United States Court of Appeals
For the Eighth Circuit
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No. 20-1861
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Eli Erickson, also known as Black
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Central
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Submitted: February 18, 2021
Filed: June 2, 2021
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Before LOKEN, BENTON, and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
On November 7, 2019 a jury in the District of South Dakota convicted Eli
Erickson of conspiracy to distribute 500 grams or more of a mixture or substance
containing methamphetamine, 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), 846, and
several firearm offenses. He filed two post-trial motions. The district court1 denied
both and sentenced Erickson to 188 months’ imprisonment and a five-year term of
supervised release. He now appeals his conviction. We affirm.
I.
Erickson, who is Native American, has lived on the Rosebud Indian Reserva-
tion for most of his life. The Central Division of the District of South Dakota, where
Erickson’s trial took place, encompasses parts of the Rosebud Indian Reservation,
Crow Creek Indian Reservation, and Cheyenne River Indian Reservation. Although
the 2015 United States Census Bureau Population Table for the District of South
Dakota states that 25% of the Central Division’s population is “American Indian or
Alaska Native,” no Native Americans were seated on Erickson’s jury.2
A.
Erickson filed a motion for new trial, asserting that the absence of Native
Americans on his jury deprived him of “his Sixth Amendment right to trial by an
impartial jury drawn from a fair cross section of the community.” Taylor v.
1
The Honorable Roberto A. Lange, Chief Judge, United States District Court
for the District of South Dakota.
2
Because the U.S. Census Bureau uses the term “American Indian or Alaska
Native” to describe our country’s indigenous people, but the parties generally use
“Native American,” we use both terms more or less interchangeably. Our
understanding is that “[e]ither term is generally acceptable and [that they] can be used
interchangeably, although individuals may have a preference.” Reporting and
Indigenous Terminology, NATIVE AMERICAN JOURNALISTS ASSOCIATION,
https://najanewsroom.com/wp-content/uploads/2018/11/NAJA_Reporting_and_In
digenous_Terminology_Guide.pdf; see FTC v. Payday Fin., LLC, 935 F. Supp. 2d
926, 929 n.1 (D.S.D. 2013) (explaining that it is “appropriate . . . to refer to this
nation’s indigenous people as Native Americans or American Indians”).
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Louisiana, 419 U.S. 522, 536 (1975). The district court denied the motion. We
review this issue de novo. United States v. Reed, 972 F.3d 946, 953 (8th Cir. 2020);
see United States v. Rodriguez, 581 F.3d 775, 789 (8th Cir. 2009) (“Allegations of
racial discrimination in jury pools involve mixed questions of law and fact, and
receive de novo review.”). To establish a prima facie violation of the Sixth
Amendment’s fair cross section requirement, Erickson must show that the representa-
tion of Native Americans in the Central Division’s jury pool “is not fair and
reasonable in relation to the number of such persons in the community,” and “that this
underrepresentation is due to systematic exclusion of the group in the jury-selection
process,” among other elements. Duren v. Missouri, 439 U.S. 357, 364 (1979).
The Central Division selects potential jurors in accordance with the District of
South Dakota’s 2018 Plan for the Random Selection of Grand and Petit Jurors. Under
the Plan, “all jurors [are] selected at random from the list of registered voters
provided by the office of the South Dakota Secretary of State.” Nine of the 51
qualified jurors who reported for service on the day of jury selection for Erickson’s
trial, or 17.6%, identified their race as American Indian or Alaska Native. The
district court excused six of these potential jurors for cause, and the government
exercised peremptory challenges to remove two others.3 On appeal, Erickson does
not challenge the for-cause or peremptory strikes.
Although we know the number of Native Americans who showed up for jury
selection in Erickson’s case, the record contains no evidence about the percentage of
potential jurors on the Central Division’s master jury wheel who identified as
American Indian or Alaska Native at the time of Erickson’s trial. It is the number of
Native Americans in the jury pool, not the number who showed up for jury selection
in a particular case, that is relevant to assessing the merits of a fair cross section
3
Only eight of the nine potential jurors who identified as American Indian or
Alaska Native were questioned during voir dire.
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challenge. See United States v. Clifford, 640 F.2d 150, 155 (8th Cir. 1981) (using
“the percentage of [American] Indians on the list of persons eligible for petit jury
service” to assess a fair cross section claim); Euell v. Wyrick, 714 F.2d 821, 823 (8th
Cir. 1983) (explaining that to resolve a fair cross section challenge we examine “the
percentage of [the underrepresented group] who served on venires during the time
period in which the defendant was tried”); see also Berghuis v. Smith, 559 U.S. 314,
323 (2010) (relying on “the percentage of [the underrepresented group] in the jury
pool . . . in the six months leading up to [the defendant’s] trial” to evaluate a fair cross
section challenge ). Because Erickson has not presented evidence about the number
of Native Americans in the Central Division’s jury pool, he necessarily has failed to
show that their representation in that pool was “not fair and reasonable in relation to
the number of [Native Americans] in the community.” Duren, 439 U.S. at 364.
