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United States v. Gregg

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

September 9, 2019

TOLIN GREGG, Defendant.




         A grand 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 the motion.


         I. Facts

         The 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 motion.

         The 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.[1] Id. R.O.H. and defendant attended the same high school. Id. at p. 39.

         R.O.H., 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.

         This 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. 25-26.

         Mr. Red 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.

         Federal 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.

         However, 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.

         SA 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.

         On 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.

         Mr. Red 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.[2] (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 p. 1.

         On 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. ...

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