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Case 3:21-cr-30091-RAL Document 127 Filed 01/18/23 Page 1 of 17 PageID #: 1567
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
UNITED STATES OF AMERICA, 3:21-CR-30091-RAL
Plaintiff,
OPINION AND ORDER DENYING
vs. DEFENDANTS' MOTION FOR
JUDGMENT OF ACQUITTAL OR NEW
(1)JAMES GARRETT,(2)LEVI GARRETT, TRIAL
Defendant.
After a six-day trial, a jury found Defendant James Garrett guilty on two counts (Counts
IV and VI) of False Statement in connection with Federal Crop Insurance and found Defendant
Levi Garrett guilty of one count(Count V)of False Statement in connection with Federal Crop
Insurance. The jury found the Defendants not guilty on several other counts. Defendants James
Garrett and Levi Garrett (collectively the Garretts) have filed a Motion for Judgment of Acquittal
and in the Alternative for New Trial. Doc. 109. That motion distills into two arguments:(1) an
assertion of insufficient evidence to support conviction on any counts; and (2) a counter-factual
claim debunked by the transcript that this Court misread the verdict form by inverting the names
of the defendants when reading the verdict on Count VI, which in the Garretts' view justifies
acquittal because the polling of the jury confirmed the verdict as read by this Court to be
unanimous. Doc. 109; Doc. 110. Forthereasonsexplained,the Motion for Judgment of Acquittal
and in the Alternative for New Trial is denied.
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I. Facts Relevant to Counts of Conviction
Defendant James Garrett (James) is the father of Defendant Levi Garrett (Levi). The
Garretts operate a farm and ranch in Sully County,South Dakota. Because the counts ofconviction
involve false statements in connection -with crop insurance for plantings in 2018 and 2019, this
Court will focus on facts relating to those crop years.
The Garretts participated in the federal crop insurance program during the relevant years.
For 2018,James certified on his acreage report that he planted 1,152.22 insured acres ofsunflowers
between June 10 and June 16, 2018. Tr. Ex. 4. For 2018, Levi certified on his acreage report that
he planted 1,122.79 acres of sunflowers between June 10 and June 16, 2018. Tr. Ex. 5. Both
James and Levi signed their separate acreage reports just below the following certification
statement:
I certify that to the best of my knowledge and belief all of the information on this
form is correct. I also understand that failure to report completely and accurately
may result in sanctions under my policy, including but not limited to voidance of
the policy, and in criminal or civil penalties(18 U.S.C. § 1006 and§ 1014;7U.S.C.
§ 1056; 31 U.S.C. § 3729, and § 3730 and any other applicable federal statutes.).
Tr. Exs. 4-5. These acreage reports are for a federal crop insurance program administered by Crop
Risk Services for the Risk Management Agency, which is a federal agency within the United States
Department of Agriculture.
The Department of Agriculture establishes a date by which a crop must he planted for full
crop insurance coverage. A farmer may still obtain coverage for crops planted after the established
plant date, hut there is discount in the reimbursement for such crops and a final cutoff date beyond
which no crop insurance is available. The established 2018 plant date for full insurance coverage
for a sunflower crop in Sully County, South Dakota, was June 20, 2018. See Tr. Ex. 108. The
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dates of planting sunflowers certified by the Garretts in 2018 were before the established plant
date for sunflowers in Sully County.
The Garretts had purchased seed in a previous year from Pinnacle Agriculture on credit but
failed to pay for the seed or spraying services supplied by Pinnacle Agriculture and instead filed a
bankruptcy case. Pinnacle Agriculture refused to sell seed to the Garretts on credit in 2018.
The only evidence that the Garretts acquired sunflower seed to plant in 2018 was from
Sioux Nation, LLC. Sioux Nation, LLC employees kept a contemporaneously made handwritten
log on a legal pad of when farmers bought seed. On a page that begins with the date "6-20-18,"
Sioux Nation, LLC on the third entry on the page recorded that James bought eight pallets of
sunflower seed, and across from that entry "Del made 6-22-18" is 'written. Tr. Ex. 52 at 1. Three
lines below that entry the date "6-22-18" is written across from another entry. Id Sioux Nation,
LLC invoiced James for the sunflower seed purchased on June 21, 2018. Tr. Ex. 53. Thus, in
2018 James bought eight pallets of sunflower seed no earlier than June 20 and received delivery
no later than June 22, according to the records and testimony of the Sioux Nation, LLC witness.
