Office Of ATTORNEY GENERAL

I. LRC BRIEFING1

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II. CIVIL LITIGATIONA. NOTABLE CIVIL LITIGATION FY18

Name of Case

Summary Risk to South Dakota

Planned Parenthood v. Daugaard

Challenge to 2011 Anti-Coercion Legislation Attorney’s Fees / Costs of Litigation

Accruing as litigation proceeds.

Tobacco Diligent Enforcement 2004

Challenge to State’s 2004 enforcement of SDCL 10-50B under Tobacco MSA. The 2004 through 2017 tobacco litigation was settled in 2018.

The release of 27.5 million held by the PMs for the years of 2004 to 2017 was paid in 2018, thereby ending any arbitration for those years. 2018 forward will be subject to arbitration on some time in the future.

State v. Wayfair, Overstock, & Newegg

Litigation regarding Senate Bill 106 (2016 Legislative Session). The lawsuit requires certain out-of-state retailers (primarily internet vendors) to pay sales tax in South Dakota as if they had a brick and mortar building within the State.

The Civil Division brought suit in Circuit Court for the Sixth Judicial Circuit. After a brief trip to Federal Court and then though the state court system, the case was granted Certiorari by the United States Supreme Court. Oral argument was held in April of 2018. The Supreme Court issued a decision in favor of South Dakota on June 21, 2018.

The amount of sales tax currently unrecovered for sales to South Dakota residents by out-of-state internet retailers.

South Dakota v. Purdue Pharma L.P. et al.

On March 14, 2018, the Division filed suit in South Dakota v. Purdue Pharma L.P. et al. alleging several opioid manufactures knowingly distributed false information in order to increase the sales of opioid drugs.

The State claims, among other things, that those representations caused false claims to be filed with South Dakota Medicaid and resulted in scores of South Dakotans becoming addicted to opioid drugs.

Flandreau Santee Sioux Tribe (FSST) v. Gerlach

and

FSST v. Sattgast

FSST sued the State over the State’s ability to impose its use tax on non-member transactions taking place on the reservation and separately sued regarding the imposition of the contractor’s excise tax (CET) for work at the Tribe’s casino. The cases are currently on appeal to the 8th Circuit. Oral argument is scheduled for February.

Inability to collect 4.5% use tax on transactions between the tribe and non-tribal members and the 2% CET on the contractor’s gross receipts from a construction project.

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B. CASES HANDLED IN FY18

TYPE HANDLED CLOSED

Administrative Cases Handled for various agencies and licensing boards; includes challenges to land in trust applications filed with BIA

214 101Including 61 loans and grants

General Civil Court Cases Handled for various agencies and licensing boards, as well as national anti-trust and environmental litigation with other states

83 39

Section 1983 Prisoner Litigation

Legal Counsel provided to Department of Corrections

32 16

TOTAL 329 149

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C. CIVIL PRISONER LITIGATION

• FY 2018 Civil Prisoner Cases:

• Currently Handling over 30 Civil Prisoner Cases. • Three cases were won on appeal to the 8th Circuit Court of

Appeals. On• 16 Cases closed in FY 2018. Many resolved on motions to

dismiss or summary judgment motions. • Total amount no longer at risk (based on amounts claimed in

Complaints) due to FY 2018 case resolutions: ~$24 million plus unspecified damages.

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D. CONSUMER CONTACTS

Phone calls/E-Mail/helpline/correspondence

19,274

22,123

28,143

30,677 34,838

34,66932,670

30,156

35,055

0

5,000

10,000

15,000

20,000

25,000

30,000

35,000

40,000

FY10 FY11 FY12 FY13 FY14 FY15 FY16 FY17 FY18

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E. FY18 TOBACCO ACTIVITIES

• 1999-present: PMs paid States over $109 billion

• Master Settlement Agreement: 1998

• South Dakota:• Allocable Share: .348945380• As of July 19, 2018, $486,857,637.73 received to date• @ $21-26 million annually• 2018 payment: $45,947,348.79, which included the release of $27.5 million which had

been held by the PMs for the years of 2004 to 2017. Those years have now been settled. • AG lawyers in FY 2018 were involved in enforcement of MSA provisions (including SDCL

ch. 10-50B); and defense of State’s diligent enforcement activities required by MSA

• Because of the settlement, there is currently no ongoing arbitration with the Manufacturers.

