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Appellate Case: 23-7061 Document: 71-1 Date Filed: 01/28/2025 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS January 28, 2025
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-7061
STETSON BRUCE,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 6:21-CR-00293-BMJ-1)
_________________________________
John C. Anderson, Santa Fe, New Mexico, for Defendant-Appellant.
Lisa C. Williams, Special Assistant United States Attorney, Muskogee, Oklahoma,
(Christopher J. Wilson, United States Attorney, with her on the brief), for Plaintiff-
Appellee.
_________________________________
Before HARTZ, EBEL, and ROSSMAN, Circuit Judges.
_________________________________
HARTZ, Circuit Judge.
_________________________________
Defendant Stetson Bruce was convicted on two counts of aggravated sexual
abuse in Indian country for sexually abusing his five-year-old son, R.W. The trial
centered on the testimony of R.W. and his half-sister, E.R., who said she witnessed
one of the acts. After both children testified and were cross-examined, the United
Appellate Case: 23-7061 Document: 71-1 Date Filed: 01/28/2025 Page: 2
States District Court for the Eastern District of Oklahoma admitted into evidence the
recordings of their forensic interviews, which were consistent with their trial
testimony. These recordings were not played in the courtroom, but the jury was given
access to them during its deliberations.
The primary question on appeal is whether the district court abused its
discretion in admitting these two recordings. We conclude it did not. Both were
admissible as prior consistent statements under Rule 801(d)(1)(B)(i) and (ii) of the
Federal Rules of Evidence. By suggesting that R.W. had been coached by the
prosecutor, the defense opened the door under romanette (i), allowing the
government to rebut this charge via R.W.’s prior consistent statement. And by
suggesting that E.R.’s memory was faulty, the defense opened the door under
romanette (ii), allowing the government to rehabilitate E.R.’s credibility via her prior
consistent statement.
Defendant also argues that reversal is required because the district court ruled
prematurely on the admission of these recordings and because it committed structural
error by sending them to the jury room rather than playing them in court. We find
these arguments unpersuasive. Exercising jurisdiction under
28 U.S.C. § 1291
, we
affirm.
I. BACKGROUND
R.W. moved in with Defendant, his father, in the summer of 2018. R.W. was
then five years old. His seven-year-old half-sister, E.R., lived in Defendant’s home as
well.
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At trial E.R. testified that she saw her father sexually abuse R.W. She recalled
that she was making a grilled cheese sandwich when she heard her father and R.W. in
her bedroom. She said it sounded like R.W. was “[k]ind of” screaming, so she went
to check on him. R., Vol. III at 71–72. Peering through the cracked-open door, she
saw her father’s penis “touching” R.W.’s butt.
Id. at 63, 65
. R.W. was lying on his
stomach, and her father had one hand on R.W.’s back, holding him down. Her father
was clutching a can of compressed air in his other hand and was inhaling from it
while he abused R.W.
Likewise, R.W. testified that his father had put his “teetee” inside his butt, and
that this happened more than once.
Id.
at 128–30. He also recalled a time when he
was lying on the couch in the front room, while his father touched his “teetee.”
Id.
at
117–18.
On January 8, 2019, Michael Leonard of the Oklahoma Department of Human
Services Child Welfare Department investigated Defendant’s care of E.R. and R.W.
Mr. Leonard testified that he interviewed both E.R. and R.W., but neither of them
disclosed anything of concern. During his interview with Defendant, however,
Defendant revealed that he had a problem with huffing compressed air. That evening
the children were taken out of Defendant’s care. R.W. returned to live with his
grandmother, while E.R. went to live with her mother. The two children never saw or
spoke with each other again.
Eventually E.R. returned to live with Defendant. His girlfriend also moved in
around then. E.R. testified that at one point, about two years after the two children
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had been removed from Defendant’s care, she walked in on her father and his
girlfriend having sex. She then reported this to her mother. At the same time, E.R.
told her mother what she had seen her father do to R.W.
