908 F.3d 1141
8th Cir.2018Background
- On July 12, 2015, Ferris Brings Plenty was killed in a violent group beating on the Pine Ridge Reservation; defendant Calmer Cottier was charged with second-degree murder (and aiding/abetting), conspiracy to commit assault, and solicitation to commit a crime of violence; a jury convicted on murder and conspiracy and acquitted on solicitation.
- At trial, witnesses described Cottier participating in a coordinated attack: entering the yard, attacking Brings Plenty (including kicking), and others striking with a stick and machete; Brings Plenty died of blunt-force trauma.
- Key contested factual points included whether Cottier threw a cinder block (testified by co-defendant Goings) and the import of plea factual-basis statements from cooperating co-defendants.
- The government relied on aiding-and-abetting theory; malice may be established by reckless, wanton conduct showing awareness of a serious risk of death.
- Trial evidence also included testimony about a preceding gang "training" sexual incident; the court admitted it but gave cautionary instructions and elicited clarifying testimony about age and consent.
- Cottier was sentenced to 210 months; he appealed claiming insufficiency of evidence, erroneous jury instruction, prosecutorial vouching and improper admission of evidence (training), and Guidelines criminal-history calculation.
Issues
| Issue | Cottier's Argument | Government's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for aiding and abetting second-degree murder | Goings’s testimony about the cinder block was unreliable; without it no reasonable jury could find Cottier guilty | Multiple witnesses placed Cottier actively participating in a continuous, violent beating that caused death; credibility is for the jury | Affirmed — viewing evidence in government’s favor, substantial evidence supports conviction |
| Jury instruction on aiding/abetting second-degree murder | Instruction allowed conviction on mere intent to assault rather than intent to facilitate the murder | Instruction required willful action with malice aforethought (including callous, wanton disregard), tying intent to the killing | Affirmed — instruction correctly linked intent to the killing and tracked precedent |
| Prosecutorial vouching and admission of co-defendants’ factual-basis statements | Prosecutor vouched for Goings; admission of plea factual-basis statements impermissibly bolstered witnesses | Prosecutor’s statements were explanations of corroboration, not personal vouching; factual-basis statements were admitted with limiting instruction and with some defense consent; overwhelming evidence of guilt | Affirmed — no reversible plain error; statements permissible and not prejudicial given context and evidence |
| Admission of testimony about gang "training" sexual incident | Testimony was minimally relevant, highly prejudicial, and risked misleading the jury about rape/age allegations | Evidence bore on gang mentality and presence of other conspirators; court mitigated prejudice with cautionary instructions and follow-up questioning | Affirmed — admission was close call but not reversible; judge cured prejudice and any error was harmless given overwhelming evidence |
| Criminal-history calculation (juvenile adjudication points) | Court erred in adding two points for 2006 juvenile adjudication | Time in confinement after revocation exceeded 60 days and release was within five years; points properly assessed; district court nonetheless departed to Category I | Affirmed — points proper; any error harmless because court departed to Category I |
Key Cases Cited
- Rosemond v. United States, 572 U.S. 65 (aider-and-abettor must intend to facilitate the specific charged offense)
- United States v. Kelly, 436 F.3d 992 (standard for reviewing sufficiency of the evidence)
- United States v. Borders, 829 F.3d 558 (aiding-and-abetting requires affirmative act and intent to facilitate the offense)
- United States v. French, 719 F.3d 1002 (malice may be shown by reckless and wanton conduct)
- United States v. Grey Bear, 828 F.2d 1286 (distinguishable precedent on beating cases where temporal sequence created alternative causation)