United States v. Elwyn Has the Eagle, Sr. , 455 F. App'x 740 ( 2011 )

FILED
NOT FOR PUBLICATION OCT 26 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30355
Plaintiff - Appellee, D.C. No. 4:10-cr-00038-SEH-1
v.
MEMORANDUM*
ELWYN HAS THE EAGLE, Sr., Elwyn
Has The Eagle, Jack Has The Eagle,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted October 14, 2011
Portland, Oregon
Before: EBEL**, BERZON, and N.R. SMITH, Circuit Judges.
Defendant-Appellant Elwyn Has the Eagle, Sr. (Has the Eagle) was
convicted for urging Kari Lamere, a witness in his son’s double murder trial, to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David M. Ebel, Senior Circuit Judge for the Tenth
Circuit, sitting by designation.
give false testimony, in violation of 18 U.S.C. §§ 1503 and 1512(b)(1). The
district court sentenced him to 108 months’ imprisonment. He appeals, arguing
that the district court abused its discretion during voir dire by refusing to ask, and
prohibiting him from asking, prospective jurors about his son’s double murder
trial; that the district court erred in denying his Rule 29 motion for acquittal; and
that his sentence is substantively unreasonable. We affirm.
1. We need not determine whether plain error or abuse of discretion review
applies to the district court’s decision not to conduct or allow specific voir dire
regarding Has the Eagle, Jr.’s double murder trial, because the district court did not
err under either standard . United States v. Garcia-Rivera, 353 F.3d 788, 792 (9th
Cir. 2003); see also United States v. Steele, 298 F.3d 906, 910 (9th Cir. 2002).
Has the Eagle sought to ask whether prospective jurors had heard anything
about his son’s murder trial. On its face, this question did not raise any issues of
bias or prejudice into which investigation was essential, nor did counsel explain to
the district court any such issues underlying the question. See United States v.
Jones, 722 F.2d 528, 529-30 (9th Cir. 1983) (per curiam) (citing United States v.
Robinson, 475 F.2d 376, 380-81 (D.C. Cir. 1973)). Moreover, the record does not
show that Has the Eagle sought to ask prospective jurors other questions directly
probing potential prejudice. The record therefore does not show that the district
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court erred. United States v. Haslam, 431 F.2d 362, 364 (9th Cir. 1970); see also
United States v. Cutler, 806 F.2d 933, 937 (9th Cir. 1986) (per curiam) (citing
United States v. Blosvern, 514 F.2d 387, 389 (9th Cir. 1975)).
2. Has the Eagle also challenges the sufficiency of the evidence supporting
his convictions. We review the district court’s denial of Has the Eagle’s Rule 29
motion de novo, even though Has the Eagle did not renew the motion at the close
of evidence, because so little evidence was put on following the district court’s
denial of the motion that renewing it would have been an empty ritual. See United
States v. Esquivel-Ortega, 484 F.3d 1221, 1224-25 (9th Cir. 2007).
Viewing the evidence in the light most favorable to the prosecution, there
was sufficient evidence to convict Has the Eagle for obstruction of justice. See
United States v. Rocha, 598 F.3d 1144, 1153 (9th Cir. 2010). Lamere testified that,
on October 24, 2009, Has the Eagle threatened to “take [her] out” if she would not
testify falsely. Has the Eagle impugns Lamere’s credibility, but the jury was
entitled to credit her testimony over conflicting evidence. See United States v.
Johnson, 229 F.3d 891, 894-95 (9th Cir. 2000). Although the threats to which
Lamere testified were not necessary to support Has the Eagle’s conviction under
§ 1503, they were sufficient. See United States v. Ladum, 141 F.3d 1328, 1337-38
(9th Cir. 1998).
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There was also sufficient evidence to convict Has the Eagle for both counts
of witness tampering. The October 19th and 20th recordings reveal that Has the
Eagle repeatedly told Lamere to testify that Has the Eagle, Jr. heard voices and that
the door to the murdered couple’s home was open on the night of the murders,
even after Lamere made it clear that she believed Has the Eagle was asking her to
lie. Lamere also testified that Has the Eagle had previously instructed her to give
false testimony in Has the Eagle, Jr.’s double murder trial. Given such evidence, a
rational jury could conclude that Has the Eagle’s recorded importunities violated
18 U.S.C. § 1512(b). See United States v. Khatami, 280 F.3d 907, 913-14 (9th Cir.
2002).
3. Finally, Has the Eagle challenges the reasonableness of his mid-
Guidelines sentence. Although we do not apply a presumption of reasonableness
for sentences within the suggested Guidelines range, “a correctly calculated
Guidelines sentence will normally not be found unreasonable on appeal.” United
States v. Carty, 520 F.3d 984, 988 (9th Cir. 2008) (en banc). In light of all the
relevant factors, Has the Eagle’s sentence was not substantively unreasonable.
AFFIRMED.
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