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United States v. Long

United States Court of Appeals, Eighth Circuit

August 29, 2017

United States of America Plaintiff- Appellee
v.
Michael Lee Long, Jr. Defendant-Appellant

          Submitted: March 10, 2017

         Appeal from United States District Court for the District of South Dakota - Pierre

          Before WOLLMAN, COLLOTON, and SHEPHERD, Circuit Judges.

          WOLLMAN, Circuit Judge.

         Michael 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 court[1]sentenced 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.

         I. Background

         On an 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 vehicle.[2]

          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 passenger door.

         Long 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.

         On the 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 at trial.

         Long 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.

         Long 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.

         II. Discussion

         A. Right to Counsel for ...


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