United States v. Bad Horse, 1997 DSD 39

Charles Kornmann, District Judge

[¶1]  The defendant was convicted of Hostage Taking in violation of 18 USC § 1203, Kidnapping in violation of 18 USC § 1201(a)(2), and Assault with a Dangerous Weapon in violation of 18 USC § 113(a)(3) on September 23, 1997. The defendant filed a Motion for Acquittal or, in the Alternative, Motion for New Trial, Doc. 31. The defendant filed a brief in support of these motions, Doc. 32, and a supplemental brief in support of the motions, Doc. 36. The plaintiff filed a response to the defendant’s motions, Doc. 35.

[¶2]  FRCrP 33 provides in part that the “court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice.” FRCrP 29(c) provides in part that “If a verdict of guilty is returned the court may on...motion set aside the verdict and enter judgment of acquittal.” Both rules require that the motion be made within seven days after finding of guilt. The time limits of Rule 33 are jurisdictional. United States v. Beran, 546 F2d 1316, 1319 n. 1 (8th Cir. 1976). The motion was timely filed and therefore this Court has jurisdiction.

[¶3]  The defendant’s Motion for Acquittal alleges that Counts I and II of the indictment were multiplicitous, and therefore that the defendant was subjected to double jeopardy. Doc. 31 at 2. The Eighth Circuit uses a two-part test to determine if a defendant has been subject to double jeopardy. U.S. v. Bennett, 44 F3d 1364, 1373 (8th Cir. 1995)(citing Garrett v. United States, 471 US 773, 778, 105 SCt 2407, 2411 (1985)). “First, a court must ask whether Congress ‘intended that each violation be a separate offense.’ If it did not, there is no statutory basis for the two prosecutions, and the double jeopardy inquiry is at an end.” Bennett, 44 F3d at 1373 (citing Garrett, 471 US at 778, 105 SCt at 2411). See also U.S. v. Christner, 66 F3d 922, 927 (8th Cir. 1995)(stating that the Court must, from all the data available, ascertain the legislative intent to determine if there is multiplicity)(citing 1 Charles A. Wright, Federal Practice and Procedure § 142, at 469, 477-78 (1982)). Thus, the question is whether Congress intended that a single incident in one location, albeit continuing for more than one hour, of restraining, injuring, and threatening a fellow prisoner while making demands on Bureau of Indian Affairs police officers is to result in two federal offenses only in Indian Country but not elsewhere. This Court finds that Congress did not so intend.

[¶4]  The Hostage Taking Act, 18 USC § 1203, was “adopted specifically ‘to extend jurisdiction over extraterritorial crimes and satisfy the country’s obligations as a party to various international conventions.’” United States v. Carrion-Caliz, 944 F2d 220, 223 (5th Cir. 1991)(citing United States v. Yunis, 681 FSupp 896, 904 (D.D.C. 1988)). The Yunis Court states that “the very purpose behind the Hostage Taking Statute was to ‘demonstrate to other governments and international forums that the United States is serious about its efforts to deal with international terrorism.’” Yunis at 905 (citing President’s Message to Congress on the International Convention Against the Taking of Hostages, 20 Weekly Comp.Pres.Doc. 590, 592 (April 26, 1984)). See also 130 Cong.Rec. S10,700-01 (daily ed. May 2, 1984); 130 Cong.Rec. S31,948-49 (daily ed. Oct. 11, 1984); 1984 USCCAN 3710. This statute is another example of Congress enacting laws without any thought of how Native Americans will be affected. The Congressional intent of the hostage taking statute could not reasonably have been to subject people in Indian Country to a prosecution for kidnapping and hostage taking under the facts of this case. There is nothing in the legislative history to indicate that Congress intended, in effect, to single out Native Americans for such multiple prosecutions.

[¶5]  The plaintiff claims that the intent of Congress in enacting the Hostage Taking Act is irrelevant as it pertains to this case. Doc. 35 at 2. The government relies on U.S. v. Lin, which cites the Yunis case, which held that the literal language of the statute takes precedence over the legislative intent absent any ambiguity or unfair results. Id. However, the Lin case can be distinguished from the instant case. In Lin, the defendant was convicted of hostage taking and two firearms offenses but, unlike the defendant in the instant case, was not also convicted of kidnapping. U.S. v. Lin, 101 F3d 760, 763 (D.C.Cir. 1997). In addition, the Lin case involved defendants and victims who were not United States nationals. Id. at 765. The court in Lin was not faced with the question of whether convicting a defendant of both hostage taking and kidnapping for the same act is multiplicitous, as this Court is. The Lin court merely applied the plain language of the statute, which expressly punishes the taking of hostages when non-nationals of the United States are involved. Id. As previously stated, this is also in line with the intent of Congress in enacting the statute.

[¶6]  The plaintiff also relies on U.S. v. Pacheco in claiming that legislative intent is irrelevant to the instant case. Doc. 35 at 2. The Pacheco case can also be distinguished from the instant case. Like the defendant in Lin, and unlike the defendant in the instant case, the defendant in Pacheco was charged with hostage taking but not kidnapping. U.S. v. Pacheco, 902 FSupp 469, 471 (S.D.N.Y. 1995). Also as in Lin, Pacheco involved the victim and a co-defendant who were not nationals of the United States. Id. The Pacheco court was thus concerned with a hostage taking having international aspects, which is completely different than the instant case, which involves two Native Americans in Lower Brule, South Dakota. The court in the Pacheco case also recognized that the legislative history of the Hostage Taking Act indicates that it was passed “to address legitimate foreign policy concerns.” Id. at 472.

[¶7]  A reading of the plain language of the entire Hostage Taking Act indicates that it is unlikely that Congress intended it to apply to Native Americans acting on the Indian reservation who threaten local authorities. The statute states, in relevant part,

It is not an offense under this section if the conduct required for the offense occurred inside the United States, each alleged offender and each person seized or detained are nationals of the United States, and each alleged offender is found in the United States, unless the governmental organization sought to be compelled is the Government of the United States.

18 USC § 1203(b)(2). (Emphasis added). Each of the first three above requirements are met in this case, so the only reason that the defendant was charged with this offense is because the entity he sought to compel to release him was the tribal police, which is a law enforcement arm of the Bureau of Indian Affairs, United States Department of the Interior. This Court finds that Congress did not include the portion of the statute emphasized above with the intent to punish a Native American who takes another Native American hostage on the reservation and threatens the local tribal police.

[¶8]  This Court has wide discretion in deciding whether the interest of justice mandates a new trial. U.S. v. Van Kirk, 935 F2d 932, 935 (8th Cir. 1991) (McMillian, Justice, dissenting) (citing U.S. v. Offutt, 736 F2d 1199, 1202 (8th Cir. 1984)). This matter was tried by jury before this Court and the Court is very familiar with the record. The evidence adduced at trial was sufficient to sustain the conviction for kidnapping, so a new trial is unnecessary.

[¶9]  Pursuant to FRCrP 29(d), if this judgment of acquittal is hereafter vacated or reversed, any motion for a new trial should be denied. Should this judgment be vacated or reversed, the conviction as to Count I shall be reinstated.

[¶10]  Therefore, based on the aforementioned, IT IS ORDERED:

(1)  The defendant’s Motion for Acquittal is granted as to Count I.

(2)  The defendant’s Motion for New Trial is denied.