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United States v. Waloke

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

October 20, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
SEPTEMBER WALOKE, Defendant.

          OPINION AND ORDER DENYING MOTION FOR ACQUITTAL OR NEW TRIAL

          ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.

         A jury convicted Defendant September Waloke (September)[1] of concealing a person from arrest in violation of 18 U.S.C. § 1071. Doc. 131. The jury acquitted September's co-defendant, her husband Everett Condon (Everett). Docs. 131, 135. September now has filed a Motion for Acquittal or New Trial, Doc. 138, which the Government opposes, Doc. 142. For the reasons explained herein, this Court denies the Motion for Acquittal or New Trial filed by September.

         I. Facts

         September and Everett were indicted for allegedly harboring and concealing Tyson Curtis LeCompte, a/k/a Tyson Garreau (Tyson) on or about October 19 or 20, 2016, after having knowledge that Tyson was wanted on a federal arrest warrant. Doc. 1. September and Everett pleaded not guilty and had a jury trial that ran from September 12 through September 14, 2017. Many of the facts were uncontested, and the outcome of the trial hinged in large measure on a credibility decision as to which, if either, of two convicted felons-Tyson and Braxtyn Garreau-were believable.

         Tyson had been indicted in United States District Court for the District of South Dakota for distribution of the controlled substance methamphetamine. By October of 2016, Tyson had pleaded guilty to that offense, admitting guilt to having distributed less than five grams of methamphetamine. Trial Exhs. 7, 8. While Tyson was awaiting sentencing, Magistrate Judge Mark A. Moreno granted Tyson's motion for furlough to attend the funeral of his aunt Jeri Garreau. Exh. 9. Tyson and another federal inmate named Allen Garreau (Allen) were to be released from the custody of the Hughes County Jail at 8 a.m. on October 19, 2016, to third-party custodian Tracy Garreau for them to attend the funeral and for them to return by 6 p.m. that day to the Hughes County Jail. Exh. 9. Allen returned consistent with the order granting him a furlough, but Tyson did not.

         During his trial testimony, Tyson explained that he left the Hughes County Jail with his third-party custodian and Allen. Tyson needed to change clothes for the funeral and had his on-again-off-again girlfriend Carlee Condon (Carlee), who is the daughter of September and Everett, bring him clothes that Tyson had left at the Cherry Creek home of September and Everett. Tyson met Carlee in Eagle Butte, changed clothes, then was with family at the funeral from about 11 a.m. until 1 p.m. on October 19, and attended the burial. Tyson decided to abscond while at the burial and left with his cousin Charlie Marshall (Charlie). Tyson then drank alcohol and used methamphetamine while a passenger in a car with a group that included Charlie and the key Government witness, Braxtyn Garreau (Braxtyn). When the car was traveling north of Eagle Butte, Tyson became nervous that he was being followed, so he jumped out of the car. Being stranded north of Eagle Butte, Tyson used a phone, which he apparently had borrowed earlier from Rhonda Claymore, to call Carlee and ask for a ride.

         At the time Tyson called Carlee, Carlee was at the hospital in Eagle Butte with her older sister Erica Condon (Erica). Erica had worked in Timber Lake during the day, felt ill, had driven to the hospital in Eagle Butte, and was in the process of finding out that she was pregnant. Carlee asked for Erica's keys, ostensibly so that Carlee could go out to Erica's car, smoke a cigarette, and listen to music. Carlee took Erica's car without permission, picked up Tyson, and drove with him to the Fischer ranch located between Eagle Butte and Cherry Creek. Erica became aware that Carlee took her car without permission, stranding Erica at the Eagle Buttle Hospital. Erica attempted repeatedly to contact Carlee, posted on Facebook and reported the car stolen. Braxtyn showed up later at the Fischer ranch, where Tyson, Carlee, and Braxtyn stayed until 1:30 or 2 a.m. (according to Braxtyn), or until about 3 a.m. (according to Tyson).

