United States District Court, D. South Dakota, Central Division
OPINION AND ORDER DENYING MOTION TO DISMISS INDICTMENT
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
I. Factual Background
A grand jury issued an amended indictment charging Elton Lone Eagle Sr. and Zachary Brown Thunder (collectively "Defendants") with two counts of assault with a dangerous weapon and two counts of assault resulting in serious bodily injury. Counts I and III of the amended indictment alleged that Defendants assaulted A.H., while Counts II and IV alleged that Defendants assaulted Miles Condon. The amended indictment alleged that the assaults occurred on January 29, 2015, near Dupree, South Dakota. The government contended that Lone Eagle held down A.H. while Brown Thunder used the flat side of a heated-up knife to brand a gang symbol on A.H.'s arm and that Condon was similarly assaulted. The Defendants denied having done so.
The joint trial against the Defendants commenced on October 20, 2015. Doc. 99. A.H. and Condon both testified on the second day of trial. Doc. 111 at 104-173; 174-193. A.H., who took the stand first, testified that on January 29, 2015, he, Lone Eagle, Brown Thunder, and Condon were in an upstairs room at a house in Dupree, South Dakota. Doc. Ill. at 117-121. According to A.H., Lone Eagle, Brown Thunder, and Condon were drinking vodka; at some point they left A.H. and went downstairs. Doc. Ill. at 121-22. Shortly thereafter, A.H. heard someone yell out in apparent pain. Doc. Ill. at 122. In A.H.'s account, Lone Eagle then returned to the room and told him that they were leaving; however, when A.H. got downstairs, Lone Eagle shoved him to the ground and held him down while Brown Thunder branded two letters on the upper arm of A.H. with a hot butter knife. Doc. 111 at 123-28.
Condon testified on direct examination that he was too intoxicated on January 29, 2015, to remember the events of that day, including how he got a similar burn mark on his arm and who put it there. Doc. 111 at 175-79. Lone Eagle's attorney Edward Albright cross-examined Condon about his lack of memory and his statements to an investigator that he had burned and cut himself in the past. Doc. 111 at 179-188. Albright also elicited testimony from Condon that Condon's brother, Clinton Buckman, was at the house on January 29, 2015. Doc. Ill. at 185.
David Siebrasse, Brown Thunder's attorney, cross-examined Condon next. Doc. Ill. at 188-191. Siebrasse asked Condon a few questions about his family and living arrangements before engaging in the following exchange:
Siebrasse: Zach Brown Thunder is not there at all during that day, is he?
Condon: (Pause.) I seen him at the door. That's all I can remember.
Siebrasse: All you remember is seeing him at the door?
Condon: Yeah. Yeah, just when he came in like ~ Siebrasse: But your parents live in a house that's red on the outside, correct?
Siebrasse: And do you know what time it was that all of this stuff went down?
Condon: No, I do not.
Siebrasse: Because you are too drunk to remember accurately?
Siebrasse: You testified earlier that you remember a white boybeing there, that he came with Elton. Zach wasn't there, was he, with Elton and the white boy?
Condon: I can't remember. I mean, like, I think. I don't know.
Doc. 111 at 190. Siebrasse then surprised everyone (except perhaps himself and his client) in ...