United States v. Nickolas Conrad

1 18 U.S.C. §§ 1153 and 113(a)(6).
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-1487
___________
United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the District
* of South Dakota.
*
Duane Two Eagle, *
*
Defendant-Appellant. *
___________
Submitted: October 8, 2002
Filed: February 4, 2003
___________
Before MURPHY, JOHN R. GIBSON, and SMITH, Circuit Judges.
___________
SMITH, Circuit Judge.
A jury convicted Duane Two Eagle on three counts of assault resulting in
serious bodily injury1 and one count of using, carrying, and discharging a firearm
during a crime of violence, including aiding and abetting another in the commission

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2 18 U.S.C. § 924(c).
3 The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
2
of that crime2 . Two Eagle challenges several evidentiary matters and the sufficiency
of the evidence in his appeal from the District Court's 3 order. We affirm.
Background
The charges against Two Eagle stem from a violent conflict between feuding
family groups. On the night of June 2, 2001, Two Eagle, his sister Christine "Cleo"
Two Eagle, and his niece Jacqueline "Jackie" Clairmont were involved in a melee
outside of Cleo's residence. That evening, Two Eagle visited Cleo’s house and, upon
arriving, observed a fight involving Two Eagle's nephew in a nearby field. In the
field, he could see a crowd of people consisting mainly of members of the Young and
Whipple families, who were residents of the same community. Soon thereafter, ten
to twelve of these people followed Two Eagle's nephew to Cleo’s house and began
throwing items through windows and pounding on doors. Included in the crowd were
Richard Young, Michael Young, Craig Two Elk, and Jerome Whipple. The crowd
yelled to the people in the house to step outside to fight. The testimony indicates that
every person in the crowd had a weapon such as a stick, board, or metal pipe;
however, none had firearms.
As events unfolded, Two Eagle acquired a gun. Two Eagle’s testimony
contradicts Jackie’s on exactly how he acquired it. According to Two Eagle, Jackie
left Cleo's house while the crowd remained in the field and returned as the crowd
began to approach the house. Two Eagle testified that Jackie obtained his gun and
placed it in her car. Upon her return, Two Eagle took his rifle from Jackie’s car,
loaded it, and fired two warning shots into the air. Jackie, however, testified that she
and Two Eagle left the house together prior to the fight to retrieve the gun, and then

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4 Jackie, who was also charged with a crime for this altercation and for her
involvement in obtaining the gun, pleaded guilty in exchange for her testimony
against Two Eagle.
5 Two Eagle suffers from various medical conditions, including bone disease
related to arthritis and other chronic illnesses, and adrenal disease for which he took
dialysis.
3
returned to use it.4 She also testified that, after the altercation, Two Eagle's nephews
took the gun and hid it.
Apparently, Two Eagle’s first shot caused the Young/Whipple crowd to back
away. But, after the initial startle, they resumed their advance toward Cleo’s house.
Two Eagle testified that Richard Young came within ten to fifteen feet of him and
seemed ready to hit him with a stick. In response, Two Eagle held the rifle at hip level
and fired, shooting Richard in the abdomen. Two Eagle testified that he then turned
and saw Michael Young, who was approaching him while swinging a metal bar. Two
Eagle fired the gun three times in Michael’s direction, hitting him once in the ear.
Two Eagle also shot toward Whipple and Two Elk, hitting both men in the leg. Two
Eagle testified that he could not flee from the scene either before or after the fight
because of his physical limitations. 5
After the altercation, Two Eagle left Cleo’s for his brother's house. Two
Eagle’s nephews took the rifle from the scene. According to witness Vina White
Lance, Two Eagle told her the next day that he shot the victims in retaliation because
Richard Young beat Two Eagle’s nephew. Jackie also testified that Two Eagle
acknowledged that he had shot several people.
The individuals Two Eagle shot required significant medical treatment. The
gunshot to Whipple’s leg fractured the femur at approximately mid-thigh. He
underwent surgery to have a steel rod and pins implanted to stabilize the bone, and