But even assuming Native Americans are underrepresented in the Central
Division’s jury pool, as the district court suggests they may be, Erickson has not
shown the underrepresentation “is due to systematic exclusion of the group in the
jury-selection process.” Id. He makes two arguments in support of his assertion that
Native American are systematically excluded from the jury pool. The first is that the
Central Division’s use of voter registration polls to populate the master jury wheel
excludes Native Americans because they register to vote in a lower proportion than
the general population.
This first argument is foreclosed by our precedent. The practice of using voter
registration rolls to compile the master jury wheel is expressly permitted under the
Jury Selection and Service Act of 1968, which governs the manner for selecting
federal jurors. See 28 U.S.C. § 1863(b)(2). And we have consistently held “that a
jury selection plan based on registered voter lists withstands constitutional scrutiny
unless there is [otherwise] a showing of systematic exclusion of [the underrepresented
group] in the jury selection process.” Smith v. Copeland, 87 F.3d 265, 269 (8th Cir.
1996); see Clifford, 640 F.2d at 156 (“The mere fact that one identifiable group of
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individuals votes in a lower proportion than the rest of the population[, standing
alone,] does not make a jury selection system illegal or unconstitutional.”). To
demonstrate systematic exclusion, Erickson must provide additional evidence in
support of his claim, such as “a defect in the [jury selection] process itself that serves
to exclude [the underrepresented group],” “that the voter registration . . . requirements
impose . . . discriminatory qualifications on applicants,” or “that the administration
of the juror selection plan is discriminatory.” United States v. Warren, 16 F.3d 247,
252 (8th Cir. 1994); see United States v. Sanchez, 156 F.3d 875, 879 (8th Cir. 1998)
(suggesting that systematic exclusion may be established by presenting evidence that
an underrepresented group “face[s] obstacles in the voter registration process”). On
this record Erickson has not provided any explanation for how the Central Division’s
reliance on voter registration rolls otherwise operates to systematically exclude
Native Americans from criminal jury pools. As a result, he is missing another
required element of his prima facie case.
Erickson’s second argument concerning systematic exclusion is that “the
remote, small and cohesive [nature of] Indian Reservations located in Central South
Dakota” makes it impossible to empanel “a jury drawn from a fair cross section of
[his] community.” Taylor, 419 U.S. at 527. But this is a challenge to the final
composition of the jury, rather than to the composition of the jury pool. The Sixth
Amendment’s fair cross section requirement applies only to the latter. In Taylor v.
Louisiana, the Supreme Court was careful to “emphasize[] that in holding that petit
juries must be drawn from a source fairly representative of the community [it]
impose[d] no requirement that petit juries actually chosen must mirror the commu-
nity.” 419 U.S. at 538. Indeed, the Supreme Court has never used the fair cross
section principle “to invalidate the use of either for-cause or peremptory challenges
to prospective jurors, or to require petit juries, as opposed to jury panels or venires,
to reflect the composition of the community at large.” Lockhart v. McCree, 476 U.S.
162, 173 (1986). Rather, Taylor requires only that “the jury wheels, pools of names,
panels, or venires from which juries are drawn must not . . . fail to be reasonably
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representative” of the community. 419 U.S. at 538. Because this claim is not
cognizable under the Sixth Amendment’s fair cross section principle, it was not
grounds for a new trial.
B.
Erickson also argues he was entitled to a new trial in a different venue based
on the fact that a disproportionate number of potential Native American jurors were
stricken for cause because they either knew Erickson or a government witness, or
were familiar with the alleged facts underlying the case. But Erickson agreed to each
of the for-cause strikes of Native Americans, at least one of which was based on
unrelated medical issues, and he did not contest the non-discriminatory reasons the
government offered for its peremptory strikes of the remaining Native Americans on
the jury panel. Moreover, Erickson did not seek a change of venue on these grounds
at jury selection or at any other time during trial. See United States v. Cordova, 157
F.3d 587, 597 n.3 (8th Cir. 1998).
