                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-2759
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                               Harold Hank Bolman

                      lllllllllllllllllllllDefendant - Appellant
                                      ____________

                    Appeal from United States District Court
                   for the District of North Dakota - Bismarck
                                   ____________

                           Submitted: October 18, 2019
                              Filed: April 21, 2020
                                 ____________

Before COLLOTON, WOLLMAN, and KELLY, Circuit Judges.
                       ____________

KELLY, Circuit Judge.

      A jury convicted Harold Bolman of involuntary manslaughter after he struck
and killed his nephew with his truck. On appeal, Bolman challenges the sufficiency
of the evidence against him and the district court’s1 instructions to the jury. Because
we find no basis for reversal, we affirm.

                                    I. Background

       On July 25, 2016, Bolman and his nephew, William White Eagle, were visiting
friends and drinking heavily in Solen, North Dakota, on the Standing Rock
Reservation. Before the day was over, Bolman got behind the wheel of his Dodge
Ram 3500 dually pickup truck and backed over White Eagle, who died from
mechanical asphyxiation. Law enforcement responded to the scene and gave Bolman
a breathalyzer, which showed a blood alcohol concentration of .205. Bolman
admitted he had been drinking “a lot” all day and that he had “backed up and ran
over” his nephew. While there were no eyewitnesses to the actual incident, at least
two people, Janet Seewalker and Stephen Himes, came upon the scene to find Bolman
sitting in the driver’s seat of the pickup with the engine running and White Eagle’s
body under the rear tires. A third person, Mark Pettitt, saw Bolman standing beside
the truck and heard him ask whether White Eagle had died.

       The grand jury indicted Bolman on one count of involuntary manslaughter in
violation of 18 U.S.C. §§ 1112 and 1153.2 Bolman proceeded to trial. At the close
of the government’s case, he moved for a Rule 29 acquittal based on insufficient
evidence. The district court denied the motion, and the jury returned a guilty verdict.




       1
       The Honorable Daniel L. Hovland, then Chief Judge, United States District
Court for the District of North Dakota.
       2
       18 U.S.C. § 1153 provides, “Any Indian who commits . . . manslaughter . . .
within the Indian country . . . shall be subject to . . . the exclusive jurisdiction of the
United States.” Bolman does not dispute that he is an American Indian or that the
relevant events in this case occurred within Indian Country.
                                           -2-
The district court later sentenced Bolman to 51 months in prison and three years of
supervised release, and ordered him to pay $6,340 in restitution.

       Bolman raises two arguments on appeal. First, he asserts the trial evidence was
insufficient to support his conviction for involuntary manslaughter because the
government did not establish that he was grossly negligent. Second, he argues the
district court plainly erred by failing to instruct the jury that “actual knowledge” is a
distinct element of the offense.

                           II. Sufficiency of the Evidence

       “In reviewing the denial of a motion for a judgment of acquittal, we review the
sufficiency of the evidence de novo, evaluating the evidence in the light most
favorable to the verdict and drawing all reasonable inferences in its favor.” United
States v. Parker, 871 F.3d 590, 600 (8th Cir. 2017) (citation omitted). We will
reverse only if no reasonable jury could have found the defendant guilty beyond a
reasonable doubt. United States v. Ways, 832 F.3d 887, 894 (8th Cir. 2016).

       Bolman was convicted under 18 U.S.C. § 1112, which defines involuntary
manslaughter as “the unlawful killing of a human being without malice . . . [i]n the
commission of an unlawful act not amounting to a felony, or in the commission in an
unlawful manner, or without due caution and circumspection, of a lawful act which
might produce death.” 18 U.S.C. § 1112(a). Although this statute does not expressly
include a particular mens rea as an element of the crime, we have said that a
conviction for involuntary manslaughter requires proof beyond a reasonable doubt
that the defendant

      acted grossly negligently in that he acted with a wanton or reckless
      disregard for human life, knowing that his conduct was a threat to the
      lives of others or having knowledge of such circumstances as could


                                          -3-
      reasonably have enabled him to foresee the peril to which his act might
      subject others.

United States v. Opsta, 659 F.2d 848, 849 (8th Cir. 1981) (quoting United States v.
Schmidt, 626 F.2d 616, 617 (8th Cir. 1980)). Gross negligence is “a far more serious
level of culpability than that of ordinary tort negligence, but still short of the extreme
recklessness, or malice required for murder.” United States v. One Star, 979 F.2d
1319, 1321 (8th Cir. 1992).