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4
he required crutches for two months. At trial, Whipple complained of leg pain during
recovery and testified that he could not run because of it. Two Elk, who was also shot
in the leg, suffered a nondisplaced spiral fracture of the tibia. He required a full-leg
cast. At trial, he testified that the injury was painful and still hurt when he runs. He
also noted that he was in the cast for two months and required crutches for a third
month. The gunshot to Michael Young’s ear nearly split it in half. The wound bled
considerably and required a special suturing technique. The suturing procedure was
successful. However, the treating physician testified over the defense’s objection that
had the ear not been repaired immediately, it would have been noticeably disfigured
for life. The doctor also testified over objection that such a wound would probably
be “significantly painful.” Michael Young confirmed that he had a scar, that he had
a little more difficulty hearing out of the wounded ear, and that the ear continued to
be painful in cold weather.
The government filed a nine-count indictment on June 21, 2001. Counts one
through four charged Two Eagle with assault with a dangerous weapon with intent
to do bodily harm against Whipple, Richard Young, Two Elk, and Michael Young.
Counts five through eight charged Two Eagle with assault resulting in serious bodily
injury of the same four victims. Count nine charged Two Eagle with carrying and
discharging a firearm in relation to a crime of violence and aiding and abetting such
conduct when he helped to procure the rifle.
Trial began on November 8, 2001. Two Eagle asserted the defense of self-
defense. The jury convicted Two Eagle on three of the four counts of assault resulting
in serious bodily injury. The jury also convicted him of one of the four counts of
using or carrying a firearm during a crime of violence, and also of the charge of
aiding and abetting such conduct. The jury acquitted Two Eagle of the charges related
to Richard Young. Two Eagle was sentenced to twenty-seven-months of
imprisonment on the assault charges and 120-months of imprisonment on the firearm

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5
charge with three years supervised release. Two Eagle timely filed his notice of
appeal on February 11, 2002.
I.
Sufficiency of the Evidence
In his first point on appeal, Two Eagle makes a two-part argument attacking
the sufficiency of the evidence used to convict him. First, he argues that the evidence
was insufficient to support a conclusion that he was not acting in self defense.
Second, he argues that the evidence was insufficient to prove that the victims suffered
serious bodily injury.
The standard of review of an appeal concerning sufficiency of the evidence is
very strict, and the verdict of the jury should not be overturned lightly. United States
v. Crossland, 301 F.3d 907, 913 (8th Cir. 2002); United States v. Burks, 934 F.2d
148, 151 (8th Cir.1991). In reviewing the sufficiency of the evidence on appeal, the
court views the evidence in the light most favorable to the government, resolving
evidentiary conflicts in favor of the government, and accepting all reasonable
inferences drawn from the evidence that support the jury's verdict. United States v.
Erdman, 953 F.2d 387, 389 (8th Cir.1992). We will reverse only if no reasonable jury
could have found the accused guilty beyond a reasonable doubt. United States v.
Harmon, 194 F.3d 890, 892 (8th Cir. 1999).
A.
Evidence Regarding Self Defense
Two Eagle first argues that the government's evidence was insufficient to prove
that he was not acting in self defense. Two Eagle asserts that because of the attack on
his nephew and because the attackers broke windows out of Cleo’s home, he had a
reasonable belief that the attackers would seriously injure him and his family. Two
Eagle notes that several people testified about the Young/Whipple group’s reputation
for violence. He also notes that, although the testimony varied about whether Two

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6 As noted, Two Eagle was acquitted of the four charges of assault with a
dangerous weapon. That section of the statute includes:
(a) Whoever, within the special maritime and territorial
jurisdiction of the United States, is guilty of an assault shall be punished
6
Eagle retrieved the gun himself and about how far away the victims were to Two
Eagle when they were shot, it is undisputed that the mob was attacking and taunting
Two Eagle’s family.
Second, Two Eagle argues that an inconsistency in the jury’s verdicts justifies
reversal. He contends that because the jury acquitted him on the charges related to
Richard Young’s injuries and the charges for assault with a dangerous weapon, the
jury’s findings of guilt as to assault resulting in serious bodily injury are inconsistent
and cannot be maintained.
The government responds that the verdicts show no inconsistency, and instead
demonstrate that the jury understood the District Court’s instructions. Particularly, the
government urges that the verdicts show that the jury distinguished between the
danger posed by Richard Young with the danger posed by the other victims. It notes
that Young’s proximity relative to the others could have made him a significantly
greater threat. Furthermore, the government asserts that Two Eagle's acquittal on the
assault with a deadly weapon charges can be viewed as consistent with the jury’s
determination that Two Eagle did not intend to do bodily harm to any of the victims
when he fired.
The government noted that the crime of assault resulting in serious bodily
injury does not require proof of specific intent as does the crime of assault with a
dangerous weapon, and the court so instructed the jury. The assault charges filed
against Two Eagle under 18 U.S.C. § 113 vary only as to the intent of the
perpetrator.6 18 U.S.C. § 113(a)(3) requires specific “intent to do bodily harm."

