United States of America v. Tyson Keepseagle

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-3626
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Tyson Keepseagle
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the District of South Dakota - Northern
____________
Submitted: October 20, 2021
Filed: April 12, 2022
____________
Before SMITH, Chief Judge, WOLLMAN and BENTON, Circuit Judges.
____________
SMITH, Chief Judge.
Tyson Keepseagle appeals his conviction on three counts of a four-count
indictment for child abuse, in violation of South Dakota Codified Law § 26-10-1,
pursuant to 18 U.S.C. § 1153. Each count concerned a different child—AR.Q. (Count
I), AY.Q. (Count II), S.Q. (Count III), and R.Q.J. (Count IV). At trial, the jury found
Keepseagle guilty on Counts I, III, and IV but acquitted him on Count II. Keepseagle

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raises three issues on appeal: (1) the district court plainly erred by not giving a
specific unanimity instruction for Count I because the government elicited three
separate acts of abuse against AR.Q.; (2) the district court erred in denying his motion
for judgment of acquittal on all counts because the government failed to prove
beyond a reasonable doubt that he committed any acts of abuse; and (3) the district
court abused its discretion in denying his motion for continuance. Because we
conclude that the district court plainly erred in not giving a special unanimity
instruction for Count I, we vacate Keepseagle’s conviction on that count and remand
for a new trial. We affirm the district court’s judgment in all other respects.
I. Background
A. Underlying Facts
Ronald Quilt, Sr. and Margaret Archambault are the parents of R.Q.J., D.Q.,
S.Q., B.Q., AR.Q., and AY.Q. At all relevant times, the children resided with their
mother Archambault and stepfather Keepseagle in Bullhead, South Dakota.
On August 10, 2018, Quilt and his wife, Charlotte Uses Arrow Quilt
(Charlotte), attended a powwow in Bullhead. B.Q., S.Q., AR.Q., and AY.Q. happened
to be at the powwow, too. At the powwow, S.Q., about age 11 at the time, asked
Charlotte to braid her hair. While brushing S.Q.’s hair, Charlotte noticed bruising on
S.Q.’s right ear and called for Quilt. Quilt then saw the bruising on both of S.Q.’s
ears.
Concerned that the children were at the powwow unsupervised and in the
extreme heat, Quilt decided to walk the children to Archambault and Keepseagle’s
home. He walked them “halfway” and “didn’t go all the way into the yard.” R. Doc.
118-1, at 40. He instructed the children to go inside the house. He observed them
walk to the house, walk up the steps, and open the door. Quilt then “turned around”
and began to walk away. Id. Shortly, however, he “hear[d] a child crying, and [he]
heard stomping.” Id. Quilt “looked back” and saw Keepseagle “assault[ing] [AR.Q.]
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with his fist. [Keepseagle] was punching [AR.Q.’s] face.” Id. at 41. AR.Q. was
crying. Quilt then “ran towards the house.” Id. As he approached, he yelled at
Keepseagle. Keepseagle then “turned around” and “threw [AR.Q.] off the . . . porch,
and [AR.Q.] kind of rolled.” Id. at 42. AR.Q. was between three and four years old
at the time. According to Quilt, he also witnessed Keepseagle pull AY.Q. “out of the
screen door” and “throw[] [her] off the . . . porch.” Id. at 45. She was approximately
six years old at the time.
Quilt approached the house. Keepseagle entered the residence and closed the
door. Quilt knocked on the door, but no one answered. Quilt then took the children
back to the powwow. He noticed “a tad bit of blood” around AR.Q.’s nose and
“around the mouth.” Id. at 48. According to Quilt, he also noticed “[d]ried blood and
a little bit of swelling around [AY.Q.’s] nose.” Id.
That evening, Quilt photographed the children’s injuries and attempted to
report the incidents to the police but was unsuccessful. The next morning, Quilt went
to the tribal prosecutor’s office and reported the incidents. After Quilt spoke with the
prosecutor, he also spoke to Officer Dustin Dobbs, Bureau of Indian Affairs (BIA)
Law Enforcement, Standing Rock. Quilt told Officer Dobbs that he had witnessed
Keepseagle assault AR.Q. He also informed Officer Dobbs of S.Q.’s assault
allegation. Officer Dobbs obtained a warrant for Keepseagle’s arrest.
Officer Dobbs went to Keepseagle’s residence and arrested him. Child
protective services, also present at the time of arrest, removed the children from the
home. Officer Dobbs noticed that S.Q. was crying and had “some visible markings
on her ears.” Id. at 12. He described the markings as “red[] with some scabs on the
top of them.” Id. at 13. S.Q. told Officer Dobbs that Keepseagle had “picked her up
by her ears.” Id. at 15.
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After the children were removed from Archambault’s and Keepseagle’s care,
they were placed in Quilt’s care. During a subsequent forensic interview, R.Q.J. said
that Keepseagle had “hurt” him during the “two-month timeframe before the pow
wow.” Id. at 108. Specifically, Keepseagle would pull R.Q.J.’s hair when he was
angry with R.Q.J. and sometimes throw him down, pick R.Q.J. back up, and then
throw him down again. According to R.Q.J., Keepseagle did “[t]he same thing” to
S.Q. Id. at 110. R.Q.J. was approximately 14 at the time.
