### The Honorable Richard H. Battey, United S tates District Judge 1 

### for the District of South Dakota. ___________ No. 95-3868

___________ United States of America, * * Plaintiff - Appellee, * A ppeal from the United State s * District Court for the v. * District of South Dakota. * Gabe Aaron Dreamer, * * Defendant - Appellant. *

___________ Submitted: March 12, 1996 Filed: July 9, 1996

___________ Before FAGG, JOHN R. GIBSON, and WOLLMAN, Circuit Judges.

___________ JOHN R. GIBSON, Circuit Judge.
Gabe Aar on Dreamer appeals from his conviction for setting fire t o a house in violation of 18 U.S.C. §§ 81, 1153 (1 994). Dreamer argues that the government violat ed Brady v. Maryland , 373 U.S. 83 (1963), in failing to di sclose testimony of Shelli Poor Bear and that the district court 1 erred i n questioning another witness, Lisa Flying Hawk. Dreamer als o argues tha t the district court erred in giving an aiding and abettin g instruction and in refusing a proposed circumstantial evidence instruction
. We affirm Dreamer's conviction.

### -2- On July 14, 1994, Dreamer and others were having a party at th e weekend home of Al Dreamer, Sr., Dreamer's fathe r, just outside of Oglala, Sou thDakota. When Al, Sr. arrived at the house and found a party h e called the police. D reamer argued with his father because Dreamer wanted to continue the party, while his father wanted everyone to leave his house
. Aft er this argument the police and Al, Sr. left while Dreamer and th e others stayed at the house. Later that night a fire destroyed the house.
The United States government charged Dreamer with setting the fir e at his father's house. After a trial, Dreamer w as found guilty of setting the fire, and he appeals from that conviction.

I.
Dreamer argues that the government's failure to disclose that Shelli Poor Bear would testi fy that he set the fire denied him due process under Brady v. Maryland , 373 U.S. 83 (1963).
Sh ortlyafter the fire Poor Bear told a police investigator tha t while she was at Al, Sr.'s house briefly the night of the fire, she left before th e fire started. The government gave a copy of Poor Bear' s statement to Dreamer's attorney before trial.

Somet ime before Dreamer's trial Poor Bear left the state of Sout h Dakota. Just two days before Dreamer's trial, the government managed to find Poor Bear. Poor Bear told the government t hat the statement she gave to the police investigator was not true and that she saw Dreamer set the hou se on fire. The day before Dreamer's trial the government tol d Dreamer's attorney and the district court that Poor Bear would testif y about the fire which destroyed the house. During the first day of Dreamer's tr ial, the government disclosed to Dreamer's attorney that Poor Bear would not only

### This mid-trial disclosure was all the more surprising t o 2 

### Dreamer's attorney because les s than twenty-four hours earlier, in the presence of Dreamer's attorney, the district court asked th e go vernment's attorney, "Are there any statements that th e government has that have not been produced?" The government' s attorneyanswered, "Not to my knowledge, Your Honor. I hav e produced everything that I have in the file." There was also some confusion over identifying Poor Bear. A week before Dreamer's trial another woman, Lisa Flying Hawk, saying she was Poor Bear, gave a statement to Dreamer's attorney and his investigator. -3- testify about the fire but she would also contra dict her earlier statement that sh e was not present when the fire started and testify that she sa w Dreamer start the fire. Dreamer's attorney expressed to the district cour t his concern that the government's late disclosure of Poor Bear's ne w statem ent was a total surprise first disclosed midway through Dreamer' s trial
. The court ordered the government to make Poor Bear its las t

2 witness to give Dreamer's attorney time to recover from any surprise cause d bythe government's recent disclosure of her new testimony. Dreamer' s attorney asked the co urt for a continuance to prepare for Poor Bear's new testimony. The court denied this request, leading Dreamer's attorney to move for a mistrial based on the government's late disclosure of Poo r Bear's ne w testimony. The court denied this motion as well and allowe d Poor Bear to testify.
Under the Due Process Clause of the Fifth Amendment, the government has a duty to disclose evidence which is favorab le to Dreamer and material to the issue of his guilt. Brady v. Maryland , 3 73 U.S. 83, 87 (1963). To prove a violation of this duty, Dreamer must sho w that: (1) the government suppressed evidence; (2) the evidence was favorable to him; and (3) th e evidence was material to the issue of his guilt. United States v. Thomas , 940 F.2d 391, 392 (8th Cir. 1991). We reject Dreamer's argument that the government violated its

### -4-

duty to disclose. Po or Bear's later statement that she saw Dreamer start the fire was not favo rable to Dreamer, but was highly incriminating. The only statement made by Poor Bear which was at al l favorable to Dreamer was her fir st statement that she was not present at Al, Sr.'s house when i t caught fire. Dreamer admits that the government gave this statement t o him
. The government did not violate its duty to disclose, because i t properly disclosed Po or Bear's earlier favorable statement, see Giglio v. United States , 405 U.S. 150, 154 (1972), and it had no duty to disclos e Poor Bear's later incriminating statement, Thomas , 940 F.2d at 392.

