USA v. Brown et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff
vs. 4:17-cr-40058
RANDY L. GARRISS, MEMORANDUM
Defendant AND ORDER
'Pending before the Court is Defendant's Motion to Acquit Notwithstanding
the Verdict(Doc. 336). The Government filed a response(Doc. 338), to which
Defendant replied(Doc. 339). For the reasons explained below,the Defendant's
motion is denied.
The Court notes at the outset that it deems Defendant's niotion to have been
timely filed. Defendant's stand-by counsel filed the motion electronically on June
30, 2022. (Doc. 333). Garriss, acting pro se, mailed a copy the same day and it
was filed on July 5, 2022.(Doc. 336). Counsel then filed a notice offiling error
for the earlier document. Given that Doc. 333 was timely filed and that Doc. 336
is a copy, the Court deems the motion filed within the timeframe set out in Rule
29(c)(1).
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BACKGROUND
Defendant was indicted on two counts, conspiracy to defraud the Internal
Revenue Service, 18 U.S.C. § 371, and attempt to interfere with the administration
ofthe Internal Revenue Laws,26 U.S.C. § 7212(a). Defendant proceeded to jury
trial pro se on June 7, 2022, with stand-by counsel, and was convicted of both
counts on June 17, 2022. The Government's case against Defendant arose in
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connection with the prosecution of Steve and Ted Nelson for conspiracy to defraud
the United States, failure to file income tax returns, and impeding the Internal
Revenue Service. They were convicted on May 12, 2015. The Government
alleged Defendant participated in the conspiracy involving the Nelsons, Loren
Brown and Garriss, and engaged in extensive conduct to further it. The
Government alleged this conduct included, among other actions, Garriss's serving
as trustee of sham trusts which had been set up by the Defendant,the Nelsons, and
others to shield the Nelsons' assets from recovery by the United States. Garriss
was prosecuted with co-defendant Brown, who pleaded guilty to impeding the
Internal Revenue Service on June 21, 2022. At the time of Garriss's trial. Brown
was awaiting sentencing. He was a cooperating witness and testified at length at
Garriss's trial.
Garriss has moved for acquittal notwithstanding the verdict, raising several
claims. He alleges the evidence was insufficient to convict of either charge, the
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redaction and the exclusion of certain evidence proffered by the defense denied
him due process, and the requirement that he wear a mask during parts oftrial
likewise denied him due process. These matters are addressed below.
ANALYSIS
1. Legal Standard
Federal Rule of Criminal Procedure 29 provides as follows:
Motion for a Judgment of Acquittal...
(c) After Jury Verdict or Discharge.
(1)Time for a Motion. A defendant may move for a judgment of
acquittal, or renew such a motion, within 14 days after a guilty verdict or
after the court discharges the jury, whichever is later.
(2)Ruling on the Motion. Ifthe jury has returned a guilty verdict, the
court may set aside the verdict and enter an acquittal. Ifthe jury has failed to
return a verdict, the court may enter a judgment of acquittal....
F. R. Grim. P. 29.
Numerous decisions provide guidance on the application of Rule 29. The
key for Rule 29 review is that a motion forjudgment of acquittal may be granted
only "where the evidence is insufficient to sustain a conviction." United States v.
Love,20 F.4th 407, 413 (8th Cir. 2021)(quoting United States v. Hardin, 889 F.3d
945,949(8th Cir. 2018)). The parameters of sufficiency review were cogently set
forth in Musacchio v. United States, 577 U.S. 237, 243,136 S.Ct. 709, 715,293
L.Ed.2d 639(2016). There the Court addressed a jury instruction issue and
explained that review for sufficiency "essentially addresses" whether "the
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government's case was so lacking that it should not have even been submitted to
the jury." M (quoting v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 57
L.Ed.2d 1 (1978)). The Court continued with the direction that,"On sufficiency
review, a reviewing court makes a limited inquiry tailored to ensure that a
defendant receives the minimum that due process requires: a 'meaningful
opportunity to defend' against the charge against him and a jury finding of guilt
'beyond a reasonable doubt.' "/J. {c^o^mg Jackson v. Virginia, 443 U.S. 307,314-
315, 99 S.Ct. 2781,61 L.Ed.2d 560(1979)). The Court also invoked Jackson's
well-known standard that the reviewing court must assess whether "any rational
trier offact could have found the essential elements ofthe crime beyond a
reasonable doubt." Id. (quoting Jackson, 443 U.S. at 319).
In conducting its review, the court views the evidence "in the light most
favorable to the prosecution." Jackson, 443 U.S. at 319. Reversal is in order "only
if no reasonable jury could have found [the defendant] guilty beyond a reasonable
doubt." United States v. Walking Bull, 8 F.4th 762, 770(8th Cir. 2021)(quoting
United States v. Hollingshed,940 F.3d410, 417(8th Cir. 2019); United States v.
