Unpublished Disposition, 875 F.2d 319 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 875 F.2d 319 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Wally Lee CLARK, Defendant-Appellant.

No. 87-3159.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 7, 1989.Decided May 11, 1989.

Before HUG, WILLIAM A. NORRIS and DAVID R. THOMPSON, Circuit Judges.


Wally Lee Clark appeals his sentence and convictions for murder, in violation of 18 U.S.C. §§ 1153, 1111 (Supp. II 1984), arson, in violation of 18 U.S.C. §§ 1153, 81 (1982 & Supp. II 1984), and involuntary sodomy, in violation of 18 U.S.C. § 1153 (Supp. II 1984) and Mont.Code Ann. Sec. 45-5-505(3) (1987). We find none of his numerous allegations of error sufficient to require further action and therefore affirm the district court.

Clark's main contention on appeal is that the evidence presented to the jury was insufficient to support its conclusion that he is an Indian and therefore subject to prosecution under 18 U.S.C. § 1153 (Supp. II 1984). When reviewing the sufficiency of the evidence, appellate courts must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original) (citation omitted); see also United States v. Bordallo, 857 F.2d 519, 524 (9th Cir. 1988). A reviewing court making this determination should "draw all reasonable inferences favorable to the government." Bordallo, 857 F.2d at 524 (citations omitted).

Section 1153 provides in pertinent part as follows:

Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, ... involuntary sodomy, ... arson, ... within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

18 U.S.C. § 1153 (Supp. II 1984). In order to sustain a conviction under section 1153, the government must prove that the individual charged is, in fact, an Indian. See United States v. Jewett, 438 F.2d 495, 497 (8th Cir.) (government bears burden of proving defendant is an Indian person), cert. denied, 402 U.S. 947 (1971); see also United States v. Torres, 733 F.2d 449, 454-56 (7th Cir.) (finding jury conclusion that defendant was an Indian well supported by the evidence), cert. denied, 469 U.S. 864 (1984); United States v. Indian Boy X, 565 F.2d 585, 594 (9th Cir. 1977) (addressing contention that the government failed to meet its burden of establishing Indian status), cert. denied, 439 U.S. 841 (1978). Congress, however, has never addressed the issue of exactly who is an Indian for purposes of section 1153. Nor has it indicated what type of evidence must be used to establish Indian status.

We have held that Indian status ultimately depends on "a totality of circumstances, including genealogy, group identification, and lifestyle, in which no one factor is dispositive." Duro v. Reina, 851 F.2d 1136, 1144 (9th Cir. 1987) (citation omitted), modifying 821 F.2d 1358 (9th Cir. 1987); see also United States v. Boncheau, 597 F.2d 1260, 1263 (9th Cir.) (courts should consider degree of Indian blood and tribal or governmental recognition as an Indian to determine Indian status), cert. denied, 444 U.S. 859 (1979). In the instant case, Harold Mad Plume, the chief prosecution witness and Clark's first cousin, testified as follows:

Attorney: Do you know whether he [Clark] is a member of the tribe or not?

Harold: Yes, he is.

Attorney: Blackfeet Tribe?

Harold: Yes.

Attorney: Was he born to that tribe?

Harold: Yeah. You know, I can't--you know, excuse that question, but, you know, I don't remember, but I think he is.

Attorney: Has he always lived on the Reservation, to your knowledge?

Harold: Yes, he has.

In response to the initial questions as to whether Clark was a member of the Blackfeet Tribe, Harold Mad Plume's affirmative answer was clear. Although there is some ambiguity in his response to the question as to whether Clark was born to the tribe, this testimony does not negate the earlier answers. Furthermore, the testimony was clear that Clark had always lived on the reservation. Under the standard announced in Jackson v. Virginia, this evidence was sufficient for the jury to have found that Clark was an Indian.

Clark next argues that the district judge erroneously instructed the jury regarding the weight to be afforded accomplice testimony. Because Clark failed to object at trial to the instruction he now challenges, our review is only for plain error. United States v. Ramos, 861 F.2d 228, 230 (9th Cir. 1988).

The trial judge gave the following instruction regarding the manner in which the jury should view accomplice testimony:

You have heard testimony about an accomplice in this case. An accomplice is one who unites with another person in the commission of a crime, voluntarily and with common intent. An accomplice does not become incompetent as a witness because of participation in the crime charged. On the contrary, the testimony of one who asserts by his testimony that he is an accomplice, may be received in evidence and considered by the jury, even though not corroborated by other evidence, and given such weight as the jury feels it should have. You, the jury, however, should keep in mind that such testimony is always to be received with caution and considered with great care.

