United States v. Drapeau

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 10-2159
___________

United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Harold Drapeau, Jr., *
*
Appellant. *
___________

Submitted: December 16, 2010
Filed: July 8, 2011
___________

Before WOLLMAN, BRIGHT, and COLLOTON, Circuit Judges.
___________

WOLLMAN, Circuit Judge.

Harold Drapeau, Jr., was convicted of assaulting, resisting, or impeding a
federal officer resulting in bodily injury, in violation of 18 U.S.C. § 111(a)(1) and (b),
and was sentenced to twenty-seven months’ imprisonment and three years of
supervised release. Drapeau appeals his conviction and sentence, arguing that the
district court1 erred by denying his motion for a judgment of acquittal, improperly
excluding character evidence of the alleged victim, and imposing additional conditions
of supervised release after sentencing. We affirm.

1
The Honorable Roberto A. Lange, United States District Court Judge for the
District of South Dakota.
 I. Background

On August 23, 2009, a resident of the Crow Creek Sioux Tribe requested
additional police patrol in the East Housing community in Fort Thompson, South
Dakota. The resident stated that Drapeau and two other males had left her residence
and that they might return and cause a disturbance. Bureau of Indian Affairs (BIA)
Officer Marlin Robert Mousseau, Jr., responded to the dispatch and drove towards the
East Housing community, ten minutes from his dispatch location. Mousseau’s vehicle
was equipped with a camera, and he wore a remote microphone on his uniform.

BIA Officer Marty Foote also heard the dispatch and stopped three individuals
walking alongside a road who matched the resident’s description. Foote recognized
Drapeau but before he could ask him any questions, Drapeau ran to a white vehicle
and drove away. Foote radioed Mousseau that he had seen Drapeau and that Drapeau
had left in a white vehicle that was heading back towards East Housing. Mousseau
knew where Drapeau lived in East Housing and drove to that location, where he
observed three people and a vehicle that matched Foote’s description in Drapeau’s
driveway. Mousseau pulled into the driveway, parked his BIA vehicle, and activated
his vehicle’s video camera, which recorded the view of the side of the house and
Drapeau’s backyard. The remote microphone began recording the audio of the
incident. Two of the individuals went inside the residence. The third, a female, ran
to the back of the residence. Mousseau pursued her, threatened to deploy his taser,2
and ordered her to get on the ground. Mousseau handcuffed and arrested the woman
for eluding, a violation of the Crow Creek Tribal Code § 10-7-10. Mousseau
identified the woman as Mitzi Medicine Crow, Drapeau’s wife. Mousseau observed
that Medicine Crow appeared intoxicated and smelled of alcohol. While bringing her

2
A taser is an electronic control device that discharges two probes on a target
when its trigger is pulled. Once the two probes hit the target, the taser will send a jolt
of electricity through the target.

-2-
to the BIA vehicle, Mousseau heard a child cry briefly inside the residence and asked
Medicine Crow about it. She responded that her sister was watching her child.

Mousseau spent the next several minutes attempting to enter the residence by
knocking on the front door and hiding in the bushes. He did not have a reason to
arrest Drapeau, but wanted to speak with him and to check on the child. Mousseau
noticed an open window next to the front door. Looking inside the window, he could
see Drapeau’s mother, Theresa Grassrope, holding the child with her hand over its
mouth and whispering in its ear. Mousseau also saw an individual hidden in the
curtains, whom he later identified as Drapeau. Because the curtain obstructed his
view, Mousseau did not know if Drapeau was armed. Mousseau ordered Grassrope
to open the front door and told Drapeau that if he did not move away from the curtain
he would be tasered. In an effort to inveigle Grassrope and Drapeau into coming out
of the residence, Mousseau told them that he had Medicine Crow in his car and that
she had been arrested “for no reason.” After Drapeau and Grassrope failed to come
out or open the door, Mousseau threatened to arrest Grassrope for obstruction if she
did not open the front door. She replied that she could not do so because it was not
her home. Mousseau responded that if Grassrope did not open the door, he would
crawl through the window and she would go to jail.

After Mousseau failed to gain entrance through the front door, he broke the
screen off the front window. As Mousseau put his right arm through the window,
Drapeau pressed the window downward against Mousseau’s arm, injuring it. Using
his left arm, Mousseau pushed the window up and released his right arm. He then
deployed his taser into the home. Drapeau ceased pressing down on the window and
ran towards the back of the home.