Not long thereafter, in February 2021, E.R.’s mother took her to a forensic
interview. The interview was conducted by Lara Welch, the lead forensic interviewer
with Sara’s Project, a child advocacy center. In that interview E.R. said that she saw
her father sodomize R.W. The description she gave in the interview closely matched
the description she gave at trial.
In March 2021 Kailee Callahan, a licensed professional counselor under contract
with the Oklahoma Commission on Children and Youth, conducted a forensic interview
of R.W. After introducing herself and trying to make him feel comfortable, she
showed him a cartoon of a boy’s body and asked him to name various parts,
including private parts. She then asked him if there are some body parts that are “not
okay for other people to touch,” and he circled the “teetee” and the “butt.” R., Supp.
Ex. 4 at 8:00–8:15. When she asked him whether anyone had ever touched him
inappropriately, he denied it twice. She then changed the subject, asking him to tell
her some things about his house that made him “feel safe.”
Id. at 9:15
. But a couple
minutes later, she asked him if he would feel safe telling someone if he or his siblings
were touched inappropriately, and he said yes, “real safe.”
Id.
at 11:00–11:32. Ms.
Callahan then asked R.W. who he would feel safe telling besides his grandma, and he
said, “my daddy—my new one.”
Id.
at 11:33–11:45. After confirming with him that
his “new dad’s” name was Montana, she asked him, “Where’s your old dad?” and he
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responded, “Stetson? At his house, at home. He is mean, mean.”
Id.
at 11:52–12:02.
Ms. Callahan followed up: “What does Stetson do that’s mean?” R.W. sighed and
said, “I can’t tell you, it’s kind of disgusting.”
Id.
at 12:19–25. She promised him that
he was in a “safe place,” and he replied, “I’m just scared.”
Id.
at 12:26–39. She
assured him again that he was “safe here,” and asked, “Can you tell me what Stetson
does?”
Id.
at 12:40–13:10. He then disclosed that his father had repeatedly
sodomized him while he was living with him and described a separate incident in the
front room.
In August 2021 a grand jury in the United States District Court for the Eastern
District of Oklahoma indicted Defendant, charging him with two counts of
aggravated sexual abuse in Indian Country. See
18 U.S.C. §§ 2241
(c), 2246(2)(A),
1151, and 1153. Shortly before trial, Defendant filed a motion in limine seeking to
exclude the recorded forensic interviews of E.R. and R.W. as hearsay. His motion
argued:
[T]he interview is hearsay, Rule 801 F.R. Evid., with no exceptions and
is not admissible under the law. This statement is a statement made by a
declarant, R.W. and E.R., not while testifying at the current trial or
hearing and offered to prove the truth of the matter asserted. Rule 801(c),
F.R.Evid.. Hearsay is not admissible. Rule 802, F.R. Evid..
R., Vol. I at 80. Without waiting for a response from the government or conducting a
hearing, the district court denied the motion, ruling:
Upon the presentation of proper foundation testimony, the Court will
admit the forensic interviews into evidence. The interviews will not be
played during the trial but will be included with all of the evidence
admitted during the trial and given to the jury for use during deliberations.
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Id. at 89
.
Trial began on July 19, 2022. The prosecutor started her opening statement by
quoting R.W.’s forensic interview: “How did it feel? So hard. How did it make your
butt feel? Like I was sitting on metal burns. I was burning.” R., Vol. III at 43. She
said that this was “[a]n experience described by R.W. at the age of seven.”
Id. at 43
.
She added:
How does this experience begin? With a big sister. E.R. . . . E.R. was
talking to her mother. She tells her mom she saw her dad do nasty things
to her brother. E.R. describes looking through a door, seeing her dad on
top of her little brother anally raping him. . . . E.R. lived with the
defendant for a long time. But E.R. went to live with her mom. And when
E.R. went to live with her mom in Carter County, this is when she told
[her] what happened. . . . [Her mother] takes E.R. to meet with a forensic
interviewer at Sara[]’s Project . . . . That’s how this process starts.
