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No Threat, No Harassment, No Heavy Breathing… Only Thin Evidence That Goss Spoofed Noem’s Number

Former KSFY/KOTA Pierre reporter Austin Goss lost his job this week because the Stanley County Deputy State’s Attorney Anna E. Maher has charged him with one Class 1 misdemeanor stemming from one dumb prank call placed back in January to former SDGOP chairman Dan Lederman. But what law does the state allege Goss broke, and does the state have a case?

Stanley County Deputy State's Attorney Anna E. Maher, State v Goss: Complaint and Request for Arrest Warrant, filed 2023.05.03, posted by KSFY 2023.05.04.
Stanley County Deputy State’s Attorney Anna E. Maher, State v Goss: Complaint and Request for Arrest Warrant, filed 2023.05.03, posted by KSFY, 2023.05.04.

The formal charge in the complaint and request for arrest warrant (prepared May 2; filed May 3) is one count of “Making Threatening, Harassing, or Misleading Contacts (Class 1 Misdemeanor), in violation of SDCL 49-31-3(5)(b), in that Defendant did, contact another person [Lederman]…, and in doing so, intentionally caused to be displayed as caller identification a fictitious or misleading name or telephone number of another person [Noem]… who has not granted Defendant the right to display that other person’s name or phone number”.

The state mis-cites the statute under which Goss is being charged; it is SDCL 49-31-31, not SDCL 49-31-3. The full statute reads as followed (I bold the clause the state meant to specify as the basis for charging Goss):

49-31-31. Contact by telephone or other device–Threatening, harassing, or misleading contacts–Penalty.

It is a Class 1 misdemeanor for a person to use a telephone or other electronic communication device for any of the following purposes:

  1. To contact another person with intent to terrorize, intimidate, threaten, harass, or annoy such person by using obscene or lewd language or by suggesting a lewd or lascivious act;
  2. To contact another person with intent to threaten to inflict physical harm or injury to any person or property;
  3. To contact another person with intent to extort money or other things of value;
  4. To contact another person with intent to disturb that person by repeated anonymous telephone calls or intentionally failing to replace the receiver or disengage the telephone connection; or
  5. Except as allowed in § 49-31-31.2, to contact or to attempt to contact another person and, in so doing, intentionally cause to be displayed as caller identification, a fictitious or misleading name or telephone number:
    1. To defraud, cause harm, or wrongfully obtain anything of value from another person; or
    2. Of another person who has not granted the person the right to display that other person’s name or phone number, as applicable.

It is a Class 1 misdemeanor for a person to knowingly permit a telephone or other electronic communication device under his or her control to be used for a purpose prohibited by this section.

Despite Lederman’s ridiculous assertion to state law enforcement (documented in DCI Special Agent Charles T. Swanson’s April 24 Affidavit of Probable Cause) that the “tone and tenor” of the plainly fake and comically overacted prank call “caused him concern for his safety”, the state is not charging Goss with threatening to inflict physical harm or injury to Lederman’s person or property. The state is not charging Goss with terrorizing, intimidating, threatening, or annoying Lederman by using obscene or lewd language or saying anything sexually suggestive. (Anyone who does suggest anything sexual with Dan Lederman should be locked up for therapy.) The state is not charging that Goss called to extort Lederman. The state is not charging that Goss disturbed Lederman with repeated phone calls. The state is not charging Goss with using Noem’s number to defraud, harm, or rob Lederman.

In citing SDCL 49-31-31(5)(b), the state is pointing past all those other possible crimes and alleging that the only point at which Goss broke the law was in allegedly typing Kristi Noem’s phone number into the “Send from” field on PrankDial.com without her permission and thus causing PrankDial.com to send the prank call to Lederman’s phone with Kristi Noem’s personal phone number displayed as the incoming caller.

So to be clear, had Goss punched his own number into the “Send from” field, and had his own number appeared as the incoming caller on that January 22 prank call to Lederman’s phone, Goss wouldn’t be facing any charges.

If you have Dan Lederman’s phone number, and you send him the “Mafia Guy Got Vaccines” call from PrankDial.com, and if you enter your own number as the number to display when Dan gets the call, you will not be breaking the law.

