United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
convicted defendant Danny Ferguson of committing arson in
Indian country in violation of 18 U.S.C §§ 81 and
1153. (Dockets 70 & 106). Defendant filed post-trial
motions. (Dockets 109 & 143). He seeks a judgment of
acquittal under Rule 29(c) of the Federal Rules of Criminal
Procedure or a new trial under Rule 33(a). Id. The
government opposes defendant's motions. (Docket 145). For
the reasons stated below, the court denies defendant both a
judgment of acquittal and a new trial.
court limits its recitation to those facts necessary to
resolve defendant's pending motions. In the subsequent
legal analysis, the court includes additional facts as
needed. The court relies primarily on transcripts of the
trial proceedings as well as its recollection of the evidence
presented at trial. See Dockets 134-36.
Government's Trial Evidence
April 7, 2015 fire at Christy Pierce's home
April of 2015, Christy Garnette Pierce lived in a trailer
home in a rural area approximately six and a half miles north
of Kyle, South Dakota, which is located on the Pine Ridge
Reservation. (Docket 134 at pp. 72, 76-77, 96). Ms. Pierce
purchased the home from Devonna Clifford, also the owner of
the land on which the home was situated, and obtained
permission from her to reside on the land. Id. at
pp. 72-74. At that time, two of Ms. Pierce's children and
one grandchild were living with her in the home. Id.
at pp. 78, 87.
Pierce testified she smelled the odor of burning wood on the
evening of April 7. Id. at p. 78. Her dogs began
barking and her daughter “heard something
outside.” Id. at p. 77. Ms. Pierce looked
outside that evening and did not see anything; she testified
she believed the smell was from her daughter's space
heater. Id. at pp. 77-78.
Pierce's son Samuel Rios arrived at the home on the
morning of April 8. Id. at p. 78. Mr. Rios had been
staying with his grandfather and decided to visit Ms. Pierce
after arguing with him. Id. at p. 125. After Mr.
Rios arrived at Ms. Pierce's home, she saw burn marks on
the front corner of the trailer. Id. at p. 79. She
believed “there was a fire outside [her] trailer”
and “somebody tried to burn [them] out.”
Id. at p. 80. She then notified tribal police and
filed a report with an officer who arrived at her home that
afternoon. Id. at pp. 80-81. She observed an
unfamiliar juice jug near the burn marks which smelled
“[l]ike gas, like kerosene.” Id.
April 8 fire and observations of defendant at Pierce home
5 p.m. on April 8, Ms. Pierce observed defendant drive by her
home on a motorcycle. Id. at pp. 82-83. She initially
believed he was in the area to tend to his livestock.
Id. at p. 84. However, the walls of her trailer
began to vibrate and Ms. Pierce believed defendant had pushed
his motorcycle up against the trailer. Id. Mr. Rios
then left the trailer, followed by Ms. Pierce, to
investigate. Id. at p. 130. Mr. Rios testified he
then observed defendant sitting on the motorcycle, which was
leaned against the trailer, “stuffing a blanket into
the insulation underneath the trailer[.]” Id.
at pp. 130-31. He further testified he observed defendant
lighting the blanket on fire. Id. at p. 130. The
blanket was entered into evidence as exhibit 106.
Id. at pp. 56-58, 130-31. Ms. Pierce testified she
observed defendant bent over, stuffing the blanket under the
trailer. Id. at pp. 85-86. She observed flames.
Id. at p. 84-85. However, she only saw
defendant's hair, not his face. Id. at p. 85.
Mr. Rios testified he shouted at defendant and he rode off on
the motorcycle away from the home. Id. at pp.
132-33. He then pulled the burning blanket out from the
insulation and smothered the fire by stomping on the blanket
and covering it with his jacket. Id. at p. 135.
counsel cross-examined both Ms. Pierce and Mr. Rios. (Dockets
134 at pp. 94-115, 121-124 & 135 at pp. 2-25, 34-35).
During cross- examination, Ms. Pierce testified she first
observed defendant ride on a motorcycle through a window for
“about four or five seconds.” (Docket 134 at p.