B. Procedural History
On May 15, 2019, a federal grand jury indicted Keepseagle on four counts of
child abuse, in violation of South Dakota Codified Law § 26-10-1, pursuant to 18
U.S.C. § 1153. Each count pertained to a different child. Counts I and II concerned
Keepseagle’s alleged abuse “[o]n or about between the 1st day of June, 2018, and the
12th day of August, 2018,” of AR.Q. and AY.Q., who were both under the age of 7.
R. Doc. 1-2, at 1. Counts III and IV concerned Keepseagle’s alleged abuse of S.Q.
and R.Q.J. during the same timeframe. These counts concerned the abuse of “a child
who had not attained the age of 18.” Id. at 2.1
1. Pre-Trial Developments
The court set Keepseagle’s trial for July 8, 2020. About a month before trial,
a defense investigator talked with one of the abuse victims and heard the child assert
that Quilt used “physical abuse and coercion” to influence the children to testify
falsely against Keepseagle. R. Doc. 78, at 1. A week prior to trial, the same abuse
victim told agents that Quilt “had physically abused him and his sister.” Id. at 2. He
also reported that Quilt had purchased alcohol for his siblings and directed another
sibling to punch his sister when she “stated she missed her mom.” Id. The sister,
1Under South Dakota law, a “person is guilty of a Class 3 felony” “[i]f the
victim is less than seven years of age.” S.D. Codified Laws § 26-10-1. Otherwise, it
is “a Class 4 felony.” Id.
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however, denied any physical abuse by Quilt. Nonetheless, authorities removed the
children from Quilt’s custody. Two days before trial, the government disclosed
reports to the defense detailing the abuse victim’s allegations against Quilt. The day
before trial, defense counsel received a report of an interview done that day “in which
the sister described physical abuse by . . . Quilt.” Id. She admitted to drinking alcohol
with Quilt and “confirmed being made fun of because she missed her mom and that
one of her other sibling’s punched her in the stomach.” Id.
On the morning of trial, Keepseagle moved for a continuance based on the
“new information” received from the government the two days prior. Id. Before the
court, defense counsel argued that the new information went “to the heart of
[Keepseagle’s] defense, which is that [Quilt] . . . falsely reported or grossly
exaggerated the initial incident with the two youngest children; that when the children
were in [Quilt’s] care, he did what he could to get them to say what they needed to
say—or what he wanted them to say in the interview.” R. Doc. 118, at 9. The district
court denied the continuance motion and trial commenced.
2. Trial
At trial, the minor children, S.Q., D.Q., R.Q.J., and B.Q. testified about
Keepseagle’s alleged abuse. Specifically, S.Q. testified about an incident that
occurred around the time of the powwow when she was 11 years old in which
Keepseagle got angry with her, grabbed her by the ears, and lifted her into the air.
During cross-examination, defense counsel asked S.Q. whether Quilt “ever [told]
[her] what to say about [Keepseagle].” Id. at 108. S.Q. responded, “No.” Id. Defense
counsel inquired whether Quilt ever “gave [her] anything, like money or clothes . . . ,
to get [her] to testify against [Keepseagle].” Id. S.Q. answered that Quilt “never gave
[her] nothing.” Id. S.Q. also responded in the negative when defense counsel asked
whether Quilt “[]ever gave [her] any alcohol in hopes of getting [her] to testify
against [Keepseagle].” Id. S.Q. denied telling law enforcement that she drank around
Quilt.
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On direct examination, the government asked D.Q. whether he ever saw
Keepseagle hurt any of his siblings “during the pow wow or approximately a six-
week period before the pow wow.” R. Doc. 118-1, at 91. D.Q. answered that he saw
Keepseagle “[p]unch” his “little brother AR.Q.” Id. at 92. D.Q. stated, “I remember
[Keepseagle] hitting [AR.Q.]. And I looked at him, and he looked at me. ‘What are
you looking at? I’ll knock you out next.’” Id. According to D.Q., Keepseagle used his
“fist” to “hit AR.Q. in the chest.” Id. at 93. D.Q. testified that AR.Q. was “maybe
three, three and a half” at the time. Id. at 94. D.Q. was age 13. D.Q. did not see
Keepseagle hurt AY.Q. “[d]uring [the] summer before [he] [was] removed” from
Archambault’s and Keepseagle’s home. Id. at 98. Neither the government nor defense
counsel asked D.Q. specific questions about the porch incident.
R.Q.J. testified about Keepseagle pulling his and S.Q.’s hair during the “two-
month timeframe before the pow wow.” Id. at 108. According to R.Q.J., Keepseagle
pulled his hair for approximately “a minute” while they were in the basement. Id. at
110. He recounted how Keepseagle repeatedly pulled his hair and picked him up and
threw him down, causing him great pain and making him cry.