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F. 2018 CIVIL DIVISION SUMMARYAmount Recovered/Preserved

$200.90 Million

Grant/Loan Advice

Prisoner Litigation

Grant/Loan Advice $174 million

Prisoner Litigation $24 million

Consumer Protection $2.1 million

Medicaid Fraud $.8 million

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III. CRIMINAL DIVISIONA. NOTABLE CRIMINAL CASES FY18

1. State v. Gerald Brink.Brink allegedly was the sole care provider for 7 week old N.B. when N.B.

went unresponsive. Upon arrival at Avera Hospital in Pierre, N.B. presented with bruising about the face and was unconscious, unresponsive, and pulseless. Autopsy showed N.B. suffered from four independent skull fractures, intracranial hemorrhages, and retinal hemorrhages. A Lyman County Grand Jury indicted Brink for Second Degree Murder and Aggravated Battery of an Infant. He pled guilty to 1st Degree Manslaughter. He was sentenced to 50 years in the state penitentiary with 10 years suspended.

2. State v. Curtis Adams.Adams allegedly led a Highway Patrol Trooper on a highspeed chase near

Gavin’s Point Dam. During the chase, Adams waived a handgun outside the driver’s side window. The pursuit eventually ended in the yard of a residence in Yankton, South Dakota. There, Adams allegedly fired two volleys of gunfire at the trooper. The trooper fired back, striking Adams once in the right shoulder. Adams was charged with Attempted Murder and Aggravated Assault of a Law Enforcement Officer. He plead to the Aggravated Assault of a Law Enforcement Officer and was sentenced to 18 years with 3 suspended.

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NOTABLE CRIMINAL CASES

3. State v. Thomas Lucero.Allegedly, Lucero and the victim are connected to the Sureno gang/Sinaloa drug cartel. They and a third person, the State’s eye witness, made a drug run to southern South Dakota. On the way back, Lucero forced the witness to pull over and the victim to exit the car. Lucero then shot the victim once in the head. He was charged with Murder. Trial was expected to take place in 2019.

4. State v. Daniel Ceplecha and Rangler Ceplecha.Allegedly, this father/son combination shot and killed Moses Red Bear in Martin, South Dakota, over the theft of a flashlight and a cigarette lighter. Daniel used a .32 caliber and Rangler a .22 caliber. They were both charged with Murder and pled guilty to 1st Degree Manslaughter. Both were sentenced to life in prison.

5. State v. Chance Harruff.During the early morning hours of June 1, 2017, Kristi Olson of Dallas, South Dakota, was found unresponsive in her home. She was later pronounced deceased. Pathologist Kenneth Snell determined Kristi’s cause of death as asphyxia due to manual strangulation, with manner of death ruled as a homicide. An investigation ensued resulting in formal charges against Kristi’s former live-in boyfriend, Chance Harruff. Harruff allegedly admitted being at Kristi’s residence and punching her at or about the time Kristi went unresponsive. Harruff was charged in Gregory County with Murder and a Stanley County jury convicted him of Second Degree Murder. He was sentenced to life.

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NOTABLE CRIMINAL CASES 12

6. State v. Gary Podzimek.Podzimek deceived an elderly gentleman into believing his 1976 Chevrolet pickup needed over $53,000 in repairs. He collected over $39,000 before the victims bank stepped in. Podzimek also filed fraudulent sales tax returns and failed to pay sales tax on the amount he collected. He was charged with 10 counts including Grand Theft by Deception, Deceptive Sales Practice, Filing Fraudulent Tax Returns, and Failing to Pay Sales Tax. After trial, Podzimek was convicted on all 10 counts. He was sentenced to 10 years in prison with 7 suspended.