So, even though the Garretts certified planting sunflowers between June 10 and 16, 2018, their
purchase of sunflower seed could have been no earlier than June 20, 2018.
Six Sully County farmers whose properties border that of the Garretts—^Brierme Sandal,
Tim Stampe,Tom Young,Sam Braun,JeffBush, and Jerry Bush—^testified that between 2016 and
2020 the Garretts habitually planted late or not at all. S^ Tr. Ex. 96. Each testified about how
they were out in their fields adjacent to the Garrett land between May and July of each year and
could observe the activity, or rather lack ofactivity, on the Garrett land. Many ofthese neighboring
farmers testified to chronic weed issues from the idle or late planted Garrett land.
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One of the fields certified by the Garretts as having been planted to sunflowers between
June 10 and 16, 2018, was the subject of a spray drift complaint in July 2018. A neighbor of the
Garretts reported spray drift from Garrett land onto a com crop, prompting a state investigator to
visit the site, take photographs, and obtain the record ofspraying ofthe Garretts' field. The spray
records produced by Levi documented that he had sprayed a field with the herbicide paraquat
dichloride on July 6, 2018; that field had been certified as having been planted in June to
sunflowers. Tr. Exs. 64,68. An agronomist testified at trial that spraying paraquat dichloride
would kill any sunflowers. A photograph showing the Garrett field taken by the investigator of
the spray drift claim in early August 2018 reflected dying weeds and not a field of sunflowers
ostensibly planted in June 2018. Tr. Exs. 65-67. There was some evidence that the Garretts
planted sunflowers later in 2018 on their lands, likely following the spraying by Levi in July 2018
under a no-till method, which would have killed weeds to give a late-planted sunflower crop a
chance to emerge. The Garretts received full crop insurance benefits for the 2018 sunflowers as if
their sunflower fields were timely planted as the Garretts had represented.
In 2019, most ofthe Garretts' lands were in a prevent-plant status. After a discussion with
their crop insurance agent, James chose to report planting 22.5 acres of com in one field and 25
acres of com in another; such a planting would have the effect of reducing the crop insurance
premiums. James signed his 2019 acreage report for federal crop insurance on July 12, 2019,
certifying that he planted 47.5 acres of com on June 17, 2019. Tr. Ex. 6. The Certification
Statement read:
I certify that to the best of my knowledge and belief all of the information on this
form is correct. I also understand that failure to report completely and accurately
may result in sanctions under my policy, including but not limited to voidance of
the policy, and in criminal or civil penalties(18 U.S.C. § 1006 and § 1014;7 U.S.C.
§ 1056; 31 U.S.C. § 3729, and § 3730 and any other applicable federal statutes.).
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Tr. Ex.6 at 20. James's 2019 Program Year United States Department of Agrieulture Map (2019
FSA map) was initialed "JG" in handwriting that matched James's signature. Tr. Exs. 1, 3, 6-7.
The 2019 FSA map showed where the 22.5 and 25 acres of com ostensibly had been planted. Tr.
Ex. 23.
On July 27, 2019, unbeknownst to the Garretts, an insurance adjuster for Crop Risk
Services named Barry Jennings went to view the fields James had ostensibly planted to com.
Jennings used the 2019 FSA map initialed by James to locate where com purportedly was planted.
At both locations, Jennings viewed fields that not only had no com planted, but also were full of
weeds and not prepared to plant. Jennings notified his supervisor Mark Opp of this discrepancy.
Unbeknownst to the Garretts, Jennings retumed to the Garrett land with Opp on September 26,
2019, finding no com planted and weeds that were waist-to-ehest-high in places. Photographs,
notes, and a video from the visits verified Jennings's and Opp's testimony. Tr. Exs. 23, 74-76.
On October 11, 2019, Opp informed James that he wanted to see the fields reportedly
planted to com. On October 22, 2019, Opp and Jennings met with Levi and were taken to two
locations on the Garrett land where com supposedly had been planted. Both locations had been
recently tilled and com stover^ had been spread atop the area plowed. Both Jennings and Opp
have farm backgrounds and testified that com had not been harvested and disced on the sites.
