UNITED STATES OF AMERICA, PLAINTIFFAPPELLEE v. FRITZ ARLO LOOKING CLOUD, DEFENDANTAPPELLANT

Citations: 419 F.3d 781; 68 Fed. R. Serv. 7; 2005 U.S. App. LEXIS 17578; 2005 WL 1993934Docket: 04-2173

Court: Court of Appeals for the Eighth Circuit; August 19, 2005; Federal Appellate Court

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Fritz Arlo Looking Cloud appeals his conviction for the first-degree murder of Anna Mae Aquash, which resulted in a life sentence. His appeal raises four primary issues: the admission of irrelevant and prejudicial evidence, the inclusion of hearsay and an improper limiting instruction, ineffective assistance of counsel, and insufficient evidence for the conviction. Aquash's body was discovered in 1976, leading to a delayed investigation that gained momentum in the mid-1990s when police began interviewing Looking Cloud and other American Indian Movement (AIM) members. The prosecution argued that Looking Cloud and other AIM members killed Aquash, fearing she was a federal informant. Following rumors of her informant status, Aquash fled but was later captured by Looking Cloud, Theda Clark, and John Graham, who were instructed by AIM to return her to South Dakota. Despite her pleas for freedom, she was taken to a secluded area where she was shot by Graham. Looking Cloud contends that the evidence regarding AIM's activities was either irrelevant to the murder charge or excessively prejudicial, implying that the government aimed to depict AIM as violent to bias the jury against him. The court affirmed the conviction.

Federal Rule of Evidence 401 defines "relevant evidence" as evidence that makes a consequential fact more or less probable. Such evidence is generally admissible unless excluded under Rule 403 due to its probative value being substantially outweighed by unfair prejudice, confusion, or misleading the jury. Unfair prejudice arises not merely from evidence indicating guilt but from its potential to lead the jury to improper reasoning. The determination of unfair prejudice focuses on whether there is an undue suggestion for decision-making based on improper bases. Courts defer significantly to district courts' balancing of probative value and prejudicial impact, with appellate review for abuse of discretion.

In the context of a case involving Looking Cloud, the government alleged that his involvement in the murder of Aquash was orchestrated by members of the American Indian Movement (AIM), claiming he acted on orders due to Aquash's betrayal as an informant. The government introduced two types of evidence: (1) the relationships among AIM members and (2) violent activities associated with AIM. The first type established Looking Cloud's connections to the Movement, paralleling the admissibility of evidence regarding a defendant’s associations with gangs when such relationships demonstrate motive or opportunity. However, mere association with a group cannot alone warrant a conviction. Courts have upheld the admission of gang-related evidence where it clarifies connections without leading the jury to base its verdict on association alone.

The murder of Aquash is contextualized within the American Indian Movement (AIM), highlighting that both Aquash and Looking Cloud were members, as were most individuals connected to Aquash prior to her death. She was transported through a network of AIM members before her murder, with evidence indicating that influential AIM leaders believed she was an informant and assigned Looking Cloud, Clark, and Graham to kill her. This connection strengthened the government's theory that AIM orchestrated the murder, making Looking Cloud's involvement within the Movement crucial to understanding his motive. 

The risk of the jury associating Looking Cloud's membership in AIM with violent conduct was deemed low; while evidence linked him to the Movement, it did not unjustly suggest guilt based solely on association. Darlene Nichols provided testimony about violent incidents involving AIM, including a riot, the Wounded Knee occupation, and a shoot-out that resulted in the deaths of two FBI agents. These incidents, while the most violent, were the least relevant to Aquash and Looking Cloud, making them both the least probative and most prejudicial. Nonetheless, such evidence illustrated the intense loyalty of AIM members and the potential outrage over a member being labeled a government informant, aiding the jury's understanding of a possible motive for murder.

Any potential errors in admitting evidence of AIM's violent acts were considered harmless, as they did not significantly affect the defendant's rights or influence the verdict. The evidence was presented in a non-inflammatory manner and did not dominate the trial's focus. The district court was found not to have abused its discretion in allowing this evidence. 

Looking Cloud also argued that the admission of evidence suggesting Aquash was a government informant constituted inadmissible hearsay. The court allowed witnesses to testify about accusations against Aquash and her expressed fear for her life in light of these accusations, with the government acknowledging that Looking Cloud had preserved his objections for appeal.

The district court partially upheld Looking Cloud's hearsay objection, issuing a limiting instruction to the jury that specified the evidence regarding rumors of Aquash being an informant was admissible only to illustrate the existence of the rumor, not for its truth. This decision aligns with Federal Rule of Evidence 801(c), which states that an out-of-court statement is not hearsay if it is not offered for the truth of the matter asserted. The rumors were deemed relevant to demonstrate Looking Cloud's motive for allegedly killing Aquash, as the jury only needed to ascertain whether he had heard or believed the rumor, not its veracity. 

