Lorry Van Chase and Bobby LaVallie were each convicted after a jury trial of kidnapping, 18 U.S.C. §§ 1153, 1201(a)(2); assault with intent to do bodily harm, 18 U.S.C. §§ 1153, 113(a)(3); and use of a firearm during a crime of violence, 18 U.S.C. § 924(c)(1). They were each sentenced by the district court 1 to 130 months. On appeal they seek a new trial because of certain evidentiary rulings, comments by the court during voir dire, and an encounter between a juror and LaVallie during trial. Van Chase asserts in addition that the charges against *581 him should be dismissed for lack of a speedy trial and that his sentence should not have been enhanced for a leadership role.
Van Chase and LaVallie are enrolled members of the Turtle Mountain Band of Chippewa Indians, as is Jerelyn LaFountain. After LaFountain broke off a relationship with Van Chase, he continued to pursue her at her workplace and at her home in Belcourt, North Dakota on the Turtle Mountain Indian Reservation. At about 5 a.m. on May 17, 1996 he and LaVallie went to her house and banged on the door. Both men had previously been seen at a party where they stayed until about 4 a.m. and where Van Chase had been drinking from a large bottle of whiskey.
When LaFountain came to the door, Van Chase and LaVallie forced their way into the house. Each was carrying a gun. Van Chase told LaVallie to check if anyone else was in the house and then demanded that LaFountain leave with them. When she refused repeated demands to accompany them, Van Chase punched her, pointed his gun at her children, and threatened to Mil them. She yelled for the intruders to leave, but Van Chase told her to “shut up or you will watch your Mds die.” Van Chase and LaVallie threatened her with their guns and a Mtchen knife and began to Mt her. Van Chase ordered LaVallie to grab LaFountain and they then dragged her out of the house, punching her as they went. They got into Van Chase’s truck, and he told LaVallie to knock her out. They drove off with LaVallie at the wheel and Van Chase holding LaFountain down. Van Chase poked LaFountain with a knife and told her to keep quiet, that she “was going to die,” and that he was “going to bury” her. When LaFountain saw they were passing her cousin’s house, she slammed the brakes on the truck and grabbed the steering wheel, but Van Chase punched her in the eye and split it open.
The three drove on to Van Chase’s house which was outside the reservation. At the house Van Chase again pointed his gun at LaFountain and threatened to Mil her before dragging her out of the pickup by her hair. LaFountain protested that she was cold and had no shoes. Van Chase told LaVallie to give her shoes and a coat to wear and a rope and sM mask to carry, and threatened to “blow her away” if she dropped them. As they moved towards a wooded area, LaFoun-tain used the sM mask to clear blood from her eye and heard Van Chase tell LaVallie, “I ain’t going to fuck this bitch. I’m going to Mil her.” They arrived at a spot where she saw a supply of liquor and cigarettes and a black dufflebag. Van Chase told LaFountain to look inside the bag because her ex-boyfriend’s head was in it, but she declined. Van Chase then ordered LaFountain to sit on a car hood in an' adjacent area cluttered with junk. He fired his gun into the hood and told her that “that could have been your head.” LaFountain expressed concern about her children, and Van Chase ordered LaVal-lie to go get them. While LaVallie left to return to the reservation in the pickup to collect the children, Van Chase and LaFoun-tain returned to the house. Van Chase gave LaFountain .a sweatshirt and pants to put on, and she discarded her nightshirt on the floor.
LaVallie returned with the children and left again when Van Chase instructed him to hide Ms gun, and Van Chase and LaFountain went back to her house on the reservation. LaFountain then took Van Chase’s truck because her ear would not start. After dropping her children off at a friend’s house, she drove to the hospital to have her injuries treated and then to the police station to report what had happened.
State police obtained and executed a search warrant for Van Chase’s house and the surrounding property later that day. There they found LaFountain’s nightshirt and the sM mask she had carried. Both had blood on them which DNA tests showed to be consistent with her blood. In a nearby grove of trees they found a black dufflebag arid a cache of liquor and cigarettes. They also found boards in which nails had been driven and several spent shotgun shells. The FBI later obtained and executed a federal search warrant for Van Chase’s pickup: Hair samples and scrapings of dried blood were taken. DNA tests showed the blood to be consistent with LaFountain’s, as were the hair samples wMch had been ripped from the scalp.
