United States v. Erickson

• Decision Date: 28 January 2020
• Docket Number: 3:18-CR-30148-RAL
• Citation: 436 F.Supp.3d 1242
• Parties: UNITED STATES of America, Plaintiff, v. Eli ERICKSON, a/k/a Black, Defendant.
• Court: U.S. District Court — District of South Dakota

436 F.Supp.3d 1242

UNITED STATES of America, Plaintiff,

v.Eli ERICKSON, a/k/a Black, Defendant.

3:18-CR-30148-RAL

United States District Court, D. South Dakota, Central Division.

Signed January 28, 2020

Cameron J. Cook, U.S. Attorney's Office, Pierre, SD, for Plaintiff.

OPINION AND ORDER DENYING MOTION FOR ACQUITTAL OR NEW TRIAL

ROBERTO A. LANGE, CHIEF JUDGE

Eli Erickson was indicted for conspiracy to distribute methamphetamine and on six additional counts involving firearms offenses. Docs. 1, 57. This Court conducted a jury trial between November 5 and November 7, 2019. The jury returned a verdict finding Erickson guilty of conspiracy to distribute 500 grams or more of a mixture or substance containing methamphetamine. Doc. 108. The jury found Erickson guilty of some firearms offenses and not guilty on other firearms offenses. Id.

Erickson then filed a motion for acquittal or in the alternative for new trial. Doc. 118. The government opposes the motion. Doc. 122. Erickson makes five arguments to claim entitlement to acquittal or new trial: 1) a violation of his speedy trial rights; 2) an absence of a jury of his peers, asserting underrepresentation of Native American jurors; 3) alleged newly discovered evidence; 4) error in allowing a witness allegedly under the influence of drugs to testify; and 5) a verdict contrary to the great weight of evidence, particularly focused on the credibility of Witness C and the alleged absence of sufficient proof of an agreement or common purpose to establish a conspiracy.

Because of the nature of Erickson's challenge to the method of jury selection in the District of South Dakota, this Court ordered the Clerk of Court to file in this case the District of South Dakota's approved jury plan and information concerning the racial makeup of the panel of jurors reporting for Erickson's jury trial. Doc. 123. The Clerk of Court did so through the filing of an affidavit and attachments. Doc. 124. Erickson has filed nothing further to argue any inadequacy in the jury plan. Because one of Erickson's arguments raised a potential Brady issue in asserting newly discovered evidence, this Court ordered that the government submit for in camera review certain audio recordings and written reports of those interviews. Doc. 125. This Court now has conducted its in camera review of that material. For the reasons explained below, this Court denies Erickson's motion for acquittal or in the alternative new trial.

I. Summary of Facts Relevant to Issues Raised by Erickson's Post-trial Motion

On November 14, 2018, Erickson was indicted as the lone defendant in a seven-count indictment. Doc. 1. Count 1 of the indictment alleged conspiracy to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine. Count 2 of the indictment alleged that Erickson had possessed six different firearms in relation to a drug trafficking crime. Count 3 alleged that Erickson had illegally possessed a short-barreled shotgun. Count 4 alleged that Erickson had possessed a shotgun with an obliterated serial number. Count 5 alleged that Erickson had possessed six different firearms at a time when he was an unlawful user of and addicted to a controlled substance. Counts 6 and 7 alleged possession on particular dates of a rifle and a pistol respectively at a time when Erickson was an unlawful user of and addicted to a controlled substance.

Criminal Justice Act (CJA) panel attorney Terra Fisher was Erickson's original court-appointed attorney. Doc. 10. Consistent with the Speedy Trial Act, this Court entered an early Scheduling and Case Management Order setting a jury trial for January 22, 2019. Doc. 16. In late December of 2018, Erickson sought to have different counsel appointed for him, and Magistrate Judge Mark A. Moreno met with Erickson and attorney Fisher in chambers on January 4, 2019. Magistrate Judge Moreno thereafter denied Erickson's request for substitute counsel. Doc. 26. Fisher, on behalf of Erickson, made a motion to continue the jury trial. Doc. 30. Erickson signed a consent to a continuance indicating that he had been advised of his speedy trial right and consented to postponement of the trial. Doc. 29. This Court granted the motion to continue, resetting the jury trial for April of 2019. Doc. 30. Meanwhile, Erickson's disagreements with Fisher continued, resulting in another motion to withdraw, which Magistrate Judge Moreno granted on January 11, 2019. Docs. 31, 33.

