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United States v. Wandahsega

United States Court of Appeals, Sixth Circuit

May 21, 2019

United States of America, Plaintiff-Appellee,
v.
Patrick Roy Wandahsega, Defendant-Appellant.

          Argued: May 1, 2019

          Appeal from the United States District Court for the Western District of Michigan at Marquette. No. 2:16-cr-00020-1-Paul Lewis Maloney, District Judge.

         ARGUED:

          Clare E. Freeman, THE FEDERAL DEFENSE GROUP, P.L.L.C., La Porte, Texas, for Appellant.

          Austin J. Hakes, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

         ON BRIEF:

          Clare E. Freeman, THE FEDERAL DEFENSE GROUP, P.L.L.C., La Porte, Texas, for Appellant.

          Hannah N. Bobee, UNITED STATES ATTORNEY'S OFFICE, Marquette, Michigan, for Appellee.

          Before: CLAY, GILMAN, and KETHLEDGE, Circuit Judges.

          OPINION

          RONALD LEE GILMAN, CIRCUIT JUDGE

         Patrick Roy Wandahsega was convicted by a jury of abusive sexual contact, in violation of 18 U.S.C. § 2244(a)(5), after Wandahsega's then-six-year-old son, H.D.W., told his grandmother and several others that Wandahsega had touched him inappropriately. On appeal, Wandahsega argues that the district court erred in allowing H.D.W. to testify by closed-circuit television (CCTV). He also challenges several of the district court's evidentiary rulings at trial, the court's denial of his motion for a mistrial, and the court's denial of his motion for a judgment of acquittal based on the alleged insufficiency of the evidence. Finally, Wandahsega contends that his sentence is both procedurally and substantively unreasonable. For the reasons set forth below, we AFFIRM all aspects of the district court's judgment.

         I. BACKGROUND

         A. Factual background

         At the time of the events in question, Wandahsega and H.D.W., who are both Native Americans, lived on the Hannahville Reservation in Michigan. After his mother's death, H.D.W. began splitting his time between his maternal grandparents' home and Wandahsega's apartment. Wandahsega struggles with substance abuse, having participated in institutional substance-abuse treatment programs on at least four occasions. While Wandahsega participated in treatment, H.D.W. stayed with his maternal grandparents.

         In December 2015, two days after H.D.W. returned to his father's care after Wandahsega had completed a period of substance-abuse treatment, H.D.W. allegedly told his maternal grandmother, Elizabeth Gudwer, that he and Wandahsega "did PK . . . a couple of nights ago." When Gudwer asked H.D.W. what he meant by "PK," H.D.W. looked down, pointed to his groin area, and said, "just like dad and his girlfriend do." Gudwer then called Hannahville Child Protective Services (CPS), where a worker told her to contact law enforcement. Law enforcement in turn told her to take H.D.W. to CPS. A CPS worker at the Hannahville Tribal Council, Betsy Ruleau, conducted a forensic interview during which H.D.W. did not disclose any abuse.

         After H.D.W.'s interview with Ruleau, he returned to his father's care. That evening, Tonya Maycroft, the mother of Wandahsega's other children, visited Wandahsega's home to ask H.D.W. if he wanted to decorate a Christmas tree with his half-siblings. H.D.W. ran up to Maycroft and told her that his father was doing "inappropriate" and "bad things" to him. At that point, Maycroft did not know that H.D.W. had alerted Gudwer to similar behavior. Maycroft brought H.D.W. to her home, asked him additional questions, called law enforcement, and spoke to Gudwer. She then took H.D.W. to the emergency room of the local hospital, where they were met by a police officer.

         At the hospital, H.D.W. told Nurse Stacy Smith that his dad "did something bad" to him twice. He also told Dr. Alex Judy that his dad had touched his penis and put a finger up his rectum several days prior to his hospital visit. H.D.W. said that this had happened on two separate occasions. As for physical injuries, H.D.W. said that the alleged assault had hurt a little, but that it did not cause bleeding and that he was not currently in pain. Dr. Judy asked H.D.W. if he could examine H.D.W.'s anus and genital area, but H.D.W. refused. Because H.D.W. said that he was not currently in pain, Dr. Judy did not press him any further. Dr. Judy then ordered urine testing to rule out the possibility of sexually transmitted diseases (STDs).