Id. at 44
. Then she explained that R.W. had been forensically interviewed as well,
and that R.W. “comes out to the forensic interviewer and tells her what the defendant
did.”
Id.
at 44–45. Defense counsel raised no objections to the opening statement.
E.R. was the first witness. On direct she testified about seeing her father
sexually abuse R.W. During cross-examination defense counsel asked her about
seeing her father and his girlfriend having sex, and about seeing her mother and her
stepfather having sex. Defense counsel also questioned her memory of the incident,
asking what time of day it took place, whether it was a workday or a weekend, which
room it took place in, and whether she gave Defendant the grilled cheese sandwich
she had been making. Defense counsel then asked her: “[Y]ou said this happened
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three years ago . . . or two years before you told anybody? . . . It was a long time,
wasn’t it?”
Id. at 88
.
R.W. testified next and said that his father had sexually abused him. On cross-
examination defense counsel posed the following questions: “How many times have
you talked to [the prosecutor]? . . . And you and he talk about [the incident] a lot,
don’t you? . . . And he helps you with what you’re saying, doesn’t he?”
Id.
at 143–
44.
Later that day the government called Kelsey Blevins, the lead forensic
interviewer at the Child Abuse Network. She discussed the process of conducting
forensic interviews of children in sexual-abuse cases. During cross-examination
defense counsel asked Ms. Blevins whether “a child’s answers about sexual activity
could and sometimes in some instances [did] reflect prior exposure to sexual
activities between adults?”
Id.
at 230–31. He then elaborated:
Are there instances of children who have been exposed to sexual
activities, either in person or by other means, where the child transposes
persons in the experience—in the disclosure? . . . [I]f, for example, a child
saw a certain sex act between person A and person B and two years later
she attributes the sex act to person C and D, just simply changes parties,
same dance?
Id. at 232
.
On the second day of trial the government called Ms. Callahan, the counselor
who had conducted the forensic interview of R.W. After questioning her and
authenticating the recording of the interview, the prosecutor moved to admit it into
evidence. Defense counsel objected, stating only that the interview was “hearsay,
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repetition, cumulative, waste of time for the jury.”
Id. at 301
. The prosecutor
responded that R.W. had testified and his credibility had been attacked, so the
interview was admissible under Rule 801. Defense counsel did not challenge this
response. The district court overruled the objections and admitted the recording into
evidence.1
Next the government called Ms. Welch, who had conducted the forensic
interview of E.R. Again, after questioning her and authenticating the recording of the
interview, the prosecutor moved to admit it into evidence. Defense counsel objected
“based on our previous record.”
Id.
at 330–31. The court overruled the objection and
admitted the recording into evidence. Consistent with its pretrial ruling, the court
informed the jury that the videos would not be played in the courtroom, but that the
jury would have access to them during deliberations.
On the third day of trial, the jury returned a verdict of guilty on both counts.
The district court sentenced Defendant to concurrent terms of life imprisonment on
the two counts. He then timely appealed to this court.
II. DISCUSSION
“We review challenges to district court evidentiary rulings for abuse of
discretion.” United States v. Joseph,
108 F.4th 1273, 1281
(10th Cir. 2024). “Under
1
Perhaps we could say that Defendant forfeited his argument that Rule 801(d)
does not apply because he failed to explain why the government’s response was
inadequate. Our review would then be only for plain error. But the government does
not argue that the issue was forfeited and we need not decide that issue because the
record fully supports admissibility.
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this standard, we will not reverse the district court without a definite and firm
conviction that [it] made a clear error of judgment or exceeded the bounds of
permissible choice in the circumstances.”
Id.
(internal quotation marks omitted).
“Our review is especially deferential when the challenged ruling concerns the
admissibility of evidence that is allegedly hearsay.” United States v. Woody,
45 F.4th
1166, 1178
(10th Cir. 2022) (internal quotation marks omitted).
