United States v. Percy Kills Plenty

nо evidence she There was jurors way. Since abused could, did, apparently determine given hand- had confessed Bush they voluntarily, writing exemplars judge rightfully

could convict her. The denying the motion

did not err

acquittal.

Affirmed. America, STATES

UNITED Appellee, PLENTY,

Percy Appellant, KILLS

No. 71-1661. Appeals,

United States Eighth Circuit. May 10,

Submitted Sept.

Decided that, though judge scrutiny. the district ease and the one here even above, judge As we have noted not that Bush had trial err under- warnings, jurors prerequisite Miranda stood the Miranda must consider admissibility. they similarly Cooper In the trial could conclude because court not had no did not the benefit Bush’s testi- evidence have defendants under- rights. mony. assuming their that on stood Hence errеd the evi- Even jurors admitting present dence them the were com- the evidence. before pelled suppression case there was evidence at the Bush did not believe that under- rights, hearing judge (namely not before the stand her Miranda Bush’s testimony) compelled disregard own her confession and which he could find capable handwriting exemplars involun- the defendant was of under- tarily although standing rights. given. her We reiterate understanding However, judge Miran- evidence before the defendant’s substantially may qua Cooper warnings dа sine like be the non of that before judge’s finding that a confession is ad- trial on the of this That case. is, testimony evidence, prerequi- absent missible into Bush herself jury finding of voluntariness there site is little distinction the evi- between pre- Cooper dence fact. introduced and that sented this ease. Thus would seem Simpson, Winner, D., ap- John for J. S. pellant. Atty., Carpenter, Edward Asst. U. S. Clayton, Atty., William F. U. S. Sioux Falls, D., Hiaring, Robert D. Asst. S. Atty., appellee. U. for S. MATTHES, Judge, Chief

Before STEPHENSON, HEANEY Judges. Circuit Judge. MATTHES, Chief question in this criminal case root centered ‍‌‌‌​​‌​​‌‌‌​‌​​‌​​‌​​​​‌‌​‌​‌‌‌​​‌​​​​​​​‌​‌​​​‌‍the doctrine operative estoppel. The facts are im- portant. Percy Plenty, appellant, an In- 5, 1970, September

dian. On he was country automobile within the Rosebud Indian Reservation. The automobile collidedwith mo- another proceeding opposite tor in the di- vehicle Raymond Kill, rection. Matthew Good passenger automobile, sus- proved injuries tained fatal. A Septem- complaint filed on criminal 11, 1970, ber in the Rosebud Tribal Sioux Court, by Tribe, “Rosebud Plain- tiff,” charging appellant with intoxicating influence of liquor in violation of Section 2.7 Chapter order revised law and code of A the Rosebud Sioux Tribe.1 trial Rosebud Sioux Tribal January 18, 1971, Court on resulted appellant’s acquittal. 21, 1971, May

On an indictment was filed in District charg for the District of South Dakota ing committed invol provides prisonment 1. Section 2.7 essence a fine of more than any person imprisonment for unlawful who is under $50 or both such and fine. liquor intoxicating Additionally, deprived the influence of offender operate high right operate a motor vehicle motor vehicle ways. specified Violation of that Law сar time. penalty days ries a not to exceed im- untary appel- violation of cated. The doctor who examined hospital lant in the he 1153. where U.S.C. §§ injuries taken for treatment of the he September on for trial case came opinion ap- had suffered was of the proceed- outset of the 1971. At the pellant was intoxicated. ings, appellant’s dis- moved counsel grounds From other on the evidence could missal of the appellant operated estoppel. find that or collateral his automo- wrong high- that involved in the bile left or side of Counsel reasoned manslaughter way oncoming charge of the element and into was collision with driving intoxicated, that issue and thus act while automobile committed an court, litigated Appellant in tribal in an had been unlawful manner. at- appellant acquitted tempted persuade jury of and that believe be he that offense and could not turned to his left therefore because was he manslaughter lights tried because intoxi- blinded of an automobile integral part high- approaching an man- cation was him on his side of the slaughter charge. way. The re- sisted the motion and it denied. was submitting In case to the During arguments prior court instructed that the essential ele- ruling, court’s the United Attor- ments of are: ney govern- stated, alia, inter “It is the (1) killing of a human unlawful position necessary ment’s that it is not being malice; without for the to establish that Mr. and Plenty was, fact, in in intoxicated (2) killing “That such in was done order establish the offenses as [sic] commission of ” a lawful act which in set out the indictment . . . might produce death and that such рrompted appellant’s This statement act was done in an unlawful either counsel to to strike from the in- move or manner or without due caution following “by op- dictment the erating clause: circumspection.” or a motor while vehicle under of influence intoxicants.” Additionally, the court instructed “that This motion also was denied. operate it is unlawful to a motor vehicle highway public a while a state pro There was evidence and con bear- of intoxication.” The returned ing upon appellant’s immedi- cоndition guilty appellant verdict charged. as ately prior following to and the collision. Some testified witnesses that judgment

