IN THE UNITED S · JURISDICTIONAL STATEMENT Justin Janis appeals his conviction for assault on a federal officer in violation of 18 U.S.C. §§ 111 and 1114. The District Court had

==========================================================

IN THE UNITED STATES COURT OF APPEALSFOR THE EIGHTH CIRCUIT

No. 14-3888___________________________________________

UNITED STATES OF AMERICA,

Appellee,

v.

JUSTIN JANIS,

Appellant._____________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA

WESTERN DIVISIONHONORABLE JEFFREY L. VIKEN

CHIEF UNITED STATES DISTRICT JUDGE_____________________________________________________

APPELLANT’S BRIEF_____________________________________________________

Neil Fulton, Federal Public DefenderOn the Brief: Molly C. Quinn, Research and Writing Attorney

Stephen Demik, Assistant Federal Public Defender101 S. Pierre Street, Third Floor

P.O. Box 1258Pierre, SD 57501

Telephone: (605) 224-0009Facsimile: (605) 224-0010

ATTORNEYS FOR APPELLANT==========================================================

Appellate Case: 14-3888 Page: 1 Date Filed: 03/06/2015 Entry ID: 4251677

SUMMARY OF THE CASE

Justin Janis was charged with assault on a federal officer in violation of 18

U.S.C. § 111. The officer in question was an Oglala Sioux Tribe Department of

Public Safety officer. It was undisputed that the tribal officer was enforcing tribal

law only, specifically alcohol violations, at the time of the altercation.

Janis argued that the tribal officer did not meet the definition of a “federal

officer” in a pretrial motion to dismiss and Rule 29 motion. Notwithstanding the

undisputed fact that the tribal officer was solely enforcing tribal law, the district

court denied these motions. Further, it ruled as a matter of law that the tribal

officer was acting as a federal officer at the time of the assault, precluded Janis

from arguing that she was not, and instructed the jury that the tribal officer was a

federal officer at the time alleged in the Indictment. Janis was convicted of assault

on a federal officer at trial.

REQUEST FOR ORAL ARGUMENT

Janis requests fifteen (15) minutes of oral argument.

i


TABLE OF CONTENTS

Page(s)

Summary of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Request for Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Jurisdictional Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Issues Presented for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Summary of the Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I. OFFICER MOUSSEAU WAS NOT ENFORCING FEDERALLAW AT THE TIME OF HER ENCOUNTER WITH JANISAND THEREFORE WAS NOT A FEDERAL OFFICER. JANIS’S MOTION TO DISMISS OR RULE 29 MOTIONSHOULD HAVE BEEN GRANTED AS A RESULT.. . . . . . . . . . . . 6

II. THE DISTRICT COURT ERRED BY INSTRUCTING THEJURY THAT OFFICER MOUSSEAU WAS ACTING AS AFEDERAL OFFICER AT THE TIME OF HER ENCOUNTERWITH JANIS BECAUSE IT WAS A QUESTION OF FACTFOR THE JURY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

ii


Addendum

Judgment DCD 93. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Add. 1

Order Denying Defendant’s Motion to Dismiss DCD 43. . . . . . . . . . . . Add. 2

Order Denying Motion for Reconsideration DCD 79. . . . . . . . . . . . . . . Add. 3

Instruction No. 17 - Assault on a Federal Officer DCD 70, pp. 3-6. . . . Add. 4

Defendant’s Proposed Jury Instruction No. 1 DCD 47, p. 3. . . . . . . . . . Add. 5

iii


TABLE OF AUTHORITIES

United States Supreme Court Cases Page(s)

United States v. Lara, 541 U.S. 193 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States Court of Appeal Cases Page(s)

Kahle v. Leonard, 563 F.3d 736 (8th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Adejumo, 772 F.3d 513 (8th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Bettelyoun, 16 F.3d 850 (8th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7, 8, 11, 13, 14

United States v. Drapeau, 644 F.3d 646 (8th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6, 7, 11, 13

United States v. Luna, 649 F.3d 91 (1st Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14

