United States Court of Appeals

For the Eighth Circuit

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No. 23-3501

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United States of America

 Plaintiff - Appellee

v.

Gabriel White Plume, Sr.

 Defendant - Appellant

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Appeal from United States District Court 

for the District of South Dakota

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Submitted: June 11, 2024

Filed: August 9, 2024

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Before LOKEN, ERICKSON, and GRASZ, Circuit Judges. 

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GRASZ, Circuit Judge. 

Gabriel White Plume, Sr., appeals his convictions for witness tampering and 

assault, arguing there was insufficient evidence to convict him. He also contends he 

was placed in double jeopardy because three of his nine charges related to the same 

conduct. For the reasons discussed below, we affirm the district court.1

1

The Honorable Jeffrey L. Viken, United States District Judge for the District 

of South Dakota.
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I. Background

At trial, the government presented evidence of a horrific sexual assault. On 

January 10, 2023, White Plume was drinking vodka and using methamphetamine

with his girlfriend, CLS, as well as his friend, Edison Jumping Eagle. At some point, 

White Plume pulled off CLS’s pants and “asked [Jumping Eagle] if he wanted to get 

some.” Jumping Eagle then got on top of CLS had sex with her. While Jumping 

Eagle had sex with CLS, White Plume choked CLS and forced her to perform oral 

sex on him. At one point, White Plume forcefully struck CLS on her hip with his 

closed fist; he also pinned CLS down and told Jumping Eagle to insert his hand into 

CLS’s vagina. CLS felt a sharp pain in her vagina and started bleeding nonstop. 

CLS testified feeling scared and hopeless because she would “get beat up” if she did 

not do what White Plume ordered her to do. White Plume recorded part of the 

incident, and those recordings were used as evidence at trial.

When CLS arrived at the hospital, she was treated as a trauma patient. She 

reported her pain level as 10 out of 10. A doctor testified that CLS had a “very deep 

5-centimeter laceration” inside her vagina that penetrated the adjacent muscle, and 

that “her uterus was very red and almost had a bruised appearance.” Doctors also 

discovered other extensive injuries on CLS, including bite marks, cigarette burn 

marks, and deep bruising all over her body. CLS testified that White Plume had 

used a cigarette to burn her arm, and that he had beat her up both before and after 

the incident, causing deep bruises throughout her body. 

A federal grand jury indicted White Plume for nine counts of sexual assault, 

assault, witness tampering, and distribution of a controlled substance. A jury 
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convicted White Plume of eight of the nine counts.

2

 The district court sentenced 

White Plume to 480 months of imprisonment.3

II. Analysis

White Plume appeals, arguing insufficiency of the evidence to convict him of 

Witness Tampering (Count 6) and Assault (Count 7). He also contends he was 

placed under double jeopardy for the charges against him for Aggravated Sexual 

Abuse (Count 2), Assault Resulting in Serious Bodily Injury (Count 3), and Aiding 

and Abetting Sexual Abuse (Count 9). We address each issue below. 

A. Motion for Judgement of Acquittal

“We review the denial of a motion for judgment of acquittal de novo, viewing 

the evidence and all reasonable inferences in the light most favorable to the jury’s 

verdict.” United States v. McDonald, 826 F.3d 1066, 1072 (8th Cir. 2016). “We 

will direct a judgment of acquittal only when no reasonable jury could have found 

the defendant guilty beyond a reasonable doubt.” Id. 

1. Witness Tampering

The district court denied White Plume’s post-trial motion for a judgment of 

acquittal for Count 6, noting sufficient evidence showed White Plume attempted to 

persuade CLS to recant her statements as to all counts. 

18 U.S.C. § 1512(c)(2) of the witness tampering statute “makes it a crime to 

corruptly ‘obstruct, influence, or impede any official proceeding, or attempt to do 

2

White Plume was convicted of Counts 2 through 9. He was acquitted of 

Count 1, which charged White Plume with forcing CLS to perform oral sex on him.

3

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

District of South Dakota.
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so.’” United States v. Petruk, 781 F.3d 438, 444 (8th Cir. 2015) (alterations omitted). 

To prove witness tampering, “the government must establish two elements: first, that 

[the defendant] knowingly engaged in corrupt persuasion and second, that the acts 

of corrupt persuasion were intended to influence the testimony of another in an 

official proceeding . . . .” United States v. Craft, 478 F.3d 899, 900 (8th Cir. 2007). 

