UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL TRACY MCFADDEN, Defendant - Appellant.
No. 23-1089
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
August 30, 2024
PUBLISH
Christopher M. Wolpert, Clerk of Court
Ty Gee (Meredith O’Harris with him on the briefs) of Maddon, Morgan and Foreman, P.C., Denver, CO, for Defendant - Appellant.
J. Bishop Grewell, Assistant United States Attorney (Cole Finegan, United States Attorney, with him on the brief), Denver, CO, for Plaintiff - Appellee.
Before PHILLIPS, KELLY, and FEDERICO, Circuit Judges.
PHILLIPS, Circuit Judge.
A jury convicted Michael Tracey McFadden of five criminal counts related to McFadden‘s sexual assault of two minors. The district court sentenced him to serve concurrent life sentences on each count. McFadden now appeals his conviction and sentence. He contends that various evidentiary errors at trial, plus a mistake in his Guidelines calculation, require a new trial and resentencing. We disagree and so, exercising our jurisdiction under
I. Factual Background
Two boys native to Grand Junction, Colorado were abused throughout their childhoods by the defendant, Michael Tracy McFadden. Both boys, known to us as J.W. and K.W., spent much of their youth playing and sleeping over at McFadden‘s house. McFadden is distantly related to J.W. on J.W.‘s mother‘s side. McFadden and K.W. are unrelated, but McFadden was a close friend of the W. family. McFadden stepped up to help look after the boys because J.W.‘s mother was battling addiction and an abusive relationship, while K.W.‘s parents generally struggled to make ends meet. McFadden ingratiated himself with the boys and their families through his generosity. He provided necessities (clothing, food, rides to school, doctor appointments) and luxuries (BMX bikes, paintball guns, trampolines, videogames) that the boys’ families could not afford.
J.W. lived with McFadden for the better part of six years, from roughly ages six to twelve. When J.W. was about eleven and K.W. was about ten, K.W. began regularly going over to McFadden‘s house to play with J.W. and J.W.‘s siblings. K.W. began spending most weekends there and would frequently stay the night. During these overnights, both boys slept with McFadden in his bed. Once the boys would fall asleep, McFadden would assault them. When McFadden moved to a different home in Grand Junction, J.W. went with him, and K.W.‘s family moved to a neighboring property. K.W. continued to spend significant time playing with J.W. and sleeping over at McFadden‘s house. The same pattern of abuse continued there. To facilitate his abuse, McFadden routinely gave the boys melatonin in high doses before bedtime.
Though McFadden‘s Colorado homes were sites of repeated abuse, McFadden also assaulted both boys across state lines. McFadden was a truck driver, so he regularly traveled on interstate highways picking up and delivering loads. He often invited J.W. and K.W. to accompany him on these trips. On one such trip to Arizona, when J.W. was about nine, McFadden assaulted him during the night while J.W. slept next to McFadden on the mattress in the semi-truck‘s sleeper cab. On another trip from Telluride, CO to Farmington, NM in December 2010, when J.W. was ten, McFadden once again assaulted J.W. while the two slept in the sleeper cab of McFadden‘s semi-truck. Both times, McFadden penetrated J.W.‘s anus while J.W. pretended to sleep. These assaults caused J.W. to feel pressure and a wet sensation in his rear.
In December 2012, McFadden took K.W. and K.W.‘s brothers on a semi-truck trip from Idaho to Nebraska. At the time, K.W. was eleven, his older brother (S.W.) was eighteen, and his younger brother (L.W.) was nine. S.W. slept across the driver and passenger seats, while K.W., L.W., and McFadden shared the mattress in the sleeper cab behind the front seats. During the night, McFadden pulled down K.W.‘s pants and inserted his penis into K.W.‘s anus, which K.W. said “hurt a lot.” ROA vol. VI, at 183.
Around the time of the Nebraska trip, other children started coming forward with allegations that McFadden had abused them. From these accusations, Detective Edward Prescott with the Grand Junction Police Department obtained a warrant to arrest McFadden, who was still with the W. boys in Nebraska. The local Nebraska police executed the warrant and arrested McFadden on January 3, 2013. The W. boys’ mother picked them up at a Nebraska truck stop and drove them back to Colorado. On the ride home, K.W.‘s mother asked K.W. if McFadden had ever “done anything” to him, and K.W. said no.
The parties disagree about when J.W. first accused McFadden of sexual abuse.1 McFadden insists that J.W. outcried before K.W. talked to Detective Prescott, the government maintains that it was after. Regardless, J.W. came forward in early 2013 and told Detective Prescott that McFadden had been sexually abusing him for many years.
Years later, in 2018, J.W. and K.W. were interviewed again about McFadden‘s assaults. The FBI conducted K.W.‘s interview during his stint at a juvenile correctional facility. The audio of that interview was recorded.
II. Procedural Background
McFadden was convicted in Colorado state court on nineteen counts of child-sex abuse.2 McFadden appealed that conviction and won. The Colorado Court of Appeals determined that McFadden‘s speedy-trial rights had been violated, and so the court dismissed all charges. The Colorado Supreme Court denied certiorari, and McFadden was released. People v. McFadden, No. 17SC573, 2018 WL 827272 (Colo. Feb. 12, 2018).
About a year after his release, a federal grand jury charged McFadden with five criminal counts related to his sexual abuse of J.W. and K.W. across state lines. Counts One and Three were charged under
Before trial, the government filed a notice of intent to introduce the video recording from K.W.‘s 2013 forensic interview with Detective Prescott under
At trial, the government examined K.W. about the alleged assaults. Asking whether McFadden had penetrated K.W. with his penis, K.W. initially said that McFadden had “tried to.” ROA vol. VI, at 182–83. The government zeroed in: “When you say he tried to put his penis in you, did he put his penis into your butt?” Id. at 183. K.W. then answered, “Yes.” K.W. further confirmed that, “Yes,” he felt pressure against his anus from McFadden and that it “hurt a lot” “because [he] was little at the time.” Id. In testifying about the Nebraska semi-truck trip, K.W. said that he “slept right next to Mike” and identified the government‘s exhibit (a photo of the semi-truck‘s sleeper cab mattress) as the location where McFadden penetrated him. Id. at 187.
