United States Court of Appeals

For the Eighth Circuit 

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No. 21-3138

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United States of America

 Plaintiff - Appellee

v.

Frank Sanchez

 Defendant - Appellant

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Appeal from United States District Court 

for the District of South Dakota - Southern

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Submitted: May 12, 2022

Filed: August 3, 2022

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Before ERICKSON, STRAS, and KOBES, Circuit Judges. 

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ERICKSON, Circuit Judge.

Frank Sanchez appeals after a jury convicted him of abusive sexual contact of 

a minor. Sanchez contends the evidence was insufficient to establish the offense 

occurred in Indian Country, that the district court1 erred by admitting uncharged 

1

The Honorable Karen E. Schreier, United States District Judge for the 

District of South Dakota.
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conduct as propensity evidence, and that the use of acquitted conduct to increase his 

sentence violated his constitutional rights. We affirm.

I. BACKGROUND

In 2019, Sanchez was charged by a federal grand jury with one count of 

aggravated sexual abuse of a minor, in violation of 18 U.S.C. §§ 1153, 2241(c), and 

2246(2), and two counts of abusive sexual contact with a minor, in violation of §§ 

1153, 2241(a)(1), and 2246(3). The charges stemmed from allegations by two adult 

women, known throughout the proceedings as S.K.M. and J.S., who reported abuse 

by Sanchez that occurred in 1996 and 2006, respectively. A third victim—G.D.—

also reported sexual abuse by Sanchez that allegedly occurred in 1984, but those 

allegations did not result in criminal charges.

Prior to trial, the government gave notice of its intent to introduce evidence of 

other acts of sexual assault by Sanchez under Rules 413 and 414 of the Federal Rules 

of Evidence. The proposed evidence included the details of uncharged acts in the 

form of testimony from S.K.M., J.S., and G.D. Sanchez moved in limine to exclude 

the testimony. The district court denied the motion concluding the probative value 

of the evidence outweighed the possibility of unfair prejudice. The district court 

specifically found the alleged acts occurred at similar times, involved the same 

victim or similarly-aged victims, and included acts of a similar nature as the charged 

offenses.

The case proceeded to trial. S.K.M. testified that Sanchez molested her twice 

during the summer of 1996 when she was between 10 and 11 years old. At the time, 

Sanchez was in a relationship with her mother. S.K.M. told the jurors that on two 

separate occasions while her mother was at work, Sanchez entered her bedroom and 

touched her vagina with his hand. S.K.M. also recounted an incident where Sanchez 

pulled her back against his erect penis while driving with her sitting on his lap.
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J.S., who is Sanchez’s biological daughter with S.K.M.’s mother, testified that 

Sanchez engaged in sexual conduct with her twice in 2006 when she was nine years 

old. When the first incident happened, J.S. and Sanchez were staying at her aunt 

Letha Hare’s house near Marty, South Dakota. J.S. testified that she was sleeping 

in the same bed as Sanchez when he started to kiss her, touched her vagina over her 

underwear, and moved her hand onto his penis over his boxers. The second incident 

took place outside the Yankton Sioux Reservation at a different aunt’s house and 

similarly involved Sanchez moving J.S.’s hand to his penis over his boxers.

G.D. testified that Sanchez molested her in 1984 when she was 6 years old. 

She claimed that Sanchez showed up at her parents’ house drunk. He then stumbled 

into her bedroom and touched her vagina with his hand. 

The jury convicted Sanchez of one count of abusive sexual contact against 

J.S. for the conduct that occurred at Letha Hare’s home but acquitted him of the 

charges related to S.K.M. At sentencing, the district court considered both the 

acquitted and uncharged conduct to enhance the applicable guidelines range and 

imposed an 87-month term of imprisonment. 

II. ANALYSIS

Sanchez first argues the evidence was insufficient to establish the offense of 

conviction occurred in Indian Country. We review sufficiency of the evidence de 

novo, viewing the evidence in the light most favorable to the government and 

drawing all reasonable inferences in favor of the verdict. United States v. White, 

962 F.3d 1052, 1055 (8th Cir. 2020). “We avoid reweighing the evidence or 

assessing the credibility of the witnesses, and reversal is warranted only if no 

reasonable jury could have found guilt beyond a reasonable doubt.” United States 

v. Mabery, 686 F.3d 591, 598 (8th Cir. 2012).

