United States v. Gerard P. Kills Enemy, 3 F.3d 1201 (8th Cir. 1993). · Go Syfert
United States v. Gerard P. Kills Enemy, 3 F.3d 1201 (8th Cir. 1993). Cases Citing This Book View Copy Cite
G Cite
57 citation events (43 in the last 25 years) across 13 distinct courts.
Strongest positive: Calvin Leslie v. Cecilia Stern, et al. (nvd, 2025-11-14)
Treatment trajectory · 1994 → 2026 · click a year to view as-of
1994 2010 2026
Top citers, strongest first. 24 distinct citers. How cited ↗
discussed Cited as authority (rule) Calvin Leslie v. Cecilia Stern, et al. (2×) also: Cited "see"
D. Nev. · 2025 · confidence medium
See id. at 874 (citing United States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir. 1993)); Kills Enemy, 3 F.3d at 1203 (“A convicted person awaiting sentence is no 22 longer entitled to a presumption of innocence or presumptively entitled to his freedom. . . .
discussed Cited as authority (rule) Leslie v. Stern (2×) also: Cited "see"
D. Nev. · 2025 · confidence medium
See id. at 874 (citing United States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir. 1993)); Kills Enemy, 3 F.3d at 1203 (“A convicted person awaiting sentence is no 22 longer entitled to a presumption of innocence or presumptively entitled to his freedom. . . .
cited Cited as authority (rule) Lavelle v. CL West Management LLC
E.D. Wash. · 2023 · confidence medium
P’ship, 521 3 F.3d 1201, 1207 (9th Cir. 2008). 4 2.
cited Cited as authority (rule) Javier v. Assurance IQ, LLC
N.D. Cal. · 2023 · confidence medium
Godecke v. Kinetic Concepts, Inc., 937 3 F.3d 1201, 1208 (9th Cir. 2019).
cited Cited as authority (rule) Rogalinski v. Meta Platforms, Inc.
N.D. Cal. · 2022 · confidence medium
Godecke v. Kinetic Concepts, Inc., 937 3 F.3d 1201, 1208 (9th Cir. 2019).
cited Cited as authority (rule) Temple of 1001 Buddhas v. City of Fremont
N.D. Cal. · 2021 · confidence medium
Godecke v. Kinetic Concepts, Inc., 937 3 F.3d 1201, 1208 (9th Cir. 2019).
discussed Cited as authority (rule) State v. Jorgenson
Wash. · 2013 · confidence medium
Courts have long recognized the distinctions between those convicted of a crime and pretrial detainees. 17 Scott, 450 F.3d at 878 (contrasting pretrial releasees with convicted persons and noting that the latter “ ‘is no longer entitled to a presumption of innocence or presumptively entitled to his [or her] freedom’ ” (quoting United States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir. 1993))).
discussed Cited as authority (rule) State v. Jorgenson
Wash. · 2013 · confidence medium
Courts have long recognized 7 No. 87448-4 (Wiggins, J., dissenting) the distinctions between those convicted of a crime and pretrial detainees. 7 Scott, 450 F.3d at 878 (contrasting pretrial releasees with convicted persons and noting that the latter "is no longer entitled to a presumption of innocence or presumptively entitled to his [or her] freedom" (quoting United States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir. 1993))).
examined Cited as authority (rule) United States v. Raymond Lee Scott (4×) also: Cited "see"
9th Cir. · 2006 · signal: cf. · confidence medium
See Salerno, 481 U.S. at 747, 750-52 , 107 S.Ct. 2095 ; cf. United States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir.1993) (contrasting pretrial releasees with convicted persons awaiting sentence, and noting that the latter are “no longer entitled to a presumption of innocence or presumptively entitled to [their] freedom”).
discussed Cited as authority (rule) United States v. Scott (2×) also: Cited "see"
9th Cir. · 2006 · signal: cf. · confidence medium
See Salerno, 481 U.S. at 747, 750-52 ; cf. United States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir. 1993) (contrasting pre-trial releasees with convicted persons awaiting sentence, and noting that the latter are “no longer entitled to a presumption of innocence or presumptively enti- tled to [their] freedom”).
discussed Cited as authority (rule) United States v. Scott (2×) also: Cited "see"
9th Cir. · 2005 · signal: cf. · confidence medium
See Salerno, 481 U.S. at 747, 750-52 ; cf. United States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir. 1993) (con- trasting pre-trial releasees with convicted persons awaiting sentence, and noting that the latter are “no longer entitled to a presumption of innocence or presumptively entitled to [their] freedom”).
examined Cited as authority (rule) United States v. Raymond Lee Scott (4×) also: Cited "see"
9th Cir. · 2005 · signal: cf. · confidence medium
See Salerno, 481 U.S. at 747, 750-52 , 107 S.Ct. 2095 ; cf. United States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir. 1993) (contrasting pre-trial releasees with convicted persons awaiting sentence, and noting that the latter are "no longer entitled to a presumption of innocence or presumptively entitled to [their] freedom").
discussed Cited as authority (rule) United States v. Thomas Cameron Kincade (2×)
9th Cir. · 2004 · confidence medium
United States v. Harper, 928 F.2d 894 , 896 n. 1 (9th Cir.1991) (Kozinski, J.); see also Griffin v. Wisconsin, 483 U.S. 868, 873-74 , 107 S.Ct. 3164 , 97 L.Ed.2d 709 (1987); Green v. Berge, 354 F.3d 675, 680 (7th Cir.2004) (Easterbrook, J., concurring); United States v. Hill, 967 F.2d 902, 909 (3d Cir.1992); cf. United States v. Woodrup, 86 F.3d 359 , 361-62 & n. 4 (4th Cir.1996) (analogizing parole, probation, and supervised release); United States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir.1993) (treating parole and probation search conditions alike and applying them to pre-sentence release …
discussed Cited as authority (rule) United States v. Replogle
D. Neb. · 2001 · confidence medium
