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United States v. Weldon Two Bulls

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

April 23, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
WELDON TWO BULLS, Defendant.

          OPINION AND ORDER GRANTING RULE 29 MOTION FOR JUDGMENT OF ACQUITTAL ON COUNT II AND MISTRIAL ON COUNT I

          ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.

         The Government indicted Weldon Two Bulls (Two Bulls) on one count of accessory after the fact and one count of false statement. Doc. 26. This Court conducted a jury trial on March 12 and March 15, 2019. After hearing the evidence, this Court was skeptical that a reasonable jury could convict on either count and took under advisement the Defendant's Rule 29 Motion for Judgment of Acquittal. The jury stalemated on the accessory after the fact count but returned a verdict of guilty on the false statement count. Doc. 65. For the reasons explained below, this Court grants the Rule 29 Motion for Judgment of Acquittal on the false statement charge and adopts the Magistrates Judge's Report and Recommendation to grant a mistrial on the accessory after the fact charge.

         I. Rule 29 Standard

         Under Rule 29(a) of the Federal Rule of Criminal Procedure, "the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Grim. P. 29(a). Under Rule 29(b), a court "may reserve decision on the motion, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict." Fed. R. Crim. P. 29(b). This Court reserved ruling on the Rule 29 motion after the conclusion of the evidence.

         Judgment of acquittal is appropriate "only when no reasonable jury could have found the defendant guilty beyond a reasonable doubt." United States v. Hardin, 889 F.3d 945, 949 (8th Cir. 2018) (citation omitted). When considering a motion for judgment of acquittal, a district court must view the evidence in the light most favorable to the government, must resolve factual conflicts in the government's favor, and must accept all reasonable inferences that support the verdict. United States v. Benton, 890 F.3d 697, 708 (8th Cir. 2018). A court on a Rule 29 motion "is not to weigh the evidence or assess the credibility of witnesses." United States v. Bredell, 884 F.2d 1081, 1082 (8th Cir. 1989) fciting Burks v. United States, 437 U.S. 1, 16 (1978)). "Amotion 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. Dupont, 672 F.3d 580, 582 (8th Cir. 2012) (per curiam) (quotation omitted). "Jury verdicts are not lightly overturned," United States v. Hood, 51 F.3d 128, 129 (8th Cir. 1995), and indeed the undersigned judge has never granted a Rule 29 judgment of acquittal previously, despite having encountered situations where this Court was skeptical that there was sufficient evidence for a reasonable jury to find defendants guilty. See, e.g.. United States v. Colombe, 18-CR-30013-RAL, Doc. 234 (D.S.D. Dec. 7, 2018) (explaining denial of Rule 29 motion in case involving retaliation against a witness where sufficiency of evidence was weak but there was a view of the evidence to support the verdict). Even though "[j]ury verdicts are not lightly overturned," United States v. Shumaker, 866 F.3d 956, 960 (8th Cir. 2017) (quotation omitted), "the government is not entitled to inferences based on conjecture and speculation" for a jury verdict to stand, United States v. Aponte, 619 F.3d 799, 804 (8th Cir. 2010).

         II. Facts and Reasonable Inferences Favorable to the Government

         The Government believed that Sheena Between Lodges (Between Lodges) sometime during the first weekend of November of 2018 was beaten by her boyfriend Gilbert "JR." Lakota (Lakota) and his sister Lily Larvie (Larvie) and then left unconscious in a bedroom Between Lodges shared with Lakota on the Pine Ridge Indian Reservation. Lakota and Larvie have not been indicted or otherwise charged with any crime and have denied perpetrating any assault on Between Lodges. Between Lodges was in a prolonged coma and has no recollection of the weekend at issue.

         The Government believed that Defendant, who stayed in the house with his girlfriend Larvie at times, was a witness to or aware of the assault on Between Lodges.[1] On December 18, 2018, the Government indicted Defendant on a count of accessory after the fact as follows:

On or about between November 2, 2018, and November 9, 2018, in the District of South Dakota, the defendant, Weldon Two Bulls, knowing that an offense against the United States had been committed, to wit: assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1153 and 113(a)(6), did receive, relieve, comfort, and assist the offender, in order to hinder and prevent their trial, and punishment, all in violation of 18 U.S.C. § 3.

