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United States v. Colhoff

United States Court of Appeals, Eighth Circuit

August 19, 2016

United States of America, Plaintiff- Appellee,
Lona Lee Colhoff, Defendant-Appellant.

          Submitted: May 19, 2016

         Appeal from United States District Court for the District of South Dakota - Rapid City

          Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.


         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 court[1] 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.


         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 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.


         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 ...

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