Indeed, one ofthe sites overlapped with an area Jennings had visited twice and Opp once and had
photographed and videotaped as being weed filled and devoid of com two weeks earlier. One
location Levi showed did not correspond with where com was claimed to be planted on the 2019
'"Com stover," as used by Opp and Jennings, means the debris of stalks and hulls of a com crop
that typically comes out ofthe discharge end ofa combine that is harvesting com. Photographs of
the sites show com stover spread atop the disced area and do not show, for instance, remnants of
root balls from com plants. Tr. Exs. 74-76.
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FSA map, while the other location overlapped but did not quite match where the 2019 FSA map
showed James planted com. The evidence was ample to show no planting ofcom in 2019 at either
site, and a mse by the Garretts to try to convince the adjusters that com had been planted and then
disced under after harvest.
James did not testify at trial. Levi testified that sunflowers were timely planted in 2018,
that the spray record information he gave the state investigator in 2018 was mistaken because he
sprayed earlier in the year, and that 47.5 acres of com were planted and harvested in 2019 in the
areas he showed the adjustors. The jury evidently, and for good reason, chose not to credit that
testimony from Levi.
II. Discussion of Grounds Raised in the Garretts' Motion
A. Standard for Granting Judgment of Acquittal or New Trial
"A motion for judgment of acquittal should be granted only if there is no interpretation of
the evidence that would allow a reasonable jury to find the defendant guilty beyond a reasonable
doubt." United States v. Dupont.672 F.3d 580, 582(8th Cir. 2012)(per curiam)(quoting United
States V. Boesen. 491 F.3d 852, 855 (8th Cir. 2007)). In mling on a motion for judgment of
acquittal, the court must view the evidence "in the light most favorable to the guilty verdict,
granting all reasonable inferences that are supported by that evidence." Id (quoting United States
V. Milk, 447 F.3d 593, 598 (8th Cir. 2006)). Of course, "a jury's credibility determinations are
well-nigh unreviewable because thejury is in the best position to assess the credibility of witnesses
and resolve inconsistent testimony." United States v. Hodge. 594 F.3d 614, 618 (8th Cir. 2010).
The standard for a new trial under Rule 33 of the Federal Rules of Criminal Procedure is
different. Rule 33 allows the court to vacate any judgment and grant a new trial "if the interest of
justice so requires." Fed. R. Crim. P. 33(a). When evaluating a motion for a new trial claiming
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insufficient evidence, "the district court is not required to view the evidence in the light most
favorable to the verdict; instead, [it] may weigh the evidence and judge witness credibility for
itself." United States v. Clavton, 787 F.3d 929, 935 (8th Cir. 2015). However, a "jury's verdict
must be allowed to stand unless the evidence weighs heavily enough against the verdict such that
a miscarriage of justice may have occurred." Id. (cleaned up and citation omitted); United
States V. Stacks, 821 F.3d 1038,1044(8th Cir. 2016)("Motions for new trials based on the weight
ofthe evidence are generally disfavored."). The power ofthe court to grant a new trial should be
invoked only in an exceptional case where the evidence preponderates heavily against the verdict.
United States v. Starr. 533 F.3d 985,999(8th Cir. 2008). "As a general rule, the decision whether
to grant or deny a motion for a new trial lies within the discretion of the district court." United
States V. McMahan, 744 F.2d 647, 652 (8th Cir. 1984). Such authority, however, "should be
exercised sparingly and with caution." United States v. Cole. 537 F.3d 923, 926 (8th Cir. 2008)
(cleaned up and citation omitted).
B. Sufficiency of Evidence
The Garretts were convicted on counts ofFalse Statement in connection with Federal Crop
Insurance in violation of 18 U.S.C. § 1014, with James convicted on Counts IV and VI, and Levi
convicted on Count V. Counts IV (involving James) and V (involving Levi) relate to the 2018
false statements involving sunflowers ostensibly being planted before the final plant date. The
statute prohibiting False Statement in connection with Federal Crop Insurance provides:
Whoever knowingly makes any false statement or report, or willfully overvalues
any land, property or security, for the purpose of influencing in any way the action
of the . . . Federal Crop Insurance Corporation or a company the Corporation
reinsures, . . . upon any application ... or insurance agreement or application for
insurance or a guarantee, or any change or extension ofany ofthe same,by renewal,
deferment of action or otherwise, or the acceptance, release, or substitution of
security therefor, shall be fined not more than $1,000,000 or imprisoned not more
than 30 years, or both.
