(concurring in part and dissenting in part).
I concur in Part I (Jurisdiction) and Part II (Informant) of the majority opinion. I also concur in Part V affirming the convictions of Alvarado and Williams.
I concur in so much of Part IV as affirms the conviction of Escamilla, but I decline to join in the majority’s cautionary remarks with respect to jury instructions on eyewitness identification.
I dissent from Part III reversing for insufficiency of evidence the conspiracy convictions of Fleury, Wesaw, Johns, and Dodge.
A.
Nos. 75-1173 and 75-1498
The majority reverses the conspiracy convictions in these court-tried cases on the basis of insufficiency of evidence.
Both the existence of a conspiracy and a defendant’s participation in that scheme may be established by circumstantial evidence. United States v. Overshon, 494 F.2d 894, 895-96 (8th Cir.), cert. denied, 419 U.S. 853, 95 S.Ct. 96, 42 L.Ed.2d 85 (1974); Langel v. United States, 451 F.2d 957, 961 (8th Cir. 1971); Jacobs v. United States, 395 F.2d 469, 472 (8th Cir. 1968). It is now well-established that circumstantial evidence is no less probative than direct evidence and that its sufficiency in criminal cases is to be measured by the reasonable doubt standard. See Holland v. United States, 348 U.S. 121, 13940, 75 S.Ct. 127, 137, 99 L.Ed. 150,166 (1954); United States v. Nelson, 419 F.2d 1237, 1239-41 (9th Cir. 1969). The convictions should stand if inferences from evidence of the relationship between the parties and of overt acts, conduct, and other probative circumstances establish agreement beyond a reasonable doubt. See, e. g., United States v. Hutchinson, 488 F.2d 484, 490 (8th Cir. 1973), cert. denied, 417 U.S. 915, 94 S.Ct. 2616, 41 L.Ed.2d 219 (1974); United States v. Nelson, supra, 419 F.2d at 1239-41. Indeed, wide latitude has been allowed the district courts in admitting evidence tending to establish a conspiracy, since no express communication of agreement is required. See generally Developments in the Law — Criminal Conspiracy, 72 Harv.L.Rev. 920, 984 (1959).1
*788Applying this standard of review, I would have no difficulty in sustaining the convictions of Fleury, Wesaw, Dodge, and Johns for conspiracy to violate 18 U.S.C. § 231(a)(3). The principal evidence of conspiracy, viewed in the light most favorable to the convictions, see United States v. Cummings, 507 F.2d 324, 329 (8th Cir. 1974), is as follows:
On April 27, 1973, there was a condition of civil disorder at the Village of Wounded Knee, South Dakota, in the Pine Ridge Indian Reservation, and federal law enforcement officers were engaged in lawful performance of their duties in attempting to quell the disorder. Approximately ten miles to the northeast of Wounded Knee was the ranch on which James and Joanne Larabee resided. At 11:15 a.m. that day, Mark Fleury entered the Larabee house armed with a rifle and attempted to coerce Mrs. Larabee, who was alone with her children, to provide automobile transportation to Wounded Knee. According to Mrs. Larabee, Fleury stated that “we” needed a ride to Wounded Knee. Mrs. Larabee managed to radio her husband for help, and Fleury departed in haste. From her doorway, Mrs. Larabee observed Larry Johns standing immediately outside the door. Fleury and Johns walked away from the house and were soon joined by Colin Wesaw and Reginald Dodge. The four were observed walking in the direction of Wounded Knee.
A number of armed ranchers arrived in response to the call for assistance. They observed that the four defendants were armed and surrounded them at a distance. The defendants were located in the cover of a natural depression. Two Bureau of Indian Affairs police officers arrived in a marked patrol car and utilized a loudspeaker to inform the defendants of their presence and to order them to surrender. Two of the defendants responded with a discharge of firearms, whereupon the officers returned fire into the trees above their heads and again ordered the defendants to surrender. After a brief delay, shots were again exchanged and shortly thereafter the defendants surrendered and were arrested.
A search of the area in which the defendants had been located disclosed a loaded rifle and shotgun, matching ammunition, non-matching rifle ammunition, and a bow and arrows. Several backpacks containing clothes and minor medical supplies were also discovered. A search of Dodge revealed a band of shotgun shells taped to his arm.
Immediately after their surrender, both Johns and Fleury asked ranchers the directions to Wounded Knee, and Johns stated: “We shouldn’t have shot at those guys.” Fleury stated to one of the ranchers: “We are going to win at Wounded Knee no matter what you do.”
The defendants were apparently released sometime after the arrest. On May 7,1973, Dodge was stopped and searched at a roadblock at Wounded Knee, and was found to be carrying substantial amounts of ammunition as well as a letter addressed “To All Brothers in Wounded Knee”. This petition of support was signed by Fleury and four other individuals. On May 8, 1973, Wesaw was arrested at a Wounded Knee roadblock while attempting to gain medical aid for another.