The Major Crimes Act gives the federal government exclusive jurisdiction 

over certain crimes committed by an Indian within Indian Country, including 
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abusive sexual contact in violation of 18 U.S.C. § 2244(a)(1). See 18 U.S.C. § 1153; 

United States v. Stymiest, 581 F.3d 759, 764 (8th Cir. 2009) (describing two-part 

test to establish Indian status). The government bears the burden to prove the 

location of the offense was in Indian country. United States v. Jackson, 697 F.3d 

670, 671 (8th Cir. 2012). Land held in trust either for the tribe or individual Indian 

allottees is within the limits of the Yankton Sioux Reservation. See Yankton Sioux 

Tribe v. Podhradsky, 606 F.3d 994, 1010 (8th Cir. 2010). While the issue of whether 

a particular piece of land falls within Indian country is a question of law for the court 

to decide, United States v. Love, 20 F.4th 407, 411 (8th Cir. 2021), Sanchez 

concedes that the question was submitted to the jury by agreement of the parties. 

See United States v. Stands, 105 F.3d 1565, 1574-76 (8th Cir. 1997) (affirming 

because “the jury had a reasonable basis for finding the crime occurred in Indian 

country,” even though “it may have been error . . . to submit to the jury the narrow 

question of whether the alleged site of the offense was Indian country”). 

During trial, the government introduced an aerial photograph and a title status 

report for the tract of land that included Letha Hare’s address near Marty, South 

Dakota. The report detailed that the government held the tract in trust for both the 

Yankton Sioux Tribe and individual tribal landowners as of the date the report was

certified in 2012. David LaCompte, deputy superintendent of the trust for the BIA’s 

Yankton Agency with nearly 32 years of experience, testified that the tract was part 

of the Yankton Sioux Reservation in 2006. On cross-examination LaCompte 

initially stated that he did not perform a record search for the relevant tract, but on 

re-direct the government refreshed his memory with an email exchange from 2019 

and LaCompte confirmed that during the investigation he researched the tract to 

verify its status as part of the Yankton Sioux Reservation in 2006. Because 

LaCompte’s testimony provided a reasonable basis for the jury to find the offense 

occurred in Indian Country, we will not disturb the conviction. See id. at 1574. 

Sanchez next contends the district court erred by admitting evidence of his 

prior acts of child molestation and sexual assault under Rules 413 and 414. We 

review evidentiary rulings for abuse of discretion, reversing only if admission
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affected a defendant’s substantial rights. United States v. Mink, 9 F.4th 590, 605-

06 (8th Cir. 2021). 

Rules 413 and 414 of the Federal Rules of Evidence create exceptions to the 

general rule against propensity evidence. United States v. Luger, 837 F.3d 870, 873-

74 (8th Cir. 2016). “[I]n sexual assault and child molestation cases, evidence that 

the defendant committed a prior similar offense may be considered for its bearing 

on any matter to which it is relevant, including the defendant’s propensity to commit 

such offenses.” United States v. Gabe, 237 F.3d 954, 959 (8th Cir. 2001) (quotation 

omitted). A prior sexual assault is relevant when “committed in a manner similar to 

the charged offense.” United States v. Crow Eagle, 705 F.3d 325, 326 (8th Cir. 

2013) (quotation omitted). Even if the evidence is relevant, the probative value must 

not be substantially outweighed by one or more factors enumerated in Rule 403. 

United States v. LeCompte, 131 F.3d 767, 769 (8th Cir. 1997). We afford “great 

weight to the district court’s balancing of evidentiary prejudice against its probative 

value.” United States v. Halk, 634 F.3d 482, 488 (8th Cir. 2011).

Sanchez raises a number of issues related to the testimony of S.K.M. First, he 

argues that the incident described by S.K.M. “arguably did not even qualify as 

‘sexual assault’ under Rule 413 or ‘child molestation’ under Rule 414 as there was 

no evidence of Sanchez’s intent or sexual motivation.” S.K.M. testified that Sanchez 

pulled her against his penis while driving with her on his lap. Given the testimony, 

a reasonable juror could easily infer an intent to arouse or gratify Sanchez’s sexual 

desire because he pulled S.K.M. back into his erect penis when she tried to move 

away. See 18 U.S.C. § 2246(3) (defining “sexual contact” to include “the intentional

touching, either directly or through the clothing, of the genitalia . . . of any person 

with an intent to . . . arouse or gratify the sexual desire of any person”). 