The district court denied the motion for new trial in a thorough order that
addressed “the unique challenges to achieving adequate representation of Native
Americans on jury panels in the Central Division.” Despite those challenges, the
district court described the complete absence of Native Americans on Erickson’s jury
as an “anomaly,” stating that “despite the vast majority of federal criminal cases in
the Central Division arising from reservations . . . Central Division petit juries almost
always have at least one, not uncommonly two, and occasionally three Native
Americans among the twelve who deliberate.” And it noted that while potential
jurors from the Rosebud Indian Reservation may have had familiarity with Erickson
or his case, there were three other reservations from which jurors might have been
called for service on Erickson’s jury. The district court was aware of and attentive
to Erickson’s concerns, but ultimately concluded that a new trial in a different venue
was not warranted on these grounds. We discern no abuse of discretion in this
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carefully explained decision. See United States v. Dowty, 964 F.3d 703, 708 (8th Cir.
2020) (explaining that we review the district court’s ruling on a motion for a new trial
for “a clear and manifest abuse of discretion”) (quoting United States v. Amaya, 731
F.3d 761, 764 (8th Cir. 2013)).
II.
Next, Erickson asserts there was insufficient evidence for the jury to convict
him on the conspiracy count. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), 846. We
review this challenge de novo, examining the evidence “in the light most favorable
to the guilty verdict, [and] granting all reasonable inferences that are supported by
that evidence.” United States v. Sullivan, 714 F.3d 1104, 1107 (8th Cir. 2013)
(quoting United States v. Van Nguyen, 602 F.3d 886, 897 (8th Cir. 2010)). The court
“will reverse a conviction only if no reasonable jury could have found the defendant
guilty beyond a reasonable doubt.” Id. (quoting United States v. Wells, 706 F.3d 908,
914 (8th Cir. 2013)).
To convict Erickson on this count, the jury had to find beyond a reasonable
doubt: (1) that there was a conspiracy to distribute 500 grams or more of
methamphetamine, (2) that Erickson knew about it, and (3) that he intentionally
joined it. See United States v. Holmes, 751 F.3d 846, 852 (8th Cir. 2014). Proving
a conspiracy does not require evidence of “an express agreement.” United States v.
Adams, 401 F.3d 886, 893–94 (8th Cir. 2005). “Rather, the government need only
establish a tacit understanding between the parties, and this may be shown wholly
through the circumstantial evidence of the defendant’s actions.” Id. at 894 (cleaned
up) (quoting United States v. Cabrera, 116 F.3d 1243, 1245 (8th Cir. 1997)).
The government’s main witness at trial was Witness C. Witness C told the jury
that she provided Erickson with several pounds of methamphetamine to sell on
numerous occasions in 2015, and that he also obtained significant quantities directly
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from one of her contacts in Nebraska. Witness C acknowledged “there was no actual
I’m going to give you this much and I want this much in return” kind of agreement.
But she testified that she “would just show up with the meth” and Erickson “would
help [her] sell it.” And, rather than requiring immediate payment from Erickson,
Witness C said she would often “front” the methamphetamine to him, allowing him
to repay her from the proceeds of his own drug sales. This is sufficient to establish
a tacit understanding between Erickson and Witness C that they would work together
to sell methamphetamine.
It was also Witness C who linked Erickson to more than 500 grams of
methamphetamine—the amount required to convict him on this count. See 21 U.S.C.
§ 841(b)(1)(A)(viii). She told the jury that she took approximately 20 trips from
Nebraska to the Rosebud Indian Reservation in 2015 for the purpose of distributing
methamphetamine. She generally transported between one and three pounds of
methamphetamine at a time and usually gave half of that amount to Erickson to sell.
The government’s other witnesses painted Erickson as a “small time guy” and
described purchasing personal use amounts of methamphetamine from him on several
occasions. But Witness C’s testimony about the significant drug quantities Erickson
received and distributed supported a finding that he conspired to distribute 500 grams
or more of methamphetamine.
Erickson takes issue with the government’s heavy reliance on Witness C to
prove both his participation in the conspiracy and the quantity of methamphetamine
he was held responsible for. Although his conviction on this count indeed turned
largely on Witness C’s testimony, the jury’s verdict shows it found her credible. We
cannot reweigh the evidence or reexamine the credibility of witnesses to determine
whether this was justified—“that is the province of the jury.” United States v. White,
794 F.3d 913, 918 (8th Cir. 2015). We find there was sufficient evidence for the jury
to find the government proved the elements of the conspiracy count beyond a
reasonable doubt.
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III.
