Case 1:17-cr-00016-DLH Document 135 Filed 12/13/17 Page 1 of 12

UNITED STATES DISTRICT COURT
DISTRICT OF NORTH DAKOTA
UNITED STATES OF AMERICA,
Plaintiff,
v.
RED FAWN FALLIS,
Defendant.

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No. 17 CR 16-DHL
MOTION TO COMPEL
DISCOVERY AND
SUPPORTING MEMORANDUM1

Comes now the defendant, Red Fawn Fallis, by her counsel, and moves the Court
to enter an Order compelling the government to comply with its discovery obligations
forthwith or, in the alternative, to grant other relief. In support of her request, Ms.
Fallis states the following:
1.

The Court’s Pre-Trial Order of January 9, 2017 [Dkt. 29] provides that

“The following discovery rules shall apply:
a) Rule 16 discovery shall be accomplished by the parties without
the necessity of Court intervention unless there is a dispute as to
whether the matter is discoverable or there is a request for a
protective order pursuant to Rule 16(d)(1). The parties are strongly
encouraged to informally resolve all discovery disputes.
b) Upon the request of the Defendant (which request shall not be
filed with the Court), the Government shall comply with Rule
16(a)(1)(A-G) and its “standard discovery policy . . . ”
2.

In addition to the requirements imposed upon the government by Rule 16

of the Federal Rules of Criminal Procedure, the government has an obligation to comply
with the constitutional requirements imposed by the United States Supreme Court in
Brady v. Maryland, 373 U.S. 83 (1963) (suppression by the prosecution of evidence
favorable to an accused who has requested it violates due process where the evidence is
 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  

Defendant recognizes the provision in D.N.D. Crim. L.R. 47.1 referring to a
motion and memorandum in support. Given the relatively spare amount of case law
cited in this Memorandum, defense counsel has combined the two.
1

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material either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution); Giglio v. United States, 405 U.S. 150 (1972) (both impeachment
evidence and exculpatory evidence fall within the Brady rule, including any
understanding regarding consideration given or promised for a witness’ testimony);
United States v. Bagley, 473 U.S. 667 (1985) (regardless of request, favorable evidence
is material and constitutional error may result from the government’s failure to disclose
it); and Kyles v. Whitley, 514 U.S. 419 (1995) (the prosecutor’s responsibility under
Brady extends to evidence known to police investigators but not disclosed to the
prosecutor because “procedures and regulations can be established to carry the
prosecutor’s burden and to insure communication of all relevant [Brady] information
on each case to every lawyer who deals with it.”).
3.

The defense has made informal discovery requests of the government by

sending Discovery Letters 1 through 8, including letters dated January 31, 2017
(requesting general information and examinations and tests) [Exhibit Disc-16]2,
February 1, 2017 (requesting preliminary hearing materials), April 13, 2017 (requesting
discovery of impeaching information), June 9, 2017 and September 5, 2017 (requesting
recordings), September 14, 2017 (requesting information regarding named and
unnamed informants), November 13, 2017 (requesting disclosure of private security
materials), and November 22, 2017 (requesting information material to the matters to
be litigated at the hearing on Ms. Fallis’ Motion to Suppress). The government has not
objected to disclosure of any of the items referenced in the discovery requests, but has
not complied with those requests.
 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  

Discovery-related exhibits presented to the Court during the recent Suppression
hearing have been filed contemporaneously with this Motion to Compel and are marked
under a separate heading in Defendant’s Motion to Compel Exhibit List.
2

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4.

In a further and final attempt to accomplish discovery informally, on

November 20, 2017, the defense sent to the government a summary of those
outstanding discovery requests with which the government has failed to comply [Exhibit
Disc-15]. The summary does not include those items requested in Discovery Letter 7
dated November 13, 2017 [Exhibit A] and Discovery Letter 8 dated November 22, 2017
[Exhibit B].3
5.