Erickson's next appointed counsel was CJA panel attorney Jeffrey Banks. Understandably, Banks filed a motion for continuance on behalf of Erickson after he had to postpone two meetings with Erickson due to the weather¹ and had not reviewed the discovery with Erickson. Doc. 39. Erickson signed a consent again indicating that he had been advised of his Speedy Trial Act rights. Doc. 38. This Court granted a continuance and set the jury trial for July 23, 2019. Doc. 45.

On June 25, 2019, Banks on behalf of Erickson filed another motion for continuance, indicating that he was still receiving discovery from the government and was requesting funds for a private investigator to assist in locating and interviewing witnesses. Doc. 46. Erickson signed another consent acknowledging that he had been advised of his speedy trial rights and waived the period of time of the continuance under the Speedy Trial Act. Doc. 47. By July, Erickson was dissatisfied with Banks, and Magistrate Judge Moreno held a hearing on July 1, 2019, to hear from Erickson and Banks, thereafter denying Erickson's request for new counsel. Docs. 49, 50. This Court granted the continuance requested by Banks and Erickson and set the jury trial for September 24, 2019. Doc. 51.

On September 10, 2019, the government filed a superseding indictment, making somewhat modest changes to the original indictment. Doc. 57. Erickson's disgruntlement with Banks continued, so Magistrate Judge Moreno held another hearing to consider Erickson's ex parte motion for new counsel and denied the motion. Docs. 60, 61. On the heels of the denial of new counsel, Banks filed another motion for continuance indicating that he was still preparing for trial and that the work of the private investigator was ongoing. Doc. 62. Erickson signed a consent to that motion for continuance, similar in content to what had been filed previously as his consents. Doc. 63. This Court granted the motion for continuance setting the trial to begin on November 5, 2019. Doc. 64.

In October, Banks sought to withdraw because his attorney-client relationship with Erickson was "irrevocably broken." Doc. 67. Magistrate Judge Moreno granted the motion to withdraw, Doc. 68, and appointed CJA panel attorney John Rusch, Doc. 71. Rusch was the trial counsel for Erickson during the trial that took place from November 5 through 7, 2019.

This Court summoned jurors consistent with the approved Plan for Random Selection of Grand and Petit Jurors in effect in the District of South Dakota pursuant to the Jury Selection and Service Act of 1968. See Doc. 24 at 5–18. Both the government and Rusch were allowed access to the jury qualification questionnaires for the jurors. See Doc. 78; Doc. 124 at 3–4 (blank Juror Qualification Questionnaire used in the District of South Dakota). Fifty-one qualified jurors reported for service for Erickson's trial on November 5, 2019. Of that number, nine identified their race as "American Indian/Alaskan Native" on the Juror Qualification Questionnaire. Doc. 124. That is, 17.6% of the pool of qualified jurors for Erickson's trial were of Native American ancestry. Erickson and most of the government's witnesses were of Native American ancestry.

Forty-nine of the summonsed fifty-one prospective jurors were questioned as this Court sought to have 31 jurors passed for cause in order to empanel a jury of thirteen individuals (twelve who deliberate, with one alternate). Of those forty-nine prospective jurors questioned by the Court and counsel, eight of them had identified their race as "American Indian/Alaskan Native." Doc. 124. Thus, 16.3% of those questioned during voir dire were of Native American ancestry. By happenstance of the random draw, of the two people reporting for jury service but not questioned, one was Native American. After both the government and Erickson passed a group of 31 potential jurors for cause, this Court excused those two remaining people who had reported for jury duty.

As this Court recollects, six of the otherwise qualified Native American jurors were excused for cause during voir dire with neither the government nor Erickson objecting. Some of the prospective Native American jurors knew Erickson or potential witnesses, and indeed one of the prospective Native American jurors indicated that she knew what Erickson had done. As Erickson's counsel noted on the record during the trial, this Court was reluctant to excuse Native American jurors for cause and noted the importance of having Native American jurors on the panel. There were only two Native American jurors remaining among the thirty-one that counsel passed for cause prior to peremptory challenges being exercised. The government exercised one peremptory challenge on a Native American and Erickson exercised one peremptory challenge on a Native American.

After this Court read the names of the thirteen jurors selected to hear the evidence and excused all remaining jurors, Erickson's counsel asked to approach. At sidebar, Erickson's counsel made an argument about the absence of Native American jurors and referenced Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). After noting that a Batson challenge should have been raised prior to excusing all remaining jurors, this Court nonetheless heard from the government on what it proffered as a legitimate nondiscriminatory reason for exercising a peremptory challenge on one Native American juror. After the reason was given, Erickson's counsel chose not to argue...