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United States v. J.D.P.

United States District Court, D. South Dakota, Central Division

November 21, 2012

UNITED STATES of America, Plaintiff,
v.
J.D.P., Defendant.

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[Copyrighted Material Omitted]

Page 1138

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

ROBERTO A. LANGE, District Judge.

J.D.P. was charged in a Juvenile Information with two counts of arson. Doc. 1. The Court held a court trial on October 25, 2012. At the conclusion of the court trial, the Court took the matter under advisement.

I. Findings of Fact

A. Charges and Facts Concerning the Structure Burned

J.D.P. was charged in Count I of the Juvenile Information as follows:

On or about the 8th day of June, 2012, in South Antelope, in Todd County, in Indian country, in the District of South Dakota, J.D.P., an Indian, committed a violation of law whereby he became a juvenile delinquent, in that at such time and place he did willfully and maliciously set fire to and burn the residence and dwelling of Colleen Small Bear, a trailer home, in violation of 18 U.S.C. §§ 5032, 1153, and 81.

Count II of the Juvenile Information charged J.D.P. as follows:

On or about the 17th day of June, 2012, in South Antelope, in Todd County, in Indian country, in the District of South Dakota, J.D.P. and A.J.M.M., Indians, committed a violation of law whereby they became juvenile delinquents, in that at such time and place they did willfully and maliciously set fire to and burn the residence and dwelling of Colleen Small Bear, a trailer home, and did aid and abet each other in the offense, in violation of 18 U.S.C. §§ 5032, 1153, 81 and 2.

The fires at issue on June 8 and 17, 2012, destroyed a trailer home in the South Antelope community. The trailer home was purchased by Tonya Farmer, the daughter of Colleen Small Bear, in 2006, for approximately $1,500.00. Tonya Farmer's twin sister, Sonja Farmer, later bought the trailer home for $800.00. Sonja Farmer then transferred ownership of the trailer home to her mother, Colleen Small Bear. Around 2008, Colleen Small Bear had the trailer moved to a lot that she owned in South Antelope. South Antelope is in " Indian country" on the Rosebud Indian Reservation in South Dakota, within the territorial jurisdiction of the Court. Ex. 1.

A question exists as to whether the trailer home at the times of the fires was a " dwelling" as alleged in the Juvenile Information or a " structure." After the trailer home was moved to South Antelope in 2008, Sonja Farmer, the daughter of Colleen Small Bear, lived in the trailer home at times with some of her children and a granddaughter. By 2012, the trailer home was in rough condition. Sonja Farmer and members of her family spent some nights in the trailer home during January and February of 2012, and for part of March of 2012. Sonja Farmer and her family stopped spending nights at the trailer home in March of 2012 because

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there were electrical problems, a leaking roof, and difficulty keeping adequate heat in the trailer home. By March of 2012, most of the windows of the trailer home had been broken and either were boarded up or had plastic over them, making it difficult to keep the trailer home warm. In addition, part of the ceiling of the trailer home was caved in over the kitchen, the roof was leaking in that area, and the lights in certain areas of the trailer home would flicker or work only sporadically.

Neither Sonja Farmer nor her mother Colleen Small Bear had financial resources to repair the trailer in 2012. When Sonja Farmer stopped staying nights at the trailer, the electricity was shut off but the water supply was still on. Sonja Farmer and her family stayed nights with Sonja's sister Tonya Farmer and her family, as well as at other homes. Sonja Farmer kept most of her family's personal property in the trailer home. When the first fire occurred on June 8, 2012, the trailer home had a working refrigerator, a working stove, furniture, televisions, clothes, pictures, heirlooms, artwork, beadwork, beds, statues, and a stereo system. Sonja Farmer had removed the washer and dryer from the trailer home and some clothing before the first fire on June 8, 2012. Sonja Farmer returned to the trailer home periodically between March and early June of 2012 to retrieve clothing for her and her family to wear. Sonja Farmer had moved some clothes and pictures in bags back to the trailer home just two weeks before the first fire. Sonja Farmer and her mother planned to repair the trailer home when they had the money to do so, but had neither started repairs to return the home to a condition suitable to habitation nor received estimates for any repairs.

There were two inoperable vehicles left by members of the Small Bear family at the trailer home as well. One vehicle— a Ford Explorer— had windows that were shot out and needed a transmission. Colleen Small Bear had purchased a transmission for the vehicle in 2010 and stored it underneath the trailer, but had not arranged for the transmission to be installed. Neither of the two vehicles had been in running order since approximately 2009, although the Small Bear family had intended throughout this time to repair the vehicles when they had the money to do so.

The trailer home and vehicles had been subject to vandalism. Colleen Small Bear and Sonja Farmer had placed a padlock on the door of the trailer home and had boarded up the windows before June of 2012. They had no timetable in mind when to repair the trailer home to make it suitable for habitation again, other than whenever they had sufficient funds available to do so.

B. Background Facts Concerning Defendant

Defendant J.D.P. is an " Indian" for purposes of federal criminal jurisdiction. Ex. 1. J.D.P. is a member of the Gangster Disciples and bears the pitchfork tattoo of the Gangster Disciples on his arm. During the summer of 2012, J.D.P. frequently stayed at the home of his aunt, Priscilla " Becca" Kills The Enemy (" Kills The Enemy" ). The home of J.D.P.'s aunt is very near the Small Bear trailer home where the fires occurred. Pictures of the trailer home taken after the second fire show the Kills The Enemy home in the background. Ex. 17; Ex. 19; Ex. 20. South Antelope is generally the territory of the Surenos 13 gang, with the only pocket of territory associated ...


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