The Eighth Circuit explained in United States v. Vincent, 167 F.3d 428 (8th Cir.1999) that the reasonableness of a war-rantless search condition stems from the fact that “[p]rohibitions on violations of the law are not self-executing, and a ‘search condition has an obvious relation to public safety in making it easier ... to enforce *967 prohibitions.’ ” Id. at 431 (quoting United States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir.1993)).
discussed Cited as authority (rule) United States v. Jeffrey Clark Vincent
8th Cir. · 1999 · confidence medium
Prohibitions on violations of the law are not self-executing, and a “search condition has an obvious relation to public safety in making it easier ... to enforce the prohibitions.” United States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir.1993).
discussed Cited as authority (rule) United States v. Jeffrey C. Vincent
8th Cir. · 1999 · confidence medium
Prohibitions on violations of the law are not self-executing, and a “search condition has an obvious relation to public safety in making it easier . . . to enforce the prohibitions.” United States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir. 1993).
discussed Cited as authority (rule) Rowe v. Lamb (2×) also: Cited "see"
8th Cir. · 1998 · confidence medium
See, e.g., Griffin, 483 U.S. at 880 , 107 S.Ct. at 3172 (search of probationer's residence was reasonable pursuant to a valid state regulation governing probationers); Kills Enemy, 3 F.3d at 1203 (search was reasonable under a federal statute); Schoenrock, 868 F.2d at 292-93 (search of probationer's residence was reasonable under conditions imposed by a sentencing judge). 8 Because the terms of his probation order provided that he was subject to a warrantless search of his home at any time by any law enforcement officer, and because that term was reasonable, Rowe had no Fourth Amendment right …
discussed Cited as authority (rule) Anthony J. Rowe v. Bryan Lambe (2×) also: Cited "see"
8th Cir. · 1997 · confidence medium
See, e.g., Griffin, 483 U.S. at 880 , 107 S.Ct. at 3172 (search of probationer’s residence was reasonable pursuant to a valid state regulation governing probationers); Kills Enemy, 3 F.3d at 1203 (search was reasonable under a federal statute); Schoenrock, 868 F.2d at 292-93 (search of probationer’s residence was reasonable under conditions imposed by a sentencing judge).
discussed Cited "see" United States v. Dustin Leroy Ingle
10th Cir. · 2006 · signal: see · confidence high
See United States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir.1993) (contrasting pretrial releases with convicted persons awaiting sentence, and noting that the latter are “no longer entitled to a presumption of innocence or presumptively entitled to [their] freedom”).
discussed Cited "see" United States v. Ingle
10th Cir. · 2006 · signal: see · confidence high
See U nited States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir. 1993) (contrasting pretrial releasees with convicted persons awaiting sentence, and noting that the latter are “no longer entitled to a presumption of innocence or presumptively entitled to [their] freedom”).
discussed Cited "see" United States v. Robert Thomas Neary
8th Cir. · 1994 · signal: see · confidence high
See United States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir. 1993), cert. denied, 114 S. Ct. 1121 (1994). 5 Neary argues that the court acted vindictively against him because his original supervised release term did not contain these two conditions.
discussed Cited "see, e.g." Blomstrom v. Tripp
Wash. · 2017 · signal: see also · confidence medium
But it is that necessity that justifies the intrusions, not your subjective expectations. 26 Compare Scott, 450 F.3d at 873 ("People released pending trial, by contrast [to probationers], have suffered no judicial abridgment of their constitutional rights."), with id. at 885 (Bybee, J., dissenting) ("Scott's reasonable expectation of privacy may be somewhat greater than that of a probationer, parolee, or presentence reieasee, but it is less than that of an 'ordinary citizen'"); see also United States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir. 1993)(contrasting the rights of pretrial releasees…
discussed Cited "see, e.g." State v. Ullring
Me. · 1999 · signal: see also · confidence medium
“Without such testing, the court ordinarily would have no reasonable means to determine whether the defendant has complied with the condition of his release proscribing use of unlawful drugs.” Id.; see also United States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir.1993) (upholding presentence release condition authorizing warrantless search).
discussed Cited "see, e.g." United States v. Scott
D.S.D. · 1996 · signal: see also · confidence medium
DISCUSSION “Probationers do not receive ‘the absolute liberty to which every citizen is entitled, but only ... conditional liberty properly dependent on observance of [probation] restrictions.’” United States v. Schoenrock, 868 F.2d 289, 292 (8th Cir.1989) (quoting Griffin v. Wisconsin, 483 U.S. 868, 874 , 107 S.Ct. 3164, 3168-69 , 97 L.Ed.2d 709 (1987)); see also, United States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir.1993), cert. denied, 510 U.S. 1138 , 114 S.Ct. 1121 , 127 L.Ed.2d 430 (1994).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Gerard P. KILLS ENEMY, Appellant
12-2524.
Court of Appeals for the Eighth Circuit.
Oct 18, 1993.
3 F.3d 1201
Frank A. Bettmann, Rapid City, SD, argued, for appellant., Steven Douglas Rich, Rapid City, SD, argued (Kevin V. Schieffer and Steven D. Rich, on the brief), for appellee.
Arnold, Gibson, Fagg.
Cited by 33 opinions  |  Published
JOHN R. GIBSON, Circuit Judge.

