United States Court of Appeals, Eighth Circuit. UNITED STATES Of

FOR EDUCATIONAL USE ONLY Page 1 419 F.3d 781, 68 Fed. R. Evid. Serv. 7 (Cite as: 419 F.3d 781)

Affirmed.

United States Court of Appeals, West Headnotes Eighth Circuit. UNITED STATES of America, Plaintiff-Appellee, [1] Criminal Law 110 338(7) v. 110 Criminal Law Fritz Arlo LOOKING CLOUD, Defendant-Appel- 110XVII Evidence lant. 110XVII(D) Facts in Issue and Relevance No. 04-2173. 110k338 Relevancy in General Submitted: Jan. 10, 2005. 110k338(7) k. Evidence Calculated to Filed: Aug. 19, 2005. Create Prejudice Against or Sympathy for Accused. Rehearing and Rehearing En Banc Denied Oct. 24, Most Cited Cases 2005. Evidence is not “unfairly prejudicial,” as would warrant its exclusion under the federal rules of Background: Defendant was convicted in the evidence, because it tends to prove guilt, but be- United States District Court for the District of cause it tends to encourage the jury to find guilt South Dakota, Lawrence L. Pierson, Chief Judge, from improper reasoning. Fed.Rules Evid.Rule 403, of first degree murder. Defendant appealed. 28 U.S.C.A.

Holdings: The Court of Appeals, John R. Gibson, [2] Criminal Law 110 338(7) Circuit Judge, held that: (1) probative value of evidence of defendant's 110 Criminal Law membership in an American Indian group and his- 110XVII Evidence tory of group's violent activities was not out- 110XVII(D) Facts in Issue and Relevance weighed by danger of unfair prejudice; 110k338 Relevancy in General (2) any error in admission of evidence of violent 110k338(7) k. Evidence Calculated to activities of American Indian group was harmless; Create Prejudice Against or Sympathy for Accused. (3) testimony, that people within the American In- Most Cited Cases dian group of which defendant was a member had Whether there was unfair prejudice in the evidence accused murder victim of being an informant and depends on whether there was an undue tendency to that the victim spoke of fearing for her life because suggest decision on an improper basis. Fed.Rules of the accusations, was not hearsay; Evid.Rule 403, 28 U.S.C.A. (4) Court of Appeals would review for plain error [3] Criminal Law 110 338(7) defendant's claim on appeal that district court erred by giving improper limiting jury instruction; 110 Criminal Law (5) limiting jury instruction was not plainly erro- 110XVII Evidence neous; 110XVII(D) Facts in Issue and Relevance (6) Court of Appeals would not consider on direct 110k338 Relevancy in General appeal defendant's ineffective assistance of counsel 110k338(7) k. Evidence Calculated to claim; and Create Prejudice Against or Sympathy for Accused. (7) evidence was sufficient to support murder con- Most Cited Cases viction. Criminal Law 110 1153.3

110 Criminal Law 110XVII(F) Other Offenses 110XXIV Review 110k369 Other Offenses as Evidence of 110XXIV(N) Discretion of Lower Court Offense Charged in General 110k1153 Reception and Admissibility of 110k369.2 Evidence Relevant to Of- Evidence fense, Also Relating to Other Offenses in General 110k1153.3 k. Relevance. Most Cited 110k369.2(1) k. In General. Most Cases Cited Cases (Formerly 110k1153(1)) Where a group plays a role in the crime the defend- Prejudicial evidence is not automatically excluded ant is charged with, evidence of the nature and ex- and the Court of Appeals give great deference to tent of the defendant's association with that group the district court's balancing of the probative value may be relevant. Fed.Rules Evid.Rule 401, 28 and prejudicial impact of the evidence. Fed.Rules U.S.C.A. Evid.Rule 403, 28 U.S.C.A. [7] Criminal Law 110 369.1 [4] Criminal Law 110 1153.1 110 Criminal Law 110 Criminal Law 110XVII Evidence 110XXIV Review 110XVII(F) Other Offenses 110XXIV(N) Discretion of Lower Court 110k369 Other Offenses as Evidence of 110k1153 Reception and Admissibility of Offense Charged in General Evidence 110k369.1 k. In General. Most Cited 110k1153.1 k. In General. Most Cited Cases Cases A defendant cannot be convicted of a crime because (Formerly 110k1153(1)) of his association with a group. The Court of Appeals reviews the district court's decision to admit evidence for abuse of discretion. [8] Criminal Law 110 369.2(4)

