United States v. Scott William Moses

III. possessed the have simply could not dants was, instead, collateral; possessed judgment court’s AFFIRM the district We Easley v. Pettibone bankruptcy estate. See disposed against claims as it of all insofar (6th 905, 909 Cir. Michigan Corp., 990 F.2d AFFIRM district likewise SBA We 1993). collat- that time and the And between grant of judgment respect to the court’s with premises, from the actual removal eral’s Exchange judgment to Commerce summary suggest that the defen- nothing to there is claim and three tort quantum meruit on the any control whatsoever over dants exercised the district court’s claims. We REVERSE Thus, quantum meruit the collateral. the two insofar as it dismissed judgment Exchange fails. against Commerce claim against brought Commerce contract claims for a

Exchange, and REMAND determina- court wishes ex- tion whether the district C. jurisdiction supplemental over ercise its argument is Campanella’s final those claims. law, duty the defendants had under Ohio disposition proceeds from the turn over the to cover adminis equipment order

of expenses, and that the district

trative duty that no such when it concluded

erred

existed. premised entirely on the argument is

This of the

following of Ohio’s version section America, U.C.C.: of UNITED STATES Plaintiff-Appellee, (A) party after default A secured sell, lease, dispose any or otherwise then condition or collateral its all MOSES, Defendant- Scott William commercially any reasonable following Appellant. pro- The preparation processing---- Nos. 96-1789. applied in the disposition shall be ceeds following to: order Appeals, States Court United (1) expenses retaking, reasonable The Sixth Circuit. lease, selling, preparing for sale or holding, Sept. Argued leasing, like[.] and the Decided Feb. 1309.47(A)(1). § Ann. Ohio Rev.Code plaintiffs’ claim has no merit. Section 1309.47(A)(1) create a of re- does not people Campanella’s position;

covery for are, they says expenses, such as

all it is that disposition proceeds. top

come off independent some plaintiffs must have expenses actually asserting that the

basis

exist; duty had no because the defendants words, simply plaintiffs, in there expenses to which sec- no

are administrative 1309.47(A)(1) Therefore, the de- speaks.

tion wrong they did nothing when

fendants did ex-

not first the administrative distribute given

penses proceeds. from the And

fact, court to consid- there is no need for the commercially rea-

er sale whether-the

sonable.

