Monthly Archives: August 2010

US v. Larsen rejects challenge to Interstate Domestic Violence Act


DAVID M. LARSEN, Defendant-Appellant.
No. 08-3088.
United States Court of Appeals, Seventh Circuit.

Argued: May 5, 2009.
Decided: August 4, 2010.

Before RIPPLE and SYKES, Circuit Judges, and LAWRENCE, District Judge.[ 1 ]

SYKES, Circuit Judge.

David Larsen brutally beat Teri Jendusa-Nicolai, his ex-wife, at his home in Wisconsin. He then bound her with duct tape, stuffed her in a garbage can filled with snow, put the can in the back of his truck, and drove to a self-storage facility in Illinois. He left her there—still bound and in the snow-filled garbage can—in an unheated rented storage locker. She was discovered the next day, about an hour from death.

Larsen was charged with state and federal crimes; the state charges were resolved first. See State of Wisconsin v. Larsen, 2007 WI App 147, 302 Wis. 2d 718, 736 N.W.2d 211. Thereafter in federal court, Larsen waived his right to a jury and after a trial to the court was convicted of two counts: kidnapping in violation of 18 U.S.C. § 1201(a)(1), and interstate domestic violence in violation of 18 U.S.C. § 2261(a)(2) and (b)(2) (the Interstate Domestic Violence Act). The district judge sentenced him to life in prison, which exceeded the recommended sentencing-guidelines range.

Larsen challenges both his convictions and his sentence. His first claim on appeal is a Commerce Clause challenge to the Interstate Domestic Violence Act; he contends that the Act unconstitutionally federalizes purely local violent crime with an insufficient nexus to interstate commerce. He next argues that his convictions for kidnapping and interstate domestic violence are multiplicitous in violation of the Double Jeopardy Clause. He also maintains that a warrantless search of his home on the afternoon of the victim’s disappearance was unjustified under the emergency doctrine and therefore unreasonable in violation of the Fourth Amendment. Finally, he challenges his life sentence to the extent that the judge’s decision to impose it was based on Jendusa-Nicolai’s having suffered a miscarriage three days after the attack.

We reject these arguments and affirm. The Interstate Domestic Violence Act punishes those who use “force, coercion, duress, or fraud” to cause a domestic partner to travel in interstate commerce and who commit a violent crime against the victim “in the course of, as a result of, or to facilitate” that interstate travel. 18 U.S.C. § 2261(a)(2). This statute lies well within the scope of Congress’s power to regulate the channels or instrumentalities of, or persons in, interstate commerce. We further conclude that Larsen’s convictions are not multiplicitous; the crimes of kidnapping and interstate domestic violence contain different elements, and each requires proof of a fact that the other does not. The district court’s admission of physical evidence obtained during the warrantless search of Larsen’s home was ultimately harmless, even if it was error; the evidence of Larsen’s guilt was overwhelming and uncontroverted. Finally, Larsen’s life sentence was not unreasonable, either on its own terms or because the judge’s decision to impose it was based primarily on Jendusa-Nicolai’s miscarriage.

Source and complete decision

Tribal Law Act expected to improve safety on South Dakota reservations

Source: Rapid City Journal

Pine Ridge Indian Reservation’s chief of police said he expects the Tribal Law and Order Act that President Barack Obama signed into law to eventually allow him to rebuild his police department back to 100 officers.

Police Chief Everett Little Whiteman said the Oglala Sioux Tribe’s police department has shrunk from a high of 100 officers to its current 44 officers, who cover the entire reservation. That isn’t nearly enough for a reservation with a growing gang problem, he said, calling the new law a welcome improvement to public safety on his reservation.

Oglala Sioux Tribe President Theresa Two Bulls and Rosebud Sioux Tribe Police Chief Grace Her Many Horses were among tribal officials who were in Washington, D.C., for Thursday’s bill signing. Tribal leaders hailed it as a reaffirmation of the federal government’s trust responsibility to ensure their communities are safe

It authorizes an additional $40 million per year from 2011 through 2015 to help fight crime on reservations. When funded by Congress, the law’s effects first will be felt in the judicial branches of tribal law enforcement, not in tribal police departments, Little Whiteman said. But by providing more prosecutors and more judges to deal with a backlog of violent crime cases on the reservation, the law promises to have “productive impacts” on his police department, he said.