smelled alcohol in From and about of conviction com- mitting testimony appellant imprisonment automobile. others years appellant appeal indicated that two not intoxi- was taken. pertinent being part, charged In human without the com- indictment malice September, manner, that on or mission in about the 5th of an unlawful or with- 1970, appellant, Indian, circumspection, an out due cautiоn or Country, might produce within the Rosebud lawful Indian Res- act which death. ervation, willfully unlawfully 1153, commonly and “en- § U.S.C. referred to gage major perti- act, provides commission a lawful act as the crime manner, by operating part any an unlawful or nent that Indian who commits person property a motor vehicle while or of an- intoxicating liquor person influence of Indian, and with- other certain other circumspection” including out due offenses, caution and and enumerated man- subject “in slaughter, such a manner so as to collide with shall be to the same penalties persons another car which caused the death of laws and as all ‍‌‌‌​​‌​​‌‌‌​‌​​‌​​‌​​​​‌‌​‌​‌‌‌​​‌​​​​​​​‌​‌​​​‌‍passenger, Raymond committing offenses, his Matthew Good enumerated Kill,” thereby jurisdiction and did commit the crime within the the United involuntary manslaughter. States. provides U.S.C. § invol- untary manslaughter killing Seeking outright and dis- an reversal the first verdict must an essential strongly charge. and order charge, advocates element of prevail case, present falls with- that this case with conviction persuade (1) must in the ambit doctrine Aрpellant argues, must he tribal courts courts district controlling sovereign prevail, the same arms of order litigated intoxication, question whether clear- this case was ly operated he his automobile was resolved the first drove says intoxicated, he element of man- an issue which essential slaughter. ac- his This he has failed was foreclosed settled to do. the tribal quittal on pretermit discussion We submits, Appellant he also court. the troublesome contention that tribal sought, he if is to relief must obtain the courts and United States District Courts Rosebud Sioux Tribal adjudicatory powers their derive are States District Court United sovereign.3 It same is conclu our e., sovereign, i. arms of the same estoppel sion that the collateral conten government takes The United States. may tion advanced this dis case be premises, appellant’s both issue with posed government’s of on alternative asserting intoxi- first that position. Whether not the tribal court manslaughter cated and and federal court are arms next separate and distinct offenses sovereign, persuaded same we are not United that the tribal court and the cases fac two an share ultimate consid- Court cannot be States District question tual issue. The sole sovereign. arms the same ered appellant tribal court was whether had contention, support of the former operating been intoxicated while his au argues ultimate that tomobile. The decisive essential and litigated in court factual issue the tribal question in the federal court district legal intoxication, was that whereas appеllant in was whether had committed question in the ultimate manslaughter voluntary statu defined prosecution appellant had was whether torily. swpra. question See note The committed appellant of whether had been intoxi meaning applicable within the clearly time of cated at the the collision fur- statutes. The contends significance was not of ultimate re- ther that admission of evidence mere latter Cf. case. United States v. DeMar garding intoxication is insufficient rias, (8th 441 F.2d prosecution doctrine bar this under the prosecution hold that We therefore this estoppel. of collateral estoppel. is not collateral barred estoppel rule of collateral Remaining for our consideration are “simply that ulti is when an issue appellant’s (1) contentions that he was mate fact once been determined protection equal process denied and due judgment, valid and final that or- because district court refused to again litigated cannot be between subpoenaed pur- der witnesses defense parties any same lawsuit.” future 17(b), Fed.R.Crim.P., suant to Rule Swenson, 436, 443, Ashe v. 397 U.S. (2) argu- prejudiced by improper he was 1189, 1194, (1970). S.Ct. 25 L.Ed.2d 469 Attorney. ment of the United States Thus bar a Neither claim meritorious. prosecution, criminal must two factors present: adjudicatory Appellant sought, by pretrial both en- be mo tion, subpoena tities must arms of the same sov- but 27 witnesses. All ereign eight (2) a factual subpoenaed issue essential of the 27 were Although pretermit issue, we v. ed States District Iron Court. Crow Oglala Tribe, our that view the Tribal are not Courts 231 F.2d 89 sovereign arms same Unit- as the or influеnce the dice expense the United States. arriving guilty. declining verdict of at its to order sub- reason for court’s witnesses other 8 poenas for judg- error, Finding affirm we no appellant’s fully in a letter delineated ment of conviction. pains took court counsel. The appellant was point that out letter Judge (dissenting). HEANEY, Circuit give satisfac- court unable appellant’s convic- I