896

I. sexually convicted of abus- Defendant was ing infant niece. December Moses, Indian, Chippewa Defendant Scott nieces, Teachworth, babysat Amber his two old, years and then two-and-a-half Elizabeth old, Teachworth, four-years then a location Chippewa in Ac- Saginaw Reservation. cording testimony, police Defendant .had to drinking changed when Defendant been and bedroom,, diaper Amber’s. in a he became sexually genitals his aroused and rubbed on thigh Amber’s and stomach and inserted his penis According in to her mouth. Elizabeth’s testimony, by walked the room wit- she and briefed), Peregord (argued Jennifer J. and abusing nessed Eliza- Defendant Amber. Detroit, MI, Atty., for Plain- Office of U.S. later to reported beth the incident Lisa Boll- tiff-Appellee. man, a social worker for Child Protective Chippewa Saginaw Services of the Indian briefed), (argued Dunn and Robert J. Mid- Tribe, police. According who contacted the land, MI, Defendant-Appellant. for police testimony, provided to Defendant a confession. RYAN, SUHRHEINRICH, Before: and on one Defendant was indicted count of COLE, Judges. Circuit aggravated abuse of a minor sexual child 2241(c) (West § violation of 28 U.S.C.A. SUHRHEINRICH, J., delivered the Before, trial, Supp.1997). the Government court, COLE, J., opinion which competency moved to determine Elizabeth’s joined. RYAN, 902-05), (pp. J. delivered present on closed-cir- separate concurring opinion. permitted cuit as television under (West Supp.1997). § U.S.C.A Under OPINION 3509(b)(1)(B), § permitted witness is child testify by closed-circuit television if the SUHRHEINRICH, Judge. Circuit fearful, by child is be traumatized defendant, testifying of a appeals jury Defendant conviction and mentally impaired, be or would unable to sentence for abusive sexual contact and the testify because of the defendant’s or defense denial his motion for a new trial. Defen- counsel’s The district conduct. court exam- among things dant claims that the dis- ined Elizabeth and received from by trict denying court erred his Sixth Juterbock, Lisa Bollman Deborah de- Amendment to confrontation when it assistant, investigative fense counsel’s testify by allowed a child witness to closed- found fearful that Elizabeth was and would circuit television. We hold that the district by testifying. be traumatized con- court comply requirements with the failed § cluded was satisfied and ordered of the Child Victims’ and Child Witnesses’ permitted testify by Elizabeth be (the “Act”), Rights Act 18 U.S.C.A closed-circuit television. 3509(b)(1)(B) (West § Supp.1997), when it trial, testify by argued witness to At counsel allowed a child closed- defense that Eliza- television, mistaken, confused, doing circuit and in so beth was violated either fantasiz- ing, rights Defendant’s Sixth Amendment to con- been coached either her moth- had REVERSE.1,2 We, therefore, argued frontation. er or also Bollman. Counsel express opinion concurring opinion, acknowledge 1. We no on 2. We Defendant's other accept reasoning its as additional claims of error. reversing judgment. the district court’s Moses, perpetrator real Am- subject Garland a child who is to the trauma of testi- father, grandfather fying ber’s and Defendant’s presence. the defendant’s Mary- boyfriend, Amber’s mother’s v. Craig, Scott Morris. land Alternatively, argued counsel (1990), Defendant 111 L.Ed.2d 666 mentally impaired was either so or drunk Court balanced these two conflicting inter- “ capable ests, forming that he was not noting sufficient ‘the Confrontation Clause liability. intent preference for criminal Defendant did reflects a for face-to-face confron- testify trial,’ at trial. tation at preference ... a that ‘must occasionally give way to considerations of jury district court instructed the on public policy and the necessities of the original charge aggravated sexual ” (cita- case.’ 110 S.Ct. at 3165 abuse of a minor child under 28 U.S.C.A. omitted). tions child, When the witness is a 2241(c) and also a lesser offense of abusive explained, the Court “the state’s interest in 2244(a)(1) sexual § contact under 18 U.S.C.A. protecting child from witnesses the trauma of (West Supp.1997) jury The convicted Defen- testifying” sufficiently important is justify to dant of the lesser sentencing, offense. At procedures depart that from face-to-face con- accepted the district finding court the in the frontation 855, with the defendant. presentence report pen- that Defendant had S.Ct. 3168-69. etrated Amber and sentenced Defendant to statutory years. the maximum of 10 Craig The approved Court the use of closed circuit television for child witnesses Defendant moved for a trial new based on upon an adequate case-specific showing evidence, newly namely Amy discovered necessity. of Id. The Court stated- that the Richardson, a former sitter for Amber and trial court must “hear evidence and deter Elizabeth, reported had to the tribal Child mine one-way whether use of the closed- Protective Spring Services the of 1994 that circuit procedure television necessary is to possibly sexually Garland Moses had abused protect particular the of welfare child prosecutor’s Amber. The office never dis- witness testify.” who seeks to Id. In addi Defendant, report closed the though to even tion, the trial court must find “that the child police custody tribal had of it. Defen- traumatized, witness would be by not dant by also submitted an affidavit one of the generally, courtroom by presence but girls’ neighbors that Amber had stated 856,110 the defendant.” Id. at S.Ct. at 3169. Defendant did not abuse her and that Eliza- The trial court must find that the level of beth repeatedly had stated that she lied emotional by distress suffered the child wit about Defendant at urjging. Bollman’s ness as a testifying result of in the defen district court denied Defendant’s motion be- minimus, dant’s “is more than de highly suspicious cause it was of Elizabeth’s i.e., more than ‘mere nervousness or excite recantation, and it newly concluded that the ment or some testify.’” reluctance .to Id. proposed evidence could have been discover- (citation omitted). However, the Court in ed earlier. purportedly prof- Defendant now Craig showing did decide the minimum well, fers an affidavit of Alfreda Moses as emotional necessary trauma for the usé of which asserts that Garland Moses admitted Rather, closed-circuit television. the Court that his prison son Scott is something for issue, concluded that the statute at “which he, Garland, had done. require[d] a determination that the child wit II. ness would suffer ‘serious emotional distress such that reasonably the child cannot com district, argues Defendant that the court’s municate,’ Md.Code Ann. Cts. and Jud. Proc. determination that requirements 9-102(a)(l)(ii)(1989), § clearly suffices to 3509(b)(1)(B) § were satisfied was erroneous. meet constitutional Craig, standards.” provides, The Sixth Amendment in relevant 856, 110 U.S. at S.Ct. at 3169. part, prosecutions, all criminal “[i]n enjoy accused shall to ... be con- response Craig, direct Congress against fronted with the passed witnesses him.” A the Child Victims’ and Child Wit- arises, however, tension Act, Rights 3509, when the witness is nesses’ 18 U.S.C.A. that Eliza- testimony, a substantial likelihood which a forth the conditions under which sets trauma from suffer emotional by television. beth “would may testify closed-circuit child “likely impair states, testifying” and that would pertinent part: Act (J.A. at ability to communicate.” the child’s (B) may order that the testimo- The court by ny be taken closed-circuit of the child ... if the court finds television these factual find This Court reviews open testify in court is unable to child Hernandez v. New ings for clear error. defendant, any presence of the 1859, York, 352, 364, 111 500 U.S. following reasons: (1991). 1868-69, 114 finding A of fact L.Ed.2d (i) testify because of The child is unable “ when, ‘clearly although there is erroneous’ fear. it, reviewing evidence likelihood, (ii) estab- There is a substantial is left with the definite on the entire evidence by expert testimony, that the child lished has been firm conviction that a mistake from testi- suffer emotional trauma States United States committed.” United fying. 525, Co., Gypsum 68 S.Ct. (iii) The child suffers a mental or (1948); Anderson v. 92 L.Ed. 746 infirmity. N.C., City, City Bessemer U.S. (iv) or defense Conduct defendant 84 L.Ed.2d 518 causes the child to be unable counsel (1985); Corp., 29 F.3d Bartling v. Fruehauf testifying. continue (6th Cir.1994). 1062, 1067 3509(b)(1)(B).3 § Section 18 U.S.C.A. record, reviewing we are left After 3509(b)(1)(C) requires court to firm conviction” that the with a “definite and testify inability to “ruling its on the child’s mistakenly permitted Elizabeth district court findings with on the record.” First, testify by television. to closed-circuit appeals courts of have reviewed The any Elizabeth’s own disavowed 3509(b)(l)(B)(i) principles light § the district court fear of Defendant. When Craig. These cases consistent articulated hearing before interviewed Elizabeth 3509(b)(1)(B)© requires § a ly hold that motion, Elizabeth stated that Government’s case-specific finding that a child witness because she did not want to see Defendant or trauma and would suffer substantial fear However, thing my he a “bad to sister.” did testify unable to or communicate reason be that she was not afraid Elizabeth also stated ably physical presence of the because of the (J.A. 364-365). 362, him. Elizabeth of general a The cases hold that defendant. clearly distinguished fear of Defen- between of the courtroom is insufficient. See fear Chappie,” undisputedly as she dant or “Uncle Rouse, 561, 111 F.3d States v. United 568 him, wanting to and not to see referred (8th Cir.1997); Quintero, 21 v. United States Defendant, following colloquy illus- as the (9th 885, Cir.1994); United States v. F.3d 892 trates: (10th Carrier, Cir.1993); 9 F.3d 867. 870-71 right. any- All THE COURT: Now did (9th Garcia, v. 7 887 United States F.3d Elizabeth, anybody you body, tell did Cir.1993); Farley, v. and United States Chap? you your Uncle had to be afraid of (10th Cir.1993). 1122, 1125 F.2d Nope, I’m him. A: not afraid of