If you decide to send Dan this call, but first you ask a friend if you can use his number instead of yours for the caller identification, and your friend says, “Heck yeah! Let’s prank that putz!” neither of you will face a weekend in the Stanley County Jail.

Now please don’t misunderstand me: I most definitely am not encouraging everyone who reads this blog and who has Dan Lederman’s phone number (a subset of the population that is not as small as you might think) to send Lederman another “Mafia Guy Got Vaccines” call with their own numbers or a consenting buddy’s number, because such a flood of dozens of repetitive prank calls would only annoy Dan, achieve no practical social justice, and invite Attorney General Marty Jackley to look for a way to hang me for orchestrating telecommunicative mischief. But if a whole bunch of you readers made the same dumb prank call to Dan Lederman and didn’t disguise your numbers, none of you would be breaking the law. And if I did orchestrate such a crank-call campaign, I might not even be breaking SDCL 49-31-31, because it appears to apply only to the person who uses the phone or other electronic device to contact Lederman. If I get you to call Lederman and annoy him but I don’t contact him myself, SDCL 49-31-31 doesn’t apply to me…

…which leads me to read the statute again:

It is a Class 1 misdemeanor for a person to use a telephone or other electronic communication device…to contact or to attempt to contact another person…to contact or to attempt to contact another person and, in so doing, intentionally cause to be displayed as caller identification, a fictitious or misleading name or telephone number…
of another person who has not granted the person the right to display that other person’s name or phone number, as applicable.

SDCL 49-31-31 applies to the person who makes the call. According to the probable cause affidavit, on January 22, 2023, Austin Goss did not contact Dan Lederman. PrankDial.com contacted Dan Lederman. PrankDial.com displayed Kristi Noem’s phone number to conceal its identity. So if Austin Goss committed a crime, it wasn’t under SDCL 49-31-31, because he didn’t contact Lederman on January 22.

Even if that line of reasoning is incorrect—if, say, the state can argue that “contact” includes “direct another person or entity to place a call to”—the state does not appear to have evidence that Austin Goss directed PrankDial.com to call Dan Lederman. Special Agent Swanson says in the probable cause affidavit that the IP address used to order the prank call was associated with Goss’s home Midco Internet service:

I provided a subpoena to PrankDial Customer Support, and learned that the IP Address used to make the prank call was: 2605:4a80:a300:f1e0:7871:c904:35c5:3be2 on 1/22/23 at 20:27:59. A search of the American Registry for Internet Numbers (ARIN) shows that the IP Address used is registered to Midcontinent Communications.

I then obtained a subpoena for subscriber records related to the Midcontinent Communications IP Address from the Hughes County State Attorney’s Office which was served to Midcontinent Communications.

On March 30th, 2023, Midcontinent Communications provided me with their production of records in response to my subpoena. Upon reviewing these records, I observed the IP Address in question to have been utilized by the account of Austin Goss.…

Upon interviewing Austin, I learned that he… has Midcontinent Communications provided internet service, and his home Wi-FI is password protected. Meaning that the use of his home internet would be restricted to himself and those whom he has personally allowed access, such as his wife or two-year-old child [DCI S.A. Charles T. Swanson, State v. Goss: Affidavit of Probable Cause, 2023.04.24, posted by KSFY, 2023.05.04].

Wait a minute: DCI found actual child porn on billionaire T. Denny Sanford’s cell phone, but all Sanford’s lawyers had to do was to assert that someone hacked his phone and poofskies! no charges. DCI hasn’t searched Goss’s phone or his computer; they’ve just found an IP address associated with Goss’s home Internet service, and they’re telling us that because Goss has a password on his router, no one could have hacked his gear?

Special Agent Swanson adds that Goss is a journalist, knows the Governor, and knows Lederman. He cites has Lederman’s claim that Goss “will occasionally text him… snide or rude remarks.” And he asserts that Goss dislikes Lederman. From all that, Special Agent Swanson divines probable cause that Goss sent Lederman the prank call.

But why does being a journalist count toward probable cause? Wouldn’t a journalist have good reason not to do what the state charges him with doing?

