United States of America v. Kimo John Little Bird, Sr.

United States Court of Appeals
For the Eighth Circuit
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No. 22-2176
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United States of America
Plaintiff - Appellee
v.
Kimo John Little Bird, Sr.
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Northern
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Submitted: February 16, 2023
Filed: August 3, 2023
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Before COLLOTON, BENTON, and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
A jury found Kimo John Little Bird, Sr., guilty on three counts: (1)
Aggravated Sexual Abuse of a Child, see 18 U.S.C. §§ 1153, 2241(c), and 2246(2);
(2) Committing a Felony Sex Offense Against a Minor While Required to Register
as a Sex Offender, see 18 U.S.C. § 2260A; and (3) Tampering with a Witness, see
18 U.S.C. §§ 1512(b)(1) and 1512(i). After the verdict, Little Bird filed a motion
for judgment of acquittal under Federal Rule of Criminal Procedure 29. The district

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court1 denied the motion and subsequently sentenced Little Bird to life plus 120
months in prison.
On appeal, Little Bird argues that the district court erred when it denied his
motion for judgment of acquittal because there was insufficient evidence to convict
on the aggravated sexual abuse and witness tampering charges. Little Bird also
challenges his sentence. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.
I.
Under Rule 29(a), the district court is to enter a judgment of acquittal for “any
offense for which the evidence is insufficient to sustain a conviction.” United States
v. Nelson, 51 F.4th 813, 817 (8th Cir. 2022) (quoting United States v. Broeker, 27
F.4th 1331, 1335 (8th Cir. 2022)). “We review the denial of a motion for judgment
of acquittal de novo, viewing the evidence and all reasonable inferences in the light
most favorable to the jury’s verdict.” United States v. McDonald, 826 F.3d 1066,
1072 (8th Cir. 2016) (per curiam). Judgment of acquittal should be granted “only
when no reasonable jury could have found the defendant guilty beyond a reasonable
doubt.” Id.
A.
Little Bird contends that the evidence at trial was insufficient to sustain his
conviction for aggravated sexual abuse. To convict Little Bird, the government had
to prove four elements: (1) Little Bird attempted to engage in a “sexual act” with the
victim; (2) the victim was under the age of 12 at the time the incident occurred; (3)
Little Bird is an Indian; and (4) the alleged offense occurred in Indian Country. See
18 U.S.C. §§ 1153, 2241(c).
1 The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.

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Little Bird first argues that there was insufficient evidence to prove that the
victim was under the age of 12 when the incident occurred. But the victim testified
that she was 11 years old at the time of the alleged assault. Further, the government
demonstrated—and Little Bird did not dispute—that the incident must have occurred
between the time Little Bird was released from prison on June 3, 2016, and the time
the victim’s grandmother reported the assault to the authorities on July 25, 2016.
This evidence, coupled with the victim’s testimony that she was born in 2005, was
sufficient for the jury to conclude beyond a reasonable doubt that she was under the
age of 12 at the time of the incident.
Little Bird also argues that there was no evidence of a “sexual act” as defined
by 18 U.S.C. § 2246(2) because the government did not provide any evidence of
penetration. But § 2246(2) includes four definitions of “sexual act,” only one of
which requires proof of penetration. A “sexual act” also includes “the intentional
touching, not through the clothing, of the genitalia of another person,” 18 U.S.C. §
2246(2)(D), and detailed trial testimony from the victim provided sufficient
evidence to conclude that Little Bird engaged in a “sexual act.” For example, the
victim testified that Little Bird touched her “skin to skin” underneath her underwear,
making a “cupped motion” over her genitalia. The victim further testified that after
she pulled Little Bird’s hand away, he smiled and said, “let me touch it.” “[A]
victim’s testimony alone is sufficient to persuade a reasonable jury of the
defendant’s guilt beyond a reasonable doubt.” United States v. Gabe, 237 F.3d 954,
961 (8th Cir. 2001). The district court did not err in denying Little Bird’s motion
for judgment of acquittal.
B.
Little Bird also contends that there was insufficient evidence to support the
jury’s conclusion that he committed witness tampering. See 18 U.S.C. § 1512(b)(1).
To convict on the witness tampering charge, the government was required to prove
that Little Bird “corruptly persuaded or attempted to corruptly persuade” someone,

