                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 99-1129
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               * Appeal from the United States
                                       * District Court for the District
Benjamin Good Bird,                    * of North Dakota.
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: October 19, 1999

                                 Filed: December 8, 1999
                                  ___________

Before McMILLIAN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit
      Judges.
                          ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       A jury convicted Benjamin Good Bird of second-degree murder, see 18 U.S.C.
§ 1111, assault with a dangerous weapon, see 18 U.S.C. § 113(a) (3), and assault
resulting in serious bodily injury, see 18 U.S.C. § 113(a)(6). On appeal,
Mr. Good Bird maintains that he received multiple punishments in violation of the
Constitution's double jeopardy clause, that his convictions were not supported by
sufficient evidence, and that the government engaged in prosecutorial misconduct. We
affirm the judgment of the trial court.1

                                           I.
       Mr. Good Bird first contends that the double jeopardy clause prohibits punishing
him for both assault and murder. The double jeopardy clause is violated in a single
proceeding only where multiple punishments are imposed for the same crime contrary
to the legislature's intent. See Jones v. Thomas, 491 U.S. 376, 380-81 (1989). To
determine whether the crimes are the "same" for double jeopardy purposes, we
generally apply the Blockburger, or same-elements, rule: If each offense requires proof
of an element not required by the other, the crimes are not considered the same, and a
double jeopardy challenge necessarily fails. See United States v. Bennett, 44 F.3d
1364, 1373 (8th Cir. 1995), cert. denied, 515 U.S. 1123, 1145, 516 U.S. 828 (1995);
see also Blockburger v. United States, 284 U.S. 299, 304 (1932).

        Here, each crime has a unique element. Second-degree murder requires proof
of the unlawful taking of a human life. See United States v. Lame, 716 F.2d 515, 518
(8th Cir. 1983). Use of a dangerous weapon is necessary only for the assault
conviction under 18 U.S.C. § 113(a)(3). Finally, although “serious bodily injury” is an
element of assault under 18 U.S.C. § 113(a)(6), we have held that it is not an element
of murder, see United States v. Cavanaugh, 948 F.2d 405, 410 (8th Cir. 1991), and
that, in fact, "assault resulting in serious bodily injury and second degree murder are
completely separate offenses," id. at 415. Applying the Blockburger rule, we conclude
that the crimes are not the same and that the double jeopardy clause was not violated
in Mr. Good Bird's case.


      1
        The Honorable Patrick A. Conmy, Chief United States District Judge for the
District of North Dakota.

                                          -2-
                                              II.
        Mr. Good Bird also contends that the evidence was insufficient. At trial, the
government offered evidence that the body of a native American male was discovered
in New Town, North Dakota, next to a building where a group of local residents
frequently gathered to drink. The man, later identified as Saunders Bearstail, Jr., had
apparently been dead at least three hours. An autopsy revealed bruising, bleeding
around the surface of the brain, and tears in the tissue holding the bowel; the cause of
death was listed as blunt-force injury to the abdomen and head. The pathologist
testified that either the head injury or the abdominal injury alone was sufficient to cause
the victim's death, and that the injuries could have been inflicted up to twenty-four
hours before death occurred.

       At trial, several eyewitnesses testified that Mr. Good Bird attacked Mr. Bearstail
near the building on the day before his body was discovered. One witness testified that
Mr. Good Bird, who was wearing cowboy boots, punched and kicked the victim in the
face and then "stomp[ed]" on his stomach and chest area about five times. The
government also introduced into evidence Mr. Good Bird's statements, in which he
eventually admitted hitting and kicking the victim. A second witness testified that
when he arrived at the building Mr. Bearstail was lying on the ground "all beat up" and
bleeding from his nose, and that Mr. Good Bird admitted responsibility for the victim's
condition. A toxicologist testified that he found blood spatters and smudges on the
front of Mr. Good Bird's pants.

       Mr. Good Bird premises his challenge to the sufficiency of the evidence, in part,
on the length of time between his acknowledged attack on the victim and the victim's
death, and on testimony that the first witness hit the victim later in the day. The jury,
however, was aware of the pertinent circumstances, heard the first witness and the
other witnesses testify, and was entitled to judge the credibility of the witnesses. See

                                           -3-
United States v. Goodlow, 105 F.3d 1203, 1206 (8th Cir. 1997). Having carefully
reviewed the record in the light most favorable to the government, we cannot say that
a rational juror must have had a reasonable doubt as to Mr. Good Bird's guilt, and thus
we reject his challenge to the sufficiency of the evidence. See Jackson v. Virginia, 443
U.S. 307, 318-19 (1979).

                                          III.
       Finally, we find Mr. Good Bird's complaint of prosecutorial misconduct to be
without merit because he failed to show that the government engaged in any
inappropriate conduct that so affected his substantial rights as to deprive him of a fair
trial. See United States v. Hernandez, 779 F.2d 456, 458 (8th Cir.1985).

      Accordingly, we affirm.

      A true copy.

             Attest:

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




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