         The day after H.D.W.'s hospital visit, Ruleau conducted a second forensic interview, during which H.D.W. disclosed that Wandahsega had sexually abused him. H.D.W.'s disclosure was consistent with what he had told Gudwer and Maycroft. That same day, FBI Special Agent John Fortunato and a local detective, Justin Hansen, went to Wandahsega's apartment to interview him, but they ended the interview early because Wandahsega appeared to be under the influence of drugs or alcohol. They returned the next day and conducted a recorded interview with Wandahsega. He denied touching his son, but also said that he sometimes blacks out from drinking and therefore did not know what, if anything, he might have done to H.D.W.

         Wandahsega consented to a search of his apartment and to the seizure of bed sheets, three pairs of H.D.W.'s underwear, and a blanket from Wandahsega's bedroom, where H.D.W. usually slept. He also consented to providing a DNA sample by cheek swab. The Michigan State Police Forensic Laboratory subsequently found saliva on the inside rear portion of a pair of H.D.W.'s underwear, and testing established that the saliva contained a mixture of both H.D.W.'s and Wandahsega's DNA.

         B. Procedural background

         A federal grand jury proceeded to indict Wandahsega. He was charged with aggravated abuse of a child under twelve-years old, in violation of 18 U.S.C. § 2241(c), and with abusive sexual contact with a child under twelve-years old, in violation of 18 U.S.C. § 2244(a)(5).

         1. Pretrial motions

         Prior to trial, the government filed a motion under 18 U.S.C. § 3509(b)(1) to let H.D.W. testify through CCTV. A magistrate judge held a hearing and heard testimony from a social worker about whether H.D.W. would be able to testify in front of his father. H.D.W. also testified at the hearing and said that he would be scared to testify with Wandahsega present. After the hearing, the magistrate judge concluded (1) that H.D.W. would be unable to testify in front of his father because of fear, and (2) that there was a substantial likelihood that H.D.W. would suffer emotional trauma if forced to do so. Accordingly, the magistrate judge recommended granting the government's motion and allowing H.D.W. to testify at trial via two-way CCTV. Wandahsega did not object to the Report and Recommendation, which the district court adopted.

         The government filed two additional motions in limine. First, it filed a motion for the admission of H.D.W.'s statements to Nurse Smith and Dr. Judy at the emergency room. The government based its request on Rule 803(4) of the Federal Rules of Evidence, which provides an exception to the rule against hearsay for statements made for medical diagnosis or treatment. Second, it filed a motion for the admission of H.D.W.'s statements to Gudwer and Maycroft under Rule 807 of the Federal Rules of Evidence, the residual hearsay exception. That motion also sought the admission of a video recording of Ruleau's second interview with H.D.W. Wandahsega opposed both motions. The magistrate judge ultimately recommended that the evidentiary issues be dealt with at trial after H.D.W.'s testimony and after the initial testimony of Nurse Smith and Dr. Judy. After review, the district court adopted the Report and Recommendation.

         2. The trial

         As its first witness, the government called H.D.W. H.D.W. was questioned in a room separate from the jury and Wandahsega, and his testimony was transmitted to the jury by CCTV. He testified that he no longer lives with his father because Wandahsega "did something bad to [him]" while he was "in [his] bedroom" in Wandahsega's apartment. H.D.W. said that Wandahsega touched H.D.W.'s privates-where he "poop[s] and pee[s]"-more than one time and that H.D.W. was telling the truth when he spoke to Nurse Smith, Dr. Judy, and Ruleau. Finally, H.D.W. testified that he preferred living with his grandparents to living with his father, and that he was upset with his father for drinking.