[5] Criminal Law 110 1036.1(1) 110 Criminal Law 110XVII Evidence 110 Criminal Law 110XVII(F) Other Offenses 110XXIV Review 110k369 Other Offenses as Evidence of 110XXIV(E) Presentation and Reservation in Offense Charged in General Lower Court of Grounds of Review 110k369.2 Evidence Relevant to Of- 110XXIV(E)1 In General fense, Also Relating to Other Offenses in General 110k1036 Evidence 110k369.2(3) Particular Offenses, 110k1036.1 In General Prosecutions for 110k1036.1(1) k. Objections to 110k369.2(4) k. Assault, Hom- Evidence in General. Most Cited Cases icide, Abortion and Kidnapping. Most Cited Cases To the extent that a defendant fails to object to the Probative value of evidence of defendant's member- admission of evidence, the review by the Court of ship in an American Indian group and history of Appeals is for plain error. group's violent activities was not outweighed by danger of unfair prejudice, in prosecution for first- [6] Criminal Law 110 369.2(1) degree murder; the victim was member of same group, prosecution's theory was that victim was 110 Criminal Law killed because defendant and other influential mem- 110XVII Evidence bers of the group suspected that she was a govern-

ment informant, evidence of group's activities 110k419(2.40) k. Evidence Showing provided a context for the murder offense, showed Intent, Motive, or Nature of Act. Most Cited Cases how loyal its members were, and depicted the his- Testimony, that people within the American Indian tory of conflict between the group and the federal group of which defendant was a member had ac- government, and there was low risk that, from evid- cused murder victim of being an informant and that ence of mere membership in the group, the jury the victim spoke of fearing for her life because of would associate violent activity with defendant. the accusations, was not hearsay, in murder prosec- Fed.Rules Evid.Rule 403, 28 U.S.C.A. ution, where statements about victim and her fears were not offered for truth of matter asserted, but [9] Criminal Law 110 1165(1) rather, were probative of defendant's motive to kill her. Fed.Rules Evid.Rule 801, 28 U.S.C.A. 110 Criminal Law

110XXIV Review [12] Criminal Law 110 1038.3 110XXIV(Q) Harmless and Reversible Error 110k1165 Prejudice to Defendant in Gen- 110 Criminal Law eral 110XXIV Review 110k1165(1) k. In General. Most Cited 110XXIV(E) Presentation and Reservation in Cases Lower Court of Grounds of Review An error is “harmless” if, after reviewing the entire 110XXIV(E)1 In General record, the Court of Appeals determines that the 110k1038 Instructions substantial rights of the defendant were unaffected, 110k1038.3 k. Necessity of Re- and that the error did not influence or had only a quests. Most Cited Cases slight influence on the verdict. Criminal Law 110 1043(2) [10] Criminal Law 110 1169.11 110 Criminal Law 110 Criminal Law 110XXIV Review 110XXIV Review 110XXIV(E) Presentation and Reservation in 110XXIV(Q) Harmless and Reversible Error Lower Court of Grounds of Review 110k1169 Admission of Evidence 110XXIV(E)1 In General 110k1169.11 k. Evidence of Other Of- 110k1043 Scope and Effect of Objec- fenses and Misconduct. Most Cited Cases tion Any error in admission of evidence of violent activ- 110k1043(2) k. Necessity of Spe- ities of American Indian group of which defendant cific Objection. Most Cited Cases was member was harmless, in prosecution for first- A party cannot preserve a claim of error in the jury degree murder; the evidence was mentioned in instructions for appellate review unless he makes a passing by witness, it did not become the focus of sufficiently precise objection and also proposes an the trial, and the evidence was elicited in a matter- alternate instruction. of-fact way and was not inflammatory. [13] Criminal Law 110 1038.3 [11] Criminal Law 110 419(2.40) 110 Criminal Law 110 Criminal Law 110XXIV Review 110XVII Evidence 110XXIV(E) Presentation and Reservation in 110XVII(N) Hearsay Lower Court of Grounds of Review 110k419 Hearsay in General 110XXIV(E)1 In General

110k1038 Instructions record, which makes those claims generally inap- 110k1038.3 k. Necessity of Re- propriate for direct appeal and better raised in a quests. Most Cited Cases habeas proceeding. U.S.C.A. Const.Amend. 6. The Court of Appeals would review for plain error defendant's claim on appeal that district court erred [16] Criminal Law 110 1119(1) by giving improper limiting jury instruction on 110 Criminal Law evidence that murder victim was suspected of being 110XXIV Review a government informant, in murder prosecution, 110XXIV(G) Record and Proceedings Not in where defendant failed to propose a limiting in- Record struction. 110XXIV(G)15 Questions Presented for

