No. 20-3626 ___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Tyson Keepseagle

lllllllllllllllllllllDefendant - Appellant ____________

Appeal from United States District Court for the District of South Dakota - Northern ____________

Submitted: October 20, 2021 Filed: April 12, 2022 ____________ Before SMITH, Chief Judge, WOLLMAN and BENTON, Circuit Judges. ____________ SMITH, Chief Judge.

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.

I. Background A. Underlying Facts 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 “assault[ing] [AR.Q.]

-2- with his fist. [Keepseagle] was punching [AR.Q.’s] face.” 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 res