion of all others else they would

also have been named [footnote omitted].

Moreover, it is long established that there are no

federal crimes except those created by statute. To

interpret the Major Crimes Act to include other of-

fenses, not explicitly listed, would conflict with estab-

lished principles of construing criminal statutes, see

Todd v. United States, 158 U.S. 278, 282, and with

a long line of decisions holding specifically that the

" Major Crimes Act cannot be extended by implication

to offenses not enumerated. See United States v.

Davis, 429 F. 2d 552 (C.A. 8) ; United States v. Rider,

282 F. 2d 476 (C.A. 9); United States v. Red Wolf,

172 F. Supp. 168 (D. Mont.); Petition of McCord,

151 F. Supp. 132 (D. Alas.) ; United States v. Jacobs,

113 F. Supp. 203 (E.D. Wis.). This general princi-

ple of statutory construction is especially compelling

- a SER So

PLAS ARE

here where strict construction protects a well-defined

and historic congressional policy to limit the assump-

tion of power over Indian crimes to a few compel-

lingly important categories. Simple assault is not one

of the offenses that Congress has authorized the fed-

eral courts, in the Indian setting, to deal with.

4. We think the force of the foregoing discussion

is clear: since Congress has chosen not to make the

offense of simple assault a matter for trial in the

federal courts, but has instead left this minor offense

to the exclusive jurisdiction of the courts of a sepa-

rate sovereign—the Indian tribes—the lesser included

offense doctrine cannot be utilized to bring that of-

fense into the federal court.

Rule 31(c) of the Federal Rules of Criminal Pro-

cedure, which codifies the general principles surround-

ing the permissible consideration by the jury of crimes

other than those expressly charged in the indictment,

provides:

' The defendant may be found guilty of an

offense necessarily included in the offense

charged * * *.

Petitioner, in his brief (p. 19) lists five conditions

that must be satisfied before a defendant is entitled

to have the jury told that it may return a guilty

verdict for a crime other than the one charged. Most

pertinent here is the requirement of ‘‘mutuality”—

that the prosecution has an equal right to demand

a lesser included offense instruction if the defense has

such a right. But it would undermine the statutory

system that Congress has carefully and delicately es-

tablished to allow the government to prosecute in the

federal courts petty offenses like simple assault com-

mitted by Indians on Indian reservations. We claim

no such power to initiate prosecution for simple as-

sault in these circumstances, and it seems to be too

clear a principle to admit of dispute that if the of-

fense could not be charged initially as an independent

(or exclusive) count it cannot be considered legally

“included” in the offense actually charged. Thus, even

though simple assault is a less serious offense than

aggravated assault and includes some but not all of

the elements of the more serious crime, it is not

necessarily a ‘‘lesser included offense” within the

meaning of Rule 31(¢) or the general doctrine. Where,

as here, there is a jurisdictional barrier between the

greater and lesser offenses, neither the defense nor

the prosecution ean validly ask for a trial or verdict

on what in other contexts might be a “lesser included

offense.” Some analogies will illustrate this point.

Consider the ease of a bank robbery. Under its

commerce, tax, and currency powers Congress could

no doubt make every bank robberv a federal offense.

But in 18 U.S.C. 2113, Congress has expressed its

determination to carve out a narrower field of federal

jurisdiction and has provided that only robberies of

national banks or banks that belong to the Federal

Reserve System or are insured by the Federal De-

posit Insurance Corporation can be prosecuted in a

federal court. If the United States Attorney in a

federal bank robbery trial feared that the evidence

of FDIC insurance, for example, might be insufficient,

could he insist upon an instruction to the jury that

if it finds beyond a reasonable doubt that all the ele-

ments of bank robbery except the FDIC-insurance

element have been proved, it may return a verdict of

guilty under a state bank robbery or armed robbery

statute? We think not. Conversely, under the princi-

ple of mutuality and as a matter of jurisdictional

principles, no matter how beneficial to his interest

the defendant might consider it (as for example, in

seeking a compromise verdict on an offense that

might carry a lighter sentence), the defendant would

have no right to request or to receive an instruction

terming the state violation “a ‘“‘lesser included of-

fense,’’ and any verdict resting upon such an analysis

would be void.

Similarly, assault on a federal officer “while en-

gaged in or on account of the performance of his

official duties’? is a serieus federal felony under 18

U.S.C. 111. If the prosecutor sensed that he had not

sufficiently proved performance of federal duties, he

could not seek a simple assault conviction under the

relevant state provision; nor could the defense in an

‘effort to avoid conviction on the felony urge the submis-

sion of a “simple assault’’ instruction on the theory,

similar to the one proposed by petitioner, that it is a

“lesser offense’’ ‘tincluded’’ in the crime Congress

has chosen to cover as-a federal offetise.