United States v. Mitchell, 463 F.2d 187 (8th Cir. 1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Muhlenbruch, 634 F.3d 987 (8th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Oakie, 12 F.3d 1436 (8th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 9, 11-14

United States v. Pereyra-Gabino, 563 F.3d 322, 328 (8th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

iv


United States v. Schrader, 10 F.3d 1345 (8th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 8, 9

Statutes Page(s)

18 U.S.C. § 111 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 5-7, 9-11

18 U.S.C. § 1114. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 6, 7

18 U.S.C. § 3231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

25 U.S.C. § 2804. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7-9

25 U.S.C. § 2804(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

25 U.S.C. § 2804(a)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

25 U.S.C. § 2804(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9

28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Indian Self-Determination Act of 1975. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Rule(s) Page(s)

Federal Rule of Criminal Procedure 29. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Other Authorities Page(s)

Cohen's Handbook of Federal Indian Law (2005 ed.).. . . . . . . . . . . . . . . . . . . . . . . 7

v


JURISDICTIONAL STATEMENT

Justin Janis appeals his conviction for assault on a federal officer in violation

of 18 U.S.C. §§ 111 and 1114. The District Court had jurisdiction pursuant to 18

U.S.C. § 3231. Judgment was entered on December 17, 2014. Janis timely filed his

Notice of Appeal on December 29, 2014. This Court has jurisdiction pursuant to 28

U.S.C. § 1291.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

I. OFFICER MOUSSEAU WAS NOT ENFORCING FEDERAL LAW ATTHE TIME OF HER ENCOUNTER WITH JANIS AND THEREFOREWAS NOT A FEDERAL OFFICER. JANIS’S MOTION TO DISMISSOR RULE 29 MOTION SHOULD HAVE BEEN GRANTED AS ARESULT.

Authorities

1. United States v. Bettelyoun, 16 F.3d 850 (8th Cir. 1994) 2. United States v. Drapeau, 644 F.3d 646 (8th Cir. 2011)3. United States v. Schrader, 10 F.3d 1345 (8th Cir. 1993)4. 25 U.S.C. § 2804

II. DISTRICT COURT ERRED BY INSTRUCTING THE JURY THATOFFICER MOUSSEAU WAS ACTING AS A FEDERAL OFFICER ATTHE TIME OF HER ENCOUNTER WITH JANIS. BECAUSE IT WASA QUESTION OF FACT FOR THE JURY.

Authorities

1. United States v. Bettelyoun, 16 F.3d 850 (8th Cir. 1994) 2. United States v. Drapeau, 644 F.3d 646 (8th Cir. 2011)3. United States v. Luna, 649 F.3d 91 (1st Cir. 2011)4. United States v. Oakie, 12 F.3d 1436 (8th Cir. 1993)

1


STATEMENT OF THE CASE

Justin Janis was convicted at trial of assault on a federal officer. DCD 74,

75.1 That alleged federal officer was Ann Mousseau of the Oglala Sioux Tribe

Department of Public Safety. TT 56:21. It is undisputed that at the time of the

incident Officer Mousseau was solely enforcing tribal law. PT 37:6-10.

On November 27, 2013, Janis was drinking at his home on the Pine Ridge

Indian reservation near Kyle, South Dakota. TT 65:9-12. Law enforcement got a

report that Janis and his companions were intoxicated and should be removed from

the residence. TT 65:9-12. At the time, possessing alcohol and being intoxicated

were violations of Oglala Sioux tribal law. TT 63:24-26 to 64:1-4.

Officer Mousseau was dispatched to handle this liquor violation/intoxicated

person call. TT 55:9-12. She was employed by the Oglala Sioux Tribe Department

of Public Safety. TT 56:20-25. She was not acting under the jurisdiction or

authority of the Bureau of Indian Affairs; her employer was a “whole separate

entity” from the BIA. TT 182:24-25.

