Submitted: March 10, 2017
from United States District Court for the District of South
Dakota - Pierre
WOLLMAN, COLLOTON, and SHEPHERD, Circuit Judges.
WOLLMAN, Circuit Judge.
Lee Long, Jr., was convicted by a jury of one count of
assault with a dangerous weapon, in violation of 18 U.S.C.
§§ 1153 and 113(a)(3); one count of simple assault,
in violation of 18 U.S.C. §§ 1153 and 113(a)(5);
one count of being a prohibited person in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(9),
924(a)(2), and 924(d); and one count of using a firearm
during and in relation to a crime of violence, in violation
of 18 U.S.C. § 924(c)(1)(A). The district
courtsentenced Long to 30 months'
imprisonment on the assault with a dangerous weapon count, 6
months' imprisonment on the simple assault count, and 30
months' imprisonment on the prohibited person in
possession of a firearm count (prohibited-person count), to
run concurrently with one another, and to a mandatory minimum
120 months' imprisonment on the use of a firearm during
and in relation to a crime of violence count, to run
consecutively with the other counts. Long appeals from the
district court's denial of his motion to dismiss the
prohibited-person count and its denial of his motions for a
new trial and for a mistrial based on alleged violations of
Brady v. Maryland, 373 U.S. 83 (1963). We affirm.
evening in May 2015, Cynthia Jones-Bear Robe was riding in a
vehicle returning from St. Francis, SD, to the town of
Rosebud, SD, which is located on the Rosebud Sioux Indian
Reservation. Her daughter, K.J., was driving the vehicle,
while K.J.'s boyfriend Robert Kills In Water rode in the
back seat. They stopped at the Paul Mart gas station and
convenience store, for Jones-Bear Robe to buy cigarettes.
While Jones-Bear Robe was standing in line, Long came into
the store, entered the checkout line behind her, and made a
derogatory remark to her about purchasing individual
cigarettes. She stated that she did not want to speak to him,
left the store after making her purchase, and returned to her
Jones-Bear Robe called the police from inside her vehicle to
report that Long was harassing her. She exited her vehicle to
record Long's license plate number and then returned to
the passenger seat of her vehicle. Long, expressing anger
that Jones-Bear Robe was reporting him to the police, opened
the vehicle's passenger door, pulled a gun out of his
pocket, pointed it at Jones-Bear Robe's head, and
threatened to shoot Jones-Bear Robe and K.J. At Jones-Bear
Robe's instruction, K.J. put the vehicle in reverse and
accelerated; Long was hit by and rolled under the open
then opened fire on the vehicle, with the witnesses at trial
giving different accounts of the number of shots he fired.
Jones-Bear Robe testified that he might have fired two,
three, or four shots. The police dispatcher who took
Jones-Bear Robe's call testified that Jones-Bear Robe had
said that Long fired twice. The supervisor at Paul Mart
testified that she did not hear any gunshots, saying that the
cement walls in her office may have accounted for this fact.
The cashier at the store testified that she heard one loud
sound, like two cars colliding. Kills In Water testified that
he heard four gunshots. K.J. testified that there were four
shots, two of which hit the vehicle.
first day of Long's trial, the government received and
provided to defense counsel a report prepared by Sergeant
Daniel Reynolds of the Rosebud Police Department, one of the
officers who responded to the incident at the Paul Mart,
which included statements from two additional witnesses,
Jennifer Young and James Bordeaux. Young testified that she
was preparing to purchase gasoline outside the Paul Mart
during the incident. She testified that she heard three
gunshots, and that she had told Reynolds at the scene that
she heard "a gun going off, " without specifying
the number of shots. Reynolds testified that Bordeaux, whom
the parties were unable to locate, had told Reynolds that he
saw a vehicle reversing quickly and heard a single noise,
which he thought was a car backfire. Young identified an
additional witness from the surveillance video, but the
parties were unable to contact her in time for her to testify
moved for a mistrial, or in the alternative for a
continuance, on the ground that the government's failure
to disclose Reynolds's report violated his Fourteenth
Amendment rights under Brady, arguing that the
statements by Young and Bordeaux supported his theory that he
acted in self defense by firing a single shot at the vehicle
to prevent it from running over him. The district court
denied the motion during the trial and denied Long's
post-trial motion for a new trial. D. Ct. Order of July 13,
2016, at 13-18. It concluded that information within the
possession of officers of the Rosebud Sioux Tribal Law
Enforcement Services was not within the government's
control for purposes of Brady, relying on its
previously decided case, United States v. Stoneman,
No. CR 09-30101-RAL, 2010 WL 2710477, *1-2 (D.S.D. July 8,
2010). D. Ct. Opinion & Order of July 13, 2016, at 15-16.
It concluded that the late disclosure of Young's
statement did not prejudice Long because she testified at
trial and was cross-examined by Long. Id. at 16-17.
It also concluded that Bordeaux's unavailability did not
prejudice Long because his statement was "at best,
neutral evidence" for Long, and because any prejudice to
Long was remedied by his opportunity to recall Reynolds and
elicit hearsay testimony regarding Bordeaux's statement.
Id. at 17-18.
also moved to dismiss the prohibited-person count, arguing
that his underlying tribal-court conviction for domestic
violence was obtained without counsel and thus could not
qualify as a predicate conviction under 18 U.S.C. §
921(a)(33)(B)(i). The district court initially deferred
ruling on this motion pending counsel's arguments at the
pretrial conference. D. Ct. Opinion & Order of May 6,
2016, at 9-11. The government presented evidence at the
pretrial conference that Long had pleaded guilty to an
offense of domestic abuse under Rosebud tribal law in June
2011. Long stated that his counsel in that case, Lisa White
Pipe, was not a licensed attorney or a law school graduate.
Long's district court counsel stated that he had been
unable to find White Pipe's name in the State Bar of
South Dakota Membership Directory. The government stated that
it had not been aware that White Pipe was not law trained,
but agreed that it had been unable to find her name in the
Membership Directory. The government did not dispute that
White Pipe had in fact been Long's representative. After
Long offered to elicit White Pipe's testimony that she
was not a licensed attorney, the court stated that it would
consider the motion. The court denied the motion the
following day, citing United States v. First, 731
F.3d 998 (9th Cir. 2013). D. Ct. Order of May 10, 2016.
Right to Counsel for ...