United States of America v. Descart Austin Begay, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 23-1830
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United States of America
Plaintiff - Appellee
v.
Descart Austin Begay, Jr.
Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: April 10, 2024
Filed: September 10, 2024
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Before BENTON, GRASZ, and STRAS, Circuit Judges.
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STRAS, Circuit Judge.
A jury found Descart Begay, Jr., guilty of both sexual abuse and aggravated
sexual abuse. See 18 U.S.C. §§ 2241(a)(1), 2242(1). Although he challenges the
evidence the jury heard and the sentence he received, we affirm.

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I.
S.S. had not heard from Begay, a former coworker, in over a decade. Yet one
day she received a Facebook message trying to strike up a conversation. The
discussion quickly fizzled out, so it was a surprise when he showed up later that
afternoon at her home on the Red Lake reservation in northern Minnesota. The two
chatted for a while before heading inside, where they began looking at her artwork.
The subject of painting with an airbrush came up, so he went home to grab one.
When he returned, the situation took a turn for the worse. With S.S.’s son
playing video games in the living room, Begay began rubbing her arm in the hallway.
She said no, but he would not stop. He said that he had “wanted this since [he] was
21 years old,” shoved her into the bedroom, and raped her.
At some point, her son called out. It distracted Begay long enough for S.S. to
scramble out to the living room, where she managed to grab her son and get to the
front door. But as she tried to leave, Begay caught up with her and slammed it shut.
Although S.S. cried out and pleaded with him to stop, he began sexually assaulting
her again.
This time, S.S. managed to break free completely and drive away with her
son. When she arrived at her mother’s house, she spent a few minutes outside
sobbing near her father’s grave. Once she mustered the courage to go inside, she
revealed to her mother why she was so upset: Begay had raped her.
While driving back home several hours later, she spotted Begay, who began
following her on his bicycle. Shortly after she arrived home, he began pounding on
the front door. In response, she locked herself in a room, called her estranged
husband to tell him that Begay had raped her, and contacted the police.
When officers arrived, they saw Begay “duck and dive” in an attempt to hide.
Then he tried to leave on his bicycle, but he did not get far before they arrested him.

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Following a five-day trial, a jury found him guilty of two counts each of sexual
abuse, see 18 U.S.C. §§ 2242(1), 1151, 1153(a), and aggravated sexual abuse, see
id. §§ 2241(a)(1), 1151, 1153(a). The district court1 sentenced him to 200 months
in prison.
II.
Begay first challenges what happened at trial. He argues that the jury heard
too much from the government and too little from him. We review evidentiary
rulings “for an abuse of discretion, keeping in mind that we will reverse only if an
error affected the defendant’s substantial rights or had more than a slight influence
on the verdict.” United States v. Streb, 36 F.4th 782, 788 (8th Cir. 2022) (citations
omitted).
A.
During redirect examination, S.S. testified that she told others that Begay had
raped her. The general rule is that a witness’s prior consistent statements are
inadmissible hearsay when “offered for the truth of the matter asserted.” United
States v. Mallory, 104 F.4th 15, 20 (8th Cir. 2024); see Fed. R. Evid. 801(c).
In two situations, however, they are “not hearsay.” Fed. R. Evid.
801(d)(1)(B). One is when “rebut[ting] an express or implied charge that the
declarant recently fabricated [her testimony] or acted from a recent improper
influence or motive in so testifying.” Id. (B)(i). And the other is when
“rehabilitat[ing] the declarant’s credibility as a witness when attacked on another
ground.” Id. (B)(ii).
1 The Honorable Nancy E. Brasel, United States District Judge for the District
of Minnesota.

