USA v. Little Bird, Sr.

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
FILED
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UNITED STATES OF AMERICA, 1:20-10012-CBK
Plaintiff,
vs.
KIMO JOHN LITTLE BIRD, SR., MEMORANDUM AND ORDER
Defendant.
I. BACKGROUND
Mr. Kimo Little Bird, Sr., ("defendant") moves this Court to grant him a judgment
of acquittal on all counts for which he was convicted in this matter. And in the
alternative, Mr. Little Bird requests a new trial for the three counts on which the jury
handed down guilty verdicts. The defendant filed his motion on December 1, 2021,
which the Government responded to in opposition on December 8, 2021. Because none
of defendant's arguments warrant disturbing the jury's verdicts in this matter, Little
Bird's motion should be denied.
Defendant Little Bird was charged in a five-count superseding indictment: (I)
aggravated sexual abuse of a child; (11) felony sex offense against a minor while required
to register as a sex-offender; (III) sexual abuse of a person incapable of consent; (IV)
felony sex offense against a minor while required to register as a sex-offender; and (V)
tampering with a witness. Doc. 37. The defendant's jury trial began on November 16,
2021, with the trial lasting until November 18, 2021. On November 18, the jury was
instructed by this Court and began their deliberations. After finishing their deliberations,
the jury returned unanimous guilty verdicts on Counts I, II, and V, while deadlocking on
Counts III and IV. Doc. 84. Accordingly, this Court declared a mistrial on Counts III
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and IV. Doc. 85. The United States moved to dismiss the deadlocked counts on the same
day, which was granted by this Court on November 22, 2021. Docs. 89, 94.
The events that were at issue in this proceeding resulted from two separate
allegations that Mr. Little Bird engaged in improper sexual acts with his two young
nieces, S.I.R. and S.S.W. Counts I and II relate to Mr. Little Bird committing aggravated
sexual abuse against S.I.R. in 2016, a child who had not yet attained 12 years of age.
Counts III and IV stem from purported events dating back to 2012, alleging the defendant
engaged in or attempted to engage in a sexual act with another niece, S.S.W., when she
was incapable of declining participation in and communicating an unwillingness to
engage in the sexual act, knowing the child was incapacitated. Finally, Count V resulted
from defendant's repeated 2021 phone calls while incarcerated to knowingly corruptly
persuade Ms. Priscilla Little Dog (the grandmother of S.I.R. and S.S.R.), Ms. Brianne
Little Bird (the mother of S.I.R. and S.S.R.), S.I.R., or S.S.W. to prevent the testimony of
S.I.R. and S.S.W. accusing him of the alleged sexual acts. In short, this Count relates to
Little Bird's attempts to tamper with the Government's witnesses. Because he was only
convicted of the 2016 aggravated sexual abuse charge and resulting felony sex offense
against a minor while required to registered as a sex offender and witness tampering
charges, the 2012 allegations are not relevant to this motion.
Mr. Little Bird presents three arguments to this Court on why there is insufficient
evidence in the record to convict him of Counts I, II, and V, and thus he should receive a
judgment of acquittal, or in the alternative, a new trial: (1) the United States failed to
adequately prove S.I.R. was not yet 12 years of age when Little Bird committed the
sexual act, specifically genital touching beneath the young girl's underwear; (2) the
Government did not show he acted knowingly when seeking to corruptly persuade
Priscilla, Brianne, S.I.R., or S.S.W. to have S.I.R. and S.S.W. recant their accusations;
and (3) a catch-all argument that none of the counts are supported by sufficient evidence
to warrant the jury to convict him beyond a reasonable doubt. Each argument is
addressed in turn, under each of the two differing legal standards for motions for
judgment of acquittal and for a new trial. And throughout its analysis, the Court takes
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proper caution on whether to invade the province of the jury and disrupt its carefully
deliberated unanimous verdicts.
