United States v. Patrick Wandahsega
924 F.3d 868
6th Cir.2019Background
- Defendant Patrick Wandahsega, living on Hannahville Reservation, was tried for abusive sexual contact of his then-six-year-old son, H.D.W.; convicted under 18 U.S.C. § 2244(a)(5) and acquitted of aggravated sexual abuse.
- Multiple witnesses (grandmother, family friend, ER nurse and physician, forensic interviewer, and the child) reported consistent disclosures that Wandahsega touched the child’s genitals and inserted a finger in the rectum on more than one occasion.
- DNA testing found a saliva mixture containing both the child’s and defendant’s DNA on the inside rear of one pair of the child’s underwear.
- Pretrial, a magistrate judge (unobjected-to) recommended allowing the child to testify by two-way CCTV under 18 U.S.C. § 3509; the district court adopted the recommendation.
- Trial evidentiary rulings: Court admitted certain out-of-court statements under Rule 803(4) (medical statements) and Rule 807 (residual exception) but excluded a recorded forensic interview and a supervised-visit video as hearsay; officer’s comment about a prior homosexual act led to a denied mistrial motion.
- At sentencing the court applied § 2A3.1 (criminal sexual abuse) and a § 4B1.5 pattern enhancement, varied downward four levels, and imposed 288 months; defendant appealed multiple evidentiary and sentencing rulings.
Issues
| Issue | Plaintiff's Argument (Wandahsega) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| 1. CCTV testimony under § 3509 and Confrontation Clause | Magistrate judge clear-error; CCTV violated Confrontation and due process | Waiver of appeal; magistrate findings supported necessity and Craig controls | Waiver not excused; even on merits magistrate findings not clearly erroneous and CCTV constitutional under Craig and § 3509 |
| 2. Admission of ER statements (Rule 803(4)) | Statements were investigatory, not for medical treatment; child too young to appreciate medical context | Nurses/physician testified they sought information for triage/diagnosis; proper foundation laid | Admission proper: statements made for and pertinent to diagnosis/treatment; no Turning Bear rule applied in Sixth Circuit |
| 3. Admission of statements to family (Rule 807) | Statements lacked guarantees of trustworthiness; witnesses biased | Statements were spontaneous, consistently repeated, nonleading and probative | Admission proper under residual exception given spontaneity, consistency and probativeness |
| 4. Sentencing enhancements and JVTA assessment | §4B1.5 pattern unsupported; §2A3.1 application relied on acquitted conduct; JVTA $5,000 erroneous as indigent; sentence substantively excessive | Two or more occasions established by child’s testimony; Watts/White allow consideration of acquitted conduct by preponderance; court considered indigency and §3553 factors | Court did not clearly err: pattern and sexual-act findings supported by preponderance; consideration of acquitted conduct permissible; JVTA assessment not plainly erroneous; 288-month sentence reasonable |
Key Cases Cited
- Maryland v. Craig, 497 U.S. 836 (permitting child testimony by CCTV where necessity shown)
- Crawford v. Washington, 541 U.S. 36 (Confrontation Clause limits on testimonial hearsay)
- Watts v. United States, 519 U.S. 148 (acquittal does not bar sentencing consideration of underlying conduct by preponderance)
- United States v. White, 551 F.3d 381 (6th Cir. en banc: acquitted-conduct consideration at sentencing constitutional within statutory maximum)
- United States v. Kappell, 418 F.3d 550 (admission of children’s statements to treatment providers under Rule 803(4))
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence)