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United States of America v. Marc Sean Wisecarver

June 30, 2011

UNITED STATES OF AMERICA, APPELLEE,
v.
MARC SEAN WISECARVER, APPELLANT.



Appeal from the United States District Court for the District of South Dakota.

The opinion of the court was delivered by: Gruender, Circuit Judge.

Submitted: March 17, 2011

Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.

Marc Wisecarver fired a rifle shot through the front grill of a government-owned pickup truck in the custody of a Bureau of Indian Affairs ("BIA") land assessor. After we vacated his initial conviction for depredation of government property, a second jury found him guilty of the same charge, and the district court sentenced him to 36 months' imprisonment. We affirm the conviction and term of imprisonment, but we vacate three special conditions of supervised release and remand to the district court for an individualized assessment with respect to those special conditions.

I. BACKGROUND

In April 2008, Wisecarver resided on a 160-acre tract of land on the Pine Ridge Indian Reservation in South Dakota, where he and his teenage daughter raised horses and farmed. Historically, the tract had been the subject of an "allotment" to an individual Native American under the regime established by the General Allotment Act (also known as the "Dawes Act"), ch. 119, 24 Stat. 388 (1887) (codified as amended at 25 U.S.C. § 331). After the 1934 repudiation of the "allotment" regime by the Indian Reorganization Act, ch. 576, 48 Stat. 984 (1934) (codified as amended at 25 U.S.C. §§ 461-77), the tract has been held in trust by the government for the benefit of descendants of the Native Americans who once held allotment rights in the parcel. See generally Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010, 1016 (8th Cir. 1999). The BIA oversees such trust lands. According to BIA records, Wisecarver's first cousin, Randall Jerry Hughes, owns an undivided four-sixths interest in the tract at issue, while Wisecarver owns an undivided one-sixth interest. The remaining one-sixth interest is in probate. Wisecarver was the sole resident on the tract.

In June 2007, Hughes, along with a potential heir of the one-sixth interest in probate, visited Wisecarver at his residence on the tract to discuss the potential for leasing the land to, or executing an exchange of trust land with, a third party. Wisecarver voiced his disapproval of both options. Nevertheless, in April 2008, Hughes filed an application with the BIA to lease the tract of land to a third party. As a result, the BIA sent Duke Bourne, a soil conservationist, to assess the land in order to calculate a suitable rental price.*fn1 Bourne arrived at the property in a BIA pickup truck with license plates bearing the words "U.S. Government." Wisecarver testified that he first observed the truck idling just inside his front, or north, gate and that he shouted and waved in an attempt to get the driver's attention. However, Bourne drove away from Wisecarver, deeper into the property. Because Wisecarver did not recognize the truck or see any identifying markings, he retrieved his rifle from his house and then followed the truck on foot.

Bourne testified that he initially drove the truck along the inside of the property's fence line to assess the condition of the fence. He then saw a group of horses within the property and drove towards them, hoping to observe their brands or other evidence of ownership. According to Bourne, he drove slowly and carefully among the horses because he did not want to frighten them away and spoil his chance to observe their brand marks. In contrast, Wisecarver testified that Bourne drove carelessly, "chased" the horses, and nearly struck one of them with the truck. Bourne finally noticed Wisecarver when Wisecarver had approached within about twenty feet of his truck. Bourne then drove slowly alongside Wisecarver, stopped, and rolled down his window to converse. Bourne testified that, at this point, he observed that Wisecarver was carrying a rifle, but that it gave him no pause because he had never encountered any problems in his several years of experience assessing land on the Pine Ridge Indian Reservation. The two men conversed through the open driver's side window of the truck, with Bourne remaining seated inside the idling truck and Wisecarver standing beside the driver's door.

Wisecarver asked Bourne why he was on the property, and Bourne replied that he was surveying the land on behalf of the government. Bourne told Wisecarver about the lease application and offered a BIA phone number that Wisecarver could call for confirmation of Bourne's identity and purpose. Wisecarver declined to call the number. Instead, he began explaining the family history of the tract to Bourne and alleged that Hughes, the lease applicant, had obtained his four-sixths interest through fraud. At some point, Wisecarver referred to his own status as the landowner, and Bourne emphasized that Wisecarver was not the "sole" landowner. According to Bourne, Wisecarver became very angry at that statement. Wisecarver testified instead that he became angry because he thought Bourne had lied about which gate he had used to enter the property and was "chasing the hell out of my horses."

Both parties testified that Wisecarver ordered Bourne to exit the truck and leave the property on foot. According to Wisecarver, Bourne in response "glare[d]" at him, "rev[ved]" the truck's motor, and "snapped his hand on the gear shifter," causing Wisecarver to fear that Bourne intended to drive over him with the truck. According to Bourne, in contrast, Bourne merely responded "what?" and did not move. There is no dispute that Wisecarver next stepped towards the front of the truck and fired a bullet that impacted the truck just above the "U.S. Government" license plate. After the shot, Bourne abandoned the truck and left the property on foot.

Wisecarver was charged with one count of assaulting a federal officer, a violation of 18 U.S.C. § 111(a)(1), (b), and one count of depredation of government property, a violation of 18 U.S.C. § 1361. A jury found Wisecarver not guilty on the assault count and guilty on the depredation count. Wisecarver appealed the guilty verdict, arguing that the evidence was insufficient to support a conviction for depredation and that the district court erred in instructing the jury. We rejected Wisecarver's first argument, holding that "there is sufficient evidence for a correctly-instructed reasonable jury to have determined that Wisecarver had the requisite intent to damage Government property, to find that he did not act in self-defense, and to find Wisecarver guilty beyond a reasonable doubt." United States v. Wisecarver, 598 F.3d 982, 987 (8th Cir. 2010). However, we agreed with Wisecarver that a confusingly worded supplemental jury instruction required a vacatur of the judgment of conviction. Id. at 990. Our accompanying order of judgment stated that "it is hereby ordered and adjudged that the judgment of the district court in this cause is vacated and the cause is remanded to the district court for proceedings consistent with the opinion of this court." United States v. Wisecarver, No. 09-1954, Order of J. (Mar. 22, 2010).

On remand, the district court set a retrial of the depredation count, and a new jury again returned a verdict of guilty. At sentencing, the district court found that Wisecarver had perjured himself during his trial testimony, and it applied a two-level sentencing guidelines enhancement for obstruction of justice. After calculating an advisory sentencing guidelines range of 21 to 27 months, the district court imposed a 36-month sentence. Wisecarver now appeals his conviction and sentence, arguing that (1) a retrial was outside the scope of the mandate of our opinion vacating his first conviction, (2) the district court should have recused itself from the second trial, (3) a jury instruction misstated the law of trespass, (4) the sentencing enhancement for obstruction of justice was erroneous, (5) the 36-month sentence is unreasonable, and (6) three special conditions of supervised release imposed by the district court are not reasonably related to the offense or to Wisecarver's history. We address these arguments in turn.

II. DISCUSSION

A. Scope of Our Prior Mandate

Wisecarver argues that a retrial was outside the scope of the mandate of our opinion vacating his first conviction. "When an appellate court remands a case to the district court, all issues decided by the appellate court become the law of the case, and the district court on remand must 'adhere to any limitations imposed on its function . . . by the appellate court.'" United States v. Castellanos, 608 F.3d 1010, 1016 (8th Cir. 2010) (alteration in original) (quoting United States v. Bartsh, 69 F.3d 864, 866 (8th Cir. 1995)). However, "[w]hile a mandate is controlling as to matters within its compass, ...


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