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S.S.’s testimony fits into both categories. At trial, she withstood multiple
attacks on her credibility. One recurrent theme was that she had a motive to lie
because she feared that her estranged husband would become violently angry if he
found out that she had consensual sex with another man. During cross-examination,
Begay’s counsel tried to convince the jury that she made up the story about the rape
to avoid angering him. This is an example of a category-one situation: a “charge”
that a witness fabricated a story based on a motive to lie. See Fed. R. Evid.
801(d)(1)(B)(i); see also Tome v. United States, 513 U.S. 150, 158 (1995)
(discussing this type of situation).
The other line of attack was that the jury could not trust S.S.’s recollection
because she had a faulty memory, both from past drug use and her mental-health
struggles. Cross-examination uncovered several details she could not remember.
Some were from after the assault, like when she put on her socks and the identity of
the officer who helped her. Others were about what happened during the rape, like
whether Begay choked her. These raised a category-two situation: credibility
“attack[s] on another ground.” Fed. R. Evid. 801(d)(1)(B)(ii).
The prosecutor highlighted her prior consistent statements in response to both
types of impeachment. See Fed. R. Evid. 801(d)(1)(B). S.S. testified on redirect
that she told multiple people—her mother, her estranged husband, and the officers
who interviewed her—about the rape. In response to additional questioning, she
also agreed that she told an FBI agent and the examining nurse about it. And then
she summed up by saying that she had “repeatedly told law enforcement that Mr.
Begay [had] raped [her].”
Begay’s position is that these statements were hearsay because they all came
after her motive to lie arose. That is, if she was worried about angering her estranged
husband, then she had a motive to lie right from the start. For support, he relies on
Tome v. United States, 513 U.S 158 (1995).

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In Tome, the Supreme Court considered whether “rebut[ting] an express or
implied charge . . . of recent fabrication” or acting from a recent “improper influence
or motive” is available only when the prior consistent statement precedes “the
alleged influence, or motive to fabricate.” Id. at 157–58. The answer was yes: only
pre-motive prior consistent statements qualified. Id. at 160. On its own, Tome
suggests that the jury should not have heard any of S.S.’s prior consistent statements
because her alleged motive to lie already existed at the time she made them. See
United States v. Bercier, 506 F.3d 625, 629 (8th Cir. 2007) (holding that prior
consistent statements were inadmissible under Tome when the “defense at trial was
that [the victim] fabricated her story of non-consensual sexual assault immediately
after leaving his bedroom”).
Tome, however, is not the end of the story. A 2014 amendment to the Federal
Rules of Evidence added the second category of admissible prior consistent
statements. See Fed. R. Evid. 801(d)(1)(B)(ii). It applies any time a credibility
attack involves “another ground,” something other than an allegedly fabricated
statement arising out of a motive to lie or improper influence. For its part, Tome
interpreted an earlier version of the rule that included only the first category. See
United States v. Burch, 809 F.3d 1041, 1046 (8th Cir. 2016) (recognizing that Tome
still applies to that subparagraph). The question presented here is whether the Tome
pre-motive-statement requirement applies to the second category too.
A step back into the common law of hearsay, the body of law that the Supreme
Court relied on in Tome, provides the answer. Courts have long recognized that an
out-of-court statement used to rehabilitate a witness is not hearsay. See United States
v. Simonelli, 237 F.3d 19, 27 (1st Cir. 2001); United States v. Rubin, 609 F.2d 51,
70 (2d Cir. 1979) (Friendly, J., concurring). It shows that a witness is reliable, not
that the statement is true. See 2 Robert P. Mosteller et al., McCormick on Evidence
§ 251, at 225 (8th ed. 2020) (noting that “consistent statements are often admitted to
explain what would otherwise appear to be an inconsistency in the witness’s
testimony and to rebut a charge of faulty memory”).

