                                   ___________

                                   No. 95-3868
                                   ___________

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.        *



                                   ___________

                      Submitted:   March 12, 1996

                          Filed:   July 9, 1996
                                   ___________

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

                                   ___________

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.




     1
     The Honorable Richard H. Battey, United States District Judge
for the District of South Dakota.
     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




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




          2
       This mid-trial disclosure was all the more surprising to
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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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




                                     -4-
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




                                           -5-
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.




                                       -6-
        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.




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