Doc. 1. Later, on January 23, 2019, [2] the Government indicted Defendant on a second count of false statement as follows:

On or about between November 2, 2018, and November 21, 2018, at Pine Ridge, in the District of South Dakota, the defendant, Weldon Two Bulls, did willfully and knowingly make and cause to be made materially false, fictitious, and fraudulent statements and representations in a matter within the jurisdiction of a department and agency of the United States, to wit: the defendant, Weldon Two Bulls, reported to Bureau of Indian Affairs Special Agent Wesley Pacenza that he, the defendant, Weldon Two Bulls, was too intoxicated to recall what happened to Sheena Between Lodges, an assault victim, when, as the defendant, Weldon Two Bulls, then and there well knew, his statements were false, all in violation of 18 U.S.C. § 1001(a)(2).

Doc. 26. The Government did not believe that Defendant himself was involved in the assault of Between Lodges and presented no witness to seeing any assault on Between Lodges during the first weekend of November of 2018.

         Between Lodges's plight became known to law enforcement as a result of a 911 call placed apparently by her boyfriend Lakota around 7:00 a.m. on Monday, November 5, 2018. Tr. Ex. 44. The caller advised dispatch of the need for an ambulance because Between Lodges had been asleep for two or three days and could not be awoken. Tr. Ex. 44. The caller said that Between Lodges had been drinking earlier before her prolonged period of unconsciousness. Tr. Ex. 44.

         No one from the first responders testified at trial. Evidently, the first responders found Between Lodges unconscious in her bedroom in a home in a rural location on the Pine Ridge Indian Reservation in South Dakota. The first responders transported Between Lodges to the Indian Health Services (IHS) in Pine Ridge, South Dakota. No. care provider from IHS testified. IHS evidently was told that Between Lodges had fallen, but Between Lodges had dark bruising and some aged bruises with different colorations, including bruising on her face, shoulders, neck, arm, and leg, all of which raised suspicions that Between Lodges had been assaulted. IHS requested a police officer, and Oglala Sioux Tribe Police Lieutenant Vanessa Rodriguez Dubray (Lieutenant Dubray) initially responded, followed by Bureau of Indian Affairs (BIA) Agent Wesley Pacenza (Agent Pacenza).[3] Law enforcement took photographs of Between Lodges at IHS and waited for the boyfriend Lakota to arrive, but he never did. Because Between Lodges had life-threatening injuries, she was transferred to Rapid City Regional Hospital.

         At Rapid City Regional Hospital, Dr. Rodney Samuelson (Dr. Samuelson), a neurosurgeon, determined that Between Lodges had a very large subdural hematoma with a 1.5-centimeter midline shift of her brain. Dr; Samuelson performed an emergency craniectomy to remove a portion of her skull to evacuate the subdural hematoma and to relieve pressure on her brain. Dr. Samuelson testified that Between Lodges had cirrhosis of the liver and liver disease that caused blood coagulation issues. Her blood coagulation issues made her bruising worse, made her bruise more easily, and made controlling bleeding more difficult. Between Lodges remained in a coma throughout her stay at Rapid City Regional Hospital and ultimately was transferred to a long-term care facility in Montana.

         Dr. Samuelson opined that the injuries sustained by Between Lodges were consistent with having been assaulted. He noticed bruising across her neck that had the appearance of a strangulation injury in the area where a neck brace had been placed. Dr. Samuelson observed a new upper arm bruise with fine lines as if something other than the blood pressure cuff had been strapped tightly around the arm.[4] Between Lodges had superficial abrasions to her hands, arms, feet, and legs. Dr. Samuelson testified that a subdural hematoma could come from a fall, but Between Lodges having bruises both old and new, including a black eye, indicated that Between Lodges had been assaulted. Part of what the Government relied upon during the trial to suggest an assault, the bruising of the right side of her head and face, however, Dr. Samuelson identified as being swelling that occurred due to and after he performed the craniectomy. Regardless, based on the photographs, Tr. Ex. 3-9, 34-36, 49, and Dr. Samuelson's opinions, a reasonable jury could have concluded that Between Lodges had been assaulted during the first weekend of November 2018.