R.Q.J. also testified that he saw Keepseagle “hurt AR.Q. and AY.Q.” “during
that timeframe.” Id. at 111. When the government asked R.Q.J. what he saw
Keepseagle do to AR.Q., defense counsel objected. The district court overruled the
objection, stating, “This is, as I understand it, what the indictment is based upon.” Id.
R.Q.J. then stated, “When AR.Q. was crying over something, [Keepseagle] got mad
and socked him in the stomach, and AR.Q. started crying, saying he couldn’t
breathe.” Id. at 112. This incident occurred “[i]n the basement.” Id. R.Q.J. estimated
that AR.Q. was “two” at the time of the incident, but he was “not sure.” Id. R.Q.J.
also testified to seeing Keepseagle “hit [AY.Q.] in the arm” with “[h]is fist” for
“[p]laying around.” Id. at 113. According to R.Q.J., this occurred in the basement in
front of him and Archambault.
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On cross-examination, R.Q.J. acknowledged that he had previously told the
defense investigator that the accusations against Keepseagle were untrue. R.Q.J. also
admitted to telling the defense investigator that Quilt “was doing things to try to get
the kids to say things against [Keepseagle],” such as “bribing them with money[,]
phones[,] . . . . [a]nd alcohol.” Id. at 125–26. Additionally, R.Q.J. admitted to telling
the defense investigator that Quilt was “abusing” him and had “beat” S.Q. when she
mentioned Archambault. Id. at 126. Defense counsel also asked R.Q.J. if he recalled
a conversation in which he told his grandmother and uncle that he and his siblings
“were making up these allegations [against Keepseagle] because [Quilt] told [them]
to.” Id. at 129. R.Q.J. responded, “No, I don’t remember.” Id.
On redirect, the government asked R.Q.J. whether Quilt “ever [told] [him] what
to say in court.” Id. at 130. R.Q.J. responded, “Not that much.” Id. When asked what
he meant by “not that much,” R.Q.J. explained, “Like, he would try to say, ‘Say this.’
And then he’ll just go to D.Q. and tell D.Q.—whisper in his ear something.” Id.
R.Q.J. did not know what Quilt whispered to D.Q. He confirmed that he was not
“listening to [Quilt]” on the day of his testimony. Id. Neither the government nor
defense counsel asked R.Q.J. specific questions about the porch incident.
The government questioned B.Q. specifically about whether she saw
Keepseagle “hurt one of [her] siblings” “during . . . the days of the pow wow.” Id. at
165–66. B.Q. responded that she had seen Keepseagle hurt AR.Q. and AY.Q.
According to B.Q., she “[s]aw [Keepseagle] throw [AR.Q.] off the porch.” Id. at 166.
Specifically, Keepseagle “grabbed [AR.Q.] and picked him up and then threw him
. . . over the railing.” Id. at 167. AR.Q. “was crying.” Id. Likewise, B.Q. saw
Keepseagle pick up AY.Q. and “throw her over the railing.” Id. AY.Q. “was crying
out loud.” Id. B.Q. testified that she saw “scratches on [AR.Q.’s and AY.Q.’s] knees”
after Keepseagle threw them. Id. According to B.Q., Keepseagle instructed her “not
to tell anyone.” Id. at 168. B.Q. was approximately ten years old at the time of the
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incident. B.Q. testified that Quilt told her to “tell the truth” in court and did not tell
her what to say. Id. at 171.
Following the close of the government’s case, Keepseagle moved for judgment
of acquittal on all counts; the district court denied the motion. Keepseagle renewed
the motion at the close of his case. The district court again denied the motion.
During its closing argument, the government summarized the evidence
presented as to each count. On Count I, government counsel highlighted (1) the
photograph of AR.Q.’s face taken after the porch incident; (2) Charlotte’s observation
of AR.Q.’s red face after the porch incident; (3) Quilt’s testimony about witnessing
Keepseagle throw AR.Q. from the porch and observing swelling on the child’s face
and a bloody nose; (4) D.Q.’s “different story about how he saw AR.Q. get[ting] hit
in the chest by [Keepseagle]”; (5) R.Q.J.’s observation of “Keepseagle hit[ting]
AR.Q. in the stomach”; and (6) B.Q.’s observation of the porch incident. R. Doc. 125,
at 19–20.
In concluding its argument, the government addressed Quilt’s testimony, which
“only applie[d] to the count with regard to AR.Q., the count with regard to AY.Q.,
and the count with regard to S.Q.” Id. at 25. The government urged the jury to note
evidence corroborating Quilt’s testimony despite any misgivings it might have about
him personally or about the credibility of certain things that he said. The government
argued that Quilt’s testimony about Keepseagle’s abuse of AR.Q. and AY.Q. was
corroborated by the pictures he took of their injuries, Charlotte’s testimony “about red
faces,” and B.Q.’s testimony. Id. at 26.