       Bolman argues there was insufficient evidence to establish that he operated his
pickup truck “in a grossly negligent manner” when he struck White Eagle. He
contends the government relied solely on the fact that he drove while intoxicated to
show gross negligence. This is insufficient, according to Bolman, because driving
under the influence of alcohol is a strict liability offense in North Dakota that requires
no culpable mental state. See State v. Glass, 620 N.W.2d 146, 151 (N.D. 2000).
Bolman also faults law enforcement for not performing any accident reconstruction.
Without this, he argues, there was no evidence showing the speed or distance his
truck traveled, nor where White Eagle was located at the relevant time.

        Bolman’s argument takes an overly narrow view of the trial evidence. When
the evidence is viewed in its entirety, the jury could reasonably conclude beyond a
reasonable doubt that Bolman acted in a grossly negligent manner. Bolman admitted
to law enforcement that he had been drinking “a lot” throughout the day of White
Eagle’s death. Multiple trial witnesses, including Himes and Pettitt, confirmed that
Bolman had been drinking that day. Police officer Raymond Webb, who responded
to the scene, testified that Bolman appeared drunk because he could not speak clearly,
needed help walking, and smelled of alcohol and urine. Bolman’s blood alcohol
concentration registered at .205 shortly after the incident.




                                           -4-
       The government also presented evidence showing that Bolman understood the
dangerous nature of his conduct. He told officers that earlier in the day he had gone
to Bismarck to shop with Pettitt and White Eagle but had been too drunk to even enter
the store. He admitted he did not know “what [he] would be doing driving” that day
because he normally “wouldn’t go anywhere drunk.” The jury could reasonably
interpret these statements to mean that Bolman knew of the threat that his drinking
and driving posed to others.

      Despite this awareness, Bolman got behind the wheel of his large pickup truck.
He admitted that he did not use his truck’s backup camera because “he never did get
used to that”—even though he was backing up on a residential street where people
frequently traveled. At least four witnesses who lived near the area testified that they
had walked or driven on that same stretch of road on the day White Eagle died.

       Even accepting Bolman’s argument that driving while intoxicated, by itself, is
insufficient to show gross negligence, Bolman ignores other relevant trial evidence:
his relatively high level of intoxication, his knowledge of his intoxication and the
threat that it posed to others if he drove, that he drove on a residential street where
people often traveled, and his decision not to use the backup camera on his pickup
truck. And while the government might have had a stronger case had law
enforcement officers reconstructed the scene, it is not clear that the jury needed to
know, as Bolman suggests, the speed or angle at which he struck White Eagle.
Construing the evidence in the light most favorable to the verdict, a reasonable jury
could find Bolman grossly negligent beyond a reasonable doubt.

                                III. Jury Instruction

       Bolman next argues the district court erred by failing to instruct the jury that
actual knowledge is an essential element of the offense that is separate from gross
negligence. We typically review a challenge to jury instructions for an abuse of

                                          -5-
discretion, but because Bolman failed to object to the district court’s instructions, we
review only for plain error. See United States v. Poitra, 648 F.3d 884, 887 (8th Cir.
2011). To obtain relief under plain-error review, the party seeking relief must show
that there was an error; the error is clear or obvious under current law; the error
affected the party’s substantial rights; and the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.

       “The district court has wide discretion in formulating appropriate jury
instructions.” Id. (quoting United States v. Cruz-Zuniga, 571 F.3d 721, 725 (8th
Cir.2009)). An instruction is plainly erroneous if it misstates the law. United States
v. Fast Horse, 747 F.3d 1040, 1042 (8th Cir. 2014). On the other hand, instructions
are proper “if, taken as a whole, they adequately advise the jury of the essential
elements of the offenses charged and the burden of proof required of the
government.” Id. (cleaned up); see also Cupp v. Naughten, 414 U.S. 141, 146–47
(1973) (“[A] single instruction to a jury may not be judged in artificial isolation, but
must be viewed in the context of the overall charge.”).