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This case is a good example: the prosecution offered S.S.’s prior consistent
statements to prove that she did not change her story. See 5 Jack B. Weinstein et al.,
Weinstein’s Federal Evidence § 801.22[1][a] (2d ed. 2009) (explaining that prior
consistent statements “tend[] to show that the witness is telling the truth at trial, since
the trial testimony matches what the witness said earlier”). If the reason for
admission, on the other hand, was to show that Begay had raped her, then it would
be classic hearsay, offered for the “truth of the matter asserted.” See Fed. R. Evid.
801(c)(2). Under the common law, the former would be admissible, and the latter
would not be. See id. advisory committee’s notes to original rule (“Prior consistent
statements traditionally have been admissible to rebut charges of recent fabrication
or improper influence or motive but not as substantive evidence.”); United States v.
Kenyon, 397 F.3d 1071, 1081 (8th Cir. 2005) (explaining that prior consistent
statements could be submitted to the jury when “offered only for purposes of
rehabilitation” and not “for the truth of the matter[] asserted”).
The 2014 amendment changed the landscape by getting rid of this common-
law distinction. See generally Fed. R. Evid. 801 advisory committee’s notes to 2014
amendment. A rehabilitative use now provides a gateway to across-the-board
admissibility, both as a response to a general credibility attack and as substantive
evidence of guilt. See id. (“[P]rior consistent statements otherwise admissible for
rehabilitation are now admissible substantively as well.”); McCormick on Evidence,
supra, § 251, at 225 (8th ed. 2020) (observing that “if a statement is admitted to
rehabilitate a witness’s credibility . . . the statement is admissible, not only to affect
credibility, but also for its truth and is considered not hearsay”). The rationale for
the change is that the prior consistent statement necessarily must match what the
witness has already said in court. See Fed. R. Evid. 801 advisory committee’s notes
to proposed rules para. (d)(1) (“If the witness admits on the stand that he made the
statement and that it was true, he adopts the statement and there is no hearsay
problem.”); see also Weinstein’s Federal Evidence, supra, § 801.22[1][a] (2d ed.
2009). In other words, the testifying witness is basically adopting the earlier prior
consistent statements, so it would be confusing for the jury to try to differentiate
between the hearsay and non-hearsay uses of them. See Fed. R. Evid. 801 advisory

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committee’s notes to 2014 amendment (explaining that when “[t]he prior statement
is consistent with the testimony given on the stand, and . . . the opposite party wishes
to open the door for its admission in evidence, no sound reason is apparent why it
should not be received generally”). Once again using this case as an example, S.S.
testified at trial that Begay raped her, so she has, in a sense, adopted her earlier
statements saying the same thing.
Now back to Tome. The rationale for a pre-motive-statement limitation in
category-one cases is that a prior consistent statement only becomes “a square
rebuttal of the charge that the testimony was contrived as a consequence of that
motive” if the witness had been saying the same thing all along, even before the
motive to lie arose. Tome, 513 U.S. at 158. The rehabilitative force disappears, on
the other hand, if the prior consistent statement came later. Cf. id. If time 1 is when
the motive to lie arose, then we would expect statements made at time 2 and time 3
to be consistent. After all, the same motive to lie existed at those points. A
consistent statement at time 0, in contrast, squarely rebuts the motive-to-lie charge.
There is no similar rationale for importing a pre-motive-statement
requirement into the second category. The main reason is the nature of the attack.
First, if the charge is a lack of credibility based on a faulty memory or any “[]other
ground,” then a prior consistent statement made at any point—time 0, 1, 2, or 3—
will “rehabilitate” the witness. Second, it is almost impossible to pinpoint a specific
point in time when a faulty memory arises, unlike a motive to lie or other improper
influence, so it would not “make[] . . . sense” to import a timing requirement. Id.
And finally, timing has never mattered for category-two prior consistent statements,
at common law or now. See, e.g., United States v. Andrade, 788 F.2d 521, 532–33
(8th Cir. 1986) (admitting prior consistent statements to rehabilitate over a Rule
801(d)(1)(B) objection despite “the government . . . not show[ing] that the notes
were created prior to [when] the motive to fabricate them arose”). Long story short,
none of the conditions for a “common-law premotive requirement” are present in
category-two situations. Tome, 513 U.S. at 160.

