Court upholds former Rosebud public defender’s conviction

By Chet Brokaw
Pierre, South Dakota (AP) 9-07
A federal appeals court has upheld the drug conviction and prison sentence of a former public defender for the Rosebud Sioux Tribe.

Travis Whirlwind Soldier, 29, of Mission, was convicted in June 2006 of conspiracy to distribute and possess with intent to distribute methamphetamine. U.S. District Judge Richard Battey sentenced him to more than 15 years in prison. A three-judge panel of the 8th U.S. Circuit Court of Appeals rejected Whirlwind Soldier’s arguments that prosecutors failed to present enough evidence to convict him, that the jury was allowed to convict him of something other than what he was originally charged with, and his sentence was too harsh.

Whirlwind Soldier worked as public defender for the Rosebud Sioux Tribal Court. A number of witnesses testified in his trial that he frequently bought, sold, traded, delivered and shared meth and other drugs.

One witness said that after his arrest on domestic violence charges, Whirlwind Soldier offered to get him out of jail in return for his help in delivering drugs. Another witness said she gave Whirlwind Soldier meth for his help in getting charges dismissed against her in tribal court.

The appeals judges noted that witnesses said Whirlwind Soldier used his position as public defender to persuade others to cooperate with him in drug deals.

U.S. Attorney Marty J. Jackley said the appeals court decision helps support his office’s effort to make South Dakota’s Indian reservations safer places to live.

After summarizing the testimony of more than a half dozen witnesses, the appeals panel ruled that prosecutors had presented enough evidence to support Whirlwind’s conviction for conspiracy. Whirlwind Soldier argued that he merely obtained methamphetamine for his personal use, but witnesses testified they had bought the drug from him or had seen him sell to others, the appeals judges said.

Witnesses also described incidents in which Whirlwind Soldier agreed with others to distribute, buy, sell and deliver drugs, the appeals panel said.

“The testimony of these witnesses is sufficient for a reasonable juror to conclude that Whirlwind Soldier had reached agreements to participate in the distribution of methamphetamine,” the appeals judges said.

Whirlwind Soldier argued his trial was unfair because prosecutors presented a case that differed from the original charges against him, but the appeals decision said the trial evidence was substantially the same as that in the indictment.

The appeal also contended the trial was conducted in a way that allowed the jury to convict him of improperly using his public office.

However, the appeals judges said the jury was instructed that Whirlwind Soldier was charged with conspiracy and the evidence presented in the trial supported that charge.

Battey based Whirlwind Soldier’s sentence on federal advisory guidelines that took into account the amount of drugs involved in the various transactions. The judge also increased the sentence because he found that Whirlwind Soldier had obstructed justice by lying about some issues in the trial.

Whirlwind Soldier argued his sentence should have been reduced because he had a minimal role in the conspiracy, but the appeals court rejected his contention.

“Whirlwind Soldier was an active and frequent seller of methamphetamine and was responsible for coordinating the transportation and distribution of drugs by others,” the appeals judges wrote.