STATE OF SOUTH DAKOTA ss COUNTY OF CHARLES MIX IN CIRCUIT COURT FIRST JUDICIAL CIRCUIT STATE OF SOUTH DAKOTA, Plaintiff, VS. DANIEL MARK GUERICKE, DOB: 10/22/1957 Defendant. CRIM. NO. 16? COMPLAINT Count 1 FALSIFICATION OF EVIDENCE (A Class 6 Felony) Count 2 FALSIFICATION OF EVIDENCE (A Class 6 Felony) Count 3 CONSPIRACY TO OFFER FORGED OR FRAUDULENT EVIDECE (A Class 5 Felony, punishable as a Class 6 Felony) Count 4 CONSPIRACY TO OFFER FORGED OR FRAUDULENT EVIDECE (A Class 5 Felony, punishable as a Class 6 Felony) Count 5 CONSPIRACY TO OFFER FORGED OR FRAUDULENT EVIDECE (A Class 5 Felony, punishable as a Class 6 Felony) Count 6 CONSPIRACY TO OFFER FORGED OR FRAUDULENT EVIDECE (A Class 5 Felony, punishable as a Class 6 Felony) The undersigned, being duly sworn upon oath charges that in the County of Charles Mix, State of South Dakota, Daniel Mark Guericke did commit the public offenses of: Count 1 FALSIFICATION OF EVIDENCE, in violation of SDCL in that on or about August 9, 2015, he did prepare a false paper, record, instrument in writing, or other matter or thing with the intent to produce it or allow it to be produced as genuine in any trial, proceeding, inquiry, or investigation authorized by law, to wit: he did backdate a contract between Mid Central Education Cooperative (MCEC) and American Indian Institute for Innovation for service dates October 1, 2013 through September 30, 1014, with the intent to produce it or allow it to be produced as genuine in a South Dakota Department of Legislative Audit inquiry or investigation; Count 2 FALSIFICATION OF EVIDENCE, in violation of SDCL in that on or about August 9, 2015, he did prepare a false paper, record, instrument in writing, or other matter or thing with the intent to produce it or allow it to be produced as genuine in any trial, proceeding, inquiry, or investigation authorized by law, to wit: he did backdate a contract between Mid Central Education Cooperative (MCEC) and American Indian Institute for Innovation for service dates October 1, 2014 through September 30, 2015, with the intent to produce it or allow it to be produced as genuine in a South Dakota Department of Legislative Audit inquiry or investigation; Count 3 - CONSPIRACY TO OFFER FORGED OR FRAUDULENT EVIDECE, in violation of SDCL 22?3?8 and SDCL in that on or about the month of August, 2015, Dan Guericke, Stacy Phelps, Scott Westerhuis, Nicole Westerhuis and other unknown co-conspirators did conspire and agree with one another to offer in evidence as genuine, in a trial, proceeding or investigation authorized by law, a paper, document, record, or other instrument in writing, knowing that it had been forged or fraudulently altered, to wit: Dan Guericke, Stacy Phelps, Scott Westerhuis, and Nicole Westerhuis did conspire and agree to backdate a contract between Mid Central Education Cooperative (MCEC) and American Indian Institute for Innovation for service dates October 1, 2013 through September 30, 2014, with the intent to produce it or allow it to be produced as genuine in a South Dakota Department of Legislative Audit inquiry or investigation, and in furtherance of the conspiracy did one or more overt acts within Charles Mix County, to wit: 1. Dan Guericke signed and backdated the aforementioned contract at the MCEC of?ce in Charles Mix County. 2. On August 10, 2015, Scott Westerhuis, from Charles Mix County, did email the aforementioned contract to Stacy Phelps for the purpose of Stacy Phelps signing and backdating the contract. 3. Stacy Phelps signed and backdated the aforementioned contract and emailed the backdated contract to Scott Westerhuis in Charles Mix County. 4. Nicole Westerhuis did, from Charles Mix County, upload the backdated contract to online storage. I Count 4 CONSPIRACY TO OFFER FORGED 0R FRAUDULENT EVIDECE, in violation of SDCL 22-3?8 and SDCL in that on or about the month of August, 2015, Dan Guericke, Stacy Phelps, Scott Westerhuis, Nicole Westerhuis and other unknown co-conspirators did conspire and agree with one another to offer in evidence as genuine, in a trial, proceeding or investigation authorized by law, a paper, document, record, or other instrument in writing, knowing that it had been forged or fraudulently altered, Dan Guericke, Stacy Phelps, Scott Westerhuis, and Nicole Westerhuis did conspire and agree to backdate a contract between Mid Central Education Cooperative (MCEC) and American Indian Institute for Innovation for service dates October 1, 2014 through September 30, 2015, with the intent to produce it or allow it to be produced as genuine in a South Dakota Department of Legislative Audit inquiry or investigation, and in furtherance of the conspiracy did one or more overt acts within Charles Mix County, to wit: 1. Dan Guericke signed and backdated the aforementioned contract at the MCEC of?ce in Charles Mix County. 