Unbelievable news on Marc Wisecarver's appeal!!

Update on Marc Wisecarver - July 1, 2011

Hello Everyone,

Just looked at the website of the 8th Curicuit Court of Appeals and Marc lost his Appeal.

06/30/2011 United States v. Marc Sean Wisecarver View PDF Version

U.S. Court of Appeals Case No: 10-2849

U.S. District Court for the District of South Dakota - Rapid City

[PUBLISHED] [Gruender, Author, with Wollman and Murphy, Circuit Judges]

Criminal case - Criminal law and sentencing. For the court's prior opinion in the case See. No. 09-1954 United States v. Wisecarver (8th Cir., March 22, 2010). Retrial did not violate this court's mandate as nothing in the court's prior opinion limited the district court's function with respect to a retrial; district court's comments at defendant's original sentencing did not require recusal; jury instruction on trespass was not erroneous and, even if it was, it did not prejudice defendant in light of the evidence and the other instructions in the case; district court did not err in imposing an enhancement under Guidelines Sec. 3C1.1 for obstruction of justice based on its finding that defendant perjured himself at trial in order to establish a basis for a self-defense instruction; sentence, an  upward variance, was not unreasonable, and the court did not err in giving greater weight to the nature and circumstances of the offense than it did to defendant's personal characteristics; three special conditions of supervised release are vacated and remanded to the district court for further individualized assessment and particularized findings.

I am in shock at the moment. How can they dismiss it last year, and then keep it this year? I don't understand.

Charmaine (Marc's mother)

Marc Wisecarver Case Summary Timeline - July, 2011

On April 29, 2008, Marc Wisecarver was working on his vehicle at his place in the country on the Pine Ridge Indian Reservation when a pickup truck roared past his house, ignoring 'No Trespass’ signs, went into the lower pasture, and began chasing his horses. Wisecarver ran after the pickup shouting for it to stop. When he couldn't get the driver's attention, he retrieved his rifle from the house and fired it into the air. The driver of the truck finally quit chasing the horses, and turned his vehicle on Wisecarver. After a shouting match, and the driver not producing any form of identification, the driver revved his engine ready to run over Wisecarver who then fired a shot through the radiator. Finally, the driver stopped his vehicle.

The driver, Duke Bourne, from Guyana, South America, works for the Bureau of Indian Affairs (BIA) and stated in court that as a government employee, he can go anywhere he wants. This was in clear violation of BIA regulations that state the landowner, or resident, must be informed when a BIA employee will be entering any property. Marc Wisecarver was both a landowner and resident. Oglala Sioux Tribal Police Officer Paul Forney, who initially investigated the case, was ordered by his supervisors under pressure from the BIA Superintendent Robert Ecoffey, to arrest Wisecarver or lose his job. Wisecarver was taken to the Pine Ridge jail on the charge of Destruction-Depredation of Government Property, as it is not a major crime under the Major Crimes Act and is under the lawful authority of the Oglala Sioux Tribe. He was held overnight and released the next day on Personal Recognizance.

On August 21, 2008, Wisecarver was charged in Federal Court with Assaulting a Federal Official and was released by Federal Magistrate Duffy on Personal Recognizance as he had no prior record, nor does he drink alcohol or use drugs.

On October 17, 2008, the Oglala Sioux Tribal Court dismissed the charge of Destruction-Depredation of Government Property with prejudice. This charge is not a Major Crime and is within the jurisdiction of the Oglala Sioux Tribe.

On December 17, 2008, the US Attorney added the charge of Depredation of Government Property to the already filed, federal charge of Assaulting a Federal Official.

On January 29, 2009, an all white jury in U. S. Federal court in Rapid City acquitted Wisecarver of Assaulting a Federal Official by reason of self-defense. As the jury instructions said they could not use self-defense as a reason for shooting the pickup, the jury asked for clarification three times from Judge Richard H. Battey who told them his instructions were clear and he would find them in Contempt of Court if they did not bring back a decision. Without being able to use the self-defense portion, the jury had to find Wisecarver guilty of Depredation of Government Property. Wisecarver was immediately incarcerated and held until the Sentencing Hearing.

On April 21, 2009, Federal Judge Richard H. Battey sentenced Marc Wisecarver to three years in prison and three years probation, and restitution for damage to the vehicle.

On February 10, 2010, during Oral Arguments, the three judges of the 8th Circuit Court of Appeals in St. Paul, MN, said that Wisecarver would have been cleared of all charges had the jury received proper instructions as the charge was moot when the Assault charge was acquitted.

On March 22, 2010, the 8th Circuit Court of Appeals’ written opinion stated: “Accordingly, the judgment of the district court is reversed. The case is remanded to the district court with directions to vacate it’s judgment of conviction on the depredation count and its sentence.” However, Judge Richard H. Battey immediately ordered the Federal Marshals to hold Wisecarver at the Texas prison where he was confined until the first of May, rather than setting him free immediately. He was held without charges from March 22 until May 4, 2010.

On May 4, 2010, Judge Battey held a Detention Hearing in Rapid City and kept Wisecarver in the Pennington County Jail until another hearing on the same charge.

On May 18 & 19, 2010, another Hearing was held a second time on the charge of Depredation of Government Property which is lawfully and clearly under the jurisdiction of the Oglala Sioux Tribe. Again, faulty jury instructions were given, Wisecarver was prohibited by the Judge from speaking of the first trial, and without all the information given to the jury, Wisecarver was convicted a second time on the same charge.

On August 10, 2010, Judge Battey held a second Sentencing Hearing and Wisecarver received the same sentence: three years in prison, three years probation, and restitution for the vehicle. He was returned to the federal prison in Texas never once released since January 29, 2009.

On March 17, 2011, the 8th Circuit Court of Appeals three judge panel in St. Paul, MN, heard Oral Arguments in USA vs. Marc S. Wisecarver… again.

On June 30, 2011, the 8th Circuit Court of Appeals in St. Paul MN, upheld the second conviction which was against their own decision of March 22, 2010, and again violated the sovereignty and jurisdiction of the Oglala Sioux Tribe.

As of July, 2011, Marc Wisecarver is still in custody of the Bureau of Prisons at a Minimum Security facility in Rapid City, SD. He will be in custody until Sept. 8, 2011, which finishes the three year prison term. After Sept. 8th, Marc Wisecarver begins the three year probation term with a felony record.

While Marc Wisecarver was the victim, the true perpetrator has never been charged. Marc asks, “How many boundaries must be violated before action to protect and defend are justified?”

For more detailed information contact Charmaine White Face at cwhiteface@gmail.com To sign a petition, or for more information on the Internet go to: Lakota Aid Foundation www.lakota-aid.co.uk