The court referenced precedents, including United States v. Amahia and United States v. Cline, to support the admissibility of such evidence as it aids in understanding the context surrounding the events in question. Looking Cloud's argument that the district court's limiting instruction was improper was rejected because he failed to propose an alternative instruction, leading to a review for plain error. The court clarified that the instruction was clear and adequate. Additionally, Looking Cloud claimed ineffective assistance of counsel on three grounds: failure to object to a videotaped interview under the Sixth Amendment, failure to challenge hearsay statements and request a jury instruction on hearsay, and failure to object to leading questions.

Ineffective assistance of counsel claims typically necessitate factual development beyond the trial record, making them unsuitable for direct appeal and more appropriate for habeas corpus proceedings. These claims may only be reviewed on direct appeal in exceptional circumstances, such as when the district court has created a record on the issue or a plain miscarriage of justice would occur. Looking Cloud's claim regarding ineffective assistance, based on his attorney's failure to suppress a police interview due to his intoxication, is not an exceptional case. The record only includes a brief mention of alcohol during the interview, providing insufficient basis to evaluate his claim. Consequently, this claim may be raised in a 28 U.S.C. § 2255 proceeding.

Additionally, Looking Cloud contends that the evidence presented at trial was inadequate to support his conviction for first-degree murder or aiding and abetting under 18 U.S.C. §§ 1111 and 1153. He disputes specific elements of the conviction, including whether he killed or aided in the killing of Aquash, acted with malice aforethought, and whether the act was premeditated. The review of evidence is conducted de novo, and a conviction can only be overturned if no interpretation of the evidence supports the jury's verdict.

At trial, evidence showed that numerous members of the American Indian Movement suspected Aquash of being an informant. Testimonies indicated that she was closely monitored and had previously faced threats. In November 1975, Aquash was forcibly taken by Looking Cloud and others to Rapid City against her will, with evidence suggesting she was bound and unable to walk independently. Following a meeting with other Movement members, they transported her to Rosebud, further implicating Looking Cloud in the alleged crime.

Yellow Wood testified that Looking Cloud remained in the car with Aquash while Graham and Clark went into a house, where Aquash pleaded for her life, indicating that her fate was being decided inside. John Trudell, former chairman of the American Indian Movement, clarified that Looking Cloud, Graham, and Clark were not decision-makers and that they received orders to kill Aquash. The jury could infer that Looking Cloud was aware of the intent to kill based on his actions in transporting Aquash to the car while she was tied to a board. Evidence suggested that Aquash anticipated her death, as she had previously sent a signal to her friend White Bear by mailing back a ring.

Trudell recounted that Aquash begged for her life upon the men's return to the car. They drove to a location near Wanblee, where Yellow Wood noted that Aquash continued to plead as they forced her from the car and up a hill. Two Elk testified that Looking Cloud handed a gun to Graham, who shot Aquash in the back of the head while she knelt, possibly to pray. After the shooting, the group buried the gun under a bridge. The jury could reasonably conclude that Looking Cloud understood the plan to kill Aquash once they left the house. Although Looking Cloud claimed Graham was the shooter and no evidence contradicted this, the jury could still reasonably believe that Looking Cloud aided in the murder by facilitating the act and handing the gun to Graham. This evidence supported the jury's conclusion that Looking Cloud either killed or aided and abetted in the premeditated murder of Aquash with malice aforethought. The district court's judgment of conviction was affirmed.

Chief Judge Lawrence L. Piersol presides over a case linked to events from the mid-1970s at the Pine Ridge Indian Reservation, particularly the 1973 occupation of Wounded Knee, which involved armed Native Americans and federal authorities. Following the occupation, residents filed a lawsuit against federal officials and military personnel for alleged violations of their constitutional rights. Two years later, members of the American Indian Movement camped at the reservation to support traditionalists amid a violent political conflict. Leonard Peltier, a leader of the movement, was convicted of murdering two FBI agents during this period, receiving two consecutive life sentences despite numerous appeals and post-conviction relief attempts, which were ultimately denied.

John Graham, indicted alongside co-defendant Looking Cloud, has not been extradited from Canada, delaying his trial. Testimony presented in the case included multiple individuals asserting that Aquash was suspected of being an informant, with various witnesses recounting statements made by Peltier, Looking Cloud, and others regarding these allegations. The court clarified that certain evidence was not admitted for the truth of the matter asserted, but rather for context. Testimonies corroborated the existence of rumors about Aquash's alleged informant status, with multiple witnesses providing overlapping accounts of discussions involving key figures in the case.