United States v. Zachariah Poor Bear ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2793
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Zachariah Michael Poor Bear
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Western
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Submitted: October 21, 2021
Filed: March 11, 2022
[Unpublished]
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Before LOKEN, WOLLMAN, and BENTON, Circuit Judges.
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PER CURIAM.
A jury convicted Zachariah Michael Poor Bear of first-degree murder and
aiding and abetting first-degree murder, violations of 18 U.S.C. §§ 1111, 2, and
1153, for killing A.H., a 19-month-old girl. Poor Bear argues that his due process
rights were violated because the district court1 allowed testimony from T.H., A.H.’s
mother, that conflicted with a federal juvenile information then pending against T.H.;
because the government’s theory at trial, based on T.H.’s testimony, constituted a
material variance from the indictment; and because those alleged due process
violations together require reversal, even if each on its own does not. We affirm.
Early in the morning of May 15, 2015, Poor Bear discovered A.H.’s bruised,
lifeless body in her bed in the room that she shared with Poor Bear and T.H., Poor
Bear’s girlfriend. During an interview with an officer at the scene, Poor Bear
reported that he had put A.H. to sleep the night before because T.H. was out of the
house, and that the baby had appeared healthy when she went to bed. Law
enforcement first interviewed T.H. 10 months later, in March 2016, and again in July
2016 and June 2017. T.H. stated during those interviews that she had been out of the
house the evening before A.H.’s body was found. She reported that she had arrived
home after Poor Bear had put A.H. to bed, but that the baby woke up after she arrived
and that she had seen the baby awake and conscious.
No one was charged in A.H.’s death until May 2017, when a federal grand jury
returned an indictment against Poor Bear. The indictment alleged that:
On or about May 15, 2015 . . . Zachariah Michael Poor Bear, an Indian
person, while aiding and abetting a known but unnamed juvenile, and
while being aided and abetted by the known but unnamed juvenile, did
unlawfully and with malice aforethought, kill [A.H.] . . . in violation of
18 U.S.C. §§ 2, 1111, and 1153.
1
The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota.
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In June 2017, the government filed a juvenile information against T.H., charging that
T.H. and Poor Bear, “while aiding and abetting one another,” had murdered A.H.
T.H. then signed a proffer agreement with the government. During the proffer
interview, T.H. disclosed that she had not seen A.H. awake and neurologically sound
the night before the baby’s body was found, contradicting that which she had
previously told law enforcement.
At Poor Bear’s trial in July 2018, the government argued that Poor Bear alone
had murdered A.H. while T.H. was out of the house, relying on the version of events
that T.H. had articulated during the proffer. At a hearing outside the presence of the
jury, Poor Bear objected to T.H.’s testimony, arguing that it was inconsistent with the
juvenile information accusing her of A.H.’s murder. The government stated that
while it had not yet dismissed the information, it believed T.H.’s proffer-interview
statements—and not that which she had told investigators in 2016 and 2017—to be
the truth. It further stated that it was continuing to maintain the information against
T.H. because of its intention to wait and ensure that T.H.’s testimony matched her
proffer account before making a full determination whether to proceed on it.
T.H. testified at trial that she had left A.H. with Poor Bear the evening before
the baby was found dead. When she arrived home some five hours later that night,
she intended to lift A.H. from her bed but did not do so, because Poor Bear had
shouted at her to leave A.H. alone as he had just put her to sleep. T.H. then went to
bed. She testified that she had not touched or approached A.H. until the morning,
when Poor Bear woke her up because he had discovered that A.H. was dead. The
government and defense counsel each questioned T.H. about why her story had
changed from that which she had told law enforcement in 2016 and 2017. She
testified that her fear of Poor Bear and his family motivated her to be untruthful in her
initial interviews with law enforcement. Following Poor Bear’s trial, the government
dismissed the juvenile information against T.H.
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Poor Bear argues that the admission of T.H.’s testimony—which implicated
only Poor Bear and not T.H. herself—violated his right to due process, because her
statements at trial were inconsistent with the government’s juvenile information
charging her with A.H.’s murder. We review de novo whether Poor Bear’s due
process rights were violated. See United States v. Ruzicka, 988 F.3d 997, 1004 (8th
Cir. 2021).
Poor Bear relies on Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000), in which
we determined that a defendant’s right to due process had been violated by the
government’s use of a witness’s incompatible statements to convict one defendant in
one trial and to convict a different defendant of the same crime in a different trial. Id.
at 1048. In contrast to that which occurred in Smith, the government here did not
pursue, let alone obtain, two convictions based on T.H.’s conflicting accounts.
Indeed, as stated above, the government moved to dismiss the juvenile information
against T.H. soon after the jury reached a verdict in Poor Bear’s case. In light of
these material differences, then, Smith is not applicable to the facts before us here.