would reverse having tory 8 witnesses reason matter to the Dis- remand the tion and court, brought into because for a trict new inform the unable relitigated in- issue of parties information the witnesses to whether in violation constitu- toxication relevant would have principle tional of collateral assistance and of Swenson, See, 397 U.S. Ashe defense. (1970). L.Ed.2d 469 beyond the is- doubt settled It is in- undisputed issue of 17(b) subpoenas under Rule suance litigated in both toxication was discretion sound is a matter within Courts, is ar- District Morris, of the court. United gued principle es- of collateral 1971); (8th Cir. 971-972 toppel inapplicable intoxica- because States, 413 F.2d Slawek v. element tion is not essential 1969); Terlikowski 959-960 manslaughter. involuntary of crime 507-508 379 F.2d United DeMarrias, F.2d Cf., United States of no abuse find (8th We Cir. 1971).1 (8th sig- Cir. connection discretion. In this 19 witnesses the note that of nificant to course, intoxication, is not of Proof of only No subpoenaed appellant six. called prosecution every an essential element of remaining why explanation of the manslaughter. if But brought our to has not used been proceedings in Court the the District attention. prac entirety a in and from their viewed nothing improper Finally, in view, proof find point we that it is clear tical of argument closing the the element an essential intoxication was Attorney. that significance are satisfied We in States and a fact of ultimate preju- least did not in the what was said prosecution.2 Dis particular In the DeMarrias, 1. in United States act the commission of a lawful help 1971), by operating driving to manner, is of no or unlawful recog- government. The there Court under the a vehicle while motor influence nized that was without due caution intoxicants DeMarrias, added.) circumspection.” (Emphasis relevant. In the defendant driving attorney (2) be- had been convicted of drunk Prior defense manslaughter. prosecuted being portion requested fore of the indict- that prior referring Because resulted a con- trial be strick- ‍‌‌‌​​‌​​‌‌‌​‌​​‌​​‌​​​​‌‌​‌​‌‌‌​​‌​​​​​​​‌​‌​​​‌‍ment to intoxication viction, request been resolved no issue it had en. This was denied. favorably (3) Further- to the defendant. introduced testi- more, manslaughter charge appel- mony at the trial to show that DeMarrias, driving in this unlike lant the influence of was ease, intoxicating driv- liquor. the drunk was not based on was This evidence Instead, ing chargе. the Indian similar that introduced charged in DeMarrias that indictment Tribal Court. driving speeding argument (4) closing defendant had been his final recklessly. stated, prosecuting attorney jury, Plenty if been “And Mr. hadn’t briefly helpful driving wrong I think it summarize drunk side down aspects road, deal those of the record which of the there would have been never with the issue of intoxication. an accident.” (1) summary jury the indictment The court instructed the that appellant “engage might appellant guilty states that it find of in- Court, theory ap theory trict one on which the guilt, driving e., other i. on guilt рellant’s predicated wrong road; was was that side cannot we the accident had occurred because assume, general verdict, on the basis of a intoxicated, appellant driving was while appellant that did not convict the on was, in violation of the traffic laws. the basis of while intoxicated. therefore, argued appellant that Williams, United States v. 464 F.2d 927 killed the victim commission of a 1972). Because of in- the issue lawful act in an unlawful' manner conclusively toxication had been deter- violation of 18 1112. The U.S.C. § mined in the Tribal favor proof instructions indicated that appellant, to submit was error theory appellant that had been driv theory jury.4 the case ing while intoxicated sufficient support finding any guilt, without Furthermore, even if intoxication were appellant additional not an essential element of been without due or had care manslaughter, still would be error violating any been traffic law. relitigate Kramer, it.5 United theory, proof appel Under this (2nd F.2d In Kra- lant was intoxicated was essential and mer, here, contended would invokе the sanctions of the law only estoppel applies that collateral appellant.3 “an a conviction issue essential jury may It is true that con- have Judge Friend- an- second trial.” Id. victed the basis of Judge prosecution. voluntary manslaughter if essential to the Gewin, writing found Court, stated: had done an act “either in an for the “ * * * Certainly manner or where an issue without due caution unlawful circumspection.” (Emphasis prior prosecution, added.) determined bringing He then the state is barred from subsequent instructed the that “it is prosecution operate a dif- unlawful to in which a motor vehicle public highway determination of a state of in- ferent necessary prove charged. toxication.” The to the offense further added: perform- ways “Either in either the we are to find stated of But unable ing act, conjunction applying the doctrine of older cases the with the elements, estoppel the