Erickson also challenges an evidentiary matter that arose during his trial. At
trial, the government called Witness S. Witness S testified that Erickson tried to
recruit him to sell methamphetamine and that he purchased small amounts from
Erickson on several occasions during the summer of 2015. After Witness S finished
testifying, defense counsel told the court that he believed Witness S was under the
influence of methamphetamine. Counsel cited to Witness S’s slurred speech as well
as to information he received from family members, and he asked the court to order
Witness S to submit a urine sample for drug testing. The district court responded that
it “didn’t have the same impression during [Witness S’s] testimony,” noting that
Witness S had spent the previous night in custody, but asked counsel “who, if anyone,
would testify” that Witness S had recently used drugs. Counsel was unable to
identify anyone.
The district court then granted counsel’s request for a short break. When court
resumed, defense counsel said he intended to call Witness S back to the stand, and he
proposed that he ask Witness S one question: whether he was “willing to take a
urinalysis today to prove to this jury that [he wasn’t] under the influence while . . .
here testifying today.” The court granted the request, and Witness S was brought
back into the courtroom. When asked this question in front of the jury, Witness S
said no.
We see no abuse of discretion in how the district court handled this evidentiary
matter. See United States v. White, 557 F.3d 855, 857 (8th Cir. 2009) (stating that
evidentiary rulings are reviewed for an abuse of discretion). Erickson challenges the
district court’s failure to order Witness S to submit a urine sample for testing, but the
court did not rule on this request, presumably because counsel proposed an alternative
way to present the sought-after information to the jury. The court permitted defense
counsel to re-call Witness S and ask him whether he would submit to drug testing.
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That question and Witness S’s answer to it gave the jury relevant information—the
possibility that he might be under the influence of drugs—to consider when assessing
the reliability of his testimony.
And while Erickson now argues it was also error to prohibit him from “fully
cross-examining [Witness S] regarding his possible intoxication and methamphet-
amine use on the [day prior to trial],” defense counsel requested permission to ask
only a single question when he re-called Witness S to the stand. In his proposal to
the court, counsel said, “whatever the answer [from Witness S] is, the answer is and
that would be my only question.” Counsel did not seek permission to question
Witness S further and the district court did not abuse its discretion by excusing
Witness S after he answered the single question posed to him.
IV.
Finally, Erickson contends the district court erred by denying his motion for
a new trial on the basis of newly discovered evidence. We review the district court’s
ruling “for clear abuse of discretion.” United States v. Shumaker, 866 F.3d 956, 961
(8th Cir. 2017). To warrant a new trial based on previously unavailable evidence,
Erickson must demonstrate the following: “(1) the evidence is in fact newly
discovered since trial; (2) diligence on his part [in identifying the evidence]; (3) the
evidence is not merely cumulative or impeaching; (4) the evidence is material to the
issues involved; and (5) it is probable that the new evidence would produce an
acquittal at the new trial.” Id. (quoting United States v. Bell, 761 F.3d 900, 911 (8th
Cir. 2014)).
Three months after trial, the government turned over to defense counsel audio
recordings of law enforcement’s May and June 2019 interviews with Witness C.
Erickson had received written reports summarizing the interviews prior to trial, but
not the recordings. The reports describing the two June 2019 interviews included the
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following disclaimer: “The below is an interview summary. It is not intended to be
a verbatim account and does not memorialize all statements made during the
interview. Communications by the parties in the interview room were electronically
recorded. The recording captures the actual words spoken.” The report summarizing
the May 2019 interview did not contain a similar disclosure.
Putting aside whether Erickson could, with more diligence on his part, have
discovered the audio recordings before trial, previously unavailable evidence must
be material to warrant a new trial. Id. at 961. And evidence that merely impeaches
is not material. See United States v. Lewis, 976 F.3d 787, 795 (8th Cir. 2020); United
States v. Meeks, 742 F.3d 838, 841 (8th Cir. 2014) (“In order to meet the materiality
requirement, newly discovered evidence must be more than merely impeaching.”
(cleaned up) (quoting United States v. Baker, 479 F.3d 574, 577 (8th Cir. 2007))).
The district court reviewed the audio recordings and the written reports in
camera and found that any information contained in the recordings that was not
included in the reports was neither material to Erickson’s defense nor exculpatory.
Instead, the court found the recordings and their corresponding written reports were
“substantially similar.” Although Erickson argues to the contrary, he merely points
out inconsistencies between Witness C’s trial testimony and her statements to law
enforcement as captured on those recordings and asserts that the government’s late
disclosure of the recordings “prevented [him] from devastating [Witness C’s]
credibility by a thorough impeachment of it.” This is impeachment evidence, and
Erickson fails to explain how it is nevertheless material. The district court did not
abuse its discretion by denying Erickson’s motion for a new trial on the basis of
newly discovered evidence.
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V.
We affirm the judgment of the district court.
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