S. AMANDA MARSHALL, OSB #95347 

United States Attorney 

District of Oregon 

LEAH K. BOLSTAD, OSB #052039

Assistant United States Attorney 

Leah.Bolstad@usdoj.gov

1000 S.W. Third Avenue, Suite 600 

Portland, OR 97204-2902 

Telephone: (503) 727-1000 

Facsimile: (503) 727-1117 

Attorneys for the United States of America 

 

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON 

UNITED STATES OF AMERICA, 

 

 

 v. 

 

MARK DOUGLAS GILL, 

 

 Defendant.

Case No. 3:14-CR-00275-JO

GOVERNMENT’S 

NOTICE OF INTENT 

TO DENY IMMUNITY

 

 The United States of America, by and through S. Amanda Marshall, United States 

Attorney for the District of Oregon, and Leah K. Bolstad, Assistant United States Attorney, 

hereby provides notice that if the defense calls witness Rea Erickson to testify, and if Ms. 

Erickson pleads the Fifth Amendment, the government will not grant her use immunity. 

BACKGROUND

 On Friday November 14, 2014, this Court held a pretrial conference. When asked who 

he intended to call as witnesses, defense counsel refused to provide names and would say only 

that the witnesses were two individuals present on the day of the search warrant at defendant’s 

residence (June 19, 2014). There were at least 5 adults inside the residence, as well as several 

other adults who arrived at or were seen around defendant’s residence in the midnight hours of 

June 18-19. On the first day of trial, during opening statements, defendant identified for the jury 

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the two defense witnesses he intended to call: (1) Rea Erickson and (2) David Witte. As to Ms. 

Erickson, defense counsel previewed that she would testify that all the drugs belonged to her, 

and suggested other testimony that would, if believed, completely exculpate defendant Mark 

Gill. Ms. Erickson is not charged as a defendant in this case, and at the time of this 

investigation, she was not referred for state prosecution. As of day one of trial, Ms. Erickson did 

not appear to have legal counsel. 

 At the end of day one of trial, the government raised this issue for the Court. The 

government explained that if Ms. Erickson were to testify consistently with defense counsel’s 

preview, her statements would tend be self-incriminating. The government suggested that it 

would be appropriate for Ms. Erickson to have counsel appointed who could advise her of her 

rights. The government offered to help find and secure counsel. Thanks to the after-hours 

assistance from the panel office with the Federal Public Defender’s Office, a defense attorney 

was secured last night – Benjamin T. Andersen. 

 The government apprised Mr. Andersen of the relevant facts and sent him Government 

Exhibits 26, 27, 28, and 29 – text messages from Ms. Erickson’s phone admitted by this Court as 

co-conspirator statements. These text messages show that Ms. Erickson was actively involved 

with Mr. Gill in buying and selling methamphetamine. She purchased quarter-pound (~ 112 g) 

quantities from a source named “DJ.” See Govt. Exh. 26. According to lead case agent Joshua 

Zwick, the “DJ” in those conversations is one “DJ Probasco” who is a known methamphetamine 

dealer. In his post-arrest statements, defendant Mark Gill identified DJ Probasco as one of his 

(Gill’s) sources of supply for methamphetamine. Moreover, DJ Probasco was federally indicted 

in 2014 for Possession with the Intent to Distribute Methamphetamine (3:14-CR-258-SI). On 

October 28, 2014, DJ Probasco pled guilty to that drug-distribution offense (3:14-CR-258-SI, 

Docket CR 17). 

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 If called to testify on behalf of defendant, Ms. Erickson would no doubt be asked what 

these text messages mean. Additionally, the discovery in this case includes over 300 pages of 

Ms. Erickson’s cell phone evidence, most of which involves drug talk text messages where she 

communicates with dozens of customers and her several sources of supply (see Bates pages 211-

530). In these texts, she negotiates prices, fields customer orders for “balls,” “T”s, “half,” “the 

usual.” She negotiates with her sources who tell her, “So if I can do you for two grand do you 

want four” and “At my price 7500 for a full.” Ms. Erickson replies, “I gotta check to see in the 

morning if my friend still needed that much.” (see Bates page 355). In a very clear text, a 

customer asks her “I’ll trade u 300$ of food stamps for a 8 ball.” (Bates page 317, message 

#930). Can she explain these messages away without incriminating herself or committing 

perjury? The answer is no. 