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18U.S.C. § 1014.
No party objected to the instruction about the elements of Count IV which were:
One, that on or about the 6th day of July, 2018, the defendant, James
Garrett, knowingly made a false statement that he planted 1,115.22 insured
acres of sunflowers between the 10th day of June, 2018, and the 16th day of
June,2018,to Crop Risk Services.
Two, that James Garrett made the false statement for the purpose of
influencing the action of Crop Risk Services upon making a claim that the
insured acres of sunflowers were lost when less than that amount ofsunflowers
were in fact planted.
Three, that Crop Risk Services was re-insured by Federal Crop
Insurance Corporation at the time the statement was made.
Doc. 94 at 10. Likewise, no party has disputed that the jury received proper instructions
on the elements of Count V, which were:
One, that on or about the 6th day of July, 2018, the defendant, Levi
Garrett, knowingly made a false statement that he planted 1,122.79 insured
acres of sunflowers between the 10th day of June, 2018, and the 16th day of
June,2018,to Crop Risk Services.
Two, that Levi Garrett made the false statement for the purpose of
influencing the action of Crop Risk Services upon making a claim that the
insured acres ofsunflowers were lost when less than that amount ofsunflowers
were in fact planted.
Three, that Crop Risk Services was re-insured by Federal Crop
Insurance Corporation at the time the statement was made.
Doc. 94 at 11. The evidence presented at trial was sufficient to establish all of the elements of
False Statement in Cormection with Federal Crop Insurance as charged in Counts IV and V.
The evidence on Counts IV and V had substantial overlap;though this Court has considered
the sufficiency of the evidence on each conviction separately, it makes sense to discuss the
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evidence onee to avoid repetition in this opinion and order. The Garretts raise no issue about
sufficiency of the evidence that they made statements about having planted sunflowers between
June 10 and 16, 2018 and obviously they made such statements. Tr. Exs. 4-5. The Garretts argue
that the evidence was insufficient to show that their statements were false as required in the first
element and in the second element of the offenses. The Garretts do not contest that the third
element is satisfied. After all, these statements were made to Crop Risk Services, which was
reinsured by Federal Crop Insurance Corporation, a federal agency within the United States
Department of Agriculture.
Contrary to the Garretts' arguments, there was sufficient evidence to establish that the
Garretts' acreage reports about when they planted sunflowers contained a false statement made for
the purpose of influencing the action of the federal crop insurer. The Garretts both listed plant
dates for sunflowers as being between June 10 and 16, 2018, whieh are shortly before the 2018
final plant date for sunflowers in Sully County. The only evidence of the Garretts purchasing
sunflower seed for planting in 2018 was from Sioux Nation, LLC. The Garretts had been cut off
from purchasing from their prior seed dealer for failing to pay for seed and spraying services.
Sioux Nation,LLC kept a log ofseed sales, reflecting that James bought eight pallets ofsunflower
seed on June 20, 2018, with "Del made 6-22-18" and with an invoice dated June 21, 2018. Tr.
Exs. 52-53. A Sioux Nation, LLC representative testified about the log, which was made
contemporaneous with purchases and shows that the earliest possible date when the Garretts could
have taken the seed was June 20, with the probable date of June 22, 2018. In short, the Garretts
could not have planted sunflowers between June 10 and June 16, 2018, because they had not yet
purchased the seed. Bolstering this evidence was the testimony of the neighbors of the Garretts
about the Garretts routinely leaving fields fallow and full of weeds well into the summer. Indeed,
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six farmers whose properties abut Garrett land testified that between 2016 and 2020, the Garretts
habitually planted late and between the months of May and early July they did not see the Garretts
timely plant crops on their lands.