7. State v. Sara Perry.Perry and her husband attempted to rob a local pharmacy for opioids. Perry waited in a getaway car while her husband attempted the robbery, using a tire iron as a weapon. While in the store, husband assaulted customers and took hostages. He escaped out of the back door. Perry picked him up in her car. Both were later apprehended. Perry was sentenced to three years in the State Penitentiary.

8. State v. Wade Standing Bear.While an inmate in the State Penitentiary, Standing Bear threw boiling hot water on two guards. He was convicted of Simple Assault Against a Law Enforcement Officer and being an Habitual Offender. He was sentenced to an additional 25 years in prison, with 10 of those years suspended.

Total MFCU Budget:• 25% State Funds $135,938.00• 75% Federal Funds $407,814.00

$543,753.00

Total Recoveries: $781,428.00 Return on Investment:

Recoveries ÷ Budget = $1.44, per $1 spent

B. Medicaid Fraud Control UnitFY18 13

IV. APPELLATE DIVISIONA. BRIEFS

14

0

20

40

60

80

100

120

140

160

180

FY13 FY14 FY15 FY16 FY17 FY18

139

169 163

143153 154

Cases Initiated

B. NOTABLE APPELLATE DECISIONS

Name of Case Summary Decision

Rhines v. Young, United States Supreme Court

Response to Petition for Writ of Certiorari challenging jurors for bias Petition denied

Yackel v. South Dakota Department of Corrections, United States Supreme Court

Response to Petition for Certiorari and Stay of Execution of Rodney Berget Petition and Stay request denied and Berget executed

Rhines v. Young, Eighth Circuit Court of Appeals

Brief and Argument in support of District Court decision denying habeas corpus relief Affirmed denial of habeas petition and ordered briefing on order denying motion for expert access for purposes of clemency. Waiting for oral argument on the expert access issue.

Rhines v Young, Federal District Court Response to motion to amend habeas petition by raising new issues and motion for expert access Motions denied

Piper v. Young, South Dakota Supreme Court

Appeal from the denial of petition for habeas corpus challenging the constitutionality of his guilty plea, conviction and sentence

Decision pending

State v. Bertram, 2018 SD 4, 906 N.W.2nd418

Bertram was convicted of first-degree murder for the shooting death of his fiancee Leonila Stickney. He was sentence to life imprisonment

Conviction and sentence affirmed

State v. Kryger, 2018 SD 13, 907 N.W.2nd 800

Kryger was convicted of first-degree murder, first-degree burglary, and first-degree rape and sentenced to life imprisonment for the death of Kari Kirkegaard.

Conviction and Sentence affirmed

State v. Quist, 2018 SD 30, 910 N.W. 2nd900

Quist was convicted of second-degree murder for the beating death of Ron Witchey. Conviction and Sentence affirmed

Miller V. Young, 2018 SD 33, 911 N.W. 2nd 644

Miller was convicted of second-degree murder and aggravated assault of his four-month old son and petitioned for a writ of habeas corpus

The South Dakota Supreme Court affirmed the denial of habeas relief

State v. Chase, 2018 SD 70, 919 N.W. 2nd 207

Chase was convicted of second-degree murder for the stabbing death of Jeremy Little 33 Conviction and Sentence affirmed

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C. NOTABLE PENDING APPELLATE LITIGATION

• Rhines v. Young, Eighth Circuit Court of Appeals• Graham v. Young, Eighth Circuit Court of Appeals • Berget v. Young, Circuit Court• State v. Lewandowski, South Dakota Supreme Court • State v. Quist, South Dakota Supreme Court• State v. Kryger, South Dakota Supreme Court• Miller v. Young, South Dakota Supreme Court• State v. Thomas, South Dakota Supreme Court• Brende v. Young, Eighth Circuit Court of Appeals • State v. Randle Jr., South Dakota Supreme Court

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V. DIVISION OF CRIMINAL INVESTIGATION