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as follows:
***
(3) Assault with a dangerous weapon, with intent to do
bodily harm, and without just cause or excuse, by a fine
under this title or imprisonment for not more than ten
years, or both.
18 U.S.C. § 113(a)(3). Pursuant to this section of the statute, the jury was left to
determine whether Two Eagle assaulted the victims with a dangerous weapon with
the intent to do bodily harm and without just cause or excuse.
7 As noted in 18 U.S.C. § 113(b)(2), the definition for “serious bodily injury”
is found in 18 U.S.C. § 1365(g)(3), which provides:
(3) the term “serious bodily injury” means bodily injury which involves
7
However, § 113(a)(6) requires only the generalized intent that the assault result in
serious bodily injury. United States v. Davis, 237 F.3d 942, 944 (8th Cir. 2001)
(citing United States v. Big Crow, 728 F.2d 974, 975 n. 1 (8th Cir. 1984)).
The jury acquitted Two Eagle on the charges of assault with a dangerous
weapon which required findings that he intended to harm the victim without just
cause or excuse. The jury also acquitted Two Eagle on the assault charge for shooting
Richard Young, the attacker who was closest to Two Eagle and posed the greatest
threat, while at the same time returning guilty verdicts for the assaults on the three
other victims. The jury clearly understood the distinction in the statutes, and we hold
sufficient evidence supported their verdict.
B.
Evidence of Serious Bodily Injury
In his second sufficiency point, Two Eagle argues that the government’s
evidence was insufficient to prove that the victims suffered serious bodily injury as
defined in 18 U.S.C. § 1365(g)(3). 7 Whether an injury is serious presents a question

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–
(A) a substantial risk of death;
(B) extreme physical pain;
(C) protracted and obvious disfigurement; or
(D) protracted loss or impairment of the function of a bodily member,
organ, or mental faculty;....
8 See also United States v. Johnson, 637 F.2d 1224 (9th Cir.1980). The court
stated that in deciding whether there was serious bodily injury, the jury should
consider "whether the victim suffered extreme physical pain, protracted and obvious
disfigurement, protracted loss or impairment of the function of a bodily member,
organ, or mental faculty, protracted unconsciousness, and significant or substantial
internal damage (such as broken bones)." Id. at 1246; see also United States v.
Cavanaugh, 948 F.2d 405, 410 (8th Cir. 1991).
8
of fact for the jury. United States v. Demery, 980 F.2d 1187, 1189-1190 (8th Cir.
1992).
Under our precedents, the injuries the gunshots inflicted meet the standard of
serious bodily injury. "Serious bodily injury" means something more than slight
bodily injury, but not necessarily life threatening injury. It does not require a high
probability of death. See United States v. Moore, 846 F.2d 1163, 1166 (8th Cir.
1988).8 Rather, it is a bodily injury of a grave and serious nature. Id. In assessing
whether the injury meets the definition of "serious bodily injury," the jury is to apply
their common understanding of that term. Id. In Demery, the victim’s little finger was
nearly severed from his hand, and he suffered permanent impairment of movement
and sensation in that finger. The court determined that the injury qualified as a serious
bodily injury.
In this case, Two Eagle shot Michael Young, Whipple, and Two Elk with a
rifle, causing scarring at the entry and exit wounds. Each victim testified that the