The evidence established that the defendants had agreed to travel to Wounded Knee and that they knew that it was the scene of a civil disorder involving federal officers. The circumstantial evidence of the intent of the defendants to violate 18 U.S.C. § 231(a)(3) by obstructing, impeding, or interfering with federal officers at Wounded Knee is substantial: (1) the possession of weapons and ammunition while traveling to Wounded Knee; (2) the willingness of the defendants to engage in a firefight with federal officers at the Larabee ranch; (3) the willingness of at least Fleury and Johns *789to violate state, and possibly federal, law in order to get to Wounded Knee by coercing a ride from Mrs. Larabee; (4) Fleury’s statement that “We are going to win at Wounded Knee no matter what you do”; and (5) the May 7th and 8th occurrences at Wounded Knee roadblocks.2 It seems difficult to imagine in the face of such conduct that the defendants lacked the requisite knowledge of or intent to join in a conspiracy to obstruct, impede, or interfere with federal officers in the lawful performance of their duties.3 See United States v. Nelson, supra, 419 F.2d at 1239. As the District Court found: “No other reasonable inference can be drawn from the evidence as to the purpose of the defendants acting in concert, as they did, with the weapons and ammunition they possessed.”
I, therefore, respectfully dissent from the finding of insufficient evidence, and would affirm the convictions.
B.
No. 75-1398
I concur in the holding that the refusal of the District Court to give Bernard Bravo Escamilla’s proposed eyewitness identification instructions did not constitute reversible error. While I further agree that the fallibility of eyewitness identification is an appropriate concern in cases where identification of a defendant is based solely on eyewitness testimony, I cannot concur with the majority insofar as it intimates that the failure to give instructions similar to the Telfaire model instructions4 will be inherently suspect.
Neither the Telfaire model instructions nor what the majority terms “specific and detailed” identification instructions have ever been required in this circuit. Rather, we have consistently aligned with those circuits which leave the matter of giving an identification instruction, as well as the specificity thereof, to the discretion of the district court. Cullen v. United States, 408 F.2d 1178, 1181 (8th Cir. 1969); Jones v. United States, 358 F.2d 383, 385-86 (8th Cir. 1966). See United States v. Sambrano, 505 F.2d 284, 286-87 (9th Cir. 1974); United States v. Evans, 484 F.2d 1178, 1187-88 (2d Cir. 1973). Assuming adequate opportunity for cross-examination, summation, and appropriate burden of proof and credibility instructions, as was the case here, it seems inappropriate to preempt the reasoned discretion of the district courts by holding that “grave concern” will necessarily result from the failure to utilize “specific and detailed” eyewitness identification instructions. Such a result is tantamount to adoption of the Telfaire instructions, an indulgence which the majority expressly disclaims.
. In my view, 18 U.S.C. § 231(a)(3) does not apply to acts arguably protected by the First Amendment, see United States v. Mechanic, 454 F.2d 849, 852 (8th Cir. 1971), cert. denied, 406 U.S. 929, 92 S.Ct. 1765, 32 L.Ed.2d 131 (1972). Therefore, a review of the present convictions does not require the stricter standards ' of proof delineated in Scales v. United States, *788367 U.S. 203, 229-32, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961), and Noto v. United States, 367 U.S. 290, 299-300, 81 S.Ct. 1517, 6 L.Ed.2d 836 (1961). Evidence of knowledge of the conspiracy and an intent to violate 18 U.S.C. § 231(a)(3) may be established by any relevant evidence, direct or circumstantial, which satisfies the trier of fact of the guilt of the defendant beyond a reasonable doubt.
. Evidence also established that at least Fleury, Wesaw, and Dodge were sympathizers and possibly members of the American Indian Movement (AIM) and that AIM had a significant connection with the civil disorder at Wounded Knee. While guilt cannot be established by association alone, see United States v. Cohen, 489 F.2d 945, 948 (2d Cir. 1973), this evidence is nonetheless probative of the purpose, scope, and existence of the conspiracy as well as the intent of these specific individuals with respect to the conspiracy.
. While this evidence is not as substantial as to Wesaw and Johns as it is to Fleury and Dodge, it is well settled that once the existence of a conspiracy is established, even slight evidence connecting other defendants to the conspiracy may be sufficient proof of involvement in the scheme. See United States v. Overshon, 494 F.2d 894, 896 (8th Cir.), cert. denied, 419 U.S. 853, 95 S.Ct. 96, 42 L.Ed.2d 85 (1974); United States v. Hutchinson, 488 F.2d 484, 490 (8th Cir. 1973), cert. denied, 417 U.S. 915, 94 S.Ct. 2616, 41 L.Ed.2d 219 (1974); Langel v. United States, 451 F.2d 957, 961-62 (8th Cir. 1971).
. United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552, 558-59 (1972).