Keepseagle’s counsel, in closing argument, also addressed Counts I (AR.Q.)
and II (AY.Q.). See id. at 31 (“In the first count, the government charges that
[Keepseagle] committed one act of child abuse against AR.Q. And in Count 2 he is
charged with committing one act of child abuse against AY.Q.”). Because neither
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child testified, counsel advised the jury that it would “have to rely on the testimony
of those who did come in,” beginning with Quilt’s testimony. Id. at 32. Counsel then
attacked the credibility of Quilt’s testimony concerning the porch incident. He also
pointed out inconsistencies in the testimonies of the various witnesses and argued
those inconsistencies showed the government had not met its burden of proof.
Defense counsel then addressed the “other incidents” involving AR.Q. that the
jury heard about. Id. at 38. Even though the government “only charg[ed] one count,”
“R.Q.J. talked about [Keepseagle] punching AR.Q. in the stomach” and “AY.Q. in
the arm,” while “D.Q. talked about [Keepseagle] punching [AR.Q.] in the chest.” Id.
at 38–39. Counsel argued that the child witnesses’ testimony lacked sufficient
cogency to provide the jury with a basis to conclude that Keepseagle’s conduct
caused them sufficient pain to meet the elements of child abuse.
The district court instructed the jury on the “four essential elements” of “[t]he
crime of child abuse.” R. Doc. 83, at 13–16. The first element was that “[o]n or about
between June 1, 2018, and August 12, 2018, the defendant, without just cause,
abused, exposed, tortured, tormented, or cruelly punished [the child].” Id. The court
defined “abuse” as “physical maltreatment”; “torture” as “caus[ing] intense suffering
or . . . punish[ing] or coerc[ing] by inflicting excruciating pain”; “torment” as
“caus[ing] severe and unusually persistent or recurrent distress of body or mind”; and
“cruelly punish” as “punish[ing] in such a way as to intentionally inflict physical
suffering with reckless indifference to pain.” Id. at 17. The district court also
instructed the jury that its “verdicts must be unanimous.” Id. at 23.
The jury found Keepseagle guilty on Counts I (AR.Q.), III (S.Q.), and IV
(R.Q.J.) but acquitted him on Count II (AY.Q.).
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II. Discussion
Keepseagle raises three arguments on appeal. First, he argues that the district
court plainly erred in not giving a special unanimity instruction to the jury regarding
Count I (AR.Q.). Second, he asserts that the district court erred in denying his motion
for judgment of acquittal on all counts. Finally, he argues that the district court erred
in denying his motion for continuance.
A. Special Unanimity Instruction
Keepseagle concedes that he “did not request a limiting instruction or
otherwise object to the district court’s instruction as to unanimity.” Appellant’s Br.
at 16. Nonetheless, he argues that the district court plainly erred by not giving the jury
a special unanimity instruction on Count I (AR.Q.). According to Keepseagle, the
record evidence described three separate incidents of alleged abuse in which he threw
AR.Q. from the porch, punched AR.Q. in the stomach, and punched AR.Q. in the
chest. But the government only charged him with one count of abuse against AR.Q.
Keepseagle contends that this “resulted in a duplicitous indictment.” Id. at 17. While
Keepseagle acknowledges that “the district court instructed the jury that its verdict
on each count must be unanimous,” he contends that it failed to “provide a specific
instruction requiring that the jurors must be unanimous in determining which of the
alleged acts Keepseagle committed.” Id. Such an instruction would have “inform[ed]
the jury that it must unanimously find [Keepseagle] guilty with respect to at least one
distinct act.” Id. In the absence of such instruction, Keepseagle argues he has “no
assurance that the jury reached unanimity with regard to one specific act.” Id.
We review for plain error Keepseagle’s argument that the district court erred
by not giving a specific unanimity instruction to the jury regarding Count I. United
States v. James, 172 F.3d 588, 592 (8th Cir. 1999). “For [Keepseagle] to prevail, he
‘must show that the district court committed an error that is plain, i.e. clear under
current law, that he was prejudiced by the error, and that the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings.’” United States v.
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Carnes, 22 F.4th 743, 750 (8th Cir. 2022) (quoting United States v. Woolsey, 759
F.3d 905, 907 (8th Cir. 2014)).
Count I of the indictment charged Keepseagle with “abus[ing], expos[ing],
tortur[ing], torment[ing], and cruelly punish[ing] [AR.Q.], a child who had not
attained the age of seven, in violation of 18 U.S.C. § 1153[2] and SDCL 26-10-1[3],”
“[o]n or about between the 1st day of June, 2018, and the 12th day of August, 2018.”
R. Doc. 1-2, at 1. “[T]o establish a conviction for felony child abuse under [Count I],
the government had to prove [Keepseagle], without just cause, abused, exposed,
tortured, tormented, or cruelly punished [AR.Q.], []he was under seven years of age,
[Keepseagle] was an Indian, and the offense took place in Indian Country.” United
States v. Iron Hawk, 612 F.3d 1031, 1036 (8th Cir. 2010) (citing S.D. Codified Laws
§ 26-10-1; 18 U.S.C. § 1153).