108). She also testified regarding conflicts with
defendant's family, stating defendant's father rammed
her truck. Id. at p. 97. Defense counsel questioned
Ms. Pierce as to whether she let defendant's livestock
out of a gated area, but Ms. Pierce denied doing so.
Id. at pp. 97-98.
cross-examination, Mr. Rios testified he first saw defendant
through a window for approximately three seconds. (Docket 135
at p. 6). He recognized the person he saw through the window
as defendant. Id. at p. 8. After moving outside, he
saw defendant on the motorcycle for approximately three or
four seconds before defendant left the area. Id. at
p. 9. Mr. Rios had last seen defendant approximately six or
seven years ago. Id. at p. 11. Mr. Rios also agreed
with defense counsel's statement that Ms. Pierce
“essentially hated the Fergusons[.]” Id.
at p. 35.
Mr. Rios was putting the fire out, Garfield Iron Crow arrived
at the home, drawn by the flame and smoke. (Dockets 134 at
p. 88 & 135 at p. 161). Mr. Iron Crow, a relative of Ms.
Pierce, lived near Ms. Pierce's home in the same rural
region north of Kyle. (Dockets 134 at p. 88 & 135 at pp.
159-60). He observed “a combustion type of flame that
grew to like a flash in the air.” (Docket 135 at p.
161). Mr. Iron Crow testified to observing Mr. Rios putting
out the fire with a gray blanket. Id. at p. 162. He
then observed Mr. Rios place the blanket underneath the
trailer and subsequently remove it again and walk around to
the other side of the home. Id. at pp. 162-64. Mr.
Iron Crow testified Mr. Rios returned with a garden
rake-holding it “like he was going to throw
it”-and asked him, “Are you with them?”
Id. at p. 164. The government cross-examined Mr.
Iron Crow. Id. at pp. 168-179. During
cross-examination, Mr. Iron Crow testified he saw the fire
approximately five feet from the home. Id. at pp.
170-71. He also testified he never told law enforcement about
either observing Mr. Rios with the blanket or observing the
fire away from the home. Id. at p. 173.
government called Special Agent James Olsen of the Bureau of
Alcohol, Tobacco, Firearms & Explosives
(“ATF”) as a witness (“SA Olsen”). In
2015, SA Olsen was a certified fire investigator with the
ATF. (Docket 134 at p. 40). He inspected Ms. Pierce's
home on April 28. Id. at p. 41. Based on his
investigation, SA Olsen concluded the fires on April 7 and 8
were intentionally set, not accidental. Id. at pp.
54-55. He testified trailer homes are vulnerable to fire
damage and opined Ms. Pierce's home would have become
“untenable for occupants” within 20 to 25 minutes
after the fires at issue were set. Id. at pp. 55-56.
Defense counsel cross-examined SA Olsen. Id. at pp.
Questioning and confession of defendant
Bureau of Investigation (“FBI”) Special Agent
Michelle Gruzs (“SA Gruzs”) investigated Ms.
Pierce's arson report. Id. at pp. 40-41. Both
Ms. Pierce and Mr. Rios told SA Gruzs the arsonist was
defendant. On April 29, SA Gruzs interviewed defendant at his
home. Id. at p. 47. Defendant denied setting fire to
Ms. Pierce's home. Trial ex. 53. SA Gruzs observed
several motorbikes at defendant's home. Id. at
pp. 52-55. The motorbikes all appeared functional, with no
visible tire issues. Id. at pp. 54-55.
15, defendant participated in another interview with law
enforcement at the Pine Ridge Justice Center in Pine Ridge,
South Dakota. Id. at p. 56. Special Agent Jeff Goble
(“SA Goble”) of the South Dakota Division of
Criminal Investigation also participated in the interview but
did not testify at trial. Id. The audio of a portion
of this interview was entered into evidence as exhibit 1.
Id. at 59-60. At this interview, defendant appeared
to confess he had set the fire. In response to SA Goble's
question as to why he set the fire, defendant stated he did
not believe anyone was in the home and he did not believe Ms.