Coleman,584 F.3d 1121, 1125 (8th Cir. 2009)). See also United States v.
Thompson, 11 F.4th 925,929(8th Cir. 2021)(quoting standard); United States v.
Free, 976 F.3d 810, 813-14(8th Cir. 2020)(same).
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When examining the sufficiency ofthe evidence the court must "giv[e] the
verdict the benefit of all reasonable inferences." United States v. Anderson, 570
F.3d 1025, 1029(8th Cir. 2009)(quoting United States v. Foxx, 544 F.3d 943,949
(8th Cir. 2008)). See also United States v. Fool Bear,903 F.3d 704, 708 (8th Cir.
2018)(quoting standard). Furthermore, as the Anderson court noted,"The
standard ofreview of an appeal concerning the sufficiency ofthe evidence is very
strict, and the verdict ofthe jury should not be overturned lightly." 570 F.3d.
atl029 (quoting United States v. Scott, 64 F.3d 377, 380(8th Cir. 1995)).
In United States v. Hassan,the court acknowledged that Rule 29 "permits
defendants to move the court to set aside a verdict and enter judgment of acquittal
after trial," but the court cautioned that"a district court has very limited latitude to
do so and must not assess witness credibility or weigh evidence, and the evidence
must be viewed in a light most favorable to the government." 844 F.3d 723, 725
(8th Cir. 2016)(quoting United States v. Stacks, 821 F.3d 1038, 1043 (8th Cir.
2016)). Furthermore, the Hassan court advised that when a court evaluates a
motion for judgment of acquittal, passing upon the credibility of witnesses or the
weight to be given their testimony,"is uniquely within the province ofthe trier of
fact, and entitled to special deference." 844 F.3d at 726(quoting United States v.
Goodale,738 F.3d 917,923(8th Cir. 2013)).
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The court's "limited latitude" has been referred to in several cases, including
United States v. Williams, 647 F.3d 855, 859(8th Cir. 2011)and United States v.
Hernandez, 301 F.3d 886, 889(8th Cir. 2002)). Likewise, in United States v.
Magallon,the court commented that the district court's discretion to grant a Rule
29 motion "is even more limited than its discretion to grant a new trial." 984 F.3d
1263, 1288(8th Cir. 2021). Magallon reiterated some ofthese limitations in
underscoring that when a court is resolving a Rule 29 motion it "does not assess
the credibility of witnesses or weigh evidence." Id. at 1288 (quoting United States
V. Starr, 533 F.3d 985,997(8th Cir. 2008)). In the same vein, the Magallon court
stressed that the judge "does not need to ensure witness testimony was
corroborated but assumes the jury found witness testimony credible that was
favorable to the verdict." Id. (citing United States v. Keys, 721 F.3d 512, 519-20
(8th Cir. 2013)). See United States v. Little Bird, 2022 WL 158935,* 2(D. S.D.
2022)(discussing scope of Rule 29 review).
2. Offenses of Conviction
A. Garriss was convicted of Count 1, conspiracy to defraud the United
States, 18 U.S.C. § 371. The elements as instructed by the court at trial are as
follows:
1. Two or more persons reached an agreement or came to an understanding
to commit the crime of defrauding the United States by irripeding, impairing.
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obstructing, or defeating the lawful governmental functions ofthe Internal
Revenue Service ofthe Treasury Department in the ascertainment,
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computation, assessment, or collection ofthe revenue, to wit: income taxes
owed by Theodore "Ted" Nelson and Steven "Steve" Nelson;
2. Garriss voluntarily and intentionally joined the agreement, either at the
time it was first reached or at some later time while it was still in effect;
3. At the time Garriss joined in the agreement, he knew the purpose ofthe
agreement; and
4. While the agreement was in effect, a person or persons who had joined in
the agreement knowingly did one or more acts for the purpose of carrying
out or carrying forward the agreement.
Final jury instruction #17(Doc. 315); Eighth Circuit Manual of Model Jury
Instructions, Criminal, § 5.06A-1.
Garriss claims the Government did not prove the conspiracy charge beyond
a reasonable doubt. To the contrary, the Court finds the Government introduced a
wealth of evidence to prove Defendant entered into a conspiracy with Steve
Nelson, Ted Nelson, and Loren Brown in cormection with the Nelsons' convictions
for conspiracy to defraud the United States, failure to file income tax returns, and
impeding the Internal Revenue Service. The Government established that
Defendant was an active member ofthe conspiracy. It introduced evidence to
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show that he was aware oftax liens placed on the Nelsons' property, and that
Defendant and others established sham trusts and took other actions in an effort to
shield the Nelsons' land from being seized and to hide taxable income. The
Government introduced evidence that after the death in 2011 of John Sheridan,
who had advised the Nelsons in connection with their tax avoidance scheme.