Keepseagle argues that the government presented evidence of three separate
incidents in a single count of aggravated child abuse: (1) Quilt’s testimony that
Keepseagle threw AR.Q. from the porch, (2) D.Q.’s testimony that Keepseagle
punched AR.Q. in the chest, and (3) R.Q.J.’s testimony that Keepseagle punched
AR.Q. in the stomach.
2Pursuant to 18 U.S.C. § 1153(a), “[a]ny Indian who commits against the
person . . . of another Indian or other person . . . felony child abuse . . . within the
Indian country, shall be subject to the same law and penalties as all other persons
committing . . . the . . . offense[], within the exclusive jurisdiction of the United
States.” The “offense [of felony child abuse] . . . shall be defined and punished in
accordance with the laws of the State in which such offense was committed as are in
force at the time of such offense.” Id. § 1153(b).
3Under South Dakota law, “[a]ny person who abuses, exposes, tortures,
torments, or cruelly punishes a minor in a manner which does not constitute
aggravated assault, is guilty of a Class 4 felony. If the victim is less than seven years
of age, the person is guilty of a Class 3 felony.” S.D. Codified Laws § 26-10-1.
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Here, South Dakota law—“the law[] of the State in which [the] offense was
committed,” 18 U.S.C. § 1153(b)—provides:
When evidence of several acts is presented at trial, any one of
which could constitute the basis for the single offense charged, trial
courts can take one of two actions: (1) require the prosecution to elect
the transaction on which it relies for the conviction, or (2) give a
unanimity instruction telling the jurors that they must unanimously agree
that the defendant committed all the acts offered in evidence. Unanimity
is at risk when the evidence at trial suggests more than one distinct
crime or the jury has multiple offenses to consider under a single count.
In these circumstances, a general verdict may not reveal whether the jury
unanimously found the defendant guilty of one offense or more offenses,
or guilty of one offense and not guilty of others.
State v. White Face, 857 N.W.2d 387, 394 (S.D. 2014) (cleaned up).
But “when the case falls within a continuing course of conduct,” the
aforementioned “requirements are not implicated, even though the evidence suggests
more than one distinct crime.” Id. The continuing-course-of-conduct doctrine
provides that
when the evidence establishes a pattern of physical trauma inflicted
upon a child within a relatively short period of time, a single course of
conduct is involved and no justification exists for departing from the
well-established rule that jury unanimity is not required on the
underlying conduct constituting child abuse.
Id. (cleaned up).
“[A]nalytical difficulty [exists] in child abuse cases . . . in determining when
multiple acts constitute separate offenses and when they encompass a single offense.”
Id. “[A]ggravated child abuse under SDCL 26-10-1” is a crime for which “[j]uror
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unanimity is not required when [it] . . . involves a continuous course of conduct or a
series of related acts over a period of time.” Id. The South Dakota “Legislature
intended for the offense of child abuse to include both a single act of abuse, as well
as a continuing course of abusive acts. Thus, a unanimity instruction in child abuse
cases will be required in some instances but not others.” Id. at 395 (footnote omitted).
A trial court must ask the following when determining whether to give a
specific unanimity instruction to the jury: “(1) [whether] there is a risk the jury may
divide on two discrete crimes and not agree on any particular crime, or (2) [whether]
the evidence merely presents the possibility the jury may divide, or be uncertain, as
to the exact way the defendant is guilty of a single discrete crime.” Id. (internal
quotation marks omitted). A trial court “should give the unanimity instruction” “[i]n
the first situation, but not the second.” Id. (internal quotation marks omitted). When
evaluating the evidence, the trial court should view “the defendant’s acts . . . in a
commonsense manner, taking into account whether the acts occurred in a separate
time frame or separate identifying place.” Id. (internal quotation marks omitted).
In White Face, the South Dakota Supreme Court held that the trial “court erred
by not providing the jury with a special unanimity instruction requiring it to agree on
the act supporting [the defendant’s] conviction [for aggravated child abuse] or [to]
find that [the defendant] had committed both acts of child abuse.” Id. at 396. The case
involved “two separate and distinct incidents of abuse . . . alleged in a one-count
indictment.” Id. at 389. Specifically, the State asserted that the defendant broke his
infant daughter’s femur, then, four days later, smothered her. Id. at 394. The
indictment charged the defendant “with aggravated child abuse between” this four-
day period. Id. at 390. “During the settling of the jury instructions, defense counsel
requested that the jury be instructed that they must determine guilt or innocence on
each incident . . . .” Id. at 391. The trial court declined to give the requested
instruction. Id. at 392. The jury found the defendant guilty on the single count of
aggravated child abuse. Id.
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On appeal, the question was whether “the trial court ha[d] a duty sua sponte to
properly instruct the jury on unanimity” given that “[a] defendant has a due process
right to a unanimous jury verdict.” Id. at 393. The South Dakota Supreme Court
concluded that the trial court was required to give a special unanimity instruction in
the defendant’s case because a risk existed that the jury would “divide on two discrete
crimes and not agree on any particular crime.” Id. at 395. The court based its decision
on the absence of pattern-of-abuse evidence and the State’s invitation to the jury to
convict on either of the alternative incidents of abusive behavior. Id. The court noted
that the trial court’s instructions “only informed the jury that the verdict must be
unanimous.” Id. at 396. The court held that “[t]he circuit court erred by not providing
the jury with a special unanimity instruction requiring it to agree on the act supporting
the conviction or find that [the defendant] had committed both acts of child abuse.”
