The Honorable Richard H. Battey, United States District Judge 1

for the District of South Dakota.

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No. 95-3868

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United States of America, *

*

 Plaintiff - Appellee, * Appeal from the United States

* District Court for the

v. * District of South Dakota.

*

Gabe Aaron Dreamer, *

*

 Defendant - Appellant. *

 

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 Submitted: March 12, 1996

 Filed: July 9, 1996

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

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JOHN R. GIBSON, Circuit Judge.

Gabe Aaron Dreamer appeals from his conviction for setting fire to

a house in violation of 18 U.S.C. §§ 81, 1153 (1994). Dreamer argues that

the government violated Brady v. Maryland, 373 U.S. 83 (1963), in failing

to disclose testimony of Shelli Poor Bear and that the district court1

erred in questioning another witness, Lisa Flying Hawk. Dreamer also

argues that the district court erred in giving an aiding and abetting

instruction and in refusing a proposed circumstantial evidence instruction.

We affirm Dreamer's conviction.
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On July 14, 1994, Dreamer and others were having a party at the

weekend home of Al Dreamer, Sr., Dreamer's father, just outside of Oglala,

South Dakota. When Al, Sr. arrived at the house and found a party he

called the police. Dreamer argued with his father because Dreamer wanted

to continue the party, while his father wanted everyone to leave his house.

After this argument the police and Al, Sr. left while Dreamer and the

others stayed at the house. Later that night a fire destroyed the house.

The United States government charged Dreamer with setting the fire

at his father's house. After a trial, Dreamer was 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 testify that he set the fire denied him due process under

Brady v. Maryland, 373 U.S. 83 (1963).

Shortly after the fire Poor Bear told a police investigator that

while she was at Al, Sr.'s house briefly the night of the fire, she left

before the fire started. The government gave a copy of Poor Bear's

statement to Dreamer's attorney before trial.

Sometime before Dreamer's trial Poor Bear left the state of South

Dakota. Just two days before Dreamer's trial, the government managed to

find Poor Bear. Poor Bear told the government that the statement she gave

to the police investigator was not true and that she saw Dreamer set the

house on fire. The day before Dreamer's trial the government told

Dreamer's attorney and the district court that Poor Bear would testify

about the fire which destroyed the house.

During the first day of Dreamer's trial, the government disclosed to

Dreamer's attorney that Poor Bear would not only
 This mid-trial disclosure was all the more surprising to

2

Dreamer's attorney because less than twenty-four hours earlier, in

the presence of Dreamer's attorney, the district court asked the

government's attorney, "Are there any statements that the

government has that have not been produced?" The government's

attorney answered, "Not to my knowledge, Your Honor. I have

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. 

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testify about the fire but she would also contradict her earlier statement

that she was not present when the fire started and testify that she saw

Dreamer start the fire. Dreamer's attorney expressed to the district court

his concern that the government's late disclosure of Poor Bear's new

statement was a total surprise first disclosed midway through Dreamer's

trial. The court ordered the government to make Poor Bear its last

2

witness to give Dreamer's attorney time to recover from any surprise caused

by the government's recent disclosure of her new testimony. Dreamer's

attorney asked the court 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 Poor

Bear's new testimony. The court denied this motion as well and allowed

Poor Bear to testify.

Under the Due Process Clause of the Fifth Amendment, the government

has a duty to disclose evidence which is favorable to Dreamer and material

to the issue of his guilt. Brady v. Maryland, 373 U.S. 83, 87 (1963). To

prove a violation of this duty, Dreamer must show that: (1) the government

suppressed evidence; (2) the evidence was favorable to him; and (3) the

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
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duty to disclose. Poor Bear's later statement that she saw Dreamer start

the fire was not favorable to Dreamer, but was highly incriminating. The

only statement made by Poor Bear which was at all favorable to Dreamer was

her first statement that she was not present at Al, Sr.'s house when it

caught fire. Dreamer admits that the government gave this statement to

him. The government did not violate its duty to disclose, because it

properly disclosed Poor Bear's earlier favorable statement, see Giglio v.

United States, 405 U.S. 150, 154 (1972), and it had no duty to disclose

Poor Bear's later incriminating statement, Thomas, 940 F.2d at 392.

II.

Dreamer argues that the district court erred in giving the jury an

aiding and abetting instruction because there was insufficient evidence to

support the instruction. Dreamer asserts that we must assume that this

error was prejudicial because there is no way to determine from the general

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 is

impossible to tell on what grounds the jury decided the defendant's guilt,

we cannot reverse the jury's general verdict of guilty. Griffin v. United

States, 502 U.S. 46, 56-60 (1991) (citing and quoting Turner v. United

States, 396 U.S. 398, 420 (1970)). As long as there is sufficient evidence

to support at least one of the grounds for conviction, we must affirm the

jury's general verdict. Id.

Even assuming Dreamer is correct that there was insufficient evidence

to support the district court's aiding and abetting instruction, the

district court also instructed the jury that they could find Dreamer guilty

if they found that he set the fire at his
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father's house. There was sufficient evidence to support this instruction,

as Poor Bear testified that she saw Dreamer enter his father's house with

a can of gasoline and set the house on fire. There was sufficient evidence

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. We

reject Dreamer's argument.

III.

Dreamer argues that the district court erred by rejecting his

proposed jury instruction on how to consider circumstantial evidence.

Without his proposed instruction, Dreamer contends that the jury's verdict

may be based on speculation or conjecture.

The district court has wide discretion in formulating appropriate

jury instructions. United States v. McQuarry, 726 F.2d 401, 402 (8th Cir.

1984) (per curiam). We review the adequacy of the jury instructions by

considering them as a whole. Id.

The district court did not abuse its discretion in rejecting

Dreamer's proposed instruction on circumstantial evidence. Other

instructions given by the district court removed any threat of speculation

or conjecture by the jury. The district court instructed the jury that the

government had the burden of proving Dreamer was guilty beyond a reasonable

doubt. The district court defined the government's burden of proof beyond

a reasonable doubt as "proof of such a convincing character that a

reasonable person would not hesitate to rely and act upon it." After

giving these instructions, the district court was not obligated to give

Dreamer's proposed instruction.

IV.

Dreamer argues that the district judge improperly questioned
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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. Flying Hawk then admitted that she testified at a previous grand

jury hearing that she saw Dreamer standing outside the house shortly after

it caught fire. Later, Flying Hawk testified that she did not see anyone

standing outside the house shortly after it caught fire. Flying Hawk also

stated that she "kind of made up a story" when she testified under oath

before the grand jury.

Shortly after Flying Hawk's comment that she "kind of made up a

story," Dreamer's attorney asked the district judge to advise Flying Hawk

that she might be committing the crime of perjury. The district judge

advised Flying Hawk about the crime of perjury and the penalties for

committing perjury. After the judge advised Flying Hawk, the following

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 grand jury was

false.

FLYING HAWK: They were true.

THE COURT: Very well. Anything further?

Dreamer now objects to this exchange, arguing that the district judge

became an advocate for the government.
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A district judge may ask questions to clarify the testimony of a

witness in order to avoid any misunderstanding of the testimony by the

jury. See United States v. Cooper, 596 F.2d 327, 330 (8th Cir. 1979). The

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. Van

Dyke, 14 F.3d 415, 417-18 (8th Cir. 1994).

The district judge's questions were an attempt to clarify the

confusing and contradictory testimony of Flying Hawk. The judge simply

attempted to determine which of Flying Hawk's contradictory 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 Dreamer 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.