United States v. Garriss

• Decision Date: 08 August 2022
• Docket Number: 4:17-cr-40058
• Parties: UNITED STATES OF AMERICA, Plaintiff v. RANDY L. GARRISS, Defendant
• Court: U.S. District Court — District of South Dakota

UNITED STATES OF AMERICA, Plaintiff v. RANDY L. GARRISS, Defendant

No. 4:17-cr-40058

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

August 8, 2022

MEMORANDUM AND ORDER

LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE

Pending before the Court is Defendant's Motion to Acquit Notwithstanding the Verdict (Doc. 336). The Government filed a response (Doc. 338), to which Defendant replied (Doc. 339). For the reasons explained below, the Defendant's motion is denied.

The Court notes at the outset that it deems Defendant's motion to have been timely filed. Defendant's stand-by counsel filed the motion electronically on June 30, 2022. (Doc. 333). Garriss, acting pro se, mailed a copy the same day and it was filed on July 5, 2022. (Doc. 336). Counsel then filed a notice of filing error for the earlier document. Given that Doc. 333 was timely filed and that Doc 336 is a copy, the Court deems the motion filed within the timeframe set out in Rule 29(c)(1).

BACKGROUND

Defendant was indicted on two counts, conspiracy to defraud the Internal Revenue Service, 18 U.S.C. § 371, and attempt to interfere with the administration of the Internal Revenue Laws, 26 U.S.C. § 7212(a). Defendant proceeded to jury trial pro se on June 7, 2022, with stand-by counsel, and was convicted of both counts on June 17, 2022. The Government's case against Defendant arose in connection with the prosecution of Steve and Ted Nelson for conspiracy to defraud the United States, failure to file income tax returns, and impeding the Internal Revenue Service. They were convicted on May 12, 2015. The Government alleged Defendant participated in the conspiracy involving the Nelsons, Loren Brown and Garriss, and engaged in extensive conduct to further it. The Government alleged this conduct included among other actions, Garriss's serving as trustee of sham trusts which had been set up by the Defendant, the Nelsons and others to shield the Nelsons' assets from recovery by the United States. Garriss was prosecuted with co-defendant Brown, who pleaded guilty to impeding the Internal Revenue Service on June 21, 2022. At the time of Garriss's trial, Brown was awaiting sentencing. He was a cooperating witness and testified at length at Garriss's trial.

Garriss has moved for acquittal notwithstanding the verdict, raising several claims. He alleges the evidence was insufficient to convict of either charge, the redaction and the exclusion of certain evidence proffered by the defense denied him due process, and the requirement that he wear a mask during parts of trial likewise denied him due process. These matters are addressed below.

ANALYSIS

1. Legal Standard

Federal Rule of Criminal Procedure 29 provides as follows:

Motion for a Judgment of Acquittal...

(c) After Jury Verdict or Discharge.

(1) Time for a Motion. A defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.

(2) Ruling on the Motion. If the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal. If the jury has failed to return a verdict, the court may enter a judgment of acquittal....

F. R. Crim. P. 29.

Numerous decisions provide guidance on the application of Rule 29. The key for Rule 29 review is that a motion for judgment of acquittal may be granted only “where the evidence is insufficient to sustain a conviction.” United States v. Love, 20 F.4th 407, 413 (8th Cir. 2021) (quoting United States v. Hardin, 889 F.3d 945, 949 (8th Cir. 2018)). The parameters of sufficiency review were cogently set forth in Musacchio v. United States, 577 U.S. 237, 243,136 S.Ct. 709, 715, 293 L.Ed.2d 639 (2016). There the Court addressed a jury instruction issue and explained that review for sufficiency “essentially addresses” whether “the government's case was so lacking that it should not have even been submitted to the jury.” Id. (quoting Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)). The Court continued with the direction that, “On sufficiency review, a reviewing court makes a limited inquiry tailored to ensure that a defendant receives the minimum that due process requires: a ‘meaningful opportunity to defend' against the charge against him and a jury finding of guilt ‘beyond a reasonable doubt.' ”Id. (quoting Jackson v. Virginia, 443 U.S. 307, 314, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The Court also invoked Jackson's -well-known standard that the reviewing court must assess whether “any rational t trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson, 443 U.S. at 319).

