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United States v. Long

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

July 13, 2016




         Following a jury trial on May 10, 11, and 12, 2016, Defendant Michael Lee Long, Jr. ("Long") was convicted of four counts, including Assault with a Dangerous Weapon, Simple Assault, Prohibited Person in Possession of a Firearm, and Using a Firearm During and in Relation to a Crime of Violence, in violation of 18 U.S.C. §§ 113(a)(3), 113(a)(5), 922(g)(9), 924(a)(2), 924(c)(1)(A), 924(d), and 1153.[1] Docs. 33, 67.

         On May 26, 2016, Long filed a Motion for New Trial under Rule 33(a) of the Federal Rules of Criminal Procedure. Doc. 73. In his motion, Long advances two primary arguments. Doc. 73. First, Long argues that the government failed to turn over certain discovery materials before trial, in violation of Brady v. Maryland, 373 U.S. 83 (1963). Doc. 73 at 1. Second, Long contends that in regard to the conviction of Assault with a Dangerous Weapon, the evidence preponderates heavily against the verdict.[2] Doc. 73 at 1. The government opposes Long's motion. Doc. 75. For the reasons stated below, Long's motion is denied.


         On the evening of May 17, 2015, Cynthia Jones-Bear Robe ("Jones-Bear Robe") traveled to the Paul Mart Convenience Store ("Paul Mart") in Rosebud, South Dakota, along with her sixteen-year-old daughter, K.M.J., [3] and her daughter's seventeen-year-old boyfriend, Robert Kills in Water ("Kills in Water"). K.M.J, was driving Jones-Bear Robe's vehicle, a maroon, 2001 Cadillac Escalade, Jones-Bear Robe was in the passenger seat, and Kills in Water was in the back seat. K.M.J, parked near the first pole that was close to Paul Mart's entrance.[4] Jones-Bear Robe went into Paul Mart to purchase individual cigarettes, known as "stick cigarettes, " while K.M.J, and Kills in Water waited in the vehicle.

         Shortly thereafter, Long and his wife, Delores Long ("Delores"), arrived at Paul Mart. Long parked by the third pole on the same side of the building as K.M.J., leaving a space between the two vehicles.[5] Long was employed by Paul Mart, but was not working the night of May 17, 2015. K.M.J, observed Long and Delores follow Jones-Bear Robe into the store. Jones Bear-Robe testified that Delores went into Paul Mart's office, which is just to the left of the main entrance, and that Long stood behind her in line for the cashier. After waiting for the cashier to complete a phone call, Jones-Bear Robe asked for stick cigarettes. According to Jones-Bear Robe, Long started "running his mouth" and said, "Why don't you go sell your meth and your pills so you can buy yourself a pack." Jones-Bear Robe testified that Long pushed or nudged her, and she told Long that she was not talking to him, paid for her stick cigarettes, and exited the store. (A video of the encounter between Jones-Bear Robe and Long was captured from Paul Mart security cameras, and while it appears that Long is speaking to Jones-Bear Robe, he does not appear to make physical contact with her inside the store.).

         According to Jones-Bear Robe, Long followed her outside, talking to her as she got into the front passenger seat of her vehicle. She called 911, reaching Rosebud Sioux Tribe dispatcher Terri Searby ("Searby"), to talk about a protection or restraining order that was in effect.[6] Jones-Bear Robe testified that Searby asked about the vehicle Long was driving, so she got out of her vehicle to retrieve Long's license plate number. Long, who was standing outside of his vehicle smoking a cigarette, looked upset that she was getting his license plate number. He followed Jones-Bear Robe while she walked back to her vehicle. Jones-Bear Robe testified that once she was in the passenger seat, Long opened the passenger door, pointed a black, toy-looking, hand gun at her, and said he would "shoot you guys." She told K.M.J, to put the car in reverse, but K.M.J, resisted because she did not want to hit Long. Again, she told K.M.J, to reverse fast, and K.M.J, complied. As the vehicle reversed, Jones-Bear Robe testified that Long was running by the vehicle, rolled under the passenger door, and ended up on the ground some twenty-four to twenty-five feet in front of the vehicle. Because K.M.J, was panicking, Jones-Bear Robe testified that she told K.M.J, to put the vehicle in drive. At that point, Jones-Bear Robe testified that she "heard a ting."[7] She threw herself on top of K.M.J, and heard a second "ting." Jones-Bear Robe then put the vehicle in drive for K.M.J., and K.M.J, drove out of the Paul Mart parking lot, headed towards the Rosebud Sioux Tribe Police Department ("RST Police Department").[8] Ex. 3.