When Officer Mousseau arrived at the Janis home, a woman led her to the

front door and unlocked it. TT 70:1-4, 115:13-17; Ex. 5. Officer Mousseau

1 Throughout this brief, docket entries in the Clerk’s Record are referred toas “DCD,” followed by the docket entry number. The transcript of the PretrialConference, is cited as “PT.” The transcript of the jury trial, is cited as “TT.” Allreferences are followed by the applicable page and line number.

2


attempted to open the door; Janis tried to hold it closed. TT 80:12-23; 111:17-25;

112:1-8. Officer Mousseau wedged her foot in the doorway. TT 81:6-14; 114:3-6.

She told Janis to open the door or she would mace him, which she did. TT 84:5-10;

16:16-20; TT 123:1-2, 7-13; TT 146:12-18.

The struggle at the door continued, until Officer Mousseau forced the door

open and grabbed Janis by the arm. TT 102:1-16. Janis touched Officer

Mousseau’s left shoulder. TT 117:22-24. Officer Mousseau forced her way inside

and tased Janis between three and ten times. TT 90:4-15; 91:4-11; 131:2-5, 11-13,

20-24, 132:16-25. Officer Mousseau ultimately initiated seven tribal offenses, and

tribal offenses only, against Janis: liquor violations, resisting arrest, disorderly

conduct, assault and battery, and child abuse and neglect. TT 94: 22-25.

Janis was later indicted in federal court for assault on a federal officer in

violation of 18 U.S.C. §§ 111 and 1114. DCD 1, 2. He moved to dismiss the

Indictment on the ground that Officer Mousseau was not a federal officer. DCD 27.

The district court denied Janis’s motion to dismiss, finding “as a matter of law that

Officer Mousseau was a federal officer for purposes of 18 U.S.C. § 111 at the time

of the alleged assault” based on a “638 contract” between the Oglala Sioux Tribe

Public Safety Commission and the BIA.2 DCD 43, p. 8. Janis moved for

2 The 638 contract between the Oglala Sioux Tribe Public SafetyCommission and the Department of the Interior, Bureau of Indian Affairs is in the

3


reconsideration, and the district court denied that motion after the trial. DCD 60,

61, 62, 79.

At trial, the district court precluded Janis from arguing to the jury that Officer

Mousseau was not acting as a federal officer at the time. PT 29:22-25, 30:1-3,

31:14-17. Janis timely moved for a judgment of acquittal under Federal Rule of

Criminal Procedure 29, arguing that there was insufficient evidence that Officer

Mousseau was acting as a federal officer or fulfilling any federal function at the

time alleged. TT 153:12-19, 156:7-23. The district court denied the motion and

instructed the jury: “You are instructed Ann Mousseau was a federal officer at the

time alleged in the indictment.” TT 159:4-6; DCD 70, Instruction 17. The district

court refused Janis’s proposed instruction that would have allowed the jury to

consider if Officer Mousseau was conducting federal investigative or law

enforcement activities. DCD 47, Defendant’s Proposed Jury Instruction No. 1;

DCD 69; TT 197:10-20.

The jury found Janis guilty of assault on a federal officer, and the district

court sentenced him to time served and two years of supervised release. TT 259:8-

16; DCD 74, 75, 90, 93.

record at DCD 34-2. Pursuant to this agreement, the Oglala Sioux Tribe PublicSafety Commission agrees to provide law enforcement services on the reservation. DCD 34-2.

4


Janis appeals the denial of his motion to dismiss and motion for judgment of

acquittal and the district court’s refusal to allow the jury to decide whether Officer

Mousseau was acting as a federal officer at the time of the offense.

SUMMARY OF THE ARGUMENT

It is undisputed that Officer Mousseau was solely enforcing tribal liquor laws

at the time of this incident. Although there was a valid contract between the tribe

and the BIA regarding law enforcement on the reservation, it could not make tribal

officers “federal officers” for purposes of 18 U.S.C. § 111 in every circumstance.