more recent is sufficient to collateral consti- charged, Supreme tute limit- the crime basis for and it is not eases Court necessary relitigatiоn pre- ing prohibited a show both that the the of act only viously was those done an issue to unlawful manner and resolved circumspec- relitigation without due caution is essential suits where the subsequent tion.” for the maintenance of * * * lawsuit. Judge 3. Learned Hand defined ultimate perceive any meaningful not “We do facts as “those which the law makes the ‘jeopardy’ quality in. the of imposing difference occasion for its sanctions.” subjected again Evergreens Nunan, 927, is to which defendant 141 F.2d 928 attempts prove (2nd when the state guilt his by relitigаting issue a settled fact Heitter, (Del. In State v. A.2d 203 69 depends the reliti- whether 1964), magis- the court held that after a gated is one of ‘ultimate’ fact or acquittal charge trate’s on the of drunk ‘evidentiary’ merely in the fact sec- an driving, charged a defendant could not be prosecution. In both instances ond manslaughter by with motor vehicle on attempting prove defend- is state grounds drunk, that he had been guilty than of an offense other ant theory that he could be tried on the acquitted. one of which he was violating speeding he laws. rеlitigated proof is both instances also, Court, Supreme See Martinis v. 15 prove some element of offered 65, N.Y.2d 258 N.Y.S.2d 206 N.E.2d offense. In both instances (J. Burke, concurring). 165 again is forced to defend defendant against charges allegations Wingate In the recent or factual case of v. Wain- wright, 1972), trial. which he overcame the earlier ” * * * omitted.) rejected (Citations Court also the contention estoppel applies only pp. to issues 213-214. Id. Court, rejected manslaughter, writing of de- crime ly, stating: appellant’s prior acquittal spite the contention of the crime the Indian Tribal Court for a limi- in reason see no basis “We driving under the influence intoxi- A defendant who narrow. so tation cating by liquor. It could do so show- had no one he has satisfied instance, ing, that the ought not be responsibility for a crime wrong for some time on the side this, another to convince forced causing drivers to of the road four other theory, prosecution where even although very accident. to avoid an could swerve fact, likely not in however, not, prove tendered not have need Government guilty was by * * * permit the [T]o the issue. relitigating intoxication the issue of defendant who force a Government already appellant’s fa- determined relitigate acquittal has won an Cf., Yawn vor Court. charge question on a further identical States, supra, F.2d at 237. arising of con- out of the same course say beyond Finally, a reason- cannot I duct, Government selected evi- the introduction of doubt that able catalogue fur- of crimes the extensive relating to intoxication was harm- dence Cоde, would it in Criminal nished permit above, appel- As I stated error. less English very abuses that led may very well have been convicted lant judges develop the rule theory solely on that he was long it was en- before Furthermore, I can- while intoxicated. Amendment, 3 shrined in the Fifth say proof of intoxication not Law, History English Holdsworth, evaluation not influence its longer pro- still before —and his credi- character statutory de- liferation prived offenses likely bility. particularly to have It is of its so much effect. See damaging here intoxica- where the separate opin- Brennan’s Mr. Justice intimately to the crime tion was related v. United ion Abbate Crawford, charged. Cf., United States 187, 196, 359 U.S. F.2d very nub col- L.Ed.2d 729. judi- estoppel to extend res lateral assuming Because I would hold— beyond cata cases those where parties involved—that prior judgment complete bar. application required facts of case free, limits within the Government principle of collateral * * * Amendment, set Fifth necessary below, District acquitted defendant with consider there is the whether or from the claimed arise crimes requisite identity parties in the two may conduct; same or related prosecutions. I would hold that in view asserting charge by prove new not authority possessed of the extensive necessarily determined facts exercised the United Govern- States un- matter how on the first no ment over the Rosebud Tribe’s Sioux may con- the Government reasonable judicial system, these two entities are be.” sider that determination to o,f parties purpose the same for the Id. at 915-916. applying collateral in criminal v. 235 establish Simon, See, Yawn v. United (3rd Here, Phillips, (5th Cir. 225 F.2d 260 1943). Cir. 401 government v. 1957); F.2d De See Angelo, 301 also, United States (3rd States, United States v. (7th guilt 138 Cir. Cir. F.2d 466 right for the 1955); 1968). tice both of similar. requirement the rationale behind the “same cases. This parties ff issue, 0.411 two See, are identical or successive ^[1] which is to assure that holding J. IB at 1252-1259 respective Moore, is litigations ‍‌‌‌​​‌​​‌‌‌​‌​​‌​​‌​​​​‌‌​‌​‌‌‌​​‌​​​​​​​‌​‌​​​‌‍consistent Federal Prac- substantially interests (2nd parties” with ed.,

