State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1407

State of Minnesota,
Respondent,

vs.

Sedale Raymond Roloff,
Appellant.

Filed July 27, 2020
Reversed and remanded
Ross, Judge

Ramsey County District Court
File No. 62-CR-17-57

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Slieter, Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
A jury heard that Sedale Roloff was ineligible to possess firearms or ammunition
when officers found him—a gun in his hand and a bullet in his pocket—arguing with a
woman on the street. Roloff and others testified that the woman brought the gun to
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intimidate him and that he slapped the gun from her hand, struggling with her over the gun
and its ammunition. The district court denied Roloff’s requests for self -defense and
necessity instructions, reasoning that a self -defense instruction was factually unsupported
and that Roloff failed to timely notify the state of his necessity theory. The jury found
Roloff guilty on both counts, and the district court entered two convictions and imposed
concurrent prison terms. Roloff challenges the district court’s jury -instruction decisions
and its imposition of two convictions and sentences. We conclude that the district court
abused its discretion by failing to give a self-defense instruction and by rejecting Roloff’s
necessity-instruction request based solely on his failure to timely notify the state. Because
these errors were not harmless beyond a reasonable doubt, we reverse and remand for a
new trial.
FACTS
The state charged Sedale Roloff with two counts of possession of a firearm or
ammunition by an ineligible person, see Minn. Stat. § 624.713, subd. 1(2) (2016), alleging
generally that, in December 2016, police officers saw Roloff with a gun in his hand and
discovered a bullet in his pocket while Roloff was ineligible to possess either.
Pretrial Proceedings
Roloff notified the state in May 2017 of his intent to rely on a self-defense theory at
trial. He also asked the district court in June to dismiss the charges for lack of probable
cause. The state opposed the request, relying on the criminal complaint, police reports, and
patrol-vehicle video recordings. Those sources presented the following circumstances.
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On December 31, 2016, J.D. (Driver) drove her friend A.R. (Ex-Girlfriend) to meet
Roloff. When they arrived, Roloff pointed a gun at them. Driver dialed 9-1-1. Police
arrived to find Roloff holding a gun. They arrested him and discovered a bullet in his pants
pocket. Ex-Girlfriend initially said that the gun was hers, that she had brought it to confront
Roloff about cheating on her, and that the gun had fallen fr om her hand when he wrested
it from her. But she later said that she had n ever touched the gun and that Roloff had
dropped it when police arrived. Ex-Girlfriend and Driver testified at the hearing.
Ex-Girlfriend claimed that she had purchased the gun and brought it intending “to scare
someone,” and that Roloff had tried to take the gun away so she would not harm him.
Driver also said that Ex-Girlfriend had brought the gun there and that she saw Roloff
“trying to get [the gun] out of [ Ex-Girlfriend’s] hands” before Driver drove around the
corner to call the police. She claimed she had reported falsely to the police that Roloff had
the gun because she “was scared to get [Ex-Girlfriend] in trouble.” The district court denied
Roloff’s motion to dismiss.
On March 15, 2019, three days before the scheduled jury trial, Roloff notified the
state of his intent to present a necessity defense. During a March 18 pretrial hearing on the
first day of trial, he framed his theory of the case to support a self-defense theory as follows:
“[H]e was confronted with an intoxicated, jealous, angry ex -girlfriend with a gun, and he
used the force necessary of knocking it out of her hand, trying to get it away from her, to
protect himself.” He said that he expected the evidence to show he “had to get [the gun]”
in order to defend himself. The district court concluded that Roloff failed to make a prima
facie showing justifying a self -defense instruction. Roloff retreated to his request for a
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necessity instruction, which the district court denied, citing the untimeliness of Roloff’s
notice.
Jury Trial
St. Paul Police Officer Vincent Adams testified that he and his partner Officer Eric
Flaherty were dispatched to an intersection at about 2:45 a.m. on a report of a man
brandishing a gun. Officer Adams arrived and saw Roloff and Ex-Girlfriend, with Roloff
holding a black handgun. Officer Adams ordered him to drop the gun, and Roloff did.
Officer Mike Biagini testified that he arrived after Roloff’s arrest. He searched
Roloff, finding a .45-caliber bullet in his pocket.