The government failed to respond directly to the discovery requests, failed

to file an objection to any of the requests, has taken the position that it does not have the
items requested in its possession and, apparently, contends—contrary to the dictates of
Kyles v. Whitley—that it is not under an obligation to inquire of the police agencies
present during the DAPL protests whether or not they are in possession of the requested
items, all of which are material to the defense. See also United States v. Tyndall, 521
F.3d 877, 882 (8th Cir. 2008) (“A prosecutor has a duty to disclose evidence known by
police officers, even if not known by the prosecutor, because a prosecutor has a duty to
learn of such information”) (citing Strickler v. Greene, 527 U.S 263, 280-81) (1999));
Cvijanovich v. United States, No. 3:07-cr-55, 2011 U.S. Dist. LEXIS 74000, at *11
(D.N.D. July 8, 2011) (“under an application of general agency principles, prosecutors
can even be held responsible for the knowledge of police officers of purposes of the
Brady rule”).
6.

Several “Intel Threads” obtained through Open Records Requests reveal

ongoing communications regarding the DAPL protests between Intelligence Specialist
Terry Van Horn of the United States Attorney’s Office and numerous law enforcement
 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  

For brevity’s sake, Discovery Letters 2-6, which are summarized in the November 20
letter, are not attached as exhibits. Defense counsel will happily provide the Court with
a complete copy of any and all Discovery Letters upon request.
3

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officers representing agencies including the Federal Bureau of Investigation, Bureau of
Indian Affairs, United States Marshal Service, North Dakota National Guard, North
Dakota State and Local Intelligence Center, Cass County Sheriff’s Department (Tonya
Jahner), Morton County Sherriff’s Department, and Bismarck Police Department
around the time of both Ms. Fallis’ arrest and the initiation of the federal prosecution
against her.4 In particular, the Intel Thread from October 12 reveals mutual real-time
intelligence exchanges between the United States Attorney’s Office and a myriad of local
and state law enforcement agencies, as well as the United States Attorney’s Office’s
access to DAPL helicopter live feeds. See Exhibit C. Any knowledge and materials
relevant to Ms. Fallis and/or the events of October 27, and held by cooperating law
enforcement agencies including but not limited to those listed above and all others
cooperative in the arrest, investigation, and prosecution of Ms. Fallis, fall within the
scope of Brady and Rule 16. “[O]ne office within a single federal agency must know
what another of the same agency is doing or has done regarding the accused.” United
States v. Barket, 530 F.2d 189, 195 (8th Cir. 1976); see also Cvijanovich, 2011 U.S. Dist.
LEXIS 74000, at *12 (imputing knowledge from another Assistant United States
Attorney to the prosecuting attorney for Brady purposes).
7.

Examples of items that are material to the defense, in the possession of the

government and/or its agents and employees, requested by the defense and not
produced by the government include, but are not limited to:
 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  

See Exhibits C-F (“Intel Threads” including U.S. Attorney’s Office Intelligence
Specialist Terry Van Horn and numerous law enforcement officers dated 10/12, 10/17,
10/22, and 11/20, all 2016). On information and belief, Intelligence Specialist Van Horn
at times requested that individuals and agencies on these email chains perform
intelligence research.
4

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a.

A detailed request5 for documents and other information relevant to the

government’s use of a paid FBI informant who infiltrated the Water Protector camps,
established an intimate relationship with the defendant herein, and provided
contemporaneous information to the government. This informant was an eyewitness to
Ms. Fallis’ arrest and the discharge of a firearm. The relevance of this information is
further established by the fact that government’s Hearing Exhibit 10, the revolver that
was allegedly seized from Ms. Fallis at the time of her arrest, belonged to the
government’s informant.
b.

