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United States v. Colombe

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

December 7, 2018




         The United States in this case indicted six Defendants-Tally Colombe (Colombe), Elnita Rank (Rank), Kristal Hawk (Kristal), Ronda Hawk (Ronda), Tiffany Monteau (Tiffany), and Stefen Monteau (Stefen)-on a single count of conspiracy to retaliate against a witness. Doc. 1. All Defendants pleaded not guilty. This Court conducted a jury trial beginning October 30 and concluding on November 2, 2018. At the close of the Government's evidence, all Defendants made Rule 29 motions for judgment of acquittal, which this Court denied. At the close of all of the evidence, each Defendant renewed their Rule 29 motions for judgment of acquittal, at which time the Court expressed skepticism of whether the Government's evidence was sufficient for a reasonable jury to find each Defendant guilty and signaled that at least with regard to Stefen a Rule 29 motion likely would be granted. This Court chose to reserve decision under Rule 29(b) on all of the motions for judgment of acquittal made at the close of the evidence. The jury found Stefen not guilty, but found the remaining five Defendants guilty of conspiracy to retaliate against a witness. This Court explains in this opinion and order why it now denies the Rule 29 motions.

         I. Standard for post-conviction ruling on Rule 29 motion

         Rule 29 of the Federal Rules of Criminal Procedure provides that "the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a). Rule 29(b) permits the court to reserve decision on the motion, submit the case to the jury, and decide the motion after the jury returns a verdict of guilty. Fed. R. Crim. P. 29(b). "If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved." Id. This Court reserved its ruling at the close of all of the evidence.

         Judgment of acquittal is appropriate "only when no reasonable jury could have found the defendant guilty beyond a reasonable doubt." United States v. Hardin, 889 F.3d 945, 949 (8th Cir. 2018) (citation omitted). When considering a motion for judgment of acquittal, a district court must view the evidence in the light most favorable to the government, must resolve factual conflicts in the government's favor, and must accept all reasonable inferences that support the verdict. United States v. Benton, 890 F.3d 697, 708 (8th Cir. 2018). A court on a Rule 29 motion "is not to weigh the evidence or assess the credibility of witnesses." United States v. Bredell, 884 F.2d 1081, 1082 (8th Cir. 1989) (rating Rurks v. United States, 437 U.S. 1, 16 (1978)). "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. Dupont, 672 F.3d 580, 582 (8th Cir. 2012) (per curiam) (citation omitted); see United States v. Hood, 51 F.3d 128, 129 (8th Cir. 1995) ("Jury verdicts are not lightly overturned.").

         II. Facts established at jury trial

         The indictment of these six Defendants for conspiracy to retaliate against a witness has its roots in an earlier criminal case in this Court captioned United States v. Tally Colombe, 16-CR-30126. In that earlier case, Colombe pleaded guilty to wire fraud and program fraud arising out of embezzlement and misuse of funds of a not-for-profit entity called Hunkpati Investments. Colombe had been the executive director of Hunkpati Investments. Hunkpati Investments was a community development financial institution (CDFI) that relied upon federal funding and other grants to stimulate economic activity on the Crow Creek Indian Reservation in central South Dakota. A CDFI, such as Hunkpati Investments, makes small loans to people who struggle with creditworthiness, provides information and instruction on financial literacy and responsibility, provides loans for debt consolidation, has programs to encourage savings, and engages in other activity designed to improve conditions on the reservation such as running a community garden. Colombe was indicted in December of 2016 for wire fraud, program fraud, forgery, and larceny from Hunkpati Investments; was on pretrial release; pleaded guilty to wire fraud and program fraud on June 27, 2017; resigned as executive director of Hunkpati Investments at that time; and self-reported to the Hughes County Jail consistent with this Court's order on September 1, 2017.

         Colombe's embezzlement from Hunkpati Investments left Hunkpati Investments in jeopardy of losing federal funding and grants. Lahoma Simmons (Simmons) had been working as an independent consultant to Hunkpati Investments in 2015 and 2016 to assist in grant reporting, traveling from her home in Oklahoma to Hunkpati Investments' location in Fort Thompson, South Dakota three or four times per year. Around the time of Colombe's guilty plea, the Hunkpati Investments' board of directors hired Simmons to become the interim executive director, and Simmons entered into a three-month contract covering July, August, and September of 2017 to do so. Exh. 11. Hunkpati Investments, perhaps acting through Simmons herself, paid Simmons in advance for the three months. Exhs. 13, 14. Simmons continued to live in Oklahoma and traveled periodically to South Dakota to work at the Hunkpati Investments site. In or around August of 2017, Simmons discovered what she believed to be evidence of Colombe's ongoing misappropriation of Hunkpati Investments' funds occurring after Colombe had been indicted. Simmons notified the United States attorney handling Colombe's case and provided information and documents to the United States attorney's investigator regarding some of Colombe's post-indictment handling of Hunkpati Investments' monies.

         Colombe's sentencing hearing was scheduled for and took place on September 19, 2017. On September 6, 2017, the United States attorney served a subpoena on Simmons to testify at Colombe's sentencing hearing. Simmons informed the board of directors of Hunkpati Investments that she had been served with a subpoena and would be testifying at Colombe's sentencing hearing. Simmons-who previously had a very good relationship with Colombe and had heard from Colombe that she was wrongfully accused of crimes-had come to believe after Colombe's guilty plea that Colombe had crippled Hunkpati Investments financially. Simmons is not a member of the Crow Creek Sioux Tribe and did not have close relations with individuals on the reservation. Simmons advised the Hunkpati Investments' board and the board of the Crow Creek Sioux Tribe housing authority, a business partner of Hunkpati Investments, that Colombe had been convicted of embezzlement crimes and had inflicted severe financial damage on Hunkpati Investments.