Tribal officers are only federal officers when they are doing what the federal

government had the authority to do. The federal government did not have the

authority to enforce tribal liquor laws. Because Officer Mousseau was enforcing

tribal liquor laws at the time alleged, she was not acting as a federal officer at the

time. Nor did she need any grant of federal authority to enforce tribal law. The

Indictment should have been dismissed or a judgment of acquittal entered.

Moreover, while the question of whether a particular type of tribal officer can

be a federal officer within the meaning of § 111 is a question of law for the court,

whether an individual officer is in fact that type of officer and performing federal

law enforcement functions at the time alleged are questions of fact for the jury. The

district court instructed and the jury as a matter of law that Officer Mousseau was a

5


federal officer at the time alleged in the Indictment and precluded Janis from

arguing that Officer Mousseau was not performing federal functions at the time.

This invaded the province of the jury, essentially directing a verdict against Janis,

and ignores the repeated holdings of this court setting out the division of these

questions between the court and jury.

ARGUMENT

I. OFFICER MOUSSEAU WAS NOT ENFORCING FEDERAL LAW ATTHE TIME OF HER ENCOUNTER WITH JANIS AND THEREFOREWAS NOT A FEDERAL OFFICER. JANIS’S MOTION TO DISMISSOR RULE 29 MOTION SHOULD HAVE BEEN GRANTED AS ARESULT.

Officer Mousseau was enforcing tribal liquor violations at the time of her

encounter with Janis. That is undisputed. PT 37:6-10. Because she was not

enforcing federal law or performing duties federal law enforcement was authorized

to perform she was not a federal officer under 18 U.S.C. § 111. Janis’s motion to

dismiss or motion for judgment of acquittal should have been granted.

18 U.S.C. § 111 prohibits forcibly assaulting, resisting, opposing, impeding,

intimidating, or interfering with a federal officer as defined in 18 U.S.C. § 1114.

Whether a tribal law enforcement officer is within the definition of “federal officer”

under those statutes is a question of law that is reviewed de novo. United States v.

Drapeau, 644 F.3d 646, 653 (8th Cir. 2011); United States v. Muhlenbruch, 634

6


F.3d 987, 995 (8th Cir. 2011). Whether a particular officer was “acting as a federal

officer and whether he was performing federal ‘investigative, inspection, or law

enforcement functions’ at the time of the assault” are questions of fact for the jury.

Drapeau, 644 F.3d at 653. This Court reviews de novo the denial of a motion for

judgment of acquittal. United States v. Adejumo, 772 F.3d 513, 522 (8th Cir. 2014).

Under 25 U.S.C. § 2804, the Secretary of the Interior is authorized to contract

with Indian tribes to assist the BIA in enforcing the laws of the United States or

tribal laws if authorized by the contracting tribe. 25 U.S.C. § 2804(a); United

States v. Bettelyoun, 16 F.3d 850, 852 (8th Cir. 1994). Those contracts also provide

financial grants to tribes, here, more than $38 million to the Oglala Sioux Tribe.

When acting under authority granted by the Secretary under § 2804, a tribal

officer is considered to be a federal employee for the purposes of 18 U.S.C. §§ 111

and 1114. 25 U.S.C. § 2804(f). However, a tribal officer need not be part of a

contract under 25 U.S.C. § 2804 to enforce solely tribal law. See e.g., United States

v. Lara, 541 U.S. 193, 199-200 (2004) (internal citations omitted); see also Cohen's

Handbook of Federal Indian Law (2005 ed.), 9.07. In other words, tribes do not

need a federal grant of authority to enforce their own laws, but federal officers need

a tribal grant of authority to do so. One type of contract a tribe may enter with the

7


BIA is a “638 contract.”3 Whether a 638 contract qualifies as a valid § 2804(a)

agreement is a question of law for the court. See Bettelyoun, 16 F.3d at 853.