A detailed request6 for documents and other information relevant to

additional informants utilized by the government, the State of North Dakota, police
agencies involved and/or DAPL and/or its agents. While the government has to date
failed to disclose the existence of other informants, Deputy Thadius Schmit’s testimony
at the hearing on the Motion to Suppress revealed that at least one additional informant
(or undercover law enforcement officer) spoke to law enforcement officers on or about
October 27, 2016 about his infiltration of the Water Protector camps.
Additionally, the defense is entitled to discover all evidence that the violent acts
used as predicates for the ‘civil disorder’ alleged in Counts 1 and 2 were influenced,
encouraged, facilitated, or otherwise promoted by persons employed or recruited by
federal, state and/or local law enforcement agencies, by private security firms and by
their agents and employees. See United States v. Giron, 1:17-CR-00031-DLH, Dkt. 81,
pp. 9-11 [attached hereto as Exhibit G]; see also Supporting Exhibits A-F at Dkt. 81.

 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  
5

Dated September 14, 2017 and November 20, 2017.

6

Dated September 14, 2017 November 13, 2017 and November 20, 2017.
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c.

Detailed requests for GoPro recordings, cell phone recordings and/or

other audio and video information relevant to the activities on October 27, 20167. Only
three days prior to the hearing on December 8, 2017, the government finally disclosed to
the defense cell phone recordings of Officer Schmit, after first inquiring about the
existence of such videos on November 16, 2017 – more than a year subsequent to Ms.
Fallis’ arrest. No disclosure8 has yet been made of GoPro and cell phone video
recordings made by officers in the Youtube and Bystander videos who are depicted
wearing recording devices, or otherwise known to be wearing recording devices, in close
proximity to Ms. Fallis’ arrest – including Grand Forks Police Officer No. 6449. No
disclosure has yet been made of footage from:
•

North Dakota Highway Patrol Sgt. Darce Aberle10 [pictured in Exhibit Disc-3 with
visible body camera; identified by Highway Patrol Captain Bryan Niewind];

•

North Dakota Highway Patrol Officer Charles Kelly [pictured in Exhibit Disc-10
with visible cell phone camera; identified by Highway Patrol Captain Bryan
Niewind];
Eleven as-of-yet unidentified officers including officers from the Morton County
Sheriff’s Department and Bismarck Police Department with visible body and cell
phone cameras [Exhibits Disc-1 to -2, Disc-4 to -7, Disc-11 to -12].11

•

 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  
7

Dated September 5, 2017, November 20, 2017 and November 22, 2017.

For the two body camera films that have been disclosed that display footage close
in proximity to the Defendant’s arrest – both of which begin shortly following
Defendant’s alleged discharge of a firearm and which do not include any inculpatory
statements made by the Defendant despite their apparently close proximity to the area
of her arrest – no identifying information has been provided following discovery
requests for said identification sent on September 5, 2017, November 20, 2017, and
November 22, 2017.
8

See Exhibit (Grand Forks police report provided by United States in discovery
indicating relevant footage taken by Officer No. 644).
9

Sgt. Aberle’s incident report, which contains no mention of his wearing a body
camera, indicates that he was “approximately 5 to 6 feet away from [Ms. Fallis] when
[he] heard gun shots.” [Exhibit I, Bates No. 00155]
10

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Nor has the government produced the recording made by Cass County Officer Tonya
Jahner who is depicted in the Bystander video holding a camera pointed directly at the
defendant while she is being restrained by law enforcement officers [Exhibits Disc 7 to 8]. Finally, no disclosure has been made of the recordings, if any, of the camera
mounted on the Bear Cat vehicle and depicted in the Youtube and Bystander videos12
[Exhibits Disc-13 to -14].
d.

Detailed requests for department policies and metadata and chain of

custody information regarding audio and video footage thus far provided. This
information is crucial to defense investigation regarding the completeness and integrity
of audio-visual recordings thus far provided.13 The materiality of these requests is
exemplified by the puzzling discrepancies in audio-visual content contained within
North Dakota Highway Patrol Trooper Joshua Anderson’s dash cam video footage,
provided by the United States in discovery. [Exhibit J]. For an example of just one
segment demonstrating the possibility that the original footage has been altered—
unintentionally or otherwise—see Exhibit J at 6:32:06 (time stamp 19:40:53) through
6:34:17 (time stamp 19:43:04).14
 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  

Defense counsel recognizes that one of the officers identified in Disc-12, Cass
County Sheriff’s Detective Joe Gress, has informed the United States that he was not
filming at the time of Ms. Fallis’ arrest.
12
Because of its proximity to the seizure of Ms. Fallis, any recordings – audio
and/or video - would be highly relevant.
11

13

Dated September 5, 2017 and November 20, 2017, and November 22, 2017.