Gerard Kills Enemy appeals his conviction for possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1) (1988). While Kills Enemy was subject to a pre-sentence release order relating to another conviction, FBI agents and tribal police on the Oglala Sioux Reservation searched his home, relying on a provision of the presentence order granting unrestricted authority to conduct warrantless searches. During the search they found the cocaine in issue here. Kills Enemy claims the warrantless search provision of the presentence release is invalid. He also complains of Fed.R.Evid. 404(b) evidence admitted at trial, and of the government’s use of a venireman as a witness at trial. We affirm the judgment of the district court. [1]

Kills Enemy pleaded guilty to possession of marijuana with intent to distribute on January 31,1992. At the time of his arraignment on the marijuana charge, he was released under an order which included a condition permitting unrestricted warrantless search of his person or place of residence. Between the time of the plea and sentencing, Kills Enemy’s bond was continued under the same conditions as those of the pretrial release order.

On March 4, after receiving information that Kills Enemy was dealing drugs, FBI agents and tribal police officers searched the house where Kills Enemy was living. While agents were searching Kills Enemy’s toolbox, Kills Enemy put his hand in the box and “palmed” a package, which turned out to contain eight bindles of cocaine. Police also found other items in the house that appeared to be paraphernalia associated with cocaine and marijuana, and a letter to Kills Enemy proposing a trade of marijuana cigarettes for marijuana seeds.

Kills Enemy moved to suppress the evidence seized, but the magistrate judge [2] recommended that the court deny his motion, likening Kills Enemy’s situation to that of a convict on probation or supervised release, and therefore relying on Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), United States v. Schoenrock, 868 F.2d 289, 293 (8th Cir.1989), and United States v. Sharp, 931 F.2d 1310, 1311 (8th[*1203] Cir.1991). The district court followed the magistrate’s recommendation.

Kills Enemy argues that the search conditions were not necessary to assure public safety as required under 18 U.S.C. § 3142(c)(l)(B)(xiv) (1988), because the release order already included a condition explicitly prohibiting Kills Enemy from using alcohol or drugs or violating any laws. This is a disingenuous argument; the prohibitions on drug use and violations of the law are not self-executing, and the search condition has an obvious relation to public safety in making it easier for police to enforce the prohibitions on drug use and other violations of law. This enhanced enforcement power gives society the extra measure of protection necessary when releasing a convicted drug merchant pending sentencing. See 18 U.S.C. §§ 8143 and 3142(c)(1)(B)(xiv) (1988 and Supp. III 1990).

Kills Enemy also objects to the search term as overbroad. The search condition as drafted was quite unrestricted. It might well have been narrowed to permit a search only for drugs. But even if the condition is overbroad, we may still uphold the search if the search authority was narrowly and properly exercised. Schoenrock, 868 F.2d at 292. Before the search, the FBI had received information that Kills Enemy had continued to deal in marijuana and cocaine after his guilty plea on the' marijuana charge. His probation officer had requested a urine sample for drug testing and Kills Enemy had delayed taking the test for four or five days, long enough to purge drugs from his system. Under the circumstances, the search was not a greater intrusion than was necessary to “assure the safety ... of the community,” and therefore was authorized by statute. See 18 U.S.C. §§ 3143, 3142(c)(1)(B)(xiv); Schoenrock, 868 F.2d at 292.

