116 F.4th 1069
10th Cir.2024Background
- Defendant Michael T. McFadden, a truck driver, was convicted by a jury of five federal counts charging sexual abuse of two minors (J.W. and K.W.) across state lines; he received concurrent life sentences and appealed.
- Both victims spent substantial time at McFadden’s home; he transported them on interstate trips and allegedly assaulted them (including anal penetration of K.W. during a Nebraska trip).
- In January 2013 K.W., then eleven, gave a video-recorded forensic interview to Detective Prescott; J.W. also disclosed abuse around the same time. Both later testified at the 2022 federal trial.
- The government moved to admit K.W.’s 2013 forensic-interview video under Fed. R. Evid. 807 (residual exception); the district court admitted it at trial. Defense sought to admit a 2018 FBI audio interview of K.W.; the court excluded it for lack of Rule 807 notice.
- McFadden challenged the admission/exclusion rulings, alleged testimonial vouching by two witnesses, and contested a two-level Guideline enhancement (§2G1.3(b)(2)(B)) for undue influence. The Tenth Circuit affirmed the convictions and sentence, concluding the video admission was erroneous but harmless and that other rulings were correct.
Issues
| Issue | Plaintiff's Argument (Gov't / Proponent) | Defendant's Argument (McFadden) | Held |
|---|---|---|---|
| Admissibility of 2013 forensic-interview video (Rule 807) | Gov't: video had guarantees of trustworthiness (proximity in time, interviewer training, detail, lack of motive) and was more probative than other evidence (victim equivocal at trial). | McFadden: statements were non‑spontaneous, contaminated by adult influence, not shown to be more probative than live testimony; court failed to make required on‑record trustworthiness findings. | Court: admission under Rule 807 was legal error (probative prong fail and record shortcomings re trustworthiness) but error was harmless because the video largely duplicated live testimony and corroborating evidence. |
| Admissibility of 2018 FBI audio (defense) | McFadden: audio impeached K.W. and should be admitted (fairness, Rule 613 impeachment or Rule 807 in exigency). | Gov't: defense failed Rule 807(b) notice; trial court treated the motion as Rule 807 and exclusion was proper; Rule 613 argument was not preserved. | Court: exclusion affirmed—no good cause to excuse Rule 807 notice; Rule 613 argument waived; no constitutional violation of right to present a defense. |
| Alleged vouching by Detective Prescott and Nurse Goebel | Gov't: testimony explained forensic‑interview reliability (Prescott); Goebel offered medical findings. | McFadden: Prescott and Goebel improperly vouched for victims’ credibility, depriving him of a fair trial. | Court: Prescott’s general testimony about interview methods was not improper vouching; Goebel’s single remark might be error but was not plain reversible error as it did not affect substantial rights. |
| Sentencing: §2G1.3(b)(2)(B) undue-influence enhancement | Gov't: enhancement applies; rebuttable presumption when defendant ≥10 years older; evidence showed grooming/undue influence. | McFadden: no voluntary sexual conduct so undue-influence enhancement inapplicable. | Court: enhancement affirmed—presumption applies and record supports that McFadden unduly influenced/groomed the minors. |
Key Cases Cited
- Idaho v. Wright, 497 U.S. 805 (establishes reliability analysis for child hearsay)
- United States v. Tome, 61 F.3d 1446 (10th Cir. 1995) (factors for admitting child hearsay under residual rule)
- United States v. Burgess, 99 F.4th 1175 (10th Cir. 2024) (recent Tenth Circuit guidance on cautious application of Rule 807 in child‑abuse cases)
- United States v. Harrison, 296 F.3d 994 (10th Cir. 2002) (consistency factor assessed at time of statement)
- United States v. Blechman, 657 F.3d 1052 (10th Cir. 2011) (nonconstitutional harmless‑error standard for evidentiary rulings)
- Kotteakos v. United States, 328 U.S. 750 (harmless‑error standard for nonconstitutional errors)
- United States v. W.B., 452 F.3d 1002 (8th Cir. 2006) (live testimony generally more probative than out‑of‑court statements)