After this testimony, the government moved under
After the jury watched the 2013 video recording, K.W. was cross-examined by defense counsel. During cross, defense counsel used the transcript from K.W.‘s 2018 FBI interview to impeach him. Defense counsel then moved to admit the audio recording of K.W.‘s 2018 interview with the FBI. The court denied the defense‘s motion because, unlike the government, defense counsel had given no notice of his intent to introduce
Over the course of McFadden‘s five-day trial, the jury heard testimony from the following witnesses: J.W.; J.W.‘s mother; K.W.; K.W.‘s mother; S.W. (K.W.‘s older brother); two of McFadden‘s former bosses from the construction company and trucking company where he worked; the Nebraska police officer who arrested McFadden; Detective Prescott; Sue Goebel, the nurse who performed a SANE (sexual assault nurse examiner) exam on J.W. in March 2013; and a child therapist who offered expert testimony about the psychological impact of sexual abuse on children. Most of this testimony is unchallenged on appeal, except for two instances of alleged vouching, which we discuss later in this opinion.
The jury found McFadden guilty on all counts, and the district court sentenced McFadden to serve concurrent life sentences on each count. The presentence report calculated McFadden‘s sentence by
DISCUSSION
McFadden contends that multiple errors committed at trial demand reversal of his conviction and that an error in his Guidelines calculation requires resentencing. We agree with McFadden that the district court erred in admitting the 2013 forensic-interview video recording under
I. Rule 807
The residual-hearsay exception under
(a) In General. Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804:
(1) the statement is supported by sufficient guarantees of trustworthiness—after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and
(2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.
(b) Notice. The statement is admissible only if the proponent gives an adverse party reasonable notice of the intent to offer the statement—including its substance and the declarant‘s name—so that the party has a fair opportunity to meet it. The notice must be provided in writing before the trial or hearing—or in any form during the trial or hearing if the court, for good cause, excuses a lack of earlier notice.
“The residual exception ‘should be used only in extraordinary circumstances.‘” United States v. Burgess, 99 F.4th 1175, 1183 (10th Cir. 2024) (quoting United States v. Dalton, 918 F.3d 1117, 1133 (10th Cir. 2019)). Such circumstances exist when the court is “satisfied that the evidence offers guarantees of trustworthiness and is material, probative and necessary in the interest of justice.” Id. (quoting Dalton, 918 F.3d at 1133). We interpret the residual exception with “caution” so that it does not “swallow the entirety of
McFadden argues that the district court abused its discretion in applying
We review such evidentiary decisions for an abuse of discretion. United States v. Hay, 95 F.4th 1304, 1318 (10th Cir. 2024). We do so recognizing that a legal error constitutes an abuse of discretion per se. United States v. Geddes, 71 F.4th 1206, 1214 (10th Cir. 2023). “[L]egal conclusions about the Federal Rules of Evidence” are subject to de novo review. Hay, 95 F.4th at 1318.
A. The 2013 Video Recording
To be admissible under the residual-hearsay exception, the offered evidence must contain “sufficient guarantees of trustworthiness” and be “more probative on the point for which it is offered than any other [reasonably attainable] evidence.”
1. The district court‘s ruling on trustworthiness was not error.
In child-sex-abuse cases, there are various factors that courts consider in deciding whether a child victim‘s hearsay statement is admissible under
The government‘s notice of intent gave several reasons why K.W.‘s 2013 video statements were sufficiently trustworthy: (1) the consistency of K.W.‘s statements about the assaults; (2) the interview‘s proximity in time to the alleged Nebraska assault (about two weeks); (3) K.W.‘s use of childlike terminology (i.e., describing penises and anuses as “no-no‘s“); (4) K.W.‘s particular and detailed descriptions of the assaults; (5) K.W.‘s lack of motivation to fabricate; and (6) the interview being recorded on video, which allowed the jury to assess K.W.‘s credibility.4 And at the pretrial evidentiary hearing, the government presented testimony from Detective Prescott to explain the trustworthy circumstances under which he conducted K.W.‘s forensic interview.
The district court was particularly persuaded by Detective Prescott‘s testimony. In issuing its ruling at trial, the court observed that “Detective Prescott went through his experience, his training on forensic interview techniques,” and his “attempt[] to determine that the witness [knew] the difference between a truth and a lie.” ROA vol. VI, at 195. From those observations, the district court concluded that the 2013 video “weighs in favor of a finding of trustworthiness.” Id. The court added that it had “carefully reviewed the video in light of relevant facts . . . under
Properly admitting a child‘s hearsay statement under the catchall exception requires the district court “not . . . merely to find an absence of evidence that the statement was unreliable,” but to find that the child “was particularly likely to be telling the truth.” Burgess, 99 F.4th at 1184 (citation omitted). Though the court has “leeway” in considering the “appropriate factors” in its
“[H]earsay determinations are particularly fact and case specific,” so “we afford heightened deference” to the district court‘s evidentiary rulings to admit hearsay evidence. United States v. Lovato, 950 F.3d 1337, 1341 (10th Cir. 2020) (quoting Trujillo, 136 F.3d at 1395). Because the district court stated that it considered the “relevant facts . . . under
But we would be remiss not to point out that the district court‘s reasoning in ruling on the government‘s
At the pretrial hearing, the court enunciated the cluster of factors pertinent to
First, K.W.‘s statements to Detective Prescott were not spontaneous. K.W. knew that the purpose of the interview was to talk about McFadden‘s inappropriate behavior with children. And unlike the child victim in Burgess, K.W. never made any spontaneous allegations about McFadden‘s abuse before his interview. See Burgess, 99 F.4th at 1184 (affirming the admissibility of
Second, though K.W. used some age-appropriate terminology in his descriptions of McFadden‘s assaults, he also used sophisticated language beyond his years—for instance, stating that McFadden has “a disease and it makes him like little children” and that McFadden was “overdosing” the children with melatonin. ROA vol. I, at 171, 193. Not only does some of K.W.‘s language suggest adult intervention, but the record substantiates that K.W. spoke with several adults about McFadden before his interview with Detective Prescott, including his mother and a child counselor. This type of intervention could undermine the trustworthiness of a child‘s out-of-court statements. See United States v. Barrett, 8 F.3d 1296, 1300 (8th Cir. 1993) (instructing the district court to consider on remand whether evidence of “prior interrogation, prompting, or manipulation by adults” of the child victim impacted the spontaneity of the child‘s admission of abuse, making spontaneity “an inaccurate indicator of trustworthiness” (citation omitted)). More still, the taint of adult influence was McFadden‘s principal argument against the video‘s admission in his objection to the government‘s notice of intent and at the pretrial evidentiary hearing, yet the court didn‘t address this point in ruling on the motion at trial. We can‘t know for sure which aspects of K.W.‘s video statements were genuine and which, if any, were the product of outside adult influence. But it was the district court‘s job to grapple with that possibility on the record as it “relate[d] to whether [K.W.] was particularly likely to be telling the truth.” Wright, 497 U.S. at 822.
