UNITED STATES of America, Appellee, v. Harold DRAPEAU, Jr., Appellant.
No. 10-2159.
United States Court of Appeals, Eighth Circuit.
Submitted: Dec. 16, 2010. Filed: July 8, 2011.
644 F.3d 646
Jay P. Miller, AUSA, argued, Pierre, SD, for appellee.
Before WOLLMAN, BRIGHT, and COLLOTON, Circuit Judges.
WOLLMAN, Circuit Judge.
Harold Drapeau, Jr., was convicted of assaulting, resisting, or impeding a federal officer resulting in bodily injury, in violation of
I. Background
On August 23, 2009, a resident of the Crow Creek Sioux Tribe requested additional police patrol in the East Housing community in Fort Thompson, South Dakota. The resident stated that Drapeau and two other males had left her residence and that they might return and cause a disturbance. Bureau of Indian Affairs (BIA) Officer Marlin Robert Mousseau, Jr., responded to the dispatch and drove towards the East Housing community, ten minutes from his dispatch location. Mousseau‘s vehicle was equipped with a camera, and he wore a remote microphone on his uniform.
BIA Officer Marty Foote also heard the dispatch and stopped three individuals
Mousseau spent the next several minutes attempting to enter the residence by knocking on the front door and hiding in the bushes. He did not have a reason to arrest Drapeau, but wanted to speak with him and to check on the child. Mousseau noticed an open window next to the front door. Looking inside the window, he could see Drapeau‘s mother, Theresa Grassrope, holding the child with her hand over its mouth and whispering in its ear. Mousseau also saw an individual hidden in the curtains, whom he later identified as Drapeau. Because the curtain obstructed his view, Mousseau did not know if Drapeau was armed. Mousseau ordered Grassrope to open the front door and told Drapeau that if he did not move away from the curtain he would be tasered. In an effort to inveigle Grassrope and Drapeau into coming out of the residence, Mousseau told them that he had Medicine Crow in his car and that she had been arrested “for no reason.” After Drapeau and Grassrope failed to come out or open the door, Mousseau threatened to arrest Grassrope for obstruction if she did not open the front door. She replied that she could not do so because it was not her home. Mousseau responded that if Grassrope did not open the door, he would crawl through the window and she would go to jail.
After Mousseau failed to gain entrance through the front door, he broke the screen off the front window. As Mousseau put his right arm through the window, Drapeau pressed the window downward against Mousseau‘s arm, injuring it. Using his left arm, Mousseau pushed the window up and released his right arm. He then deployed his taser into the home. Drapeau ceased pressing down on the window and ran towards the back of the home.
Mousseau ran around outside to the backyard, where he met Drapeau exiting through the back door. Mousseau arrested Drapeau, placed him in the BIA vehicle, and then entered through the back door to arrest Grassrope, who had locked herself and the child in a bathroom. Mousseau demanded she come out, stating “I‘m gonna make true with my promise” and that
Drapeau was indicted for assaulting, resisting, or impeding a federal officer resulting in bodily injury, in violation of
Drapeau sought to use the character evidence to prove his intent to defend himself and his family and to prove his state of mind. He asserted that the evidence would demonstrate Mousseau‘s reputation for violence, aggressiveness, and excessive use of his taser. Drapeau also sought to inquire of character witnesses as to Mousseau‘s reputation in the community. During the pretrial conference, the government objected to the evidence, arguing that the resolutions and reputation testimony were irrelevant to demonstrate Drapeau‘s state of mind unless he was aware of them before the incident. Drapeau responded that the offered evidence did not constitute
After the government presented its case, the district court held a hearing outside the presence of the jury. Drapeau moved for a judgment of acquittal on the grounds that Mousseau was not acting within his official capacity and that Drapeau was acting reasonably in self-defense. The district court denied his motion.
Following the denial of the motion, Drapeau made an offer of proof of the tribal resolutions and urged their admission as character evidence pursuant to
As indicated earlier, the district court sentenced Drapeau to twenty-seven months’ imprisonment and three years of supervised release and announced the conditions of the supervised release. Two days after the sentence was imposed, the district court issued a written order containing the supervised release conditions.
II. Discussion
A. Judgment of Acquittal
Drapeau argues that the district court erred in denying his motion for a judgment of acquittal. He asserts that the evidence was insufficient to prove that Mousseau was performing his official duties at the time of the alleged assault and that Drapeau was not acting in self-defense.3 He asserts that he had a right to close and secure the window in an effort to defend against an unlawful, forcible, and warrantless entry into his home. We review de novo a district court‘s denial of a motion for a judgment of acquittal. See United States v. Dinwiddie, 618 F.3d 821, 832 (8th Cir. 2010) (citing United States v. Hodge, 594 F.3d 614, 617 (8th Cir. 2010)). “We will affirm if the record, viewed most favorably to the government, contains substantial evidence that supports the jury‘s verdict.” Id. “Substantial evidence is evidence sufficient to prove all the elements of the offense beyond a reasonable doubt.” Id.