In the foregoing illustrations, both the prosecution

and the defense must accept the reality that, for

jurisdictional reasons, it is ‘tall or nothing at all’’—

the verdict must be cither ‘‘guilty as charged’’ or

outright acquittal. The same conclusion, we submit,

must be reached here. Since Congress has carefully

restricted the specific crimes it has authorized to be

;

tried in federal courts rather than left to tribal con-

cern, the “‘lesser included offense’’ doctrine does not

apply so as to expand the scope of federal jurisdic-

% tion.

5. Finally, we note that nothing in 18 U.S.C. 3242,

the procedural statute that lists the Indian of-

a fenses that are triable in federal courts, alters that

conclusion. Petitioner notes that 18 U.S.C. 3242

provides that Indians committing the specified of-

fenses “ shall be tried “in the same courts, and in the

same manner’’ (emphasis supplied) as all other per-

sons committing such crimes ‘‘within the exclusive

jurisdiction of the United States.’’ From this he seeks

to argue, as we understand it, that a non-Indian

charged under a statute like the Assimilative Crimes

Act, 18 U.S.C. 13, would be subject to all the sub-

stantive criminal laws of the state and thus could in-

voke the lesser-included-offense doctrine to bring him-

self within included state offenses. From the:language

of Section 3242, he suggests that he is entitled to be

tried ‘‘in the same manner’’ as such a defendant,

even though the Major Crimes Act reflects a totally

different congressional approach to the purposes and

extent of federal criminal jurisdiction than does the

18 U.S.C. 3242 enumerates all of the offenses specified in

the Major Crimes Act except the most recent addition, “as-

sault resulting in serious bodily injury’—the basis of the

present charge. The omission is probably a congressional over-

sight. The general jurisdictional provision in 18 U.S.C. 3231,

creating original jurisdiction in the district courts to entertain

prosecutions “of all offenses against the laws of the United

States” is broad enough to a violations of the Major

Crimes Act, 18 U.S.C. 1153.

Assimilative Crimes Act..The short answer to this

contention is that the clause of Section 3242 to which

petitioner points simply provides that the ordinary

trial procedures apply in Indian cases. It does not

purport to expand the list of offenses made triable.

For these reasons, the trial judge was correct when

he viewed himself as without statutory authority to

suggest to the jury that it could return a verdict on an

offense—simple assault—not included by Congress in

the Major Crimes Act.

II -¢

THE DECISION BY CONGRESS NOT TO EXTEND FEDERAL JU-

RISDICTION UNDER THE MAJOR CRIMES ACT TO UNSPECI-

FIED LESSER OFFENSES DOES NOT DENY DUE PROCESS TO

INDIANS CHARGED UNDER THE ACT

Petitioner makes several related constitutional

challenges to the Major Crimes Act to the extent

that it does not permit consideration of what might

otherwise -be regarded as lesser included offenses. We

shall demonstrate that the system designed by Con-

gress represents a fair and rational classification that

does not invade any constitutionally protected rights.

A. THE MAJOR CRIMES ACT DOES NOT INVIDIOUSLY DISCRIMINATE

AGAINST INDIANS

Petitioner contends that, because one of the fac-

tors that controls the application of the special crimi-

nal provisions of the Major Crimes Act is his status

as an Indian (the other being the locus of the crime

in the Indian country), the statutory classification is

unconstitutionally based on race.

While racial classifications are constitutionally sus-

pect, Korematsu vy. United States, 323 U.S. 214, 216;

Hunter v. Erickson, 393 U.S. 385, 391-393, and may

amount to a violation of due process of law under the

Fifth Amendment, Bolling v. Sharpe, 347 U.S. 497, 499,

there is no such invidious discrimination here. If the

petitioner in this case committed a crime outside Indian

country he would be subject to the laws of the state and

the nation identically to any other citizen. The Major

Crimes Act, which rests in part on the special con-

eressional power over Indian reservations, reflects

no racial discrimination against Indians. The Act

merely manifests congressional concern that a nar-

row class of Indian crimes should be federalized,

while at the same time continuing the general policy

of deference to tribal jurisdiction over Indians in

Indian country, a jurisdiction recognized by this Court

in numerous decisions, e.g., Ex parte Crow Dog, 109

U.S. 556; United States v. Kagama, 118 U.S. 375;

Williams v. Lee, 358 U.S. 217. Denying federal courts

jurisdiction over lesser included offenses in this sit-

uation is a recognition of valid Indian interests, not

a discrimination against Indians.”