And aren’t there hundreds, maybe thousands of other people who know both Kristi Noem and Dan Lederman, and wouldn’t a significant chunk of the people who really know Noem and Lederman dislike them and thus have at least as much motive to annoy them as Swanson imputes to Goss?

All of these points disappear if Austin Goss steps out on social media (Twitter account still there!) and says, “Yup, I masked a prank call with Kristi Noem’s phone number without Kristi Noem’s permission.”

But there’s no confession in the probable cause affidavit, and an IP address alone does not prove guilt. If the state treats the evidence against Goss as circumstantially as it treated the evidence against Sanford, Goss should be able, à la Sanford and à la Noem, that he was hacked and force the state to say, “Oh well, nothing prosecutable here.”

And even if the state keeps prosecuting, their thin evidence supports only the thinnest charge under SDCL 49-31-31, that the defendant spoofed Kristi Noem’s phone number without her permission. The state has zero evidence of threats, harassment, fraud, or anything similarly grave. And depending on how the defense responds, the state may not even have enough evidence to prove its spoofing charge.

38 Comments

  1. Donald Pay 2023-05-06

    I get a lot of spoof calls. I called our past Republican AG’s office, and, while they took my information, they said there is likely no way to find them. I admit I didn’t hyperventilate and put on an act that I felt threatened. This crisis acting is a trick Noem and the Republicans have perfected to get others to do their bidding.

  2. grudznick 2023-05-06

    Nearly half of the calls that come in to grudznick’s phone which say “Good Friend Bob” turn out to not be my good friend Bob. I just quit answering all of them because Bob sends me letters through the real mail lady. Sometimes postcards, too, from Hot Springs. Usually those arrive on Thursdays. His phone might be hacked but I know that handwriting well and there is no doubt it’s from the real Bob.

  3. grudznick 2023-05-06

    Mr. H, you seem late to the game on this Goss business. Mr. PP was all over it days ago. Have you read all of his news coverage?

  4. grudznick 2023-05-06

    Mr. H, you switched a word out of order when you typed:

    Wouldn’t a journalist have good reason not to do what the state charges him with doing?

    You should have placed the word “good” in front of “journalist.”

  5. Mark Anderson 2023-05-06

    Well your Governor Kristi blames the January 6th committee and she never lies.

  6. larry kurtz 2023-05-06

    Selective enforcement in Republican South Dakota? From Bill Janklow to Mark Meirerhenry to Judge Larry Long’s cover up of Brady Folkens’ wrongful death: no wonder people hide cash in my home state because pay to play is the way.

  7. All Mammal 2023-05-06

    Our packaged cupcake governor committed this same crime, possibly hundreds of times during her last campaign race when folks were receiving robo texts and calls from her fake pac friends in Ohio. The leaked recording of the call center’s manager proved they were hired from a candidate in South Dakota. 605 area codes showed up on caller ids even though the calls were originating direct from Ohio. KN lied about not being involved.

    She also had several billboards pasted along roadsides that were threatening her rivals’ livelihoods during the AG Ravnsborg debacle. She didn’t claim responsibility for those either.

    She might have even used the USPS to disseminate lies about Jaimie Smith and President Biden under the guise of her fake pac. Whatever she tattles on other people for indicates what she is up to. Never vote for a tattletale.

  8. larry kurtz 2023-05-06

    Little wonder Bob Mercer can’t do serious journalism in South Dakota because he was warned to stick to puff pieces long ago meanwhile, the exodus of talent from my home state continues. Heads up, Pfankuch, Tupper and Whitney because you’re next on the Noem hit list.

  9. Arlo Blundt 2023-05-06

    It is another tempest in the Governor’s Tea Pot.

  10. larry kurtz 2023-05-06

    Remember what Republicans did to Denise Ross and Laura Sullivan when they uncovered the Republican stink in South Dakota? It’s coming for every journalist doing their jobs in red states.

  11. larry kurtz 2023-05-06

    There are hundreds of little newspapers in hundreds of stupid little towns in red states doing the grunt work reporting the news much of which isn’t fit to print.

    I don’t really like Cory all that much but he’s doing the work that needs to be done.

    Bless his heart.

  12. grudznick 2023-05-06

    I remember that hateful Ms. Ross lady. She sure sunk her own boat with her libbie rage and fake journalism.