A. Admissibility
On appeal Defendant pursues only his hearsay objection to the admissibility of
the interviews. To begin with, Defendant correctly asserts that the district court did
not explain its rationale for admitting the interviews. Neither in its pretrial order nor
at trial did the court say whether the interviews fell outside the definition of hearsay,
or whether a hearsay exception applied. But ordinarily “this court can affirm the
district court’s evidentiary rulings on any basis that finds support in the record.”
United States v. McGlothin,
705 F.3d 1254
, 1266 n.17 (10th Cir. 2013); see United
States v. Enjady,
134 F.3d 1427, 1434
(10th Cir. 1998) (“We may uphold a district
court’s evidentiary ruling on any ground supported by the record.”); United States v.
Martinez,
76 F.3d 1145, 1148
(10th Cir. 1996) (“We may uphold evidentiary rulings
on any ground supported by the record, even if not relied upon by the district court.”
(internal quotation marks omitted)). And, in any event, we can assume that the
district court simply accepted the government’s nonhearsay argument, which was
sound on its face and not rebutted by defense counsel.
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Here, the record supports the admissibility of both recordings under Rule
801(d)(1)(B) of the Federal Rules of Evidence. Rule 801(d) provides:
A statement that meets the following conditions is not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and
is subject to cross-examination about a prior statement, and the
statement:
...
(B) is consistent with the declarant’s testimony and is offered:
(i) to rebut an express or implied charge that the declarant
recently fabricated it or acted from a recent improper influence
or motive in so testifying; or
(ii) to rehabilitate the declarant’s credibility as a witness when
attacked on another ground[.]
It is undisputed that the threshold requirements of Rule 801(d)(1)(B) were met. R.W.
and E.R. both testified, they were subject to cross-examination about the statements
they made in their forensic interviews, and those prior statements were consistent
with their in-court testimony. Thus, the only question is whether the prior consistent
statements were offered for permissible reasons under romanette (i) or (ii). We
conclude they were.
1. R.W.’s Forensic Interview
Defendant contends that he “made little or no allegation of recent fabrication
or improper motive,” so R.W.’s forensic interview was not admissible under Rule
801(d)(1)(B)(i). Aplt. Br. at 22. He misreads the record. On cross-examination
defense counsel asked R.W. “[h]ow many times” he had talked to the prosecutor,
whether he and the prosecutor “talk about [the incident] a lot,” and whether the
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prosecutor “helps [him] with what [he’s] saying.” R., Vol. III at 143–44. The obvious
purpose of this questioning was to suggest that the prosecutor was coaching R.W. In
other words, the implication was that R.W. was “act[ing] from a recent improper
influence or motive.” Fed. R. Evid. 801(d)(1)(B)(i); see United States v.
Kootswatewa,
893 F.3d 1127, 1134
(9th Cir. 2018) (concluding that a victim’s prior
consistent statements were admissible to rebut defense counsel’s suggestion that her
“in-court testimony had been tainted by a ‘recent improper influence or motive’—
namely, . . . alleged coaching”).
We recognize that this rule “permits the introduction of a declarant’s
consistent out-of-court statements to rebut a charge of recent fabrication or improper
influence or motive only when those statements were made before the charged recent
fabrication or improper influence or motive.” Tome v. United States,
513 U.S. 150,
167
(1995) (emphasis added). But the record is clear that R.W.’s forensic interview
predated the alleged coaching. R.W.’s interview took place in March 2021, over a
year before the July 2022 trial. At trial, defense counsel asked him—in the present
tense—if the prosecutor “helps [him] with what [he’s] saying.” R., Vol. III at 144.
Thus, the implied charge was that the prosecutor was actively coaching him—not that
the prosecutor had coached him before his interview over a year earlier.2 Cf. United
2
Besides capturing defense counsel’s present-tense coaching questions, the
record also supports the government’s contention that R.W.’s forensic interview took
place “well before” a prosecutor was involved in the case. Aplee. Br. at 35.