Here, the district court found that the 638 contract between the Oglala Sioux

Tribe Public Safety Commission and the BIA was a valid agreement under § 2804

and that Officer Mousseau was a federal officer by virtue of this contract. DCD 43,

p. 8. Janis does not dispute the validity of the 638 contract and concedes that if

Officer Mousseau was acting under authority granted by the Secretary under

§ 2804(a), she would be a “federal officer”. But this contract did not make Officer

Mousseau a federal officer when she was strictly enforcing tribal laws.

A 638 contract does not make federal officers out of tribal officers enforcing

only tribal laws. Section 2804(a) only covers tribal law where the tribe “has

authorized the Secretary to enforce tribal laws.” 25 U.S.C. § 2804(a)(1). Here,

there was no evidence that the Oglala Sioux Tribe ever authorized the Secretary to

enforce tribal laws. Neither the 638 contract nor § 2804(a) made tribal officers like

Officer Mousseau “federal officers” in more situations than actual federal

employees.

3 “638 contracts” are named for the public law number of the Indian Self-Determination Act of 1975, which authorized these types of agreements. UnitedStates v. Schrader, 10 F.3d 1345, 1350 (8th Cir. 1993). The Indian Self-Determination Act of 1975 predated the Indian Law Enforcement Reform Act,which created 25 U.S.C. § 2804. See id.

8


Tribal officers can be “federal” under § 2804(f) only when they “enforce

laws that BIA officers would otherwise enforce.” United States v. Schrader, 10 F.3d

1345, 1350-51 (8th Cir. 1993); see also United States v. Oakie, 12 F.3d 1436, 1440

(8th Cir. 1993) (explaining that a tribal officer who has been designated a BIA

special officer is entitled to the protections of § 111 only “when performing the

federal functions he or she has been deputized to perform.”). Nothing in the record

established that the Oglala Sioux Tribe had granted the BIA authority to enforce

tribal liquor laws. It is undisputed that Officer Mousseau was solely enforcing

tribal law at the time of her encounter with Janis. PT 37:6-10. Officer Mousseau

therefore was not a federal officer under § 2804(a) and (f).

Under § 2804 a tribal officer like Mousseau can only be a “federal officer” to

the extent they are exercising authority available to the federal government and

were not simply enforcing tribal law. There is no indication that the federal

government had the authority to enforce tribal liquor laws. It is undisputed that

Officer Mousseau was strictly enforcing tribal liquor laws when she went to the

Janis home. PT 37:6-10. Therefore, she was not acting as a federal officer at the

time of the offense. Janis’s motion to dismiss or motion for judgment of acquittal

should therefore have been granted.

9


II. THE DISTRICT COURT ERRED BY INSTRUCTING THE JURYTHAT OFFICER MOUSSEAU WAS ACTING AS A FEDERALOFFICER AT THE TIME OF HER ENCOUNTER WITH JANIS BECAUSE IT WAS A QUESTION OF FACT FOR THE JURY.

The district court declared as a matter of law “that Officer Mousseau was a

federal officer for the purposes of 18 U.S.C. § 111 at the time of the alleged

assault,” precluded Janis from arguing this factual issue to the jury, and instructed

the jury that “Ann Mousseau was a federal officer at the time alleged in the

indictment.” DCD 43, p. 8; PT 29:22-25, 30:1-3, 31:14-17; DCD 70, Instruction

17. In doing so, the district court essentially directed a verdict against Janis. This

Court reviews the district court’s formulation of jury instructions for abuse of

discretion and its interpretation of law de novo. Kahle v. Leonard, 563 F.3d 736,

741 (8th Cir. 2009). The jury instructions must, taken as a whole, adequately

advise the jury of the essential elements of the offenses charged and the burden of

proof required of the government. United States v. Pereyra-Gabino, 563 F.3d 322,

328 (8th Cir. 2009).