    Didn’t she run a “blog” for a couple of weeks?

  13. larry kurtz 2023-05-06

    The purge of talent from South Dakota is nearly complete thanks to people like Doyle Estes, Stan Adelstein and Ted Hustead who just stand by and watch it all go to right in the sh!tter.

  14. grudznick 2023-05-06

    Lar, those are 3 fine fellows, indeed.

  15. larry kurtz 2023-05-06

    That Dan Lederman has purposely chosen to become sexually repugnant is a discussion whose time is long overdue.

  16. grudznick 2023-05-06

    For reasons most of us don’t want to know, grudznick’s close personal friend Lar is stating here, in his blogging, that he is no longer sexually attracted to this Mr. Lederman fellow.

    Slightly disturbing, but not unexpected.

  17. larry kurtz 2023-05-06

    That Michelle Powers can share a bed with a slobbish slug is perplexing as well.

  18. DaveFN 2023-05-06

    Assume Austin Goss was strictly following Kant’s categorical imperative, namely, that one should act only in such a manner that everyone take the very same action.

    And assume everyone of us therefore did the same as Goss.

    Would keep Maher busy and make Noem and Lederman look all the more foolish and pedantic than they thus far have made themselves look.I

    Is Austin a Kantian? Are we?

  19. DaveFN 2023-05-06

    “Act in such a manner by provoking and exposing foolish and pedantic actions such that your action would thereby become a universal law.”

    Austin Goss deserves sainthood.

  20. grudznick 2023-05-06

    Young Mr. Goss, who is kinda funny looking, is a gentlemanly soul who is just very young and misguided.
    Plus, he probably pissed off some of the wrong people. Lesson learned.

  21. DaveFN 2023-05-06

    To put an even finer, more explicit point on it:

    “Act in such a manner to elicit and thereby expose just how pedantic and foolish public officials can be and actually are, in order that your action should become a universal law to expose them all for same.”

    Good going, Austin! You are a proverbial scapegoat whose sacrifice is meant to do nothing but silence us all. Fat chance, that, Noem. Dream on. Thanks, Austin.

  22. DaveFN 2023-05-06

    “Now please don’t misunderstand me: I most definitely am not encouraging everyone who reads this blog and who has Dan Lederman’s phone number (a subset of the population that is not as small as you might think) to send Lederman another “Mafia Guy Got Vaccines” call with their own numbers or a consenting buddy’s number, because such a flood of dozens of repetitive prank calls would only annoy Dan, achieve no practical social justice, and invite Attorney General Marty Jackley to look for a way to hang me for orchestrating telecommunicative mischief.”

    Proving just how pedantic they are by how they can be.

  23. sx123 2023-05-07

    As I mentioned in prior post: America isn’t fun anymore.

    Can’t even prank a call without getting in trouble with the law.

  24. Jake 2023-05-07

    Old Grudz is definitely off his codger rocker today, eh?

  25. LCJ 2023-05-07

    Larry, how much weed do you smoke before you get on your computer?
    Good thing you grow your own or you would be broke.

  26. chris 2023-05-07

    Ok, great sleuthing everybody! Now can we figure out exactly who it was who “hacked” dear old T-Denny Sanford’s phone?

  27. Cory Allen Heidelberger Post author | 2023-05-07

    Grudz, I wouldn’t say the SDGOP spin machine was all over it. Pat simply had the advantage of his sponsors and their friends in the prosecutors office sending him the documents early so he could throw them up, say a couple easy snide comments, and then follow up by copying what the rest of the press was saying. I took some time to read the documents, check the law, listen to the actual recorded prank text, and then provide some original analysis of what the state is actually charging the reporter with and how weak the evidence is, they have to hang this prosecution on. as far as I know, Dakota Free Press is the first journalistic outlet anywhere to do this kind of analysis. You’re welcome.