Mousseau ran around outside to the backyard, where he met Drapeau exiting
through the back door. Mousseau arrested Drapeau, placed him in the BIA vehicle,
and then entered through the back door to arrest Grassrope, who had locked herself

-3-
and the child in a bathroom. Mousseau demanded she come out, stating “I’m gonna
make true with my promise” and that “all [Grassrope] had to do [to avoid going to jail]
was open the door.” Grassrope came out and Mousseau arrested her as well.
Mousseau then left the child with Medicine Crow’s sister, Maria, who had been
babysitting the child.

Drapeau was indicted for assaulting, resisting, or impeding a federal officer
resulting in bodily injury, in violation of 18 U.S.C. § 111(a)(1) and (b). He pleaded
not guilty and requested a jury trial. Drapeau sought to present evidence of
Mousseau’s character pursuant to Federal Rule of Evidence 404(a)(2) by filing a
pretrial notice and during the pretrial conference. The evidence consisted of seven
tribal resolutions and an unsigned memo to United States Senator John Thune. The
first resolution was written by the Nebraska Winnebago Tribe in 2005, describing
Mousseau’s misconduct and requesting his permanent removal as a police officer from
the Winnebago Law Enforcement Services Department. Thereafter, Mousseau
transferred to the Crow Creek BIA duty station, whereupon the Crow Creek Sioux
Tribal Council adopted the other six resolutions and memo in response to numerous
complaints against Mousseau and requested his removal from the Crow Creek Sioux
Indian Reservation. In the memo to Senator Thune, a Crow Creek Sioux Tribe civil
rights group requested an internal investigation of Mousseau and the police
department. During the pretrial conference, the district court preliminarily denied the
2005 Winnebago resolution based on relevancy and hearsay and the last two Crow
Creek resolutions because they postdated the incident, and stated that the remaining
four resolutions might become admissible if Drapeau testified that he was aware of
them.

Drapeau sought to use the character evidence to prove his intent to defend
himself and his family and to prove his state of mind. He asserted that the evidence
would demonstrate Mousseau’s reputation for violence, aggressiveness, and excessive
use of his taser. Drapeau also sought to inquire of character witnesses as to

-4-
Mousseau’s reputation in the community. During the pretrial conference, the
government objected to the evidence, arguing that the resolutions and reputation
testimony were irrelevant to demonstrate Drapeau’s state of mind unless he was aware
of them before the incident. Drapeau responded that the offered evidence did not
constitute Rule 404(b) evidence, but instead was admissible pursuant to
Rule 404(a)(2). The district court preliminarily denied Drapeau’s motion to present
the tribal resolutions and reputation testimony evidence.

After the government presented its case, the district court held a hearing outside
the presence of the jury. Drapeau moved for a judgment of acquittal on the grounds
that Mousseau was not acting within his official capacity and that Drapeau was acting
reasonably in self-defense. The district court denied his motion.

Following the denial of the motion, Drapeau made an offer of proof of the tribal
resolutions and urged their admission as character evidence pursuant to
Rule 404(a)(2). Drapeau also proffered four character witnesses who would have
testified as to Mousseau’s reputation for violence and unlawfulness. The district court
excluded the proffered evidence and reiterated its view that the character evidence was
inadmissible because Drapeau had not offered any evidence regarding his awareness
of the resolutions or Mousseau’s reputation. The district court also ruled that the 2005
Winnebago tribe resolution was inadmissible on the grounds of relevancy, hearsay,
and remoteness in time from the events giving rise to the charges against Drapeau.

Following the proffers, Medicine Crow testified that before the incident she and
Drapeau were aware of Mousseau’s reputation for being “mean, short-tempered,” and
untruthful, including a willingness to make “up stories to cover his wrongs.” She also
testified that they were unaware of the tribal resolutions until after the incident. After
her testimony, the district court renewed its exclusion of the resolutions and memo but
reversed its preliminary denial of Drapeau’s reputation witnesses, stating that Drapeau

-5-
could call whatever witnesses he wished. The district court then recalled the jury.
Drapeau rested without presenting any evidence, and the jury found him guilty.

As indicated earlier, the district court sentenced Drapeau to twenty-seven
months’ imprisonment and three years of supervised release and announced the
conditions of the supervised release. Two days after the sentence was imposed, the
district court issued a written order containing the supervised release conditions.