247 argues government respect, position the Indian In this because recognized But, of the in various we have tribes resembles that states. contexts possess the Indian inherent the nature of the Indian tribes significantly that sovereignty, see, tribes differs from that states Crow United 1971); States, government plenary (8th has F.2d that the federal 451 323 Cir. Oglala authority jurisdiction and func- Iron of Pine over the Crow Tribe Ridge (8th tioning Res., 1956), It has the Indian courts. F.2d 89 231 great extent that we exercised must find that this such Rosebud Sioux Tribe and the has United States Government one Court found: tween the Indian cause the tried twice for the same offense. 676, fication applying justification for the refusal to find that the fact this Abbate interests which allowing Bartkus the state and federal are different stances is founded in the nature of eralism and the sive cisions which it has been I arate doctrine of apply contentions, defendant respective separate separate sovereigns and, federal prosecutions sovereigns. to successive 666, 3 L.Ed.2d 729 L.Ed.2d government v. United successive relationship Illinois, not available governments allows parties disagree. is belief can protected tribes In each of those under those circum cites a number prosecutions by sep (1959).7 be prosecutions despite governments.6 The for the protected only by U.S. which exists be individual sovereigns and the federal have both this case held 121, (1959), U.S. With purpose This thus, does the state separate 79 S.Ct. 187, succes of de cases, justi these fed See, not be 79 See, which the federal may inal by remove government, the Indian tribes Indian Tribal U.S. 486 gressional 378-379 Settler v. Colliflower v. (1970). pendent Evidence of the close and firm arms ^[*] purposes “In fiction to community functioning Indians in jurisdiction 23 S.Ct. exercise Lone -K- 903, spite ^[*] light Yakima Tribal » 90 S.Ct. act, may v.Wolf sovereignty, an Indian tribe say jurisdiction and has exercised Indian 216, Courts are not in of their 1969), Garland, 342 F.2d over inherently that the government potentially 47 L.Ed. federal theory that for some 1690, 26 L.Ed.2d Hitchcock, Fort country, alter time, is offenses history, cert. plentiful. While we think Court, 419 Belknap Indian as it sees part, at Indian through possess government. denied, is an completely committed See over the federal (1903). control courts crim- ‍‌‌‌​​‌​​‌‌‌​‌​​‌​​‌​​​​‌‌​‌​‌‌‌​​‌​​​​​​​‌​‌​​​‌‍least, inde- pure that, F.2d also, U.S. con- 369, 398 fit. 61 analogous rela History to the replete with instances gov tionshiр between state and altered which the federal has jurisdiction ernments. Indian Tribal Court Beginning procedures. with Seven true that our decisions Kills recognize Major Act of Ch. § Crimes Crow and Iron Crow continuing through power possess inherent Stat. tribes Congress removed from to establish their Courts without government. jurisdiction courts a total of the Indian the action of the federal ly Plant, all see, is valid for tribal court established 6. But United v. La 156 States * * * purposes F.Supp. (D.Mont.1957), Id. at 665. ”. where the 660 protection against the court stated that dissenting opinions see, of Mr. 7. the But requires that when sympathetic, Black, with I am which Justice in man been of a crime has convicted States, n 359 Abbate United i Court, subsequent prose- Indian Tribal 666, 187, 201-204, L.Ed. 3 79 U.S. the crime in federal Dis- Illinois, cution for Bartkus and 2d 729 reasoning 676, 121, 150-164, trict is barred on the 3 79 S.Ct. 359 U.S. “ * * * regular- (1959). judgment the of a L.Ed.2d 684 248 circumstances, Under these I crimes it has deemed to be thirteen have no difficulty