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9 Federal Rule of Evidence 704(a) provides:
Except as provided in subsection (b), testimony in the form of an
opinion or reference otherwise admissible is not objectionable because
it embraces an ultimate issue to be decided by the trier of fact.
9
gunshot wounds produced severe pain. Furthermore, Whipple and Two Elk sustained
broken legs, caused by the gunshots, and were required to undergo surgery or months
of wearing casts and walking on crutches. They testified that they still have difficulty
running or are unable to run. Michael Young suffered a permanent scar on his ear. He
also testified that he suffered pain, significant blood loss, and some hearing loss.
Young’s doctor testified that such an injury would probably be seriously painful. Two
Eagle presented contrary evidence attempting to show that these injuries were not
serious, protracted, or painful. The jury weighed the competing testimony about the
seriousness of the injuries and resolved the conflict against Two Eagle. Such
determinations are proper for the jury to make. See United States v. Drapeau, 110
F.3d 618, 619-620 (8th Cir. 1997). This evidence is sufficient to sustain the jury's
conclusion that these victims suffered “serious bodily injury” in accordance with the
statutory definition.
II.
Expert Testimony on the Definition of Serious Bodily Injury
In his second point, Two Eagle argues that the trial court abused its discretion
by denying his motion in limine to prohibit the victims' doctors from testifying about
the statutory elements of “serious bodily injury.” Particularly, during trial, the
government asked a treating physician whether Michael Young’s ear could have been
disfigured and whether that injury could cause extreme physical pain. The physician
answered both questions in the affirmative. Two Eagle argues that these questions
and this testimony invade the province of the jury, and that the opinion sought was
not a medical opinion but a legal opinion in violation of Federal Rule of Evidence
704.9

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Admission or exclusion of expert testimony is a matter within the sound
judicial discretion of the trial court, and the trial court's decision should not be
reversed unless found to be "manifestly erroneous." United States v. Kelly, 679 F.2d
135, 136 (8th Cir. 1982). This court has repeatedly held that "an expert, as
distinguished from a lay witness, may express his opinion on the ultimate jury
question." Hanger v. United States, 398 F.2d 91, 106 (8th Cir. 1968); Feguer v.
United States, 302 F.2d 214, 242 (8th Cir. 1962).
Furthermore, testimony is not defective merely because it utilized the words of
the legal standard. Commonly used words and their plain meaning often match their
legal meaning. See, e.g., Johnson, 637 F.2d at 1246-47; United States v. Hearst, 563
F.2d 1331, 1351 (9th Cir. 1977). The term "serious bodily injury” as defined in the
statute contains words that have overlapping legally and medically descriptive
meanings. See 18 U.S.C. § 1365(g)(3).
In this case, the doctor testified that if Michael Young had not been treated
immediately, then his ear would have been disfigured permanently. The doctor also
stated that the wound was painful. There is no question that these two statements
include language found in the definition of "serious bodily injury" and that the
government’s attorney specifically used these terms when asking the questions. While
the federal prosecutor should not have asked the question using the specific language
of the statute, see United States v. Gipson, 862 F.2d 714, 716 (8th Cir. 1988), the
doctor’s answer did not also contain that specific language. Rather, the doctor’s
answer to both inquiries turned on the medical aspect of disfigurement and pain, two
matters he, as an expert, is trained to recognize. To exclude such testimony would be
to render a medical expert’s testimony generally inadmissible if the medical expert
used common descriptive terms that also appear in the statute. Medical and legal
terms often overlap, and a medical expert cannot be expected to use different words