II. Discussion

A. Judgment of Acquittal

Drapeau argues that the district court erred in denying his motion for a
judgment of acquittal. He asserts that the evidence was insufficient to prove that
Mousseau was performing his official duties at the time of the alleged assault and that
Drapeau was not acting in self-defense.3 He asserts that he had a right to close and
secure the window in an effort to defend against an unlawful, forcible, and warrantless
entry into his home. We review de novo a district court’s denial of a motion for a
judgment of acquittal. See United States v. Dinwiddie, 618 F.3d 821, 832 (8th Cir.
2010) (citing United States v. Hodge, 594 F.3d 614, 617 (8th Cir. 2010)). “We will
affirm if the record, viewed most favorably to the government, contains substantial
evidence that supports the jury’s verdict.” Id. “Substantial evidence is evidence
sufficient to prove all the elements of the offense beyond a reasonable doubt.” Id.

The government was required to prove that: (1) Drapeau forcibly assaulted,
resisted, opposed, impeded, intimidated, or interfered a federal officer employed as

3
Drapeau also argues that Mousseau was unauthorized to enforce tribal law
because of the 2006 tribal resolution that requested Mousseau’s removal from the
Crow Creek Sioux Reservation. Because Drapeau failed to challenge Mousseau’s
status as a federal officer during the trial, we consider this issue waived on appeal.

-6-
a police officer by the Bureau of Indian Affairs; (2) the alleged offense was committed
voluntarily and intentionally; (3) the alleged offense resulted in bodily injury to
Mousseau; (4) at the time of the alleged offense, the officer was doing what he was
employed by the federal government to do and not deviating from the employer’s
business for personal reasons; and (5) that Drapeau was not acting in self-defense.
Drapeau does not challenge the sufficiency of the evidence with respect to the first
three elements.

1. Performance of Official Duties

Drapeau contends that Mousseau acted illegally and that the assault therefore
could not have occurred while Mousseau was engaged in the performance of his
official duties. See 18 U.S.C. § 111. “Engaged in performance of official duties is
simply acting within the scope of what the agent is employed to do.” United States
v. Street, 66 F.3d 969, 978 (8th Cir. 1995) (citation and internal quotation marks
omitted). “The scope of what the agent is employed to do is not defined by whether
the officer is abiding by laws and regulations in effect at the time of the incident, nor
is the touchstone whether the officer is performing a function covered by his job
description.” Id. (citation and internal quotation marks omitted). Thus, the test is
whether the officer is acting within the scope of his employment, that is, whether the
officer’s actions fall within his agency’s overall mission, in contrast to engaging in a
personal frolic of his own. Id.

Whether Mousseau was a federal officer within the meaning of § 111 was a
question of law for the court. See United States v. Oakie, 12 F.3d 1436, 1440 (8th
Cir. 1993). Whether Mousseau was acting as a federal officer and whether he was
performing federal “investigative, inspection, or law enforcement functions” at the
time of the assault or acting outside the scope of his employment, were fact questions
for the jury. Id. (citations omitted); see United States v. Lopez, 710 F.2d 1071, 1074
(D.C. Cir. 1997). Compare United States v. Clemons, 32 F.3d 1504, 1507-08 (11th

-7-
Cir. 1994) (listing examples of officers found to be acting within the scope of their
employment, including FBI agent assaulted while walking to report for work, DEA
agent assaulted after being on-duty and still on-call in government-owned vehicle, IRS
agent assaulted during course of repossessing vehicle, off-duty agent shot while
attempting to stop robbery), with United States v. Marquez, 858 F. Supp. 8, 10 (D.P.R.
1994) (holding FBI agent assaulted after visiting automated teller machine was not
engaged in performance of his official duties because he was not coming to or
returning from work, not in uniform, not using a government-owned vehicle, and did
not indicate that he was performing his official duties). The courts have adopted an
interpretation of the phrase “engaged in the performance of official duties” that is
“broad enough to fulfill Congress’s goals of protecting federal officers and facilitating
the accomplishment of federal functions.” Street, 66 F.3d at 978 (quoting United
States v. Green, 927 F.2d 1005, 1007 (7th Cir. 1991)).

There was substantial evidence that Mousseau was engaged in the performance
of his official duties. The government presented evidence that Mousseau had been a
BIA officer since 2002 and was on duty as a BIA officer August 23, 2008. In the
early morning hours of August 23, 2008, Mousseau was dispatched to address an
incident involving Drapeau, who had shortly before run away from an officer and was
headed towards his home. Mousseau testified that at the time of the incident he had
concerns for a child’s welfare and his own safety because of the individual hidden
behind a curtain. Thus, the evidence was sufficient to support the jury’s finding that
Mousseau was engaged in the performance of his duties as a federal officer at the time
of the assault and not in a personal frolic.

-8-
 2. Self-Defense

Drapeau asserts that the government failed to prove that he was not acting in
self-defense. He contends that the Fourth Amendment protects individuals from
unreasonable governmental intrusion into their homes and that his pushing downwards
on the window was thus justified. Drapeau asserts that Mousseau acted outside the
scope of his official duties by attempting to unlawfully enter the home through the
window and threatening to deploy the taser.

