United States v. Lona Lee Colhoff , 833 F.3d 980 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-2800
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Lona Lee Colhoff,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the District of South Dakota - Rapid City
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Submitted: May 19, 2016
Filed: August 19, 2016
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Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
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COLLOTON, Circuit Judge.
A jury convicted Lona Lee Colhoff on two counts of conspiracy to distribute
a controlled substance, see 21 U.S.C. §§ 846, 841(a), (b)(1), and one count of
attempted witness tampering, see 18 U.S.C. § 1512(b)(1). The district court1
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The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
sentenced Colhoff to concurrent forty-five month sentences for each conviction. On
appeal, Colhoff argues that the conspiracy charges and the witness-tampering charge
were improperly joined. She also challenges the sufficiency of the evidence on the
witness-tampering conviction and asserts that the statement underlying her conviction
was protected expression under the First Amendment. We affirm.
I.
This case involves the prosecution of a drug-distribution network headed by
Colhoff’s brother, Gerald LeBeau. Gerald relied on a network of family members and
friends to transport, store, and distribute cocaine and marijuana on and around the
Pine Ridge Indian Reservation. His distribution network included his siblings
(Colhoff, Twila LeBeau, and Marlyn “Tuck” LeBeau, Sr.), sons (Neil and Pablo
LeBeau), wife (Marie Zephier), sisters-in-law (Whitney Zephier and Kateria Patton),
and mother-in-law (Susan Schrader).
Gerald stored drugs and money at Colhoff’s house. Several of Gerald’s dealers
testified to obtaining drugs for distribution from Colhoff’s home. Gerald was present
for some of these transactions, but dealers also would pick up the drugs directly from
Colhoff and deposit money with her for Gerald. Gerald was arrested in 2011 for a
supervised release violation and in 2014 for possession of cocaine. While Gerald was
incarcerated, Colhoff collected money on Gerald’s behalf, coordinated at least one
delivery of cocaine, and conveyed messages from Gerald to other members of the
conspiracy.
A grand jury charged Colhoff, along with Twila and Pablo LeBeau, with two
counts of conspiracy to distribute a controlled substance. A separate indictment
charged Susan Schrader, Whitney and Marie Zephier, and two others with various
conspiracy and distribution offenses. There was testimony in the Colhoff trial that
Schrader and her co-defendants, like Colhoff, were involved with Gerald LeBeau’s
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drug-distribution operation. With the exception of Colhoff and Schrader, all of the
defendants named in the two indictments pleaded guilty.
Schrader’s trial commenced first. The same FBI agent was the case agent for
both the Schrader and Colhoff trials, and several witnesses were scheduled to testify
at both trials. Tr. 57. The government subpoenaed Colhoff’s brother, Tuck LeBeau,
as a potential witness against Schrader. On the second day of the Schrader trial,
Colhoff transported Tuck to the United States Attorney’s Office and waited for him
in the lobby. Brady Ferguson was also present in the lobby. Ferguson had also been
subpoenaed to testify in the Schrader trial and was present for a meeting with Officer
Preston Patterson, a state law enforcement officer tasked to the FBI Drug Task Force.
For at least part of this time, Colhoff and Ferguson were alone.
Ferguson testified that after Tuck left the waiting room, Colhoff threatened him
for “snitching” on a fellow Native American. Specifically, Colhoff told him:
I don’t understand you guys just f***ing turning against your own
people. All they are trying to do is divide and conquer the
people. . . . Just a bunch of snitches. Do the crime, but can’t do the
time. Why don’t you guys just do the time? . . . Snitches get stitches.
That’s all you guys are. That’s all you guys are, snitches. . . . Should
have listened to Russell Means.
Ferguson testified that he did not know Colhoff, and that he suspected at the
time that she was Schrader’s sister. Ferguson reported this perceived threat to
Patterson. Based on Colhoff’s statement to Ferguson, the government obtained a
superseding indictment and added a charge of attempted witness tampering against
Colhoff. A jury later convicted Colhoff on all counts.
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II.
Colhoff argues that the conspiracy charges were improperly joined with the
witness-tampering charge. Joinder of offenses is permissible when the charges “are
of the same or similar character, or are based on the same act or transaction, or are
connected with or constitute parts of a common scheme or plan.” Fed. R. Crim. P.
8(a). Rule 8(a) is “broadly construed in favor of joinder to promote judicial
efficiency.” United States v. McCarther, 596 F.3d 438, 441-42 (8th Cir. 2010).
Colhoff did not challenge the joinder in the district court, so we review for plain
error. United States v. Yates, 734 F.2d 368, 370 (8th Cir. 1984); see Fed. R. Crim. P.