Pierce had a right to have her home there. Trial ex. 1 at
0:56-1:25. He continued, “It would make everybody happy
that that house would be gone.” Id. at
1:30-35. He stated he “felt so bad that there was
someone in there” and “I wished it'd never
happened.” Id. at 2:47-52. In response to SA
Goble's question of how he set the fire, defendant stated
he used “gas and a lighter.” Id. at
3:38-59. He stated he splashed a gas and diesel mixture on a
wood portion of the trailer's exterior where he
“wanted to try to get going.” Id. at
4:07-24. He stated he then saw someone come around the corner
of the home, causing him to flee. Id. at 4:38-50.
Defense counsel cross-examined SA Grusz. (Docket 135 at pp.
Defendant's Trial Evidence
tribal advocate John Witt requested to be present with
defendant during the questioning on May 15. (Docket 136 at p.
30). SAs Goble and Grusz refused. Id. at pp. 30-31.
During direct examination, Mr. Witt mentioned the FBI
“wanted to do a polygraph” test of defendant.
Id. at p. 28. At the pretrial conference, the court
granted defendant's motion in limine to exclude all
evidence of defendant's polygraph examination. (Docket 93
at p. 2). After Mr. Witt mentioned the polygraph test, the
court immediately instructed the jury to disregard Mr.
Witt's testimony regarding the polygraph test. (Docket
136 at pp. 29-30).
offered alibi evidence. (Docket 45). Three of defendant's
relatives, including his wife and mother, testified defendant
was at the homes of various family members during the evening
of April 8. (Dockets 135 at pp. 86-88 & 136 at pp. 35-43,
82, 85-87). Defendant's wife Delores Ferguson
specifically testified defendant ate dinner with her, his
mother, and other family members at his mother's home
between approximately 5 and 6 p.m. on April 8. (Docket 136 at
pp. 85-86). Afterwards, they went to Kyle to see what movies
were playing at a theater there. Id. On the way back
home, they stopped at the home of his aunt Arlene Ferguson
and stayed there until approximately 7 or 8 p.m. Id.
at p. 86. Delores Ferguson testified defendant was with her
from the time she arrived home from work at 5 p.m. until they
went to bed that evening. Id.
also offered testimony from five witnesses to show
defendant's motorbikes were inoperable at the time he was
seen riding a motorbike to set fire to Ms. Pierce's home.
(Dockets 135 at pp. 181-82, 191, 199-201 & 136 at pp. 46,
88). Eliel Poor Bear, who was defendant's employee in
March and April of 2015, testified defendant owned two dirt
bikes which had flat tires at that time. (Docket 135 at pp.
181-82). Kyle Ferguson, the defendant's nephew, testified
to repairing the wheels on two of defendant's motorbikes
on April 16. Id. at pp. 199-200, 202.
moved for a judgment of acquittal at the conclusion of the
government's case-in-chief and again prior to closing
arguments. (Dockets 135 at pp. 122-24 & 136 at pp.
98-99). The court denied both motions, finding there was
sufficient evidence for the jury to establish each element of
the arson charge beyond a reasonable doubt. (Dockets 135 at
p. 123 & 136 at p. 99). Defendant renews his Rule 29
motion. (Dockets 109 & 143). Defendant timely filed the
Rule 29(c) motion within 14 days of the verdict. Fed. R.
Crim. P. 29(c)(1).
Crim. P. 29(c) gives the district court authority to set
aside a guilty verdict and enter an acquittal upon a
defendant's post-trial motion. “A district court
has very limited latitude in ruling upon a motion for
judgment of acquittal.” United States v.
Baker, 367 F.3d 790, 797 (8th Cir. 2004) (citation and
internal quotation marks omitted). “A motion for
judgment of acquittal should be granted only if there is no
interpretation of the evidence that would allow a reasonable
jury to find the defendant guilty beyond a reasonable
doubt.” United States v. Boesen, 491 F.3d 852, ...