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United States v. Gallardo

United States District Court, D. South Dakota, Western Division

October 17, 2018





         On August 31, 2016, following a two-day jury trial, Defendant Frank Gallardo was found guilty of two counts of abusive sexual contact. (Docket 106). On December 29, 2017, Mr. Gallardo filed a motion for judgment of acquittal or, in the alternative, a motion for new trial. (Docket 158). The government moves to strike defendant's motions as untimely because the motions were not based on newly discovered evidence. (Docket 161). On February 2, 2018, Mr. Gallardo filed an amended motion for judgment of acquittal or, in the alternative, for a new trial. (Docket 177). The government filed a brief in resistance to defendant's amended motions. (Docket 187). Mr. Gallardo filed a reply brief in support of his motions. (Dockets 188). For the reasons stated below, defendant's amended motion for judgment of acquittal is denied and his amended motion for new trial is denied in part and reserved in part.



         The jury returned its guilty verdicts and was discharged on August 31, 2016. (Dockets 102 at p. 7 & 106). Mr. Gallardo's motion for judgment of acquittal pursuant to Fed. R. Crim. P. 29(c)(1) was filed on December 29, 2017. (Docket 158). The government moved to strike defendant's motion as untimely. (Docket 161 at pp. 1-2). Mr. Gallardo filed an amended motion renewing the motion for judgment of acquittal and for a new trial. (Docket 177). The government resisted the amended motion for, among other reasons, timeliness. (Docket 187 at pp. 1-3).

         Rule 29 provides “[a] defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.” Fed. R. Crim. P. 29(c)(1). Carlisle v. United States, 517 U.S. 416 (1996), declared in no uncertain terms that “a motion for judgment of acquittal must be filed, either within [14] days of the jury's discharge, or within an extended period fixed by the court during that [14]-day period.”[1] Id. at 421.

         Mr. Gallardo contends the time limitation set forth in Rule 29 “does not appear to bar the court from reconsideration of its previous denial [pursuant to Rule 29(a)] at trial.” (Docket 178 at p. 2). He argues “[t]o the extent that the grounds for the motion for acquittal pertains to the subject matter of a previously considered motion, the court has authority to reconsider based on the trial transcript and other argument or evidence not previously made or provided.” Id. (referencing Fed.R.Civ.P. 15(c)(1)(B) and Davenport v. United States, 217 F.3d 1341, 1344 (11th Cir. 2000)).

         In the alternative, Mr. Gallardo submits the court may on its own or for good cause upon a showing of excusable neglect, by the application of Fed.R.Civ.P. 45(b), extend the time limit of Rule 29(c)(1). Id. Mr. Gallardo argues his attorney has bought “to light certain facts and circumstances establishing good cause and excusable neglect” warranting application of Rule 45. Id.

         Rule 45(b) provides “[w]hen an act must or may be done within a specified period, the court on its own may extend the time, or for good cause may do so on a party's motion made: (A) before the originally prescribed or previously extended time expires; or (B) after the time expires if the party failed to act because of excusable neglect.” Fed. R. Crim. P. 45(b)(A) & (B). “The ‘excusable neglect' standard contained in Rule 45 applies to the time period limitation in both Rule 29 and Rule 33 and allows a court to extend the time period for filing such motions if the party's failure meets that standard.” United States v. Thunder, No. CR 11-30113, 2013 WL 774199, at *1 (D.S.D. Feb. 28, 2013), aff'd, 745 F.3d 870 (8th Cir. 2014) (referencing United States v. Boesen, 599 F.3d 874, 879 (8th Cir. 2010)). The Supreme Court established four factors which must be considered when determining whether a failure to timely file a motion results from excusable neglect. Boesen, 599 F.3d at 879 (citing Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395 (1993)). Those factors are: “(1) the danger of prejudice to the opposing party, (2) the length of delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith.” Id. (internal citation and brackets omitted). A district court's excusable neglect determination is reviewed for an abuse of discretion. Id. (referencing United States v. Gary, 341 F.3d 829, 836 (8th Cir. 2003)).

