Submitted: November 13, 2014.
Petition for certiorari filed at, 03/18/2015
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeals from United States District Court for the District of Minnesota - St. Paul.
For United States of America, Plaintiff - Appellee (13-2410, 13-3221, 14-1039): Deidre Yvonne Aanstad, Assistant U.S. Attorney, Nathan Paul Petterson, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of Minnesota, Minneapolis, MN.
Geshik-O-Binese Martin, Defendant - Appellant (13-2410), Pro se, Jonesville, VA.
For Geshik-O-Binese Martin, Defendant - Appellant (13-2410): Mark D. Nyvold, Fridley, MN.
For David John Martin, Defendant - Appellant (13-3221): Paul C. Engh, Minneapolis, MN.
David John Martin, Defendant - Appellant (13-3221), Pro se, Marion, IL.
Edward McCabe Robinson, Defendant - Appellant (14-1039): Caroline Durham, DURHAM LAW OFFICE, Saint Paul, MN.
For Edward McCabe Robinson, Defendant - Appellant (14-1039), Pro se, Pine Knot, KY.
Before MURPHY, MELLOY, and BENTON, Circuit Judges.
MURPHY, Circuit Judge.
A jury convicted Geshik-O-Binese Martin and Edward Robinson of robbing and murdering Craig Roy and Darla Beaulieu on the Red Lake Indian Reservation in violation of 18 U.S.C. § 1153. David Martin was acquitted of the murder charges but also convicted of robbery under § 1153. Geshik Martin, Edward Robinson, and David Martin now appeal.
Appellants claim improper ex parte contact by the district court with the jury venire. They also challenge their convictions. Geshik Martin contends that the government failed to prove his Indian status under § 1153 even though he stipulated to that fact. Edward Robinson asserts that the district court erred by denying his motions to sever and allowing the prosecutor to comment on his failure to testify. David Martin argues that the court erred by declining to give a lesser included instruction on theft and by enhancing his sentence by six levels under U.S.S.G. § 2B3.1(b)(3)(C) for infliction of permanent bodily injury. We affirm.
Law enforcement responded on January 1, 2011 to a fire at the home of Craig Roy on the Red Lake Indian Reservation, a large reservation in northern Minnesota adjacent to the Canadian border. Roy's residence was already engulfed in flames and collapsed before fire crews could extinguish the fire. The next morning the bodies of Roy and his partner, Darla Beaulieu, were retrieved from the rubble. Both bodies were charred beyond recognition. Autopsies indicated that Roy and Beaulieu had been stabbed multiple times before the fire and that their death was caused by exsanguination. Details of the crimes were discovered over several months. Law enforcement learned that Roy and Beaulieu had attended a New Year's Eve party the night before their deaths and that Beaulieu had a fight there with a woman named Vicki Neadeau. Roy defended Beaulieu and severely injured Neadeau who left the party to tell Terin Stately and other friends about his attack.
According to Stately, Geshik Martin had reacted to the news by urging Edward Robinson, David Martin, Kevin Needham, and George Martin to get revenge on Roy by robbing him of his cocaine. After everyone had allegedly agreed to the plan, Stately drove the group to Roy's home and waited in the car while the others went inside. They emerged after 10 to 20 minutes with Robinson carrying a long gun. As Stately drove away from the home, she asked what had happened inside. No one answered.
In August 2012, Geshik Martin, Robinson, David Martin, Needham, George Martin, and Stately were charged under 18 U.S.C. § 1153 for robbery and the deaths of Roy and Beaulieu. Geshik Martin, Robinson, David Martin, and George Martin were also charged with first and second degree murder in violation of § 1153. Section 1153(a) allows the government to prosecute certain " offenses committed within Indian country," including any Indian who has committed murder or robbery against another person. 18 U.S.C. § 1153(a). Geshik Martin signed a stipulation of fact prior to trial stating " the following facts are true and the jury must treat these facts as having been proven at trial: The defendant is an Indian." Stately and Needham pled guilty prior to trial without contesting their Indian status under § 1153(a). Although Robinson also did not contest his Indian status, he moved to sever due to antagonistic defenses
among the codefendants. While Robinson intended to testify that he had not been present at Roy's home during the murders, Geshik Martin intended to testify that all defendants had been present but that they had not planned to murder Roy. The district court denied the motions to sever, stating that " with the ...