Kills Enemy also contends that the condition of a convicted person on presentence release is analogous to that of a pretrial releasee, not to a probationer or convict on supervised release, and consequently there is not the same justification for abridgement of his fourth amendment rights as existed in Griffin, Schoenrock, and Sharp. We reject this argument. A convicted person awaiting sentence is no longer entitled to a presumption of innocence or presumptively entitled to his freedom. Compare 18 U.S.C. §§ 3142(b) (presumption in favor of pretrial release) and 3143(a) (presumption of detention pending sentence). As with the parole and probation cases, there is a heightened need for close supervision of the convicted person’s activities to protect society and the releasee himself, and the releasee is entitled only to a conditional liberty. See Griffin, 483 U.S. at 874; United States v. Hill, 967 F.2d 902, 908-09 (3d Cir.1992). In particular, in cases involving drugs, authorities supervising the convict “must be able to act based upon a lesser degree of certainty than the Fourth Amendment would otherwise require in order to intervene before [the person] does damage to himself or society.” Griffin, 483 U.S. at 879. We consider Kills Enemy’s case analogous to Griffin, Schoenrock, and Sharp, and it shall be governed by them.

Kills Enemy complains about admission under Fed.R.Evid. 404(b) of various items of “other crimes” evidence pertaining to Kills Enemy’s distribution of marijuana. He complains first about testimony of John High Hawk, who had lived in the same house with Kills Enemy. Before High Hawk testified, the government stated that he would testify that he knew Kills Enemy was selling cocaine. In fact, High Hawk only testified that he had seen Kills Enemy selling marijuana. Next Kills Enemy complains about the Rule 404(b) testimony of Amos American Horse, that he had bought marijuana from Kills Enemy up to the night before Kills Enemy was arrested on the cocaine charge, and that Kills Enemy had supplied him with cocaine gratuitously. Finally, he complains about admission of the letter offering a trade of marijuana for seeds.

In all three cases the government contends that the evidence of other bad acts is relevant to show intent to distribute the cocaine. The government contends that the other crimes evidence simply shows Kills Enemy had the cocaine because he was in the drug supply business and intended to distribute the drugs. Kills Enemy contends that evidence regarding marijuana distribution is not relevant to intent to distribute cocaine.

[*1204] Under Rule 404(b) evidence of other crimes committed by the defendant may be admitted if: (1) it is relevant to a material issue (in this case, intent to distribute); (2) it is similar in kind and reasonably close in time to the crime charged; (3) the other crimes are proved by a preponderance of the evidence; and (4) the probative value outweighs the prejudicial effect of the evidence. United States v. Longbehn, 898 F.2d 635, 639 (8th Cir.), cert. denied, 495 U.S. 952, 110 S.Ct. 2217, 109 L.Ed.2d 542 (1990). The trial court has broad discretion in making Rule 404(b) rulings and we may overturn its rulings only if the record shows that the evidence clearly had no bearing on the issues at trial. Id.

Though we may perhaps have resolved the evidentiary questions differently were they before us in the first instance, we cannot say as a matter of law that evidence of contemporaneous marijuana dealing has “no bearing” on whether the defendant intended to distribute other drugs in his possession. See United States v. Haynes, 881 F.2d 586, 590 (8th Cir.1989) (past operation of marijuana business relevant to intent to distribute cocaine). We cannot reverse on this ground.

Finally, Kills Enemy complains that the district court erred in permitting Amos American Horse to testify. American Horse had been a venireman, but was excused for cause when he stated that Kills Enemy was his friend and former neighbor. The government then contacted American Horse and called him as a witness.

Kills Enemy contends that it was error to permit American Horse to testify because he had served on the venire with persons who became the jurors in this case, and he may have become acquainted with them or otherwise made an impression, either favorable or unfavorable, on the jurors. Kills Enemy cites Fed.R.Evid. 606, which bars jurors from testifying.

Rule 606 is not applicable to veniremen, as opposed to jurors, and does not require us to reverse. Nevertheless, we must express our concern about the government’s actions in calling American Horse to the stand. Though we have nothing but speculation in this case about the possible effect on jurors in calling a former venireman to testify, we consider this a close case. In a case with a developed record with evidence of real harm, the result might well be different.

In this case, however, we affirm the judgment of the district court.

1

. The Honorable Richard H. Battey, United States District Judge for the District of South Dakota.

2

. The Honorable Marshall P. Young, United States Magistrate Judge for the District of South Dakota.