United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE.
convicted defendant Marlon Iron Crow of second degree murder.
(Docket 109). Defendant filed post-trial motions. (Docket
114). He seeks a judgment of acquittal under Rule 29(c) of
the Federal Rules of Criminal Procedure or, in the
alternative, a new trial under Rule 33(a). Id.
court limits its recitation to those facts necessary to
resolve defendant's pending motions. In the subsequent
legal analysis, the court includes additional facts as
needed. The court relies primarily on the transcripts
produced after trial, (Dockets 127, 129-32 & 134), as
well as its recollection of the evidence presented at trial.
November 11, 2016, Craig Charging Crow died in Porcupine,
South Dakota, at the home of Nicole Morsette. It happened
when Morsette, Jonathan Tenorio, L.T., Charging Crow and
defendant were in the home. L.T. is the son of Morsette and
Tenorio and was 12 years-old at the time; Morsette and
defendant are half-siblings. (Docket 130 at pp. 49, 94).
testified that on November 10, 2016, Morsette and Tenorio
drank vodka with defendant. Id. at pp. 52-53.
Everyone slept at the residence, L.T. remembered waking up on
November 11 around 7 a.m. and the others got up a few hours
later. Id. at pp. 55-56. L.T. testified the three
adults began drinking vodka once they woke up and gathered in
the dining room. Id. at pp. 57-58. After L.T.
finished breakfast, Charging Crow and a woman named Delores
arrived with vodka and joined the adults in the dining room.
Id. at pp. 58-60. L.T. testified soon it was just
his parents and him watching television together when
Charging Crow and defendant came back to the residence with
approximately eight cans of an alcoholic drink called Joose.
Id. at pp. 61-65. Charging Crow, defendant, Morsette
and Tenorio opened the cans of Joose in the kitchen, and L.T.
observed they were intoxicated. Id. at pp. 67-68.
the adults drank in the kitchen, L.T. heard Charging Crow
say, “I will knock you out, ” to defendant.
Id. at pp. 69-70. L.T. believed Charging Crow made
the comment as a joke because he laughed when he said it.
Id. at p. 70. Defendant responded, “Try
it.” Id. L.T. testified defendant went toward
Charging Crow and the two began knocking items over and
punching each other in the face. Id. at pp. 70-71.
At a point in the fight, L.T. saw Charging Crow backing away
and defendant continuing to punch his face. Id. at
pp. 72-73. They made contact with a table, breaking it, and
Charging Crow “gets knocked out” and fell to the
floor. Id. at pp. 73-74. L.T. testified defendant
“keeps on hitting” Charging Crow on the ground
and L.T.'s parents failed to pull defendant away to stop
him. Id. at p. 75. According to L.T.'s
testimony, defendant put on boots, adjusted Charging
Crow's body so it was flat on the floor and stomped on
Charging Crow's chin area. Id. at pp.
testified she, defendant and Tenorio drank approximately half
of a gallon of vodka on November 10, 2016. Id. at p.
96. On the next day, November 11, Morsette recalled Charging
Crow and Delores arriving empty-handed before they left and
came back with alcohol that they drank while L.T. watched
television. Id. at pp. 98-99. Charging Crow and
defendant brought Delores home. Morsette laid down with
Tenorio and L.T. Later Charging Crow and defendant returned
with cans of Joose. Id. at pp. 100-01. After
Charging Crow and defendant entered the home, the adults were
in the kitchen and Morsette remembered Charging Crow laughing
and stating, “I bet I can knock you out, Marlon,
” and defendant responding, “Try it.”
Id. at pp. 103-04.
testified defendant approached Charging Crow and struck him
in the face and the two proceeded to exchange blows until
Charging Crow fell to the ground. Id. at pp. 105-06.
When asked about a prior statement she made to law
enforcement right after Charging Crow's death, Morsette
indicated she stated defendant kicked and stomped on Charging
Crow. Id. at pp. 110-11. She and Tenorio were unable
to pull defendant off Charging Crow. Id. at p. 111.
When Charing Crow did not respond to efforts to revive him,
Tenorio called 911. Id. at p. 114.
Her Many Horses, a Lieutenant with the Oglala Sioux Tribe
Department of Public Safety, responded to Morsette's
home. Id. at p. 125. The Lieutenant described
Charging Crow as “bluish” and noticed he was not
breathing. Id. at p. 126. The Lieutenant observed
some blood on Charging Crow's face, “a cut on his
lip and just general swelling or bruising.”
Id. at p. 127.