2. On August 10, 2015, Scott Westerhuis, from Charles Mix County, did email the aforementioned contract to Stacy Phelps for the purpose of Stacy Phelps signing and backdating the contract. 3. Stacy Phelps signed and backdated the aforementioned contract and emailed the backdated contract to Scott Westerhuis in Charles Mix County on August 11, 2015. 4. Nicole Westerhuis did, from Charles Mix County, upload the backdated contract to online storage. Count 5 CONSPIRACY TO OFFER FORGED OR FRAUDULENT EVIDECE, in violation of SDCL 22?3?8 and SDCL 22-12A- 15, in that on or the month of September 2015, Dan Guericke, Scott Westerhuis, Nicole Westerhuis and other unknown co~conspirators did conspire and agree with one another to offer in evidence as genuine, in a trial, proceeding or investigation authorized by law, a book, paper, document, record, or other instrument in writing, knowing that it had been forged or fraudulently altered, to wit: Dan Guericke, Scott Westerhuis, and Nicole Westerhuis did conspire and agree to backdate a contract between Mid Central Education Cooperative (MCEC) and Rick Melmer, for service dates July 1, 2013 through June 30, 2014, with the intent to produce it or allow it to be produced as genuine in a South Dakota Department of Legislative Audit inquiry or investigation, and in furtherance of the conspiracy did one or more overt acts within Charles Mix County, to wit: 1. On September 14, 2015, at 3:37 Scott Westerhuis sent an email to Rick Melmer stating, Rick, this is what the original one [presumably meaning Melmer?s employment contract] would have looked like.? 2. On September 14, 2015, at 7:14 a.rn., Rick Melmer, sent a reply email to Scott Westerhuis and Dan Guericke, stating that Melmer was ?concerned about the fact that MCEC does not have the proper documentation in place-signed and ready for review? and that may be hard to defend but I think it is important to be honest about what you have and what you don?t have in place.? 3. At around 9:00 am. on September 14, 2015, Scott Westerhuis called Lloyd Persson. Scott Westerhuis informed Persson that he had found a couple of employment contracts and that had not been signed by Persson while Persson what Chairman of the MCEC Board. 4. On September 14, 2015, Guericke drove to rural Aurora County where Persson was working. Guericke arrived at approximately 10:00?10:30 am. and parked alongside the ?eld that Persson was working. Guericke informed Persson that the two contracts were employment contracts for Rick Melmer and Keith Moore. Guericke placed the two contracts on the hood of his vehicle and requested that Persson sign and backdate each of the contracts. Persson complied by signing and backdating the employment contracts. 5. On September 14, 2015, Guericke returned to of?ce with the backdated contracts. 6. On September 14, 2015, at 11:43 Nicole Westerhuis emailed the backdated contracts to the Department of Legislative Audit with a carbon copy to two South Dakota Department of Education employees and to Scott Westerhuis. Count 6 CONSPIRACY TO OFFER FORGED OR FRAUDULENT EVIDECE, in violation of SDCL 22?3?8 and SDCL 22-12A- 15, in that on or the month of September 2015, Dan Guericke, Scott Westerhuis, Nicole Westerhuis and other unknown co-conspirators did conspire and agree with one another to offer in evidence as genuine, in a trial, proceeding or investigation authorized by law, any book, paper, document, record, or other instrument in writing, knowing that it had been forged or fraudulently altered, to wit: Dan Guericke, Scott Westerhuis, and Nicole Westerhuis did conspire and agree to backdate a contract between Mid Central Education Cooperative (MCEC) and Keith Moore, for service dates July 