52(b).
Witness tampering is “factually interrelated” with the proceeding in which the
defendant attempted to interfere. United States v. Rock, 282 F.3d 548, 552 (8th Cir.
2002); accord United States v. Mann, 701 F.3d 274, 289-90 (8th Cir. 2012). Joinder
of a tampering or obstruction charge with an underlying substantive offense is proper,
because the former is “connected to, and interrelated with” the latter. United States
v. Little Dog, 398 F.3d 1032, 1037 (8th Cir. 2005). While our prior decisions
involved attempts by a defendant to obstruct his own prosecution, we do not think it
was plain error for the district court to extend the logic to an attempt to impede the
prosecution of another drug trafficker who was supplied by the same person as the
defendant. Colhoff and Schrader were charged in separate indictments with
conspiring to distribute drugs. There was evidence at Colhoff’s trial that Gerald
LeBeau distributed cocaine to both women for redistribution. Witnesses in the
Colhoff trial implicated Schrader as one of the people who sold or stored cocaine for
Gerald LeBeau. Tr. 125-26, 172-73, 195-98, 238-39, 264. One of Gerald’s drug
dealers, Pat Brewer, testified that he picked up cocaine for distribution from Schrader
and Colhoff. Tr. 238-42. Because there was a reasonable basis to conclude that
Colhoff and Schrader were involved in a common scheme to distribute drugs, the
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court did not plainly err by permitting joinder of Colhoff’s conspiracy charges with
the charge that she attempted to tamper with a witness against Schrader.
The evidentiary overlap between the conspiracy charges and the witness-
tampering charge further demonstrates the interrelatedness of the charges. Evidence
of Colhoff’s attempted tampering would have been admissible in a stand-alone
conspiracy trial as an act in furtherance of the conspiracy to show the existence of an
agreement. See United States v. Madrigal, 152 F.3d 777, 780 (8th Cir. 1998). At
least some evidence of the drug conspiracy would be admissible to show motive in
a stand-alone prosecution for attempting to intimidate Ferguson. See 1 Kenneth S.
Broun, McCormick on Evidence § 190, at 1042-43 (7th ed. 2013). Because evidence
pertaining to both charges likely would have been admissible in separate trials,
Colhoff also cannot show a reasonable probability that joinder affected the outcome
of the proceedings. See United States v. Olano, 507 U.S. 725, 734 (1993). For these
reasons, we conclude that there was no plain error warranting relief.
III.
Colhoff also challenges her conviction for witness tampering. She argues that
the government produced insufficient evidence on the element of intent. Colhoff was
convicted of violating 18 U.S.C. § 1512(b)(1). That statute requires the government
to show that Colhoff knowingly attempted to “use[] intimidation, threaten[], or
corruptly persuade[] another person” with the intent to “influence, delay, or prevent”
testimony in an official proceeding. Here, the government’s theory was that Colhoff
attempted to intimidate or threaten Ferguson to prevent his testimony in Schrader’s
trial. Evidence is sufficient to support a conviction if any reasonable jury could have
found the disputed element beyond a reasonable doubt. See United States v. Johnson,
745 F.3d 866, 869 (8th Cir. 2014).
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We conclude that there was sufficient evidence to support a finding that
Colhoff intended to influence, delay, or prevent Ferguson’s testimony in Schrader’s
trial. At the time of the incident, Ferguson was at the courthouse preparing for
possible testimony against Schrader in an ongoing trial. Colhoff had accompanied
Tuck LeBeau, who was also subpoenaed to testify in the Schrader trial, to the same
waiting room where she encountered Ferguson. Colhoff attended portions of
Schrader’s trial and spent a lot of time in the witness check-in room. Tr. 56. Her
statement directly accused Ferguson of “turning against [his] own people.” It was
reasonable for the jury to infer that Colhoff knew that Ferguson was present as a
prospective witness against Schrader.
Colhoff’s warning that “snitches get stitches” came in the middle of a diatribe
about Native Americans like Ferguson assisting the federal government to “divide
and conquer the people.” She made this statement when she was in a room with a
potential witness against Schrader while the trial was underway. She implored
Ferguson not to “turn[] against your own people” and to “just do the time.” From
these facts, a jury reasonably could conclude that Colhoff intended to influence or
prevent Ferguson’s testimony in the Schrader trial. We therefore conclude that the
evidence was sufficient to support Colhoff’s conviction.