Third, the government stated in its notice of intent that the consistency between K.W.‘s 2013 interview statements and his state-trial testimony make the video statements more reliable. But that analysis mistakes how we apply the consistency factor under Wright/Tome. In United States v. Harrison, 296 F.3d 994, 996–99 (10th Cir. 2002), we found that a child‘s accusations about her abusive step-father were “consistent” because the child‘s three separate allegations (two to law enforcement officers and one to a doctor) after the incident all conveyed the same story. So too in Burgess, 99 F.4th at 1179, 1184, we deemed the child‘s statements “consistent” because her spontaneous admissions about the abuse to a trusted adult matched the statements she made to her mother the next day, as well as the statements she made in a forensic interview conducted three days later. In both cases, we limited our consideration of the child‘s consistency to the time “when the [hearsay] statement was made.” Id. (quoting Tome, 61 F.3d at 1453).
We recognize that many factors favor the video‘s trustworthiness—K.W.‘s lack of motive to fabricate; Detective Prescott‘s training and interview style; K.W.‘s detailed statements about the abuse; and the short time gap (two
weeks) between the last alleged abuse and the forensic interview—though the district court failed to mention most of these in its ruling. This balance of factors allows us to imagine how the district court arrived at its conclusion to find the video sufficiently trustworthy. But the absence of a record weighing the “appropriate factors” in this case hampers our ability on appeal to determine whether
Tome doesn‘t command merely that a majority of the factors signal trustworthiness. Its standard is even higher: Tome instructs that the circumstances surrounding the offered hearsay statement must be “[un]equivocal” such that its trustworthiness is “guarantee[d].” 61 F.3d at 1453. “[A] suggestion of trustworthiness cannot suffice.” Harrison, 296 F.3d at 1006. Our intolerance for equivocality in this arena echoes the extreme caution with which we apply
Regardless, we resolve next that the 2013 video was not more probative on the point for which it was offered compared to other reasonably attainable evidence. So we conclude that the court‘s admission of the hearsay evidence was error on that ground.
2. The 2013 video was not more probative on the point for which it was offered.
In its notice of intent, the government asserted that the 2013 video was more probative on three points: (1) McFadden‘s penetrative assault of K.W.; (2) McFadden‘s
But against the government‘s expectations, K.W. did testify at trial and did recall the pertinent events. So when the government moved at trial to admit the video recording, the court asked: “In light of the fact that [K.W.] testified that he did remember the truck assault, what is the purpose of the video?” ROA vol. VI, at 193. The government answered that the video “remains the most probative evidence on that point“—“that point” being the “truck assault“—because “K.W., while he did discuss the events in question, did so reluctantly and often after . . . prompting.” Id. Most concerning to the government was K.W.‘s being “pretty equivocal about penetration,” which he was not in the video. Id. at 194. The government added that the video “is closer in time to the events in question.” Id. at 193. Defense counsel objected because K.W. “was able to recall the events” and therefore that there was no purpose for admitting the video. Id. The district court agreed with the government that K.W.‘s trial testimony was “reluctant” and “equivocal about the penetration, which [K.W.] was not in the video.” Id. at 195. On that basis, the court ruled that the 2013 video was “more probative on the point for which it is offered than any other evidence that the Government can obtain through reasonable efforts.” Id.
The government maintains on appeal that the 2013 video was the more probative, reasonably available evidence to prove two points: anal penetration and K.W. observing McFadden jerk his hand away from J.W.‘s penis under a blanket.5
We can quickly dispense with the second point. The government argues that the video was more probative of whether K.W. witnessed McFadden touching J.W. inappropriately because, when the prosecutor asked K.W. at trial “whether K.W. saw ‘McFadden do anything to anyone else that made [him] uncomfortable,‘” K.W. answered: “I did not, no.” Resp. Br. at 30 (quoting ROA vol. VI, at 189). A vague question about K.W.‘s discomfort was a feeble attempt to elicit testimony about one specific incident of alleged assault from a man who experienced years of abuse throughout his childhood.
As to the point about anal penetration, K.W. testified sufficiently to this at trial. On direct examination, the government asked K.W. whether McFadden penetrated him, and K.W. responded that McFadden had “tried to.” ROA vol. VI, at 183. The government clarified whether “tried to” meant that “[McFadden] tried to put his penis in [K.W.],” specifically whether McFadden “put his penis into [K.W.‘s] butt.” Id. To that, K.W. answered, “Yes.” Id. K.W. added that he felt pressure against his anus from McFadden‘s penetration which “hurt a lot” “because [he] was little at the time.” Id.
It is axiomatic that the Federal Rules of Evidence favor live testimony over statements made outside the courtroom. See Harrison, 296 F.3d at 1007. This is especially true “[w]hen the ‘key factual issues’ at trial turn on the ‘credibility’ and ‘demeanor‘” of the witnesses. Garcia-Martinez v. City & Cnty. of Denver, 392 F.3d 1187, 1191 (10th Cir. 2004). Even in child-sex-abuse cases, where “exceptional circumstances generally exist” to admit residual-hearsay evidence, “a child‘s in-court statements are generally more probative than a child‘s out-of-court statements.” United States v. W.B., 452 F.3d 1002, 1005–06 (8th Cir. 2006). Simply because a case involves child-sex abuse does not make
K.W. and J.W.‘s credibility shoulders the government‘s case because no one else bore witness to the alleged assaults. In this he said/he said case, the jury‘s ability to assess K.W.‘s credibility from live testimony was paramount. See Garcia-Martinez, 392 F.3d at 1191–92. Because the 2013 video statements are not superior to K.W.‘s live testimony, there was no justification to override our preference for in-court testimony. See 2 McCormick on Evidence § 324 n.39 (8th ed.) (July 2022 update) (explaining circumstances when an “out-of-court statement will be superior” to live testimony, including when a witness‘s trial testimony is “incomplete[]“).
Our most recent dispatch on
In contrast, K.W.‘s trial testimony reflects his original allegation from the 2013 video accusing McFadden of anal penetration. When asked directly at trial whether McFadden inserted his penis into K.W.‘s anus, K.W. responded, “Yes.” ROA vol. VI, at 183. And he even elaborated that the act “hurt a lot” due to his age and size. Id. K.W. also identified the government‘s exhibit—a photo of the sleeper cab‘s mattress—as the location where McFadden penetrated him. Though we generally afford the district court “a deferential standard of review” due to the court‘s ability “to watch and listen to the witnesses as they testified,” we disagree that the 2013 video was more probative than K.W.‘s live testimony about the alleged incident in the semi-truck. Burgess, 99 F.4th at 1187 (quoting Peneaux, 432 F.3d at 893).
The government insists that K.W.‘s trial testimony was ambivalent, making the 2013 interview more probative and necessary to prove penetration. McFadden responds that, even if the trial evidence weren‘t probative enough to show penetration—though he believes it was—a conviction under
A victim‘s tepid trial testimony does not justify admitting more zealous, yet consistent, statements under the residual-hearsay exception. Were that true,
Because the government failed to satisfy
B. The 2018 Audio Recording
K.W. was interviewed by the FBI in 2018 during his detention at a juvenile correction center. The audio of that interview was recorded and a transcript issued. At trial, defense counsel impeached K.W. with statements he had made during the 2018 interview. Defense counsel reminded K.W. of his 2018 statement that he didn‘t remember the incident with “Mike in the truck.” ROA vol. VI, at 207. K.W. explained that he “did say that, but the reason why [he] said that is [he] d[id]n‘t like talking about this.” Id. at 207–08. Defense counsel recited several more statements from the 2018 interview, which K.W. confirmed having made. In going through this line of impeachment questioning, defense counsel touched on some inconsistencies between K.W.‘s 2018 interview and his trial testimony. For example, defense counsel noted K.W.‘s 2018 statement that, at the time, he and J.W. were still close friends, compared to K.W.‘s trial testimony that he “had stopped talking to J.W. after this incident” with McFadden. Id. at 209. And there were some other 2018 statements that K.W. testified he could not recall having made.
After finishing his cross-examination of K.W., defense counsel moved to admit the audio recording of K.W.‘s 2018 interview. Defense counsel sought to admit the audio recording partly because he believed that the government had introduced the 2013 forensic-interview video based on K.W.‘s 2018 statements that he couldn‘t remember the Nebraska trip. So, “[i]n fairness,” defense counsel advanced, “the [audio] recording that gave rise to the video should be admitted.” Id. at 212. The government replied that “the [2018 audio] recording [wa]s not the reason that [the 2013 forensic-interview video] was admitted.” Id. The government posited that defense counsel was trying to “impeach [K.W.] based on that [2018] transcript, which [defense counsel] had already done and c[ould] continue to do if he fe[lt] he ha[d]n‘t done it adequately.” Id. at 213. But the government maintained that the defense‘s impeachment of K.W. did not require admitting the 2018 audio recording.
The district court construed McFadden‘s submission of the 2018 audio recording as a
Before us, McFadden argues that two rules of evidence foreclose the district
“[W]e review [the district court‘s] legal interpretation of the Federal Rules of Evidence de novo and its application of the rules for abuse of discretion.” United States v. Armajo, 38 F.4th 80, 84 (10th Cir. 2022). Under this standard, we discern no error in the district court‘s exclusion of the 2018 audio recording.
1. The district court did not abuse its discretion by enforcing Rule 807(b)‘s notice requirement.
McFadden did not move expressly under
None of these reasons demonstrate good cause or persuade us that the district court clearly erred in finding no good cause for McFadden‘s lack of notice. The committee notes to
McFadden further states that the district court was “permitted,” and so not required, to waive
2. The arguments presented under Rule 613(b) are waived.
At trial, defense counsel never cited
3. The 2018 audio recording‘s exclusion did not violate McFadden‘s constitutional right to present a defense.
McFadden squeezes his fairness argument for all the juice he can: he contends next that this argument also raised a constitutional claim that the district court‘s ruling denied him his due process right to “a meaningful opportunity to present a complete defense.” Op. Br. at 28 (quoting Crane, 476 U.S. at 690). The government concedes that McFadden‘s fairness argument is preserved for our review. So we accept that McFadden‘s constitutional arguments are properly before us. Even so, they are meritless.
McFadden insists that by excluding the 2018 audio recording the district court “violated [his] right to present a defense and confront the witnesses against him.” Reply Br. at 22. The
We have already established that the district court acted within its discretion by excluding the 2018 audio recording under
Our analysis of McFadden‘s constitutional claim stops there. See id.; United States v. Serrano, 406 F.3d 1208, 1215 (10th Cir. 2005) (affirming that “the accused does not have an unfettered right to offer [evidence] . . . otherwise inadmissible under [the] standard rules” (cleaned up)). McFadden was not deprived of his right to present a defense at trial because the district court‘s exclusion of the 2018 recording was not an abuse of discretion under the Federal Rules of Evidence. Williams, 934 F.3d at 1131.
C. Harmless Error
Because the district court erred in admitting the 2013 forensic-interview video under the residual-hearsay exception, we next consider whether that error was harmless. United States v. Chavez, 976 F.3d 1178, 1204 (10th Cir. 2020). McFadden challenges the video‘s admissibility under
Chavez, 976 F.3d at 1204 (alterations omitted) (quoting United States v. Charley, 189 F.3d 1251, 1270 (10th Cir. 1999)). The government bears the burden to prove harmlessness. United States v. Ledford, 443 F.3d 702, 712 (10th Cir. 2005).
Yet here, the government‘s response brief fails to assert or even address harmlessness as it relates to the 2013 video recording. When the government waives harmless error, “this court may in its discretion ‘initiate harmless error review in an appropriate case.‘” United States v. Samaniego, 187 F.3d 1222, 1224 (10th Cir. 1999) (quoting United States v. Torrez-Ortega, 184 F.3d 1128, 1136 (10th Cir. 1999)). In deciding whether to proceed with a discretionary harmless-error review, we consider “(1) the length and complexity of the record; (2) whether the harmlessness of the errors is certain or
First, the record here is not especially complicated—the trial lasted less than a week and involved one defendant and two key witnesses. Compare United States v. Doe, 572 F.3d 1162, 1175 (10th Cir. 2009) (proceeding to harmless-error review because “[t]he record in this case is not lengthy or complex” and both defendants’ trials “lasted less than one week“), with Torrez-Ortega, 184 F.3d at 1136 (declining to exercise discretion to address harmless error when the record was “extensive and complex,” because it included “twenty-five volumes cover[ing] a two-week, multi-defendant trial“). Plus, all the criminal counts in McFadden‘s conviction are at issue on appeal, thus we are not left with a “difficult task of determining which portions of the transcript” are most relevant. Holly, 488 F.3d at 1308.
