on the court notes that you were appointed under the act and appreciate your willingness to accept the appointment thank you your honor following a three day jury trial september loek will loki was found guilty of concealing person from arrest while while her three asking for a new trial primarily on the insufficiency of the evidence mr loki was found guilty of harboring a person from arrest which is up violation of eighteen u s c ten seventy one the fact of been outline in great detail by both parties in the brief so in reference to the first two elements of that statute whether a federal warrant was issued and whether the defendant had knowledge of the warrant those two issues are not contested  these events happened over a two day time period and it was clear by the testimony that both everett and september had the f b i or the u s marshals come to their home and notify them of the warrant so the elements that were really looking out are elements three and four whether or not the defendant actually harbored or concealed the fugitive and whether the defendant intended to prevent the fugitive discovery or arrest now that the relevan reference to those two elements happened when largent reidy who's a member of the tribal law enforcement came to the home of september and average it knocked on the door after him less than a minute loci answered the door mr or sergeant reedy asked miss will oaky if the fugitive was in the home and whether her daughter was in the home i she denied he asked if he could come into the home she allowed him to at this point she turns around and walks back to the stove on her husband her common law husband everett condon is sitting up a table in the same area and he ask again if the fugitives in the home september asked her husband  home so the government says there's enough for a jury to find harboring or concealment and i gather it's because a jury could infer that she allowed the man to stay there the night before and then when the police came she delayed at least some period of time which could have allowed him to hide in the mattress and then lied about whether he was there wise and all that together enough to allow that case you know the facts are distinguishable because those a lot more than just allowing someone to stay in the home they changed the color of the vehicle they got him a job they had a questionnaire most cases have more than this but why isn't  this day and then delaying when the police try to come look for him why isn't that enough and to that point i mean i really think that the woman that we're looking at is whether or not she intended to prevent  here and she denied entry and i think the distinguishable point is that she denied entry and later i think probably four or five minutes later he comes to the door and they find that because she deny the entry of that that me outloud the fugitive to lay out the window that would seem to be a problem under the statute here was to hide under the mattress as it turned out but what in that you know fulfill the intent particularly if the if so if september knew that them to search her home and she answered the door within a minute i mean officer really didn't testify that seemed like a really long time that was actually counsel that argued the jury in the closing argument it wasn't officer review that argued that the the lady going to the door you know after the conversation i mean the whole time from the time he entered the home to the time that he left the home was only a ten minute timeframe so it's not like it was a large  you want to follow up too on the act really quickly before you completely leave it you know the government relies on steg meyer and there's there's there's a couple lines at the design page five seventy nine where it says just point plain and simple providing the fugitive a place to stay however s satisfy some requirement for physical assistance why isn't that just the end i mean i understand you can distinguish it but that looks to be a categorical statement if you give them a place to stay the physical act requirement is is done and i would argue that enough but about not it's inconsistent with other q so but i've cited that or not in the eighth circuit if you look at the four keys you know in that case they granted entry and they found that that didn't meet the standard in the case and the reason that it can be overturned is the fact that she allowed them into the home she did not lock the door she did not try to shut the door she didn't try to keep law enforcement out she allowed them to search that is that was with her daughter carly and her daughter's boyfriend the fugitive time accompt before him they were bringing some clothes to him so he could attend the funeral of his aunt and smoke meth and never returned when he was supposed to return when he doesn't show up back to the jail the warrant is issued and they have officers are in eagle butte they go out to cherry creek because they have a tip that's probably where he has they go there and september interacts with the u s marshals at that time and says there's no reason tyson will never be here my daughter doesn't even know when i'm anymore i don't know where he is he would never be there there's no reason we don't get along anymore so that was the first development of a ruse a lie she lied because she was with him that day and that's further evidence by the fact that if she wasn't harboring him at that point why say no it was not h point that but that shot goes to show the intent of the state of mind as this ruse develops venture the plan is made between tyson and his sister braxton that she will pick him up at september septembers house the defendant's house here and they will flee to rapid city that's the plan that braxton testified she had with tyson and the next morning tyson gets to the september carly they get there like the testimony is around five am to seven am and they go to sleep and braxton is on her way to pick up tyson so they can flee to rapid city so he can avoid capture and she calls the number that tyson had called her from the previous day who answers the phone september it's september will okies phone is there actual evidence that she knew the plan that she  it could be that you could harbor a fugitive which would satisfy the actus reus both the idea look it's three o'clock in the morning no police stations are open i'm going to i'm going to take the fugitive into the u s marshals at the police station tomorrow harboring the fugitive not knowing where the fugitive is going to go in the morning or whatever is that it does that present a problem for the government i don't think it presents a problem and in this case because there is evidence in a case where there's absolutely no know might be a different story the jury might might see that differently but here is the story continues braxton calls and september says other he's here he's sleeping and he's ok and we'll see you later and then  then there's a tip the shy and sooner tribal police officer show up and knock on the door there's a delay in opening it that's testimony page three seventy six of the of the trial transcript they go in house the fourth request and she's delaying stalling finally she says ok i guess you can search the house and the government see that that's what makes it different from the hypothetical i gave just just harboring a fugitive at that point she's actively assistin know keeping up the marshals from getting at him not only assisting but others in the circumstantial evidence that she's in on this route there's more circumstantial evidence carlie comes out of the bedroom and shut the door an obvious manner obvious to the officer he's not supposed to go in there he goes right in and opens the door and there is tyson there's a big lump is between the matter yes and the box spring there's a big lump in the middle but the bed is crying and they say goodbye after he's gone a few minutes later ten minutes later braxton shows up to pick up tyson to take him to rapid city to flee and september and september says you lying merely lying is not enough with some other act of physical assistance i think this distinction that the boy was probably trying to get at even though i think it was decided wrongly is that if someone comes your house and says hey do you know where this fugitive is and you know he's at your cousin's house across town but you law you say i don't know i don't know where he is that's not harboring or concealing a fugitive but if it's your house if they come to your house and they say you know where this fugitive is and you are harboring him hiding him in your house and you lie i think that satisfies and it certainly under it certainly will but so are you saying it tends to show intent or  it's further evidence of harboring i think it's both you're intending it by lying and knowing that he's there preventing them from coming in or are trying to throw off the scent i think i think that's enough to show intent to create an inference the the other cases you know it's a long line of cases who counsels mention them the hayes case erdman you day this court said a new day with the knowledge of the outstanding warrants  allowed call to stay in his home thereby concealing call from the law enforcement agencies that sought his arrest conviction affirmed in the hash case there's no minimum duration of concealment makes clear  any amount of can delay stalling can qualify as concealment so i would respectfully suggest that the jury got this right the jury was the trier of fact the jury says credibility and there's no basis to reverse in this case what about the point that the acquittal of the husband like counsel says are essentially the same acts suggests a possible miscarriage of justice award a new trial we certainly thou been convicted but there's a lot of distinction between the two the two defendants and there's no evidence at all that everett lied about the relationship between carly and tyson there's no evidence tribal police officers everett was just sitting at the table i mean he didn't do anything other than say no one simple statement no when september asked him if he knew where t you your honor i don't think that the state of the law is the fact that you have someone in your home that you know has a warrant makes you guilty of this statute and by citing that says by providing someone a place to stay meets the physical or the physical systems element doesn't get you all the way there you still have to have the and the fourth element which is to defend intended to prevent the very well thank you for your arguments the case is submitted the coral file an opinion in due course counselor excused