         The district court then addressed several outstanding evidentiary issues outside the presence of the jury, including the motions in limine that the magistrate judge had not resolved. First, the court addressed the admission of H.D.W.'s hearsay statements to Gudwer about his father doing "PK" with him like his father and his father's girlfriend did. Applying the four-part test delineated by Rule 807 of the Federal Rules of Evidence, the court found that H.D.W.'s statements to Gudwer were admissible because they were spontaneous and therefore reliable. Gudwer then testified about her exchange with H.D.W. and what she did in response.

         The district court next addressed the admission of H.D.W.'s hearsay statements to Maycroft when she picked him up from Wandahsega's apartment to decorate a Christmas tree. Because H.D.W.'s initial statement to Maycroft that his father was doing bad things to him was spontaneous, the court found it to be reliable and therefore admissible under Rule 807. But the court found that H.D.W.'s responses to Maycroft's follow-up questions were inadmissible hearsay that did not fall under Rule 807's exception. Maycroft's testimony was therefore limited to H.D.W.'s initial spontaneous statement to her and what she did in response to H.D.W.'s statement.

         The district court then addressed the statements that H.D.W. made to Nurse Smith and Dr. Judy at the hospital with the government assuring the court that those witnesses would testify that their questions to H.D.W. were pertinent to medical diagnosis and treatment. After reviewing the relevant caselaw, the court held that Nurse Smith's and Dr. Judy's testimony about H.D.W.'s statements at the hospital would be admissible under Rule 803(4) if a proper foundation was laid. Nurse Smith and Dr. Judy proceeded to testify about their exchanges with H.D.W. at the hospital.

         Finally, the district court addressed the recording of H.D.W.'s second forensic interview with Ruleau. The court found that the interview did not contain the same indicia of reliability as H.D.W.'s statements to Gudwer and Maycroft, so it concluded that the interview was inadmissible hearsay. Ruleau, however, later testified in a general manner that H.D.W. disclosed abuse during that interview, and that what H.D.W. told her was consistent with what he had previously told Gudwer and Maycroft.

         An additional evidentiary issue arose on the second day of trial. Wandahsega sought to show the jury a video of a supervised visit between H.D.W. and Wandahsega that occurred several months after H.D.W.'s allegations. In that video, H.D.W. interacted well with his father and hugged him. The district court concluded that the video did not fall under any exception to the rule against hearsay and that it was therefore inadmissible. Although the video itself was not admitted, Ruleau, who supervised the visit, testified about the visit and confirmed that H.D.W. and Wandahsega hugged and got along well.

         The remainder of the government's fact witnesses were law-enforcement officers. Special Agent Fortunato and Detective Hansen testified about their interview of Wandahsega and the collection of evidence from Wandahsega's apartment. In response to a question about whether he was aware of Wandahsega's drinking problem before he arrived at Wandahsega's apartment, Fortunato commented about a "prior incident where [Wandahsega] had passed out and he had engaged in a homosexual act." Officer Gregory Kurtz, the Hannahville officer who received Gudwer's initial complaint against Wandahsega, also testified briefly about his conversation with Gudwer and the events that resulted from that call.

         The government next presented several expert witnesses. They included forensic scientists at the Michigan State Police forensic laboratory, who explained the results of the fluid and DNA testing done on H.D.W.'s underwear. A child-adolescent forensic interviewer with the FBI testified about the legitimacy of the techniques used in Ruleau's interviews of H.D.W. Finally, a toxicology expert testified about blackouts, alcohol's effect on short-term memory, and a person's ability to complete certain tasks while intoxicated.

         Near the end of the government's case, Wandahsega moved for a mistrial based on Fortunato's statement about Wandahsega passing out and engaging in a homosexual act. Wandahsega argued that Fortunato had made the statement to prejudice the jury. The district court ruled that Fortunato's statement was responsive to the question that Wandahsega's counsel had asked, but gave counsel the opportunity to stipulate to striking the statement from the record. When the parties did not stipulate to striking the statement, the court denied the motion for a mistrial. Wandahsega also moved for a judgment of acquittal at the end of the government's case, which the court denied.

         At trial, Wandahsega did not testify or call any witnesses. After four days of trial, the jury convicted Wandahsega of abusive sexual contact under 18 U.S.C. § 2244(a)(5), but acquitted him of ...


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