Although static noise throughout the recording makes some chatter impossible to
decipher, this audio portion of the recording includes several references to the arrests of
Ms. Fallis as well as, apparently, DAPL security contractor Kyle Thompson (“BIA has
individual in custody” at 19:41:15). Both of these arrests occurred around 6:00 P.M.
when it was still clearly light out, and the audio sounds as if it is occurring in close
proximity to the events described within (e.g., at 19:42:57: “we just had a deputy shot
here, it just grazed his leg but he’s 10-4”). The time stamp, indicating that it close to
14

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e.

Detailed requests for all information in the possession of the government

and/or the State of North Dakota regarding Ms. Fallis and her activities, including but
not limited to the North Dakota State and Local Intelligence Center.15 North Dakota law
enforcement created and maintained “link charts” on individual protesters believed to
be “leaders in the movement” [Exhibit K]. See also 9/1/2016 SLIC Operations Email
[Exhibit L] (assigning task of “[c]reating link charts on leaders of the movement”). This
information is critically important as Ms. Fallis was identified by law enforcement as a
“leader” in the protests16 and such information is highly relevant to law enforcement’s
decision to infiltrate the group surrounding Ms. Fallis and to law enforcement’s motive
to seize and prosecute her. See, e.g., Affidavit of Trooper Bryan J. Niewind [Exhibit M,
p. 4] (indicating law enforcement practice of targeting “[p]rotest leaders and agitators
for arrest” during mass arrest five days prior to Ms. Fallis’ arrest).
f.

Detailed requests for all relevant statements and reports.17 The

government has yet to provide statements or reports from individuals including but not
limited to:
•

The unnamed Hennepin County officer who allegedly told Ms. Fallis to move
back and utilized his baton to push her back on October 27, 2016,
immediately prior to her seizure by law enforcement;

•

Pennington County Sheriff’s Deputies Myron Canales and Scott Sites
(phonetic spelling), identified by Deputy Thadius Schmit as being present on
October 27, 2016 during the circumstances leading up to and including the
Defendant’s seizure; and

 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  

8:00 P.M., and the dark lighting contained at this point in the video, together strongly
suggest that audio and visual recordings in this footage occurred at different times. This
footage also contains an unexplained and extended period of audio silence from 4:08:48
[time stamp 17:17:34] to 4:26:34 [time stamp 17:35:20].
15
Dated November 13, 2017.
16

See Exhibits K, L.

17

Dated June 6, 2017 and November 20, 2017.
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•

g.

North Dakota Bureau of Criminal Investigations Special Agent Casey Miller,
identified as being present at the search of Defendant by North Dakota Parole
and Probation Officer Dan Heidbreder.
The government has also taken the position that it has no knowledge of the

activities and involvement of the private security agencies that were operating in the
area of the anti-DAPL protests in October of 2016 and that it is under no obligation to
ferret out and produce the information regarding the activities of those agencies
requested by the defense18. The government’s position is untenable and contradicted by
documents establishing a cooperative relationship between TigerSwan and various
North Dakota law enforcement agencies.
Leaked documents19 establish clear links between law enforcement and
operatives of private security contractor TigerSwan, including the sharing of daily
intelligence updates between TigerSwan and law enforcement, meetings between
TigerSwan operatives and the North Dakota BCI regarding video and still photo
evidence collected for prosecution, coordination of intelligence gathering with law
enforcement and conversations between private security operatives and numerous law
enforcement agencies including but not limited to the Morton County, Mercer County,
and Stutsman County Sheriff’s Departments. See generally, Exhibit G.
The North Dakota Attorney General’s Office, as counsel for the N.D. Private
Investigative and Security Board, has asserted that TigerSwan not only provided private
intelligence to its employers, Energy Transfer Partners, but shared that intelligence with
law enforcement. [N.D. Private Investigative and Security Board v. TigerSwan, LLC
 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  
18

Requests dated November 13, 2017 and November 20, 2017.

