United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 18-1122
                          ___________________________

                              United States of America,

                         lllllllllllllllllllllPlaintiff - Appellee,

                                            v.

                                  September Waloke,

                        lllllllllllllllllllllDefendant - Appellant.
                                        ____________

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

                           Submitted: November 16, 2018
                               Filed: May 16, 2019
                                  ____________

Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
                         ____________

COLLOTON, Circuit Judge.

        A jury convicted September Waloke of harboring or concealing a person from
arrest, in violation of 18 U.S.C. § 1071. The district court1 denied Waloke’s post-trial



      1
       The Honorable Roberto A. Lange, United States District Judge for the District
of South Dakota.
motion for judgment of acquittal or new trial, and sentenced her to three months’
imprisonment. Waloke appeals the denial of her motion, and we affirm.

                                          I.

       The case arises from efforts by law enforcement to apprehend one Tyson
LeCompte, who absconded from custody while on a furlough from jail to attend a
funeral in October 2016. While LeCompte was awaiting sentencing on a federal drug
conviction, a magistrate judge released him to attend the funeral of his aunt.
LeCompte left the county jail on the morning of October 19 with orders to return by
6:00 that evening. He went to the residence of Erica Condon to pick up clothes that
his ex-girlfriend, Carlee Condon, brought from another location. Erica and Carlee are
daughters of Waloke and Everett Condon. According to LeCompte, Waloke was also
at Erica’s residence on the morning of October 19, and he had a conversation with her
then.

       LeCompte attended the funeral and burial, but then decided not to return to jail
and instead left with a cousin. LeCompte and the cousin spent the afternoon smoking
methamphetamine and drinking alcohol. LeCompte eventually called Carlee Condon
to pick him up, and they attended a party until about 3:00 a.m.

      When LeCompte failed to return to jail by the appointed time, the magistrate
judge issued an arrest warrant. The Marshals Service received information that
LeCompte might be staying with Waloke and Everett Condon, so investigators
searched the Waloke-Condon home, but did not find LeCompte. They informed
Waloke and Condon that there was a warrant for LeCompte’s arrest, and that the
couple should not assist him in avoiding apprehension. Waloke assured the deputy
marshals that LeCompte would not stay with them, because her daughter Carlee was
no longer in a relationship with LeCompte, and that Carlee and LeCompte were not



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on good terms. Waloke did not disclose that she, LeCompte, and Carlee were
together at Erica’s residence that morning.

       After the deputy marshals departed the Waloke-Condon house on the evening
of October 19, LeCompte and Carlee Condon arrived at the house between 5:00 and
7:00 a.m. the next morning. According to LeCompte, he entered the home through
a window in Carlee’s room to avoid detection by the family. He claimed then to have
spent most of October 20 sleeping in the bedroom, leaving only briefly to watch
television and smoke a cigarette outside. He acknowledged that after he returned
from smoking, he left his shoes inside the house near the front door. He testified that
he did not speak with anyone other than Carlee Condon while in the house.

       Braxtyn Garreau, LeCompte’s cousin, testified that on October 20, she
attempted to contact LeCompte by calling a telephone number from which he had
called her during the funeral. Waloke answered the call. Garreau asked Waloke if
LeCompte was still at her house; Waloke responded that LeCompte and Carlee were
sleeping at Waloke’s house. Garreau asked Waloke to tell LeCompte that he should
be prepared to leave, because she planned to pick him up later that night to flee to
Rapid City.

      On the night of October 20, Cheyenne River Sioux Tribe law enforcement
authorities received a tip that LeCompte was staying at the Waloke-Condon home.
Sergeant Jeremy Reede went to the house with two other officers and a warrant for
LeCompte’s arrest.

       Reede knocked on the front door and waited for just under a minute. Waloke
opened the door, and Reede asked her whether she had seen LeCompte or Carlee.
Waloke said that she had not. Reede then asked for consent to search the house;
Waloke responded that LeCompte was not there. Reede again requested consent to
enter the house, but Waloke ignored the request, said that she needed to get back to

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the stove, and began walking toward the kitchen. Reede followed her into the house
and asked again whether he could look for LeCompte. Waloke turned to Everett
Condon and said, “He’s not here. Is he, Everett?” Everett responded that he had not
seen LeCompte. Reede asked once more to search the house, and Waloke then gave
consent.