Defendant was not indicted until August 24, 2021, nearly six months after R.W.’s
March 2, 2021 interview. And according to Ms. Callahan’s trial testimony, the multi-
disciplinary team involved in R.W.’s interview did not include any federal-
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States v. Magnan,
756 F. App’x 807
, 817 (10th Cir. 2018) (concluding that “prior
consistent statements should not have been admitted” under Rule 801(d)(1)(B)(i)
because defense counsel “did not imply that the victims’ stories were recently
fabricated” (emphasis added)). Because R.W.’s forensic interview “predate[d]” the
alleged coaching, it offered a “square rebuttal of the charge” that R.W.’s trial
testimony “was contrived as a consequence.” Tome,
513 U.S. at 158
.
Defendant also argues that the district court erred by failing to explicitly find
that R.W.’s forensic interview took place before the prosecutor’s alleged coaching.
But because he raised this argument for the first time in his reply brief, he waived it.
See United States v. Salti,
59 F.4th 1050, 1059
(10th Cir. 2023) (“The general rule in
this circuit is that a party waives issues and arguments raised for the first time in a
reply brief.” (internal quotation marks omitted)).
All told, we reject Defendant’s challenge to the admissibility of R.W.’s
forensic interview.
2. E.R.’s Forensic Interview
Similarly, E.R.’s forensic interview was admissible under Rule
801(d)(1)(B)(ii), which permits the admission of prior consistent statements that are
offered “to rehabilitate the declarant’s credibility as a witness when attacked on
government attorneys. To be sure, R.W. testified on cross-examination that he had
talked with the prosecutor “a bunch.” R., Vol. III at 143, 145–46. And on redirect,
after confirming that he had spoken with the prosecutor only twice before—both
times in 2022—R.W. then contradicted himself, saying they had spoken more than
twice. But neither statement at all suggests that he talked with a prosecutor before his
interview.
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another ground.” The Advisory Committee Notes to the 2014 Amendment
specifically identify “faulty memory” as one such alternative ground. See Fed. R.
Evid. 801 advisory committee’s note to 2014 amendment (“The intent of the
amendment is to extend substantive effect to consistent statements that rebut other
attacks on a witness—such as the charges of inconsistency or faulty memory.”).
Recall that, on cross-examination, defense counsel asked E.R. several
questions about her memory of the incident, pointing out that it had happened long
ago. He also questioned her about seeing both her father and his girlfriend and her
mother and stepfather having sex. And later, while cross-examining Ms. Blevins,
defense counsel inquired if a child sometimes “transposes persons in the experience”:
“[I]f, for example, a child saw a certain sex act between person A and person B and
two years later she attributes the sex act to person C and D, just simply changes
parties, same dance?” R., Vol. III at 232. Given this record, Defendant concedes that
he charged E.R. with having a faulty memory, at least to the extent that she had
transposed her memory of walking in on him and his girlfriend into a memory of him
abusing her little brother. See Aplt. Reply Br. at 11 (“[A]ccording to the Government,
Defendant argued that ‘E.R.’s memory of what she observed between Defendant and
R.W. was faulty because she was transposing her memories of Defendant and [his
girlfriend] into Defendant and R.W.’ Resp. Br. at 31. True enough.”); see also Aplt.
Br. at 23 (noting that one of Defendant’s “chief[]” trial strategies was “theorizing that
E.R. may have transposed her observation of other sexual activity with observations
of [him] and R.W.”).
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Defendant maintains, however, that he directed this line of attack at E.R.’s
forensic interview in addition to her in-court testimony, so her prior consistent
statements in the interview could not rebut the attack. But E.R.’s forensic interview
occurred less than two months after she saw her father and his girlfriend having sex.3
And when E.R. reported the abuse of R.W., she also told her mother about observing
her father and his girlfriend having sex. The recency of the father-girlfriend episode,
and E.R.’s speaking of the very different father-R.W. episode in the same
3
In the defense’s opening statement, defense counsel said that R.W. moved in
with his father “around December” of 2018, so he was only there for about 30 to 60
days. R., Vol. III at 47. But R.W.’s grandmother testified that R.W. moved in with
his father “before then”—in the summer of 2018—and lived there for five to six
months. R., Vol. III at 290. On January 8, 2019, both children were removed from
their father’s care after he revealed to Mr. Leonard that he had a problem with
huffing compressed air. E.R. must have witnessed the abuse of R.W. during that
window.