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merely to avoid this specific problem. As such, the District Court did not abuse its
discretion in admitting this evidence under these circumstances.
III.
Motion to Dismiss the Indictment
In his third point on appeal, Two Eagle argues that the District Court erred in
denying his motion to dismiss the indictment because of grand-juror misconduct.
Specifically, Two Eagle argues that one of the grand jurors commented that “the Two
Eagles have a little bit of short fuse.” This grand juror also recounted an episode
involving a “Michael Two Eagle” who had been in trouble “for shooting somebody,
too.” According to the grand juror, who was a teacher, Michael Two Eagle threatened
her because she would not give him a colored marker in class. Two Eagle argues that
although the prosecutor gave a cautionary instruction, which stated that the grand jury
should not consider this information, the apparent bias of the juror and the tainting
of the rest of the jury violated Two Eagle’s due process rights.
Dismissal of an indictment based on grand-jury bias is an extreme remedy, and
the party seeking relief carries a heavy burden. United States v. Civella, 648 F.2d
1167, 1173 (8th Cir. 1981). A grand-jury indictment will only be dismissed upon a
showing of actual prejudice to the accused. United States v. McKenzie, 678 F.2d 629,
631 (5th Cir. 1982); United States v. Carr, 764 F.2d 496, 498 (8th Cir. 1985). The
court reviews de novo a district court’s order denying a motion to dismiss an
indictment. United States v. Kriens, 270 F.3d 597, 602 (8th Cir. 2001).
In United States v. Brimberry, 779 F.2d 1339 (8th Cir. 1985), we discussed the
issue of prejudice in the grand-jury indictment process. In Brimberry, the defendant
committed perjury before a grand jury. The same jury was then empaneled to consider
new charges against the defendant. On appeal, Brimberry contended that he was

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denied his Fifth Amendment right to be indicted by an unbiased jury. See also
Costello v. United States, 350 U.S. 359, 363 & n. 7 (1956). He contended that the
entire grand jury was biased against him because his perjury had impeded the
investigation. In addition, he asserted that the grand-jury members witnessed his
perjury and, as such, were unable to fulfill their function as an intermediary between
the accuser and the accused. See also Wood v. Georgia, 370 U.S. 375, 390 (1962). In
explaining our rejection of Brimberry's argument, we stated:
"No sound reason is advanced ... for departing in this case from the
settled practice of permitting the same grand jury which heard the
witness to file an indictment charging him with perjury." See also
United States v. Morales, 566 F.2d 402, 405 (2d Cir.1977) (upholding
indictment for criminal contempt returned by the same grand jury before
which the defendant had refused to testify). We find the same to be true
here. It cannot be assumed that grand jurors will violate their oath "to
indict no one because of prejudice," United States v. Costello, supra,
350 U.S. at 362, solely because an individual has lied to them on a
matter material to the grand jury's investigation. In addition, there is no
proscription against grand jurors "act[ing] on their own knowledge," id.,
in returning an indictment.
Brimberry, 779 F.2d at 1351 (citing United States v. Camporeale, 515 F.2d 184, 189
(2d Cir. 1975)). This reasoning applies equally here because there is only an
allegation of bias or prejudice without any specific showing that either exists.
Furthermore, the fact that the prosecutor admonished the jurors to refrain from
considering the grand juror’s improper comment adequately cured any possible bias
or prejudice in this case. Thus, Two Eagle did not show grand jury bias or prejudice
by one panel member’s statements.

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IV.
Proffered Defense Evidence
In his final argument, Two Eagle asserts that the District Court abused its
discretion when it excluded proffered defense evidence. Two Eagle sought to
introduce evidence that prior to this shooting incident, Rondell Whipple, a known
associate of the Youngs and Jerome Whipple, had broken Cleo’s windows. The
excluded evidence also would have shown that Richard Young also was present
during the earlier incident. Two Eagle argues that the evidence would have shown
that he, Cleo, and the other family members feared for their safety during the episode
on June 2, 2001, and that Two Eagle acted in self defense against known aggressors
he believed to be dangerous. Two Eagle argues that if the jury had heard this evidence
at trial, it would have acquitted him based on his claim of self defense.
Our standard of review regarding the exclusion of evidence is whether the
District Court abused its discretion and the party's substantive rights were affected.
United States v. Looking, 156 F.3d 803, 811 (8th Cir. 1998); United States v.
Wilkinson, 124 F.3d 971, 974 (8th Cir. 1997). A ruling on admissibility will not be
reversed on appeal absent a clear and prejudicial abuse of discretion. Id.
Richard Young’s presence during the first window-breaking incident is
undisputed. However, none of the proffered evidence indicated Young's level of
involvement in the prior incident. Moreover, the proffered evidence failed to establish
when the incident occurred, thus undermining its relevance in this case. Given the
limited proof of Richard Young’s prior conduct, the District Court did not abuse its
discretion when it excluded the proffered evidence.

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

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