A. FY18 DCI Cases 17

0

100

200

300

400

500

600

700

800

900

1000

2011 2012 2013 2014 2015 2016 2017 2018

788

895

964 980 964928

963

846

Cases Initiated

B. DCI ComparisonFiscal Year 2013 - 2018

2018 2017 2016 2015 2014 2013DCI Cases 846 963 928 964 980 964Polygraphs 71 100 86 106 122 140Search Warrants 366 415 520 529 580 482Arrests 611 767 465 619 519 580Convictions 359 607 423 406 367 379Lab Cases 1,545 1,282 1,183 1,079 576 714Lab Items 9,831 10,277 11,942 8,508 6,071 7,219Lab Assignments 1,947 2,190 1,942 1,653 1,139 1,446Lab Assignments Completed 1,969 2,230 2,054 1,487 1,193 1,440Total DNA Database Samples 72,166 63,341 58,719 56,901 49,555 45,779Forensic/ Offender CODIS "hits" 160 249 156 135 77 67DNA "hits"/SD Cases Aided 119 232 131 119 65 48DNA "hits"/non-SD Cases Aided 41 17 28 22 16 21Registered Sex Offenders 3643 3,597 3,506 3,435 3,230 3,114Registered Sex Offenders Non-Compliant 53 45 31 25 37 33LET- Officers Participated in Basic Academy 136 144 135 138 120 112LET- Officers Certified/Pending in Basic Academy 128 134 122 130 115 108LET- Officers received Advanced Training 2,446 3,898 3,033 3,123 4,232 3,838LET- Advanced Training Courses Offered 80 70 70 87 43 49911 Basic Course-Certified 44 50 57 48 38 5224/7- PBT Participants 6,619 5,787 5,821 5,655 5,697 6,05624/7- PBT Tests administered 797,046 836,752 856,324 846,451 875,387 987,49624/7- SCRAM Participants 1,401 1,210 2,469 1,490 1,689 1,726ID- Backgrounds 31,737 35,393 29,123 25,593 26,072 24,295ID- Criminal Arrests Processed 32,788 31,850 31,589 29,928 28,650 27,973Grants Managed $5,781,927 $3,945,827 $5,785,987 $5,936,142 $5,399,371 $8,958,061DCI Agent Miles Traveled 1,079,808 991,295 1,080,356 1,001,467 1,083,559 940,784

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C. CONTROLLED SUBSTANCESMethamphetamine stats

CALENDAR YEAR

2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018

Meth labs 33 17 9 7 6 8 14 7 27 39 38 23 9 10 7

Meth arrests 700 724 522 312 162 311 443 402 669 1,229 1,517 2,125 2,687 3,390 3,684

Meth seized 14 lb 21 lb 25 lb 45 lb 38 lb 19 lb 23 lb 10 lb 48 lb 79 lb 22 lb 31 lb 64 lb 142 lb 101 lb

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Sheet1

200420052006200720082009201020112012201320142015201620172018

Meth labs33179768147273938239107

Meth arrests7007245223121623114434026691,2291,5172,1252,6873,3903,684

Meth seized14 lb21 lb25 lb45 lb38 lb19 lb23 lb10 lb48 lb79 lb22 lb31 lb64 lb142 lb101 lb

D. 2018 Methamphetamine20

E. Drug Case Manager ProgramDCI Technical Services Unit (TSU) 21

• Project of the DCI Technical Services Unit (TSU)• Began July 1, 2017• 11 FTE

• 2018 Case Manager Program activity:

• 30 cases coordinated 102 guns seized• 97 arrests 8 vehicles seized• 119 lbs. Meth $316,439 cash seized• 5.7 lbs. Cocaine 40 Pen Registers/Trap & Trace (PRTT) • 1.7 lbs. Heroin 13 E911 Requests (Phone Ping)

F. Emerging Trends - HeroinDCI - DTF Investigated Cases

0

10

20

30

40

50

2013 2014 2015 2016 2017 2018

37

12

2017

41

Heroin Cases

Heroin continues to be a drug of concern in South Dakota. The DCI and UNET DTF reported 34 cases involving heroin in 2018. Additionally, DCI Agents working with Sioux Falls PD and Minnehaha Co. SO report an increase in heroin cases that are not reflected in the above totals.