Sergeant Mark Reding testified that he later interviewed Roloff. During the
interview, Roloff admitted to having possessed a bullet in his pocket and knowing he was
violating the law.
Outside the jury’s presence, the prosecutor told the court that she understood that
Roloff’s defense witnesses would not be testifying to facts supporting a self-defense theory.
The district court said that defense counsel would be allowed to ask the defense witnesses
“whatever questions [she] believe[d were] relevant for [her] theory of the case, short of
asking them if they believed that Mr. Roloff needed to defend himself from their actions
on that date.”
Ex-Girlfriend testified that, on the evening of December 30, 2016, she became
angry when she discovered that Roloff was seeing another woman, A.G. (Girlfriend).
Ex-Girlfriend drank heavily throughout the night, then began calling and texting Roloff
and Girlfriend. She rousted a sleeping Driver to demand a ride to Girlfriend’s house. When
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they arrived, Ex-Girlfriend removed from her purse a gun she had purchased and
approached Roloff, pointing the gun at him. Roloff slapped the gun out of her hand and the
magazine came loose, she said, and she and Roloff began “tussling around on the ground”
for the gun and the magazine. The police soon arrived and Ex -Girlfriend “blacked out,”
having no recollection of events until later that night when she was at the police station.
Ex-Girlfriend testified that she had insistently told police the gun was hers but that an
interviewing officer turned off the recording device and told her that if she wanted to go
home to see her son, she would need to say that the gun belonged to Roloff. So she did.
Driver testified that she drove an angry Ex-Girlfriend to Girlfriend’s home. They
arrived and saw Roloff waiting outside. Ex-Girlfriend exited the car, leaving her purse
behind, and Driver noticed she had a gun in her hand. Driver pulled the car forward and
called the police. She told the jury that she told police that Roloff had a gun only because
she did not want Ex-Girlfriend to get in trouble.
Roloff took the stand in his own defense, telling the jury that Ex-Girlfriend became
enraged and violent when she saw on Facebook that Roloff was in a relationship with
Girlfriend. Ex-Girlfriend began calling and sending text messages to Girlfriend and Roloff,
and sometime around 2:00 a.m., Ex-Girlfriend and Driver arrived at Girlfriend’s house.
Roloff went outside to defuse the situation and saw Ex-Girlfriend exit the car. He said that
he saw a black handgun in her hand. Ex-Girlfriend yelled at Roloff, telling him she hated
him. Roloff said that she raised the gun toward him, at which point he swatted it from her
hand. The magazine dislodged from the gun, and both gun and magazine fell to the ground.
Roloff tried to get the gun and ammunition to protect himself, but, he claimed, he was able
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to get only one bullet from the ground. He said that he and Ex-Girlfriend continued shoving
one another until the police arrived. The officers ordered Roloff to put his hands up, and
he complied. Roloff denied ever possessing the gun.
The parties rested their cases and, before closing arguments, the prosecutor asked
the court about the status of Roloff’s proffer of a self -defense theory. The district court
reiterated, “[T]he Court has denied the defense’s request to assert the affirmative defense
of self-defense. It is this Court’s expectation that any closing arguments using the words
‘self-defense’ surrounding the notion that Mr. Roloff was defending himself would be in
direct contradiction with the Court’s ruling.” Roloff urged the district court to reconsider,
arguing that he had presented sufficient evidence to support his self -defense theory. The
district court rejected Roloff’s argument, prohibiting any discussion of self -defense in
closing. It reasoned that the facts might support a necessity defense instead, but it refused
to include a necessity instruction because Roloff gave his notice of the defense too late.
The jury did not believe Roloff and the women’s testimony that Roloff never
possessed the gun. It found him guilty of unlawfully possessing a firearm and ammunition.
The district court adjudicated convictions on both counts and imposed sentences of
concurrent 60-month prison terms, stayed on probationary conditions for a period of five
years, with 365 days to be served in the workhouse. Roloff appeals.
D E C I S I O N
Roloff argues that he is entitled to a new trial because the district court abused its
discretion by precluding instructions on self-defense and necessity. He alternatively argues
that the district court erroneously entered a conviction and imposed a sentence for
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more than one crime because both offenses arose from a single course of conduct.