Although the record does not provide many precise dates, it does suggest a
timeline for the disclosure of the abuse. (We may consider the contents of the
interviews themselves when addressing their admissibility, because courts are not
bound by the rules of evidence when determining admissibility. See Fed. R. Evid.
104(a) (“The court must decide any preliminary question about whether a witness is
qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not
bound by evidence rules, except those on privilege.”); Bourjaily v. United States,
483
U.S. 171
, 177–81 (1987) (explaining that under Rule 104(a) a court may consider
hearsay statements themselves to make preliminary factual determinations regarding
admissibility).). After being removed from her father’s care, E.R. went to live with
her mother. Later, she went back to either “visit” or “live with” her father, and it was
at that point that she saw her father and his girlfriend having sex. In E.R.’s forensic
interview, she mentioned being 10 years old at the time. E.R. then returned to her
mother, told her about walking in on her father and his girlfriend, and, at the same
time, told her that she witnessed her father abuse R.W. Learning of R.W.’s abuse
then led E.R.’s mother to take her in for a forensic interview in February 2021—less
than two months after she had turned ten years old. Thus, it appears that E.R.’s
interview took place less than two months after she walked in on her father and his
girlfriend.
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conversation significantly weakens Defendant’s transposition theory. A factfinder
could reasonably decide that it was highly unlikely that she had mistakenly
“transposed” the very recent girlfriend episode into the two-year-ago father-R.W.
episode. E.R.’s forensic interview could therefore be used to rehabilitate her
credibility.
In sum, E.R.’s forensic interview was admissible under Rule 801(d)(1)(B)(ii).
See United States v. Flores,
945 F.3d 687, 705
(2d Cir. 2019) (affirming the
admission of a witness’s prior consistent statement under Rule 801(d)(1)(B)(ii) to
rebut defense counsel’s attacks that the witness’s “recollection can no longer be
trusted,” even though the “challenges to [his] memory were brief and were not their
main challenges” (internal quotation marks omitted)); United States v. Cox,
871 F.3d
479, 487
(6th Cir. 2017) (concluding that a child victim’s prior consistent statement
was admissible under Rule 801(d)(1)(B)(ii) because it “rebutted Defendant’s attack
on [the victim’s] purportedly faulty memory”).
Because we conclude that both interviews were admissible nonhearsay under
Rule 801(d)(1)(B), we need not address Defendant’s contentions that they were
inadmissible under exceptions to the hearsay rule.
B. Timing
Defendant also argues that if the district court admitted the children’s forensic
interviews as prior consistent statements under Rule 801(d)(1)(B), then it abused its
discretion by ruling on their admissibility before trial because it did not yet know
how he was going to cross-examine the children. He contends that the court’s
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“premature ruling” deprived him of his ability to exclude the interviews by avoiding
certain credibility attacks and allowed the government to improperly use the
interviews in its opening statement. Aplt. Br. at 17–18. We disagree.
To begin with, the district court did not “preadmit” the forensic interviews in
its order denying Defendant’s motion in limine, as he concedes in his reply brief. See
Aplt. Reply Br. at 2 (“The Government is correct that the district court ‘never
preadmitted the interviews.’”). Rather, the court said that the admissibility of the
interviews was conditioned “[u]pon the presentation of proper foundation testimony.”
R., Vol. I at 89. Although Defendant reads proper foundation testimony narrowly—to
include only the interviewers’ testimony authenticating the recordings—he fails to
explain why he thinks the court meant that. In general, the “foundation” for admitting
evidence includes all the predicates that would render the evidence “proper[ly]”
admitted. R., Vol. I at 89; see United States v. Montague,
958 F.2d 1094, 1096
(D.C.
Cir. 1992) (concluding that a “foundation” was established to admit a statement
under Rule 801(d)(1)(B) because the witness’s credibility was attacked in a manner
encompassed by the rule).