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Begay’s view is that this is not a category-two situation at all. He was trying
“to make [the] broader point” that S.S. had a motive to lie, even if he attacked her
credibility in multiple ways. United States v. Portillo, 969 F.3d 144, 174 (5th Cir.
2020). In these “mixed” situations, involving both category-one and category-two
impeachment, he believes the pre-motive requirement from Tome must apply. That
is, a rule of inadmissibility must trump one of admissibility to avoid circumvention
of the Tome rule. Many situations, after all, involve both category-one and category-
two impeachment.
The premise of the argument may be true, but the conclusion is not. Even if
many cases involve both types of impeachment, the two categories of Rule
801(d)(1)(B) are joined by an “or,” meaning a statement “is not hearsay” if it satisfies
either condition.2 And if the text were not clear enough, the evidentiary rules
“generally favor the admission, rather than the exclusion, of evidence.” See United
States v. Jiminez, 487 F.3d 1140, 1145 (8th Cir. 2007); see also Moore v. United
States, 648 F.3d 634, 639 (8th Cir. 2011) (explaining that the Federal Rules of
Evidence “favor admitting relevant evidence absent a specific reason to exclude it”).
To take an example, a hearsay statement may qualify as an excited utterance but not
a present-sense impression. We do not exclude it as hearsay in that situation. See,
e.g., United States v. Boyce, 742 F.3d 792, 797–98 (7th Cir. 2014) (“We need not
definitively decide whether . . . [the] statements fail to qualify under the
present[-]sense impression exception because even if they did, they would still be
admissible as an excited utterance.”); see also Fed. R. Evid. 803(1)–(2) (listing each
as an independent reason “not [to] exclude[]” the statement).
The same goes here. S.S. may well have had a motive to lie at the time of the
rape, making the post-rape statements inadmissible under Rule 801(d)(1)(B)(i). But
the statements were still admissible to counter the “attack[s] on another ground,”
2 The impeachment must truly be “on another ground” to qualify, one not
covered by the first category. Fed. R. Evid. 801(d)(1)(B)(ii) (emphasis added). Only
when a party impeaches a witness on a ground “[]other” than—or in addition to—a
motive to lie does the second category kick in. Id.

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like her allegedly faulty memory. Id. (B)(ii); see United States v. Flores, 945 F.3d
687, 705 (2d Cir. 2019) (concluding there was no error in admitting prior consistent
statements under subparagraph (ii) in response to challenges to both a witness’s
faulty memory and a motive to fabricate); cf. United States v. Peneaux, 432 F.3d
882, 891 (8th Cir. 2005) (admitting prior inconsistent statements as substantive
evidence under Rules 807 and 803(4) despite the government “not refut[ing] [the]
argument” that the statements “[could not] be admitted as substantive evidence
under Rule 801(d)(1)(A)”). They then became fair game for the prosecutor and the
jury to use as substantive evidence of Begay’s guilt. See United States v. Purcell,
967 F.3d 159, 196–97 (2d Cir. 2020) (affirming the substantive use of non-hearsay
statements admitted under Rule 801(d)(1)(B)(ii)).3
B.
Begay’s other evidentiary objection covers what he thinks the jury should
have heard. He wanted to explore S.S.’s sexual history in detail, but the district court
placed limits on how far he could go. Although he could argue that somebody else
was behind the injuries and the sperm fragments, prior inconsistent statements about
her sexual history were off-limits. See Fed. R. Evid. 412(a) (limiting evidence about
a victim’s sexual behavior).
3 S.S.’s mother testified at trial that she heard S.S. say that Begay had raped
her. Her recollection of what S.S. said was not admissible as a prior consistent
statement because she testified before S.S. did. See United States v. Lanier, 578
F.2d 1246, 1256 (8th Cir. 1978) (“[W]e recognized that the testimony of a third party
may be used to introduce the prior consistent statement of a witness after
impeachment has been used to assail the witness’ testimony as a fabrication.”
(emphasis added)). Still, the fact that S.S.’s prior consistent statements came in
anyway, through S.S. herself, means any error in admitting the hearsay statements
through her mother was surely harmless, especially when considered against the
backdrop of the overwhelming evidence of guilt. See United States v. Wipf, 397
F.3d 677, 682 (8th Cir. 2005) (noting that hearsay “testimony was merely cumulative
and did not likely influence the jury” when it “mirrored” other testimony).