We reverse and remand on the defense issues, and we decline to reach the
multiple-convictions-and-sentences issue.
I
The state asks at the threshold that we consider Roloff’s self -defense and necessity
arguments only as they regard unlawful possession of the bullet, not unlawful possession
of the gun. We will not so limit the issue because we are unconvinced by the state’s
assertion that Roloff made his self -defense and necessity requests only concerning the
ammunition offense. The state relies primarily on the prosecutor’s statements attempting
to clarify her understanding about Roloff’s theory of the case, not on Roloff’s counsel’s
statements. The state emphasizes that the prosecutor linked the defenses “mainly to count
two, possession of the ammunition” and that Roloff’s counsel failed to correct the
prosecutor’s understanding. T he state cites no authority for its implied premise that a
defendant is bound on appeal to a theory as f ramed by the prosecutor. And we are not
tempted to entertain the premise on this record, where we see that Roloff’s trial counsel in
fact repeatedly framed the self -defense theory around both the ammunition- based and
firearm-based charges.
We are likewise unconvinced by the state’s argument that the defenses were
unavailable to the firearm charge by virtue of Roloff ’s disputing that he possessed the
firearm. Self-defense is an available defense if a non-aggressor defendant has an honest
and reasonable belief of imminent danger and no reasonable possibility to retreat. State v.
Johnson, 719 N.W.2d 619, 629 (Minn. 2006). Necessity is an available defense if the
8
defendant had no legal alternative to violating the law, the ha rm to be prevented wa s
imminent, and a direct, causal connection existed between violating the law and preventing
the harm. State v. Rein , 477 N.W.2d 716, 717 (Minn. App. 1991), review denied (Minn.
Jan. 30, 1992). The state suggests that these defenses were unavailable because the
defenses presume that the elements of an underlying offense are satisfied. But the
presumption is not necessarily so.
The state again cites no authority for what it implies: that Roloff could not pursue
his defense theories while simultaneously denying he committed the offense to which those
defenses might apply. And our caselaw in somewhat similar situations does not support the
premise. We have addressed similar issues in cases where a defendant’s own testimony
undercut his claim of entitlement to a self-defense or defense-of-others instruction. In State
v. Pacholl, for example, we affirmed the district court’s denial of a defense-of -others
instruction, reasoning that the theory “appear[ed] to have been an afterthought” because it
was not raised until the close of evidence, was unsupported by evidence, and was actually
“inconsistent with Pacholl’s own testimony that the incident was an accident.” 361 N.W.2d
463, 465 (Minn. App. 1985). And in State v. Jensen, we affirmed the district court’s denial
of a self -defense instruction because the theory was not raised until closing argument, it
lacked any evidentiary support, and the defendant testif ied that he “never struck, kicked,
or threatened” the deputy. 448 N.W.2d 74, 76 (Minn. App. 1989). But these cases do not
stand for the proposition that a defendant must admit to having committed the underlying
offense to pursue an affirmative defense; the y instead stand for the principle that an
instruction is appropriate only if it is supported by evidence. See State v. Graham,
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371 N.W.2d 204, 209 (Minn. 1985). It is in this context which we decided Pacholl and
Jensen, where each defendant’s testimony underscored the lack of any evidentiary support
for the proffered defense.
Although Roloff denied ever possessing the firearm, his testimony asserted that he
engaged in some sort of tussle for the gun, and the state’s witnesses testified that he did
possess it. Either based on Roloff’s testimony about having tried to obtain the gun from
Ex-Girlfriend, or based on testimony from the state’s witnesses that Roloff at one point
was holding the gun, the record contains evidentiary support for the proffered defenses as
to possessing both the gun and the bullet. We turn to the merits of Roloff’s arguments.
II
The district court denied Roloff’s request for a self-defense instruction, questioning
the defense’s application to the charges and reasoning that Roloff had failed to make a
prima facie showing that the instruction was appropriate. We review a district court’s
refusal to give a requested jury instruction for an abuse of discretion. State v. Yang,
774 N.W.2d 539, 559 (Minn. 2009). If the district court abused its discretion, we will
reverse unless we conclude that “beyond a reasonable doubt . . . the error had no significant
impact on the verdict.” State v. Koppi, 798 N.W.2d 358, 364 (Minn. 2011) (quotation
omitted).