Beyond that, there was testimony from a neighbor who reported a spray drift issue in July
2018 from land that the Garretts represented to be planted to sunflowers in June 2018 and from a
state investigator who inspected the area and took photographs in early August 2018. Levi
produced spray records showing that he sprayed the herbicide paraquat dichloride on July 6,2018,
Tr. Ex. 64, which is toxic to sunflowers. Photographs showing part ofthe Garrett field ostensibly
planted to sunflowers document the absence of any sunflower crop at that time. Tr. Exs. 65-67.
The August 2018 photographs depicting part of the Garrett land show dying weeds, not dying
sunflowers. While it appears that the Garretts eventually planted some sunflowers, the July 6,
2018 spraying of paraquat dichloride, a jury reasonably could conclude, was to kill weeds to then
plant a late no-till crop of sunflowers. The jury did not have to accept Levi's explanation that he
copied the date on which he sprayed incorrectly or defense counsel's efforts to confuse, combined
with Levi's later testimony, that Sioux Nation, LLC's records cannot be trusted.
Thus, there was ample evidence for the jury to conclude that the Garretts falsely
represented when they planted sunflowers in 2018 and did so for the purpose of influencing the
crop insurer. Similarly, the evidence does not weigh against the verdict to the point a miscarriage
ofjustice has occurred. Indeed, the Garretts later collected a full crop insurance payment for a
failed sunflower crop, notwithstanding the evidence that the sunflowers were planted after the June
20,2018 established plant date. Nevertheless, the Garretts argue that their convictions concerning
Counts IV and V are "entirely based on circumstantial evidence" regarding the reliability of the
Sioux Nation, LLC log. Doc. 110 at 8. The testimony of the Sioux Nation, LLC witness renders
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the log to be more than merely circumstantial, and circumstantial evidence can be sufficient to
justify a conviction. See McFadden v. United States. 576 U.S. 186, 192 n.l (2015) (giving
examples of direct and circumstantial evidence). Indeed, neither party objected to this Court
giving the Eighth Circuit pattern instruction that: "You are instructed that you should not be
concerned with [the terms 'direct evidence' and 'circumstantial evidence.'] The law makes no
distinction between direct and circumstantial evidence. You should give all evidence the weight
and value you believe it is entitled to receive." Doe. 82 at 5; Eighth Cir. Pattern Inst. 1.03; Desert
Palace. Inc. v. Costa. 539 U.S. 90, 100(2003)(stating that circumstantial and direct evidence are
treated alike and "thatjuries are routinely instructed that the law makes no distinction between the
weight or value to be given to either direct or circumstantial evidence."(cleaned up and citations
omitted)); Holland v. United States. 348 U.S. 121, 140 (1954)(observing that, in criminal cases,
circumstantial evidence is "intrinsically no different from testimonial evidence"); Mo.Nat'l Educ.
Ass'n V. New Madrid Cntv. R-1 Enlarged Sch. Dist.810 F.2d 164,167(8th Cir. 1987)(describing
such an instruction as a "general jury instruction."). Thus,the motion for judgment of acquittal or
a new trial as to Counts IV and V is denied.
For James's conviction on Count VI involving the 2019 false statement in connection with
crop insurance, the elements were not disputed and are:
One,that on or about the 12th day of July, 2019, the defendant, James
Garrett, knowingly made a false statement that he planted 47.5 insured acres
of corn the 17th day of June,2019, to Crop Risk Services.
Two, that James Garrett made the false statement for the purpose of
influencing the action of Crop Risk Services upon making a claim that the
insured acres of corn were lost when less than that amount of corn was in fact
planted.
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Three, that Crop Risk Services was re-insured by Federal Crop
Insurance Corporation at the time the statement was made.
Doc. 94 at 12. The evidence presented at trial satisfies all three elements of False Statement in
Connection with Federal Crop Insurance as charged in Count VI.
Like with Counts IV and V, James's argument centers on the sufficieney of evidence of
any false statement in cormection with crop insurance. There is no question that James made the
representation on his 2019 acreage report regarding crop insurance that he planted 47.5 acres of
com on June 17, 2019. Tr. Ex. 6. The statements were made to Crop Risk Services, who was
reinsured by the Federal Crop Insuranee Corporation, a government agency, thus satisfying the
third element ofthe offense. James's initials in his handwriting then appear on his 2019 FSA Map
showing where the 22.5 and 25 acres of com were ostensibly planted. Tr. Ex. 23.