An individual is not justified in using force for the purpose of resisting arrest
or other performance of duty by a law enforcement officer within the scope of his
official duties. See United States v. Schmidt, 403 F.3d 1009, 1016 (8th Cir. 2005)
(citing United States v. Dawdy, 46 F.3d 1427, 1430-31 (8th Cir. 1995)) (“In our
circuit, resistance to an illegal arrest can furnish grounds for a second, legitimate
arrest.”). But an individual may be justified in using force to resist excessive force
used by a law enforcement officer. See, e.g., United States v. Taken Alive, 262 F.3d
711, 714 (8th Cir. 2001). Because there was substantial evidence to support the jury’s
determination that Mousseau was acting within the scope of his official duties, the
issue becomes whether Mousseau used excessive force when attempting to enter
Drapeau’s home such that Drapeau was justified in pushing down on the window.

Excessive force is force that was unreasonable or unnecessary under the
circumstances, i.e., greater than the amount of force that was objectively reasonable.
See Shannon v. Koehler, 616 F.3d 855, 862 (8th Cir. 2010). “The reasonableness of
a particular use of force depends on the circumstances of each case, including ‘the
severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officer or others, and whether he is actively resisting arrest or attempting
to evade arrest by flight.’” Id. (quoting Wertish v. Krueger, 433 F.3d 1062, 1066 (8th
Cir. 2006)).

-9-
 There was substantial evidence that Mousseau did not use excessive force.
Drapeau had fled from an officer earlier that night before the officer was able to
question him. Although Mousseau testified that there were no exigent circumstances
requiring his immediate admission into the home, he also testified that he had
concerns about the welfare of a child and his personal safety. Mousseau had
attempted to gain access to the home for several minutes by knocking on the door,
concealing himself in the yard, and speaking through the open window. The jury
heard the audio recording, which revealed that Mousseau threatened to deploy his
taser into the home if he was not admitted. A reasonable jury could conclude that
Mousseau did not use excessive force in performing his official duties and that
Drapeau did not act in self-defense when he closed the window on Mousseau’s arm.
Accordingly, the district court did not err in denying the motion for a judgment of
acquittal.

B. Character Evidence

Drapeau contends that the district court improperly excluded the proposed
evidence of Mousseau’s reputation for aggression and unlawfulness. “We review the
evidentiary rulings of a district court only for abuses of discretion, and will reverse
only when an improper evidentiary ruling affects the substantial rights of the
defendant or when we believe that the error has had more than a slight influence on
the verdict.” United States v. Gregg, 451 F.3d 930, 933 (8th Cir. 2006) (citations
omitted). “Evidence of a person’s character or a trait of character is not admissible
for the purpose of proving action in conformity therewith on a particular occasion,”
except in criminal cases when it is “evidence of a pertinent trait of character of the
alleged victim of the crime offered by an accused.” Fed. R. Evid. 404(a)(2). “When
a defendant raises a self-defense claim, reputation evidence of the victim’s violent
character is relevant to show the victim as the proposed aggressor.” See Taken Alive,
262 F.3d at 714. “In all cases in which evidence of character or a trait of character of
a person is admissible, proof may be made by testimony as to reputation or by

-10-
testimony in the form of an opinion.” Fed. R. Evid. 405(a); see Gregg, 451 F.3d at
934.

Drapeau now asserts on appeal that he offered the tribal resolutions and memo
to demonstrate that Mousseau was the first aggressor. In Drapeau’s pretrial notice of
intent to present evidence and during the pretrial conference, he cited Rule 404(a)(2)
but stated that he was offering the tribal resolutions and memo for the purpose of
proving his state of mind, which is not one of the purposes encompassed within
Rule 404(a)(2). See United States v. Keiser, 57 F.3d 847, 854 (9th Cir. 1995).
Assuming for the purposes of argument that Drapeau in fact presented the tribal
resolutions and memo for the purpose of showing Mousseau was the first aggressor,
his failure to present evidence of his prior awareness would not have been grounds for
excluding that evidence. See id. at 854 (“Thus, whether the defendant knew of the
victim’s character at the time of the crime has no bearing on whether victim character
evidence should come in under [Rule] 404(a)(2).”). The evidence would still have
been inadmissible under Rules 404(a)(2) and 405(a), however, because it was not in
the proper form of witness testimony. Accordingly, any error in requiring evidence
of Drapeau’s pre-incident knowledge would not have affected Drapeau’s substantial
rights because the tribal resolutions and memo would have been excludable pursuant
to Rule 405(a).