Defendant agreed with the Nelsons and Brown that he would become a trustee of a
trust designed to keep the Nelsons' property from being seized by the Government.
After the Nelsons' convictions. Defendant arranged for a deal to keep some oftheir
land from being seized to satisfy the restitution judgment, sent frivolous material to
the IRS in connection with the Nelsons' case, and made false claims to prospective
buyers that the Nelsons' land could not be sold to them by the Government. The
Government established at trial that these actions were taken in furtherance ofthe
conspiracy with the Nelsons and Brown.
The Court is satisfied that the Government introduced evidence on each
element ofthe offense, and that the evidence was sufficient to prove Defendant's
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guilt of conspiring to defraud the United States beyond a reasonable doubt.
Walking Bull, 8 F.4th at 770. A rational jury thus had sufficient evidence to find
Defendant's guilt beyond a reasonable doubt and did so with respect to Count 1.
Magallon, 984 F.3d at 1288.
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B. Garriss was convicted of Count 2, attempt to interfere with the
administration ofthe internal revenue laws, 26 U.S.C. § 7212(a), which required
the government to prove the following elements:
1. Garriss acted in any way corruptly;
2. Garriss obstructed or impeded, or endeavored to obstruct or impede,the
due administration ofthe Internal Revenue laws;
3. A "nexus" existed between Garriss's conduct and a particular tax-related
proceeding or administrative action; and
4. Garriss acted with knowledge of a currently-pending or reasonably
foreseeable governmental tax-related action or proceeding.
Final jury instruction #20(Doc. 315). 26 U.S.C. § 7212(a); Marinello v. United
States, 138 S.Ct. 1101 (2018).
Garriss claims the Government did not introduce sufficient evidence to
prove the elements ofthe offense beyond a reasonable doubt. The Court finds the
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Government did meet its burden of proof with respect to Count 2. The
Government established that Defendant knew ofthe jeopardy assessment on the
Nelsons land and endeavored to assist the Nelsons in not paying the debt. As
recounted above,the Government showed Garriss participated in setting up sham
trusts to keep the Nelsons' land from being seized and to evade income taxes. He
told a buyer the IRS had ho authority to sell the Nelsons' land and it still belonged
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to a trust. He endeavor^ to arrange a land deal with Carl Bruenning to shield land
from seizure by the IRS. He sent letters and material to the IRS with spurious
claims, all in an effort to impede the IRS from seizing the Nelsons' assets.
The Court is satisfied that the Government introduced sufficient evidence to
prove each element ofthis offense beyond a reasonable doubt. A rational jury had
sufficient evidence to convict, as this jury did. Under the standard set forth above,
the Rule 29 motion is denied. Thompson, 11 F.4th at 929; Free, 976 F.3d at 813-
14.
3. Additional claims by Defendant
A. Safety Precautions Regarding Covid-19—^Amended Standing Order 22-1
Defendant's claim pertaining to the court's requirement that he wear a mask
during certain parts of trial is not appropriate for resolution under Rule 29.
Furthermore,the Court can find no basis for determining that the Court's
enforcement of a mask requirement denied Defendant due process as he claims.
Garriss elected to forego representation by counsel and was assisted on a
stand-by basis by Attorney Ryan Kolbeck. Prior to the commencement oftrial, the
Court reminded Garriss ofthe District's standing order regarding covid precautions
(Doc. 302-1), which had been discussed several times previously. The Court
advised Garriss that because he was not vaccinated against covid, he would be
required to wear a mask except for voir dire, opening, closing, and his own
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testimony if he elected to testify. If he was not wearing a mask at those times he
would be in the witness stand which had a microphone and enclosed on its four
sides with plexiglass.(Doc. 302). The Court also offered Garris a delay in the start
of trial to enable him to obtain two doses ofthe covid vaccine which would do
away with the mask requirement. Id. Garriss refused the offers and the trial
proceeded with Garriss wearing a mask except for his direct and cross examination
testimony which was given from the enclosed witness stand. In addition to
participating in voir dire, Garriss gave an opening statement, cross-examined the
Government's witnesses, testified in his own behalf, and gave a closing argument.
He challenged numerous rulings ofthe Court, necessitating sidebar discussions and
lengthier sessions with the jury excused. Garriss participated in all ofthese aspects
of trial. The Court discerns no impediment to Garriss's receiving due process
when required to wear a mask to guard against the spread of covid to the jury,
witnesses, and court personnel.
B. Fair trial
1. Redaction ofExhibit 247 and exclusion of Exhibit 246
Defendant claims the Court's redaction of a sentence on Exhibit 247
pertaining to co-defendant Brown denied him a fair trial.(Doc. 336). The redacted
document was admitted as Exhibit 247A. This issue is not appropriate for
resolution under Rule 29. If it were, the Court would deny the motion.