3 cases investigated by DCI in 2018 involved overdoses, leading to 1 death.

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G. Emerging Trends - FentanylDCI Investigated Cases

• In 2018 the DCI investigated 10 cases involving Fentanyl.

• Fentanyl investigations this year included 2 overdoses, leading to 2 deaths of subjects in Roberts and Beadle County.

• Fentanyl poses a unique danger to law enforcement and other first responders, as even a very small amount of this potent drug coming into contact with the skin or being inhaled in an accidental exposure can cause an overdose. Many law enforcement agencies and first responders across the state, including DCI, are now carrying NARCAN to administer in drug overdose emergencies.

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H. Emerging Trends - FentanylSignificant SFADTF Case

Corrod Phillips Investigation-Corrod was a source of heroin/fentanyl and was responsible for four overdoses in Sioux Falls, one of which was fatal. This case was investigated by members of the Sioux Falls Area DTF.

The DCI Technical Services Unit and Case Manager program assisted the SFADTF with a Pen Register/ Trap Trace (PRTT) for Corrod Phillips phone.Phillips was indicted in a federal heroin conspiracy case.

Phillips was tracked to the Sioux Empire Mall. While conducting surveillance, the SFADTF witnessed a hand to hand transaction with Phillips and they conducted an arrest of Phillips. Phillips was found to be in possession of a can safe and $500. The can safe contained baggies of heroin weighing 8 grams and some 6 grams of crack cocaine.

Phillips is believed to be responsible for approximately 4 overdoses and a heroin related death.

• Pen Register Total Heroin seized: 8 gramsTrap and Trace: 1 Total Crack Cocaine seized: 6 grams

• Federal indictments: 5 Total Money seized: $4,433

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I. Internet Crimes Against Children –ICAC 25

327 - Total Investigations415 - Cybertips Received289 - Subpoenas Issued162 - Search Warrants Executed

Investigations Digital Evidence Examinations381 - Technical Support288 - Hard Drives977 Cell Phones387 Other Digital Media356 Preview Examinations285,031 Gigabytes of Data Examined

2018

Community Outreach450 – Law Enforcement/Prosecutors trained2159 – Other Professionals trained221 – Community/School Outreach 17,588 – Community members trained

J. Elder Abuse

Update on Progress to date –• Referrals – 552• Outreach/Training –

• 11 events • 1263 people

• In CY 2018 DCI investigated: • 26 cases of Elder Abuse Financial Exploitation • 2 cases of Elder Physical Abuse/Neglect• 1 case of Disabled Adult Physical Abuse/Neglect

• 8 information reports were made on referrals that were investigated but did not rise to the level of criminal cases

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K. Elder & Disabled Adult Abuse2013-2018

0

5

10

15

20

25

30

2013 2014 2015 2016 2017 2018

4 5 3

15

2326

32

4

2

1 3

2

1 Disabled Adult -PhysicalAbuse/Neglect

Elder - PhysicalAbuse/Neglect

Elder/Disabled Adult- FinancialExploitation

calendar year

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L. Officer Involved Shootings

• In 2018 there were three Officer Involved Shootings• Box Elder PD• Highway Patrol• Pennington Co. SO

• Since 2009 there have been:• 35 Officer Involved shooting incidents resulting in:• 19 subject fatalities• 2 officer fatalities

• Offenders have tested positive for drugs and/or alcohol in 31 of the Officer Involved shooting incidents

• Offenders have made suicidal statements, attempts and/or had a reported mental illness in 28 incidents

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M. DRUG CONTROL FUND DISTRIBUTED TO LAW ENFORCEMENT

$0

$100,000

$200,000

$300,000

$400,000

$500,000

$600,000

$700,000

$800,000

2011 2012 2013 2014 2015 2016 2017 2018

$109,975

$669,108 $643,722

$455,661$389,251

$795,448

$686,160

$644,041

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calendar year

N. DNA / Serology 30

0200400600800

1000120014001600

2011 2014 2015 2016 2017 2018

511

687

1026

1258

1496 1495

102.2 114.5171 179 214 214

Bio assignments Assignments per examiner

In 2013 and 2014 the SDFL utilized grant funds to upgrade instrumentation, increasing productivity.