A. THE COURT: You’re not? ease, present In the the district court nope, nope, nope. Nope, nope, A: found, hearing, that there pretrial after the you to see him THE COURT: do want apprehension” that Eliza was a “reasonable again: “may testify because of beth be unable” to (Shakes head.) A: being in and the courtroom because fear (J.A. why not. THE Tell me Can The dis COURT: fear of Defendant. found, why not? on Bollman’s tell me trict court also based 3509(b)(1)(B) (iii) (iv) not at issue in this case. are Subsections generally thing my accepted explanatory a bad theory, A: Because he done (4) probative its outweighs prejudi- sister. value its Kozminski, cial effect. United States (J.A. 364-65.) (6th Cir.1987); F.2d United 1194-95 paradoxically The district court then ac- Green, (6th States v. 548 F.2d cepted that she Elizabeth’s statements did Cir.1977). A qualify witness as an ex- Defendant, ignored not but want see her pert by skill, knowledge, experience, training, emphatic she was not assertion that afraid of or education. qualifi- Fed.R.Evid. explained: him. The district testify cation of a preliminary witness to reaction, reaction, So the the observed 104(a). question of law. Fed.R.Evid. my private the child here in office is of (b)(l)(B)(ii) Subsection of the Act particularly some interest but it is not a expert requires to establish trau judgment. weighty thing my Nor is it a ma. term, Where a statute does define a professes weighty par- she no matter Henry T. meaning. receives its common Chap. ticular fear of Uncle Trust, States, Patterson v. United 729 F.2d I things she said think are (6th Cir.1984). The Act does not important regard most in that are that she “expert” define- or “trauma.” For their com again, my does not him want to see meanings, mon The American .turn quite emphatic belief is that she was when Heritage Dictionary the English Lan she that. said (3d ed.1992). guage “expert”.as It defines times I couple She said it a asked “person degree high with a of skill in or about, I her if I’m correct—if Id. at 645. knowledge subject.” of a certain say she, I when her that—and heard It psychiatric defines “trauma” as a term of think, was almost enthusiastic her art meaning an “emotional or shock wound agreement principle. with that I asked substantial, lasting damage creates why, something and she about said development psychological person, of a thing. a because he had done bad Id. at leading often to neurosis.” 1904. Pre try probe any I didn’t to more than sumably, expertise psychiatrist, -the a psy of that. But it to me seemed clear that was chologist, or mental other children’s health that, having her reason for or at least specialist required. generally is Case law that, stating again. not to see desire him supports See United States v. approach. (J.A. (6th Weekley, 377-78.) Cir.1997) at The district court 130 F.3d 752-53 seized (prosecution upon portion testimony psychologist Elizabeth’s used a with a doc of in that, torate to which she she not show the substantial likelihood that stated did want to the child suffer again, completely see Defendant and it witness would emotional dis- Farley, trauma); regarded (prosecu at 1124 unequivocal 992 F.2d Elizabeth’s assurances (J.A. also psychologist that she was of tion used with doctorate to “not afraid him.”. witness); Garcia, 364.) establish Despite trauma on guar- the Sixth Amendment’s child confrontation, (prosecution F.3d at antee of the to 886-87 used both a the dis- specialist” trict court “children’s mental concluded that Elizabeth’s health and a unam- Carrier, psychiatrist); biguous (prose F.3d was not a at 867 “weighty declaration (J.A. 377.) counselor”). cution a matter.” This was used “licensed child clear er- ror. cautiously qualified The district court Boll- expert experi- man as an of on the basis her

