                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-4082
                                   ___________

United States of America,               *
                                        *
                   Appellee,            * Appeal from the United States
                                        * District Court for the District
      v.                                * of North Dakota.
                                        *
Daniel Greatwalker,                     *     [PUBLISHED]
                                        *
                   Appellant.           *
                                   ___________

                             Submitted: December 15, 2003

                                 Filed: January 30, 2004
                                  ___________

Before MORRIS SHEPPARD ARNOLD, HEANEY, and FAGG, Circuit Judges.
                         ___________

PER CURIAM.

      Daniel Greatwalker, a Native American, pleaded guilty to first-degree murder
in Indian country in exchange for a thirty-five year sentence. See 18 U.S.C. §
1111(a), 1153. Greatwalker moved to withdraw his plea, and the district court denied
his motion. Greatwalker appealed asserting he should be allowed to withdraw his
plea because his sentence was less than the statutory mandatory life sentence. We
agreed. United States v. Greatwalker, 285 F.3d 727, 729 (8th Cir. 2002).

      On remand, Greatwalker’s case went to trial. Testimony established that on the
night of the killing, Greatwalker sought out the victim, Linus Wallette, because
someone named Wallette had killed Greatwalker’s father. See United States v.
Wallette, 580 F.2d 335 (8th Cir. 1978). Several eyewitnesses testified they saw
Greatwalker fight with Wallette and brutally beat him with a knife, pickax, hammer,
and shovel. Blood and other evidence supported their accounts of the events.
Wallette’s blood covered Greatwalker’s shoes and clothes, as well as the four
weapons. Greatwalker told witnesses he had finally got the guy who killed his father
and asked for help burying him. Greatwalker stated Wallette was still alive, but he
was going to chop off his head. Two witnesses rode with Greatwalker in a truck to
a wooded area, transporting the severely injured Wallette in the rear. Greatwalker
and the witnesses dumped Wallette on the ground and dragged him into the trees.
Greatwalker hit Wallette with a pickax, then left with the witnesses. At
Greatwalker’s direction, others cleaned the truck, burned his pants, and washed his
other bloody clothes. After one witness called authorities and told them he had seen
a murder, authorities found Wallette’s body in the woods. An autopsy revealed
Wallette died from blunt force injuries to the head and neck, which were consistent
with injuries that could be caused by the hammer, pickax, and shovel. Wallette had
also been stabbed and cut. At the trial’s conclusion, the jury convicted Greatwalker
of first-degree murder and three assault charges. The district court* sentenced him to
life in prison. Greatwalker now appeals his jury conviction, raising several issues.

       First, Greatwalker claims the jury selection process improperly excluded Native
Americans from the jury in violation of his Sixth Amendment right to a jury
comprised of a fair cross-section of the community. Greatwalker asserts the mere fact
that the jury panel included no Native Americans creates a prima facie case that the
process is flawed. We disagree. To prevail on his improper exclusion claim,
Greatwalker must show Native Americans are a distinctive group in the community,
their representation in his venire was not fair and reasonable in relation to their


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

                                         -2-
representation in the community, and their under-representation resulted from their
systematic exclusion from the jury-selection process. United States v. Morin, 338
F.3d 838, 843 (8th Cir. 2003). Greatwalker was tried in the District of North Dakota,
which draws its pools of prospective jurors randomly from lists of those who voted
in the last presidential election. Id. We recently upheld the District’s system, stating,
“Absent proof that Native Americans, in particular, face obstacles to voter registration
in presidential elections, ‘[e]thnic and racial disparities between the general
population and jury pools do not by themselves invalidate the use of voter registration
lists and cannot establish the “systematic exclusion” of allegedly under-represented
groups.’” Id. at 844. Greatwalker has not attempted to prove Native Americans, in
particular, face obstacles to registering to vote in presidential elections. Thus, like
the defendant in Morin, Greatwalker has failed to show Native Americans are
systematically excluded from jury pools in the District of North Dakota. Id.

        Second, Greatwalker asserts the Government violated its open file discovery
policy by failing to provide agents’ handwritten notes of witness interviews, even
though he was provided with typed accounts of the interviews. According to
Greatwalker, the handwritten notes were either Jencks Act material or impeachment
material under Brady v. Maryland, 373 U.S. 83 (1963). The Jencks Act provides,
“[N]o statement or report in the possession of the United States which was made by
a Government witness or prospective Government witness (other than the defendant)
shall be the subject of subpoena, discovery, or inspection until said witness has
testified on direct examination in the trial of the case.” 18 U.S.C. § 3500(a). A
defendant’s conviction may not be overturned for noncompliance with the Jencks Act
absent an indication there was bad faith on the part of the Government and prejudice
to the defendant. United States v. Newton, 259 F.3d 964, 967 (8th Cir. 2001).
Providing typewritten reports of interviews satisfied the Jencks Act unless the
handwritten notes materially departed from the typewritten reports in substance or
there was bad faith on the Government’s part. United States v. Grunewald, 987 F.2d
531, 535 (8th Cir. 1993). Greatwalker does not allege the Government acted in bad

                                          -3-
faith and has not shown the substance of the handwritten notes materially varied from
the typed version. Further, Greatwalker has made no showing of prejudice. Indeed,
the Government provided over 3000 pages of discovery, including the typewritten
reports of the witnesses’ interviews, which Greatwalker used during his cross-
examination and questioning of witnesses. Greatwalker also recalled several
witnesses after he had access to the handwritten notes, and used the notes when
questioning them.