In light of Drapeau’s stated purpose, it was understandable why the district
court was under the impression that Drapeau was actually seeking to present the
evidence pursuant to Rule 404(b)4, not Rule 404(a)(2) as he had recited. The fact that

4
Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.
It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident . . . .

-11-
the tribal resolutions and memo were not in the form of witness testimony would not
have prevented Drapeau from offering the evidence under Rule 404(b). See Fed. R.
Evid. 405(b) (“In cases in which character or a trait of character of a person is an
essential element of a charge, claim, or defense, proof may also be made of specific
instances of that person’s character.”). But, as the district court stated, Drapeau would
have been required to present evidence that he had pre-incident knowledge of the
evidence. See Gregg, 451 F.3d at 935; United States v. Bordeaux, 570 F.3d 1041,
1049 (8th Cir. 2009) (“[E]vidence of prior bad acts of the victim are admissible under
Rule 404(b) to establish the defendant’s state of mind and the reasonableness of the
defendant’s use of force.” (citing Gregg, 451 F.3d at 935)); United States v. Scout,
112 F.3d 955, 962 n.7 (8th Cir. 1997) (“[The defendant] testified that he did not know
the identity of the police officers pursuing him. Because [the officer’s] alleged
reputation for violence could therefore not have affected [the defendant’s] state of
mind when assaulting [the officer], [the officer’s] reputation—and how it was
derived—was irrelevant.”). During the pretrial conference, Drapeau’s counsel told
the district court that Drapeau had pre-incident knowledge of Mousseau’s reputation
and the tribal resolutions. However, during the hearing outside the presence of the
jury, Medicine Crow testified that Drapeau had not known of the resolutions before
the incident. Drapeau failed to present any evidence to the contrary, and he does not
pursue this theory on appeal. Accordingly, we need not further address whether the
district court erred in excluding the tribal resolutions and memo under Rule 404(b).

C. Supervised Release Conditions

Drapeau contends that the additional supervised release conditions imposed by
the district court violated the Double Jeopardy Clause. U.S. Const. amend. V. “We
review the district court’s imposition of the terms and conditions of supervised release
for an abuse of discretion.” United States v. Durham, 618 F.3d 921, 933 (8th Cir.
2010). An oral pronouncement of a sentence “prevails over a contrary judgment

-12-
which may be entered.” United States v. Raftis, 427 F.2d 1145, 1146 (8th Cir. 1970)
(citations omitted).

Drapeau contends that the district court improperly added two new mandatory
conditions and thirteen new discretionary conditions to his supervised release terms.
Drapeau contends that the district court failed to state at the sentencing hearing that
he would be subject to the mandatory condition requiring his cooperation in the
collection of his DNA. This is incorrect. At the sentencing hearing the district court
specifically stated “The defendant shall cooperate in the collection of DNA, pursuant
to 18 United States Code §§ 3563(a)(9) and 3583(d).” Drapeau’s argument on this
condition thus fails.

Drapeau argues that the district court also erred in adding to the written
judgment the statutory condition that he “shall submit to one drug test within fifteen
days of release from imprisonment and at least two periodic drug tests thereafter, as
directed by the court [pursuant to 18 U.S.C. §§ 3563(a)(5) and 3583(d) and U.S.
Sentencing Guidelines § 5D1.3(a)(4)].” In United States v. Vega-Ortiz, 425 F.3d 20,
22 (1st Cir. 2005), the defendant appealed the imposition of the same drug testing
requirement after the district court had failed to notify the defendant during the
sentencing hearing that he was subject to the condition. The district court had only
told the defendant that the standard conditions of the U.S. Sentencing Guidelines
applied. Id. at 23. The Court of Appeals for the First Circuit reasoned that the
defendant was on constructive notice that the mandatory condition of 18 U.S.C.
§ 3583(d) and U.S. Sentencing Guidelines § 5D1.3(a)(4) would apply even if the
district court had not explicitly stated this condition at the sentencing hearing. Id.; see
United States v. Sepúlveda-Contreras, 466 F.3d 166, 169 (1st Cir. 2006) (“Defendants
are deemed to be on constructive notice for mandatory and standard conditions
announced for the first time in a written judgment, and therefore have no
right-to-be-present claim with respect to any such condition.” (citations omitted)).
Similarly, the district court in this case ordered Drapeau to comply with the standard

