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United States v. Ferguson

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

December 3, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DANNY FERGUSON, Defendant.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE

         INTRODUCTION

         A jury 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.

         TRIAL EVIDENCE

         The 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.

         I. Government's Trial Evidence

         A. April 7, 2015 fire at Christy Pierce's home

         In 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.

         Ms. 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.

         Ms. 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.

         B. April 8 fire and observations of defendant at Pierce home

         Around 5 p.m. on April 8, Ms. Pierce observed defendant drive by her home on a motorcycle.[1] 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.

         Defense 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.

         On 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.

         While Mr. Rios was putting the fire out, Garfield Iron Crow arrived at the home, drawn by the flame and smoke.[2] (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.

         The 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. 59-63.

         C. Questioning and confession of defendant

         Federal 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.

         On May 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. 64-79).

         II. Defendant's Trial Evidence

         Defendant's 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).

         Defendant 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.

         Defendant 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.

         ANALYSIS

         I. Rule 29(c) Motion

         Defendant 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).

         A. Rule 29(c) standard

         Fed. R. 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, ...


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