United States v. Drapeau

644 F.3d 646, 2011 U.S. App. LEXIS 13900, 2011 WL 2652317
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 8, 2011
Docket10-2159
StatusPublished
Cited by28 cases

This text of 644 F.3d 646 (United States v. Drapeau) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Drapeau, 644 F.3d 646, 2011 U.S. App. LEXIS 13900, 2011 WL 2652317 (8th Cir. 2011).

Opinions

WOLLMAN, Circuit Judge.

Harold Drapeau, Jr., was convicted of assaulting, resisting, or impeding a federal officer resulting in bodily injury, in violation of 18 U.S.C. § 111(a)(1) and (b), and was sentenced to twenty-seven months’ imprisonment and three years of supervised release. Drapeau appeals his conviction and sentence, arguing that the district court1 erred by denying his motion for a judgment of acquittal, improperly excluding character evidence of the alleged victim, and imposing additional conditions of supervised release after sentencing. We affirm.

I. Background

On August 23, 2009, a resident of the Crow Creek Sioux Tribe requested additional police patrol in the East Housing community in Fort Thompson, South Dakota. The resident stated that Drapeau and two other males had left her residence and that they might return and cause a disturbance. Bureau of Indian Affairs (BIA) Officer Marlin Robert Mousseau, Jr., responded to the dispatch and drove towards the East Housing community, ten minutes from his dispatch location. Mousseau’s vehicle was equipped with a camera, and he wore a remote microphone on his uniform.

BIA Officer Marty Foote also heard the dispatch and stopped three individuals [650]*650walking alongside a road who matched the resident’s description. Foote recognized Drapeau but before he could ask him any questions, Drapeau ran to a white vehicle and drove away. Foote radioed Mousseau that he had seen Drapeau and that Drapeau had left in a white vehicle that was heading back towards East Housing. Mousseau knew where Drapeau lived in East Housing and drove to that location, where he observed three people and a vehicle that matched Foote’s description in Drapeau’s driveway. Mousseau pulled into the driveway, parked his BIA vehicle, and activated his vehicle’s video camera, which recorded the view of the side of the house and Drapeau’s backyard. The remote microphone began recording the audio of the incident. Two of the individuals went inside the residence. The third, a female, ran to the back of the residence. Mousseau pursued her, threatened to deploy his taser,2 and ordered her to get on the ground. Mousseau handcuffed and arrested the woman for eluding, a violation of the Crow Creek Tribal Code § 10-7-10. Mousseau identified the woman as Mitzi Medicine Crow, Drapeau’s wife. Mousseau observed that Medicine Crow appeared intoxicated and smelled of alcohol. While bringing her to the BIA vehicle, Mousseau heard a child cry briefly inside the residence and asked Medicine Crow about it. She responded that her sister was watching her child.

Mousseau spent the next several minutes attempting to enter the residence by knocking on the front door and hiding in the bushes. He did not have a reason to arrest Drapeau, but wanted to speak with him and to check on the child. Mousseau noticed an open window next to the front door. Looking inside the window, he could see Drapeau’s mother, Theresa Grassrope, holding the child with her hand over its mouth and whispering in its ear. Mousseau also saw an individual hidden in the curtains, whom he later identified as Drapeau. Because the curtain obstructed his view, Mousseau did not know if Drapeau was armed. Mousseau ordered Grassrope to open the front door and told Drapeau that if he did not move away from the curtain he would be tasered. In an effort to inveigle Grassrope and Drapeau into coming out of the residence, Mousseau told them that he had Medicine Crow in his car and that she had been arrested “for no reason.” After Drapeau and Grassrope failed to come out or open the door, Mousseau threatened to arrest Grassrope for obstruction if she did not open the front door. She replied that she could not do so because it was not her home. Mousseau responded that if Grassrope did not open the door, he would crawl through the window and she would go to jail.

After Mousseau failed to gain entrance through the front door, he broke the screen off the front window. As Mousseau put his right arm through the window, Drapeau pressed the window downward against Mousseau’s arm, injuring it. Using his left arm, Mousseau pushed the window up and released his right arm. He then deployed his taser into the home. Drapeau ceased pressing down on the window and ran towards the back of the home.

Mousseau ran around outside to the backyard, where he met Drapeau exiting through the back door. Mousseau arrested Drapeau, placed him in the BIA vehicle, and then entered through the back door to arrest Grassrope, who had locked herself and the child in a bathroom. Mousseau demanded she come out, stating “I’m gonna make true with my promise” and that [651]*651“all [Grassrope] had to do [to avoid going to jail] was open the door.” Grassrope came out and Mousseau arrested her as well. Mousseau then left the child with Medicine Crow’s sister, Maria, who had been babysitting the child.

Drapeau was indicted for assaulting, resisting, or impeding a federal officer resulting in bodily injury, in violation of 18 U.S.C. § 111(a)(1) and (b). He pleaded not guilty and requested a jury trial. Drapeau sought to present evidence of Mousseau’s character pursuant to Federal Rule of Evidence 404(a)(2) by filing a pretrial notice and during the pretrial conference. The evidence consisted of seven tribal resolutions and an unsigned memo to United States Senator John Thune. The first resolution was written by the Nebraska Winnebago Tribe in 2005, describing Mousseau’s misconduct and requesting his permanent removal as a police officer from the Winnebago Law Enforcement Services Department. Thereafter, Mousseau transferred to the Crow Creek BIA duty station, whereupon the Crow Creek Sioux Tribal Council adopted the other six resolutions and memo in response to numerous complaints against Mousseau and requested his removal from the Crow Creek Sioux Indian Reservation. In the memo to Senator Thune, a Crow Creek Sioux Tribe civil rights group requested an internal investigation of Mousseau and the police department. During the pretrial conference, the district court preliminarily denied the 2005 Winnebago resolution based on relevancy and hearsay and the last two Crow Creek resolutions because they postdated the incident, and stated that the remaining four resolutions might become admissible if Drapeau testified that he was aware of them.

Drapeau sought to use the character evidence to prove his intent to defend himself and his family and to prove his state of mind. He asserted that the evidence would demonstrate Mousseau’s reputation for violence, aggressiveness, and excessive use of his taser. Drapeau also sought to inquire of character witnesses as to Mousseau’s reputation in the community. During the pretrial conference, the government objected to the evidence, arguing that the resolutions and reputation testimony were irrelevant to demonstrate Drapeau’s state of mind unless he was aware of them before the incident. Drapeau responded that the offered evidence did not constitute Rule 404(b) evidence, but instead was admissible pursuant to Rule 404(a)(2). The district court preliminarily denied Drapeau’s motion to present the tribal resolutions and reputation testimony evidence.

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Cite This Page — Counsel Stack

Bluebook (online)
644 F.3d 646, 2011 U.S. App. LEXIS 13900, 2011 WL 2652317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-drapeau-ca8-2011.