The district court abused its discretion by failing to give a self-defense instruction.
One may use reasonable force against another if he is resisting an offense against
the person or reasonably believes that he is doing so. Minn. Stat. § 609.06, subd. 1(3)
(2016). The law “is not offense-specific and imposes no limits on application of the defense
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based on the type of offense charged.” State v. Soukup, 656 N.W.2d 424, 428 (Minn. App.
2003), review denied (Minn. Apr. 29, 2003). The supreme court has indicated that
self-defense and necessity are related defenses. The State v. Spaulding court considered an
appellant’s claim that the district court erred by failing to provide a self-defense instruction
on an unlawful-possession-of-a-firearm charge. 296 N.W.2d 870, 877 (Minn. 1980). It
rejected the appellant’s argument, holding that the district court did not err by giving a
necessity instruction that embedded a self -defense element. Id. The district court had
instructed the jury as follows:
If you find that the defendant obtained a pistol in
defense of himself or another, that is justified and the defendant
has not violated this law. However, once the necessity for his
possession is reasonably over he no longer may possess the
pistol. It is for you to determine if continue d possession is
reasonably justified.
Id. The supreme court’s appro val of the mixed necessity -self-defense instruction implies
that a self-defense defense is available in unlawful-possession cases.
We next consider whether Roloff was entitled to the instruction. A defendant is
generally entitled to a jury instruction if the evidence reasonably supports it. Johnson,
719 N.W.2d at 629. A defendant raising a self -defense claim bears the initial burden of
supporting the claim by creating a reasonable doubt as to whether his conduct was justified.
Soukup, 656 N.W.2d at 429. “In evaluating whether a rational basis exists in the evidence
for a jury instruction, the evidence is viewed in the light most favorable to the party
requesting the instruction.” State v. Edwards, 717 N.W.2d 405, 410 (Minn. 2006).
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The jury heard testimony that Ex -Girlfriend went to Girlfriend’s home carrying a
gun, that Roloff saw the gun and was afraid, that he slapped the gun out of her hand when
she raised it, that they “tussled” for the gun and magazine, and that he grabbed a round of
ammunition to keep it away from Ex-Girlfriend. The defense witnesses’ testimony was
sufficient to support an inference that Roloff held an honest and reasonable belief that he
would suffer great harm if he did not take possession of the weapon or ammunition, that
he was not the aggressor, and that he could not reasonably retreat. In light of Spaulding
and based on the evidence produced at trial, Roloff was entitled to a self -defense
instruction.
The state concedes that the district court “likely went further than it should have in
evaluating the reasonableness of the evidence,” meaning that the district court took on the
role that belonged to the jury. But the state argues that the instruction request was properly
denied for other reasons. The arguments are not compelling.
The state contends that it would be “difficult to imagine a reasonable factual
scenario” in which picking up a bullet would be a necessary act of self -defense, because
“by [Roloff’s] account,” the gun and magazine were already on the ground when police
arrived and when he picked up the bullet. But Roloff testified that he hit Ex-Girlfriend’s
hand, causing the gun and its magazine holding the ammunition to fall to the ground, and
that he scrambled to grab either the ammunition or the gun, or both, to protect himself. He
testified that he was able to grab a bullet from the ground before he and Ex-Girlfriend
began shoving one another, “and then the police arrived.” (Emphasis added.) The order of
events in Roloff’s testimony does not defeat a claim of self-defense.
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The state also argues that possessing ammunition is not a plausible extension of a
self-defense theory. But as the Spaulding analysis recognizes that depriving an attacker of
a firearm might constitute self-defense, 296 N.W.2d at 877, we recognize that depriving an
armed attacker of ammunition for her firearm similarly might constitute an act of
self-defense.
We conclude that the district court abused its discretion by failing to give a
self-defense instruction when it was both permitted by law and warranted on the evidence
produced at trial. Having determined that the district court erred, we next consider the
error’s prejudicial effect.
The error was not harmless beyond a reasonable doubt.