There is sufficient evidence to show that the statement about planting 47.5 acres ofcom in
2019 was false and made to influence the actions of Crop Risk Services, as the planting ofsuch an
amount would reduce the erop insurance premium that James would owe. While most of James's
farmland in 2019 was not planted with a claim for prevent planting made and paid, the 2019 FSA
map shows where the two small fields of com ostensibly were planted. These two small fields
were visited three separate times by adjuster Jennings after the certified plant date, twiee without
the Garretts being there or being aware, and once with Levi as the guide. The two unaimounced
visits to the locations certified on the 2019 FSA map showed the fields were both not planted with
com and full of weeds. In September, Jennings retumed with his supervisor, Opp,to the certified
fields, finding waist-to-chest-high weeds in places and no sign of com. Opp and Jennings took
photographs, notes, and a video of the fields where com purportedly had been planted. Tr. Exs.
23, 74-76. In October, eleven days after Opp alerted James that he intended to visit to see the
areas planted to com, Levi met Opp and Jennings and took them to James's fields where com
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supposedly had been planted. One of the fields did not correspond to where the 2019 FSA map
showed com to be planted and the other overlapped with the pictures of chest-high weeds taken in
September. However, on the October visit, the weeds had been disced under and com stover
spread over the newly disced soil to attempt to give the appearance ofcom having been harvested
and then disced under. Knowing thatjust a few weeks previously, no com had stood in one ofthe
areas shown them by Levi, Jennings and Opp,both experienced in farming,realized that they were
looking at stover spread over the newly-disced field as part of a mse by the Garretts to try to
convince the adjusters that com had been planted and then disced under. Indeed, a review of the
October pictures showed no remnants of root balls of the allegedly planted com. The
representation of com being planted was made to induce Crop Risk Services to lower James's
insurance premiums for the 2019 season. Thus,the false statement was made to affect the actions
of Crop Risk Services. Therefore, the evidence was sufficient on all elements of Count VI.
The evidence supports a reasonable jury finding James guilty of the crime, so a judgment
of acquittal would be improper. Similarly, the evidence does not weigh against the verdict to the
point a miscarriage ofjustice has occurred. Thus, the motion for judgment of acquittal or a new
trial as to James's conviction of Count VI is denied.
C. Claim of Error Polling the Jury
As an apparent last-ditch attempt to have a new trial granted, Garretts argue that this Court
misread the verdict form, incorrectly naming Levi Garrett as being convicted of Count VI of the
superseding indictment despite not being charged in that count. Doc. 110 at 3. Defense counsel
submitted affidavits saying that they took notes as the verdict form was read,"specifically wr[iting]
down the name and the count for each count" and that they heard Levi was convicted of Count VI.
Doc. Ill at 1-2; Doc. 112 at 1-2. According to the identical affidavits signed by both defense
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attorneys, "[ijmmediately following the excusing of the Jury, a discussion was held with Levi
Garrett, Michael S. Beardsley and Steven C. Beardsley regarding Count VI. All three of[them]
heard the Court read the verdict form indicating that Levi Garrett, not James Garrett was guilty of
Count VI." Doc. Ill at 2; Doc. 112 at 2. Defendants assert that there was "no opportunity to
correct" the error they believe they heard. Doc. 110 at 3. Defendants further assert that because
Levi Garrett was not charged in Count VI, the subsequent polling of the jury confirming their
unanimous verdict means that neither James nor Levi could be found guilty of Count VI because
ofthe alleged error and the lack of opportunity to correct it.
The transcript of the taking of the verdict contradicts the Garretts' assertions. Indeed, in
their motion, the Garretts admit there is no evidence of an actual misreading, stating: "[ajfler
review of the transcript, the error was not identified." Doc. 110 at 3. The transcript clearly
demonstrates that this Court read the verdiet form as follows:"Number 6. We find the defendant
James Garrett, guilty of Making a False Statement in Connection with Federal Crop Insurance as
charged in Count VI ofthe superseding indictment." Doc. 109-1 at 4(emphasis added).