The government was required to prove that: (1) Drapeau forcibly assaulted, resisted, opposed, impeded, intimidated, or interfered a federal officer employed as a police officer by the Bureau of Indian Affairs; (2) the alleged offense was committed voluntarily and intentionally; (3) the alleged offense resulted in bodily injury to Mousseau; (4) at the time of the alleged offense, the officer was doing what he was employed by the federal government to do and not deviating from the employer‘s business for personal reasons; and (5) that Drapeau was not acting in self-defense. Drapeau does not challenge the sufficiency of the evidence with respect to the first three elements.
1. Performance of Official Duties
Drapeau contends that Mousseau acted illegally and that the assault therefore could not have occurred while Mousseau was engaged in the performance of his official duties. See
Whether Mousseau was a federal officer within the meaning of
There was substantial evidence that Mousseau was engaged in the performance of his official duties. The government presented evidence that Mousseau had been a BIA officer since 2002 and was on duty as a BIA officer August 23, 2008. In the early morning hours of August 23, 2008, Mousseau was dispatched to address an incident involving Drapeau, who had shortly before run away from an officer and was headed towards his home. Mousseau testified that at the time of the incident he had concerns for a child‘s welfare and his own safety because of the individual hidden behind a curtain. Thus, the evidence was sufficient to support the jury‘s finding that Mousseau was engaged in the performance of his duties as a federal officer at the time of the assault and not in a personal frolic.
2. Self-Defense
Drapeau asserts that the government failed to prove that he was not acting in self-defense. He contends that the
An individual is not justified in using force for the purpose of resisting arrest or other performance of duty by a law enforcement officer within the scope of his official duties. See United States v. Schmidt, 403 F.3d 1009, 1016 (8th Cir. 2005) (citing United States v. Dawdy, 46 F.3d 1427, 1430-31 (8th Cir. 1995)) (“In our circuit, resistance to an illegal arrest can furnish grounds for a second, legitimate
Excessive force is force that was unreasonable or unnecessary under the circumstances, i.e., greater than the amount of force that was objectively reasonable. See Shannon v. Koehler, 616 F.3d 855, 862 (8th Cir. 2010). “The reasonableness of a particular use of force depends on the circumstances of each case, including ‘the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.‘” Id. (quoting Wertish v. Krueger, 433 F.3d 1062, 1066 (8th Cir. 2006)).
There was substantial evidence that Mousseau did not use excessive force. Drapeau had fled from an officer earlier that night before the officer was able to question him. Although Mousseau testified that there were no exigent circumstances requiring his immediate admission into the home, he also testified that he had concerns about the welfare of a child and his personal safety. Mousseau had attempted to gain access to the home for several minutes by knocking on the door, concealing himself in the yard, and speaking through the open window. The jury heard the audio recording, which revealed that Mousseau threatened to deploy his taser into the home if he was not admitted. A reasonable jury could conclude that Mousseau did not use excessive force in performing his official duties and that Drapeau did not act in self-defense when he closed the window on Mousseau‘s arm. Accordingly, the district court did not err in denying the motion for a judgment of acquittal.
B. Character Evidence
Drapeau contends that the district court improperly excluded the proposed evidence of Mousseau‘s reputation for aggression and unlawfulness. “We review the evidentiary rulings of a district court only for abuses of discretion, and will reverse only when an improper evidentiary ruling affects the substantial rights of the defendant or when we believe that the error has had more than a slight influence on the verdict.” United States v. Gregg, 451 F.3d 930, 933 (8th Cir. 2006) (citations omitted). “Evidence of a person‘s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion,” except in criminal cases when it is “evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused.”
Drapeau now asserts on appeal that he offered the tribal resolutions and memo to demonstrate that Mousseau was the first aggressor. In Drapeau‘s pretrial notice of intent to present evidence and during the pretrial conference, he cited
In light of Drapeau‘s stated purpose, it was understandable why the district court was under the impression that Drapeau was actually seeking to present the evidence pursuant to
C. Supervised Release Conditions
Drapeau contends that the additional supervised release conditions imposed by the district court violated the Double Jeopardy Clause.