         K.M.J, and Kills in Water also testified as to their recollections of the events. K.M.J, recalled that after Jones-Bear Robe returned to the vehicle, Jones-Bear Robe said that Long was behind her in line and that he had poked her and harassed her. K.M.J, described how Jones-Bear Robe got out of the vehicle to obtain Long's license number, and that Long followed Jones-Bear Robe back to the passenger side of the vehicle. According to K.M.J., Long pulled the passenger door open and pulled a black gun out of the left pocket of his long, black jacket with his left hand. K.M.J, testified that Long looked at her and Jones-Bear Robe and said, "I've got something for you, " and then pointed the gun at Jones-Bear Robe's head and then at her. K.M.J. panicked, put the vehicle in reverse, and pulled out of the parking lot, causing Long to roll under the door and fall to the ground. Just about when she was going to drive the vehicle forward, K.M.J, testified that she heard four shots-two of which "dinged" off the vehicle-and saw that Long had fired his gun at the vehicle while he was on the ground. When K.M.J, drove out of the parking lot, she testified that Long was standing by the gas pumps and that she still heard shots as she was driving out onto the street. K.M.J, also testified that Delores was standing by Paul Mart's door watching the entire incident, that Long did not know that Kills in Water was in the backseat, and that she denied saying "no" to backing up when told to do so by Jones-Bear Robe.

         Kills in Water recalled that Jones-Bear Robe said that Long was pushing her with his finger and harassing her when she was inside Paul Mart. Kills in Water testified that Long followed Jones-Bear Robe after she looked at Long's license plate number and that while standing at the passenger door, Long pulled out a black hand gun from his coat's inside pocket. Kills in Water testified that Long pointed the gun inside the vehicle and said he was going to shoot "them, " referring to K.M.J, and Jones-Bear Robe. According to Kills in Water, Long did not see him in the backseat of the vehicle, and the vehicle had tinted windows. Kills in Water testified that he heard four shots; the first shot occurred when K.M.J, was backing up, and the final shot occurred as they were driving away. Kills in Water testified that he could not see Long shooting because he was hiding low in the back seat. Kills in Water acknowledged that he did not see which hand Long was using to hold the gun, that he never told anyone that Long had said anything while he was at the passenger side of the vehicle prior to testifying, and that he did not see Delores or hear her say anything during the time shots were fired.

         Officer Albert Little Elk ("Officer Little Elk") and Officer Daniel Reynolds ("Officer Reynolds") responded to Paul Mart after notification from dispatch. Officer Little Elk spoke with the cashier, Marlene Marshall ("Marshall"), and Paul Mart's supervisor, Nicolette "Nikki" Two Charger ("Two Charger"). Two Charger testified that because she was in her office inside Paul Mart, which has cement walls, no outside windows, and one door that leads into the main store area, she did not see or hear anything. Two Charger did, however, see Long enter Paul Mart with Delores through a one-way mirror in her office. Two Charger also saw Jones-Bear Robe at the counter, recognizing her as a frequent customer of the store. She testified that while Long made a purchase at the counter, Delores visited with her inside her office. Two Charger did not become aware of the incident until after the shooting, and Delores left her office only after Long came to get her. According to Two Charger, when Long came to get Delores his demeanor was "quick, " and he told Delores that they had to leave.[9] Officer Little Elk retrieved video surveillance from Two Charger. Ex. 1. Paul Mart's surveillance cameras record only video (no audio) and cover the inside of the store and the gas pumps, but not the side of the building where the incident occurred.

         Marshall testified that although she could not recall whether there was any interaction between Long and Jones-Bear Robe while they were in line at Paul Mart's counter, she saw no physical contact between the two. She testified that later she heard one sound, "a bang, " or what sounded like two vehicles hitting each other. She looked out the cashier window that faces the gas pumps, but seeing nothing, she resumed helping customers. Marshall testified that she was unaware of the shooting until Officer Little Elk came into the store.

         After speaking with Two Charger and Marshall, Officer Little Elk left Paul Mart to speak with Jones-Bear Robe, who he believed was at the RST Police Department.[10] At some point, Officer Little Elk also spoke with Delores who stated she believed that Jones-Bear Robe had attempted to run Long over with her vehicle. Officer Little Elk also learned that Long also called dispatch after the incident, talked with Searby, and reported that he was hit and run into at Paul Mart. Long voluntarily went to the RST Police Department that evening to speak with an officer and was later detained.