         Law enforcement then began investigating who had been around Between Lodges in the days leading up to her hospitalization. Several hearsay statements regarding what investigators were told came into evidence without objection. Agent Pacenza with assistance from Lieutenant Dubray conducted the initial investigation. On November 5, 2018, after Between Lodges had been transported to Rapid City Regional Hospital, Agent Pacenza and Lieutenant Dubray went to the home of Harry Wounded (Wounded), where Between Lodges lived and where emergency responders found her. At trial, Wounded was described as an 80-year-old man, hard of hearing, who permitted access to the home but had little helpful information. Law enforcement saw no signs of any struggle within the residence. Law enforcement took photographs of the bedroom where Between Lodges reportedly had been found and collected clothing and bedding that had some blood on it.[5] Tr. Ex. 10-18. Law enforcement learned that Between Lodges shared one bedroom with her boyfriend Lakota, that Larvie slept in another bedroom in which Defendant stayed, and that the homeowner Wounded used a third bedroom. Agent Pacenza wanted to interview Lakota and Larvie, so he left his card with Wounded.

         Larvie contacted Agent Pacenza's office around 3:30 or 4:00 p.m. on November 5, 2018, and gave a recorded interview. The content of that interview was not introduced into evidence, and Larvie did not testify at trial. Larvie on the morning of November 6, 2018, called Agent Pacenza's office about bringing in her brother Lakota, and Lakota then was interviewed on the morning of November 6, 2018. Lakota's statement was not introduced into evidence and Lakota did not testify at trial. Agent Pacenza described the statements of Lakota and Larvie as "not really helpful." Law enforcement then returned to the residence to photograph stairs because of statements that Between Lodges had fallen from the stairs or had been dropped when she was passed out and being carried into the residence. Photographs of the home and the stairs were introduced at trial. Tr. Ex. 10-18, 37-42, 45-56. Because of statements that Between Lodges previously had bruised her leg on her vehicle's trailer hitch, law enforcement photographed the vehicle as well. Tr. Ex. 19-33.

         On November 6, 2018, before law enforcement interviewed Defendant, Elgin Young Bear (Young Bear) called Lieutenant Dubray recounting what Young Bear had heard from Defendant. Young Bear, who lives in the community of Oglala on the Pine Ridge Indian Reservation, is a half-brother of Between Lodges and a cousin of Defendant. Young Bear knew Between Lodges to be an alcoholic, and as a recovering alcoholic Young Bear kept a distance from her. Young Bear recalled that on Sunday, November 4, 2018, Defendant visited Young Bear and his wife Wyleen Two Lance (Two Lance) at their home in Oglala. Defendant was driving Between Lodges's silver Dodge Durango and arrived alone in the vehicle. Young Bear remarked that Defendant was oftentimes "buzzed up" when he comes to visit. Defendant appeared to be hyper, could not stand still, and told Young Bear and Two Lance that Lakota and Larvie had been "ganging" (meaning beating on) Between Lodges and that Defendant had to throw off Larvie. Young Bear got the impression that some assault had just occurred and was puzzled why Defendant did not have Between Lodges in the vehicle with him. Nevertheless, after Defendant's visit, Young Bear and Two Lance left for the casino rather than checking on Between Lodges. Young Bear thought Defendant's visit was on the same day that Young Bear learned of Between Lodges being transported to Rapid City Regional Hospital, which would have put the visit on Monday, November 5.[6] On Tuesday, November 6, 2018, in the morning, Young Bear talked again with Defendant, hearing Defendant say that "they" (meaning people other than Defendant) carried Between Lodges and dropped her three times, including near the cemetery. Young Bear visited Between Lodges at Rapid City Regional Hospital, believed that Between Lodges had been assaulted, and therefore notified law enforcement of his conversations with Defendant.

