833 F.3d 980
8th Cir.2016Background
- Lona Lee Colhoff was tried and convicted on two counts of conspiracy to distribute controlled substances (21 U.S.C. §§ 846, 841) and one count of attempted witness tampering (18 U.S.C. § 1512(b)(1)); sentenced to concurrent 45-month terms.
- Her brother, Gerald LeBeau, ran a drug distribution network on/near the Pine Ridge Reservation; family members (including Colhoff) stored, transported, and distributed drugs and money for him.
- During a separate trial of another alleged co-conspirator (Susan Schrader), Colhoff encountered prospective witness Brady Ferguson in the U.S. Attorney’s Office lobby and told him, among other things, “Snitches get stitches,” criticizing cooperating Native Americans.
- Ferguson reported the statement to law enforcement; the government added an attempted witness-tampering charge and convicted Colhoff on that charge as well.
- On appeal Colhoff argued (1) improper joinder of the conspiracy and tampering charges, (2) insufficient evidence of intent to tamper, and (3) First Amendment protection of her statement as non-threatening political speech. The Eighth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether joinder of conspiracy and witness-tampering charges was improper | Colhoff argued the charges were not part of the same scheme and should not have been tried together | Government argued the tampering was factually interrelated with prosecutions arising from the same drug-distribution scheme and evidence overlapped | Joinder proper; no plain error — charges were connected and evidence of each would be admissible in separate trials |
| Sufficiency of evidence for intent to influence testimony under § 1512(b)(1) | Colhoff contended government failed to prove she intended to influence, delay, or prevent Ferguson’s testimony | Government pointed to timing, location, audience (witness check-in during Schrader trial), and the threatening language to infer intent | Sufficient evidence; reasonable jury could infer intent to influence or prevent testimony |
| Whether “snitches get stitches” is protected political speech under the First Amendment | Colhoff claimed her statements were a political rant protected by free speech and not a true threat | Government argued the phrase, in context, constituted a threat likely to place a cooperating witness in fear and is unprotected | Under plain-error review, the statement sufficiently amounted to a “true threat”; no plain error in conviction |
| Standard of review for unpreserved constitutional challenge | Colhoff urged de novo First Amendment review | Government maintained plain-error review because claim was not raised below | Court applied plain-error review and found any error was not plain |
Key Cases Cited
- United States v. McCarther, 596 F.3d 438 (8th Cir. 2010) (Rule 8(a) joinder construed broadly in favor of joinder)
- United States v. Rock, 282 F.3d 548 (8th Cir. 2002) (witness tampering is factually interrelated with the proceeding being impeded)
- United States v. Little Dog, 398 F.3d 1032 (8th Cir. 2005) (joinder of obstruction/tampering with substantive offense is proper when interrelated)
- United States v. Madrigal, 152 F.3d 777 (8th Cir. 1998) (acts of intimidation may be admissible as acts in furtherance of a conspiracy)
- United States v. Olano, 507 U.S. 725 (U.S. 1993) (standard for plain-error reversal requires reasonable probability of effect on outcome)
- United States v. Johnson, 745 F.3d 866 (8th Cir. 2014) (standard for sufficiency review: reasonable jury could find element beyond a reasonable doubt)
- Virginia v. Black, 538 U.S. 343 (U.S. 2003) (defining intimidation/true threats as those intended to place victim in fear of bodily harm)
- Doe v. Pulaski Cty. Special Sch. Dist., 306 F.3d 616 (8th Cir. 2002) (reasonable-recipient formulation of true threat)
- United States v. Gavin, 583 F.3d 542 (8th Cir. 2009) (threats of violence are unprotected speech relevant to witness-tampering statutes)
- United States v. J.H.H., 22 F.3d 821 (8th Cir. 1994) (victim’s perception of a threat can support an inference that a threat was made)