         Representatives of the United States Marshals Service (USMS) were on the Cheyenne River Indian Reservation executing arrest warrants on October 19 when word reached them that Tyson had failed to return from his furlough and that Magistrate Judge Moreno had issued an oral arrest warrant for Tyson. After arranging for the transfer of certain other fugitives to another vehicle headed back to the Hughes County Jail, USMS supervisory deputy Steven Houghtaling and USMS deputy Trevor Lumadue on the evening of October 19, began investigating Tyson's whereabouts. They met with the third-party custodian Tracy Garreau and Tracy's mother, who suggested that Tyson may have fled with Carlee. They then spoke with Carlee's brother Tiger Condon who advised that Carlee likely was in Cherry Creek at September and Everett's home, described the home, and told the USMS deputies to look for a black Monte Carlo in front of the home. USMS deputies Houghtaling and Lumadue met up with USMS deputy Jonathan Runner, who separately had interviewed Allen about Tyson and what happened during the furlough at the Hughes County Jail, and the three of them drove to September and Everett's home in Cherry Creek. Cherry Creek is an extremely isolated community on the southern edge of the Cheyenne River Indian Reservation. Cherry Creek is approximately 54 miles from Eagle Butte and approximately 88 miles from Pierre. Though a community of perhaps 500 people, winding and hilly gravel roads are the only routes to access Cherry Creek. The USMS deputies arrived in Cherry Creek perhaps around midnight.

         After meeting and locating the home of September and Everett, the three USMS deputies took positions around the home, with Houghtaling knocking at one door and Lumadue knocking at a second door. There appeared to be a number of individuals inside and awake in the house, but no one initially responded to the USMS deputies. Ultimately, Everett talked with Houghtaling through a window, communicating that someone inside the house had called a security officer.

         The Cheyenne River Sioux Tribe provides for the basic law enforcement needs to the community of Cherry Creek, but does so from Eagle Butte which is roughly an hour's drive away. Accordingly, there is a district deputy of the Cheyenne River Sioux Tribe Law Enforcement named Derrek Yellow Owl, who lives in Cherry Creek and responds to calls placed to dispatch in Eagle Butte that originate from Cherry Creek. Yellow Owl is not a police officer per se and is armed only with a flashlight. The remoteness of Cherry Creek is such that there is extremely spotty cell phone coverage, so the Cheyenne River Sioux Tribe Law Enforcement sends text messages to Yellow Owl, who while on duty, periodically drives by one of the two locations in Cherry Creek where there is cell phone reception, and thereby receives messages. Yellow Owl was on duty during the early morning hours of October 20 and received a message that September had reported someone trying to break into her home. Yellow Owl responded and was surprised to encounter USMS deputies upon arriving at September and Everett's home.

         After talking with USMS deputies, Yellow Owl made contact with Everett, convinced Everett that the USMS was not there for him, and had Everett come outside the home to talk. This communication led to Houghtaling and Lumadue being invited into the home to search for Tyson. The USMS did not have a search warrant and thus were not entitled to search the home under these circumstances without consent. Although mere were young men in the home that were unfriendly to the USMS deputies, Everett was cordial and cooperative, did not seek to escalate the hostilities, and accompanied the USMS deputies as they searched the home. The home is a single level home with an open kitchen and living room, four bedrooms and a bathroom. The USMS deputies spent approximately 20 minutes searching the home. Tyson was not in the home.

         After conducting the search, Houghtaling met outside the home with September and Everett. Houghtaling gave his standard speech warning against harboring a fugitive and about the duties of September and Everett if they encountered Tyson. This conversation may have lasted as long as 15 minutes and involved some repetition about September and Everett's obligation not to assist or harbor Tyson. During the conversation, Everett said that Tyson was not there and that they did not know where he was. September told Houghtaling that Carlee and Tyson had broken up, that Carlee was dating someone named Jason, and that there was no reason why Tyson would be at the home. The USMS deputies left Cherry Creek perhaps around 1:30 a.m. on October 20.

         Sometime around or after USMS deputies left Cherry Creek, Tyson, Carlee, and Braxtyn chose to leave the Fischer ranch. Because Erica had reported her car stolen and had made that clear through a Facebook posting, text messages, and phone messages, Braxtyn asked another person at the Fischer ranch, Arlyn Keckler, if she could borrow his car. Keckler agreed. However, Keckler's car only made it a few miles and ran out of gas approximately eight miles away from Cherry Creek. Braxtyn climbed a nearby hill to get cell phone service, and called for someone to come from Eagle Butte to pick them up. Meanwhile, Carlee got upset and started walking to Cherry Creek. Tyson chose to follow her.

         According to Tyson, the two of them were picked up by another vehicle on their way to Cherry Creek, and arrived at September and Everett's home around 5 a.m. on October 20. Carlee-who did not testify, invoking the Fifth Amendment outside the hearing of the jury-went in through the door, while according to Tyson, he waited at the window to Carlee's bedroom and then entered the home through the window into Carlee's bedroom. Tyson testified that he had been drinking and using methamphetamine so he went to sleep and slept in that day. When he awoke, he and Carlee were the only ones in the home, so he watched television and went outside to smoke a cigarette, leaving his shoes in the mud room area near the door. Tyson anticipated getting picked up by Braxtyn ...


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