         As to the first factor, the court finds there would be no prejudice to the government if Mr. Gallardo's motion for a judgment of acquittal were granted as it is the obligation of the government at all times to do justice. The second factor, the length of the delay, cuts against granting a judgment of acquittal as nearly 16 months transpired between the jury's verdict and Mr. Gallardo's motion. He offers no excuse for the late filing. As to the third factor, the reason for the delay, Mr. Gallardo provides no explanation and the court can find no justification for the delay in the record. As to the fourth factor, the court finds Mr. Gallardo has not acted in good faith. While Mr. Gallardo secured a change of counsel, in fact two changes of counsel, in the months after the jury verdict, both his trial counsel and the first attorney appointed to represent him were competent and knowledgeable regarding the Federal Rules of Criminal Procedure. Yet for over 14 months, trial counsel and the first post-trial counsel did not file a Rule 29(c)(1) motion. Rather, Mr. Gallardo and his previous attorneys spent their time preparing for sentencing. See Dockets 107-49. Mr. Gallardo's current attorney does not provide any explanation for this extensive delay in filing.

         The court finds the Boesen factors weigh against a finding of excusable neglect. The Rule 29(c)(1) motion is denied as untimely. Even were the court to find the motion was timely filed, the motion for judgment of acquittal must be denied.

         Fed. R. Crim. P. 29(c) gives the district court authority to set aside a guilty verdict and enter an acquittal upon a defendant's post-trial motion. “A district court has very limited latitude in ruling upon a motion for judgment of acquittal.” United States v. Baker, 367 F.3d 790, 797 (8th Cir. 2004) (citation and internal quotation marks omitted). “A motion for judgment of acquittal should be granted only if there is no interpretation of the evidence that would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt.” United States v. Boesen, 491 F.3d 852, 855 (8th Cir. 2007) (citations and internal quotation marks omitted). This standard is very strict and the court should not overturn a jury verdict lightly. Id.

         The district court must enter an acquittal if the evidence presented at trial is insufficient to sustain a conviction. Id. Evidence may be direct or circumstantial. Baker, 367 F.3d at 798. “Evidence supporting a conviction is sufficient if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Boesen, 491 F.3d at 856 (citation and internal quotation marks omitted). The district court must not weigh the evidence or assess the credibility of witnesses. Baker, 367 F.3d at 797; see also Boesen, 491 F.3d at 857 (“In ruling on a motion for a judgment of acquittal, the role of the court is not to weigh the evidence . . . but rather to determine whether the Government has presented evidence on each element to support a jury verdict.”) (citations and internal quotation marks omitted) (ellipses in original).

         The district court “views the entire record in the light most favorable to the government, resolves all evidentiary conflicts accordingly, and accepts all reasonable inferences supporting the jury's verdict.” Boesen, 491 F.3d at 856. In short, the court upholds the jury verdict if “drawing all reasonable inferences in favor of the verdict, there is an interpretation of the evidence that would allow a reasonable minded jury to find the defendant[] guilty beyond a reasonable doubt.” Id. (citations and internal quotation marks omitted; alteration in original). “Importantly, it is not necessary for the evidence before the jury to rule out every reasonable hypothesis of innocence. It is enough if the entire body of evidence be sufficient to convince the fact-finder beyond a reasonable doubt of the defendant's guilt.” United States v. Wright, 739 F.3d 1160, 1167 (8th Cir. 2014) (internal citation, quotation marks and brackets omitted).


         Accepting the directive of Boesen, 491 F.3d at 856, and viewing the evidence “in the light most favorable to the government . . . and accept[ing] all reasonable inferences supporting the jury's verdict, ” the following evidence was presented at trial. A.B., the 10-year-old victim of Mr. Gallardo's conduct, testified at trial. (Docket 164 at pp. 27-47). She testified she knew the difference between telling the truth and a lie. Id. at p. 30:6-10. She told the jury Frank Gallardo was part of her family because he was with her mother, Suzette Thunder Hawk. Id. at pp. 30:15-31:2. A.B. pointed out Frank in the courtroom. Id. at p. 32:5-9. She said she had a good relationship with him and they did fun things together. Id. at p. 31:3-6.