Sanchez next asserts that the testimony was not sufficiently probative of 

Sanchez’s propensity to engage in sexual abuse because the conduct was too 

dissimilar to the charged conduct, but prior child molestation testimony need not be 

identical to the allegations in the indictment. United States v. Never Misses A Shot, 
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781 F.3d 1017, 1028 (8th Cir. 2015). Here, the driving incident happened with the 

same victim, near the same time as the charged conduct, and it involved Sanchez 

forcing a young girl to make contact with his penis, which mirrors the allegations by 

J.S. The district court did not abuse its discretion in finding the evidence probative.

In addition to the charged conduct at Hare’s residence, J.S. testified about an 

incident that took place at another aunt’s house on state rather than tribal land around 

the same time. Much like the charged offense, J.S. alleged that Sanchez moved her 

hand onto his penis over his boxers while she was in bed. The close similarity made 

the uncharged conduct highly probative of Sanchez’s propensity to molest young 

girls. See Gabe, 237 F.3d at 960. 

Sanchez also asserts the limiting instruction was deficient because no oral 

instruction was given at the time of the testimony and that the written instruction 

failed to specifically inform the jury as to which of J.S.’s statements could be used 

only as propensity evidence and which could be used as evidence of the offense 

charged. The instructions when coupled with the evidence in the record, however, 

make plain that the only offenses charged were those that took place in Indian 

Country, which the jury necessarily understood did not include the conduct on state 

land.

G.D. described a sexual assault that occurred more than 35 years earlier, and 

Sanchez challenges her testimony as being too remote. When making evidentiary 

rulings, a district court “has a range of choice, and . . . its decision will not be 

disturbed as long as it stays within that range and is not influenced by any mistake 

of law.” United States v. Charles, 531 F.3d 637, 641 (8th Cir. 2008). We 

acknowledge that when conduct is more than 35 years old it may be subject to 

scrutiny. In this case, there is a striking resemblance between G.D.’s allegation and 

the charged crimes that made her testimony probative and weakened the probability 

of an emotional response from the jury. See Luger, 837 F.3d at 875; Gabe, 237 F.3d 

at 960. We have consistently rejected a time-limit on prior child molestation 

evidence, and we decline to apply one here. See United States v. Bartunek, 969 F.3d 
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860, 864 (8th Cir. 2020); United States v. Emmert, 825 F.3d 906, 909 (8th Cir. 

2016); United States v. Reynolds, 720 F.3d 665, 671 (8th Cir. 2013); United States 

v. Hollow Horn, 523 F.3d 882, 888-89 (8th Cir. 2008). 

We have explained that “prejudicial Rule 414 evidence indicating the 

defendant’s propensity to sexually exploit children is not, in itself, unfair.” United 

States v. Splettstoeszer, 956 F.3d 545, 548 (8th Cir. 2020). And, the possibility for 

unfair prejudice is mitigated where, as here, the district court gives limiting 

instructions. United States v. Weber, 987 F.3d 789, 793-94 (8th Cir. 2021). 

Moreover, “[t]hat the jury convicted [Sanchez] of only one count but not the other[s] 

indicates that it was able to make an appropriate determination based on the 

evidence.” United States v. Cavanaugh, 30 F.4th 1139, 1144 (8th Cir. 2022). 

Affording great weight to the district court’s balancing, we find no abuse of 

discretion in admitting the evidence under Rules 413 and 414. 

Finally, Sanchez challenges the district court’s consideration of acquitted 

conduct at sentencing as violating his Fifth and Sixth Amendment rights. We review 

constitutional challenges to sentences de novo. United States v. Wade, 435 F.3d 

829, 831 (8th Cir. 2006) (per curiam). Sanchez received a five-level enhancement 

for engaging in a pattern of prohibited sexual conduct based in part on the trial 

testimony and alleged abuse of S.K.M. See U.S.S.G. § 4B1.5(b)(1). Sanchez 

admits, however, that our precedent forecloses this argument. See United States v. 

Oakie, 993 F.3d 1051, 1054 (8th Cir. 2021) (per curiam); United States v. Papakee, 

573 F.3d 569, 576 (8th Cir. 2009). Accordingly, we find no error.

III. CONCLUSION

We affirm.

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