*582 Van Chase and LaVallie argue on appeal that they are entitled to a new trial because evidence of events that took place off the reservation should not have been admitted. Federal jurisdiction over the kidnapping and assault charges arises under 18 U.S.C. § 1153 for specific crimes committed by an Indian in Indian country. They argue that evidence of acts committed elsewhere than in Indian country should therefore not have been admitted. They also claim for the first time on appeal that these acts were other crimes evidence inadmissible under Federal Rules of Evidence 404(b) and 403.
Evidentiary rulings of the district court are reviewed for abuse of discretion.
U.S. v. Forcelle,
Van Chase and LaVallie based their defense at trial on the theory that LaFoun-tain had fabricated her story. Her testimony regarding the cache of cigarettes and liquor near Van Chase’s house and the items she left there (the bloodied ski mask and abandoned nightshirt) was corroborated by physical evidence obtained from the searches of Van Chase’s house and pickup and was relevant to rebut the defense theory that she made up her story. The evidence was relevant to present a coherent picture of what had occurred, as well as the intent and motive of the defendants,
Williams,
Appellants also contend that they are entitled to a new trial based on comments made by the court during voir dire which they say suggested bias against Native Americans and characterized La Fountain as a victim. During an exchange with the veni-re panel the court stated that, “[w]e have— we have some problems with racial discrimination. We just do. Some people have un-articulated bias; others are a little more open. I have found racial bias to be a double-edged sword. I have found some people willing to believe something bad about a minority and, therefore, willing to convict. I have found others willing to take the position that, ‘Ah, it’s just a bunch of Indians beating on each other and why should we convict them.” The court then asked, “[d]o you think you can be fair and impartial and not go one way or the other because of racial status or reservation situs?” Later it asked if any. venire member was bothered by jurisdiction based on “Indian status or reservation locale.” It commented that some people “don’t seem to think that a Native American victim is entitled to the same safeguards and protections as a non-Indian” while others “would convict because of racial status and Federal court jurisdiction, whereas they might not were the matter brought in state court.”
Neither Van Chase nor LaVallie objected to these statements at the time of trial so our review is for plain error.
US. v. Wonderly,
Appellants also complain that during the course of trial one of the jurors saw LaVallie in restraints in the custody of a deputy. The court informed counsel outside the presence of the jury that a deputy had inadvertently led LaVallie onto an elevator with a juror in it, and a hearing was held to discuss how to handle the issue. Appellants moved for a mistrial and objected that voir dire of the juror and an admonition not to consider the encounter or discuss it with other jurors would not be sufficient to guard against any prejudice. Van Chase also moved for a severance. The court denied the motions, and the trial continued. Immediately after the jury returned its verdicts, the court conducted a voir dire of the juror who had seen LaVallie in restraints. The juror reported that she had assumed LaVallie had not been able to post bond, that she had mentioned seeing him to the other jurors in a discussion about the appearance of the defendants, and that none of this had had any impact on the verdict.
Van Chase and LaVallie have the burden to demonstrate that they were prejudiced by the juror’s brief exposure to LaVallie in restraints.
U.S. v. Ford,
Van Chase argues that his case should be dismissed because his right to . a speedy trial under 18 U.S.C. § 3161 was violated. He contends that two continuances granted by the court for testing of blood and hair samples were not necessary because the samples were not obtained from the reservation and were therefore irrelevant and not important to the government’s case. The Speedy Trial Act explicitly provides that a claim under it must be asserted by seeking dismissal prior to trial or it is waived. 18 U.S.C. § 3162(a)(2). Even if Van Chase had not waived the issue by failing to make such a motion, however, the delay caused by the continuances was excludable time under § 3161(h)(8)(A).
See U.S. v. Drapeau,
Van Chase also argues that he is entitled to resentencing because he received an improper two level enhancement for his leadership role in the offense. He argues that there was no evidence that he ordered LaVallie to do anything he was not otherwise willing to do. A leadership enhancement is warranted when an individual organizes or directs the participation of another, U.S.S.G. § 3B1.1, and is reviewed for clear error.
U.S. v. Edwards,
Appellants have not shown that they are entitled to a new trial, to dismissal of any charges, or to resentencing, and the judgments of the district court are affirmed.
Notes
. The Honorable Patrick A. Conmy, United States District Judge for the District of North Dakota.