The verdict form also shows that James Garrett was properly listed as the defendant in
Count VI. Doc. 95 at 1. The jury was then polled, and each juror separately agreed that it was
their verdict. Doc. 109-1 at 6. Defense counsel made no objection during the reading ofthe verdict
form or thereafter to seek clarification or attempt to correct any error they believe was made. In
fact, afterward this Court asked: "Is there anything further from the Defendants before we
terminate the case—^the trial, that is, Mr. Beardsley?" Doc. 109-1 at 8. Mr. Michael Beardsley
replied "No, Your Honor" at first, but then asked about post-jury verdict motions. Id After
explaining this Court's standard practice, this Court asked, again,"So then anything further from
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the Defendants, Mr. Beardsley?" to which Mr. Michael Beardsley again replied, "No, Your
Honor." Doe. 109-1 at 9.
The official record is the transcript and not what counsel and clients believe, or perhaps
wishfully think, that they heard. Jones v. Naf1 Am. Univ.. No. CIV. 06-5075-KES, 2009 WL
949189, at *1 (D.S.D. Apr. 4, 2009)("The court finds this transcript is the official record of the
trial."); Townes v. Alabama. 139 S. Ct. 18, 20(2018)(mem.)(finding that the "transcript is now
the official record ofthe trial court proceedings."); see also Miller-El v. Dretke, 545 U.S. 231,276
(2005)(Thomas, J., dissenting)("The voir dire transcript was part of the official record."); 28
U.S.C. § 753(b)("The transcript in any case certified by the reporter or other individual designated
to produce the record shall be deemed prima facie a correct statement ofthe testimony taken and
proceedings had. No transcripts of the proceedings of the court shall be considered as official
except those made from the records certified by the reporter or other individual designated to
produce the record."). Thus, while defense counsel stated they felt they "must take this position,"
it appears that they simply misheard the Court read the verdict correctly. Because the official
record indicates that this Court correctly indicated that James was found guilty of Count Y1 and
that Levi's name was not read in his stead this argument must fail.
This Court is aware that it operates in an era ofpeople believing what they want to believe,
indeed at times counterfactual information, regardless of what the facts are. There exists a way to
verify whether the official record or what is asserted in the affidavits of counsel is true. There is
a recording system known as For the Record(FTR)which may have captured what was said when
this Court took the verdict. The FTR audio by Local Rule is "not released to parties or the public."
D.S.D. Crim. LR 57.2. The District of South Dakota has previously considered what happens
when the transcript is different than what counsel or parties recollect:
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Here, the trial was officially recorded verbatim by sbortband by a court reporter
hired by the court. The court reporter followed her usual procedure by using a
stenotype to document all statements made during the trial. She later transcribed
her notes into the trial transcript and filed it with the court. The court finds this
transcript is the official record of the trial. The court also utilized the For The
Record(FTR)recording system during the trial, which is a digital recording made
during court proceedings when a court reporter is not available or necessary. See
bttp://fortberecord.com. But because the court reporter produced the official record
in this case, the court finds that FTR was a back up recording device for court use
only. See Kmmel v. Coca-Cola Bottling Co. of Chicago. Inc.. 904 F. Supp. 723,
752(N.D. 111. 1995).
Jones. 2009 WL 949189, at *1. As such, the official transcript controls and counsels' belief about
what they beard does notjustify acquittal or a new trial.
The Local Rule recognizes that "[i]f a proceeding has been recorded electronically and the
electronic recording constitutes the official record, the clerk of court will arrange . . . to have a
transcript prepared from the electronic recording." D.S.D. Crim. LR 57.2. In brief, FTR exists to
allow this Court to conduct bearings in the absence ofa court reporter, which sometimes is required
given the dearth of court reporters and need for bearings to occur on short notice regardless of
court reporter availability. This Court intends to begin the sentencing bearing by having the FTR
recording ofthe taking ofthe verdict played in open court for all to bear. Ifthere is any discrepancy
between the official transcript and the FTR recording, the Court will allow counsel to argue and
may reconsider this ruling.
III. Conclusion
For the reasons explained above it is hereby
ORDERED that Defendants' Motion for Judgment of Acquittal and in the Alternative for
New Trial, Doc. 109, is denied.
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Case 3:21-cr-30091-RAL Document 127 Filed 01/18/23 Page 17 of 17 PageID #: 1583
DATED this day of January, 2023.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
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