There are four tribal judges on the Pine Ridge reservation and not nearly enough prosecutors and investigators to deal with the 17,000 arrests made there each year, he said.

The 2011 fiscal year begins in October and, depending on how the first grants from the act are disbursed, Little Whiteman expects to begin adding police officers then.

Recruitment, training and housing issues for additional police officers to serve on South Dakota’s reservations all must be addressed, he said. Tribal communities should begin to see improvements in public safety because of more prosecutions and additional police officers within a couple of years, he predicted.

South Dakota’s congressional delegation applauded passage of the long-awaited bill as landmark legislation that takes a major step forward in fighting crime on reservations. The measure provides for the appointment of special U.S. attorneys to ensure violent crimes in tribal communities are prosecuted. It also revamps training for reservation police, expands the sentencing authority of tribal courts from one to three years, addresses jurisdictional issues and improves the collection and reporting of Native American crime data. It also improves training for investigation of sexual assault and standardized protocols for handling sex crimes, interviewing witnesses and handling evidence of domestic and sexual violence on reservations.

Sen. Tim Johnson, D-S.D., a member of the Indian Affairs Committee, joined President Obama and tribal officials at the White House for the signing ceremony. “When the ink is dry on the president’s signature, a strong message will be sent across our tribal communities that Washington is making a historic effort to fight crime in Indian Country,” Johnson said in a news release.

Sen. John Thune, R-S.D., successfully added a provision to the bill to study the effectiveness of the Department of Justice’s Community Oriented Policing Services program and how community policing and the broken windows theory can be applied on remote reservations such as those found in South Dakota. He also authored an amendment to raises the age limit for Bureau of Indian Affairs officers from 37 to 47 years, allowing more military retirees to be recruited for those jobs.

Rosebud DV shelter keeps funding, but directives issued

August 3, 2010
Source: Rapid City Journal

The longstanding domestic violence shelter in Mission, South Dakota will keep its funding, at least for now.

The Rosebud Sioux Tribal Council tabled a resolution Monday that would have prevented the White Buffalo Calf Woman Society women’s shelter from receiving funding through the tribe.

Tillie Black Bear, executive director of the shelter, said the tribal council and shelter’s board of directors came to the agreement Monday night after meeting to discuss allegations made during a July council meeting.

On July 16, three former residents of the shelter made allegations of client abuse, building deficiencies and funding issues to the council. The council responded by revoking the shelter’s ability to acquire pass-through federal grants because it is affiliated with the tribe.

Black Bear, who called the allegations unfounded and unfair, said the shelter continued to operate, relying on funding from the state and federal government. The salaries of nine staff members were suspended, but they continued to work at the shelter, Black Bear said.

At Monday’s meeting, the tribal council and the board of directors agreed to a 60-day tabling of the resolution. In return, the White Buffalo Calf Woman Society board of directors must meet certain requirements by that Oct. 4 meeting.

First, the shelter must establish a grievance system. Black Bear said a verbal system is already in place, but the council wants a written system.

Second, the council asked for monthly financial reports from the shelter until next year, when reports will be required annually, Black Bear said.

The council asked that the facility undergo inspections by building experts, such as plumbers and electricians.

The tribal council also asked the shelter to explore becoming a charter under the tribe. Such a move would make the shelter a tribal entity. Black Bear said the board is investigating such a move but is hesitant to do so.

Black Bear said the board fears that making the shelter a part of a political entity could jeopardize its funding.

“The greatest fear we’ve always had in the 33 years we’ve been in operation … is the retaliation of men who are being held accountable for their actions,” she said. “We want that autonomy to do the work that we need to do.”

Staffers at the shelter were reinstated Monday and given back pay, Black Bear said.

Black Bear said the shelter’s board of directors showed themselves to be capable leaders during the conflict. Their abilities give her hope for the future of the society, which has been operating since 1977. The shelter building has been open since 1980. The center serves more than 300 women and more than 600 children annually.

“I sat on my hands and listened and observed,” Black Bear said of the Monday meeting. “The board of directors from the Buffalo Calf really stepped to the plate.”

Note: You can get information about this situation by following White Buffalo Calf Woman on Facebook.

White Buffalo Calf Woman website

More about Tillie Black Bear