United States v. Elmer Brady, Jr., United States of America v. Joseph James Waters

Each appellant is an Indian, who was tried by a jury and convicted of voluntary manslaughter committed on the Northern Cheyenne Indian Reservation in violation of 18 U.S.C. §§ 1112 and 1153. The cases were consolidated for trial and for the arguments on appeal. We hold that each judgment of conviction must be affirmed.

*1125 FACTS

The record shows that Fred Medicine Bull, Sr. (decedent) was involved in an automobile accident on June 18, 1977, resulting in hospitalization for head injuries until June 20th of the same year. After leaving the hospital, decedent set out on a drinking spree and became intoxicated. In the early morning hours of June 21st, he ended up in a small house on the Northern Cheyenne Indian Reservation occupied by James and Emiline Limpy in Lame Deer, Rosebud County, Montana. All the occupants, the appellants, the Limpys, the decedent, and Cheryl Shoulderblades were drinking wine, and became intoxicated. In addition, there were three children and possibly other parties at the house.

Following a remark to Shoulderblades by decedent, he was assaulted and battered by each of the appellants, as a result of which he became unconscious and subsequently died. The…

concurring:

I join in the majority opinion but make one observation. The majority relies on Castaneda v. Partida, 430 U.S. 482 , 97 S.Ct. 1272 , 51 L.Ed.2d 498 (1977), for the proposition that substantial under-representation of a cognizable group in the pool of potential jurors is a constitutional violation and therefore a violation of the Jury Selection and Service Act [Act]. While Castaneda is instructive, it should be remembered that Castaneda is an equal protection attack on *1135 a state grand jury selection system. The Supreme Court has already suggested that the focus of the Act is identical to the constitutional standards surrounding sixth and fifth amendment challenges to jury selection plans. See Taylor v. Louisiana, 419 U.S. 522, 528-30 , 95 S.Ct. 692 , 42 L.Ed.2d 690 (1975). While the standard in Taylor is expressed in terms of “systematic exclusion”, 419 U.S. at 538 , 95 S.Ct. 692 , Castaneda suggests that substantial under-representation will now suffice.

579 F.2d 1121 UNITED STATES of America, Appellee, v. Elmer BRADY, Jr., Appellant. UNITED STATES of America, Appellee, v. Joseph James WATERS, Appellant. Nos. 77-3677, 77-3678. United States Court of Appeals, Ninth Circuit. June 20, 1978. Rehearing and Rehearing En Banc Denied Aug. 8, 1978. James P. Murphy, of Berger, Anderson, Sinclair & Murphy, Charles F. Moses, of Moses, Tolliver & Wright, Billings, Mont., for appellants. Robert Zimmerman, Asst. U. S. Atty., Billings, Mont., for appellee. Appeals from the United States District Court, District of Montana (Billings Division). Before CHAMBERS and KILKENNY, Circuit Judges, and KELLEHER, District Judge. * KILKENNY, Circuit Judge: 1 Each appellant is an Indian, who was tried by a jury and convicted of voluntary manslaughter committed on the Northern Cheyenne Indian Reservation in violation of 18 U.S.C. §§ 1112 and 1153. The cases were consolidated for trial and for the arguments on appeal. We hold that each judgment of conviction must be affirmed.FACTS 2 The record shows that Fred Medicine Bull, Sr. (decedent) was involved in an automobile accident on June 18, 1977, resulting in hospitalization for head injuries…