United States v. Wisecarver
2011 U.S. App. LEXIS 13317
| 8th Cir. | 2011Background
- Wisecarver resided on a Pine Ridge Indian Reservation trust tract; BIA oversees trust lands; Wisecarver holds a 1/6 interest with Hughes holding 4/6 and the remaining 1/6 in probate; Wisecarver was the sole resident on the tract.
- In June 2007 Hughes and a potential heir discussed leasing the land; Hughes filed a lease application with the BIA in April 2008, prompting Bourne, a BIA soil conservationist, to assess the land.
- Bourne traveled in a BIA pickup and observed Wisecarver approaching on foot after the truck entered the property; Bourne testified he drove slowly among horses to observe brands, while Wisecarver testified Bourne drove aggressively.
- Wisecarver fired a rifle at Bourne’s Bureau of Indian Affairs truck, hitting the vehicle; Bourne abandoned the property and left on foot.
- Wisecarver was charged with depredation of government property (and assault, later acquitted on the assault), found guilty of depredation on remand after a prior judgment was vacated due to a flawed jury instruction, and sentenced to 36 months; on appeal, the court upheld the conviction and sentence but vacated three special conditions of supervised release and remanded for individualized consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of prior mandate on retrial | Wisecarver argues retrial was outside mandate. | Wisecarver's position is that remand limited issues; district court could retrial. | Retrial was within the district court’s remand authority. |
| Recusal of district court on remand | District judge biased based on prior remarks; recusal necessary. | No deep-seated bias; remarks do not require recusal. | No abuse of discretion; denial of recusal affirmed. |
| Jury instruction on trespass | Instruction 8 prejudiced defense by stating Bourne was not a trespasser. | Instruction correctly stated trespass-justification rule under SD pattern; misstatement allegedly harmless. | Instruction 8 was harmless error; no prejudice to Wisecarver. |
| Obstruction of justice enhancement at sentencing | Perjury finding insufficient to support §3C1.1 enhancement. | District court properly found perjury based on false testimony about Bourne’s actions. | Enhancement affirmed; perjury supported by record. |
| Three special conditions of supervised release | Conditions 1, 2, and 5 lack individualized basis and explanation; plain error. | Conditions reasonably related to factors; no error in imposition. | Vacate conditions 1, 2, 5; remand for individualized assessment. |
Key Cases Cited
- United States v. Castellanos, 608 F.3d 1010 (8th Cir. 2010) (mandate scope on remand governs issues decided by appellate court)
- Burks v. United States, 437 U.S. 1 (U.S. 1978) (double jeopardy limits retrial when evidence is insufficient)
- Liteky v. United States, 510 U.S. 540 (U.S. 1994) (adverse judicial rulings do not by themselves require recusal absent deep-seated bias)
- Boesen v. United States, 541 F.3d 838 (8th Cir. 2008) (perjury enhancement §3C1.1; must be preponderance of evidence)
- Curry v. United States, 627 F.3d 312 (8th Cir. 2010) (plain-error review for 3583(d) conditions requires individualized assessment)