*The centrality of tribal courts to the preservation of In-

dian cultural and political identity has been amply documented

in opinions and commentaries. See Ai7/s Crow v. United States.

451 F. 2d 323 (C.A. 8), certiorari denied, 405 U.S. 999. Several

justifications have been advanced for maintaining an independ-

ent system of tribal courts. Effective application of Indian law,

which in comparison to federal and state systems shows a

stronger inclination to “restitutive” rather than “retributive”

justice, may well call for a specialized judge capable of per-

forming the arbitral duties of the tribal elder. Many Indians

also feel that they will receive more equitable treatment in In-

dian courts than in others, Furthermore, many Indians see tribal

The primary purpose in limiting federal jurisdic-

tion to the specified serious offenses listed in the

Major Crimes Act is to allow tribal courts to adjudi-

cate all other offenses, a power which Congress and

this Court have traditionally regarded as important

to the preservation of tribes as self-governing units.

The federal government’s Indian policy, though

protective of the opportunity for assimilation, has

recognized the desirability of supporting tribal self

government. See, e.g., Wheeler-Howard (Indian Re-

organization) Act, 48 Stat. 987, 25 U.S.C. 476, et seq.

The tribal court system is an important part of this

self government. See Walliams v. Lee, supra. A con-

tinuing Indian and congressional concern for the pres-

ervation of the jurisdiction of tribal courts is apparent

in the passage of the Indian Bill of Rights in 1968, 82

Stat. 78, 25 U.S.C. 1311-1325, requiring Indian con-

sent for further cessions of jurisdiction to the states

and strengthening the procedures of tribal courts.”

justice as reflecting a unique concern for the individual defend-

ant, as evidenced, for example, by the relaxed procedures for

granting pre-trial release on personal recognizance, Note, Zhe

Indian: The Forgotten American, 81 Harv. L. Rev. 1818. 1S34—

1837 (1968). See Hearings before the Subcommittee on Constitu-

tional Rights of the Senate Committee on the Judiciary on the

Constitutional Rights of the American Indian, S. Res. 53,

sith Cong., Ist Sess. (Part I), pp. 15-16 (1961).

*® The Senate Conmnittee responsible for the Indians Bill of

Rights Act, continually inquired whether the Bill's criminal

procedural standards would excessively burden tribal courts.

See ¢.g., Hearings before the Subcommittee on Constitutional

Rights of the Senate Committee on the Judiciary on Constitu-

tional Rights of the American Indians, S. Res. 53. STth Cong.

Ist Sess. (Part 1), pp. 99, 147 (1961) ; Hearings before the Sub-

committee on Constitutional Rights of the Senate Comuiittee on

the Judiciary on Constitutional Rights of the American Indian.

S. Res. 58, 88th Cong., Ist Sess. (Part 4), pp. 873-875 (1963).

The extension of federal jurisdiction under the

Major Crimes Act to minor offenses such as simple

assault, even if restricted to instances where a federal

court has jurisdiction over a greater offense, neces-

sarily increases the jurisdiction of federal courts and

diminishes the heretofore exclusive jurisdiction of

tribal courts over the lesser offenses. The ruling peti-

tioner seeks would, under the principle of mutuality,

empower federal prosecutors, dissatisfied with the

leniency of tribal courts, to prosecute in marginal

cases, knowing that if the major offense is not proved

the penalty for the minor offense would be more

substantial than in the tribal courts. See note 13, supra.

This Court has recently expressed its unwillingness

to interpret an act of Congress as depriving an In-

dian tribe of jurisdiction over its people except to the

extent and in the fashion clearly provided by Con-

gress. Kennerly v. District Court of Montana, 400

U.S. 423; see also, Menominee Tribe v. United States,

391 U.S. 404..

Under these circumstances, the decision‘ by Con-

gress to withdraw jurisdiction from Indian tribes

Significantly, the committee rejected proposals that the Bill re-

quire non-establishment of religion and prohibitions of racial

classifications in voting for fear that such requirements would

threaten the cultural autonomy of the tribes. See Hearings before

the Subcommittee on Constitutional Rights of the Senate Com-

mittee on the Judiciary on Constitutional Rights of the American

Indian, 89th Cong., 1st Sess., pp. 18, 21, 221 (1965) ; Staff of Sub-

committee on Constitutional Rights of Senate Committee on the

Judiciary on Constitutional Rights of the American Indian, 89th

Cong., 2d Sess., pp. 9-11 (Comm. Print 1966) ; Note, The Indian

Bill of Rights and the Constitutional Status of Tribal Govern-

ments, 82 Harv. L. Rev. 1343 (1969). See also, Kerr, Constitu-

tional Rights, Tribal Justice, and the American I ndian, 18 J. Pub.