Colhoff contends alternatively that a conviction based on her statements to
Ferguson violates her right to freedom of speech under the First Amendment. The
district court did not address this point, and we find nowhere in the record where
Colhoff raised a constitutional claim before this appeal. Accordingly, despite the
government’s reference on brief to de novo review of First Amendment claims, we
review Colhoff’s constitutional challenge to her conviction under the plain-error
standard. United States v. Bausch, 140 F.3d 739, 741 (8th Cir. 1998); see United
States v. Bain, 586 F.3d 634, 639 n.4 (8th Cir. 2009) (per curiam).
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Colhoff’s constitutional argument is that her statements to Ferguson were
merely a “political rant” protected by the First Amendment, and that only a “true
threat” of a type not present here may be proscribed by the criminal law. She cites
Virginia v. Black, 538 U.S. 343 (2003), where the Court said that “[i]ntimidation in
the constitutionally proscribable sense of the word is a type of true threat, where a
speaker directs a threat to a person or group of persons with the intent of placing the
victim in fear of bodily harm or death.” Id. at 360. This court has concluded, before
and after Black, that a “true threat” is “a statement that a reasonable recipient would
have interpreted as a serious expression of an intent to harm or cause injury to
another.” Doe v. Pulaski Cty. Special Sch. Dist., 306 F.3d 616, 624 (8th Cir. 2002)
(en banc); see United States v. Mabie, 663 F.3d 322, 332-33 (8th Cir. 2011). We held
in United States v. Gavin, 583 F.3d 542 (8th Cir. 2009), that a conviction under
another subsection of the witness-tampering statute, 18 U.S.C. § 1512(a)(2)(A), did
not infringe on First Amendment rights, because “threats of violence are . . .
unprotected speech.” Id. at 548 (alteration in original).
The prosecution focused on Colhoff’s statement to Ferguson that “snitches get
stitches.” Ferguson testified that he perceived this statement as a threat and
immediately reported it to Officer Patterson. Ferguson’s reaction was evidence
supporting an inference that a threat was made. See United States v. J.H.H., 22 F.3d
821, 827-28 (8th Cir. 1994).
The phrase “snitches get stitches” may imply that violent reprisal should and
will befall those who cooperate with law enforcement. In the proper context, these
words would cause a reasonable person who is cooperating with investigators to fear
bodily harm. Other courts have upheld convictions for witness tampering or witness
intimidation based on this exact phrase. See State v. Sabato, 321 Conn. 729, 749
(2016); People v. Horton, 21 N.E.3d 207, 208-09 (N.Y. 2014); State v. Clark, 302
P.3d 553, 555-557 (Wash. Ct. App. 2013); cf. Cantu v. Mich. Dep’t of Corr., 653 F.
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Supp. 2d 726, 744 (E.D. Mich. 2009) (finding that “snitches get stitches” was a
“threat of physical harm [that] would without doubt deter an individual of ordinary
firmness” from cooperating in an investigation). In Clark, the court ruled that a
defendant made a “true threat” when he directed the statement to a witness in an
attempt to induce that witness not to report what she knew to the police. 302 P.3d at
557.
The context in this case supports a conclusion that Colhoff’s statement would
cause a reasonable person in Ferguson’s position to fear bodily harm. Ferguson was
in the United States Attorney’s Office as a potential witness against Schrader. In
other words, he was there to “snitch”—the very act that Colhoff said was deserving
of “stitches.” Ferguson was not acquainted with Colhoff, so he did not know what
she was capable of doing or whether she was prone to issue empty threats. Colhoff
says it was unreasonable for Ferguson to fear harm from a sixty-year-old woman such
as she. But a person who is not physically imposing can wield a firearm or other
weapon, and there also is no requirement that the victim fear that the speaker herself
will cause the stitches. Ferguson rightly surmised that Colhoff was connected to the
Schrader family, and he reasonably could have interpreted the statement as a warning
that an associate of Schrader’s would harm him if he cooperated with the prosecution.
Colhoff did not request a specific jury finding on whether her conduct
amounted to a “true threat,” and she did not ask the district court to conduct an
“independent examination” of the record to ensure that the jury’s decision did not
intrude on protected expression. Cf. Doe, 306 F.3d at 621. We accept for the sake
of analysis that a “true threat” standard must be satisfied for a conviction based on the
use of intimidation or a threat under § 1512(b). Compare, e.g., Clark, 302 P.3d at
556-57, with United States v. White, 670 F.3d 498, 514-15 (4th Cir. 2012). Even so,
there was sufficient evidence here to support a conclusion that Colhoff made a true
threat that would place a reasonable person in fear of bodily harm. At a minimum,
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under the plain-error standard, her claim of protected expression is “subject to
reasonable dispute.” Puckett v. United States, 556 U.S. 129, 135 (2009). There was
no plain error in entering a judgment of conviction on this record.
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The judgment of the district court is affirmed.
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