         A.B. testified she and her family were living at the Sager's ranch near Porcupine, South Dakota, where cattle were raised. Id. at p. 31:12-32:32:1. She told the jury that she helped Frank on a tractor feed the livestock. Id. at p. 32:10-18. She described the tractor as a big green tractor with a cab on it. Id. at pp. 32:19-33:1. When she was alone with Frank in the tractor he would sit on the seat and she would sit next to him on a “handle bar kind of like a seat.” Id. at p. 33:2-17. At some point in time, Frank told her she could drive the tractor. Id. at pp. 33:18-34:5. To drive the tractor, Frank told her to sit on his lap as it would make it easier for her to drive. Id. at p. 34:8-11. A.B. ended up sitting on Frank's lap so she could drive the tractor. Id. at p. 34:10-11.

         A.B. told the jury she knew that a boy had a penis and that while she was driving the tractor Frank's “private” touched her private on the outside of her clothing. Id. at p. 36:4-12 & 15-18. Because of that touching she felt she “couldn't be by him anymore.” Id. at p. 36:13-14. While A.B. was too embarrassed to tell the jury what Frank did exactly, she explained what happened to Brandi Tonkel. Id. at p. 35:19-25.

         Regarding the second count of abusive sexual contact, A.B. told the jury that the incident occurred in the house at the Segar ranch while she was on the couch watching television with her mother and Frank. Id. at pp. 36:19-23 & 37:3-4. While her mother was gone to the restroom, A.B. testified Frank touched her private part with his hand. Id. at p. 37:8-18. He stopped touching A.B. when her mother came out of the bathroom. Id. at p. 37:19-21. A.B. told her mother about what happened as the two of them sat on the couch. Id. at p. 38:3-9. After A.B. told her mother, FBI Special Agent Bennett got involved. Id. at p. 38:13-15.

         During cross-examination, A.B. told the jury that the tractor incident occurred when she and Frank were feeding calves during daylight hours. Id. at p. 41:13-15. She remembers they were out in the field making hay bales. Id. at pp. 42:25-43:1. She testified that Frank picked her up and set her on his lap. Id. at p. 42:8.

         Concerning the incident on the couch, A.B. testified the three of them were playing around while watching television. Id. at p. 44:7-14. They “were telling jokes; just having fun.” Id. at p. 44:18. When Frank touched her private part, A.B. told Frank to stop. Id. at p. 45:11-12. A.B. clarified that it was after Frank left the house that A.B. told her mother what he had done. Id. at p. 47:1-5.

         After A.B. testified, the parties stipulated and disclosed to the jury that A.B. and two of her female cousins had been sexually abused by her cousin, Jaron Thunder Hawk, in 2013. Id. at p. 49:4-7. The stipulation acknowledged that A.B. reported the sexual abuse to law enforcement, Jaron was prosecuted and he pled guilty to the offense involving A.B. Id. at p. 49:7-10.

         The written stipulation, which was read to the jury, contained the following detailed information:

AB was forensically interviewed on July 31, 2013, by Brandi Tonkel from the Child Advocacy Center of the Black Hills at the time she was 7 years old. The following is information and quotes from the interview, but do not encompass the entirety of the interview.
• A.B. stated she knew the difference between the truth and a lie.
• She identified her “private” which was depicted on a drawing as her labia/vagina, and her “butt.”
• A.B. identified Jaron as the person who touched her and made her feel “gross” and “icky”' and that he did the same things to two of her female cousins.
• When invited to indicate on the diagram where Jaron touched her body, A.B. pointed to the “private, ” “butt, ” and mouth. When asked what Jaron used to touch her “private, ” A.B. pointed to the hand on the diagram. When asked what part of Jaron's hand he used to touch her “private, ” A.B. pointed to the fingers. When invited to demonstrate what Jaron's fingers do when he touches her “private, ” A.B. held up her hand in the air and wiggled her index finger back and forth/A.B. pointed her index finger in the air and made a scooping movement upwards. When asked where her clothes were when Jaron touched her “private” with his finger, A.B. said, “On.”
• The interviewer asked if Jaron's finger stayed on the outside of her clothes, or if Jaron's finger goes someplace else, A.B. paused for a moment, and then said, “Inside.” The interviewer asked if A.B. was wearing something underneath her clothes, such as underwear or panties, when Jaron touched her and A.B. confirmed she was wearing panties.
• She stated he touched her both “inside and outside” her panties and demonstrated that his finger went back and forth and in and out of her panties on her “private.” She later stated that his fingers were “outside” but when the interviewer stated she was confused about whether his fingers went both inside and outside of her panties, A.B. nodded her head. This incident of touching occurred in A.B.'s Grandmother's bathroom, no one else was present and Jaron shut the door.
• Jaron tried to keep her “mouth shut” by placing his hand over her mouth and told her to “be quiet” in the bathroom while he touched her “private.”
• A.B. stated Jaron “grabbed” her “butt” with “his hand” on the “outside” of her clothes.
• A.B. stated Jaron “kissed” her on the “mouth” and it made her feel “really ugly.”
• A.B. stated that Jaron touched her “private” and “butt” with his “private” while they were outside the house by pulling her “butt by his private” and putting her “up to his private” while he was sitting down on a chair. She indicated Jaron touched her in that way “lots” and always with his clothes on. She indicated Jaron's “private” was “hanging up” rather than hanging down, like the boy in the anatomical picture she was shown with the boy's penis hanging down. She indicated she knew his “private” was “hanging up” because she “felt it on” her “butt.”
• A.B. stated that after Jaron touched her private it “felt like someone just grabbed it and squeezed it.”
• When asked if anyone else touched her A.B. indicated that she was sexually abused by another minor at times in the past. The case was not investigated and the minor was not charged. The minor is not the defendant, Frank Gallardo.