[14] Criminal Law 110 1038.1(5) Review 110k1113 Questions Presented for Re- 110 Criminal Law view 110XXIV Review 110k1119 Conduct of Trial in Gen- 110XXIV(E) Presentation and Reservation in eral Lower Court of Grounds of Review 110k1119(1) k. In General. Most 110XXIV(E)1 In General Cited Cases 110k1038 Instructions 110k1038.1 Objections in General Criminal Law 110 1134.47(3) 110k1038.1(3) Particular In- 110 Criminal Law structions 110XXIV Review 110k1038.1(5) k. Evidence 110XXIV(L) Scope of Review in General and Witnesses. Most Cited Cases 110XXIV(L)4 Scope of Inquiry Limiting jury instruction, advising jury that testi- 110k1134.47 Counsel mony, that people within the American Indian 110k1134.47(3) k. Effective Assist- group of which defendant was a member had ac- ance. Most Cited Cases cused murder victim of being an informant and that (Formerly 110k1134(3)) the victim spoke of fearing for her life because of The Court of Appeals will not consider ineffective the accusations, was not admitted for truth of the assistance of counsel claims on direct appeal except matter asserted, was not plainly erroneous, in in exceptional cases in which the district court has murder prosecution. developed a record on the ineffectiveness issue or

[15] Criminal Law 110 1440(2) where the result would otherwise be a plain miscarriage of justice. U.S.C.A. Const.Amend. 6. 110 Criminal Law 110XXX Post-Conviction Relief [17] Criminal Law 110 1119(1) 110XXX(A) In General 110 Criminal Law 110k1435 Consideration Despite Waiver 110XXIV Review or Other Bar 110XXIV(G) Record and Proceedings Not in 110k1440 Counsel Record 110k1440(2) k. Preferability of 110XXIV(G)15 Questions Presented for Raising Effectiveness Issue on Post-Conviction Review Motion. Most Cited Cases 110k1113 Questions Presented for Re- Ineffective assistance of counsel claims nearly al- view ways require the development of facts outside the

110k1119 Conduct of Trial in Gen- in Favor of Government, State, or Prosecution. eral Most Cited Cases 110k1119(1) k. In General. Most Cited Cases Criminal Law 110 1159.2(2) The Court of Appeals would not consider on direct 110 Criminal Law appeal defendant's ineffective assistance of counsel 110XXIV Review claims, asserting that attorney failed to object to the 110XXIV(P) Verdicts admission of a videotaped interview on the ground, 110k1159 Conclusiveness of Verdict failed to object to inadmissible hearsay statements, 110k1159.2 Weight of Evidence in and failed to object to leading questions, where is- General sues were not developed sufficiently on the record. 110k1159.2(2) k. Verdict Unsup- U.S.C.A. Const.Amend. 6. ported by Evidence or Contrary to Evidence. Most

[18] Criminal Law 110 1139 Cited Cases The Court of Appeals reviews the sufficiency of the 110 Criminal Law evidence de novo and will reverse a conviction only 110XXIV Review if, after viewing the evidence in the light most fa- 110XXIV(L) Scope of Review in General vorable to the jury's verdict and giving the govern- 110XXIV(L)13 Review De Novo ment the benefit of all reasonable inferences that 110k1139 k. In General. Most Cited may be drawn from the evidence, no construction Cases of the evidence will support the jury's verdict.

Criminal Law 110 1144.13(2.1) [19] Criminal Law 110 552(1)

110 Criminal Law 110 Criminal Law 110XXIV Review 110XVII Evidence 110XXIV(M) Presumptions 110XVII(V) Weight and Sufficiency 110k1144 Facts or Proceedings Not 110k552 Circumstantial Evidence Shown by Record 110k552(1) k. In General. Most Cited 110k1144.13 Sufficiency of Evidence Cases 110k1144.13(2) Construction of Either direct or circumstantial evidence may Evidence provide a basis for conviction; adducing direct 110k1144.13(2.1) k. In General. evidence at trial is not a requirement. Most Cited Cases [20] Homicide 203 1142 Criminal Law 110 1144.13(3) 203 Homicide 110 Criminal Law 203IX Evidence 110XXIV Review 203IX(G) Weight and Sufficiency 110XXIV(M) Presumptions 203k1138 First Degree, Capital, or Ag- 110k1144 Facts or Proceedings Not gravated Murder Shown by Record 203k1142 k. Malice. Most Cited Cases 110k1144.13 Sufficiency of Evidence 110k1144.13(2) Construction of Homicide 203 1143 Evidence 203 Homicide 110k1144.13(3) k. Construction 203IX Evidence