      The district court’s final instructions to the jury listed the essential elements of
involuntary manslaughter as:

      One, the Defendant caused the death of William White Eagle as a result
      of an act done by the Defendant during the commission of an unlawful
      act not amounting to a felony, namely driving a motor vehicle under the
      influence of alcohol;

      Two, during the commission of the unlawful act, the Defendant acted
      with gross negligence;

      Three, The crime occurred within Indian Country; and

      Four, The Defendant is an Indian.



                                           -6-
The instructions also included a definition of “gross negligence,” which read:

      Gross negligence, an essential element of involuntary manslaughter,
      means that a person acted with wanton and reckless disregard for human
      life, knowing that his conduct was a threat to the lives of others or
      having knowledge of such circumstances as could reasonably have
      enabled him to foresee that his conduct might be a threat to others.

Bolman concedes that plain-error review applies, but he asserts that the instructions
were plainly erroneous because they “included the actual knowledge language within
the definition of gross negligence.” According to Bolman, the jury “was never
instructed that actual knowledge, as a separate element, required proof beyond a
reasonable doubt.”

        A set of jury instructions that separates the definition of “gross negligence”
from that of “actual knowledge” has support in the law.3 Our leading decision in
Schmidt relied on Ninth Circuit precedent analyzing the involuntary manslaughter
statute. See Schmidt, 626 F.2d at 617 (citing United States v. Keith, 605 F.2d 462
(9th Cir. 1979)). The Keith court held that, to prove a defendant guilty of § 1112
involuntary manslaughter, the government must establish: “(1) that the defendant
acted with ‘gross negligence,’ defined as ‘wanton or reckless disregard for human
life,’” and “(2) that the defendant had actual knowledge that this conduct was a threat
to the lives of others, or had knowledge that his conduct was a threat to the lives of

      3
        As Bolman notes, the committee comments to this court’s model instructions
for involuntary manslaughter state: “Actual knowledge of a threat to the lives of
others, or knowledge of circumstances that would allow the defendant to foresee the
life-threatening nature of his conduct, is a separate element of the crime which must
be established in addition to gross negligence.” See Eighth Circuit Model Criminal
Jury Instruction 6.18.1112B, committee comments (2017) (citing Opsta, 659 F.2d at
849; Schmidt, 626 F.2d at 617). The model instructions, however, “are not binding
on the district courts of this circuit, but are merely helpful suggestions.” United
States v. Norton, 846 F.2d 521, 525 (8th Cir. 1988).
                                         -7-
others, or had knowledge of such circumstances as could reasonably be said to have
made foreseeable to him the peril to which his acts might subject others.” Keith, 605
F.2d at 463. This is consistent with how other circuit courts have described § 1112's
essential elements. See, e.g., United States v. Benally, 756 F.2d 773, 776 (10th Cir.
1985); United States v. Tresvant, 677 F.2d 1018, 1023 (4th Cir. 1982).

       Bolman correctly notes that the four essential elements in the district court’s
instructions did not mention knowledge, but he overlooks the fact that the jury was
instructed elsewhere that it must find that Bolman had “knowledge” in order to
convict. The instructions listed “gross negligence” as an essential element that the
government must prove beyond a reasonable doubt. The instructions then defined
gross negligence to mean that

      a person acted with wanton and reckless disregard for human life,
      knowing that his conduct was a threat to the lives of others or having
      knowledge of such circumstances as could reasonably have enabled him
      to foresee that his conduct might be a threat to others.

(Emphasis added). This mirrors the language we used in Opsta and Schmidt, which
held that § 1112 requires proof that the defendant

      acted grossly negligently in that he acted with a wanton or reckless
      disregard for human life, knowing that his conduct was a threat to the
      lives of others or having knowledge of such circumstances as could
      reasonably have enabled him to foresee the peril to which his act might
      subject others.

See Opsta, 659 F.2d at 849 (quoting Schmidt, 626 F.2d at 617). The instruction itself
reiterated that gross negligence is “an essential element of involuntary manslaughter.”




                                         -8-
       The district court crafted the instructions in accordance with our case law, and
when viewed as a whole, they adequately advised the jury of the essential elements
of the offense and the government’s burden of proof. See Fast Horse, 747 F.3d at
1042; see also United States v. Udofot, 711 F.2d 831, 839 (8th Cir. 1983) (“Although
the instructions could have been worded differently, when viewed as a whole, they
accurately and adequately define the essential elements of the offense.”). Bolman has
not shown plain error.

      The judgment of the district court is affirmed.
                     ______________________________




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