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In his view, those limitations violated his Sixth Amendment right to confront
his accuser. Even if we assume they did—a question we need not decide today—
any error was harmless beyond a reasonable doubt. See United States v. Campbell,
986 F.3d 782, 794 (8th Cir. 2021); see also Delaware v. Van Arsdall, 475 U.S. 673,
684 (1986) (listing the factors for determining whether a Confrontation Clause
violation is harmless). For one thing, the district court allowed Begay’s counsel to
ask her about other sexual partners, which led to the admission of much of the
evidence he wanted the jury to hear, including her sexual activity around the time of
the rape. See United States v. Arias, 74 F.4th 544, 551 (8th Cir. 2023) (noting that
the extent of cross-examination otherwise permitted is an important factor). Second,
“impeach[ing] her general credibility” with inconsistent stories of her sexual
behavior, the only type of evidence that was off-limits, had “little or no probative
value on the question of whether she falsely accused [Begay] of rape.” United States
v. White Buffalo, 84 F.3d 1052, 1054 (8th Cir. 1996). And third, the evidence of
guilt here was overwhelming, particularly given the detailed testimony of multiple
witnesses, the physical evidence corroborating that the rape occurred, and Begay’s
suspicious behavior afterward.4 Any error in limiting the cross-examination had, at
most, “a slight influence on the verdict.” Streb, 36 F.4th at 789 (citation omitted).
III.
Next, we move on to sentencing. Begay asks us to vacate two enhancements
he received. “In evaluating each, we review the district court’s construction and
application of the sentencing guidelines de novo and its factual findings for clear
error.” Id. at 790 (citation omitted).
4 For these same reasons, the evidence was sufficient to convict him. See
United States v. DeCoteau, 630 F.3d 1091, 1097 (8th Cir. 2011).

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A.
The first one was for causing “serious bodily injury,” U.S.S.G.
§ 2A3.1(b)(4)(B), which the district court imposed because of the impact of the rape
on S.S.’s “mental facult[ies].” Id. § 1B1.1, cmt. n.1(M). As she explained, it left
her unable to sleep; ruined her marriage, friendships, and relationships; and made
her feel like she was “fight[ing a] battle in [her] head constantly.” In her words,
“[t]he pain of that day never went away.”
We have approved of serious-bodily-injury enhancements in similar
circumstances. In one case, it was “depression and PTSD.” United States v. Guy,
340 F.3d 655, 658–59 (8th Cir. 2003). In another, “continued psychological
problems such as recurring nightmares.” United States v. Kills in Water, 293 F.3d
432, 436 (8th Cir. 2002). And in a third, “[i]rrational, debilitating fear, night terrors
and nightmares, depression, [and] anxiety attacks that generalized into all other areas
of life management.” United States v. Rodgers, 122 F.3d 1129, 1133 (8th Cir. 1997).
We agree with the district court that S.S.’s lasting psychological damage fits within
this line of cases.
It makes no difference that she had no specific medical diagnosis from the
rape, cf. Kills in Water, 293 F.3d at 436 (approving the enhancement for recurring
nightmares without discussing a diagnosis), or that she had preexisting mental-health
issues. It is enough that the district court believed her when she blamed Begay for
bringing on some new problems and making her existing mental-health struggles
worse. See United States v. Bruguier, 161 F.3d 1145, 1153 (8th Cir. 1998). Add the
fact that her mother described a profound change in her daughter after the rape, and
we cannot say that the serious-bodily-injury finding was clearly erroneous. See
United States v. Gibson, 840 F.3d 512, 514 (8th Cir. 2016).

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B.
The second one was for “physically restrain[ing] [the victim] in the course of
the offense.” U.S.S.G. § 3A1.3. Begay’s position is that it duplicates an element of
aggravated sexual abuse, so it “double counts” the same conduct. Compare id., with
18 U.S.C. § 2241(a).
We have encountered this double-counting argument before and rejected it.
See United States v. Long Turkey, 342 F.3d 856, 859 (8th Cir. 2003) (“Victim
restraint is not an element of aggravated sexual abuse”); see also Arcoren v. United
States, 929 F.2d 1235, 1247–48 (8th Cir. 1991) (“[A]lthough ‘physically restrained’
requires the use of force, use of force does not necessarily entail physical restraint.”).
We do the same today.
IV.
We accordingly affirm the judgment of the district court.
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