203IX(G) Weight and Sufficiency on. We affirm. 203k1138 First Degree, Capital, or Ag- gravated Murder FN1. The Honorable Lawrence L. Piersol, Chief Judge, United States District Court 203k1143 k. Deliberation and Premed- itation. Most Cited Cases for the District of South Dakota. Evidence was sufficient to support findings that de- Aquash's badly decomposed body was discovered fendant killed or aided and abetted in the killing of in 1976, and police began to suspect foul play after the victim, with malice aforethought, and that the identifying her as having been involved with the killing was premeditated, as required to support FN2 American Indian Movement. Due to lack of co- conviction for first degree murder; defendant and operation,*785 the investigation made little head- other members of American Indian groups suspec- way until agents began talking to Looking Cloud in ted that victim was a government informant, one the mid-90s. Looking Cloud and almost every other member of group testified that several other mem- witness in the case were members of, and were act- bers took victim away and isolated her for weeks to ively involved in, the American Indian Movement watch her, another member testified that victim be- at the time of Aquash's death. The government's lieved that her life was in danger months before her theory at trial was that Looking Cloud and other murder, another member testified that victim American Indian Movement members killed begged to be let go and that defendant and others Aquash, who was also a member, because they sus- received orders from the group's decision-makers to pected she was a federal informant, working with kill victim, and others testified that defendant the government. forced victim out of the car and gave shooter the gun, and that after the victim was shot, the defend- FN2. This case is one of several cases to ant and others buried the gun. 18 U.S.C.A. §§ 1111, involve mid-1970s events at Pine Ridge In- 1153. dian Reservation. The occupation of the *784 Terry H. Gilbert, argued, Cleveland, OH, for village of Wounded Knee in 1973 involved appellant. a stand off between a group of armed Nat- ive Americans and federal authorities. See Robert Aaron Mandel, argued, Assistant U.S. Attor- Bissonette v. Haig, 776 F.2d 1384, 1385 ney, Rapid City, SD (James E. McMahon, on brief), (8th Cir.1985), cert. granted, 479 U.S. for appellee. 1083, 107 S.Ct. 1283, 94 L.Ed.2d 141 (1987), aff'd for lack of quorum under 28 Before BYE, JOHN R. GIBSON, and GRUENDER U.S.C. § 2109, 485 U.S. 264, 108 S.Ct. , Circuit Judges. 1253, 99 L.Ed.2d 288 (1988). After the occupation, residents of the area brought an action against federal officials and military JOHN R. GIBSON, Circuit Judge. personnel, alleging that the seizure and Fritz Arlo Looking Cloud appeals his conviction for confinement violated their constitutional the first degree murder of Anna Mae Aquash fol- rights. Id. at 1386. Two years after the oc- lowing a jury trial. His grounds for appeal are: (1) cupation, American Indian Movement admission of irrelevant, prejudicial evidence; (2) members camped out at the Pine Ridge In- admission of hearsay and an improper limiting indian Reservation to protect reservation tra- struction; (3) ineffective assistance of counsel; and ditionalists, who were in a violent political (4) insufficient evidence to support his conviction. struggle with Native Americans who sup- FN1 The district court sentenced him to life in pris- ported the Bureau of Indians Affairs. Pelti- er v. Booker, 348 F.3d 888, 889 (10th