II. DISCUSSION
A. Legal Standard
1. Judgment ofAcquittal
Motions for judgment of acquittal pursuant to Federal Rule of Criminal Procedure
29(a) are only granted "'where the evidence is insufficient to sustain a conviction."'
United States v. Love,- F.4th -,2021 WL 5893809,at *4 (8th Cir. Dec. 14,2021)
(quoting United States v. Hardin,889 F.3d 945,949 (8th Cir. 2018)). The United States
Court of Appeals for the Eighth Circuit's standard of review for claims of insufficient
evidence "is very strict,and the verdict of a jury should not be overturned
lightly." United States v. Anderson,570 F.3d 1025,1029 (8th Cir. 2009) (quoting United
States v. Scott,64 F.3d 377,380 (8th Cir. 1995)).
"When a district court considers a motion for acquittal,it does so with 'very
limited latitude."' United States v. Williams,647 F.3d 855,859 (8th Cir. 2011) (quoting
United States v. Hernandez,301 F.3d 886,889 (8th Cir. 2002)). See United States v.
Magallon,984 F.3d 1263,1288 (8th Cir. 2021) ("The district court's discretion to grant
an acquittal is even more limited than its discretion to grant a new trial.") (citing United
States v. Robbins,21 F.3d 297,298-99 (8th Cir. 1994)). This Court will "'reverse a
conviction only if no reasonable jury could have found the defendant guilty beyond a
reasonable doubt."' United States v. Thompson, 11 F.4th 925,929 (8th Cir. 2021)
(quoting United States v. Free,976 F.3d 810,813-14 (8th Cir. 2020)). See United States
v. Bull,8 F.4th 762,770 (8th Cir. 2021) ("'Sufficiency review essentially addresses
whether 'the government's case was so lacking that it should not have even been
submitted to the jury."') (quoting Musacchio v. United States,577 U.S. 237,242 (2016)).
To do otherwise would intrude "on the jury's role 'to resolve conflicts in the testimony,
to weigh the evidence,and to draw reasonable inferences form basic facts to ultimate
facts."' Bull,8 F.4th at 770 (quoting Musacchio,577 U.S. at 237). This Court cannot
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and will not make credibility determinations on a motion for judgment of acquittal.
United States v. Ruzicka, 988 F.3d 997,1008 (8th Cir. 2021).
"'A [] verdict may be based on circumstantial as well as oirect evidence,and [t]he
evidence need not exclude every reasonable hypothesis except guilt."' United States v.
White,915 F.3d 1195,1197 (8th Cir. 2019) (alterations in original) (quoting United
States v. McArthur,573 F.3d 608,614 (8th Cir. 2009)). Rather,if the "evidence
'rationally supports two conflicting hypotheses,' we 'will not disturb the conviction."'
United States v. Hensley,982 F.3d 1147,1157 (8th Cir. 2020) (quoting McArthur,573
F.3d at 614-15). Instead,this Court may only reverse "'if there is no construction of the
evidence that supports the verdict."' White,915 F.3d at 1197 (emphasis in original)
(quoting United States v. Provost,237 F.3d 934,937 (8th Cir. 2001)).
2. Motion for New Trial
While district courts hold more leeway in granting requests for new trials
compared to motions for judgments of acquittal,they are nevertheless held to a high bar
and not to be freely granted. This Court "may grant a motion for a new trial 'if the
interest ofjustice so requires."' United States v. Garcia,569 F.3d 885,889 (8th Cir.
2009) (quoting FED. R. CRIM. P. 33). Operating with greater discretion than motions for
judgment of acquittal,here district courts may "grant or deny a motion for a new trial
base_d upon the weight of the evidence,and the court may 'weigh the evidence,disbelieve
witnesses,_and grant a new trial even where there is substantial evidence to sustain the
verdict."' Id. (quoting United States v. Starr,533 F.3d 985, 999 (8th Cir. 2008), cert.
denied, 555 U.S. 1079 (2008). This Court also "need not view the evidence in the light
most favorable to the verdict and it is permitted to weigh the evidence and evaluate the
credibility of the witnesses." United States v. Hassan,844 F.3d 723,725-26 (8th Cir.