See, e.g., https://theintercept.com/2017/05/27/leaked-documents-revealsecurity-firms-counterterrorism-tactics-at-standing-rock-to-defeat-pipelineinsurgencies/
19

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and James Patrick Reese, Burleigh County District Court No. 08-2017-CV-01873,
attached hereto as Exhibit N].
According to the allegations set forth in the Attorney General’s Complaint, the
“private intelligence” included fly-over photography of protest sites, providing
intelligence on protester activity and on the activities of Standing Rock Sioux Tribe
members, placing or attempting to place undercover private security agents in the
protest group, monitoring protester vehicles in the area and then reporting its findings
to Energy Transfer Partners, local law enforcement and others. [Exhibit N, p. 3]. For
additional documentation of the relationship between law enforcement and DAPLcontracted security see, generally, Exhibit G; see also Exhibit C [indicating United
States Attorney’s Office access to live feed from DAPL helicopter]; Exhibit O [law
enforcement report documenting joint law enforcement/DAPL private security arrest
enacted on October 27 and accompanying screenshots from arrest video]; Exhibit P
[Video of October 27 Joint Private Security/Law Enforcement Arrest].
To the extent that the government disputes the existence of an agency
relationship and symbiosis between law enforcement and DAPL-contracted private
security firms, the defense requests oral argument, an evidentiary hearing, and an
opportunity to present additional exhibits that may further illuminate this matter for the
Court.
6.

Due to the government’s failure to respond to the numerous discovery

requests provided by the defense and to the proximity of the trial date—now less than
fifty (50) days away—the Court’s intervention is necessary. This motion outlines some
of the most pressing and crucial outstanding discovery matters but cannot fully convey

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to this Court the extent of the numerous longstanding and often repeated requests that
have been largely ignored by the government.
7.

The government should be required to respond, in writing, to each of Ms.

Fallis’ discovery requests contained within the summary Discovery Letter (November
20, 2017), Discovery Letter 7 (November 13, 2017), and Discovery Letter 8 (November
22, 2017) forthwith. To the extent that the government claims lack of knowledge or
possession, or that it has already complied fully with an outstanding request,20 it should
be required to list each agency or person of whom it inquired in its search for the
requested information.
WHEREFORE, Ms. Fallis requests an order compelling the government’s
immediate compliance with the defense discovery requests based on the government’s
failure to provide discovery that is relevant, material and essential for the effective
defense of the indictment, and such further relief as may be just and proper in the
premises.
Dated:

December 13, 2017

Respectfully Submitted,
BRUCE ELLISON
Law Office of Bruce Ellison
P.O. Box 2508
Rapid City, SD 57709
(605) 348-1117
belli4law@aol.com
JESSIE A. COOK
Law Office of Jessie Cook
400 Wabash Ave, Ste. 212
Terre Haute, IN 47807
(812) 232-4634
jessieacook@icloud.com

 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  

The government has repeatedly asserted that it has provided all discovery
materials in its possession.
20

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MOLLY ARMOUR
Law Office of Molly Armour
4050 N. Lincoln Avenue
Chicago, IL 60618
(773) 746-4849
armourdefender@gmail.com
By: s/ Molly Armour

CERTIFICATE OF SERVICE
The undersigned Counsel of Record for the defendant hereby certifies that a true
and accurate copy of the above and foregoing document has been served on the Office of
the United States Attorney this 13th day of December 2017. Parties may access this filing
through the Court’s system.
David D. Hagler, AUSA
david.hagler@usdoj.gov
United States Attorney’s Office
s/ Molly Armour
Molly Armour

12