We need not reverse the district court if its error was harmless beyond a reasonable
doubt. See Edwards, 717 N.W.2d at 413. To determine whether the error was harmless, we
may consider the strength of the state’s evidence and whether the jury would have likely
reached the same verdict had it been properly instructed. See Soukup, 656 N.W.2d at 431.
Had the district court properly instructed the jury on the elements of self-defense, it would
have been the state’s burden to negate one of the defense’s elements. Id. at 429.
Assuming that the state proved the elem ents of both possession charges, the state
failed to present overwhelming evidence tending to negate any of the four self -defense
elements. The first element is an absence of aggression or provocation. Id. at 428. The jury
heard about the inculpatory substance of Driver’s 9-1- 1 call, but this was contradicted by
Roloff’s, Ex-Girlfriend’s, Driver’s, and Girlfriend’s testimony. The second element is “an
actual and honest belief that imminent death or great bodily harm would result.” Id.
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Roloff’s, Ex-Girlfriend’s, and Driver’s testimony supported Roloff’s actual and honest
belief. The third element is a reasonable basis for the belief, id., and al though the state
impeached Roloff and the other witnesses’ testimony, the state cites no evidence tending
to disprove the element. As for a lack of a reasonable alternative or a means of retreat, see
id., again, the state failed to present overwhelming evidence tending to negate Roloff’s
evidence. The state argues that Ex- Girlfriend’s and Driver ’s testimony “were nearly
universally impeached by their actions and prior statements.” This may be so, and we can
add that the record (and verdict) supports the notion that the jury was unconvinced by the
defense-oriented testimony. But we do not weigh the evidence on appeal, and the
impeachment of testimony favorable to Roloff cannot substitute for evidence negating a
self-defense element.
The state also argues that the jury would have reached the same verdict even if
properly instructed because, “once the jury rejected [Roloff’s] claim that he did not possess
the gun . . . it necessarily rejected his claim that he picked up the bullet and put it in his
pocket after disarming [ Ex-Girlfriend], because if [Roloff] possessed the gun in the first
place then there was no need for him [to] tussle with [Ex-Girlfriend] and disarm her.” The
state’s argument assume s that the jury could have found Roloff guilty of possessing the
firearm only if it rejected the Ex-Girlfriend-brought-the-gun-to-the-scene version of
events; but the jury might have believed testimony that Ex-Girlfriend brought the gun, that
Roloff wrested it from her, and that Roloff possessed it when officers arrived.
We conclude that the error was not harmless beyond a reasonable doubt, and so we
reverse and remand for a new trial. We base our decision on the circumstances that have
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already occurred at trial, and we leave it to the district court to determine whether the
evidence produced at a new trial on remand reasonably supports a self-defense instruction.
III
We turn to Roloff’s necessity-defense argument. The district court implied that a
necessity instruction would have been appropriate, but it denied Roloff’s request for a
necessity instruction because Roloff failed to timely notify the state of the defense. Roloff
concedes the untimeliness of his notice but challenges the district court’s decision to
sanction him for the untimeliness without considering other factors. We review the district
court’s imposition of sanctions for a discovery violation for an abuse of discretion. State v.
Palubicki, 700 N.W.2d 476, 489 (Minn. 2005). Even if the district court abuses its
discretion, we will not reverse if the error was harmless beyond a reasonable doubt. See
State v. Rasinski, 472 N.W.2d 645, 649 (Minn. 1991). We conclude that the district court
abused its discretion by precluding a necessity instruction based solely on the untimeliness
of Roloff’s notice, and that this error too warrants a new trial.
The district court abused its discretion by precluding a necessity instruction without
considering factors other than the untimeliness of Roloff’s notice.
A procedural rule requires the defense to “inform the prosecutor in writing of any
defense, other than not guilty, that the defendant intends to assert” before the omnibus
hearing. Minn. R. Crim. P. 9.02, subd. 1(5). If a party fails to comply, the district court
may impose “any order it deems just in the circumstances.” Minn. R. Crim. P. 9.03, subd. 8.
Imposing sanctions for a discovery violation “is a matter particularly suited to the judgment
and discretion of the [district] court.” State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979).