Drapeau contends that the district court improperly added two new mandatory conditions and thirteen new discretionary conditions to his supervised release terms. Drapeau contends that the district court failed to state at the sentencing hearing that he would be subject to the mandatory condition requiring his cooperation in the collection of his DNA. This is incorrect. At the sentencing hearing the district court specifically stated “The defendant shall cooperate in the collection of DNA, pursuant to
Drapeau argues that the district court also erred in adding to the written judgment the statutory condition that he “shall submit to one drug test within fifteen days of release from imprisonment and at least two periodic drug tests thereafter, as directed by the court [pursuant to
At the sentencing hearing, the district court attempted to order Drapeau to submit to drug testing as noted in the written judgment, however, it apparently inadvertently said that the testing was required within fifteen days of the date of “sentencing,” not “release from imprisonment.” The record is clear that the district court attempted to recite the mandatory, standard, and special conditions of supervised release as outlined in
Drapeau‘s responsibility to submit to drug testing was also required by one of his special conditions that was recited during sentencing. It provided that “The defendant shall submit a sample of his blood, breath, or urine at the discretion and upon the request of the probation officer.” We conclude that the written mandatory drug testing condition is consistent with the oral pronouncement. The district court did not abuse its discretion by including the mandatory condition in the written judgment.
Finally, Drapeau contends that the district court erred in adding thirteen discretionary conditions to his supervised release. Drapeau failed to object during sentencing to the district court‘s requirement that Drapeau “shall comply with the standard conditions that have been adopted by this court.” Thus, we review only for plain error. See United States v. Simons, 614 F.3d 475, 478 (8th Cir. 2010). “Plain error occurs if the district court deviates from a legal rule, the error is clear under current law, and the error affects the defendant‘s substantial rights.” Id. at 479 (quoting United States v. Crose, 284 F.3d 911, 911, 912 (8th Cir. 2002)). The error must also “seriously affect the fairness, integrity or public reputation of judicial proceedings.” Id. (citations omitted). As stated above, a number of circuits have held that a district court may refer generally to the standard conditions of the U.S. Sentencing Guidelines in § 5D 1.3 and is not required to manually recite each mandatory and standard condition of supervised release. See, e.g., United States v. Little Bear, 413 F. App‘x 942, 944-45 (8th Cir. 2011) (unpublished); Napier, 463 F.3d at 1043; Vega-Ortiz, 425 F.3d at 22; United States v. Vega, 332 F.3d 849, 853 n.8 (5th Cir. 2003) (“Although we require special conditions like drug treatment to be included in the oral pronouncement of sentence, ‘explicit reference to each and every standard condition of supervision is not essential to the defendant‘s right to be present at sentencing.’ This difference in law reflects the distinction between the general applicability of the standard (and mandatory) conditions and the discretionary applicability of the special ones.” (citations omitted)); Truscello, 168 F.3d at 63-64.
The district court stated that the court‘s standard conditions applied to Drapeau. In the written judgment, it enumerated the
III. Conclusion
Accordingly, we affirm Drapeau‘s conviction and his sentence.5
I agree with the majority that sufficient evidence supports the convictions and that the district court did not err in imposing supervised release conditions. I also agree that the district court did not err in excluding from evidence the tribal resolutions and memorandum to Senator John Thune. But I disagree that the district court did not err in excluding evidence of Officer Mousseau‘s reputation.
The government claims that Drapeau could have introduced other witnesses who would “testify regarding their knowledge of Officer Mousseau‘s reputation in the community for aggression or violence.” Indeed, Drapeau attempted to call such witnesses, but the district court refused to allow these witnesses to testify. The record reflects that he attempted to do so not once, but twice.
Before trial, Drapeau moved in limine to admit the tribal resolutions and memorandum to Senator Thune. During the pretrial discussion of this motion, the government asserted that only Drapeau should be permitted to testify about Officer Mousseau‘s reputation. The government stated that it “[did] not believe that anybody else can take the stand and say that [Officer Mousseau] had a reputation in the community for having a violent nature.” Trial Tr. 14. Drapeau responded that he “had the chairman of the Winnebago Tribe, John Black Hawk, ready to come up here and testify as to the problems that they had with him there, in general, his character traits which led him to ... be forced out of that community.” Trial Tr. 16-17. The district court stated that it would view “the information from others about Officer Mousseau ... very skeptically.” Trial Tr. 18.
Drapeau then asked the district court to clarify its ruling on whether witnesses could testify as to Officer Mousseau‘s reputation. Drapeau stated,
I do have a question regarding the character of the — the alleged victim in this case with respect to the witnesses that take the stand ... in terms of what was — “Please describe for me his reputation in the community as an officer, pertaining to the way that he conducted business.” I think that‘s admissible, and I would ask for a ruling on that particular issue.
Trial Tr. 21. The government responded:
As it relates to these other witnesses, I don‘t care if they are my witnesses or the defense witnesses; their knowledge of [Officer Mousseau‘s] reputation in the community is irrelevant. The only person whose knowledge is relevant is the defendant‘s.
And I cite to [United States v. Bordeaux, 570 F.3d 1041 (8th Cir. 2009)].... That case specifically indicates that the only person‘s knowledge — you know, he — he can‘t claim a reputation gave him a right to defend himself if he wasn‘t aware of that reputation.”