I.. 511, 328 (1969).

only on a limited basis is proper and reasonable. The

problem of defining the respective spheres of federal

and tribal jurisdiction is a sensitive and difficult one.

As this Court recently explained in rejecting an “‘in-

vidious classification” contention in McGinnis v.

Royster, No. 71-718, decided February 21, 1973 (41

U.S.L.W. 4259, 4263), “legislative solutions must be

respected if the ‘distinctions drawn have some basis in

practical experience,’ South Carolina v. Katzenbach,

383 U.S. 301, 331 (1966), or if some legitimate state in-

terest is advanced. Dandridge v. Williams, 397 U.S. 471,

486 (1970).” Measured by these standards, an Indian’s

ineligibility for lesser-included-offense consideration

under the Major Crimes Act is compatible with due

process concepts of non-disgrimination.”

B. THIS COURT HAS NEVER RECOGNIZED A CONSTITUTIONAL RIGHT TO

AN INSTRUCTION ON A LESSER INCLUDED OFFENSE AND SHOULD

NOT CREATE SUCH A RIGHT IN THIS CASE

1. The lack of statutory authority for a federal

trial court to permit the jury to consider a lesser

offense not specified in the Major Crimes Act satis-

fies the ‘‘fundamental fairness’’ test of the due proc-

ess clause. This Court for good reason has never

held that a defendant has a constitutional right to a

“lesser included offense” limitation.

Instructions on lesser included offenses necessarily

cut two ways. They permit a jury to convict the

defendant of a crime even though the elements of

*° To the extent that the safeguarding of tribal jurisdiction

over minor offenses is intended to benefit Indians, the problem

presented in the instant case is analogous to cases involving a

“benign” racial classification. Cf. Katzenbach vy. Morgan, 384

ecrcmemmnanes OLLIE LE ILI SNS ENT RENTON TE AT Os ee yn yt lg

the crime specifically charged in the indictment have

not been proved. If the jury strictly obeys its oath

in assessing the original charge there is no advan-

tage for the defendant in such an instruction, since

he weld otherwise go free. From the defendant's

standpoint, the interest in requesting a lesser included

offense instruction must necessarily be a hope that

the jury will return a compromise verdict rather than

fulfill its duty to say ‘‘guilty” or “not guilty” to the

Gffense charged, depending only on the sufficiency

of the proof of that crime beyond a reasonable doubt.

In addition, such an instruction permits the jury to

invade the sentencing province of the judge by con-

vieting of the lesser offense in order to achieve a

lesser penalty, even though all the elements of tlie

major offense have been proved. |

The lesser-ineluded-offense doctrine developed as

an aid to the prosecution, since it permitted con-

victions on lesser included crimes that could not

subsequently be prosecuted without offending the

double jeopardy clause. See Sparf and Hansen v.

United States, 156 U.S. 51, 63-64; Kelly v. United

States, 370 F. 2d 227 (C.A.D.C.), certiorari denied, 388

U.S. 913. See also 2 Wright, Federal Practice and

Procedure, § 515, pp. 371-375 (1969). Now the defend-

ant may invoke the doctrine but not in a situation in

which the prosecutor cannot invoke it. Kelly v. United

States, supra;370 F. 2d at 229. This Court has seldom

ruled on the doctrine and then only in the context of de-

termining congressional intent under particular stat-

U.S. 641, in which this Court upheld a Congressional <istine-

tion in voting rights depending upon education in non-English

schools in Puerto Rico.

utes. See Sansone v. United States, 380 U.S. 343;

Berra y. United States, 351_U.S. 131; Spies v. United

States, 317 U.S. 492; see also Sparf and Hansen v.

United States, supra. Although general practice and

Rule 31(¢c) of the Federal Rules of Criminal Proce-

dure now sanction defense requests for such instrue-

tions as providing the defense with an additional

tactical option, this privilege has not been regarded

as essential to a fundamentally fair trial.

The constitutionality of precluding consideration of

what might be lesser included offenses in certain

kinds of prosecutions has rarely been litigated. We

discussed above (pp. 16-18) some instances of di-

vided jurisdiction that justify, even if they do not

compel, the refusal to consider less serious’ crimes

than the one charged. A similar lack of statutory

power to instruct on a lesser included offense can

-oceur when a juvenile has committed a serious of-

— fense. This was the situation before the Court of

Appeals for the Second Circuit in United States ex rel.