2016) (citing United States v. Knight,800 F.3d 491,504-05 (8th Cir. 2015)). If this
Court finds there has been "'a miscarriage of justice,"' then a new trial becomes
necessary. United States v. Johnson,719 F.3d 660,666 (8th Cir. 2013) (quoting United
States v. Samuels,543 F.3d 1013,1019 (8th Cir. 2008)). However,"[m]otions for new
trials based on the weight of the evidence are generally disfavored." United States v.
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Stacks, 821 F.3d 1038, 1044 (8th Cir. 2016) (citing United States v. Campos, 306 F.3d
577, 579 (8th Cir. 2002)). District courts' authority to grant new trials should "rarely be
exercised." Hassan, 844 F.3d at 726 (citing Knight, 800 F.3d at 504).
B. Judgment of Acquittal
The defendant challenges the validity of all three convictions, arguing they "were
against the great weight of evidence." Doc. 96. He proceeds to identify two specific
reasons in addition to his general objections: (1) that the conviction for aggravated sexual
abuse of S.I.R. in Count I of the superseding indictment was improper because the
evidence in the record did not sufficiently establish she was below the age of 12 years at
the time of the abuse; and (2) that Count V of the superseding indictment, convicting
Little Bird of tampering with a witness, should be reversed by this Court because the
evidence did not show sufficient indicia that the corrupt persuasion was done knowingly.
Both specific contentions, as well as his general argument about the weight of the
evidence, are examined.
1. Count I -Aggravated Sexual Abuse
First, Mr. Little Bird contends no reasonable juror could find, based on the
evidence presented, that S.I.R. had not attained the age of 12 years when he committed
aggravated sexual abuse- a charge that required the victim to have not yet attained the
age of 12 years-, and thus could not convict him on Count I of the superseding
indictment. See doc. 37 (charging Little Bird with violations of 18 U.S.C. §§ 1153,
2241 (C), 2246(2)).
This Court instructed the jury on the elements related to the crime of aggravate
sexual abuse of a child, as laid out in Count 1 of the superseding indictment:
1. On or about June 2, 2016, and July 24, 2016, the defendant voluntarily and
intentionally caused, or attempted to cause, to engage in a sexual act, that is, the
intentional touching, not through the clothing, of the genitalia of another person
who has not attained the age of 12 years with an intent to abuse, humiliate, harass,
or degrade or to arouse [S.I.R.] or gratify the sexual desire of the defendant.
2. At the time of the alleged offense, [S.I.R.] had not attained the age of 12 years.
3. The defendant is an Indian; and
4. The alleged offense occurred in Indian Country.
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JURY INSTRUCTION 11, doc. 77 at 12. See United States v. Plenty Arrows, 946 F.2d 62,
66 (8th Cir. 1991) (describing aggravated sexual abuse's elements); EIGHTH CIRCUIT
MODEL JURY INSTRUCTIONS, 6.18.242 Deprivation a/Civil Rights (18 USC§ 242), at
207 (defining "sexual act" to include "intentional touching, not through the clothing, of
the genitalia of another person." The Model Jury Instructions derived their definition of
"sexual act" from 18 U.S.C. § 2246(2). Id. at 209). Elements 3 and 4, providing the
jurisdictional justification for this Count, were stipulated to by the parties. The issue
presented here is whether the defendant did in fact voluntarily and intentionally pursue
the aggravated sexual abuse of S.I.R., and whether it was clear she had not yet attained
the age of 12 years when the abuse occurred.
First, the jury heard testimony from S.I.R. herself explaining the sexual acts Little
Bird performed without her consent. The young victim testified that she fell asleep while
watching a movie with her sister and the defendant. She went on to tell the jury that Mr.
