Argued: May 1, 2019
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.
E. Freeman, THE FEDERAL DEFENSE GROUP, P.L.L.C., La Porte,
Texas, for Appellant.
J. Hakes, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids,
Michigan, for Appellee.
E. Freeman, THE FEDERAL DEFENSE GROUP, P.L.L.C., La Porte,
Texas, for Appellant.
N. Bobee, UNITED STATES ATTORNEY'S OFFICE, Marquette,
Michigan, for Appellee.
Before: CLAY, GILMAN, and KETHLEDGE, Circuit Judges.
LEE GILMAN, CIRCUIT JUDGE
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
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
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
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.
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).
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
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
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).
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.
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.
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
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.
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.
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.
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.
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.
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.
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
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.
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 ...