United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
jury indicted defendant Tolin Gregg on two counts of
aggravated sexual abuse by force. (Docket 2). Now pending
before the court is defendant's second motion to dismiss
the indictment for government misconduct. (Docket 124). The
government opposes the motion and the parties filed
voluminous briefing. (Dockets 131, 151, 155, 178, 179 &
181). The court held three evidentiary hearings on the
motion, during which two witnesses gave testimony and five
exhibits were received into evidence. (Dockets 160, 169, 170,
172 & 173). For the reasons given below, the court denies
court described the circumstances of the alleged sexual
assault in some detail in its order denying defendant's
first motion to dismiss the indictment. (Docket 120 at pp.
3-9). The court will not repeat those findings in full here,
but instead will focus on facts pertinent to the present
government alleges defendant sexually assaulted R.O.H. during
the early morning hours of December 23, 2016. (Docket 120 at
pp. 3-4). At the time, R.O.H. was 17 and defendant was 18.
Id. at p. 3. R.O.H. and Mr. Red Owl are cousins.
(Docket 175 at p. 6). Defendant was friends with Mr. Red
Owl's brother, Brycee Red Owl. Id. R.O.H. and
defendant attended the same high school. Id. at p.
defendant and Brylee Red Owl drove to a place they called
River Road near Kyle, South Dakota, on the Pine Ridge
Reservation in Mr. Red Owl's vehicle. (Docket 120 at pp.
3-4). Mr. Red Owl and defendant had been drinking alcohol and
continued to drink when they arrived at River Road.
Id. Both defendant and Mr. Red Owl stated R.O.H.
drank at River Road, but R.O.H. denied drinking that evening
to law enforcement. Id. at p. 4. Defendant and
R.O.H. engaged in sexual activity in the back seat of Mr. Red
Owl's vehicle. Id. R.O.H. stated the sex was
forced and that she physically and verbally resisted the
assault. Id. Defendant stated the sex was
consensual. Id. Mr. Red Owl was in the vehicle
during the alleged assault. Id. at pp. 5-6.
motion focuses primarily on an audiovisual recording Mr. Red
Owl made while he, R.O.H. and defendant were leaving River
Road. Approximately 15-20 minutes after the alleged assault,
while the three were driving from River Road to Kyle, Mr. Red
Owl began recording events in the vehicle on his cell phone.
(Docket 175 at pp. 30-31, 43). The phone was set inside a
cupholder and its camera only recorded dark images of the
interior of the vehicle. Id. at pp. 25-26. It did
not record any images of R.O.H. Id. at p. 26.
However, the phone did capture six minutes of audio,
including audio of R.O.H. speaking. Id. at pp.
Owl described the recording as “an audio of [R.O.H.]
mizzing out.” Id. at p. 16. “Mizzing
out, ” according to Mr. Red Owl, is slang from the Pine
Ridge Reservation for “acting all miserable and . . .
angry” or “out of control[.]” Id.
The “main theme” of R.O.H.'s recorded audio
was her anger with defendant for being a “deadbeat
dad[.]” Id. at pp. 18-19. Mr. Red Owl stated
that topic was “all she was talking about[.]”
Id. at p. 19. R.O.H. was “slurring her
words” and had a “slight bit of change in her
voice.” Id. at p. 20. In Mr. Red Owl's
view, an independent listener would conclude R.O.H.
“sounded like somebody who was really drunk[.]”
Id. at p. 22. The recording did not capture R.O.H.
crying or discussing the alleged sexual assault. Id.
at pp. 23-24. Mr. Red Owl did not send the recording to
anyone. Id. at p. 27.