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with the intent to influence the testimony of any person in an official proceeding.
To “corruptly persuade” another means to act “with consciousness of wrongdoing.”
United States v. Craft, 478 F.3d 899, 900 (8th Cir. 2007).
At trial, the government argued that Little Bird attempted to influence the
testimony of the victim by repeatedly asking his own mother—who is also the
victim’s grandmother—to have the victim recant the allegation. The government’s
evidence consisted primarily of a series of recorded jail house phone calls between
Little Bird and his mother in which Little Bird made repeated requests that she
convince the victim to provide a written recantation to law enforcement. As the
government pointed out, in none of these calls did Little Bird say that the allegation
was false or that he did not commit the act in question. His mother testified that
Little Bird’s calls made her feel like she was “being pressured” to help him get the
charges dropped.
In addition to this evidence, the government highlighted two specific instances
it argues demonstrated Little Bird’s consciousness of wrongdoing. First, the
government played a recording of Little Bird describing his negative experiences in
jail—namely, that he was beat up and injured by other inmates. Under the
government’s theory, this amounted to an attempt to play on his mother’s sympathies
and compel her to procure the recantation so that he would be released. Second, the
government showed that Little Bird offered to give his mother half of his
government-issued stimulus check, which, according to the government, represented
an attempt to curry favor with her after his numerous requests for help.
Little Bird countered that his requests could not have been an attempt to
corruptly persuade his mother because he was only acting in accordance with his
attorney’s instructions. At trial, Little Bird testified that his mother told him the
victim had recanted the allegation. When Little Bird asked his lawyer what to do,
his lawyer said to have the victim “write a statement, stating that [she] lied” and to
be sure it is “signed.” Thus, according to Little Bird, the calls to his mother were
merely a result of him doing what his lawyer said he should do, not an attempt to

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“corruptly persuade” anyone. In other words, Little Bird contends that he lacked the
requisite intent under the statute.
Here, the evidence at trial presented “two conflicting hypotheses” about Little
Bird’s motivation in making these phone calls. United States v. Hensley, 982 F.3d
1147, 1157 (8th Cir. 2020). The jury found more credible the government’s
explanation. See United States v. Jefferson, 725 F.3d 829, 834 (8th Cir. 2013) (“[I]t
is within the province of the jury to make credibility assessments and resolve
conflicting testimony.” (citation omitted)). And while there was no direct evidence
that Little Bird attempted to corruptly persuade his mother, there was sufficient
circumstantial evidence to support the jury’s conclusion that he did. Given that all
reasonable inferences must be construed in favor of upholding the verdict, this court
will not disturb the jury’s decision on this count.
II.
Little Bird also challenges his sentence. The district court calculated a base
offense level of 38 and applied a two-level enhancement for obstruction of justice,
resulting in a total offense level of 40. With a criminal history category of VI, the
recommended Guidelines range for Little Bird was 360 months to life. Little Bird’s
conviction under 18 U.S.C. § 2260A—committing a felony involving a minor while
registered as a sex offender—further required a minimum of 120 months’
imprisonment to run consecutively to the underlying offense. The district court
imposed a life sentence.
Little Bird first argues that the district court procedurally erred in imposing
the two-level enhancement for obstruction of justice. “A district court’s application
of the guidelines to the facts is reviewed de novo and its factual findings for clear
error.” United States v. Dillard, 370 F.3d 800, 804 (8th Cir. 2004). A court may
apply the obstruction-of-justice enhancement if the defendant “willfully obstructed
or impeded, or attempted to obstruct or impede, the administration of justice with

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respect to the investigation, prosecution, or sentencing of the instant offense of
conviction.” United States Sentencing Guidelines § 3C1.1 (2021). The jury’s
verdict on the witness tampering charge supported the enhancement, and it was
properly applied. See id. § 3C1.1, comment. (n.8).
Little Bird also challenges the substantive reasonableness of his sentence.
“We review the substantive reasonableness of a sentence under the deferential
abuse-of-discretion standard.” United States v. Lazarski, 560 F.3d 731, 733 (8th Cir.
2009). “A district court abuses its discretion and imposes an unreasonable sentence
when it fails to consider a relevant and significant factor, gives significant weight to
an irrelevant or improper factor, or considers the appropriate factors but commits a
clear error of judgment in weighing those factors.” United States v. Robison, 759
F.3d 947, 950–51 (8th Cir. 2014) (quoting United States v. Kreitinger, 576 F.3d 500,
503 (8th Cir. 2009)). If the sentence imposed is within the range provided by the
Guidelines, it is presumed to be reasonable. See United States v. Garcia, 946 F.3d
413, 419 (8th Cir. 2019).
At the sentencing hearing, the district court discussed at length the evidence
presented at trial and Little Bird’s extensive criminal history, including a previous
conviction for a sex offense against a minor. See 18 U.S.C. § 3553(a). The district
court’s justifications here for imposing a specific sentence “rest[ed] on precisely the
kind of defendant-specific determinations that are within the special competence of
sentencing courts.” United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009)
(en banc) (quoting United States v. Gardellini, 545 F.3d 1089, 1095 (D.C. Cir.
2008)).2 We discern no abuse of discretion in the sentence imposed.
2 To the extent Little Bird raises an Eighth Amendment challenge to his
sentence, he develops his argument for the first time in his Reply Brief, which is too
late for our review. See United States v. Darden, 915 F.3d 579, 586 n.9 (8th Cir.
2019) (“We generally do not consider arguments raised for the first time in a reply
brief . . . .”).

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III.
The judgment of the district court is affirmed.
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