-13-
conditions that it had adopted, thus he was on constructive notice of the mandatory
statutory condition. See United States v. Napier, 463 F.3d 1040, 1043 (9th Cir. 2006)
(“For that reason, imposition of these mandatory and standard conditions is deemed
to be implicit in an oral sentence imposing supervised release. When those standard
conditions are later set forth in a written judgment, the defendant has no reason to
complain that he was not present at this part of his sentencing because his oral
sentence necessarily included the standard conditions.” (citation omitted)); United
States v. Truscello, 168 F.3d 61, 63-64 (2d Cir. 1999) (“Our view is buttressed by the
fact that we previously have concluded that, at oral sentencing, even the most general
allusion to the ‘standard conditions’ of supervised release is a sufficient basis on
which to predicate the imposition of each of the conditions normally regarded as
standard.” (citation omitted)). Drapeau also had notice of the drug testing because of
the district court’s other stated conditions.

At the sentencing hearing, the district court attempted to order Drapeau to
submit to drug testing as noted in the written judgment, however, it apparently
inadvertently said that the testing was required within fifteen days of the date of
“sentencing,” not “release from imprisonment.” The record is clear that the district
court attempted to recite the mandatory, standard, and special conditions of supervised
release as outlined in U.S. Sentencing Guidelines § 5D1.3. Section 5D1.3(a)(4) and
18 U.S.C. §§ 3563(a)(5) and 3583(d) require that a district court judge articulate why
it would choose to suspend the drug testing requirement. The district court did not
articulate why the drug testing requirement would be suspended, but mistakenly
replaced the phrase “release from imprisonment” with the word “sentencing.”

Drapeau’s responsibility to submit to drug testing was also required by one of
his special conditions that was recited during sentencing. It provided that “The
defendant shall submit a sample of his blood, breath, or urine at the discretion and
upon the request of the probation officer.” We conclude that the written mandatory
drug testing condition is consistent with the oral pronouncement. The district court

-14-
did not abuse its discretion by including the mandatory condition in the written
judgment.

Finally, Drapeau contends that the district court erred in adding thirteen
discretionary conditions to his supervised release. Drapeau failed to object during
sentencing to the district court’s requirement that Drapeau “shall comply with the
standard conditions that have been adopted by this court.” Thus, we review only for
plain error. See United States v. Simons, 614 F.3d 475, 478 (8th Cir. 2010). “Plain
error occurs if the district court deviates from a legal rule, the error is clear under
current law, and the error affects the defendant’s substantial rights.” Id. at 479
(quoting United States v. Crose, 284 F.3d 911, 912 (8th Cir. 2002)). The error must
also “seriously affect the fairness, integrity or public reputation of judicial
proceedings.” Id. (citations omitted). As stated above, a number of circuits have held
that a district court may refer generally to the standard conditions of the U.S.
Sentencing Guidelines in § 5D1.3 and is not required to manually recite each
mandatory and standard condition of supervised release. See, e.g., United States v.
Little Bear, No. 10-1782, 2011 WL 668115, at *2 (8th Cir. Feb. 25, 2011)
(unpublished); Napier, 463 F.3d at 1043; Vega-Ortiz, 425 F.3d at 22; United States
v. Vega, 332 F.3d 849, 853 n.8 (5th Cir. 2003) (“Although we require special
conditions like drug treatment to be included in the oral pronouncement of sentence,
‘explicit reference to each and every standard condition of supervision is not essential
to the defendant’s right to be present at sentencing.’ This difference in law reflects
the distinction between the general applicability of the standard (and mandatory)
conditions and the discretionary applicability of the special ones.” (citations omitted));
Truscello, 168 F.3d at 63-64.

The district court stated that the court’s standard conditions applied to Drapeau.
In the written judgment, it enumerated the 18 U.S.C. § 3563(c)(1)-(13) standard
conditions. The district court followed the U.S. Sentencing Guidelines by imposing
the standard conditions because they are “recommended for supervised release.” As

-15-
stated above, mechanical reference by the district court judge to each standard
condition is not required. Drapeau was aware that the district court had stated that the
standard conditions would apply and thus had the opportunity to ask the district court
to specify which § 3563(c) standard conditions would be applied. He failed to do so.
We conclude that there was no plain error and that the district court followed the
§ 3563(c) recommended standard conditions.

III. Conclusion

Accordingly, we affirm Drapeau’s conviction and his sentence.5

BRIGHT, concurring in part and dissenting in part.

I agree with the majority that sufficient evidence supports the convictions and
that the district court did not err in imposing supervised release conditions. I also
agree that the district court did not err in excluding from evidence the tribal
resolutions and memorandum to Senator John Thune. But I disagree that the district
court did not err in excluding evidence of Officer Mousseau’s reputation.