Bureau of Investigation Special Agent Mark Lucas (“SA
Lucas”) interviewed Mr. Red Owl on December 24 at his
home in Kyle and at River Road. Id. at pp. 38, 41,
44. Part of the interview was recorded and transcribed.
Id. at pp. 40, 44. During the recorded portion of
the interview, which took place in Kyle, Mr. Red Owl brought
up the recording. Id. at pp. 40-42; Docket 120-1 at
p. 4. He told SA Lucas, “I actually recorded a video
cause I wanted her to see how she was when she was really
drunk. . . . It's about six minutes. I just looked at
it.” (Docket 120-1 at p. 4). SA Lucas did not respond
to Mr. Red Owl's statement, but instead asked him for his
full name and date of birth. Id. Neither SA Lucas or
Mr. Red Owl mentioned the recording again during the recorded
and transcribed portion of the interview.
the two drove from Mr. Red Owl's home in Kyle to the
River Road location where the sexual assault allegedly
occurred. (Docket 175 at pp. 14-15, 44-45) (testimony from
Mr. Red Owl and SA Lucas regarding the drive to River Road).
SA Lucas did not record the conversation in the vehicle
during the trip to River Road. Id. at p. 44. Mr. Red
Owl and SA Lucas gave conflicting accounts of the
conversation. SA Lucas testified he asked Mr. Red Owl to send
him the recording and gave him a business card with his
e-mail address. Id. at pp. 44-45. Mr. Red Owl
testified SA Lucas did not ask him about the recording during
the trip. Id. at p. 15.
Lucas did not listen to the recording while he was in the
vehicle with Mr. Red Owl. Id. at pp. 57-58. SA Lucas
testified he “didn't realize what kind of gravity
that video would have” because “the video
recording that [Mr. Red Owl] described was not of the
crime.” Id. at p. 58. He felt Mr. Red Owl
“seemed very cooperative” and would send the
recording to him via e-mail. Id. at p. 57. SA Lucas
further testified he was “moving on to the next
call” which “took [his] attention for the next
week.” Id. at pp. 57-71. He had “other
pressing matters” including an escaped prisoner.
(Docket 176 at p. 26). SA Lucas was also reluctant to seize
Mr. Red Owl's phone on Christmas Eve because he knew it
would take some time to examine the phone and it was very
valuable to Mr. Red Owl. Id. at p. 40.
December 27, SA Lucas called Mr. Red Owl. (Docket 175 at p.
69). The court received into evidence an FBI phone record
showing a called lasting approximately a minute and a half
placed from an extension SA Lucas identified as his own to a
phone No. he identified as belonging to Mr. Red Owl.
Id. at pp. 69-70; Hearing Ex. 103. SA Lucas
testified he asked Mr. Red Owl again during that phone call
to send the recording to him. (Docket 175 at pp. 70-71). SA
Lucas memorialized the call in a report drafted on December
27, in which he stated he asked Mr. Red Owl for the
recording. Id. at pp. 74-75; Hearing Ex. 103. SA
Lucas did not contact Mr. Red Owl again after December 27.
Id. at p. 70.
Owl deleted the recording from his phone. Id. at p.
28. He testified during an evidentiary hearing he deleted it
“after a couple days when it was never brought
up” because “it was unnecessary” and
“taking up space on [his] phone.” Id.
However, he told a defense investigator that he deleted it on
the morning of December 23, after he dropped defendant and
R.O.H. off at their homes in Kyle. Id. at p. 35. Mr.
Red Owl had the phone in his possession until he sold it to
his mother shortly after Christmas of 2018, more than a year
and a half after the indictment and approximately two weeks
after defendant filed the present motion to dismiss the
indictment. Id. at p. 31; see also Dockets 2 &
124. Neither the government nor the defense now have the
phone. (Docket 176 at p. 45). The defense did not make any
effort to obtain Mr. Red Owl's phone or forensically
examine it to determine if the recording could be
recovered. (Docket 175 at pp. 31-32). The defense
plans to call Mr. Red Owl at trial and “anticipates
that [he] will give truthful testimony that will be favorable
to the defendant.” Id. at p. 32; Docket 87 at
March 21, 2017, SA Lucas testified to a federal grand jury
concerning his investigation of the alleged sexual assault.
(Docket 120-2). He testified falsely by mischaracterizing Mr.
Red Owl's statements during the December 24 interview in
three ways. (Docket 120 at pp. ...