Second, and most importantly, the question of harmlessness in this case is certain. See United States v. Little, 829 F.3d 1177, 1189 (10th Cir. 2016) (Holmes, J., dissenting) (noting that “the certainty of harmlessness“—the second factor—is “[t]he most important” and “can be dispositive under certain circumstances“). Exercising our discretion to conduct harmless-error review, even when the government has failed to brief the issue, is appropriate “where the certainty of the harmlessness is readily apparent.” Holly, 488 F.3d at 1308; see United States v. Silver, 954 F.3d 455, 459 (2d Cir. 2020) (explaining that, by opting to address harmless error “without the benefit of briefing,” courts of appeal may avoid becoming “locked into interminable cycles of remand or requests for additional briefing from the parties“). We are convinced that is the case here.
The video recording is harmless partly for the same reason that it is not “more probative” under
Additionally convincing are that J.W.‘s testimony corroborated K.W.‘s regarding
II. Vouching
McFadden alleges that two witnesses (Detective Prescott and Nurse Goebel) vouched for K.W.‘s and J.W.‘s credibility, which deprived him of a fair trial in violation of the Due Process Clause. McFadden concedes that his challenge to Goebel‘s testimony is unpreserved. So we review his vouching claim as to Goebel for plain error and his claim as to Detective Prescott for an abuse of discretion. United States v. Willis, 826 F.3d 1265, 1279 & n.6 (10th Cir. 2016).
This court uses the terms “vouching” and “bolstering” somewhat interchangeably when referring to expert testimony or prosecutorial statements that “express[] a belief or opinion regarding a witness‘s credibility.” United States v. Walker, 85 F.4th 973, 985 n.9 (10th Cir. 2023); see also United States v. Coulter, 57 F.4th 1168, 1186–87 (10th Cir. 2023) (noting that we apply “the prohibition on bolstering to statements by prosecutors and individuals affiliated with the prosecution,” including law-enforcement officers). Vouching might involve “blunt comments” affirming the witness‘s credibility—as in, “I think the witness is honest“—or “comments that place the prestige of the government behind a witness.” 75A Am. Jur. 2d Trial § 577 (May 2024 update). At bottom, testimony that “usurp[s] the exclusive function of the jury to weigh the evidence and determine credibility” should be excluded as improper vouching. United States v. Hill, 749 F.3d 1250, 1260 (10th Cir. 2014) (quoting United States v. Samara, 643 F.2d 701, 705 (10th Cir. 1981)).
A. Detective Prescott
McFadden contends that Detective Prescott vouched for the truth of K.W.‘s sexual-assault allegations. Throughout the trial, McFadden disputed K.W.‘s credibility because K.W. had initially told his mother on the car ride back from Nebraska that McFadden never touched him, and then mere weeks later K.W. changed his tune during the forensic interview with Detective Prescott, after he had met with a child counselor and talked to his mother. According to McFadden, this “exposure to outside information” before the forensic interview makes K.W.‘s interview statements unreliable. Op. Br. at 40.
Detective Prescott‘s testimony was not vouching.10 On cross-examination, defense counsel attempted to undermine the forensic interview as a reliable process for extracting truthful allegations from children. This line of questioning opened the door to the integrity of forensic interviews, generally. So naturally, on redirect, the government sought to shore up the forensic-interview process as a reliable means for ferreting out truthful statements from often-reticent child victims. Detective Prescott‘s response spoke generally to the truth-seeking function of forensic interviews. Such general statements from government agents or law enforcement about the reliability of a particular investigatory or fact-finding process is not vouching. See, e.g., United States v. Brooks, 736 F.3d 921, 934–35 (10th Cir. 2013) (concluding that a government agent did not vouch for the witnesses’ credibility by testifying that the proffer process was designed “to gauge whether potential cooperators were inclined to be truthful“); United States v. Jones, 468 F.3d 704, 708 (10th Cir. 2006) (determining that testimony stating that, “proffers are used to ‘gauge truthfulness‘” “do not meet our standard for vouching” because the testimony “did not amount to guarantees concerning the veracity of the witnesses“); United States v. Magallanez, 408 F.3d 672, 679 (10th Cir. 2005) (rejecting defendant‘s argument that government agents’ “[g]eneral testimony” about “how . . . wire records, phone records, and hotel records help investigators to determine contact and money transfers” was “improper vouching,” especially
when defendant “opened the door for the government to explain the purpose of [those] documents“); United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990) (clarifying that “[u]se of the ‘truthfulness’ portions” of plea agreements “becomes impermissible vouching only when the prosecutors explicitly or implicitly indicate that they can monitor and accurately verify the truthfulness of the witness’ testimony“). Nothing Detective Prescott said during his testimony advocated for the specific truthfulness of K.W.‘s forensic-interview statements, so his testimony did not cross the line into vouching.
B. Nurse Goebel
Nurse Goebel evaluated J.W. for signs of sexual abuse in March 2013 and testified at trial to her findings from that exam. McFadden argues that Goebel vouched for J.W.‘s credibility by testifying to “her ultimate ‘assessment’ and ‘conclusion‘” that “there was sexual assault” in J.W.‘s case. Op. Br. at 41 (quoting ROA vol. VI, at 134). McFadden concedes that he did not object to this testimony when it was offered, and so we review its admissibility for plain error. Walker, 85 F.4th at 983. This requires McFadden to establish (1) an error (2) that is plain (3) that affected his substantial rights and (4) that undermined the fairness, integrity, and public reputation of the judicial proceeding. United States v. Booker, 63 F.4th 1254, 1258 (10th Cir. 2023).
The government concedes the first two prongs of plain error.12 Even so, McFadden hasn‘t shown a “reasonable probability” that Goebel‘s testimony affected his substantial rights, so his claim fails on the third prong of the plain-error test. United States v. Benford, 875 F.3d 1007, 1017 (10th Cir. 2017). Under the third
In cases “where the outcome boils down to a believability contest[,] . . . testimony vouching for the credibility of the victim is often prejudicial,” but even then, prejudice is not a given. Jones, 74 F.4th at 1072 (emphasis added). In Jones, the mother‘s testimony improperly vouched for her daughters’ tendency toward truthfulness under
their character of truthfulness, she testified that they were truthful “on a specific occasion.” Id. at 1069. We concluded that this testimony affected the defendant‘s substantial rights and reversed his conviction on plain-error review. Id. at 1072–73. Because the daughters’ credibility was central to the jury‘s verdict, we reasoned that the effect of the mother‘s vouching was “amplified” and so created a “reasonable probability” of changing the trial‘s outcome. Id. at 1072. This made Jones different from Charley, where we “held it was harmless error to admit the inadmissible testimony because there was overwhelming evidence implicating the defendant.” Id. at 1072 n.4.