This instruction was not erroneous. Indeed, the very language used by the trial judge has been previously quoted by this circuit with approval. See United States v. Bernard, 625 F.2d 854, 857-58 & n. 1 (9th Cir. 1980).

Clark's third allegation of error involves the propriety of sentencing a defendant separately for the crimes of arson and murder by arson. The statute upon which Clark's conviction for murder was based provides as follows:

Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, rape, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree.

18 U.S.C. § 111 (Supp. II 1984). Clark was also convicted of arson in violation of 18 U.S.C. § 81 (1982). He now contends that it was error for the district court to sentence him separately for violations of section 1111 and section 81. Specifically, he argues that such sentencing constitutes multiple punishment for the same offense in violation of the fifth amendment.

"When the same act constitutes a violation of two separate criminal statutes, a defendant may be convicted of and receive punishment under both statutes without offending the double jeopardy clause if proof of one violation does not necessarily include proof of the other offense, and there is no evidence that Congress intended to prohibit separate punishment for the two offenses." United States v. Roberts, 783 F.2d 767, 769 (9th Cir. 1985) (citing United States v. Woodward, 469 U.S. 105 (1985) (per curiam)). This circuit has held that, when making this inquiry, it is the actual statutory elements of a crime rather than "the particular manner in which the offense was committed" that is controlling. United States v. Solomon, 753 F.2d 1522, 1527 (9th Cir. 1985) (citation omitted).

Clark has pointed to no evidence that Congress, in enacting section 1111, intended to bar simultaneous prosecution for arson under section 81. Further, in order to establish a violation of section 1111, the government need not prove that an individual set fire to a building, vessel, or other personalty. Yet such burning is an essential element of a section 81 violation. Similarly, the death of another need not be proven to establish arson, but is the gravamen of a conviction for murder. Thus, it is clear that the two crimes do not overlap to such an extent that separate punishment for each offense offends the dictates of the fifth amendment. Indeed, a panel of this circuit has already reached this conclusion on remarkably similar facts. See Solomon, 753 F.2d at 1527-28 (defendant may be punished under both section 1111 and section 81 for arson and premeditated murder of woman on the Yakima Indian Reservation; " [p]unishment for both crimes was Congress' intent"). Thus, the district court's sentencing decision was proper.

In a related vein, Clark argues pro se that the jury verdicts finding him guilty of second degree murder and arson are impermissibly inconsistent. Specifically, Clark claims that, once the jury found him guilty of arson, it could not logically convict him of second degree murder since murder by arson constitutes murder in the first degree. See 18 U.S.C. § 1111 (Supp. II 1984). The indictment charged that "on or about the 22nd day of April 1985, ... Wally Lee Clark, an Indian person, did willfully, deliberately, maliciously, and with premeditation and malice aforethought, and by means of arson, murder Louis Murphy." Although the indictment specified that the murder was committed by means of arson, it did not base the first degree murder charge on the felony murder provisions of the statute but rather on premeditation. Indeed, the jury was specifically instructed that proof of premeditation was required to establish first degree murder. The jury apparently did not find premeditation. It therefore quite properly found Clark guilty of second degree murder, a lesser included offense of first degree murder based on premeditation.

Finally, even if the verdicts were inconsistent, inconsistent verdicts may stand as long as there is sufficient evidence in the record to support each finding. See United States v. Powell, 469 U.S. 57, 67 (1984) (sufficiency of the evidence review "should be independent of the jury's determination that evidence on another count was insufficient"). Clearly, there was evidence produced at trial upon which the jury could base both a conviction for arson and a conviction for second degree murder. Thus, Clark's inconsistency argument must fail.

Clark next contends that the district court violated 18 U.S.C. § 3553(c) (Supp. IV 1986) by failing to state in open court its reasons for sentencing him as it did. Although section 3553(c) does require such a statement, its mandate is inapplicable to Clark's offense.

Both Congress and the courts have made clear that the Sentencing Reform Act, and therefore section 3553, applies only to offenses committed on or after November 1, 1987. See Sentencing Act of 1987, Pub. L. No. 100-182, Sec. 2(a), 101 Stat. 1266; United States v. Stewart, 865 F.2d 115, 116-18 (7th Cir. 1988); see also United States v. Rewald, 835 F.2d 215, 216 (9th Cir. 1987). Clark was convicted of crimes he committed on April 22, 1985. Thus, section 3553 is inapplicable. Further, prior to the enactment of section 3553, it was not required that a sentencing court make such a statement. See United States v. Thompson, 541 F.2d 794, 795-96 (9th Cir. 1976) (per curiam).

We have reviewed the remainder of Clark's pro se claims and find them to be without merit.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3