1, 2013 through June 30, 2014, with the intent to produce it or allow it to be produced as genuine in a South Dakota Department of Legislative Audit inquiry or investigation, and in furtherance of the conspiracy did one or more overt acts within Charles Mix County, to wit: 1. On September 14, 2015, at 3:37 Scott Westerhuis sent an email to Rick Melmer stating, Rick, this is what the original one [presumably meaning Melmer?s employment contract] would have looked like.? . On September 14, 2015, at 7:14 Rick Melmer, sent a reply email to Scott Westerhuis and Dan Guericke, stating that Melmer was ?concerned about the fact that MCEC does not have the proper documentation in place-signed and ready for review? and that may be hard to defend but I think it is important to be honest about what you have and what you don?t have in place.? . At around 9:00 am. on September 14, 2015, Scott Westerhuis called Lloyd Persson. Scott Westerhuis informed Persson that he had found a couple of employment contracts and that had not been signed by Persson while Persson what Chairman of the MCEC Board. . On September 14, 2015, Guericke drove to rural Aurora County where Persson was working. Guericke arrived at approximately 10:00?10:30 am. and parked alongside the field that Persson was working. Guericke' informed Persson that the two contracts were employment contracts for Rick Melmer and Keith Moore. Guericke placed the two contracts on the hood of his vehicle and requested that Persson sign and backdate each of the contracts. Persson complied by signing and backdating the employment contracts. 5. On September 14, 2015, Guericke returned to office with the backdated contracts. 6. On September 14, 2015, at 11:43 Nicole Westerhuis emailed the backdated contracts to the Department of Legislative Audit with a carbon copy to two South Dakota Department of Education employees and to Scott Westerhuis. contrary to the statute in such case made and provided against the peace and dignity of the State of South Dakota. That this Complaint is based on the Af?davit of DCI Special Agent John Barnes, a copy of which is attached hereto and fully incorporated herein. Dated this l?I?i??ay of March, 2016, at Pierre, South Dakota. MW KEMPEMA Assistant Attorney General In Subscribed and sworn to before me, a Notary Public on this day of otary Public March, 2016. My Commission expires: (SEAL) . . .. :3 Jenna McFarlane i. NOTARYPUBLIC REQUEST FOR WARRANT Brent Kempema, the undersigned Prosecuting Attorney, hereby requests that a Warrant be issued based upon the Complaint and Af?davit set forth hereinabove. Brent Kempema, Prosecuting Attorney Assistant Attorney General 10 STATE OF SOUTH DAKOTA IN CIRCUIT COURT COUNTY OF CHARLES MIX) FIRST JUDICIAL CIRCUIT STATE OF SOUTH DAKOTA Plaintiff, Crim No. ?vs- PROBABLE CAUSE AFFIDAVIT Daniel Mark Guericke DOB: 10-22-1957 I, John Barnes, hereby state that I am a Special Agent for the South Dakota Division of Criminal Investigation and have been so employed for approximately 1.5 years. I hereby state the following statement to be true and correct: On September 17, 2015, ?re ?ghters from the Platte ?re Department and Deputies from the Charles Mix County Sheriff?s Of?ce responded to a residence at 36702 279th Street in Platte, SD. This residence belonged to Scott Westerhuis, Nicole Westerhuis and their four children. The residence was entirely destroyed by ?re. The ensuing investigation identi?ed (6) bodies that consisted of the Westerhuis family. The forensic pathologist determined the manners of death for Nicole Westerhuis and her four children (Michael, Connor, aeci, and Kailey) were homicide and the causes of death were shotgun wounds. The forensic pathologist determined the manner of death for Scott Westerhuis as suicide and the cause of his death as a shotgun wound to the head. Based on the facts of the investigation, it is believed that Scott Westerhuis killed his family, set his house on ?re and then killed himself. A ?nancial investigation ensued after discovering that Scott Westerhuis was the business manager at Mid Central Education Cooperative (MCEC) and Nicole Westerhuis was the assistant business manager at MCEC. The timing of the Westerhuis family deaths was linked to departments with the State of South Dakota