B. recognizing any ence and training, without special relating skill knowledge or to trauma. We are not convinced that Bollman district court stated: proper a expert establish the substan tial likelihood of trauma Elizabeth’s from tes of Ms. Bollman is from a tifying open person in degree court in the who has reasonable De had a Expert experience fendant. is dealing admissible if in with children. (1) (2) expert, say experience made a qualified testifying dealing (3) proper on a subject, conformity sexually with is not over- to a abused children team,” however, has, plinary abuse 18 U.S.C.A. had a fair chüd whelming. She 3509(a)(7), training past § over the to render: amount of seminar just years concerning this kind of several (D) psychiatric diag- psychological and matter, interrogation techniques and child, for the noses and evaluation services degree experi- that her like. I think So guardians, parent parents, guardian or or reasonably call her is sufficient ence caregivers, any or other individual experienced in her field and sufficient in a child victim or child witness involved way. provide opinion evidence case; (J.A. at (E) medical, expert psychological, and re- As the district court noted, the record professional testimony. lated experienced is an social reflects that Bollman Thus, § Boll- 3509(g)(2). while 18 U.S.C.A. worker, chil- who has worked with abused work, expert in social we do man be an on child abuse dren and attended seminars in the record she find evidence investigatory interviewing and related expert purposes of render- qualifies as an However, simply techniques. the record opinion un- ing psychological psychiatric a “spe- any has does not reflect that Bollman 3509(b)(l)(B)(ii). der relating knowledge” generally cial skill or addition, despite In note that all trauma. addition, Bollman’s children, Bollman of her work with abused supports court’s only marginally the district twice, only only gone to court one has that Elizabeth would be unable to conclusion (J.A. child sexual abuse. case involved testify fear of Defendant. because of her 338-39.) opined that Elizabeth was afraid to Bollman Moreover, However, the record does not reflect testify in court. Bollman did not officially was an certified whether Bollman testify particularized that Elizabeth had example, Defendant, social worker. For the State requires. which the Act fear Chippewa Saginaw Michigan, Rather, which the explained Bollman that: located, registers Indian reservation (F)or power year a five old adults are regulates three classifications of social ser- They—she has no control in her figure. technician, a providers: a social work vice her, life, her, clothe teach her. adults feed worker, and a certified social worker. social member, family And with a Scott who she See Comp. §§ Mich. Laws Ann. 339.1603- to, feeling within the was close 1992). (West Michigan also defines .1606 now, very emotionally family it would be as: social work very traumatizing. She would be vulnera- activity helping professional the an indi- ble, testify. I don’t believe she could vidual, community or group, or enhance (J.A. at capacity functioning for social restore its favorable creating a societal condition The district court asked Bollman de- practice consists goal. to this Social work conclusion that Elizabeth tails to her professional application of social of the trauma. Bollman ex- would suffer emotional values, principles, techniques work plained that Elizabeth was close to her fami- service; helping person tangible obtain a divided, ly, was now that Elizabeth which individual, family, counseling group; an or experienced guilt feelings because she loved community group provide or helping a or Chappie had her Uncle but realized she services; improve health social and sister, stop abusing him from pro- participating legislative in a relevant put would Defen- realized that her cess. 349-53.) (J.A. However, jail. we dant in 339.1601(b). record, unpersuaded, on the basis of this Comp. Ann. This are Mich. Laws an qualified that Bollman was to render ex- statutory of social work does not definition any expertise pert opinion on trauma or that Elizabeth require, contemplate, or even reasonably Act, testify or com- the other would be unable to relating to trauma. The on presence hand, in Defendant’s because anticipates psychologists use of and municate the trauma. psychiatrists by providing for a “multidisci- emotional

