173690P.pdf   11/16/2018  United States  v.  Calmer Cottier
   U.S. Court of Appeals Case No:  17-3690
   U.S. District Court for the District of South Dakota - Rapid City   
   [PUBLISHED] [Erickson, Author, with Wollman and Loken, Circuit Judges] 
   Criminal Case - conviction and sentence. On appeal from a conviction for 
   aiding and abetting second degree murder and conspiracy to commit assault, 
   there was sufficient evidence to prove beyond a reasonable doubt that the 
   victim was killed in Indian country, that Cottier, an Indian, knew the 
   assault was being committed and aided in its commission, and that Cottier 
   acted recklessly and with wanton disregard of human life. The district 
   court did not abuse its discretion in instructing the jury regarding the 
   level of intent required as an aider and abetter. The government did not 
   improperly vouch for the credibility of witnesses by comments made at 
   closing argument or by offering into evidence factual basis statements of 
   co-defendants, and Cottier did not demonstrate he was prejudiced by the 
   admission of the statements. Admission of evidence about a sexual incident 
   that took place before the events leading up to the murder, although 
   prejudicial, does not warrant reversal, as the district court acted to 
   minimize the prejudice, gave cautionary instructions, gave wide latitude 
   on cross-examination and made the parties resolve confusion about any 
   incorrect impressions left with the jury and, in any event, any error was 
   harmless. The district court did not err in assessing criminal history 
   points, and in any event, the district court departed downward to criminal 
   history category I.