major. 3242. and the interests of U.S.C. §§ the has been Tribe and United Jurisdiction over these crimes Rosebud Sioux sufficiently given States District Courts. Government sim- to federal government Similarly, ilar has so that warrant identiсal federal being party. The to remove considered as the same seen fit in certain instances goal jurisdic- all from the basic Indian tribe and criminal offenses both government placed pro- the federal to tion and has here was of the Tribal Courts public jurisdiction spec- tect from criminal acts of them within the country. the con- Indians committed Indian ified even without courts state government pattern of federal inter- tribes. U.S.C. sent of affected justice ference with criminal has tribal § brought part because the about reading Rights A of the Indian Civil government interests of the federal 1301-1341, 1968, Act of 25 U.S.C. §§ justice system the Indian criminal regulation of reveals additional very so to those of the similar tribes government. by Indian courts through Furthermore, its themselves. Among provisions this act are plenary power over Rosebud Sioux pen- specify the maximum those which Tribe, I think it clear that the federal may impose Courts alties which Tribal upon government, historically pro- has which defendants, 25 U.S.C. convicted wards, see, tected the Indians as its 1302(7), allow with the consent states § States, supra, Crow v. also United to assume of the affected Indian tribes power protect interests its own jurisdiction offenses com- over criminal depriving without individual Indians country, 25 U.S.C. mitted prin- benefits of constitutional 1321(a), of other out a list and set § o,f ciple rights including juries re- six-man and — view detention orders of Tribal Court ignore contrary To reach a result is through by issu- federal District Courts grave casts doubts realities and corpus ance of writs habeas integrity legitimacy —which in participants provided must tribal be decisions Indian Tribal Courts which 1302, proceedings. 25 §§ criminal U.S.C. closely the federal itself supervises. do can least we give respect full effect to ver The Rosebud Constitution of those courts criminal cases. dicts itself is also the federal indicative of require To those ad do otherwise is government’s control over tribe’s judged Court, as innocent in the Tribal justice. criminal adopted by This constitution was “ here, ‘run accordance with tribe gauntlet’ justi no time” when Reorgan- requirements of the Indian Swenson, present. Ashe fication 1934, ization Act of U.S.C. §§ 1195, at supra, at 90 S.Ct. 397 U.S. seq., аpproved required, et and was quoting Green v. 25 L.Ed.2d Secretary In- U.S.C. § U.S. 78 S.Ct. l(k) IV, Article consti- terior. § (1957). 2 L.Ed.2d 199 provides, tution under its enumerated powers, has the that the Tribal Council reasons, I neces- For these believe power “promulgate ordi- and enforce grant sary appellant a new However, power subject nances.” pre- will imposed or the to limitations statutes relitigating in- issue of cluded from of the United Constitution procedure would be This toxication. Secretary by the of Interior. review Judge adopted by accord with that addition, it should be noted Friendly Kramer, the Courts appointed and with judge in case was tribal government. paid by DeAngelo. Yawn, the federal Simon

Case Details

Case Name: United States v. Percy Kills Plenty

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Sep 13, 1972

Citation: 466 F.2d 240

Docket Number: 71-1661

Court Abbreviation: 8th Cir.