901 tered, confrontation; III. there been had such inquiry obviously pure an involve possibility of now consider the We speculation, and harmlessness there- must Chapman California, In error. v. harmless fore be determined on the basis the 18, 824, 87 17 705 386 S.Ct. L.Ed.2d U.S. remaining evidence. (1967), Supreme Court articulated the the error constitu harmless rule for claims of Coy, 487 U.S. 108 2803- S.Ct. at “before a tional error. Court held that (citation omitted). 04 error can be held federal constitutional case, present In considering the “dam- the harmless, the court must be able declare a realized,” aging potential” “fully as as the beyond a reason belief that was harmless Arsdall, Court directed Van 475 U.S. at 24, In able at 828. doubt.” S.Ct. 684,106 at 1438 say S.Ct. we Cannot Arsdall, 673, 684, v. Van Delaware 475 U.S. error “harmless beyond was a reasonable (1986), L.Ed.2d 674 Arsdall, doubt.” In Id. Van the Court held that harmless error the Court determined that “a criminal defendant states a violation analysis applied to vio Confrontation Clause - by showing the Confrontation Clause The Court lations. stated: prohibited he engaging was from in other- such an in a Whether error is harmless appropriate wise cross-examination ... from particular depends upon case a host of jurors which ... appropriately could draw factors, readily reviewing all accessible to relating reliability inferences to the of the impor courts. These factors include the witness.” Id. 106 S.Ct. 1431. Simi- pros tance of the witness’ in the case, larly, present in the if Defendant had case, whether was ecution’s present during testimony, been Elizabeth’s cumulative, presence of evi absence have jury could assessed reli- Elizabeth’s contradicting corroborating dence ability confronting when face-to- accused testimony of the witness on material was, confronting face. even As it without points, extent of cross-examination oth face-to-face, Defendant Elizabeth stated that and, course, permitted, the over erwise someone, “Scott,” other than Am- abused strength prosecution’s all case. ber: Id. The Court farther “the reasoned Q prosecutor) Elizabeth, (by Okay, whether, inquiry assuming that correct ready you ques- we’re to ask some more potential of damaging the cross-examination tions, right? all Can turn around realized, fully might were reviewing your way, please. and face Be- chair say nonetheless that the error harmless break, just fore we took the last were beyond a reasonable doubt.” Id. at questions some asking you your about Un- S.Ct. at things hap- and some cle that had Scott Iowa, Coy pened. (1988), L.Ed.2d 857 sexual- a child n Craig, abuse decided the Court case before My grama—Scott A: didn’t do it. of a held that screen between (defense counsel): Mr. What DUNN the defendant and the child violated witness , that? was . Clause, preclud the Confrontation because it Q: you say, did What Elizabeth? applying ed face-to-face confrontation. analysis, error harmless wrote: Court my daddy—my A: mean grama—I said types recognized We have that do it. Scott didn’t of the violations Confrontation are Clause Q: Okay. analysis subject to that ... harmless-error Mr. DUNN: Scott didn’t do it? why and no reason face-to- see denial of face confrontation should not be treated just— A: I was An the same. assessment of harmlessness Q: asking you questions We were some cannot include consideration whether Scott, your okay? about Uncle the witness’ have been unchanged, jury’s or the unal- A: assessment Yeah.

