United States v. Keepseagle
| Decision Date | 12 April 2022 |
| Docket Number | 20-3626 |
| Citation | 30 F.4th 802 |
| Parties | UNITED STATES of America, Plaintiff - Appellee v. Tyson KEEPSEAGLE, Defendant - Appellant |
| Court | U.S. Court of Appeals — Eighth Circuit |
Counsel who presented argument on behalf of the appellant was Thomas J. Cogley, of Aberdeen, SD.
Counsel who presented argument on behalf of the appellee was Kirk W. Albertson, AUSA, of Pierre, SD.
Before SMITH, Chief Judge, WOLLMAN and BENTON, Circuit Judges.
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 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.
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 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.
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.
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
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, 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.
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.
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, " 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....
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