         After her self-report on September 1, 2017, pending sentencing, Colombe remained incarcerated at the Hughes County Jail. The Hughes County Jail has a policy handbook given to inmates upon their admission that, among other things, alerts inmates that telephone conversations from the Hughes County Jail can be recorded. Exhs. 1, 2. The Hughes County Jail, through a company that supplies calling services, has software that records all calls.

         Colombe made a number of calls from and recorded by the Hughes County Jail, three of which were received in evidence at trial. Two of those phone calls occurred on September 8, 2017, which was two days after Simmons was served with the subpoena to testify at Colombe's sentencing hearing. Colombe placed both of the September 8, 2017 calls to her twin sister Tiffany. Colombe and Tiffany are very close, and Tiffany at trial spoke of having a special bond with her twin sister. In September of 2017, Tiffany was living in Chamberlain, which is 26 miles from Fort Thompson and not on the Crow Creek Indian Reservation. Tiffany at the time was working two jobs in Chamberlain-one as the manager and main cashier of Cruzer's Pit Stop and the other as an employee of Upper Crust Pizza. Tiffany was a single mother caring for her three children, including one with a seizure disorder, and had just received temporary custody of Colombe's three children. The phone conversations reveal that Tiffany was behind on her rent, had a wage claim from a previous employer for unpaid monies, and was seeking to sell a vehicle at the time to pay rent. Tiffany's background-including a Bachelor of Science in elementary education from the University of Montana and an associate's degree in nursing, with an employment history of working as the dean of students at a tribal school and as a nurse and treatment counselor previously-contrasted with her tone on the phone which seemed flighty, scattered, and stressed.

         The first call between Colombe and Tiffany on September 8, 2017, made clear that Colombe knew that Simmons had provided the United States Attorney's Office with additional information being used to seek an enhanced sentence on Colombe as a result. Exh. 3. Colombe told Tiffany "that the new ED [executive director] Lahoma [Simmons] and Elaine [another Hunkpati Investments employee] are sending the Feds all kinds of stuff about me" and that "the new ED and Elaine are putting the boots to me." Exh. 3. Colombe then told Tiffany "you need to call Stef or grandma and go tell them to lock up that building and don't let them have access to anything" to which Tiffany responded "okay." Colombe later in the conversation asked Tiffany to eall Dunne Chase (Chase), who was a fonner Hunkpati investments employee that just recently had her employment terminated, to which Tiffany responded "okay I'll call her." Exh. 3.

         The "grandma" referred to by Colombe is Defendant Elnita Rank. Rank, in September of 2017, was 80 years old and was the owner of .he Mel and Elnita Rank Community Center in Fort Thompson. Hunkpat, Investments leased a portion of the Me. and Elnita Rank Community Center for its offices and used other portions of the building at otber times, including when presenting seminars. Although there previously had been a. least one other tenant in the building, by 2017 the only tenant in the building was Hunkpati Investments.

         Colombe called Tiffany a second time on September 8, 2017, about one hour after the first call. Exh. 4. During the second eall, Tiffany reported ealling Chase and that Ronda-one of the Defendants in this ease, an aunt to Tiffany and Colombe and the daughter of Rank-was "beeping in on the other line." Exh. 3. Tiffany told Colombe "grandma sent Ronda down, 0 . . . kiek Lahoma [Simmons] and Elaine out of there; it says it's elosed on there ... and Ronda went on a rampage after Lahoma and Elaine." Exh. 3. hr fact, Simmons was not in Fort Thompson or a, Hunkpati investments on September 8, 2017. Tiffany then told Colombe "grandma is kicking them out of that building; grandma is pissed." After Colombe asked whether it was "beeause of me" Tiffany responded "no, beeanse of Lahoma and Elaine, whatever they did, sent you to the Feds, and what or whatever, so grandma said they should leave her alone now. She's got kids to think about." Exh. 3. At trial, Tiffany testified that she called Chase, but it was a different aunt and not Ronda who was beeping in on the phone. Tiffany testified that she had not talked to any of the Defendants between the two calls with Colombe but had received information seoond and thirdhand, in part from people who would stop at Cruzer's Pit Stop, a convenience store where she was working on the day of September 8 while having phone conversations with Colombe.

         At any rate, later during the second September 8 phone conversation, Tiffany told Colombe that she "called grandma right after I got off the phone with you." However, Tiffany then gave a muddled response to Colombe's question about what grandma said, which could be interpreted as saying she did not call Rank, and concluded with "I don't know who got ahold of grandma." Exh. 3. Tiffany reported that grandma had sent Ronda to the business on September 8. Repeatedly during her trial testimony Tiffany stated that she did not call Rank and was not talking with her grandmother at the time. Tiffany repeatedly testified that she did not relay Colombe's request to remove Simmons from the building and lock her out to anyone at any time. Rather, according to Tiffany, Colombe had been suicidal prior to self-reporting to prison, was distraught for various reasons including the Government seeking an enhanced ...

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