- 3500 Genetic Analyzer – purchased in 2013 and online in early 2014 - QIAgility Robot – purchased in 2014 and online in 2015

In 2018 grant funds were used to purchase additional instruments in order to maintain productivity

5 examiners 6 examiners 6 examiners 7 examiners 7 examiners 7 examinerscalendar year

O. 2018 CODIS Hits

#1 In the fall of 2018, a series of vehicle thefts occurred in eastern SD. Cigarette butts were collected from recovered vehicles that confirmed the identity of a suspect who had been arrested in a stolen vehicle in Wyoming.

#2 A Sioux Falls resident reported that an unidentified male had attempted to rape the victim. DNA evidence collected from the victim led to the identification of the suspect.

#3 A burglary occurred in the night time hours at a Lawrence County home. Suspect had gained access through the roof of the home and burglarized it. DNA evidence was recovered at the scene and identified a suspect for investigators.

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P. SAVIN - 2018

• Program launched to the public in Aug. 2016• 2 FTE• 2865 have registered to receive notifications

• Information directly fed to SAVIN from UJS, DOC and the below county jail systems• Current Direct Jail Feeds

• Beadle Lawrence• Brookings Meade• Clay Minnehaha• Codington Pennington• Davison Union• Hughes Yankton• Lake

• Testing Direct Jail Feeds Pending Direct Jail Feeds • Brown Brule• Walworth Roberts

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Q. REACHRespond Educate Advocate Counsel Heal

• REACH is a regional multidisciplinary team (MDT) in Watertown, SD, developed at the recommendation of the Jolene’s Law Task Force Committee. DCI Agent as Project Leader who dedicated 385 hours, 18.5%.

• Total individuals seen in clinic in Watertown: 123 • Sexual Abuse: 90 Children, 1 vulnerable adult • Physical Abuse: 33 children • Witness to Violence: 22 children • Drug Endangered: 21 children • Neglect: 16 children

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Office Of �ATTORNEY GENERALI. LRC BRIEFINGSlide Number 3Slide Number 4II. CIVIL LITIGATION�A. NOTABLE CIVIL LITIGATION FY18��B. CASES HANDLED IN FY18C. CIVIL PRISONER LITIGATIOND. CONSUMER CONTACTS �� Phone calls/E-Mail/helpline/correspondenceE. FY18 TOBACCO ACTIVITIES�F. 2018 CIVIL DIVISION SUMMARY� Amount Recovered/Preserved� $200.90 MillionIII. CRIMINAL DIVISION � A. NOTABLE CRIMINAL CASES FY18 NOTABLE CRIMINAL CASES� NOTABLE CRIMINAL CASES B. Medicaid Fraud Control Unit� FY18� IV. APPELLATE DIVISION� A. BRIEFS�B. NOTABLE APPELLATE DECISIONSC. NOTABLE PENDING APPELLATE LITIGATIONV. DIVISION OF CRIMINAL INVESTIGATION��A. FY18 DCI CasesB. DCI Comparison� Fiscal Year 2013 - 2018C. CONTROLLED SUBSTANCES� Methamphetamine stats�D. 2018 MethamphetamineE. Drug Case Manager Program� DCI Technical Services Unit (TSU)�F. Emerging Trends - Heroin � DCI - DTF Investigated CasesG. Emerging Trends - Fentanyl � DCI Investigated Cases H. Emerging Trends - Fentanyl � Significant SFADTF CaseI. Internet Crimes Against Children –� ICACJ. Elder Abuse K. Elder & Disabled Adult Abuse�2013-2018 L. Officer Involved Shootings M. DRUG CONTROL FUND � DISTRIBUTED TO LAW ENFORCEMENTN. DNA / SerologyO. 2018 CODIS Hits P. SAVIN - 2018Q. REACH � Respond Educate Advocate Counsel Heal