By declaring as a matter of law and instructing the jury that Officer

Mousseau was a federal officer at the time alleged in the Indictment, the district

court took a fundamental factual question from the jury. In fact, the central

question because Janis did not dispute that he was involved in an altercation with

Mousseau that at least amounted to simple assault. TT 32:11-14. This Court has

10


repeatedly stated that while the question of whether a particular category of tribal

law enforcement officer is a federal officer within the meaning of § 111 is a

question of law for the court, the questions of whether an individual officer was in

fact that type of officer and whether she was “performing federal investigative,

inspection, or law enforcement functions” at the time of the alleged assault are

questions of fact for the jury. Oakie, 12 F.3d at 1440 (internal quotation omitted)

(emphasis added); see also Drapeau, 644 F.3d at 653; Bettelyoun, 16 F.3d at 852-

53.

Here, the district court found “as a matter of law that Officer Mousseau was a

federal officer for purposes of 18 U.S.C. § 111 at the time of the alleged assault.”

DCD 43, p. 8. The district court instructed the jury that the fourth and final element

of assault on a federal officer was:

Four, that at the time of the act, Ann Mousseau was an officer with theOglala Sioux Tribe, Department of Public Safety and was doing what shewas employed by the Tribe to do.

You are instructed Ann Mousseau was a federal officer at the timealleged in the indictment. The defendant need not know AnnMousseau was a federal officer. You must still determine whetherAnn Mousseau, at the time of the alleged assault, as an officer withthe Oglala Sioux Tribe, Department of Public Safety, was doingwhat she was employed by the Tribe to do.

11


“Doing what she was employed by the Tribe to do” means actingwithin the scope of what Ann Mousseau was employed to do. Thetest is whether the officer’s actions fall within the agency’s overallmission, in contrast to engaging in a personal frolic of her own.

DCD 70, Instruction 17.

This instruction failed to advise the jury of an essential element of the

offense. See Oakie, 12 F.3d at 1440 n. 3 (explicitly disapproving of model

instruction committee note that, “[w]hether a person is a federal officer is a question

of law for the court.”). The district court’s role was to decide whether an officer in

Officer Mousseau’s position (i.e., an officer with the Oglala Sioux Tribe,

Department of Public Safety) was a federal officer. By instructing the jury that

Officer Mousseau was a federal officer at the time alleged in the Indictment, the

district court went two steps beyond this. First, the district court decided that

Officer Mousseau was in fact an officer with the Oglala Sioux Tribe, which was a

factual question for the jury. See Oakie, 12 F.3d at 1440. Second, and more

importantly, the district court took from the jury the factual question of whether

Officer Mousseau was “performing federal investigative, inspection, or law

enforcement functions” at the time of the assault. See id. With this one sentence,

“[y]ou are instructed Ann Mousseau was a federal officer at the time alleged in the

indictment,” the district court effectively directed a verdict against Janis, and

12


violated binding precedent on how those questions are to be divided between courts

and juries.

The district court’s instruction further erred by telling the jury to decide

whether Officer Mousseau, “was doing what she was employed by the Tribe to do.”

DCD 70, Instruction 17. (Emphasis added). The actual question for the jury was

whether Officer Mousseau was “performing federal investigative, inspection, or law

enforcement functions.” Oakie, 12 F.3d at 1440 (quotation omitted) (emphasis

added); Drapeau, 644 F.3d at 653; Bettelyoun, 16 F.3d at 853 (stating that whether

tribal officers were “engaged in the performance of duties authorized by the

Secretary of the Interior” was the issue of fact for the jury). What Officer

Mousseau was employed by the tribe to do was not co-extensive with her federal

authority and her tribal law enforcement authority was not derived from an

agreement with the BIA. It was therefore not enough for the jury to find that she

was doing what she was employed by the tribe to do; it was necessary to decide if

she was acting under the tribal or federal authority. By directing the jury that

Officer Mousseau was performing federal investigative, inspection, or law

enforcement functions at the time of the assault, the district court relieved the

Government of its burden to prove every element beyond a reasonable doubt and

13


was a reversible error. See United States v. Mitchell, 463 F.2d 187, 191 (8th Cir.

1972).