inquiring into the ?nancial and business practices of MCEC. The departments with the State of South Dakota consisted of but are not limited to the South Dakota Department of Education (SD DOE) and the Department of Legislative Audit (SD DLA). It has been determined that MCEC was sub-awarded by the State of South Dakota to administer an educational federal grant known as GEAR UP. MCEC set up programs to support the activities of the grant through schools that were eligible to participate. MCEC would collect the expenditures made on behalf of the grant each month, review them, and send them to the SD DOE for reimbursement out of the GEAR UP grant funds. The investigation has revealed that Scott and Nicole Westerhuis were involved with the following corporations: Mid Central Education Cooperative (MCEC) American Indian Institute for Innovation - American Indian Institute for Innovation and Excellence Oceti Sakowin Education Consortium (OSEC) Rock Ranch Consulting - Chita Corporation Blackrock Consulting The investigation has revealed that Scott and Nicole Westerhuis utilized their ?nancial oversight positions in the above listed corporations to conduct illegal activity; speci?cally, grand theft exceeding hundreds of thousands of dollars and potentially exceeding one million dollars It has been determined that the American Indian Institute for Innovation was very active as it relates to the GEAR UP Grant under a sub award with MCEC. Stacy Phelps is the Chief Executive Of?cer (CEO) of and Scott Westerhuis was the Chief Financial Of?cer (CFO) for with Nicole Westerhuis assisting. The investigation has revealed that MCEC utilized a ?le sharing program called ?Egnyte?. MCEC would upload expenditure documentation related to GEAR UP to the Egnyte Program where the State would have access to review this documentation. Receipts, work effort logs and other expenditures for reimbursement are examples of documentation that would be uploaded to this file sharing system. MCEC provided SD DOE and SD DLA employee?s login information to access the Egnyte System, providing access to all uploaded documentation. MCEC could upload any information! documentation to Egnyte; therefore, Egnyte could be used as a cloud storage area where select individual access could be granted to view all documentation on Egnyte. The investigation determined that when a document was uploaded to Egnyte, the Egnyte Program documented and displayed the individual who was uploading the information and listed a date and time when the document was uploaded. An email was then automatically sent to SD DOE notifying them that items/documents had been uploaded to Egnyte. The investigation revealed that MCEC had an of?cial agreement for services with A111 and this agreement documents services that was to perform for the SD GEAR UP Grant. The investigation found (5) agreements on the Egnyte System for MCEC and A111: - October 1, 2012 until September 30, 2013 Agreement - October 1, 2013 until September 30, 2014 Agreement - October 1, 2013 until September 30, 2014 Amended Agreement - October 1, 2014 until September 30, 2015 Agreement October 1, 2014 until september 30, 2015 Amended Agreement Three (3) of the agreements were determined to be uploaded on the same day by Nicole Westerhuis: October 1, 2013 until September 30, 2014 Amended Agreement October 1, 2014 until September 30, 2015 Agreement October 1, 2014 until September 30, 2015 Amended Agreement The 2013-2014 original agreement was uploaded in August of 2014. The three (3) other agreements, to include both of the amended agreements, were all uploaded on 8-11-2015 by Nicole Westerhuis. All of the agreements bear the signatures of Dan Guericke and Stacy Phelps on each agreement. On 12-22-2015, Agent Griswold and I along with assisting law enforcement of?cers interviewed Stacy Phelps. Phelps was asked if he remembered amending the agreements with MCEC and Phelps said he thought so but did not know why they would have been amended. Phelps was shown his signature on the agreement and he agreed that it was his signature. Phelps said he did not know for sure when he signed the agreement. Phelps said he trusted Scott and ?gured that the State would be approving them. Phelps said Scott talked to him about it. On 2?28-16, DCI Special