To “corruptly” persuade or influence another “means to act ‘with consciousness of 

wrongdoing.’” United States v. Bird, 76 F.4th 758, 762 (8th Cir. 2023) (quoting 

Craft, 478 F.3d at 901) (addressing “corruptly” mens rea in the context of § 1512). 

Here, ample evidence at trial showed White Plume acted with consciousness 

of wrongdoing to prevent CLS from testifying against him. He attempted to prevent 

CLS’s testimony via multiple channels—both through his daughter and through CLS 

directly. 

First, White Plume directed his daughter to communicate with CLS. On 

February 27, 2023, White Plume messaged his daughter, instructing her to “message 

[CLS] and tell her to hurry up and get that shit done . . . .” His daughter replied, 

“Okay.” About an hour later, his daughter messaged White Plume: “Dad she asked 

what she needs to get done,” and White Plume responded, “[t]ell her to message 

me.” His daughter then confirmed, “I did.”

At trial, CLS testified that she received messages from White Plume’s 

daughter asking her to “drop the charges” and stating that White Plume himself was 

trying to get ahold of her. Viewing these facts in the light most favorable to the 

guilty witness tampering verdict, a reasonable jury could determine that White 

Plume asked CLS to refuse to cooperate with law enforcement or he wanted to speak 

with CLS to convince her not to cooperate, and he used his daughter to communicate 

the same to CLS. See Bird, 76 F.4th at 762 (upholding a witness tampering 

conviction when the defendant “repeatedly ask[ed] his own mother . . . to have the 

victim recant the allegation”). 
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Second, White Plume attempted to directly persuade or influence CLS not to

cooperate with law enforcement. On February 28, presumably after White Plume’s 

daughter messaged her, CLS messaged White Plume, “[w]hat do you want me to 

do[?]” White Plume asked CLS to “send me your number so I could call you,” after 

which CLS sent her number. Soon after, White Plume complained to CLS, “damn 

man I almost fucking gave up man what the fuck man.” In two responses, CLS 

stated, “[y]ou did this to us,” and “[y]ou almost killed me.” White Plume responded, 

“I love you I always did always will” and “I’m fucking struggling man and I need 

help.” White Plume went on begging CLS to “please help me please.” Viewing 

these facts in the light most favorable to the guilty witness tampering verdict, a 

reasonable jury could believe that White Plume reached out to CLS to persuade or 

influence her to “help” him by not cooperating with law enforcement. See United 

States v. Richardson, 92 F.4th 728, 730–31 (8th Cir. 2024) (upholding a witness 

tampering conviction when, for example, the defendant called the victim and “began 

by professing his love for her and then insisted that she ‘say nothing’ because he was 

‘fighting the case’”). 

Given the evidence pertaining to White Plume’s contact with his daughter 

about CLS and his direct contact with CLS, “the government produced sufficient 

evidence to prove that [White Plume] acted with consciousness of wrongdoing and 

intended to influence [CLS’s] testimony.” See Craft, 478 F.3d at 901. This evidence 

is easily sufficient to support the jury’s verdict. 

2. Assault

White Plume also filed a post-trial motion for a judgment of acquittal on 

Count 7 (Assault Resulting in Substantial Bodily Injury) on the basis there was 

insufficient evidence. The district court denied White Plume’s motion, concluding 

the evidence of the victim’s substantial bruising was “sufficient to be considered ‘a 

substantial disfigurement’ within the meaning of 18 U.S.C. § 113(b)(1).” We agree 

with the district court. 
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“[S]ubstantial bodily injury” means bodily injury that involves “(A) a 

temporary but substantial disfigurement; or (B) a temporary but substantial loss or 

impairment of the functions of any bodily member, organ, or mental faculty.” 

§ 113(b)(1). 

During the trial, the government argued CLS sustained a temporary but 

substantial disfigurement because she had intensive bruising caused by White 

Plume. On appeal, White Plume argues the evidence was insufficient to establish 

he caused such disfigurement because expert testimony suggested the bruises were 

“of different ages and not within the time period of the charges within the case.” For 

example, he argues “[t]here was no testimony presented at trial to indicate when 

these bruises were obtained by C.L.S., whether they were the result of the same 

incident or different incidents, [or] whether they were all caused by [White Plume].” 

However, “[w]hen reviewing a district court’s denial of a motion for judgment of 

acquittal, we ‘do not weigh the evidence or assess the credibility of witnesses; that 

is the province of the jury.’” McDonald, 826 F.3d at 1073 (quoting United States v. 