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Exhibit 247 was an email from Loren Brown, Defendant's co-defendant, to
Steve Nelson. Brown cooperated with the Government and gave lengthy and
detailed testimony about his dealings with Defendant and the Nelsons. Brown
testified he had pleaded guilty and hoped to achieve leniency in connection with
his testimony in Defendant's case. The omitted sentence indicated Brown wanted
to avoid prison time. The Court redacted the reference to prevent the jury from
focusing on possible punishment, primarily of Garriss. See Eighth Circuit Model
Jury Instruction, Criminal, § 3.12. See generally. United States v. Thomas, 895
F.2d 1198, 1200(8th Cir. 1990). Defendant claims that the jury should have been
able to see from the email that Brown wanted to avoid prison time, that this
influenced his testimony, and that the jury would not have found Garriss guilty if it
had had this information in evaluating Garriss's beliefs about the tax system.(Doc.
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336,PgID 4428-29). The Court disagrees. Given the amount of information
brought out by both the Government and Defendant about Brown's credibility, the
jury had sufficient information to make a determination about whether to believe
his testimony. In addition, in response to a motion in limine by the Government,
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the Court made a pretrial ruling that possible punishment was not to come before
the jury.
Exhibit 246 was a handwritten statement Defendant offered as a reflection of
Loren Brown's past beliefs about the tax system. Brown testified to the matters at
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length. The document was cumulative, had little or no probative value, and was
properly excluded. Federal Rules ofEvidence 401,403.
A Rule 29 motion does not permit the Court to assess the credibility of
witnesses. Goodale, 738 F.3d at 923; Stacks, 821 F.3d at 1043. The court
evaluates the evidence in the light most favorable to the Government. Fool Bear,
903 F.3d at 708. The Court has done so and determines that neither the redaction in
Exhibit 247 nor exclusion ofExhibit 246 undermines the jury's finding of guilt
beyond a reasonable doubt.
2. Exclusion of defense exhibits
Defendant claims the "major issue" before the court is exclusion of some of
the exhibits he wanted to introduce to support his "understanding" ofthe tax
system in an effort to establish his "good faith."(Doc. 339,PgID 4448; Doc. 336,
PgID 4426-27, 4429)). Garriss testified at length about his beliefs. He testified
about the origins of his theories about the tax system, his attendance at an anti-tax
convention, the cases and statutes he read, and his research involving articles and'
commentary from others who would support his belief that neither he nor the
Nelsons were required to pay taxes. He was not prevented from introducing
evidence about his "understanding" ofthe tax system.(Id.). The Court permitted
Garriss to introduce redacted versions of cases, excerpts from Black's Law
Dictionary, and other material.(Doc. 318,PgID 1830-33). The additional
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documents he sought to introduce were not exculpatory, and he was not denied due
process when the Court ruled they were inadmissible. For the most part, the
documents were excerpts from the federal tax code, regulations, cases and articles
addressing sections ofthe tax code, and articles aboutjurisdiction and other
extraneous material. The Court instructed the jury about the law pertaining to the
case, and there was no reason to admit almost 300 defense exhibits which were
documents addressing aspects ofthe law that were irrelevant to the issues the jury
had to decide.
A Rule 29 motion is not the proper setting for evaluation of evidentiary
rulings at trial and is limited to assessment ofthe sufficiency ofthe evidence.
Nevertheless, the Court is mindful ofDefendant's assertion that he was denied a
fair trial because of certain evidentiary rulings. Therefore, the Court has inquired
further to be certain the requirements of due process have been met. Musacchio,
577 U.S. at 243 (quoting Jackson, 443 U.S. at 319). The Court discerns no denial
of due process in its evidentiary rulings.
Given both the absence of evidence to support a claim of denial of due
process and the court's "limited latitude" to overturn the jury's verdict in a Rule 29
motion,the Court declines to overturn the verdict here. Love, 20 F.4th at 413;
Hassan, 844 F.3d at 725.
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CONCLUSION
Garriss's jury trial lasted for eight days, during which the jury listened
attentively to both the Government's and Defendant's cases. The juiy deliberated
and rendered a verdict against Garriss on both counts. The Court finds that based
on the evidence produced at trial, a rational jury could have found guilt beyond a
reasonable doubt on both counts. The Court finds there is no reason to overturn
the jury's verdict by granting the Defendant's motion to acquit.
Accordingly, IT IS ORDERED that Defendant's motion for acquittal
notwithstanding the verdict is denied.
Dated this U day of August, 2022.
BY THE COURT:
jawrence L. Piersol
Jnited States District Judge
ATTEST:
MATTHEW W.THELEN,CLERK
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