Agent Brett Spencer and I interviewed MCEC Director Dan Guericke. Guericke was shown the original A111 and MCEC contracts for 2013-2014 and 2014-2015. Guericke reported that his signatures were on both of the agreements. Guericke also reported that the signatures on the amended agreements were his as he sometimes signs with an initial. Guericke reported that his signatures on the amended agreements are not forged. Guericke said he knew some of the documents they needed were missing as they lost them and had recreated them and asked him to sign some different documents. Guericke said that they, Scott and Nicole, called him on a Sunday and told him they needed him to sign the documents because they had been asked for the documents, but could not ?nd them. Guericke reported that he asked them if they had previously been in the minutes and he was told yes. He said he did not look and just took their word for it so he signed them that day and back dated them. Guericke said it was a Sunday and they, Scott and Nicole, said they were looking for stuff for the auditors and could not ?nd the contracts, so they asked him to come down and sign them which he did. Guericke reported that he did not know if the signature of Stacy Phelps was already on the documents when he (Guericke) signed them. The investigation revealed an email from Scott Westerhuis (scottwesterhuis@gmai1.com) to Stacy Phelps dated 8?10-2015 with a time display of (CT). The email contained the subject line ?Contracts? and contained the two (2) ?le attachments. The two (2) attachments were labeled: - GU MCEC Contract 2013-2014 - GU MCEC Contract 2014-2015 The email contained the following message: 0 ?Hey please sign, scan and send back and send in mail also so we have originals. Thanks scott? Agent Griswold viewed both of the documents sent to Phelps by Scott Westerhuis and viewed both documents to be already signed by Dan Guericke with the signature line for Phelps being blank. The documents attached consisted of the above listed amended agreements. The investigation also revealed an email from Stacy Phelps to Scott Westerhuis dated 8-11-2015 with a time display of (MT). This email contained attachments of the said amended agreements with the signature line having been signed by Stacy Phelps with dates being ?lled in by Phelps. This email did not have content in the ?message? area. Both of the amended agreements emailed to Scott Westerhuis by Stacy Phelps were back dated. A review of phone and text message records between Stacy Phelps and Scott Westerhuis for 8-10- 2015 and 8-1 1-2015 revealed multiple phone calls to and from as well as multiple text messages to and from. On Wednesday, March 2, 2014, SAAG Russell and SA Neuharth interviewed Lloyd Persson, MCEC Board Member from approximately 1995-2015 and Chairman from2010-2015. Persson told SAAG Russell that he signed and back dated contracts with MCEC pertaining to Keith Moore and Rick Melmer in September 2015. Persson told SAAG Russell that the Monday before the ?re Scott called him and said he needed him to sign some contracts that were already approved by the board. He said about an hour later Dan Guericke showed up, so Lloyd signed and back dated the contracts for Moore and Melmer even though he had been done working with MCEC since the end of June 2015 These contracts were emailed to Jessica Huber with DLA on 9?14-15 at 11:43 am and to DOE Robyn Huffman, DOE Mark Gageby, and Scott Westerhuis. Jessica Huber had requested employment contracts for Rick Melmer and Keith Moore on 9-11-15 at On Thursday, March 3, 2016, after the initial Interview, SAAG Russell reinterviewed Lloyd Persson. SAAG Russell speci?cally spoke with him about the 2013?2014 and 2014-2015 MCEC contracts for Keith Moore and Rick Melmer. According to Persson, Guericke laid out two contracts on the hood of his car and had Persson sign and back date both contracts. Persson said that both contracts were already turned to the second page when Guericke laid them out. Persson did not look at the ?rst page of either contract. Guericke did tell Persson that the contracts were for Melmer and Moore but Persson did not check for himself. Persson?s interaction with Guericke was very brief and Guericke did not provide Persson with any additional details