See Dockets 93 and 164 at pp. 49:11-52:10.

         A.B.'s mother Suzette Thunder Hawk testified at trial. Id. at pp. 52-84. She identified herself as Frank's wife. Id. at p. 52:25-53:2. She considered his relationship with A.B. as a “father-daughter relationship.” Id. at p. 54:20-22. Ms. Thunder Hawk testified that at some point in time the three of them moved out to the Sager ranch where Frank was a ranch hand who did mechanic work and helped with the cows. Id. at p. 55:10-16. She testified Frank would typically feed the cattle in the early morning and in the evening, while it was still daylight. Id. at p. 56:14-20. He would use the tractor to go get hay bales and feed them to the cows. Id. at p. 57:1-2.

         Ms. Thunder Hawk identified the green tractor in Trial Exhibit 5 as the tractor used to feed the cows. Id. at p. 57:4-11. She testified she was aware of only four or five times when A.B. was alone with Frank in the tractor. Id. at p. 59:7-14.

         Ms. Thunder Hawk testified that A.B., Frank and she would sit together on a couch in the ranch house. Id. at p. 64:2-10. After Ms. Thunder Hawk returned from the bathroom, A.B. told her what Frank had done to her. Id. at p. 65:22-25. A.B. and Ms. Thunder Hawk immediately left the ranch and returned to her parents' home. Id. at pp. 67:22-68:3. Ms. Thunder Hawk called the FBI and reported what A.B. told her. Id. at p. 68:8-11. A.B. was later seen by a forensic interviewer. Id. at p. 68:15-17.

         After leaving the ranch, Ms. Thunder Hawk says she was contacted by Frank. Id. at pp. 68:21-23. She testified he was trying to get her to say A.B. was lying and just trying to ruin their relationship. Id. at p. 69:1-3. She said Frank asked her to talk A.B. out of telling what happened between them and asked that A.B. change her story. Id. at p. 69:6-14.

         Ms. Thunder Hawk told the jury this was the second time A.B. had been sexually abused. Id. at p. 70:3-9. That abuse occurred in 2013 and the perpetrator, Ms. Thunder Hawk's nephew, pled guilty. Id. at pp. 70:6-9 and 70:24-71:1.

         During cross-examination, Ms. Thunder Hawk described her relationship with Frank as “rocky.” Id. at p. 72:1-3. She acknowledged the date upon which she called the FBI about Frank's conduct was March 17, 2015. Id. at p. 73:4-8.

         FBI Special Agent Bob Bennett testified at trial. Id. at pp. 84-101 and 114-18. SA Bennett received the call from Ms. Thunder Hawk regarding the allegations made against Frank Gallardo by A.B. Id. at p. 85:3-8. The call came in on either March 16 or 17. Id. at p. 85:7. Ms. Thunder Hawk appeared to be excited and agitated with a stressed voice. Id. at p. 85:10-13. SA Bennett testified “there was never any indication of a false report, false statement, either by the victim . . . or the mother . . . .” Id. at p. 89:4-6. Because of the young age of ...

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