Special Agent with the Federal Bureau of Investigation
(“FBI”), Mark Lucas (“SA Lucas”),
recorded an interrogation of defendant after Charging
Crow's death. (Exhibit 138). The recording was a trial
exhibit played for the jury. (Docket 130 at p. 247). In the
interrogation, defendant stated Charging Crow struck him
first and he wrestled and punched Charging Crow to defend
himself. (Exhibit 138).
jury heard testimony from Donald Habbe, M.D., the forensic
pathologist who conducted Charging Crow's autopsy. Dr.
Habbe determined Charging Crow suffered a tear to his basilar
artery, which resulted in a subarachnoid hemorrhage causing
Charging Crow's death. (Docket 129 at pp.
59-60). In Dr. Habbe's experience, a fatal
injury to the basilar artery is rare. Id. at pp.
59-61. Dr. Habbe explained “this traumatic subarachnoid
hemorrhage” usually occurs when “[y]ou have an
intoxicated individual; they are in some type of altercation;
it's typically a bar fight. And they take a blow to the
head, and after that blow they drop, and they are dead almost
immediately, or very shortly after that, that that blow is
inflicted.” Id. at p. 61. Dr. Habbe testified
Charging Crow's face had a “split lip” from a
“blunt force injury” and “a scrape on his
chin.” Id. at pp. 63-64. When he internally
examined Charging Crow's head, Dr. Habbe discovered
“four areas of hemorrhage or bleeding in the
subcutaneous tissues of the scalp.” Id. at p.
69. Dr. Habbe located these injuries on the left side of the
head and opined blunt force trauma caused them. Id.
at p. 70. Dr. Habbe testified blunt force trauma encompasses
punches, kicks and hitting the ground after falling.
Id. at pp. 70 & 73; (Docket 130 at p. 23).
called Brian Levenson, R.N., to the stand. Once Charging Crow
arrived at the hospital in Pine Ridge, South Dakota, Nurse
Levenson treated him. (Docket 130 at p. 269). Nurse Levenson
testified the external injuries to Charging Crow's lip
and chin could be caused by the intubation tube used on
Charging Crow before he reached the hospital. Id. at
pp. 272-73. Based on Nurse Levenson's training and
experience, he opined Charging Crow's injuries were the
result of falling. Id. at 280-81. Charging
Crow's high blood alcohol concentration was central to
Nurse Levenson's opinion. Id. Nurse
Levenson's other opinion on Charging Crow's cause of
death was he drowned on his own vomit, and Nurse Levenson
reached that conclusion because the weights of Charging
Crow's lungs at the autopsy were higher than usual.
Id. at pp. 283-84.
government called Bernadine Blue Bird as a witness; she is an
Assistant Enrollment Director for the Oglala Sioux Tribe.
Id. at p. 156. She testified defendant is an
enrolled member of the federally recognized Oglala Sioux
Tribe. Id. at pp. 157-58. The government also called
Lionel Weston, who works at the Bureau of Indian Affairs Land
Operations within the United States Department of the
Interior. Id. at p. 164. He testified Morsette's
home is in Indian country, within the exterior boundaries of
the Pine Ridge Indian Reservation. Id. at p. 165.
Rule 29(c) motion
moved for a judgment of acquittal at the conclusion of the
government's case-in-chief and again later in trial.
(Dockets 130 at pp. 207-11 & 131 at p. 80). The court
denied both motions, finding that granting the motion would
require weighing the credibility of L.T. and Morsette.
(Dockets 130 at pp. 211-17 & 131 at p. 80). Defendant
renews his Rule 29 motion. (Dockets 114 & 139). Defendant
timely filed the Rule 29(c) motion within 14 days of the
verdict. Fed. R. Crim. P. 29(c)(1).
Crim. P. 29(c) gives the district court authority to set
aside a guilty verdict and enter an acquittal upon a
defendant's post-trial motion. “A district court
has very limited latitude in ruling upon a motion for
judgment of acquittal.” United States v.
Baker, 367 F.3d 790, 797 (8th Cir. 2004) (citation and
internal quotation marks omitted). “A motion for
judgment of acquittal should be granted only if there is no
interpretation of the evidence that would allow a reasonable
jury to find the defendant guilty beyond a reasonable
doubt.” United States v. Boesen, 491 F.3d 852,
855 (8th Cir. 2007) (citations and internal quotation marks
omitted). This standard is very strict, and the court should
not overturn a jury verdict lightly. Id.
district court must enter an acquittal if the evidence
presented at trial is insufficient to sustain a conviction.
Id. Evidence may be direct or circumstantial.
Baker, 367 F.3d at 798. “Evidence supporting a
conviction is sufficient if any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” Boesen, 491 F.3d at 856
(citation and internal quotation marks omitted). The district
court must not weigh the evidence or assess the credibility
of witnesses. Baker, 367 F.3d at 797; see also
Boesen, 491 F.3d at 857 (“In ruling on a motion
for a judgment of acquittal, the role of the court is not to
weigh the evidence . . . but ...