Id. As a result, the court reversed and remanded for a new trial. Id.
The government argues that “the evidence in this case involved a course of
conduct” and that “to the extent there were multiple instances of alleged abuse against
AR.Q., such evidence was presented at trial as a continuous course of conduct.”
Appellee’s Fed. R. App. P. 28(j) Letter, at 1. We disagree. As in White Face, a risk
existed that “the jury may divide on [multiple] discrete crimes and not agree on any
particular crime.” 857 N.W.2d at 395. Applying the holding of White Face to the
instant facts, we conclude that the district court plainly erred in not giving an
appropriate unanimity instruction resulting in a duplicitous indictment.
First, as in White Face, no evidence suggested “a pattern of continuous abuse”;
instead, it described three “discrete incidents.” See id. Quilt testified that on August
10, 2018, he witnessed Keepseagle punch AR.Q. in the face and then throw AR.Q.
off the porch. By contrast, neither D.Q. nor R.Q.J. specified a date upon which they
witnessed Keepseagle abuse AR.Q. D.Q. testified to seeing Keepseagle punch AR.Q.
in the chest “during the pow wow or approximately a six-week period before the pow
wow.” R. Doc. 118-1, at 91 (emphasis added). D.Q. never testified about the porch
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incident. Likewise, R.Q.J. did not testify about the porch incident or specify the date
upon which he witnessed Keepseagle punch AR.Q. in the stomach; instead, he
testified only that the incident occurred “[i]n the basement.” Id. at 112. R.Q.J. was not
sure of AR.Q.’s age at the time. Id. The government never offered any evidence “that
the injuries inflicted upon [AR.Q.] [between June 1, 2018, and August 12, 2018,]
formed a pattern of abuse or constituted battered child syndrome.” See White Face,
857 N.W.2d at 395.
Second, just as in White Face, the government “invited the jury to convict on
[any of the three] incident[s], . . . thus elevating the risk the jury could divide on the
[three] offenses and not all agree on one particular offense.” Id. In its closing, the
government cited the following as “evidence for Count I”: (1) Quilt’s testimony that
Keepseagle threw AR.Q. from the porch, (2) D.Q.’s testimony “about how he saw
AR.Q. get hit in the chest by [Keepseagle],” and (3) R.Q.J.’s testimony “that he saw
Tyson Keepseagle hit AR.Q. in the stomach.” R. Doc. 125, at 19–20. Defense counsel
reiterated the government’s reliance on all three incidents, arguing that while the
government had charged only one count, it presented evidence of “other incidents”
in addition to the porch incident. Id. at 38. Specifically, the government presented
R.Q.J.’s testimony that Keepseagle “punch[ed] AR.Q. in the stomach” and D.Q.’s
testimony that he saw Keepseagle “punch[] [AR.Q.] in the chest.” Id.
We, like the court in White Face, “cannot be reasonably certain that
[Keepseagle] was found guilty by a unanimous jury.” 857 F.3d at 396. The
government presented multiple “incidents of trauma, [all] of which could have formed
the basis of aggravated child abuse under SDCL 26-10-1, and the instructions given
only informed the jury that the verdict must be unanimous.” Id. The district “court
erred by not providing the jury with a special unanimity instruction requiring it to
agree on the act supporting the conviction or find that [Keepseagle] had committed
[all three] acts of child abuse.” Id. The district court’s error was plain under White
Face. This plain error prejudiced Keepseagle and “seriously affects the fairness,
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integrity, or public reputation of judicial proceedings” because of the uncertainty
whether the jury was unanimous about a specific act. See Carnes, 22 F.4th at 750
(quoting Woolsey, 759 F.3d at 907). Accordingly, we vacate Keepseagle’s conviction
on Count I and remand for a new trial.
B. Motion for Judgment of Acquittal
Keepseagle also argues that no reasonable jury could have concluded beyond
a reasonable doubt that he committed aggravated child abuse. As a result, he
maintains that the district court erred in denying his motion for judgment of acquittal
on all counts.
“We apply the same standard of review to the district court’s ruling on a
defendant’s motion for judgment of acquittal as we do to challenges to the sufficiency
of the evidence to support a guilty verdict.” United States v. Garcia, 562 F.3d 947,
958 (8th Cir. 2009). “[W]e resolve all evidentiary conflicts in the Government’s favor
and accept all reasonable inferences from the evidence that support the jury’s verdict”
“[i]n reviewing the sufficiency of the evidence.” Id. (quoting United States v. Price,
542 F.3d 617, 620 (8th Cir. 2008)). “[O]nly if no reasonable jury could have found
[Keepseagle] guilty” will we “overturn the verdict.” Id. (quoting Price, 542 F.3d at
620). Because we have already granted Keepseagle a new trial on Count I, we will
only analyze the sufficiency of the evidence on Counts III and IV.