  28. Cory Allen Heidelberger Post author | 2023-05-07

    All Mammal makes another good point about how the real story here may not be that a journalist played a dumb prank and maybe broke the law in doing so, but that statue, prohibiting, misleading calls is being selectively applied, and not applied at all to the governor, who appears to have made hundreds of misleading calls in an attempt to affect political outcomes in the state. the prank calling question in the Goss case is nothing more than a prank, something that annoyed one ex-political official, but which should’ve had no impact on policy, making or the public interest. Christy, norms, telemarketing calls sought to influence the impeachment process. Why hasn’t DCI subpoenaed the electronic records related to the origins of those calls?

  29. Cory Allen Heidelberger Post author | 2023-05-07

    Put Grudz’s and All Mammal’s comments together: the SDGOP spin blog rushed to press with the story the Governor wants to tell. I took a moment to review the evidence and think through the situation and realize that the prank call itself may be the least part of the story and it’s a real stories here maybe the governor’s lie about the alleged hacking of her phone, and the apparently selective application of South Dakota law, and the evidentiary burden necessary to prosecute.

  30. bearcreekbat 2023-05-07

    I am, and certainly have been annoyed by the Governor’s unsolicited calls!

  31. Donald Pay 2023-05-07

    Cory is correct here. The crimes that are more problematic here are selective enforcement of the law, and Noem and Lederman crisis acting in order to secure an investigation. Indeed, Goss is not chargeable under the statute cited. The self-appointed Queen and full on “crisis actress” does far worse and doesn’t get charged. She engaged in blatant fake news which appears to have been a fraudulent attempt to secure some sort of legal action What we don’t know for sure is whether she lied to law enforcement. If they talked to her, I’d like to see all the notes from law enforcement and/or any transcript from that interview. I don’t know about you, but I’m tired of the criminal political class getting away with such shenanigans.

  32. e platypus onion 2023-05-07

    Does it seem as if magts are doing their damndest to destroy America by making complete mockeries of the 3 co-equal branches of gubmint? They are complete freaking idiots and have no business being in charge of anyhing anywhere.

  33. grudznick 2023-05-07

    The first real journalist to really consider everything involved was young Mr. Goss, hisownself. One must wonder how surprised he was when the Deputies raided his headquarters or knocked his house’s front door in with a door ram. But make no mistake, Mr. Goss snickered for a few weeks but then started getting squirrelly when he knew the long arm was reaching out for his scrawny neck. Right now he’s working on his own independent journalist outing, covering only county business because he will probably never again get a response from any state official.

  34. larry kurtz 2023-05-07

    At his blog, Dakota War College thicc Brookings blogger Pat Powers routinely smears principled conservatives who don’t bend the knee to the South Dakota Republican Party establishment. Pernicious Pug Powers, who makes a stopped clock look like a well-greased machine, salts his blog comment section with a seemingly infinite variety of aliases that threaten or jeer his political enemies. That SDGOP condones, encourages and even pays Pat Powers to threaten, malign, bully and libel women while their party standard-bearers preach the protection of women is a measure of hypocrisy that strains human gauges. He has long been banned from mine and other South Dakota related sites because of a constant stream of bigotry, misogyny and other hate speech.

  35. larry kurtz 2023-05-07

    Oh, and LCJ? There isn’t enough cannabis on the planet to make me adequately comfortably numb to the sh!t hole my home state has become.

  36. Arlo Blundt 2023-05-07

    The Governor’s complaint does border on spurious…but she leapt at the opportunity to trumpet another non issue and grab some ink and maybe a puff photo of herself for the print media and blogs. With apologies to the Dude, I will quote the Eagles, to explain our Governor’s behavior “It’s a certain kind of Fool who likes to hear the sound of his (her) own name.” Certain Kind O Fool” –Desperado Album.

  37. Arlo Blundt 2023-05-07

    “Certain Kind of Fool” also known as “It wasn’t for the Money” was written by Nebraska’s own Randy Meisner after a discussion with Jackson Browne about the Dalton Gang..In the studio music and words were added by Frey and Henley. Recorded in London, and produced by Glyn Johns, it is on the Eagles “twangiest” album, Desperado. The Governor is quite Twangy as well, and the album, on a relistening, more or less sums up her career.

  38. grudznick 2023-05-07

    I don’t know which one of you fellows put grudznick’s number and that of my close personal friend Lar’s into that silly website but golly that was funny as all get out. I was feared for my life at first, then realized it was just a wanker.

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