The government claims that Drapeau could have introduced other witnesses
who would “testify regarding their knowledge of Officer Mousseau’s reputation in the
community for aggression or violence.” Indeed, Drapeau attempted to call such
witnesses, but the district court refused to allow these witnesses to testify. The record
reflects that he attempted to do so not once, but twice.

Before trial, Drapeau moved in limine to admit the tribal resolutions and
memorandum to Senator Thune. During the pre-trial discussion of this motion, the
government asserted that only Drapeau should be permitted to testify about Officer

5
Appellee’s motion to expand the record is denied.

-16-
Mousseau’s reputation. The government stated that it “[did] not believe that anybody
else can take the stand and say that [Officer Mousseau] had a reputation in the
community for having a violent nature.” Trial Tr. 14. Drapeau responded that he
“had the chairman of the Winnebago Tribe, John Black Hawk, ready to come up here
and testify as to the problems that they had with him there, in general, his character
traits which led him to . . . be forced out of that community.” Trial Tr. 16-17. The
district court stated that it would view “the information from others about Officer
Mousseau . . . very skeptically.” Trial Tr. 18.

Drapeau then asked the district court to clarify its ruling on whether witnesses
could testify as to Officer Mousseau’s reputation. Drapeau stated,

I do have a question regarding the character of the -- the alleged victim
in this case with respect to the witnesses that take the stand . . . in terms
of what was – “Please describe for me his reputation in the community
as an officer, pertaining to the way that he conducted business.” I think
that’s admissible, and I would ask for a ruling on that particular issue.

Trial Tr. 21. The government responded:

As it relates to these other witnesses, I don’t care if they are my
witnesses or the defense witnesses; their knowledge of [Officer
Mousseau’s] reputation in the community is irrelevant. The only person
whose knowledge is relevant is the defendant’s.

And I cite to [United States v. Bordeaux, 570 F.3d 1041 (8th Cir.
2009)] . . . . That case specifically indicates that the only person’s
knowledge -- you know, he -- he can’t claim a reputation gave him a
right to defend himself if he wasn’t aware of that reputation.”

Trial. Tr. 22. The district court then ruled,

-17-
 Right. The Bordeaux case is instructive. And, [prosecutor], the Court
agrees with you: As to the reputation of Officer Mousseau for anything
other than truthfulness in his community, his reputation as a police
officer, the only -- given that self-defense appears to be the defense, the
only person who -- whose knowledge is pertinent on that subject and on
Officer Mousseau and his reputation is Mr. Drapeau’s. So no other
witness is going to be giving that sort of testimony.

Trial Tr. 22-23.

After the government finished its case-in-chief, Drapeau again attempted to
have other witnesses testify as to Officer Mousseau’s reputation. Drapeau subpoenaed
a number of people who would testify about Officer Mousseau’s character traits,
including brutality, violence, and harassment. Trial Tr. 117. The government
responded to Drapeau’s argument, “[U]nder Bordeaux, I think that’s inadmissible.
The only person whose knowledge is relevant is the defendant’s.” Trial Tr. 120. The
district court agreed with the government, stating “[T]he Court does view the evidence
that way, as I said this morning.” Id.

This was error.
Federal Rule of Evidence 404(a)(2) provides that evidence of a person’s
character is not admissible for proving action in conformity therewith except:

In a criminal case . . . evidence of a pertinent trait of character of the
alleged victim of the crime offered by an accused, or by the prosecution
to rebut the same, or evidence of a character trait of peacefulness of the
alleged victim offered by the prosecution in a homicide case to rebut
evidence that the alleged victim was the first aggressor.

Fed. R. Evid. 404(a)(2). Under this Rule, the district court should have permitted
Drapeau to call his reputation witnesses.

-18-
 This court has previously held that a defendant may introduce testimony from
other witnesses as to the victim’s alleged reputation in the community. For example,
in United States v. Taken Alive, the government charged Taken Alive with assaulting
a police officer. 262 F.3d 711, 711 (8th Cir. 2001). Taken Alive sought to introduce
testimony from two witnesses addressing the officer’s “aggressiveness,
quarrelsomeness, and violence in the performance of his duties as an officer.” Id. at
714. The district court prohibited the witnesses from testifying. Id. We reversed the
district court, holding that “[w]hen a defendant raises a self-defense claim, reputation
evidence of the victim’s violent character is relevant to show the victim as the
proposed aggressor.” Id. We explained that “[a] victim’s use of unlawful force may
justify the defendant’s reciprocal use of force.” Id. (citing United States v. Keiser, 57
F.3d 847, 854 (9th Cir. 1995)).