902 fact,” appearing before the trier of

Q: something you that said nesses You told us Iowa, 1012, 1016, Coy 108 S.Ct. happen, okay, you do remember saw (1988), 2798, 2800-01, 101 L.Ed.2d 857 he has that? denied one of the small handful been A: Yeah. to a fair trial rights so basic “constitutional (J.A. that Elizabeth’s testimo- Given as that their infraction can never be treated ny equivocal, the need for confronta- was so error,” California, Chapman v. harmless tion was critical. 824, 827-28, 17 87 S.Ct. L.Ed.2d U.S. say Coy cannot under We (1967); Coy, see 487 U.S. at remaining on the error harmless based was Nonetheless, before a viola S.Ct. at provided in the record. Elizabeth evidence Clause, any oth tion of the Confrontation only eye-witness testimony alleged of the error[,] er constitutional can be held “federal testimony, penetration. oral Without her harmless, [reviewing] court must be able rests on Defendant’s confession. We case that it harmless be to declare a belief confession, ques and we have reviewed Chapman, yond a reasonable doubt.” reliability. question tion its We Defendant’s at 828. I find it notewor U.S. at 87 S.Ct. competence to make understand the na here, thy government has not even Specifically, note ture of a confession. we harmlessness, even addressed issue intelligence extremely low Defendant’s error,” beneficiary of though, as “the alcoholism, self-esteem, chronic and his his prove a burden “either to there bears inability authority, con cultural to deal with injury or to suffer a reversal of [the] was no (J.A. 185-254.) frontation, and stress. judgment.” erroneously obtained Id. at 828. Accordingly, we find that Defendant was his Amendment to a face- denied Sixth Coy is a Implicit the Court’s decision to-face confrontation when the district court applying recognition that the harmless-error testify by permitted Elizabeth to close-circuit situa- standard a denial-of-eonfrontation complying with television without presents something tion conundrum. Further, say that simply cannot “the er- guaran- of the confrontation The foundation beyond a reasonable ror was harmless tee Arsdall, doubt.” 475 U.S. at Van perception es- that confrontation is [t]he We, therefore, at 1438. REVERSE fairness____ “may A witness sential conviction and REMAND for a Defendant’s differently repeat when he has to quite feel trial. new story will looking at the man whom he greatly by distorting mistaking harm RYAN, Judge, concurring. Circuit the facts. He can now understand what my opinion al- I concur in brother’s being of human that man is.” It is sort testify by lowing Elizabeth Teaehworth to always to tell a lie about a more difficult closed-circuit television violated the defen- person “to his face” than “behind his right to confronta- dant’s Sixth Amendment told, back.” ... if the lie is it will [E]ven tion, adopt without hesitation his anal- convincingly---- often be told less ysis of this constitutional error. I write hardly gainsay profound State can ef- separately simply explain my own views upon standing fect a witness of why as was not so the error harmless accuses, person the witness ignored why we must as to be there- phenomenon very since that is the it relies fore reverse. potential “trauma” upon to establish the extraordinary allegedly justified the I. present That procedure in the case. face- unfortunately, upset presence may, to-face A. child; rape truthful victim or abused the by same token it confound and question is no that when a defen- but the There accuser, the child wrongly the false or reveal dant is denied his Sixth Amendment undo meeting by a malevolent adult. to “a face-to-face with wit- coached Amber, initially touching. at 2802- Coy, 487 U.S. at S.Ct. denied but then omitted). (citation words, “began making Specifically, the admissions.” OS ac- Simpson, cording in absence of confronta Moses postulate is that the tion, story may very well a witness’s be eventually [Simpson told he took Am- that] different, perhaps simply substantively bedroom, girlfriend’s ber into his he re- if convincing, than the witness must face less diaper, unzipped moved Amber’s he his the accused—and that the differences exposed pants, penis, his erect rubbed it on wrought by the absence of confrontation will stomach, privates, her her her mouth. yet, to the accused. be detrimental And [Simpson] put penis He told that he his rationale, despite undertaking a court this in Amber’s mouth. harmlessness cannot in assessment of “[a]n [Simpson] far, . asked him and he did how clude consideration of whether the witness’ a distance of ... approximately an inch. testimony unchanged, would have been put mouth, Then fingers he his in the said unaltered, jury’s had there assessment much____ this confrontation,” inqui been because “such an [Simpson] him long asked this inci- how ry obviously pure speculation.” involve occurred, dent he said about five to six 1021-22, 108 Therefore, S.Ct. 2803. .,. minutes, until Elizabeth came into the must ... be “harmlessness determined on occurring room where this was and made remaining the basis of the evidence.” Id. at doing statement: What are with 1022, 108 2803. my sister.