      After Reede looked in a few rooms, he noticed Carlee Condon leaving another
room and shutting the door behind her. Reede entered that room and saw a neatly-
made bed with a lump in the mattress. Reede lifted the mattress and discovered
LeCompte hiding between the mattress and box spring. He instructed LeCompte to
come out from under the mattress and then escorted him to the dining room near the
entrance of the house.

       Waloke, Everett Condon, Carlee Condon, and a neighbor were in the dining
room when Reede and LeCompte approached. According to Reede and the neighbor,
Waloke appeared sad, not surprised, to see LeCompte. She had tears in her eyes and
gave LeCompte a hug after he entered the room. LeCompte put on his shoes, which
were still near the front door, and the officers formally took him into custody. Shortly
after the officers departed with LeCompte, Garreau arrived at Waloke’s house to
follow through on her plan to take LeCompte to Rapid City.

       A grand jury charged Waloke and Everett Condon with one count of harboring
and concealing a person from arrest. The jury convicted Waloke but acquitted
Condon. Waloke moved for a judgment of acquittal based on insufficient evidence,
and a new trial based on the weight of the evidence, but the court denied the motions
and sentenced Waloke to three months’ imprisonment.

       We review de novo the court’s denial of a motion for judgment of acquittal,
viewing the evidence and all reasonable inferences in the light most favorable to the
jury’s verdict. United States v. Hill, 

, 987 (8th Cir. 2014). We will

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direct a judgment of acquittal only when no reasonable jury could have found the
defendant guilty beyond a reasonable doubt. 

the district court’s ruling
on Waloke’s new trial motion for abuse of discretion. United States v. Clayton, 

, 935 (8th Cir. 2015).

                                         II.

      The offense of concealing a person from arrest, in violation of 18 U.S.C.
§ 1071, has three elements: (1) the defendant had specific knowledge that a federal
warrant was issued for the fugitive’s arrest, (2) the defendant actually harbored or
concealed the fugitive, and (3) the defendant intended to prevent the fugitive’s
discovery and arrest. United States v. Hayes, 

, 993 (8th Cir. 2008).
Waloke does not dispute that the government proved her knowledge of the warrant
for LeCompte’s arrest in light of what the deputy marshals told her on the evening of
October 19. But she argues that there was insufficient evidence to prove beyond a
reasonable doubt that she actively harbored or concealed LeCompte, or that she
intended to prevent his discovery and arrest.

        A person harbors or conceals a fugitive by engaging in “any physical act of
providing assistance, including food, shelter, and other assistance to aid . . . in
avoiding detection and apprehension.” United States v. Erdman, 

, 390
(8th Cir. 1992) (quoting United States v. Silva, 

, 849 (4th Cir. 1984)).
To prove this element, the government presented evidence that LeCompte spent at
least twelve hours in Waloke’s home on October 20. LeCompte’s shoes were found
near the front door, supporting an inference that he entered the house in a way that
Waloke could have seen him, or that Waloke could have inferred his presence from
the shoes. Garreau testified that Waloke acknowledged in a telephone call on
October 20 that LeCompte was sleeping in Waloke’s house. And two witnesses
testified that Waloke did not express surprise that Sergeant Reede found LeCompte
in a bedroom, but rather appeared sad and hugged LeCompte before he left. This

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evidence was sufficient to support the jury’s finding that Waloke assisted LeCompte
by providing shelter while he was hiding from law enforcement.