II.

Dreamer argues that the district court erred in giving the jury a n aiding and abetting instruction because there wa s insufficient evidence to support the instruction. Dreamer asserts that we must assume that thi s error was prejudicial because there is no way to determine from the genera l verdict form whether the jury followed or ignored the improper aiding and abetting instruction.
When the district court submits to the jury two or more grounds for conviction, for one of which there was insufficient evidence, and it i s impossible to tell on what grounds the jury deci ded the defendant's guilt, we cannot reverse the jury's general verdict of guilty. Griffin v. United State s , 502 U.S. 46, 56-60 (1991) (citing and quoting Turner v. Unite d States , 396 U.S. 398, 420 (1970)). As long as there is sufficient evidenc e to support at least o ne of the grounds for conviction, we must affirm the jury's general verdict. Id. Even assuming Dreamer is correct that there was insufficient ev idence to sup port the district court's aiding and abetting instruction, th e district court also instructed the jury that they could find Dreamer guilt y if they found that he set the fire at his

### -5-

father's house. There was sufficient evidence to support this instruction , as Poor Bear testifie d that she saw Dreamer enter his father's house with a can of gasoline and set the house on fire. There was sufficient evidenc e to support one of the grounds for conviction submitted to the jury and to support the general verdict of guilty. Griffin , 502 U.S. at 56-60. W e reject Dreamer's argument.

III.

Dreamer argues that the district court erred by rejecting hi s propose d jury instruction on how to consider circumstantial evidence
. Without his proposed instruction, Dreamer conten ds that the jury's verdict may be based on speculation or conjecture.
The d istrict court has wide discretion in formulating appropriat e jury instructions. United States v. McQuarry , 7 26 F.2d 401, 402 (8th Cir. 1984) (pe r curiam). We review the adequacy of the jury instructions b y considering them as a whole. Id.
The district court did not abuse its discretion in rejectin g Dreame r's proposed instruction on circumstantial evidence. Othe r instructions given by the district court removedany threat of speculation or conjecture by the jury. The district court instructed the jury that th e government had the burden of proving Dreamer was guilty beyond a reasonabl e doubt. The district court defined the governmen t's burden of proof beyond a r easonable doubt as "proof of such a convincing character that a rea sonable person would not hesitate to rely and act upon it." Afte r giv ing these instructions, the district court was not obligated to giv e Dreamer's proposed instruction.

IV. Dreamer argues that the district judge improperly questioned

### -6-

a witness, Lisa Flying Hawk, in front of the jury.
At trial Flying Hawk first testified that she could not remember if she saw Dreamer standing outside Al, Sr.'s house shortly after it caught fire. Fl ying Hawk then admitted that she testified at a previous gran d jury hearing that she saw Dreamer standing outsi de the house shortly after it caught fire. Late r, Flying Hawk testified that she did not see anyone standing outside the house shortly after it caug ht fire. Flying Hawk also stated that she "kind of made up a story" when she testified under oat h before the grand jury.
Shortlyafter Flying Hawk's comment that she "kind of made up a story," Dreamer's att orney asked the district judge to advise Flying Hawk that she might be committing the crime of perjury. The district judg e advi sed Flying Hawk about the crime of perjury and the penalties fo r com mitting perjury. After the judge advised Flying Hawk, the followin g exchange took place between the judge and Flying Hawk: FLYING HAWK: My first statement was true. THE COURT: Which first statement. FLYING HAWK: The one I gave to Lyle Brings Him Back. THE COURT: The one you gave to Lyle Brings Him Back. FLYING HAWK: That was the very first statement. THE COURT: So the statement you gave before the gr and jury was false. FLYING HAWK: They were true. THE COURT: Very well. Anything further?

Dreamer now objects to this exchange, arguing that the district judg e became an advocate for the government.

### -7- A dist rict judge may ask questions to clarify the testimony of a witne ss in order to avoid any misunderstanding of the testimony by th e jury. See United States v. Cooper , 596 F.2d 327, 330 (8th Cir. 1979). Th e district judge's questions, however, may not become so one-sided against the defendant as to deprive him of a fair trial. United States v. Va n Dyke , 14 F.3d 415, 417-18 (8th Cir. 1994).
The district judge's questions were an attempt to clarify th e con fusing and contradictory testimony of Flying Hawk. The judge simpl y attempted to determine which of Flying Hawk's co ntradictory statements was the truth. When Flying Hawk refused to say which one was the truth, the judge stopped questioning her. The judge's questions were not one-sided and did not deprive D reamer of a fair trial. We reject the argument that there was error in this exchange. We affirm the conviction and judgment.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.