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United States v. Loren Michael Grey Bear, Tayron Dale Dunn, A/K/A Terry Dunn, Leonard George Fox and John Emmanuel Perez, A/K/A John Perez, United States of America v. Jesse Dean Cavanaugh, Paul Henry Cavanaugh, Maynard James Dunn, Timothy Sylvester Longie, Jr., Roger Darrel Charboneau, Dwayne Allen Charboneau, Richard John Lafuente, A/K/A Ricky Lafuente
Citations: 836 F.2d 1086; 1987 U.S. App. LEXIS 17607Docket: 86-5264
Court: Court of Appeals for the Eighth Circuit; December 30, 1987; Federal Appellate Court
The Eighth Circuit Court denied a petition for rehearing concerning the convictions of eight defendants for second degree murder, which had previously been set aside due to insufficient evidence. The government sought to remand the case for judgment on lesser included assault charges or to allow a retrial for assault resulting in serious bodily injury. They referenced past cases to support their position, asserting that double jeopardy does not prevent such actions. However, the court noted that these arguments had not been presented to the trial court or in the government's original brief, and any decision on retrial would require an advisory opinion, which is not permissible. Therefore, the panel ruled the issues were not ripe for adjudication at this time and denied the rehearing petition, allowing the government to raise these matters before the district court in the future. In Cobb, the court reversed a bank robbery conviction due to insufficient evidence of the use of a dangerous weapon, remanding for resentencing on a lesser included offense of bank robbery by force and violence or intimidation. The defendant acknowledged sufficient evidence for the lesser offense. In contrast, the defendants in the current case contest the sufficiency of evidence for the assault charges. However, because the government did not argue for alternative assault convictions in its original brief, the court is unable to review these charges. The court referenced DeMarrias, where a second-degree murder conviction was also reversed for insufficient malice aforethought evidence, but sufficient evidence was found for involuntary manslaughter, leading to resentencing. In the present case, the jury's conviction for second-degree murder does not imply sufficient evidence for assault resulting in serious bodily injury, as this would necessitate distinct briefing and appellate review.