Though McFadden‘s trial was a “believability contest” between J.W., K.W., and McFadden, Goebel‘s testimony lacked the same outsized impact that the mother‘s testimony had in Jones. The mother in Jones testified about her daughters’ specific truthfulness, so both of their allegations were tainted by her improper vouching. Id. at 1069. At best, Goebel‘s testimony taints J.W.‘s credibility, only. K.W. testified extensively and compellingly to McFadden‘s habit of giving K.W. large doses melatonin, McFadden being on top of him in the middle of the night with an erect penis, McFadden groping him, and most of all, McFadden taking K.W. to Nebraska and anally penetrating him during the night in the back of the semi-truck. So it‘s not true in this case that “the only other evidence cited by the Government . . . is testimony that [the witness] vouched for.” Id. at 1072. The conduct described in K.W.‘s unvouched-for testimony accounted for two of the five criminal counts on which the jury convicted McFadden and two of the five concurrent life sentences to which the district court sentenced him. So even if J.W.‘s credibility was tainted, as McFadden alleges, McFadden would still have been convicted on two counts and sentenced to life imprisonment.
But we are unconvinced that any vouching in Goebel‘s testimony was so “pronounced and persistent” as to have affected McFadden‘s trial. Carter, 787 F.3d at 1292 (citation omitted). In a single comment, Goebel stated her impression from J.W.‘s exam that he had been sexually assaulted. See, e.g., United States v. Garrett, 648 F.3d 618, 624–25 (8th Cir. 2011) (concluding that “an isolated comment from one witness in the midst of testimony from twelve other witnesses,” though objectionable, did not merit a mistrial). The bulk of her testimony covered typical symptoms that she observes in child-sex-abuse cases, particularly cases involving anal penetration, and her extensive explanations that “[i]n the vast majority of cases” there is “no physical finding of anal penetration of the child.” ROA vol. VI, at 145. Goebel never claimed to have any expertise in ascertaining the truth from her child patients. And she admitted that her exam “isn‘t the forensic interview.” Id.
McFadden additionally argues that the lack of eyewitnesses in this case makes Goebel‘s vouching substantially prejudicial. Though it is true that no one witnessed the charged assaults, other testimony corroborated J.W.‘s general account of McFadden‘s years-long abuse. McFadden‘s boss at the trucking company verified that McFadden indeed transported a truck delivery from Telluride, CO, to Farmington, NM in December 2010, when J.W. was about ten-years old. McFadden‘s supervisor at the construction company and landlord testified that there were “normally” “three or four” young boys “around [McFadden],” even though there was no business reason for young boys to accompany McFadden on work trips. ROA vol. VI, at 461. And it‘s not as though McFadden was accused of one, isolated incident of assault to which there were no eyewitnesses. See United States v. Velarde, 214 F.3d 1204, 1212 (10th Cir. 2000) (concluding that expert testimony vouched for the victim‘s credibility and affected defendant‘s trial in part because “in this case, a young girl testified to a single instance of alleged sexual abuse” with “relatively little other evidence” (emphasis added)). J.W. testified to an intimate relationship with McFadden that formed throughout his childhood, which then gave McFadden the opportunity to assault J.W. on the out-of-state truck trips. J.W.‘s mother corroborated this dynamic. She testified that McFadden “took the lead” in taking care of J.W., that she struggled with a methamphetamine addiction during J.W.‘s youth, and that she knew J.W. slept in McFadden‘s bedroom when he stayed at McFadden‘s house. She also confirmed that J.W. frequently accompanied McFadden on semi-truck trips, sometimes out of state, and that due to her drug addiction there were times when she “didn‘t even realize that [J.W.] was gone.” ROA vol. VI, at 448. So even though there were no eyewitnesses to McFadden‘s sexual abuse, multiple witnesses substantiated J.W.‘s testimony about McFadden‘s pattern of traveling across state lines with young boys and his unfettered access to J.W. for large portions of his childhood. This evidence establishes that McFadden had “the opportunity to commit the crimes.” Charley, 189 F.3d at 1271 (considering favorably under a harmless-error analysis that defendant “was on supervised release at the time of the events in question” and that the victims were home alone).
Based on the evidence in this case, McFadden has not carried his burden to show “a reasonable probability that but for” Goebel‘s limited testimony about J.W.‘s report of abuse, “he would not have been convicted.” Hill, 749 F.3d at 1266.
III. Cumulative Error
“In a cumulative-error analysis, we aggregate all the separate nonreversible
McFadden argues that a combination of preserved and unpreserved errors were committed during his trial. He asserts that the admission of the 2013 forensic-interview video recording, the exclusion of the 2018 audio recording, and the vouching testimony from Detective Prescott and Nurse Goebel cumulatively “misled the jury about the quantity and quality of evidence against Mr. McFadden,” creating “collective prejudice” that now requires reversal and a new trial. Op. Br. at 46. Among these, we have recognized one nonreversible error: the admission of the 2013 video recording. But McFadden must demonstrate “at least two errors before we may find cumulative error.” Willis, 826 F.3d at 1280. Because we lack multiple errors to aggregate in the cumulative-error analysis, McFadden‘s argument fails.
IV. Undue-Influence Enhancement
The district court applied a two-level undue-influence enhancement to McFadden‘s total offense level under
The undue-influence enhancement authorizes two levels for defendants who “unduly influenced a minor to engage in prohibited sexual conduct.”
In determining whether subsection (b)(2)(B) applies, the court should closely consider the facts of the case to determine whether a participant‘s influence over the minor compromised the voluntariness of the minor‘s behavior. The voluntariness of the minor‘s behavior may be compromised without prohibited sexual conduct occurring.
At the sentencing hearing, the district court found that McFadden submitted no evidence to rebut the presumption. McFadden‘s “sole argument,” the court noted, was that K.W. and J.W. “were either asleep or so sick” when McFadden abused them and therefore that “there could be no undue influence to get them to engage in sexual activity with him.” ROA vol. VI, at 546. But the court discerned that by instilling himself as a trusted figure in the boys’ lives, McFadden “induced” both boys to “sleep in the bed with him and go on overnight trips,” where he was then “able to rape them.” Id. Because McFadden failed to rebut the presumption,
McFadden concedes that the rebuttable presumption applies because he is over ten years older than J.W. and K.W. McFadden argues instead that he couldn‘t have exercised undue influence over the boys because “there is no allegation that J.W. or K.W. ‘voluntarily’ or ‘willingly’ engaged with [him] during their alleged sexual assaults.” Op Br. at 50 (quoting Castellon, 213 F. App‘x at 736).