Cir.2003), cert. denied, 541 U.S. 1003, 124 FN3. John Graham was indicted along with S.Ct. 2053, 158 L.Ed.2d 518 (2004). Le- Looking Cloud but has not been extradited onard Peltier, an American Indian Move- from Canada and, thus, has not yet been ment leader, was convicted of killing two tried. FBI agents during his stay at the Reserva- tion. Id. Peltier's conviction and sentence I. of two consecutive life terms withstood several appeals and proceedings for post- Looking Cloud argues that the district court erred in conviction relief. See United States v. Pel- admitting evidence about the activities of the Amer- tier, 585 F.2d 314 (8th Cir.1978) (affirmed ican Indian Movement because it was irrelevant to 1977 conviction); United States v. Peltier, the murder charge or, alternatively, because it was 731 F.2d 550 (8th Cir.1984) (remanded for overly prejudicial. Looking Cloud asserts that the evidentiary hearing on Peltier's 1983 new government portrayed the American Indian Move- trial motion on ground of newly discovered ment as a violent organization so that the jury evidence); United States v. Peltier, 800 would associate violence with Looking Cloud, who F.2d 772 (8th Cir.1986) (affirmed district was a member. court's denial of Peltier's new trial motion following evidentiary hearing); Peltier v. [1][2][3][4][5] Federal Rule of Evidence 401 Henman, 997 F.2d 461 (8th Cir.1993) defines “relevant evidence” as “evidence having (affirmed denial of post-conviction relief); any tendency to make the existence of any fact that Peltier v. Booker, 348 F.3d 888 (10th is of consequence to the determination of the action Cir.2003) (affirmed denial of habeas cor- more probable or less probable than it would be pus relief seeking immediate parole), cert. without the evidence.” Relevant evidence is ad- denied, 541 U.S. 1003, 124 S.Ct. 2053, missible but may be excluded under Rule 403 if “its 158 L.Ed.2d 518 (2004). probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, When the rumor began to spread around the Amer- or misleading the jury ....” Evidence is not unfairly ican Indian Movement that Aquash was an inform- prejudicial because it tends to prove guilt, but be- ant, she fled Pierre to Denver. A few weeks later, cause it tends to encourage the jury to find guilt Looking Cloud, Theda Clark and John Graham FN3 from improper reasoning. Whether there was unfair (also called John Boy Patton) received orders prejudice depends on whether there was an “undue from the American Indian Movement to bring tendency to suggest decision on an improper basis.” Aquash back to South Dakota. They tied her up and United States v. Sills, 120 F.3d 917, 920 (8th drove her to Rapid City to question her about being Cir.1997) (citations omitted). Prejudicial evidence an informant. Aquash was constantly guarded and is not automatically excluded and we give great de- her requests to be let free were refused. At some ference to the district court's balancing of the pro- point, Aquash realized that she was about to be bative value and prejudicial impact of the evidence. killed. Looking Cloud, Clark, and Graham met with United States v. Ruiz, 412 F.3d 871, 881 (8th other American Indian Movement members in Rap- Cir.2005). We review the district court's decision to id City and eventually the three drove Aquash to an admit evidence for abuse of discretion. Id. at 880. area near Wanblee. Aquash begged to go free, Looking Cloud objected to some, but not all, of the prayed, and cried. Looking Cloud and Graham American Indian Movement evidence. To the extent marched Aquash up a hill and Graham shot her at he failed to object, our review is for plain error. See the top of a cliff. Her body was either thrown or it United States v. Sharpfish, 408 F.3d 507, 511 (8th tumbled to the bottom of that cliff. Cir.2005).

The government's theory of the case was that ment and its activities. Aquash and Looking Cloud Aquash's murder was organized and executed by were both members, as was virtually every person Movement members. The *786 government set out who came into contact with Aquash before her to prove that Looking Cloud received orders from death. Aquash was moved through a network of decision-makers within the Movement to kill American Indian Movement members from Denver Aquash because she betrayed the Movement by be- to Rapid City to Rosebud before she was killed. coming an informant. The government offered two The evidence showed how the members' preoccupa- distinct types of evidence: (1) evidence that wit- tion with Aquash escalated until her death. The nesses or the people discussed by the witnesses government introduced evidence that influential were members of the American Indian Movement members of the Movement had concluded that and knew each other through that organization, and Aquash was an informant, and that the Movement (2) evidence of the violent activities in which the delegated the task of killing her to Looking Cloud, Movement was involved. Clark, and Graham. Evidence of how those who surrounded Aquash in the last months of her life [6][7] The first type of evidence showed Looking were intimately involved with the Movement ten- Cloud's association with the Movement and its ded to make the government's theory-that the members. This evidence is comparable to the ad- Movement orchestrated Aquash's murder-more mission of a defendant's association with a group or probable. Proof of Looking Cloud's involvement in gang, who engage in violent activities. We have ad- the Movement was crucial to explain why he would mitted evidence of a defendant's association with a have killed Aquash. group where the association establishes motive or opportunity to commit the crime. See Sills, 120 There was a low risk that, from evidence of mere F.3d at 920. Where a group plays a role in the crime membership in the Movement, the jury would asso- the defendant is charged with, evidence of the ciate violent activity with Looking Cloud. The nature and extent of the defendant's association evidence linked Looking Cloud to the American In- with that group may be necessary. See, e.g., United dian Movement, but it did not encourage the jury to States v. Johnson, 28 F.3d 1487, 1497 (8th find him guilty because of his association with the Cir.1994). However, a defendant cannot be con- Movement. victed because of his association with a group. United States v. Lemon, 239 F.3d 968, 971-72 (8th For the second type of evidence, Darlene Nichols Cir.2001) (affirming admission of gang-related testified as to several incidents of violence in- evidence because it did not become a “pervasive volving the American Indian Movement. Three of theme”); Johnson, 28 F.3d at 1497-98 (affirming these, the riot in Custer involving several hundred admission of evidence that served to clarify connec- people, the seventy-one day occupation of tions between the defendants but did not serve as a Wounded Knee, and a shoot-out near her home substitute for linking the defendant to the crime). In which killed two FBI agents, were the most violent Sills and Johnson, we affirmed the district court's events discussed and were also the least related to admission of gang-related evidence because al- Aquash and Looking Cloud. In other words, evid- though the evidence linked the defendants to a ence of *787 these three events is the least probat- gang, it fell far short of encouraging the jury to ive and the most prejudicial. base its verdict on guilt by association. Sills, 120 Evidence of the activities engaged in by Movement F.3d at 920; Johnson, 28 F.3d at 1497. members provided context for the Movement and

