USA v. White Horse et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
SAMUEL FRANCIS WHITE HORSE,
Defendant.
3:20-CR-30058(02)-RAL
ORDER GRANTING IN PART
AND DENYING IN PART
DISCLOSURE MOTIONS
In this murder, assault, and evidence tampering case, Samuel Francis White
Horse 	moved 	for 	the 	disclosure 	of 	his 	co-defendant 	father’s 	(1) 	presentence
investigation 	report 	(PSR) 	(but 	only 	the 	offense 	conduct 	portion 	of 	it), 	(2) 	plea
agreement 	supplement, 	and 	(3) 	allocution 	statement. 	Samuel 	maintains 	that 	this
information is necessary for him to confront and cross-examine the accusations his
father has made against him. Having conducted an in camera review of the information
Samuel seeks, the Court grants in part and denies in part his disclosure motions.
BACKGROUND
A federal grand jury indicted Samuel and his father, Jerome White Horse, Jr., on
second degree murder and assault charges, and Jerome with the additional charge of
evidence tampering. The charges stem from an fatal beating of Lawrence Lafferty on
February 12, 2020 in Cherry Creek, South Dakota. Jerome plead guilty to voluntary
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manslaughter and aiding and abetting, as part as a plea agreement reached with the
government and was sentenced earlier this month. Samuel’s trial is scheduled to begin
on June 22, 2021.
Just before and after Jerome’s sentencing, Samuel filed two motions seeking the
disclosure 	of: 	(1) 	“the 	offense 	and 	relevant 	conduct 	portions” 	of 	Jerome’s 	PSR
(including 	related 	addenda 	and 	reports), 	(2) 	the 	supplement 	to 	Jerome’s 	plea
agreement, and (3) Jerome’s allocution statement. Samuel asserts that he needs this
information to confront and cross-examine Jerome, who is expected to testify for the
government at Samuel’s trial.
The Court has conducted an in camera review of the requested materials, all of
which have restricted access. The Court has also reviewed the entire case file.
DISCUSSION
Due process requires that the government disclose to an accused favorable
evidence in its possession that is material to guilt or punishment.1 “Favorable” evidence
includes evidence tending to exculpate the accused and evidence adversely affecting the
credibility 	of 	the 	government’s 	witnesses.2 	Evidence 	is 	“material” 	if 	there 	is 	a
reasonable probability that it will affect the result of the proceeding.3
1See Brady v. Maryland, 373 U.S. 83, 87 (1963).
2See United States v Bagley, 473 U.S. 667, 676 (1985); Giglio v. United States, 405 U.S.
150, 154-55 (1972).
3See Bagley, 473 U.S. at 682.
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The government may, at times, possess potential Brady material that it deems
privileged or that is confidential. If the accused is able to identify this material with
some degree of specificity, he or she may then attempt to obtain court-ordered
disclosure of it.4 Once the accused has made a plausible showing that the evidence
would be both favorable and material, a court must review the information in camera to
determine whether it should be disclosed.5 The court conducts its review in private
because the Constitution does not permit an accused the right of uncondititional access
to the government’s files.6
PSRs 	represent 	a 	special 	category 	of 	potentially 	discoverable 	confidential
information. But no statute or rule of criminal procedure addresses disclosure of them
to a third party. Courts typically require “some showing of special need before they will
allow a third party to obtain a copy of a [PSR].”7
4See Pennsylvania v. Ritchie, 480 U.S. 39, 58 n. 15 (1987).
5See Ritchie, 480 U.S. at 58-60.
6See id. 59-60.
7U.S. Dept. of Justice v. Julian, 486 US 1, 12 (1988); see also United States v. Williams,
624 F.3d 889, 894 (8th Cir. 2010) (there must be “some showing of special need” before a
court may release a PSR to a third party); United States v. Spotted Elk, 548 F.3d 641, 672
(8th Cir. 2008)(same); United States v. Jewell, 614 F.3d 911, 921-22 (8th Cir. 2010)
(observing 	that 	the 	“special 	need” 	standard 	is 	similar 	to 	the 	Second 	Circuit’s
requirement of “a threshold showing of a good faith belief that a co-defendant’s PSR
contains exculpatory evidence not available elsewhere”).
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Because PSRs contain sensitive information, they “are generally treated as
confidential.”8 Once the requesting party makes a showing of special need, the court
should conduct an in camera review of the PSR and then disclose exculpatory or
impeachment material from it as appropriate.9
Here, Samuel is entitled to the offense conduct section (¶¶ 4-23) of Jerome’s PSR.
He 	has 	demonstrated 	a 	special 	need 	for 	this 	information, 	and 	it 	is 	potentially
exculpatory and impeachment evidence.10 The same, however, cannot be said for
Jerome’s plea agreement supplement and allocution statement and these documents
need not be produced.11
8See Williams, 624 F.3d at 894 (quoting United States v. Shafer, 608 F.3d 1056, 1066
(8th Cir. 2010)).
9See Williams, 624 F.3d at 894; Shafer, 608 F.3d at 1066; see also United States v.
Garcia, 562 F.3d 947, 953 (8th Cir. 2009) (where the district court abused its discretion in
failing to review a co-conspirator’s PSR after defendant sought access to it and the
government recognized the possibility that the PSR contained Brady material and
requested in camera review).
10See United States v White Plume, CR.13-50008-JLV, 2015 WL 13333423 at **1-2
(D.S.D. June 10, 2015) (showing of special need made where information in PSR went to
credibility of likely witness and was of “paramount importance” to defendant’s case
and the issue of who injured the child victim); United States v. Graham, CR. 03-50020-02,
2007 WL 9728580 at **1-3 (D.S.D. Dec. 20, 2007) (citing cases and requiring disclosure of
portions of co-defendant’s PSR in a murder case).
11See United States v. Moore, 949 F.2d 68, 72 (2d Cir. 1991); see also United States v
Massat, CR.15-50089-JLV, 2018 WL 583109 at *10 (D.S.D. Jan. 29, 2018) (in camera review
disclosed no “information either implicating or exculpating [defendant]”).
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CONCLUSION AND ORDER
So, Samuel gets some, but not all, of what he asked for. Disclosure is warranted
for the offense conduct in Jerome’s PSR but not beyond that.
For these reasons, and based on the record before the Court, it is
ORDERED that Samuel’s motion to disclose presentence report and supplement
to plea agreement12 is granted in part and denied in part. The motion is granted to the
extent it seeks disclosure of the offense conduct from Jerome’s PSR (¶¶ 4-23) but is
otherwise denied. It is further
ORDERED that Samuel’s motion to disclose allocution statement13 is denied.
Dated this 28th day of May, 2021, at Pierre, South Dakota.
BY THE COURT:
MARK A. MORENO
UNITED STATES MAGISTRATE JUDGE
12See Docket No. 145.
13See Docket No. 148.
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