 If advised about these realities by legal counsel, it is therefore likely that Ms. Erickson 

will plead the Fifth Amendment. If she does assert her right to not incriminate herself under 

oath, the Court will likely inquire about whether the government will grant her use immunity. 

The answer is no. 

DISCUSSION

The Ninth Circuit’s Westerdahl test, originating in United States v. Westerdahl, 945 F.2d 

1083, 1087 (9th Cir. 1991), is set out in United States v. Straub, 538 F.3d 1147 (9th Cir. 2008): 

We now hold that for a defendant to compel use immunity the 

defendant must show that: (1) the defense witness's testimony was 

relevant; and (2) either (a) the prosecution intentionally caused the 

defense witness to invoke the Fifth Amendment right against selfincrimination with the purpose of distorting the fact-finding 

process; or (b) the prosecution granted immunity to a government 

witness in order to obtain that witness's testimony, but denied 

immunity to a defense witness whose testimony would have 

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directly contradicted that of the government witness, with the 

effect of so distorting the fact-finding process that the defendant 

was denied his due process right to a fundamentally fair trial. 

Straub, id. at 1162 (emphasis added). 

[T]he defendant must show that "the prosecution granted immunity 

to a government witness in order to obtain that witness's testimony, 

but denied immunity to a defense witness whose testimony would 

have directly contradicted that of the government witness, with the 

effect of so distorting the fact-finding process that the defendant 

was denied his due process right to a fundamentally fair trial." 

Id. 

 There is no question as to the relevance of Ms. Erickson’s anticipated testimony as to 

who possessed the drugs and what her text messages mean. As to the second prong of the 

Westerdahl test, defendant cannot make the requisite showing. This is not a case in which the 

government granted any of its witnesses immunity, and thus there is no unfairness in denying 

that same immunity to proposed defense witnesses who offer contradictory testimony. See 

Straub, 538 F.3d 1147 (explaining that “where two eyewitnesses tell conflicting stories, and only 

the witness testifying for the government is granted immunity, the defendant would be denied 

any semblance of a fair trial”). 

 More to the point in this case, there is no evidence the government is attempting to distort 

the fact-finding process. As described above in the fact section, the facts speak for themselves. 

Ms. Erickson is a drug dealer. She is up to her neck in incriminating evidence putting her 

squarely in this drug-trafficking conspiracy. Some of the best evidence against Mr. Gill comes 

from Ms. Erickson’s co-conspirator statements. Although not indicted, she is certainly culpable 

as a co-conspirator. 

 If anything, the defendant is trying to distort the fact-finding process by calling this 

woman as a defense witness. Mr. Gill would like Ms. Erickson to come in and “take the fall” for 

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his crimes, and he’d like her to be able to do this without repercussion, thus triggering the 

immunity question. This defense strategy is not surprising; it is consistent with the witness 

tampering investigation wherein agents learned Mr. Gill was involved in finding and tampering 

with witnesses – he has no respect for the judicial process. If allowed to call Ms. Erickson as an 

immunized defense witness, then it would be the defense who is distorting the fact-finding 

process. Moreover, the defense would be suborning perjury in the process. The Court should 

not allow this to happen. The government will not grant immunity for this witness to come take 

the fall. 

 DATED this 19th day of November 2014. 

 Respectfully submitted, 

 

 S. AMANDA MARSHALL 

 United States Attorney 

 

 /s/ Leah K. Bolstad 

 LEAH K. BOLSTAD, OSB #052039 

 Assistant United States Attorney 

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