White, 794 F.3d 913, 918 (8th Cir. 2015)). “Even when the evidence rationally 

supports two conflicting hypotheses, we will not disturb the conviction.” Id. Rather, 

viewing the evidence in the light most favorable to the verdict, video evidence and 

CLS’s own testimony suggest White Plume caused CLS’s injuries. 

B. Double Jeopardy

We next consider White Plume’s double jeopardy arguments, which, because 

he did not raise below, we review under the plain error standard. United States v. 

Sickinger, 179 F.3d 1091, 1092–93 (8th Cir. 1999); see also United States v. 

Jackson, 155 F.3d 942, 947 (8th Cir. 1998). “Plain error review is . . . limited to 

those errors which are so obvious or otherwise flawed as to seriously undermine the 

fairness, integrity, or public reputation of judicial proceedings.” United States v. 

Beck, 250 F.3d 1163, 1166 (8th Cir. 2001). “Therefore, this court will affirm the 

conviction unless (1) the district court made an error, (2) the error was plain under 

current law, meaning clear and obvious, and (3) the error was prejudicial and 
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affected the trial outcome,” and we will correct that error only if it results in a 

miscarriage of justice. Jackson, 155 F.3d at 947.

“The Double Jeopardy Clause of the Constitution ‘protects against multiple 

punishments for the same offense.’” United States v. Fool Bear, 903 F.3d 704, 707 

(8th Cir. 2018) (quoting United States v. Anderson, 783 F.3d 727, 738–39 (8th Cir. 

2015)). An indictment violates the Double Jeopardy Clause when multiple “offenses 

charged are in law and fact the same offense.” United States v. Two Elk, 536 F.3d 

890, 898 (8th Cir. 2008) (quoting United States v. Roy, 408 F.3d 484, 491 (8th Cir.

2005)). Under the so-called “Blockburger test,” “a double jeopardy challenge 

necessarily fails” if “each offense requires proof of an element not required by the 

other[.]” United States v. Sandstrom, 594 F.3d 634, 654 (8th Cir. 2010) (quoting 

United States v. Gamboa, 439 F.3d 796, 809 (8th Cir. 2006)); see also Blockburger 

v. United States, 284 U.S. 299, 304 (1932) (“[T]he test to be applied to determine 

whether there are two offenses or only one is whether each provision requires proof 

of an additional fact which the other does not.”). “[T]he Blockburger test focuses 

on the statutory elements of the offenses, rather than the evidence presented at trial.” 

Sandstrom, 594 F.3d at 654 (quoting Gamboa, 439 F.3d at 809).

Here, White Plume contends he “was punished three times for the [same] 

conduct of sexual assault” when the government charged him for Aggravated Sexual 

Abuse (Count 2), Assault Resulting in Serious Bodily Injury (Count 3) and Aiding 

and Abetting Sexual Abuse (Count 9). But, as discussed below, each of these 

charged offenses requires proof of an element not required by the other two; 

therefore, White Plume’s double jeopardy challenge necessarily fails. 

For example, White Plume’s Aggravated Sexual Abuse charge (Count 2) 

required that he “engage in a sexual act” with the victim, “with the intent to abuse, 

humiliate, harass, degrade and arouse, . . . by the use of force[.]” A sexual act by 

“the use of force” is not required for the charges of Assault Resulting in Serious 

Bodily Injury (Count 3) nor Aiding and Abetting Sexual Abuse (Count 9). 
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Similarly, White Plume’s Assault Resulting in Serious Bodily Injury charge 

(Count 3) required that he “assault” the victim, “resulting in serious bodily injury” 

to the victim. An “assault” is not required under Count 2 nor Count 9. 

Finally, White Plume’s Aiding and Abetting Sexual Abuse charge (Count 9)

required that he “engage in the sexual act” with the victim, at a time when the victim 

“was incapable of appraising the nature of the conduct and was physically incapable 

of declining participation in and communicating unwillingness to engage in the 

sexual act[.]” And this charge further required him to “know [the victim] was so 

incapacitated[.]” The victim’s incapability of appraising the nature of the conduct 

and declining participation in the sexual act is not required under Counts 2 and 3.

Further, the defendant’s knowledge of the victim’s incapacity is also unnecessary 

under Counts 2 and 3. 

In sum, White Plume’s double jeopardy challenge fails because each charged 

offense required proof of an element not required by the other two. See Two Elk, 

536 F.3d at 898. Hence, the offenses of Aggravated Sexual Abuse, Assault 

Resulting in Serious Bodily Injury, and Aiding and Abetting Sexual Abuse are 

different offenses under the double jeopardy analysis.

III. Conclusion

For the foregoing reasons, we affirm the district court’s judgment. 

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