[8] The murder of Aquash could only be explained showed how loyal and dedicated its members were, within the context of the American Indian Move- and how extensively involved they were in the Movement. The events mentioned by Nichols de-

picted a violent conflict between the Movement and jections for appeal. the federal government. This conflict showed why the Movement would be enraged if one of its own The district court sustained Looking Cloud's members turned against it to become a government hearsay objection in part and gave the following informant. This background information helped the limiting instruction to the jury: jury understand why the Movement would go so far The requested testimony is hearsay, but I am go- as to order the execution of a suspected government ing to admit it for a limited purpose only, this is a informant. limiting instruction. It isn't admitted nor received

[9][10] If any of the evidence of the violent acts in- for the truth of the matter stated. In other words, volving the Movement was admitted in error, that whether the rumor [that Aquash was an inform- error was harmless. An error is harmless “if, after ant] is true or not. It is simply received as to what reviewing the entire record, we determine that the the rumor was. So it is limited to what the rumor substantial rights of the defendant were unaffected, was, it is not admitted for the truth of the state- and that the error did not influence or had only a ment as to whether the rumor was true or not. So slight influence on the verdict.” United States v. with that limiting instruction, which in part grants the objection, but the objection beyond that is Crenshaw, 359 F.3d 977, 1003-04 (8th Cir.2004) FN4 (quoting United States v. Carroll, 207 F.3d 465, overruled. 470 (8th Cir.2000)). These events were mentioned in passing by Nichols, and they did not become the FN4. After that initial limiting instruction, focus of the trial. There was no in-depth discussion upon subsequent objections, the district of the degree of violence or injuries caused by the court would reiterate that the evidence was events. The information was elicited in a matter- not admitted for the truth of the matter as- of-fact way and was not inflammatory. The jury serted. would not have been unduly influenced by the evidence. An out-of-court statement is not hearsay if it is not offered for the truth of the matter asserted. See We hold that the district court neither abused its Fed.R.Evid. 801(c). discretion nor committed plain error in admitting the evidence related to the American Indian Move- Evidence that Aquash was rumored to be an in- ment. formant was probative of Looking Cloud's motive to kill her. In United States v. Amahia, 825 F.2d 177 (8th Cir.1987), a husband was indicted for con- II. spiracy to enter into a fraudulent marriage in *788