Trial. Tr. 22. The district court then ruled,
Right. The Bordeaux case is instructive. And, [prosecutor], the Court agrees with you: As to the reputation of Officer Mousseau for anything other than truthfulness in his community, his reputation as a police officer, the only — given that self-defense appears to be the defense, the only person who — whose knowledge is pertinent on that subject and on Officer Mousseau and his reputation is Mr. Drapeau‘s. So no other witness is going to be giving that sort of testimony.
Trial Tr. 22-23.
After the government finished its case-in-chief, Drapeau again attempted to have
This was error.
In a criminal case ... evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor.
This court has previously held that a defendant may introduce testimony from other witnesses as to the victim‘s alleged reputation in the community. For example, in United States v. Taken Alive, the government charged Taken Alive with assaulting a police officer. 262 F.3d 711, 711 (8th Cir. 2001). Taken Alive sought to introduce testimony from two witnesses addressing the officer‘s “aggressiveness, quarrelsomeness, and violence in the performance of his duties as an officer.” Id. at 714. The district court prohibited the witnesses from testifying. Id. We reversed the district court, holding that “[w]hen a defendant raises a self-defense claim, reputation evidence of the victim‘s violent character is relevant to show the victim as the proposed aggressor.” Id. We explained that “[a] victim‘s use of unlawful force may justify the defendant‘s reciprocal use of force.” Id. (citing United States v. Keiser, 57 F.3d 847, 854 (9th Cir. 1995)).
Moreover, the district court erred in its reliance on Bordeaux. There, this court held that the defendant was entitled to introduce reputation or opinion testimony pertinent to his self-defense claim. Bordeaux, 570 F.3d at 1050. In that assault case, we held that “the district court properly permitted a number of defense witnesses to testify regarding [the victim‘s] reputation[] for violence.” Id. Accordingly, Bordeaux does not stand for what the district court believed — that Drapeau could not call witnesses to testify as to Officer Mousseau‘s reputation.
Here, the district court reasoned that the evidence was inadmissible because Drapeau did not establish that he knew of Officer Mousseau‘s reputation at the time of the assault. But such knowledge is not required. As explained in the Federal Rules of Evidence Manual, § 404.02[2], at 404-10 (9th ed. 2006):
[Rule 404(a)(2)] permits the accused to introduce evidence of a pertinent character trait of the victim of a crime. The most common example is in a self-defense case. Under the Rule, the defendant is permitted to introduce evidence of the victim‘s character for aggressiveness (subject to the limitations on form provided by Rule 405), to create the inference that the victim acted in accordance with that character trait on the occasion in question. Admissibility is not dependent on the defendant‘s prior awareness of the victim‘s character trait;
the evidence is admissible to show how the victim acted.
See also Keiser, 57 F.3d at 855 (reviewing federal cases and concluding that “[t]hese cases suggest a common understanding in the federal courts that ‘personal knowledge’ of the victim‘s propensity for violence is simply not a prerequisite for admission of victim character evidence under
Although Drapeau objected on several occasions to the district court‘s ruling, he did not specifically raise this issue on appeal. But this failure does not necessarily preclude review of the district court‘s error. See Silber v. United States, 370 U.S. 717, 718 (1962) (reviewing an issue decided by the district court, even though it was not raised on appeal). As we have explained, this court “can examine a critical issue affecting substantial rights sua sponte in criminal cases under
Drapeau‘s substantial rights were undoubtedly affected by the district court‘s erroneous decision to deny him his right to present a defense. This case boiled down to whether Officer Mousseau acted as the aggressor in this incident and whether Drapeau reasonably defended himself and others against the officer‘s unlawful force. As explained, when a defendant puts forth a self-defense theory, “reputation evidence of the victim‘s violent character is relevant to show the victim as the proposed aggressor” and the “victim‘s use of unlawful force may justify the defendant‘s reciprocal use of force.” See Taken Alive, 262 F.3d at 714. Drapeau had a fundamental right to present a defense, see United States v. Turning Bear, 357 F.3d 730, 733 (8th Cir. 2004), and the district court denied him of this right by excluding all evidence of Officer Mousseau‘s reputation for aggression, unlawfulness, and excessive force which should have been admitted under
After considering the clearly established law and the blatant error, I believe that failing to correct this error would result in a miscarriage of justice. Accordingly, I would reverse and remand for a new trial at which the district court should permit Drapeau to introduce testimony of Officer Mousseau‘s reputation in the community.
Finally, I conclude by expressing my extreme disbelief in the treatment Drapeau and his family members received at the hands of Officer Mousseau. His actions were deplorable, beyond reproach and should not be tolerated. Although the law should not permit Drapeau to cause Officer Mousseau physical harm, neither should it entrust Officer Mousseau with the responsibility of safeguarding the well-being of the people living on Indian reservations in South Dakota.