1. Count III (S.Q.)
Count III charged Keepseagle with child abuse of S.Q., in violation of South
Dakota Codified Law § 26-10-1, pursuant to 18 U.S.C. § 1153. At trial, S.Q. testified
about an incident that occurred around the time of the powwow when she was 11
years old in which Keepseagle got angry with her, grabbed her by the ears, and lifted
her into the air.
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On appeal, Keepseagle challenges S.Q.’s testimony as not credible given that
no one substantiated her account.
“Appellate courts are not well-equipped to evaluate a jury’s reasoning when
making its credibility findings. The jury is the final arbiter of the witnesses’
credibility, and we will not disturb that assessment. As such, a jury’s credibility
determinations are virtually unassailable on appeal.” United States v. Never Misses
A Shot, 781 F.3d 1017, 1026 (8th Cir. 2015) (cleaned up). Whether S.Q. was credible
was for the jury to determine, and we will not disturb its determination. See id. As a
result, the district court did not err in denying Keepseagle’s motion for judgment of
acquittal on Count III.
2. Count IV (R.Q.J.)
Count IV charged Keepseagle with child abuse of R.Q.J., in violation of South
Dakota Codified Law § 26-10-1, pursuant to 18 U.S.C. § 1153. At trial, R.Q.J.
testified that Keepseagle pulled his hair while they were in the basement. The hair
pull lasted approximately “a minute.” R. Doc. 118-1, at 110. Keepseagle “kept
. . . pulling [R.Q.J.’s hair], and then [he] threw [R.Q.J.] down, and then picked
[R.Q.J.] back up, and then threw [R.Q.J.] down.” Id. The hair pull “hurt” R.Q.J., and
he “started crying.” Id. at 109–10. R.Q.J. testified that he “sat there crying” because
“[t]hat hurt [his] head . . . bad.” Id. at 111.
On appeal, Keepseagle argues that R.Q.J.’s testimony lacks credibility because
(1) “[p]rior to trial, [he] confessed to a defense investigator that he and the others
were being pressured by Quilt to make allegations against Keepseagle”; (2) although
R.Q.J. later recanted his statement to the defense investigator, “it is difficult to
ascertain from his trial testimony what exactly he recanted”; and (3) no one ever
corroborated R.Q.J.’s testimony. Appellant’s Br. at 12–13.
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At trial, Keepseagle’s counsel had the opportunity to cross-examine R.Q.J. on
his recantation. It was for the jury to determine whether R.Q.J. was credible. See
Never Misses A Shot, 781 F.3d at 1026. We will not disturb its determination.
Keepseagle additionally argues that even if he “committed the alleged act as
to R.Q.J., it was not child abuse.” Appellant’s Br. at 13 (emphasis omitted). “[T]o
establish a conviction for felony child abuse under [Count IV], the government had
to prove [Keepseagle], without just cause, abused, exposed, tortured, tormented, or
cruelly punished [R.Q.J.] . . . .” Iron Hawk, 612 F.3d at 1036. Keepseagle argues that
“there was no apparent injury to R.Q.[J.] based on Keepseagle’s conduct” and that
R.Q.J.’s testimony that the hair pull hurt and that he cried was insufficient to
“establish[] that the pain was intense or excruciating or that it was done with reckless
indifference.” Appellant’s Br. at 15.
Keepseagle relies on both South Dakota case law and this court’s precedent
interpreting § 26-10-1 in support of his argument that any alleged injury that R.Q.J.
suffered was not severe enough to constitute child abuse. Id. at 14–15 (citing United
States v. Spotted Horse, 916 F.3d 686 (8th Cir. 2019); United States v. White Plume,
847 F.3d 624 (8th Cir. 2017); Iron Hawk, 612 F.3d at 1031; State v. Morgan, 824
N.W.2d 98 (S.D. 2012)).
In Morgan, the defendant, who was convicted of child abuse under § 26-10-1
for “grabb[ing] and squeez[ing] [the victim’s] face,” “argue[d] that the verdict [was]
not sustained by the evidence and his actions were permissible discipline[, an
affirmative defense].” 824 N.W.2d at 99, 100. The defendant’s conduct had caused
“extensive bruising” and other injuries to the victim’s face. Id. at 102. After
reviewing the trial testimony, the South Dakota Supreme Court held that sufficient
evidence existed “from which the jury could find that [the defendant’s] actions,
grabbing and squeezing [the victim’s] face, were not permissible discipline.” Id.
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Morgan is inapposite. It does not discuss the level of injury necessary to
sustain a conviction under § 26-10-1, nor do any of the other cases that Keepseagle
relies on.4 Instead, the South Dakota Supreme Court in Morgan explained why under
the specific facts of that case the evidence defeated the defendant’s affirmative
defense of permissible discipline and supported the jury’s finding of child abuse.