[11] Looking Cloud's second evidentiary argument order to obtain an immigrant visa and permanent is that the district court erred in admitting evidence residency. We affirmed the district court's decision that Aquash was a government informant because it to admit evidence of a conversation where someone was inadmissible hearsay. The district court permit- told the wife about the availability of cash for en- ted several witnesses to testify that people within tering into bogus weddings with Nigerians. Id. at the American Indian Movement had accused 179. The conversation was not offered for the truth Aquash of being an informant and that Aquash of the matter asserted-to show that cash actually spoke of fearing for her life because of the accusa- was available for entering into a fraudulent mar- tions. The government concedes that Looking riage-but to explain why the wife decided to marry Cloud objected to the admission of most of the in- her husband. Id. at 181. The conversation was ad- formant evidence and properly preserved those ob- missible to “help the jury in understanding the con-

text and circumstances” relating to the marriage. Id. court's admission of the evidence subject to a limit- In United States v. Cline, 570 F.2d 731, 734 (8th ing instruction did not constitute plain error. Cir.1978), we affirmed the district court's decision to permit a witness to testify about a conversation III. between the defendant and the deceased victim that showed ill feelings between the two. Hostility Looking Cloud alleges that he received ineffective between the suspected murderer and the victim assistance of counsel because his attorney failed to provided a motive for the murder and helped the (1) object to the admission of a videotaped inter- jury determine whether the murder was premedit- view on the ground that it violated Looking Cloud's ated. Id. Sixth Amendment rights, (2) object to inadmissible hearsay statements of Aquash and request a hearsay Here, the evidence that Aquash was rumored to be jury instruction, and (3) object to leading questions. an informant was not offered for the truth of the matter asserted. It was not important for the jury to [15][16] Ineffective assistance of counsel claims determine whether Aquash was actually an inform- nearly always require the development of facts out- ant. Rather, the rumor's value was in helping the side the record, which makes those claims generally jury understand Looking Cloud's alleged motive for inappropriate for direct appeal and better raised in a killing her. It only mattered whether Looking Cloud habeas proceeding. See United States v. Santana, had heard or believed that Aquash was an inform- 150 F.3d 860, 863 (8th Cir.1998). We will not con- ant, not whether she was an informant. The inform- sider ineffective assistance of counsel claims on ant rumors were therefore not hearsay and were rel- direct appeal except in “exceptional cases in which evant to Looking Cloud's guilt. The informant ru- the district court has developed a record on the in- mors helped the jury understand the context and effectiveness issue or where the result would *789 circumstances of the murder. otherwise be a plain miscarriage of justice.” Id.

[12][13] In a related argument, Looking Cloud as- [17] We decline to review Looking Cloud's claim serts that the district court erred by giving an im- because this is not such an exceptional case. One proper limiting instruction to the jury on the in- basis for Looking Cloud's ineffective assistance formant evidence. A party cannot preserve a claim claim is that his attorney should have moved to sup- of instructional error for appellate review unless he press the police interview because Looking Cloud makes a sufficiently precise objection and also pro- was intoxicated and therefore could not knowingly poses an alternate instruction. Caviness v. Nucor- and intelligently waive his right to counsel. The Yamato Steel Co., 105 F.3d 1216, 1220 (8th only mention of alcohol in the record is in the video Cir.1997). Looking Cloud failed to offer a limiting recording of the police interview. In that video, an instruction and we thus review for plain error. See agent asks Looking Cloud whether he is under the id. influence of any drugs or alcohol, to which Looking Cloud replies, “A little bit of alcohol.” There is no [14] The district court explained to the jury that the further development of the issue in the record and evidence was not admitted for the truth of the mat- thus no way for us to determine the merits of Look- ter stated. The court admitted the evidence to show ing Cloud's argument. We decline to rule on Look- “what the rumor was” not “whether the rumor was ing Cloud's ineffectiveness claims in this appeal, true or not.” We reject Looking Cloud's bare allega- but he may raise them in a proceeding brought un- tion that this instruction was inadequate and under 28 U.S.C. § 2255. clear. We hold that the district court's decision to admit the evidence of the rumor that Aquash was an informant was not an abuse of discretion and the IV.