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The district court should consider why the disclosure was not made, the extent of prejudice
to the opposing party, whether that prejudice could be corrected by a continuance, and “any
other relevant factors.” Id. Failing to consider these Lindsey factors when determining
sanctions for an untimely disclosure constitutes an abuse of discretion. State v. Sailee,
792 N.W.2d 90, 95 (Minn. App. 2010), review denied (Minn. Mar. 15, 2011). The district
court here considered only the untimeliness of Roloff’s disclosure. Although both Roloff
and the state prompted it to consider other necessary factors, the district court did not
discuss any prejudice to the state, whether the prejudice could be cured, or any other
relevant factors. The district court’s failure to consider the applicable factors was an abuse
of discretion.
We are not persuaded otherwise by the state’s contention that the district court’s
ruling was proper because, in refusing to give the instruction about necessity, the district
court did not preclude Roloff from presenting evidence about necessity. We do not see how
this mitigates the failure to apply the Lindsey factors before sanctioning Roloff’s discovery
breach. Allowing testimony about necessity does not cure the harm that results from
refusing to instruct the jury on the legal significance of necessity . We are likewise not
persuaded by the state’s contentions that Roloff failed to adequately explain why his notice
was late and that the late notice prejudiced the state. These arguments go to other Lindsey
factors that the district court failed to examine, and the arguments about deficiencies in
Roloff’s request do not address the district court’s failure to properly address the factors
bearing on sanctions.
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We conclude that the district court abused its discretion by precluding a necessity
instruction based solely on the untimeliness of Roloff’s notice. We next consider whether
the error warrants a new trial.
The district court’s error was not harmless beyond a reasonable doubt.
We reverse because the district court’s error was not harmless beyond a reasonable
doubt. The state argues that either Roloff was not entitled to the instruction in the first place
or that the jury would have rejected the defense. Neither argument prevails.
A defendant need make only a prima facie showing of his entitlement to a necessity
instruction, and he is entitled to an instruction if the evidence at trial supports it. See State
v. Hall, 722 N.W.2d 472, 477 (Minn. 2006). Necessity is an available defense if: (1) the
defendant had no legal alternative to violating the law; (2) the harm to be prevented was
imminent; and (3) a direct, causal connection existed between violating the law and
preventing the harm. Rein, 477 N.W.2d at 717. Roloff presented sufficient evidence to
make a prima facie showing on each necessity element. This evidence includes testimony
alleging that an armed and angry Ex-Girlfriend approached him, that he swatted the gun
from her hand, that the gun and magazine separated, and that he was trying to recover items
from the ground to prevent danger to himself. There was a sufficient rational basis in the
evidence supporting a necessity instruction. See Edwards, 717 N.W.2d at 410.
The state contends that the jury would have rejected Roloff’s defense based on a
lack of imminent harm or a reasonable alternative to grabbing the bullet because, by the
time Roloff pocketed the bullet, the gun was on the ground and police were on the scene.
But again, Roloff testified to a different sequence of events, saying first that he hit
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Ex-Girlfriend’s hand, second that the gun and magazine fell to the ground, third that he
scrambled to grab “the ammunition and/or the firearm to protect [him]self ,” fourth that he
and Ex-Girlfriend shoved one another , and fifth that police arrived. The jury might have
believed Roloff’s account despite the contrary evidence, had it been instructed on
necessity. It might have found that Roloff possessed both the handgun and bullet but did
so without a legal alternative. It is not clear beyond a reasonable doubt that the jury would
have found Roloff guilty if the jurors understood the necessity defense. The error warrants
a new trial.
We have concluded only that the district court abused its discretion by precluding a
necessity instruction without conducting a proper Lindsey-factor analysis. We have not
conducted a de novo balancing of the Lindsey factors, because sanctions for violations of
discovery rules are discretionary with the district court. See In re Welfare of M.P.Y.,
630 N.W.2d 411, 417 (Minn. 2001). We offer no opinion about what the district court
should conclude on any factor or how it should apply its conclusions to shape its
discretionary decision on sanctions. Consequently, our decision should not be construed as
suggesting any outcome on Roloff’s request for a necessity instruction. On remand, the
district court must determine whether the evidence produced at trial warrants a necessity
instruction. If it does, the district court must consider the Lindsey factors to determine what
sanction, if any, is appropriate in light of Roloff’s undisputed failure to give a timely notice
of his defense.
Reversed and remanded.