In conducting its review, the court views the evidence “in the light most favorable to the prosecution.” Jackson, 443 U.S. at 319. Reversal is in order “only if no reasonable jury could have found [the defendant] guilty beyond a reasonable doubt.” United States v. Walking Bull, 8 F.4th 762, 770 (8th Cir. 2021) (quoting United States v. Hollingshed, 940 F.3d410, 417 (8th Cir. 2019); United States v. Coleman, 584 F.3d 1121, 1125 (8th Cir. 2009)). See also United States v. Thompson, 11 F.4th 925, 929 (8th Cir. 2021) (quoting standard); United States v. Free, 976 F.3d 810, 813-14 (8th Cir. 2020) (same).

When examining the sufficiency of the evidence the court must “giv[e] the verdict the benefit of all reasonable inferences.” United States v. Anderson, 570 F.3d 1025, 1029 (8th Cir. 2009) (quoting United States v. Foxx, 544 F.3d 943, 949 (8th Cir. 2008)). See also United States v. Fool Bear, 903 F.3d 704, 708 (8th Cir. 2018) (quoting standard). Furthermore, as the Anderson court noted, “The standard of review of an appeal concerning the sufficiency of the evidence is very strict, and the verdict of the jury should not be overturned lightly.” 570 F.3d. atl029 (quoting United States v. Scott, 64 F.3d 377, 380 (8th Cir. 1995)).

In United States v. Hassan, the court acknowledged that Rule 29 “permits defendants to move the court to set aside a verdict and enter judgment of acquittal after trial,” but the court cautioned that “a district court has very limited latitude to do so and must not assess witness credibility or weigh evidence, and the evidence must be viewed in a light most favorable to the government.” 844 F.3d 723, 725 (8th Cir. 2016) (quoting United States v. Stacks, 821 F.3d 1038, 1043 (8th Cir. 2016)). Furthermore, the Hassan court advised that when a court evaluates a motion for judgment of acquittal, passing upon the credibility of witnesses or the weight to be given their testimony, “is uniquely within the province of the trier of fact, and entitled to special deference.” 844 F.3d at 726 (quoting United States v. Goodale, 738 F.3d 917, 923 (8th Cir. 2013)).

The court's “limited latitude” has been referred to in several cases, including United States v. Williams, 647 F.3d 855, 859 (8th Cir. 2011) and United States v. Hernandez, 301 F.3d 886, 889 (8th Cir. 2002)). Likewise, in United States v. Magallon, the court commented that the district court's discretion to grant a Rule 29 motion “is even more limited than its discretion to grant a new trial.” 984 F.3d 1263, 1288 (8th Cir. 2021). Magallon reiterated some of these limitations in underscoring that when a court is resolving a Rule 29 motion it “does not assess the credibility of witnesses or weigh evidence.” Id. at 1288 (quoting United States v. Starr, 533 F.3d 985, 997 (8th Cir. 2008)). In the same vein, the Magallon court stressed that the judge “does not need to ensure witness testimony was corroborated but assumes the jury found witness testimony credible that was favorable to the verdict.” Id. (citing United States v. Keys, 721 F.3d 512, 519-20 (8th Cir. 2013)). See United States v. Little Bird, 2022 WL 158935, * 2 (D. S.D. 2022) (discussing scope of Rule 29 review).

2. Offenses of Conviction

A. Garriss was convicted of Count 1, conspiracy to defraud the United States, 18 U.S.C. § 371. The elements as instructed by the court at trial are as" follows:

1. Two or more persons reached an agreement or came to an understanding to commit the crime of defrauding the United States by impeding, impairing, obstructing, or defeating the lawful governmental functions of the Internal Revenue Service of the Treasury Department in the ascertainment, computation, assessment, or collection of the revenue, to wit: income taxes owed by Theodore “Ted” Nelson and Steven “Steve” Nelson;

2. Garriss voluntarily and intentionally joined the agreement, either at the time it was first reached or at some later time while it was still in effect;

3. At the time Garriss joined in the agreement, he knew the purpose of the agreement; and

4. While the agreement was in effect, a person or persons who had joined in the agreement knowingly did one or more acts for the purpose of carrying out or carrying forward the agreement.

Final jury instruction #17 (Doc. 315); Eighth Circuit Manual of Model Jury Instructions, Criminal, § 5.06A-1.

Garriss claims the Government did not prove the conspiracy charge beyond a reasonable doubt. To the contrary, the Court finds the Government introduced a wealth of evidence to prove Defendant entered into a conspiracy with Steve Nelson, Ted Nelson, and Loren Brown in connection with the Nelsons' convictions for conspiracy to defraud the United States failure to file income tax returns, and impeding the Internal Revenue Service. The Government established that Defendant was an active member of the conspiracy. It introduced evidence to show that he was aware of tax liens placed on the Nelsons' property, and that Defendant and others established sham trusts and took other actions in an effort to shield the Nelsons' land...