Dé Flumer v. M ancust, 443 F. 2d 940. Under New York

law a juvenile could be held criménally liable only

for a few serious acts punishable by death; other

offenses were considered non-eriminal juvenile de-

linqueney, A juvenile who had hanged a small child

pleaded guilty to second degree murder. Later, on

a petition for habeas corpus, he argued that the con-

sequence of New York’s restricted definition of ju-

venile criminality was that a juvenile defendant

could be convicted of murder in the first or second

degree but could not be convicted of manslaughter

even though an older defendant would have the pos-

sibility of urging manslaughter as a lesser included

—— LIDIA LEO TE LEE IT a AR ss

offense. The juvenile contended that his plea of guilty

to second degree murder was motivated by this al-

legedly unconstitutional discrimination and should be

set aside. The Second Circuit rejected the argument

that the New York system was unconstitutional. The

court first observed that it could not assume that the

absence of the possible compromise verdict of man-

slaughter works to the defendant’s detriment; rather,

the system is legally neutral because it can result in

an outright acquittal as well as conviction of a lesser

offense. The court then suggested that if a defend-

ant felt disadvantaged by the absence of the lesser

offense instruction he could request that the jury be —

told (444 F. 2d at 942):

* * * that if the jury should find the elements

of the crime of manslaughter alone, it should

return a verdict of acquittal. The jury, how-

ever, could also be told that the defendant

would remain liable to treatment as a juvenile

delinquent. * * *

In the present case, the limitation on the verdicts

that can be returned is not designed to protect resid-

ual state jurisdiction, or to preserve a separate

system of juvenile courts, but is to protect the juris-

diction of tribal courts. Although the objectives vary

slightly, the legislative decision to preclude lesser-

included-offense treatment, as held in Mancusi, fully

comports with the due process clause.

2. Petitioner has not been prejudiced ‘by the re-

fusal of the instruction he requested.

We note at the outset that the evidence at trial

clearly permitted a jury to find the requisite intent,

a ” ee ee = bap 5 alata

ww 27

the element distinguishing the crime charged from

simple assault. Especially persuasive on this point

were the severity of the beating, as evidenced by the

visible damage to the victim’s body, and petitioner’s

own statement that he “‘wanted to give Pomani a

good beating.” The trial judge properly instructed

the jury on the element of intent. The jury thus had

the relevant criteria in mind when finding petitioner

guilty beyond a reasonable doubt. Significantly, Al-

fred Kennedy, petitioner’s accomplice at the time

of the assault, was convicted by a separate jury of

the same charges. In the opinion of the trial judge,

expressed at the sentencing, petitioner was even

“more guilty”’ than Kennedy (Tr. 342).

If the jury had_not found petitioner guilty of the

crime charged, there is no reason to believe that it

would have convicted him. The only advantage peti-

tioner could have received from a lesser included

offense instruction is that the jury, faced with an

extra alternative, might have rendered a compromise

verdict of simple assault. That is, petitioner’s argu-

ment is grounded on the assumption that given the

choice between conviction of the greater offense and

acquittal, the jury might opt for conviction out of a

sense that acquittal cannot be tolerated under these

facts. Petitioner, however, could have employed other

measures substantially equivalent in psychological ef-

fect to the giving of a lesser included offense instrue-

tion but consonant with the jurisdiction of the court

as suggested in United States ex rel. De Flumer v. Man-

cust, supra: He could have pointed out to the jurors—

by way of closing argument or by requesting an instruc-

tion from the court—that the federal court has jurisdic-

tion only over the major offense ; that if they should find

the elements only of simple assault, a verdict of acquit-

tal must be returned; that he would not necessarily go

unpunished if they found him innocent of the crime

charged; and that as to any lesser crime, such as

simple assault, the decision is reserved to another

tribunal.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the judgment of the court of appeals

should be affirmed.

eg wae Oe ae ee

ErRWIN N. GrIswoLp,

Solicitor General.

| Henry E. PEerersen,

Assistant Attorney General.

Puiuip A. Lacovara,

Deputy Solicitor General.

Harry R. Sacuse,

Assistant to the Solicitor General.

JEROME M. Feit,

Harvey M. Stone,

Attorneys.

spats tthe as a ON taal Selle ee tia

oa.

Marcu 1973.

a a ot Adee

U.S. GOVERNMENT PRINTING CFFICE: 19/73

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.