B. [Simpson] just Mr Moses told that he put pants his on in back and went back out living room. then, against Turning, to the evidence Mo- by Simpson, When asked Moses wrote and puts one ses that remains after the side signed a confession read as follows: Teaehworth, of Elizabeth as indeed we must for the reasons so well ex- in Me and Abmer was The Bed room I had Suhrheinrich, plained by Judge find that my Thing thing on Abmer & Eleabuth quality negligible quan- evidence to be of Quit in Thing came The room went tity. Apart testimony, from Teachworth’s my gril the Live room & freind came only inculpatory by evidence offered home. government was the of officers Simpson ques- testified that he asked some agencies from two different law enforcement statement; clarify tions to this underneath regarding culpabil- Moses’ oral admissions writing following, by Moses’s is the written ity, and Moses’s written confession. Simpson: evidence, early To summarize Q—Is your thing your penis? . day questioned of June Moses was A—Yes. by police; tribal this was the second time Q—Did your you put penis in her mouth? him, they questioned had as on the first A—Yes. any wrongdoing. occasion he had denied On occasion, however, allegedly he stated Q—Did you your penis rub on Amber’s

that he had taken Amber into the bedroom leg, chest and mouth? down,” change diaper “wipe her A—Yes. this, doing got

that in the course of he “on kneeling position Am-

the bed and over penis ber and ... on the rubbed inside thigh majority Amber’s and on Amber’s abdomen.” concludes that the admission allegedly police He was not harmless also told tribal of Teachworth’s put “question[s thing the] “he the head of his into Amber’s this context because it Michigan reliability” conclusion it mouth.” The State Police then of the confessions—a Moses; according testi- questioned to Officer reaches based on certain social-science defendant, Simpson, mony interrogators, presented one of the Moses 904 are, group, peace,

effect that Native Americans as a tect the the self-interest of the ac- confrontation, authority, complice, enemy the unable “to deal with maliciousness of an the aberration or (Maj. op. p. at weakness of accused and stress.” I find the the suspicion majority’s may tinge under the strain of troubling. Concededly, conclusion warp weak; the facts of the confession. the confession Admis- evidence is Moses’s sions, trial, retold at a are much hear- best, like ambiguous written confession is at is, say, that statements made at the only minimally consistent with the pending They trial. had neither the com- note, regarding his oral confession. I howev- pulsion of er, the oath nor the test of cross- challenge Moses did not the admissi- examination.” bility of either the oral or written confession court, in the district and makes no such (citation omitted). 489, at Id. 83 S.Ct. at 418 me, challenge appeal. It seems to is, nevertheless, The rule distinct from the therefore, inappropriate for pass this court'to involuntary wholesale disallowance of confes- reliability on the of the confessions. sions: [Although separate in- doctrines exclude unnecessary And it is for the court to do voluntary confessions from consideration evidence, government’s so.' The once the jury, further caution is warranted unconstitutionally admitted is set may because the accused be unable to aside, was so as to insubstantial foreclose involuntary establish the nature of his conclusion that the constitutional error was Moreover, though statements. a state- harmless, beyond a reasonable doubt. IAs may “involuntary” ment not be within the said, apart have from Teachworth’s testimo- rule, meaning exclusionary of this its still ny, only government evidence the intro- reliability may suspect be if it is extracted tending duced to show that Moses committed pressure from one who is under the of a charged the crime was his own confession. police investigation—whose may words re- established, indisputably But it has been in a flect the attending strain and confusion long Supreme line of Court and Sixth Circuit predicament rather than a clear reflection cases, confession, that a defendant’s uncor- past. of his alone, standing roborated and is not an ade- quate States, foundation for conviction. In Wong Smith v. United 348 U.S. 75 States, 471, 194, (1954) (cita Sun v. United 197-98, 871 U.S. 83 S.Ct. S.Ct. 99 L.Ed. 192 407, (1963), omitted). 9 441 example, L.Ed.2d tions Court discussed the of ... “line decisions through Corroboration of a confession ex- [that] establishes that criminal confessions trinsic evidence that either “‘fortifies the ” “ guilt and admissions of require extrinsic cor- truth of ‘independently the confession’ or 488, roboration.” Id. at 83 at S.Ct. 417-18. charged’”—in establishes] crime older principle It is a settled of the adminis- parlance, corpus delicti—is therefore re- justice tration of criminal in the federal quired validly before a conviction be courts that a conviction upon must rest Sun, Wong 489, obtained. 371 U.S. 83 ground