         Young Bear's wife Two Lance testified similarly. Two Lance described Defendant as a good man who is the nicest person ever when sober, but who has a drinking problem. Two Lance remembers that it was Sunday when she was making bread and beans that Defendant knocked on the door around 4:00 or 5:00 p.m. and came in to say that Lakota and Larvie had been ganging Between Lodges and that Defendant had to throw them off. To Two Lance, Defendant seemed upset, pacing and rubbing his head. Defendant asked to borrow some money for gas for Between Lodges's Durango, and they found three dollars or so in change to give to Defendant. Two Lance knew that Defendant had a drinking problem and did not think much of what he said at the time, until after 9:00 p.m. when she learned that Between Lodges was at Rapid City Regional Hospital. Like Young Bear, Two Lance originally told the agents that Defendant had visited them at their house on Sunday, the same day they learned of Between Lodges's hospitalization; however, Between Lodges was not hospitalized until Monday, November 5, 2018, after the 7:00 a.m. call to 911. The Government maintained that Defendant's visit was on Sunday around 4:00 to 5:00 p.m., and not on Monday, and a jury reasonably could have believed that Young Bear and Two Lance were confused as to the day when they learned of Between Lodges's injuries and not as to the day when Defendant visited them. Two Lance was with her husband on the morning of Tuesday, November 6, 2018, when they spoke with Defendant about what had happened and when Defendant said that "they" (meaning others) had dropped Between Lodges three times and a fourth time on the porch.

         On November 6, 2018, Agent Pacenza, with some assistance from Lieutenant Dubray, conducted a 28-minute recorded interview of Defendant outside the Wounded residence within a law enforcement vehicle. Tr. Ex. 1. This interview is the critical interview to Count II, which alleges that Defendant made a false statement to Agent Pacenza about being "too intoxicated to recall what happened to Sheena Between Lodges, an assault victim, when, as the defendant, Weldon Two Bulls, then and there well knew, his statements were false." Doc. 26. The only statements that Defendant made to Agent Pacenza were on November 6, 2018.

         This Court has studied the November 6 interview of Defendant and had the entire recorded statement transcribed; at no point does Defendant actually say that he was "too intoxicated to recall what happened to Sheena Between Lodges." Tr. Ex. 1; Doc. 67. Defendant began by saying that he did not really know what happened to Between Lodges. Tr. Ex. 1; Doc. 67 at 3. Defendant reported that he had heard that Between Lodges had fallen off the porch and had been dropped a few times when brought back into the home, but Defendant did not see that occur. Tr. Ex. 1; Doc. 67 at 3. Defendant said that he had been protective of Between Lodges because she is his little cousin, but reported that Between Lodges had used her leg-a prosthetic leg due to injuries from a motor vehicle accident-to strike her boyfriend Lakota. Tr. Ex. 1; Doc. 67 at 4-5. Defendant explained that Between Lodges gets drunk and sleeps for a long time. Tr. Ex. 1; Doc. 67 at 4-5. Defendant recalled being present Friday night and Saturday morning in his room watching a movie, but then thought that he had borrowed Between Lodges's car on Friday night and stayed with his father elsewhere overnight until returning the car. Tr. Ex. 1; Doc. 67 at 4, 7. When asked about borrowing Between Lodges's car overnight, Defendant said that Between Lodges looked good on Friday night, although she had a bruise on one side of her face. Tr. Ex. 1; Doc. 67 at 8. Defendant first mentioned his intoxication when speaking of not really knowing quite when he returned the car saying:

I was kind of - I was on a drunk myself, so I really don't know. I mean but - I remember borrowing the car, and I went straight down to Number 4.[7] And then she [meaning Between Lodges] was - she said yeah, go ahead, just make sure you put gas in it.

Tr. Ex. 1; Doc. 67 at 9. Defendant believed the ambulance had come for Between Lodges on Sunday, but Agent Pacenza.told Defendant "that was yesterday," meaning Monday. Tr. Ex. 1; ...


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