Based on our review of the record, we conclude that sufficient evidence
supports the jury’s finding that Keepseagle “abused, exposed, tortured, tormented, or
4Spotted Horse involved a defendant who was convicted of assault with a
dangerous weapon, in violation of 18 U.S.C. § 1153 and 113(a)(3), based on the same
conduct underlying the defendant’s child abuse conviction under § 26-10-1. 916 F.3d
at 689. It did not concern the sufficiency of the evidence or the level of injury
necessary to sustain a conviction for child abuse. See id. at 691–94.
White Plume concerned a defendant who was convicted of assault resulting in
serious bodily injury, in violation of 18 U.S.C. §§ 1153 and 113(a)(6), based on the
same conduct underlying the defendant’s child abuse conviction under § 26-10-1. 847
F.3d at 626. The defendant challenged the sufficiency of the evidence on both counts.
We held that “[t]he evidence sufficiently supports the verdicts” on both counts, citing
the defendant’s admission that “the injuries were severe, acute, and non-accidental”
and testimony that the defendant was “alone with [the victim] immediately before the
injury.” Id. at 627. We did not discuss the level of injury necessary to sustain a
conviction under § 26-10-1. See id.
Iron Hawk likewise concerned a defendant convicted of assault resulting in
serious bodily injury, in violation of 18 U.S.C. § 113(a)(6), based on the same
conduct underlying the defendant’s child abuse conviction under § 26-10-1. 612 F.3d
at 1035. The defendant argued that the evidence was insufficient to sustain both
convictions. Id. Our sufficiency analysis focused primarily on the elements necessary
to sustain the assault conviction. Id. at 1036. One of the elements of that conviction
was that the assault “result[] in serious bodily injury” to the victim. Id. The defendant
conceded that the victim suffered serious bodily injury but argued that insufficient
evidence existed that he had caused such injury. Id. At no time did we discuss the
level of injury required to sustain a conviction under § 26-10-1. See id.
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cruelly punished [R.Q.J.].” Iron Hawk, 612 F.3d at 1036. R.Q.J. testified that
Keepseagle’s act of pulling R.Q.J. up by his hair and throwing him down caused him
severe pain; he testified that his head “hurt . . . bad” and that he cried from the pain
that Keepseagle caused. R. Doc. 118-1, at 111. The district court did not err in
denying Keepseagle’s motion for judgment of acquittal on Count IV.
C. Motion for Continuance
Lastly, Keepseagle argues that the district court abused its discretion in
denying his motion for continuance based on the reports that he received from the
government on the eve of trial detailing the recent allegations against Quilt by two
of the named victims. According to Keepseagle, this new information was “pertinent”
to his defense and additional time to review the reports would have put him in a better
position to cross-examine Quilt and the alleged victims. Appellant’s Br. at 19.
We review for an abuse of discretion a district court’s denial of a continuance
motion. United States v. Vesey, 330 F.3d 1070, 1071 (8th Cir. 2003). We afford the
district court broad discretion in ruling on such motion. Id. at 1072. “Continuances
generally are not favored and should be granted only when the party requesting one
has shown a compelling reason.” Id. (quoting United States v. Allen, 247 F.3d 741,
771 (8th Cir. 2001)). A district court’s denial of a continuance motion will only be
reversed “if the court abused its discretion and the moving party was prejudiced by
the denial.” Id. (quoting Allen, 247 F.3d at 771).
We determine whether the district court abused its discretion “by looking at the
particular circumstances of the case.” Id. (quoting Allen, 247 F.3d at 771).
Specifically, we ask “whether counsel had sufficient time to prepare for trial; whether
counsel’s conduct at trial showed that he was well prepared; and whether the court’s
refusal to grant a continuance prejudiced the defendant.” Id. (cleaned up).
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Answering these questions, we conclude that the district court did not abuse
its discretion in denying Keepseagle’s continuance motion. First, Keepseagle had
over a year to prepare for trial. His investigator uncovered Quilt’s alleged abusive
coercion one month prior to trial. Second, the record shows that Keepseagle’s counsel
was well prepared to address Quilt’s actions, as evidenced by his thorough cross-
examination of Quilt, R.Q.J., D.Q., S.Q., and B.Q. See United States v. Cotroneo, 89
F.3d 510, 514 (8th Cir. 1996) (holding district court did not abuse its discretion in
denying a continuance where the defendant “was represented by counsel, who
cross-examined the government's witnesses at length, including questioning them
with respect to" the evidence received one day before trial). Finally, Keepseagle has
not identified what admissible evidence he would have offered had the district court
granted his continuance motion. Id. (“Although counsel also referred to ‘individuals
and witnesses’ whose presence at the hearing Cotroneo claimed he required, the
record contains no suggestion as to who those persons were, why their testimony was
necessary, or why their appearance had not been secured prior to the opening of the
hearing.”).
III. Conclusion
Because the district court plainly erred in not giving a special unanimity
instruction on Count I, we vacate that conviction and remand for a new trial. We
affirm the district court’s judgment in all other respects.
______________________________
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