regarding the contracts or why they had not previously been presented to Persson to be signed. It should be noted that the dates listed for all three signatures on the 2013/2014 contracts were all on the same day (7-11-13), while the dates for the various signatures on the 2014-2015 contracts were on different days, which would be appropriate for signatures that were obtained in different locations by signatories who were signing the contracts when they were presented to them. On 9-14-15 at Rick Melmer sent an email to Scott Westerhuis and Danial Guericke with the Subject ?Re: Contract? included the following: ?Scott Dan My wife checked and all I have for the amendment is a letter from CCS SO outlining the new duties that I would have. I assume you are looking for a contract not a letter of agreement. The letter was not signed. I'm concerned about the fact that MCEC does not have the proper documents in place - signed and ready for review. It will be hard to defend but I think it is important to be honest about what you have and what you don't have in place. I'll be traveling through Wednesday night but in SF on Thursday and Friday if we need to Visit any further.? At 9-14-15 Guericke replied to Rick Melmer?s email and Scott Westerhuis and included the following: ?Thank you for the update. We will present what we have and make a determination as to how we correct this situation with Legislative Audit. I will let you know how we come out.? South Dakota Department of Legislative Audit (SD DLA) provided information in reference to the content of the original agreements between MCEC and A111 compared to the content of the amended agreements. SD DLA reported that the original agreements provide that MCEC and A111 will administer the GEAR UP Grant ?cooperatively?, making a ?sub-recipient? of the GEAR UP Grant. SD DLA reported that the amended agreements change the language of MCEC and agreements to a ?contract? for services making relationship with MCEC that of a ?vendor?. SD DLA reported that this language change in the amended agreements has a direct impact on how GEAR UP funds expended by would be considered in determining whether needed to have an audit performed under the federal Single Audit Act. SD DLA reported that a ?vendor? relationship would not require that GEAR UP funds be considered federal ?nancial assistance in determining whether a federal single audit was required but that a sub-recipient relationship would require that the GEAR UP funds be considered as federal ?nancial assistance in determining whether had expended suf?cient federal ?mds to require an audit in accordance with the Single Audit Act. Based on the above information, it is probable that Guericke signed and back dated the amended agreements. Guericke reported in an interview with me (Agent Barnes) that the signatures on the amended agreements were his. The information supports the logical inference that the amended agreements were an attempt to prevent a potential audit of A111. Based on Guericke working knowledge of MCEC and GEAR UP reimbursement procedures, it is probable that Guericke knew that the agreement would be ?led, registered and/or recorded at MCEC. Based on the fact that the amended contracts were uploaded to the Egnyte Program which SD DOE and SD DLA employees had direct access, it is probable that the amended contracts were/are being presented as of?cial documents. Under South Dakota Codi?ed Law, MCEC is subject to statutory requirements that are similar to a school district and therefore, a public entity subject to SD statutory audit authority. Based on the fact that MCEC was being inquired upon by SD DLA and this inquiry would have a direct impact on it is probable that Guericke falsi?ed evidence by preparing a false instrument with intent for it to be presented as genuine in an inquiry or investigation authorized by law, a violation of Based on the above information, it is probable that Guericke conSpired to offer forged or fraudulent evidence, in violation of SDCL: 22-12A-15. Dated this low day of ma! elm 20 at P13. rm. South Dakota. John Barnes Special Agent DIVISION OF CRIMINAL INVESTIGATION Subscribed and sworn to before me this [(330 day of Morals 20 lie at p'igrfeg South Dakota. My Commission expires: QM 3&th Notary Public