Moreover, the district court erred in its reliance on Bordeaux. There, this court
held that the defendant was entitled to introduce reputation or opinion testimony
pertinent to his self-defense claim. Bordeaux, 570 F.3d at 1050. In that assault case,
we held that “the district court properly permitted a number of defense witnesses to
testify regarding [the victim’s] reputation[] for violence.” Id. Accordingly, Bordeaux
does not stand for what the district court believed – that Drapeau could not call
witnesses to testify as to Officer Mousseau’s reputation.

Here, the district court reasoned that the evidence was inadmissible because
Drapeau did not establish that he knew of Officer Mousseau’s reputation at the time
of the assault. But such knowledge is not required. As explained in the Federal Rules
of Evidence Manual, § 404.02[2], at 404-10 (9th ed. 2006):

[Rule 404(a)(2)] permits the accused to introduce evidence of a pertinent
character trait of the victim of a crime. The most common example is in
a self-defense case. Under the Rule, the defendant is permitted to
introduce evidence of the victim’s character for aggressiveness (subject
to the limitations on form provided by Rule 405), to create the inference

-19-
 that the victim acted in accordance with that character trait on the
occasion in question. Admissibility is not dependent on the defendant’s
prior awareness of the victim’s character trait; the evidence is admissible
to show how the victim acted.

See also Keiser, 57 F.3d at 855 (reviewing federal cases and concluding that “[t]hese
cases suggest a common understanding in the federal courts that ‘personal knowledge’
of the victim’s propensity for violence is simply not a prerequisite for admission of
victim character evidence under Rule 404(a)(2)”); United States v. Burks, 470 F.2d
432, 437 (D.C. Cir. 1972) (“[E]vidence of the deceased’s violent character is relevant
and admissible even though unknown to the defendant.”). The district court erred in
requiring that Drapeau establish his knowledge of Officer Mousseau’s reputation and
in prohibiting other witnesses from testifying as such.

Although Drapeau objected on several occasions to the district court’s ruling,
he did not specifically raise this issue on appeal. But this failure does not necessarily
preclude review of the district court’s error. See Silber v. United States, 370 U.S. 717,
718 (1962) (reviewing an issue decided by the district court, even though it was not
raised on appeal). As we have explained, this court “can examine a critical issue
affecting substantial rights sua sponte in criminal cases under Federal Rule of
Criminal Procedure 52(b).” DeRoo v. United States, 223 F.3d 919, 926 (8th Cir.
2000). Rule 52(b) provides that, “[a] plain error that affects substantial rights may be
considered even though it was not brought to the court’s attention.” Fed. R. Crim. P.
52(b). Of course, “[t]his power to review issues not raised by the parties must be
exercised only with great caution and its use is restricted ‘to avoid a miscarriage of
justice.’” United States v. Brown, 508 F.2d 427, 430 (8th Cir. 1974) (quoting Johnson
v. United States, 362 F.2d 43, 46 (8th Cir. 1966)). The nature of this case and affect
of the district court’s error merit attention.

Drapeau’s substantial rights were undoubtedly affected by the district court’s
erroneous decision to deny him his right to present a defense. This case boiled down

-20-
to whether Officer Mousseau acted as the aggressor in this incident and whether
Drapeau reasonably defended himself and others against the officer’s unlawful force.
As explained, when a defendant puts forth a self-defense theory, “reputation evidence
of the victim’s violent character is relevant to show the victim as the proposed
aggressor” and the “victim’s use of unlawful force may justify the defendant’s
reciprocal use of force.” See Taken Alive, 262 F.3d at 714. Drapeau had a
fundamental right to present a defense, see United States v. Turning Bear, 357 F.3d
730, 733 (8th Cir. 2004), and the district court denied him of this right by excluding
all evidence of Officer Mousseau’s reputation for aggression, unlawfulness, and
excessive force which should have been admitted under Fed. R. Evid. 404(a)(2).

After considering the clearly established law and the blatant error, I believe that
failing to correct this error would result in a miscarriage of justice. Accordingly, I
would reverse and remand for a new trial at which the district court should permit
Drapeau to introduce testimony of Officer Mousseau’s reputation in the community.

Finally, I conclude by expressing my extreme disbelief in the treatment Drapeau
and his family members received at the hands of Officer Mousseau. His actions were
deplorable, beyond reproach and should not be tolerated. Although the law should not
permit Drapeau to cause Officer Mousseau physical harm, neither should it entrust
Officer Mousseau with the responsibility of safeguarding the well-being of the people
living on Indian reservations in South Dakota.
______________________________

-21-