Looking Cloud's final argument is that the evidence an informant. Mathalene White Bear and at trial was not sufficient to support his conviction Troy Lynn Yellow Wood testified that and the district court erred in rejecting his motion Aquash told them of the accusations. for judgment of acquittal. The jury convicted Look- Angie Janis testified that Thelma Rios said ing Cloud of first degree murder or of aiding and Aquash was an informant and that the ru- abetting that murder under 18 U.S.C. §§ 1111 and mor was discussed at a meeting attended 1153. The elements Looking Cloud disputes are (1) by Yellow Wood, John Graham, George that he killed or aided and abetted in the killing of Palfey, Ernesto Vijil, and possibly Looking Aquash; (2) that he did so with malice afore- Cloud. Denise Pictou, Aquash's daughter, thought; and (3) that the killing was premeditated. testified that Looking Cloud told her and her sister about the rumor. Richard Two [18][19] We review the sufficiency of the evidence Elk also testified that Looking Cloud dis- de novo and will reverse a conviction only if, after cussed the allegations with him. Candy viewing the evidence in the light most favorable to Hamilton and Cleo Gates testified to hear- the jury's verdict and giving the government the being the rumor. Trudell testified that nefit of all reasonable inferences that may be drawn Aquash and Looking Cloud told him of the from the evidence, no construction of the evidence accusations. will support the jury's verdict. See United States v. Simon, 376 F.3d 806, 808 (8th Cir.2004). Either *790 In November 1975, Aquash left Pierre and direct or circumstantial evidence may provide a went to Denver, where she stayed in the home of a basis for conviction; adducing direct evidence at Movement member. Other Movement members fre- trial is not a requirement. Id. quently gathered at this house. Several members held a meeting at the house in November 1975 be- [20] The evidence adduced at trial was as follows. cause they had received a phone call saying that The testimony established that nearly twenty mem- Aquash was an informant and needed to be taken to bers of the American Indian Movement suspected Rapid City, South Dakota. The group decided Aquash was an informant or had at least heard the FN5 Looking Cloud, Clark, and Graham would take rumor. Darlene Nichols, who joined the Move- Aquash to Rapid City. Janis testified that those ment in 1972 and had been an active member, testi- three carried Aquash to the car against her will, cry- fied that several members, one of whom had ing; her wrists were bound and she was tied to a already threatened Aquash's life because he suspec- board and unable to walk on her own. They put her ted she was an informant, took Aquash away for in the back end of a hatch-back Pinto and drove to weeks to “watch her.” Nichols said that Aquash Rapid City. After meeting with more American In- was constantly watched, was not allowed to go any- dian Movement members at the Wounded Knee where alone, and was not permitted to go home des- Legal Defense/Offense Committee house in Rapid pite her requests to do so. Mathalene White Bear, City, they drove Aquash to Rosebud. Yellow Wood another former member who provided shelter to said that Looking Cloud stayed with Aquash in the Aquash in 1975, testified that Aquash believed her car while Graham and Clark went into a house. life was in danger as early as September of that There, Aquash begged to be let go and told Looking year. Cloud that the others were inside deciding her fate and were probably going to make him pull the trig- FN5. Darlene Nichols testified that Le- ger. John Trudell, chairman of the American Indian onard Crow Dog and Leonard Peltier Movement from 1973-1979, testified that Looking thought Aquash was an informant, and that Cloud, Graham, and Clark were not decision- Nichols, her daughter, and Dennis Banks, makers for the American Indian Movement, and heard Peltier say he thought Aquash was

that the group did not make but rather received or- C.A.8 (S.D.),2005. ders to kill Aquash before they left the house in U.S. v. Looking Cloud Rosebud. The jury could reasonably infer from 419 F.3d 781, 68 Fed. R. Evid. Serv. 7 Looking Cloud's participation in carrying Aquash out to the car, tied to a board, that he knew they END OF DOCUMENT were going to kill her. In further support of that in- ference was evidence that Aquash also knew in ad- vance that she was going to be killed. Aquash mailed a ring back to White Bear before she died; it was a signal the two friends had previously ar- ranged so White Bear would know something had happened to Aquash.

Trudell testified that Looking Cloud told him that when Graham and Clark returned to the car for the last time, Aquash cried and begged them not to kill her. They drove to an area near Wanblee and parked the car. Yellow Wood testified that Looking Cloud told him that Aquash continued to cry, pray, and beg for her life as they forced her out of the car and marched her up the hill to a cliff. Two Elk testified that Looking Cloud told him he handed a gun to Graham and nodded at him. Aquash knelt to the ground, possibly to pray, and Graham held the gun to the back of her head and pulled the trigger. Af- terwards, the three buried the gun under a bridge nearby.

From the testimony, the jury could reasonably infer that from the time the car left the house in Rosebud, Looking Cloud understood that the plan was to kill Aquash. Although Looking Cloud told others that Graham pulled the trigger, and the government introduced no evidence to the contrary, the jury could at least reasonably believe that Looking Cloud helped force Aquash out of the car and up the hill and that he assisted in the murder by handing the gun to Graham to shoot and kill Aquash. This con- stitutes sufficient evidence to support the jury's finding that Looking Cloud killed or aided and abetted in the killing of Aquash, with malice aforethought, and that the killing was premeditated.

We affirm the district court's judgment of conviction.