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 © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. FOR EDUCATIONAL USE ONLY Page 2 419 F.3d 781, 68 Fed. R. Evid. Serv. 7 (Cite as: 419 F.3d 781) 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- © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. FOR EDUCATIONAL USE ONLY Page 3 419 F.3d 781, 68 Fed. R. Evid. Serv. 7 (Cite as: 419 F.3d 781) 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 © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. FOR EDUCATIONAL USE ONLY Page 4 419 F.3d 781, 68 Fed. R. Evid. Serv. 7 (Cite as: 419 F.3d 781) 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.