This argument interprets
Even setting the presumption aside, ample evidence in the record supports the district court‘s conclusion that McFadden leveraged his position in J.W.‘s and K.W.‘s lives to lure them into scenarios that facilitated his abuse. J.W. testified that he saw McFadden as a father-figure. J.W. explained how his mother struggled to provide for him and how McFadden stepped in to give J.W. clothing, food, housing, toys, and a fun environment away from his mother‘s abusive boyfriend. K.W. similarly testified that he loved going to McFadden‘s house to play with J.W. and the other children. K.W. said that his family didn‘t have much money, and so he got clothes, toys, and necessities from McFadden. After cultivating a close relationship with these two similarly disadvantaged boys, McFadden arranged for them to sleep in his bed with him. McFadden then took both boys out of state on long trucking routes, where the only true place to sleep was a shared mattress in the semi-truck‘s sleeper cab. Once McFadden got the boys in his bed and in his truck, he sexually assaulted them. This evidence justifies the district court‘s application of the
We affirm McFadden‘s sentence as imposed by the district court.
CONCLUSION
Affirmed.
No. 23-1089, United States v. McFadden
FEDERICO, Circuit Judge, dissenting in part
The majority rightly concludes that the admission into evidence of the 2013 video recording of a forensic interview with a then eleven-year-old K.W. was error. But I do not agree this error was harmless. Rather, I would accept the government‘s concession that the error was not harmless and thus decline to sua sponte do the government‘s work for them (which they
Because the admission of the 2013 video affected McFadden‘s substantial rights, I would set aside the convictions and sentence for Counts 1 and 2 (the two charges naming K.W. as the victim), vacate the judgment on these counts, and remand for further proceedings.1
I
Not every erroneous admission of evidence merits relief to a defendant. An error is harmless if it “does not affect substantial rights.”
Pause to reflect on this point. On appeal, the government‘s duty is to defend the convictions it secures at trial after the expenditure of significant time, labor, and resources.2 The government is very capable of doing this and, rightfully, is usually not timid about arguing all potential legal paths to affirmance.3 But here, the government concluded the video was so prejudicial that if this court were to find that its admission into evidence was erroneous (as we have now done), it would not be a plausible argument or strategy to fall back on harmless error.
Even when the government does not argue an error was harmless under
The
In Torrez-Ortega, we adopted the factors established by the Seventh Circuit in United States v. Giovannetti, 928 F.2d 225, 227 (7th Cir. 1991), as relevant for deciding whether to exercise our discretion to conduct an independent harmless error analysis in the absence of government presentation on the inquiry. 184 F.3d at 1136. The three factors are:
- the length and complexity of the record,
- whether the harmlessness of the error or errors found is certain or debatable, and
- whether a reversal will result in protracted, costly, and ultimately futile proceedings in the district court.
Id. Although we purposefully did not decide in Torrez-Ortega whether the three Giovannetti factors are exhaustive, we have effectively treated them as such in subsequent cases. See, e.g., Samaniego, 187 F.3d at 1224-25; United States v. Holly, 488 F.3d 1298, 1308 (10th Cir. 2007); United States v. Doe, 572 F.3d 1162, 1175 (10th Cir. 2009); United States v. Spence, 721 F.3d 1224, 1230 n.6 (10th Cir. 2013); United States v. Little, 829 F.3d 1177, 1189 (10th Cir. 2016) (Holmes, J., dissenting).
Generally, the three enumerated factors are problematic in their application. Ditching the third factor and applying only the first two, the majority concludes that we should engage in a harmless error analysis without the benefit of the parties’ arguments about it. I respectfully disagree.
The first factor - length and complexity of the record - is phrased in the conjunctive, recognizing that these are not necessarily harmonious terms. Length does not necessarily convey complexity, nor does complexity mean a record is of substantial length. Nevertheless, our cases usually apply this factor based on the number of pages in the record or the number of days of the trial. Again, it is not obvious why those metrics - page numbers and trial days - matter at all as to whether we can or should conduct our own harmless error inquiry.
Rather, the better question is whether the record is complete and adequate for us to do a harmless error review because it contains all that we need to review to do it, not whether it is hard or labor intensive because the record is lengthy and documents that a lot happened at the trial court. Samaniego, 187 F.3d at 1225 (noting the “record itself is abysmally inadequate for a harmless-error review“). We have the video, all admitted exhibits, and the entire trial transcript before us in the record on appeal. In applying this factor, I agree with the majority that we have all we need in this record for a harmless error review, so this factor weighs in favor of us exercising our discretion.
Reaching this conclusion is not ceding our own judicial obligations to the government. Rather, it recognizes that “harmlessness could be vigorously debated here.” Id. That debate should include the government raising harmlessness and the defendant being afforded the opportunity to respond to the arguments first made by the government. Indeed, as I will elaborate in the next section, a vigorous debate on harmlessness is warranted and, in my view, leads to a conclusion different from that reached by the majority.
Finally, the majority is correct that the third factor - whether reversal would result in protracted, costly, and futile proceedings in district court - adds little to the discretionary review calculus. See also Mollett v. Mullin, 348 F.3d 902, 920 (10th Cir. 2003) (noting that “confusion about what the third factor contributes to the analysis has caused this and other courts to merely reference [the third factor] but not apply it” (quoting Samaniego, 187 F.3d at 1225 n. 2)). Rather than just casually abandoning this factor, we should permanently drop it from our case law altogether.
In sum, only one of the three Torrez-Ortega factors weigh in favor of a sua sponte harmless error review. Because the question of harmlessness is far from certain, we should not exercise our discretion to engage in this inquiry on our own behalf and without the benefit of party presentation.
II
A
Although we should not conduct a sua sponte harmless error review, I nevertheless do so to track the majority opinion. I conclude that the admission of the video was not harmless.
The error here was a violation of a rule of evidence, so it was not a constitutional error. For non-constitutional errors, the government must prove the error did not have a “substantial and injurious effect or influence in determining the jury‘s verdict.” Kotteakos v. United States, 328 U.S. 750, 776 (1946). Specifically:
[I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.