Poor Bear also argues that the government’s decision to maintain an
information against T.H. shows her trial testimony to be false. See Napue v. Illinois,
360 U.S. 264, 269 (1959) (“[A] State may not knowingly use false evidence,
including false testimony, to obtain a tainted conviction . . . .”). But the government
was forthright at trial, disclosing to the district court that T.H. had given differing
accounts of A.H.’s death and presenting to the jury evidence to support its position
that her proffer was the truthful account. We thus conclude that the use of T.H.’s
testimony against Poor Bear did not violate his due process rights.
Poor Bear asserts that had the government dismissed the juvenile information
before trial, he could have used the dismissal to impeach T.H.’s credibility. Poor
Bear has not explained why a dismissed information would have been more
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compelling impeachment evidence than still-pending charges, however. Moreover,
although the district court informed Poor Bear that he had “an absolute right” to
“vigorously cross-examine” T.H., Poor Bear chose not to impeach T.H. with the
pending information. We conclude that the government’s decision to continue to
maintain the information against T.H. did not violate Poor Bear’s due process rights,
particularly in light of the fact that he was given the opportunity to cross-examine her
about her role in the offense, her inconsistent accounts of what had happened, and the
fact that she had been charged with murder in a juvenile information.
Poor Bear next argues that the government’s theory and the evidence presented
at trial constituted a material variance from the allegations in the indictment. We
review de novo whether a variance occurred. United States v. Cole, 721 F.3d 1016,
1023 (8th Cir. 2013). A variance exists “when the evidence presented proves facts
that are materially different from those alleged in the indictment.” United States v.
Burns, 990 F.3d 622, 629 (8th Cir. 2021) (internal quotation marks omitted) (quoting
United States v. Johnson, 719 F.3d 660, 668 (8th Cir. 2013)). But “[a] variance is
harmless error if it does not prejudice a defendant’s right to notice,” and we will
reverse only if the defendant “could not reasonably have anticipated from the
indictment the evidence to be presented against him” at trial. Id. (quoting Johnson,
719 F.3d at 668–69) (alteration in original).
Poor Bear’s argument that he did not have notice of the government’s theory
that he acted alone is unavailing. The indictment charged Poor Bear with first-degree
murder under 18 U.S.C. § 1111.2 Section 1111 and its model instructions are phrased
2
The indictment also charged Poor Bear with aiding and abetting first-degree
murder under 18 U.S.C. § 2. “[I]t is well established that an indictment may be
phrased in the conjunctive, when the statute and jury instructions are phrased in the
disjunctive, without creating a constructive amendment of the indictment . . . .”
United States v. Farish, 535 F.3d 815, 823–24 (8th Cir. 2008) (quoting United States
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in the singular, and require only one actor to complete the crime. 18 U.S.C. §
1111(a); Manual of Model Crim. Jury Instructions for the District Courts of the
Eighth Cir. § 6.18.1111A (2021). Poor Bear thus had notice that to convict him at
trial, the government needed only to prove that he, the named person in the
indictment, killed A.H. See Burns, 990 F.3d at 629 (“True, the indictment charged
‘the Defendants, Tobias Ritesman and Timothy Burns,’ with violating § 1343 and
stated that Burns and Ritesman had worked together to perpetuate wire fraud. But
both § 1343 and its model jury instruction are phrased in the singular, making clear
that the government had to prove that Burns alone, not Burns and Ritesman together,
violated § 1343.” (citation omitted)); see also United States v. Emery, 186 F.3d 921,
928 (8th Cir. 1999) (“[E]ven if this discrepancy amounted to a variance, Mr. Emery
suffered no resulting prejudice. In our view, the indictment made Mr. Emery well
aware of the fact that he faced the charge of murdering Ms. Elkins, and that he would
have to answer for his part in causing her death.”). The indictment informed Poor
Bear of the proof that the government was required to present in order to convict him.
We thus conclude that even had a variance existed, it would not have resulted in
prejudice to Poor Bear.
Poor Bear’s final argument is that the combined effect of the alleged errors
violated his due process rights and requires reversal, even if when considered
individually they may not have done so. He relies on Chambers v. Mississippi, in
which the cumulative effect of the trial court’s application of state rules of evidence
was held to have deprived the defendant of his constitutionally guaranteed right to
present a defense. 410 U.S. 284, 290 n.3, 302 (1973). The individual issues that Poor
Bear points to did not constitute multiple errors that when combined resulted in a
constitutional deficiency. Rather, he asserts two different theories on why a single
alleged error, the government’s introduction of T.H.’s non-self-implicating testimony,
v. Brown, 330 F.3d 1073, 1078 (8th Cir. 2003)). The government was thus required
to prove only one of the two theories at trial.
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violated his right to due process. Further, unlike the defendant in Chambers, Poor
Bear has not shown that he was denied the ability to present his defense, for he was
fully able to cross-examine each of the government’s witnesses—including
T.H.—and to present his own evidence. Because no due process violations occurred,
we affirm the judgment.
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