United States v. Warren Mackey, 83 F.4th 672

In August 2019, E.M., an 11-year-old, stayed overnight with her father, Warren Mackey; she later reported he touched her breasts and digitally touched her clitoris while she was asleep.
E.M. first told friends in September 2019, who notified the school counselor; the counselor, principal, and Child Advocacy Center became involved and the FBI interviewed both E.M. and Mackey.
Mackey was indicted on one count of aggravated sexual abuse (digital penetration) and one count of abusive sexual contact; a jury convicted him on both counts.
The district court sentenced Mackey to 360 months on Count 1 and a concurrent 120 months on Count 2, and ordered $2,727.80 restitution for the mother’s lost wages related to therapy.
On appeal Mackey challenged (1) admission of testimony from the student and school witnesses, (2) admission of FBI Agent Howard’s anatomy testimony without Rule 16 notice, and (3) the restitution award entered without resolving his objections.

Issue	Plaintiff's Argument (Gov)	Defendant's Argument (Mackey)	Held
Admission of testimony by K.K., M.P., school counselor, and principal	Testimony explained the origin of the investigation and was therefore admissible	Testimony went beyond investigation origins and improperly bolstered E.M.’s credibility	Admission was not reversible error; any improper parts were cumulative of other testimony and not prejudicial
Admission of FBI Agent Howard’s anatomy testimony without Rule 16 notice	Testimony was proper and, in any event, defendant suffered no prejudice from lack of notice	Lack of Rule 16 notice and agent’s status did not permit untreated expert testimony; evidence should have been excluded	Court assumed testimony was expert but found no prejudice from notice violation; admission upheld
Restitution order entered without resolving objections	Restitution for mother’s lost wages is mandatory under §2248 and supported by documentation	E.M. or her mother are not restitution victims or the documentation is insufficient; requested hearing	Restitution order vacated as district court failed to resolve objections; remand for factfinding and resolution of disputes
Conviction and sentence	Evidence and procedures supported conviction and sentence	Errors argued required reversal or new trial	Conviction and sentence affirmed in all respects except restitution which was remanded

United States v. Williams, 41 F.4th 979 (8th Cir. 2022) (standards for reviewing evidentiary rulings)
United States v. Pirani, 406 F.3d 543 (8th Cir. 2005) (en banc standard for abuse-of-discretion review)
United States v. Oldrock, 867 F.3d 934 (8th Cir. 2017) (reversal only for clear and prejudicial abuse of discretion)
United States v. DeMarce, 564 F.3d 989 (8th Cir. 2009) (cumulative evidence and prejudice analysis)
United States v. Kenyon, 481 F.3d 1054 (8th Cir. 2007) (expert testimony admissibility and Rule 16 prejudice requirement)
United States v. Camacho, 555 F.3d 695 (8th Cir. 2009) (defendant must show prejudice from Rule 16 violation)
United States v. Waln, 916 F.3d 1113 (8th Cir. 2019) (no reversible error where substance of undisclosed testimony is undisputed)
United States v. Young, 272 F.3d 1052 (8th Cir. 2001) (district court must resolve restitution disputes by preponderance)
United States v. Carpenter, 841 F.3d 1057 (8th Cir. 2016) (standard of review for restitution and fact findings)