Little Bird tugged her away from the air mattress where she fell asleep towards the futon
where he was positioned. Next, S.I.R. testified, Little Bird put his hand down her
underwear, touching her genitalia skin-to-skin. This testimony provides sufficient facts
for the jury to find beyond a reasonable doubt that Mr. Little Bird did voluntarily and
intentionally engage in a sexual act, namely the intentional touching of S.I.R.'s genitalia
underneath the clothing.
Next, Little Bird specifically challenges whether the age of S.I.R. at the time of the
abuse was supported in the record, that is, whether she was in fact 11-years-old at the
time of the genital touching. The superseding incitement charged Little Bird with
committing the aggravated sexual abuse between June 3, 2016, and July 24, 2016, an age
range when S.I.R. had attained 11 years of age. S.I.R. testified to her date of birth,
allowing the jury to calculate her proper age of 11 years between June 3, 2016, and July
24, 2016. S.I.R. also testified to the fact she was not yet 12-years-old when this incident
took place. Further, this offense was reported to Little Bird's United States Probation
Officer on July 25, 2016, meaning the abuse could not have occurred after July 25, 2016.
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Even if the abuse was at the very end of the charged date range, S.I.R was still 10 months
away from her twelfth birthday.
This Court is not making credibility determinations on S.I.R.'s testimony, or any
other evidence presented by the United States. See United States v. Ruzicka, 988 F.3d
997, 1008 (8th Cir. 2021). Instead, this Court finds that the evidence presented to the
jury could have led a reasonable jury to find the defendant guilty beyond a reasonable
doubt. United States v. Thompson, 11 F.4th 925, 929 (8th Cir. 2021). Operating within
the "very limited latitude" that district courts hold on a motion for judgment of acquittal,
this Court finds there was sufficient evidence to convict Mr. Little Bird on Count I of the
superseding indictment, specifically that (1) there was intentional touching by defendant
on S.I.R.'s genitalia beneath her clothing; and (2) that she had not yet attained 12 years of
age when the sexual act occurred. United States v. Williams, 647 F.3d 855, 859 (8th Cir.
2011). Accordingly, defendant's motion for judgment of acquittal for Count I of the
superseding indictment should be denied.
2. Count V - Witness Tampering
Next, the defendant challenges his witness tampering conviction, arguing there
was not sufficient evidence before the jury to find him guilty of knowingly corruptly
persuading a witness in this matter, and thus this Court should acquit him on Count V of
the superseding indictment.
This Court instructed the jury that, to convict Mr. Little Bird of tampering with a
witness in violation of 18 U.S.C. §§ 1512(b)( l ),(i), they must find:
1. On or about between June 8, 2021, and October 13, 2021, the defendant
knowingly corruptly persuaded or attempted to corruptly persuade Priscilla Little
Dog, Brianne Little Bird, S.I.R., or S.S.W.; and
2. That defendant did so with the intent to hinder, delay, or prevent the testimony of
S.I.R. or S.S.W. in the criminal case of United States of America v. Kimo John
Little Bird, Sr., CR 20-10012.
JURY INSTRUCTION 16, doc. 77 at 17. See United States v. Craft, 478 F.3d 899, 900 (8th
Cir. 2007) (defining elements); EIGHTH CIRCUIT MODEL JURY INSTRUCTIONS, 6.18.1512,
Tampering with a Witness (18 USC.§ 1512(B){l)), at 417 (same). Defendant argues the
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jury did not have sufficient evidence to convict him of knowingly corruptly persuading
any of the individuals because "there was clear testimony form [sic] the Defendant that
he was following the direction on [sic] attorney and specifically having these alleged
victims contact law enforcement." DEFENDANT KIMO LITTLE BIRD'S MOTION FOR
ACQUITTAL OR IN THE ALTERNATIVE, MOTION FOR A NEW TRIAL, doc. 96 at 4.
Additionally, Little Bird makes bare that "the witnesses who were alleged to have been
corruptly persuaded caused all of these events by lying to the Defendant about
recantations of the victims which never existed." Id. Thus, defendant argues, this
"negated" any possible corrupt persuasion because he was "simply acting on false
information he was provided," i.e., that the two alleged victims were interested in
recanting their stories. Id. While this was Little Bird's justification, it was ultimately
within the province of the jury to assess whether this theory was credible. For the jury, it
was not.
Mr. Little Bird contends he was simply following the advice of his former counsel,
specifically that he was trying to have the two alleged victims recant their stories because
their accusations were false, rather than to corruptly persuade them from testifying or
going back on their honestly held beliefs. But the United States presented alternative
theories for the 13 phone calls made by the defendant, successfully arguing that he "used
his relationship as a son to Priscilla and Brianne's brother to invoke their sympathy in an
effort to corruptly persuade them to get S.I.R. and S.S.W. to write a letter recanting their
allegations." GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION FOR ACQUITTAL, OR
IN THE ALTERNATIVE, MOTION FOR A NEW TRIAL, doc. 97 at 13. Further, the
Government argued that on the July 26, 2021, phone call Mr. Little Bird sought to further
entice Priscilla by promising to hand over approximately $1,500 of his federal stimulus
check in order to obtain the recantations, providing further grounds for attempts at
knowingly corruptly persuading his family members to aid him in this proceeding. Id.
Considering the testimony presented, as well as the Government's exhibits
concerning the phone logs, see GOVERNMENT EXHIBITS, doc. 93 at 18-51, there were two
conflicting theories presented to the jury as to the purpose of these calls. Defendant
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contends he was simply adhering to former counsel's advice and following up on what he
was told by Priscilla and Brianne about interest on the part of the alleged victims to
recant. In turn, the Government argued before the jury and now before this Court that
Little Bird sought to use his relationship to Brianne and Priscilla to garner sympathy - as
well as financial incentives -to convince S.I.R. and S.S.R. to recant their allegations. In
instructing the jury, this Court made clear that to act with "intent to influence" meant Mr.
Little Bird had the "purpose of getting the person to change or color or shade her
testimony in some way." JURY INSTRUCTION 16, doc. 77 at 17. There was sufficient
evidence before the jury on whether these attempts to corruptly persuade were in fact
knowing. The jury deliberated and found, beyond a reasonable doubt, that the defendant
did in fact possess the requisite mens rea.
The evidence here presented "two conflicting hypotheses" about the purpose of
Little Bird's phone calls. United States v. Hensley, 982 F.3d 1147, 1157 (8th Cir. 2020).
The jury found more credible the Government's theory of events. Their verdict will not
be disturbed.
3. Count II -Felony Sex Offense While Required to Register as Sex Offender
Finally, without any specific attacks on the conviction other than a lack of
sufficient evidence, Mr. Little Bird also takes issue with Count II of the superseding
indictment. Count II charged the defendant with committing a felony sex offense against
a minor while required to register as a sex offender, in violation of 18 U.S.C. § 2260A.
The jury was instructed of the following elements for felony sex offense against a
minor while required to register as a sex offender:
1. On or about between June 2, 2016, and July 24, 2016, the defendant committed
aggravated sexual abuse of a child as charged in Count I of the superseding
indictment; and
2. At the time the defendant committed the offense the defendant was required by
federal, state, or tribal law to register as a sex offender.
JURY INSTRUCTION 12, doc. 77 at 13. See United States v. Charles, 895 F.3d 560, 565
(8th Cir. 2018) (explaining requirements to convict pursuant to 18 U.S.C. § 2260A).
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Mr. Little Bird stipulated to the second element requiring the jury to find
defendant was required by federal, state, or tribal law to register as a sex offender. So,
the threshold question here is the same as previously discussed above: whether he
committed aggravated sexual abuse against S.I.R., as listed in Count I of the superseding
indictment. The Court will not repeat its analysis; rather, because the jury was within its
rights on the evidence before it to convict Mr. Little Bird on aggravated sexual abuse of
S.I.R., this conviction under Count II must also stand.
