United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE
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.
FOR JUDGMENT OF ACQUITTAL
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).
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  days
of the jury's discharge, or within an extended period
fixed by the court during that -day
period.” Id. at 421.
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)).
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.
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)).
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.
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
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.
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).
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
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.
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.
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.
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.
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.
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.
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.
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
• 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
• 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
• 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
• 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
• 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.
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.
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.
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.
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.
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
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.
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 ...