Janis proposed an instruction that would have properly instructed the jury

that it must find that Officer Mousseau was conducting federal law enforcement

activities at the time of the assault. DCD 47, Defendant’s Proposed Jury Instruction

No. 1. The district court’s refusal of a proposed instruction is erroneous where the

court’s instructions as a whole failed to correctly instruct the jury on the applicable

law. Janis’s proposed instruction was modeled after an instruction approved by the

First Circuit. United States v. Luna, 649 F.3d 91, 98-100 (1st Cir. 2011). Luna

cited Bettelyoun and Oakie for the appropriate division of labor between the judge

and the jury in deciding the “federal officer” question. Id. at 98. Luna agreed that

whether an officer was “engaged in ‘official duties’ related to his or her federal

deputization at the relevant time” was a question of fact for the jury. Id. at 99.

Based on that division, Luna approved a jury instruction requiring the

Government to prove that the victim was both “(A) an officer or employee of the

United States acting within the scope of his federal deputization as a federal officer,

and (B) was performing federal investigative or law enforcement duties at the

time.” Id. at 100 n.7. The instruction went on to explain that the victim was

deputized as a member of a federal task force and:

14


First, the deputization defines the extent of his authority as a federalofficer as a member of the task force, and the government has to prove .. . what [the victim] was authorized to do as a federal officer as a memberof that task force.

Second, the government has to show that the activities he was engaged inat the time of and during the chase were federal official activities withinthe authorization. That is, that he was performing federal investigative or. . . law enforcement activities at that time.

Id.

Janis proposed an instruction with nearly identical language. DCD 47,

Defendant’s Proposed Jury Instruction No. 1. The district court refused the

instruction, instead instructing the jury that “Ann Mousseau was a federal officer at

the time alleged in the indictment.” DCD 70, Instruction 17. Not only did the

district court’s refusal to give this instruction result in the jury not having the

questions properly framed for them, the court’s instruction that Officer Mousseau

was a federal officer definitively told them the answer.

These instructions improperly precluded Janis from challenging an essential

element of the offense at trial. Janis’s conviction should be reversed and remanded

for a new trial.

CONCLUSION

The district court improperly concluded that there was evidence showing

Mousseau was acting as a federal, not tribal, officer. Additionally, its jury

15


instructions failed to properly state the questions the jury must answer. For the

reasons set forth more fully above Janis therefore requests that his case be reversed

and remanded with instructions to enter a judgment of acquittal or for a new trial.

Dated this 6th day of March, 2015.

Respectfully submitted,

/s/ Neil Fulton____________________________________________Neil Fulton, Federal Public DefenderAttorney for Appellant Justin JanisOffice of the Federal Public DefenderDistricts of South Dakota and North Dakota101 South Pierre Street, Third FloorP.O. Box 1258Pierre, South Dakota 57501Telephone: (605) 224-0009Facsimile: (605) [email protected]

16


CERTIFICATE OF SERVICE

I hereby certify that on 6th day of March, 2015, I electronically filed the

foregoing with the Clerk of the Court for the United States Court of Appeals for the

Eighth Circuit by using the CM/ECF system. I certify that all participants in the

case are registered CM/ECF users and that service will be accomplished by the

CM/ECF system.

In addition, I certify the electronic version of the foregoing has been scanned

for viruses using Symantec Anti Virus Corporate Edition, and that the scan showed

the electronic version of the foregoing is virus-free

/s/ Neil Fulton____________________________________________Neil Fulton, Federal Public DefenderAttorney for Appellant Justin Janis

17


CERTIFICATE OF COMPLIANCE

The undersigned hereby certifies that Word Perfect Version X6 was used in

the preparation of Appellant's Brief and that the word count done pursuant to that

word processing system shows that there are 3,666 words in Appellant's Brief.

Dated this 6th day of March, 2015.

/s/ Neil Fulton____________________________________________Neil Fulton, Federal Public DefenderAttorney for Appellant Justin Janis

18


Documents

IN THE UNITED S · JURISDICTIONAL STATEMENT Justin Janis appeals his conviction for assault on a federal officer in violation of 18 U.S.C. §§ 111 and 1114. The District Court had