firmer than the uncorroborated ad- (citation omitted). generally S.Ct. See accused____ mission or confession of the Smith, 348 U.S. S.Ct. L.Ed. requirement of [T]he corroboration is root- 192; States, Opper v. United long history judicial ed “a experience (1954); S.Ct. 99 L.Ed. 101 United States with confessions the realization that Marshall, (6th Cir.1988). 863 F.2d 1285 law requires police sound enforcement in- Both varieties of corroborative evidence are vestigations beyond which extend lacking here. words of the accused.” sure, To be there is one item of evidence (footnote 417-18 conceivably could be viewed as corrobo- omitted). and citation underly- The reason rative. That is the of Lisa Boll- ing principle is akin to the Fourth man, the social worker who Eliz- interviewed exclusionary Amendment rule: abeth regarding suspected Teachworth country

“In our persists However, the doubt abuse of Amber Teachworth. agencies zeal of the prosecution pro- government did not call Bollman aas wit- Bollman; ting it ness; enough, Moses did. And statements and the defen- strangely expressing dant’s confession. Without an who elicited follow- Moses’s counsel was opinion sufficiency as to the of the evidence hearsay testimony: ing Moses, to convict since that is. not an issue happened, Q asked Elizabeth what You us, compelled before I am to conclude that in showed said to Uncle Scott Elizabeth the context of such an otherwise-insubstan- right? is that ding-ding; his prosecution, tial ease for the the admission of A Correct. testimony Teaehworth’s was not harmless be- Elizabeth who she— Q You then asked concur, yond a reasonable doubt. I there- ding-ding his to and Eliza- who he showed fore, judgment reversing in the con- Moses’s my sister. beth stated viction. A Correct. put on Q point Elizabeth her hand At one you asked where Uncle

her throat when ding-ding; is that correct? put

Scott

A Correct. testimony appears to me to be inad-

This RUTHERFORD, David, subject any excep- Janelle Daniel hearsay, not missible Rajic, Dembie, reasons, John Richard James Ho For obvious its admission was tion. ban, Imars, Sakal, by government. James Steven Andrew objected to And not Christopher, Riley, Torres, Kevin testimony, Judith similar to which defendant Kelssey, McClure, Norbert Deborah Deb object, gov- turn did not was elicited Evans, Horak, orah and Theodore in its cross-examination. On ernment per behalf of themselves and all other if Bollman’s were suffi But even similarly situated, Plaintiffs-Appel sons ciently the convic corroborative lants, coneededly, the hurdle is low—that tion—and not mean that the introduction of Eliza does testimony was harmless. beth Teaehworth’s CLEVELAND, CITY OF is, presented if government That even Defendant-Appellee, independent evidence of Elizabeth’s sufficient uphold testimony to Moses’s unconstitutional Club, The Shield Intervenor/Defendant- “any under the rational trier of conviction Appellee. imposed by Virgi Jackson v. fact” standard No. 96-3967. nia, (1979), there can be no serious L.Ed.2d 560 Appeals, United States Court question that the evidence was no more than Sixth Circuit. barely highly probable, sufficient. find 24, 1997. Argued Oct. dramatic, short, damaging, that Teaehworth’s testimony tipped the scales unconfronted March Decided Accordingly, of a conviction. it is favor Rehearing Rehearing Suggestion for plain error to me that the constitutional April En Denied Banc admitting the child's beyond a reasonable doubt. harmless

II. then, recapitulate were three

To there

pieces in this trial that tended to of evidence

show that committed the crime with Moses unconstitutionally charged: he

which was Teachworth; testimony of Elizabeth

admitted inadmissible, to, objected hearsay but not incriminar regarding Teaehworth’s

Case Details

Case Name: United States v. Scott William Moses

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 26, 1998

Citation: 137 F.3d 894

Docket Number: 95-1827, 96-1789

Court Abbreviation: 6th Cir.