Submitted: May 19, 2016
from United States District Court for the District of South
Dakota - Rapid City
RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
COLLOTON, CIRCUIT JUDGE.
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 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.
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).
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.
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.
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
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.
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.
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 ...