        Greatwalker also argues the agents’ handwritten notes constituted impeachment
material that the Government was required to disclose under Brady. Because
Greatwalker did not raise a Brady claim in the district court, we review only for plain
error, and find none. To establish a Brady violation, Greatwalker must show the
prosecution suppressed evidence, the evidence was favorable to the accused, and the
evidence was material. United States v. Walrath, 324 F.3d 966, 969 (8th Cir. 2003).
Even if a Brady violation occurred, we do not reverse a conviction if the violation
was not prejudicial and amounted to harmless error. Id. In this case, any violation
was harmless. Greatwalker does not claim his ability to cross-examine witnesses was
so impaired he was denied due process, see United States v. Wadlington, 233 F.3d
1067, 1076-77 (8th Cir. 2000), and does not indicate how the handwritten notes were
additionally exculpatory. Because the Government disclosed the handwritten notes
at trial, Brady was not violated. United States v. Einfeldt, 138 F.3d 373, 377 (8th Cir.
1998) (Brady not violated when prosecution belatedly discloses evidence during
trial). Indeed, Greatwalker recalled several witnesses after obtaining the handwritten
notes and used them in his questioning. There is not a reasonable probability the
results of the trial would have been different if the handwritten notes had been
disclosed earlier. See Wadlington, 233 F.3d at 1077.

      Third, Greatwalker contends the district court should have allowed into
evidence the results of lie detector tests taken by witnesses at the scene of the murder.
Before any expert evidence may be admitted, however, the party seeking its

                                          -4-
admission must lay a proper foundation for the trial court to decide its reliability.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-95 (1993).
Because Greatwalker never established or argued the results were reliable under
Daubert, the polygraph results were inadmissible. The district court did not abuse its
discretion in excluding the results of the polygraph examinations. United States v.
Jordan, 150 F.3d 895, 899 (8th Cir. 1998).

      Fourth, Greatwalker contends the evidence was insufficient to convict him.
Viewing the evidence in the light most favorable to the verdict and giving the verdict
the benefit of all reasonable inferences, United States v. Santos-Garcia, 313 F.3d
1073, 1080 (8th Cir. 2003), we conclude there was substantial evidence that
Greatwalker killed Wallette with premeditation, or at a minimum, participated in his
premeditated killing.

       Next, Greatwalker argues the district court should have held an evidentiary
hearing to determine whether his rights under Miranda v. Arizona, 384 U.S. 436
(1966) were violated during his two postarrest interviews with law enforcement
agents. At the time of Greatwalker’s trial, Federal Rule of Criminal Procedure
12(b)(3) (now renumbered as Rule 12(b)(3)(c)) required any motion to suppress
evidence to be raised before trial. Greatwalker made no pretrial request to suppress
the statements, so he waived his right to hearing on the matter. Fed. R. Crim. P. 12(f)
(2002) (renumbered as current Rule 12(e)); (United States v. Miller, 987 F.2d 1462,
1464-65 (10th Cir. 1993). Besides, any error in admitting the statements was
harmless beyond a reasonable doubt because most of the statements were merely
cumulative of other evidence at trial and the noncumulative statements were only
remotely inculpatory. See United States v. Santos, 235 F.3d 1105, 1108 (8th Cir.
2000).

      Greatwalker also contends the district court committed error in admitting
photographs of Wallette. A district court may admit relevant photographs unless they

                                         -5-
are “‘so gruesome or inflammatory that [the] prejudicial impact substantially
outweigh[s] [the] probative value.’” United States v. Ingle, 157 F.3d 1147, 1153 (8th
Cir. 1998). The photographs were relevant in this case. The autopsy photographs
were used as aids in the medical examiner’s testimony to explain the nature and
extent of Wallete’s injuries and the cause of his death. Photographs of the autopsy
and the murder scene were also used to corroborate other evidence. The district court
did not abuse its discretion in concluding the photographs’ probative value was not
substantially outweighed by the risk of unfair prejudice. United States v. Edwards,
159 F.3d 1117, 1129 (8th Cir. 1998).

       Last, Greatwalker challenges the district court’s questioning of witnesses at
trial. Because Greatwalker does not identify which questions were objectionable or
any law supporting his claim, we consider the claim abandoned. United States v.
Gonzales, 90 F.3d 1363, 1369-70 (8th Cir. 1996). Indeed, Greatwalker did not object
to the questioning during trial. The record shows the district court did question
witnesses during both defense and Government examination. The district court
merely asked neutral questions to clarify or develop facts, simplify questions for a
witness, or to understand objections. See United States v. Dreamer, 88 F.3d 655, 659
(8th Cir. 1996). The district court’s questions were not one-sided against Greatwalker
and did not deprive him of a fair trial. See id. Further, the district court instructed
the jury that it should not assume he held any opinion on matters relating to his
questions.

      We thus affirm Greatwalker’s conviction.
                     ______________________________




                                         -6-