         Back at Paul Mart, Officer Reynolds located a single shell casing in the parking lot where Jones-Bear Robe and Long's vehicles were parked, approximately twenty yards from the entrance. Officer Reynolds testified that he spoke with two witnesses on the night of the incident, Jennifer Young ("Young") and James Bordeaux ("Bordeaux"). Officer Reynolds testified that he generated a report which contained statements Young and Bordeaux made that evening on the morning of May 18, 2015, before leaving his night shift. Special Agent Cory Provost ("Special Agent Provost"), the lead investigator on Long's case, was aware of Officer Reynold's report. Officer Reynolds testified that he was first advised that Long's case was proceeding to trial approximately one week before trial. Officer Reynolds testified that he provided his report to the Assistant United States Attorney Kirk Albertson during their first meeting on May 10, 2015-the first day of trial. After voir dire and before opening statements, the government issued subpoenas for Young and Bordeaux, amended its witness list, and disclosed a copy of Officer Reynold's report to Long. Young was located in time for trial and testified, but Bordeaux could not be located.

         In the afternoon on the second day of trial, Young testified that she saw the incident at Paul Mart while parked at the Paul Mart gas pumps. Young was standing outside her vehicle with the driver's door open because she was getting money out of her purse. She observed a heavy-set man-which description matches Long's stature-standing at the passenger door of a red SUV parked next to Paul Mart. He had reached for the SUV's passenger door and was yelling at someone in the vehicle about taking his license number down. She watched the vehicle reverse, which caused the man to roll under the vehicle's door onto the ground. After the vehicle had backed out and was coming forward, Young testified that the man started shooting a gun at the vehicle with his left hand. According to Young, the man was shooting while sitting on his backside on the ground, but that he was in the process of standing back up. She testified that she heard three shots. After seeing the incident, Young drove her vehicle around the block before returning to Paul Mart to get gas as originally intended. Young testified that she did not see a gun in the man's hand while he was at the passenger door; she only saw the man put his arm out to fire. She testified that the man then put the gun into his jacket pocket before entering the store. During her testimony Young watched the Paul Mart surveillance video. Young identified another woman on the video as Kim Denoyer ("Denoyer"). The video shows Denoyer run from inside Paul Mart to her vehicle close in time to when Young heard three shots fired.

         Special Agent Provost photographed the area outside Paul Mart, including a trail of fluid that led out of the parking lot and towards the highway in the direction of the RST Police Department. Ex. 2. He spoke with Jones-Bear Robe the night of the incident and again the next day when he inspected Jones-Bear Robe's vehicle. Special Agent Provost photographed the front of the Escalade which had a damaged grill from an item that had been lodged in the radiator or transmission cooler. Ex. 2. The Escalade was impounded and Special Agent Provost later removed a single bullet casing from the Escalade's radiator or transmission cooler.[11] Special Agent Provost did not find any other bullet holes on the Escalade. Although he was told that the passenger door was not closing properly, Special Agent Provost testified that he did not photograph the damage to the passenger door because he was not aware that Long had rolled under the door during the incident. Special Agent Provost did not take any photographs of Long or Long's clothing. Special Agent Provost also testified that an inquiry was submitted to the National Crime Information Center ("NCIC")-a global database where law enforcement can gather information on various persons-regarding Long using his name, social security number, and date of birth of July 22, 1982. The NCIC provided Special Agent Provost with Long's prior convictions, including a 2011 conviction for Domestic Abuse, which he requested and received a certified copy of from the tribal prosecutor. Ex. 5.

         Approximately two hours after the incident, Delores voluntarily provided a Glock 27, .40 caliber firearm with no magazine[12] to the RST Police Department, bearing serial number VHG125. The government called two expert witnesses regarding the seized firearm, Special Agent Kurt Wheeler ("Special Agent Wheeler"), who has advanced training in firearms affecting interstate commerce, and Mateo Serfontain ("Serfontain"), a certified firearms examiner. Special Agent Wheeler testified that he evaluated descriptive information about the Glock 27, .40 caliber, bearing serial number VHG125 at Special Agent Provost's request. Ex. 6. Special Agent Wheeler concluded that the firearm "did affect interstate and/or foreign commerce." Ex. 7. He testified that he confirmed that earlier conclusion upon inspecting the Glock the day before he testified, which showed that the Glock bore an Austria manufacturing mark. Serfontain testified that he performed lab work for ballistics recognition on the Glock, the fired bullet jacket that was recovered from the Cadillac Escalade's radiator or transmission cooler, and the fired cartridge case that was found in Paul Mart's parking lot. Exs. 8, 10. After a test fire, the Glock was found capable of discharging ammunition, and Serfontain determined with "practical certainty" that the fired cartridge case was fired from the ...

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