C. Request for New Trial
With the greater discretion that this Court holds under a motion for new trial
opposed to motion for judgment of acquittal, it nevertheless arrives at the same result: the
three verdicts of the jury should not be disturbed. Cognizant that motions for new trials
grounded in insufficiency of the evidence should be disfavored, this matter does not rise
to the high bar for a new trial. United States v. Stacks, 821 F.3d 1038, 1044 (8th Cir.
2016).
Mr. Little Bird's request for a new trial based on a lack of sufficient evidence
before the jury stems from the same facts explained above, supra 11.B, and should be
denied.
1. Count I - Aggravated Sexual Abuse
For Count I of the superseding indictment, aggravated sexual abuse, the
Government successfully presented the requisite showing of evidence so that the jury
could convict defendant beyond a reasonable doubt. Even when delving into credibility
determinations and re-weighing the evidence presented, the United States convincingly
argued before the jury the two elements in controversy: (1) whether Little Bird acted
intentionally; and (2) whether S.I.R. was below 12 years of age. The Government had
S.I.R. present her age and date of birth to the jury so that they could discern she was
below 12 years of age at the time of the abuse. Further, S.I.R. testified to the intentional
misconduct of Mr. Little Bird on the futon when he performed the sexual act on the
young girl, namely the genital touching beneath her underwear. Even when operating
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with greater latitude than for the defendant's motion for judgment of acquittal, this
Court's ultimate decision remains unchanged: the jury's verdict must stand.
2. Count V - Witness Tampering
Next, Little Bird still falls short on his challenge to the witness tampering
conviction. The defendant's counsel ably challenged the credibility of Priscilla and
Brianne during the jury trial, presenting alternative theories for the jury on the purpose of
the 13 phone calls. And here, the defendant argues there was not sufficient showing for a
finding that he acted knowingly to corruptly persuade the witnesses. Even when not
viewing the evidence in the light most favorable to the verdict, this Court finds no
grounds for a new trial on Count V of the superseding indictment: ( 1) the defendant used
his personal relationships with Brianne and Priscilla to coerce them into pushing S.I.R.
and S.S.W. to recant their accusations, as well as (2) through the approximately $1,500
payout derived from Little Bird's stimulus check. These factors, when measured against
credibility challenges presented by the defense, provide sufficient support for the witness
tampering conviction and the requisite mens rea for the charge. This Court finds the
conviction appropriate based upon the evidence presented at trial and holds that the jury's
verdict should not be disturbed.
3. Count II - Felony Sex Offense While Required to Register as Sex Offender
Finally, because the Court finds that the conviction for Count I of the superseding
indictment, aggravated sexual abuse conviction of S.I.R., should not be disturbed, neither
should Count II. Under Count II of the superseding indictment the jury convicted Little
Bird of felony sex offense against a minor while required to register as a sex offender.
Because defendant stipulated he was required by federal, state, or tribal law to register as
a sex offender at the time of the alleged offense, the only element in dispute was whether
he committed aggravated sexual abuse. Because the jury found he did in fact commit
aggravated sexual abuse against S.I.R., this conviction must stand as well.
III. CONCLUSION
The jury carefully deliberated all five charges laid upon Mr. Little Bird. After
performing their civic duty, the jury sent back a mixed verdict: guilty on three counts,
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deadlocked on two others. This in of itself shows this jury was not some rubber stamp on
the charges brought by the United States; rather, these 12 citizens took their duty to heart
and carefully assessed the evidence before them, making credibility determinations when
necessary.
Courts should and must be wary to invade the province of the jury and grant a
motion for judgment of acquittal or motion for new trial. In this matter, none of the three
convictions Mr. Little Bird ultimately received warrant disregarding the careful
deliberations of the defendant's peers. Accordingly, defendant's motion should be
denied.
IT IS HEREBY ORDERED that defendant Kimo J. Little Bird, Sr.'s motion for
judgment of acquittal, or in the alternative, motion for a new trial, doc. 96, is denied.
DATED this \0--\-f\ day of January, 2022
BY THE COURT:
CHARLES B.KORNMANN
United States District Judge
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