Id. at 765. To conduct this review, we “review[ ] the record as a whole de novo to evaluate whether the error [was] harmless, examining the context, timing, and use of the erroneously admitted evidence at trial and how it compares to properly admitted evidence.” United States v. Blechman, 657 F.3d 1052, 1067-68 (10th Cir. 2011) (quoting United States v. Hanzlicek, 187 F.3d 1228, 1237 (10th Cir. 1999)) (alterations in original).
In other words, we must scrutinize the entire trial record, years after the trial occurred in another time and place, to determine whether the jury‘s verdicts on Counts 1 and 2 were influenced by viewing a video they should not have seen. And, to again beat the drum of the preceding section, for us to conclude that this factor weighs in the government‘s favor, we must be certain that the video did not substantially sway the jury. With this framework in mind, I explain why I reach the opposite conclusion of the majority - that the erroneous admission of the video was harmful, not harmless.
B
K.W. is the victim in Counts 1 and 2 of the indictment. Both counts arise from a trucking trip that began in Colorado, stopped in Idaho, and ended in Nebraska, when the defendant was arrested on January 2, 2013, at a Love‘s truck stop. K.W., who was eleven years old at the time of the trip, was accompanied by his two brothers, one older and one younger. J.W., the victim in Counts 3, 4, and 5, was not on the trip. During the trip, the defendant sexually assaulted K.W., who disclosed the assault to Detective Prescott during a video-recorded forensic interview on January 16, 2013, two weeks after the defendant‘s arrest.
The trial occurred nine years later, in November 2022.6 K.W. was twenty years old when he testified at trial. K.W. testified about the sexual assault that occurred during the trip as follows:
GOVERNMENT: Did Mr. McFadden do anything on that trip specifically that made you uncomfortable?
K.W.: Yes.
GOVERNMENT: What did he do?
K.W.: He tried to stick his thing in me.
GOVERNMENT: By stick his thing in you, did Mr. McFadden put his penis in your butt?
K.W.: He tried to, yes.
GOVERNMENT: What do you mean he tried to?
K.W.: It just wouldn‘t go in necessarily, so he just tried to, and then after a while he just gave up.
* * *
GOVERNMENT: When you say he tried to put his penis in you, did he put his penis into your butt?
K.W.: Yes.
GOVERNMENT: How did that feel?
K.W.: It hurt, because I was little at the time. It hurt a lot. Again, I don‘t remember a lot. Again, I‘ve tried to suppress most of these memories, just try to fade them out.
R.V at 182-83. At the end of K.W.‘s direct examination, the government moved to admit his 2013 forensic interview with Detective Prescott under
The district court asked: “In light of the fact that the witness testified that he did remember the truck assault, what is the purpose of the video?” Id. at 193. The government asserted the video was the “most probative evidence on that point” because “K.W., while he did discuss the events in question, did so reluctantly and often after my prompting and after I used the words that he seemingly cannot.” Id. The district court then admitted the video, finding that K.W. was “reluctant” and “only answered with prompting and he
Context and a description of the video are also important to our harmless error review. The video (Government Exhibit 6) is 32 minutes and 40 seconds. The camera is set in a corner, so the viewpoint of the recording is looking down upon a room, which has a small blue sofa, a blue chair, and a white dry-erase board between the sofa and chair. Here is an image from the video (K.W. is blocked in this image by Detective Prescott while he closes the door):
K.W. walked into the room and sat on the blue sofa wrapped in a blanket. He portends the nervous energy of a child. His first comments to Detective Prescott were, “There is a computer in that other room,” as he pointed towards the door, adding, “I want to go play on it.” Govt. Ex. 6 00:00 - 00:13. During the interview, K.W. acts his age: he throws himself around the couch and floor, lies on the couch, and mumbles a lot of his words.
The majority concludes that the video‘s admission into evidence is harmless for the same reason it is not more probative under
First, his testimony at trial and his statements in the video are not mirrors of each other. The substance is similar, but they are not the same. For example, in both his testimony and the video he said the words to describe a “sexual act,” an element of Count 1 and defined for the jury in the court‘s instructions. R.I at 908. But although some of the words and language used in both are the same or similar, they are not “mirrored” because these types of evidence are qualitatively different.
Evidence is not just the words or text later put to paper on a transcript. Trials are live events, where jurors watch how witnesses testify as much as they listen to their words. The consumption of information through live testimony is qualitatively different than watching a video of an interview that was conducted in a controlled environment.7 The eleven-year-old K.W.
This is not to say that the differences in the types of evidence make the video “more probative” than his live testimony under the residual hearsay rule, which requires a court to weigh the proffered evidence against “any other evidence that the proponent can obtain through reasonable efforts.”
United States v. Harrison, 296 F.3d 994, 1007 (10th Cir. 2002); United States v. W.B., 452 F.3d 1002, 1005-06 (8th Cir. 2006).
Second, the video is not harmless because it improperly bolstered K.W.‘s credibility. See
The majority also concludes that any harm done by the jurors watching the video and seeing K.W. as a child was offset by the fact that the government also admitted into evidence photographs depicting K.W. at eleven years old. They conclude that this mitigated the “emotional response in the jury,” having already seen him as a child in the photographs. United States v. Otuonye, 995 F.3d 1191, 1207 (10th Cir. 2021). But again, seeing photographs of a child compared to watching that child for 32-plus minutes on video is not the same. People are more than their images. When it comes to how jurors will consume and absorb evidence, other personal characteristics also matter, such as: voice, mannerisms, temperament, conduct, inflection, etc. This is one reason why our
Finally, the majority concludes that “most of all” McFadden‘s failure to request redactions from the video renders its admission harmless. The defense objected to the admission of the video, so I do not see how the failure to request redactions to the video after it was admitted into evidence then, ipso facto, converts this error to being harmless.
I simply cannot conclude that the erroneous admission of the video did not have a substantial effect or influence on the jury‘s verdicts for Counts 1 and 2. Kotteakos, 328 U.S. at 765. Because I both disagree with the decision to conduct a sua sponte harmless error analysis and conclude that McFadden‘s substantial rights were violated, I respectfully dissent from that part of the majority opinion.
Notes
I emphasize another key difference - the child in Burgess was seven years old when she was abused, seven when she sat for a forensic interview, and nine when she testified at trial. In other words, she remained a young child throughout the entirety of the case, from allegation through trial. Not so here, where K.W. grew from a young boy of eleven in 2013 when the video was recorded to a young man of twenty when he testified at trial.