       There was also sufficient evidence to support the jury’s finding that Waloke
intended to prevent LeCompte’s discovery and arrest. There was evidence that
Waloke misled or lied to authorities. She told deputy marshals on October 19 that
LeCompte would not likely be with her daughter Carlee, even though Waloke had
seen him with Carlee earlier that day at Erica’s apartment. On October 20, Waloke
told Sergeant Reede several times that LeCompte was not in her house; the jury could
have found that she was lying based on Garreau’s testimony and other circumstantial
evidence. Evidence of Waloke’s delaying tactics on October 20 also supported a
finding of intent. A jury reasonably could have inferred that Waloke hesitated in
answering the door and delayed providing consent to search so that LeCompte
quickly could hide himself between the box spring and mattress of a neatly-made bed.

       Waloke argues that her case is factually similar to United States v. Foy, 

(7th Cir. 1969). There, the defendant was visiting an apartment of a third
person where a fugitive also was located. When FBI agents arrived to look for the
fugitive, the defendant lied and said that he had not seen the fugitive since the day
before. Agents eventually found the fugitive on a ledge outside the bedroom window
of the apartment. The court held that there was insufficient evidence to convict the
defendant, because the statute “does not impose a duty on one who may be aware of
the whereabouts of the fugitive, although having played no part in his flight, to reveal
this information on pain of criminal prosecution.” 

A dissenting judge
would have affirmed the conviction and distinguished between a “mere mute refusal
to assist the officers and deliberate misstatements of fact designed to mislead the
police so as to prevent the fugitive’s discovery and arrest.” 

(Knoch, J.,
dissenting). This court has not adopted the reasoning of Foy, and in any event,
Waloke did more than lie about her knowledge: the evidence supported a finding that



                                          -6-
she allowed LeCompte to conceal himself in her home and sought to delay his
discovery.

       Waloke’s case is more akin to United States v. Hash, 

(8th Cir.
1982) (per curiam), where this court affirmed the conviction of a defendant who
allowed a fugitive to stay in her trailer home, falsely told marshals at the home that
the fugitive was not present, and refused to consent to a search of the home. 

The defendant complained that there was insufficient evidence of concealment
because the fugitive eventually revealed himself within five to ten minutes, but we
held that “[t]he statute does not prescribe a minimum duration of concealment for its
violation.” 

The defendant’s denial that the fugitive was in her home and
her refusal to admit the officers “were active measures of concealment” taken to
prevent discovery and arrest of the fugitive. 

this case, Waloke’s
delay in allowing the officers to enter and search the house, regardless of its duration,
together with her false statements to investigators, support a finding that she
intentionally harbored and concealed LeCompte.

       Waloke argues alternatively that the district court abused its discretion by
denying her motion for a new trial. In evaluating a motion for a new trial, the district
court may weigh the evidence and judge the credibility of the witnesses to determine
whether there was a miscarriage of justice that warrants a new trial. United States v.
Samuels, 

, 1019 (8th Cir. 2008). Waloke contends that Garreau was
not credible because she was “a heavy methamphetamine user, was clearly testifying
in hopes of a reduced jail sentence, and provided multiple inconsistent statements.”
The district court acknowledged that there were reasons to question Garreau’s
credibility, but concluded that the jury must have believed her, and that this trial was
not the type of exceptional case in which the court should invoke its power to grant
a new trial. The district court observed Garreau’s testimony and was in the best
position to determine whether a verdict relying in part on her evidence was a
miscarriage of justice. See United States v. Hilliard, 

, 988 (8th Cir.

                                          -7-
2004). We conclude that there was no abuse of discretion in denying the motion for
new trial.

       Waloke also complains that it was a miscarriage of justice to convict her when
the jury acquitted co-defendant Everett Condon. As the district court observed,
however, the actions of the two defendants were sufficiently different to justify
divergent verdicts. While there was evidence that Waloke misled investigators about
the relationship between LeCompte and Carlee, acknowledged to Garreau that
LeCompte was in her home, and then delayed Sergeant Reede’s efforts to find
LeCompte, the government did not produce comparable proof against Everett. There
was a reasonable explanation in the evidence for why the jury distinguished between
the two defendants, and the district court permissibly concluded that the disparate
verdicts did not produce a miscarriage of justice that warranted a new trial for
Waloke.

                                  *      *       *

      The judgment of the district court is affirmed.
                     ______________________________




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