By the time the court actually admitted the forensic interviews into evidence,
the “proper foundation[s]” under Rule 801(d)(1)(B) had been laid. R., Vol. I at 89.
Both children had testified, both had been subject to cross-examination about their
prior consistent statements, and defense counsel had insinuated that R.W. had been
coached by the prosecutor and implied that E.R. had a faulty memory.
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Nor did the court’s pretrial ruling tie Defendant’s hands. Had he refrained
from making certain types of credibility attacks, the court could not have admitted
the forensic interviews. But he made a different choice. See United States v. Wells,
623 F.3d 332, 345
(6th Cir. 2010) (“It is conceivable . . . that a defendant would
refrain from making this type of credibility attack for the very purpose of preventing
the admissibility of a prior consistent statement.”).
Finally, the court’s pretrial ruling did not give the government express
permission to describe the forensic interviews in its opening statement. The
government, too, made that choice itself. And, as it acknowledges, it “did so at its
peril,” risking a mistrial if the interviews were later ruled inadmissible. Aplee. Br. at
25–26. Moreover, defense counsel made no contemporaneous objections before,
during, or after the government’s opening.
To be sure, several circuits have found a prosecutor’s mention of prior
consistent statements in opening to be troublesome or improper. See Wells,
623 F.3d
at 345
(“The prosecutor’s remarks in her opening statement concerning the consistent
pretrial statements . . . were risky if not improper.”); United States v. Simmons,
567
F.2d 314, 321
(7th Cir. 1977) (government’s mention of a prior consistent statement
during its opening statement was “improper”). But in those same decisions, the courts
concluded that there was no appreciable prejudice to the defendant, because the prior
consistent statements were properly admitted into evidence later in the trial. See
Wells,
623 F.3d at 346
(reasoning that “[a]ny potential prejudice that might otherwise
have been inflicted upon Defendant by the [government’s] remarks about prior
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consistent statements vanished” when the defense charged the witnesses with
improper motive during its opening statement); Simmons,
567 F.2d at 322
(“What
had first seemed to be inadmissible when mentioned during the Government’s
opening statement, thus later became admissible. No prejudice, therefore, resulted to
the defendant.”). So too here, when Defendant attacked E.R.’s memory and implied
that R.W. had been coached, any potential prejudice stemming from the
government’s opening “vanished.” Wells,
623 F.3d at 346
.
We reject Defendant’s claim of reversible error from any alleged jumping the
gun by the district court or the government.
C. Structural Error
Defendant’s last argument is that the district court’s decision to send the
recordings of the forensic interviews to the jury room—without ever playing them in
open court—amounted to a structural error. He does not contend that he was
prejudiced by this decision; rather, he claims that he “need not demonstrate prejudice
to be entitled to a reversal of his conviction.” Aplt. Br. at 40. We are not persuaded.
The “general rule” is that “a constitutional error does not automatically require
reversal of a conviction.” Greer v. United States,
593 U.S. 503, 513
(2021) (internal
quotation marks omitted). But the Supreme Court has recognized that certain errors,
which “came to be known as structural errors,” “def[y] analysis by harmless error
standards.” Weaver v. Massachusetts,
582 U.S. 286
, 294–95 (2017) (internal
quotation marks omitted). According to the Court:
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The purpose of the structural error doctrine is to ensure insistence on
certain basic, constitutional guarantees that should define the framework
of any criminal trial. Thus, the defining feature of a structural error is that
it affects the framework within which the trial proceeds, rather than being
simply an error in the trial process itself.
Id.
(brackets and internal quotation marks omitted). The Court has concluded that an
error is structural, and “thus subject to automatic reversal on appeal,” “[o]nly in a
very limited class of cases.” Greer,
593 U.S. at 513
(internal quotation marks
omitted). “The highly exceptional category of structural errors includes, for example,
the denial of counsel of choice, denial of self-representation, denial of a public trial,
and failure to convey to a jury that guilt must be proved beyond a reasonable doubt.”
Id.
(internal quotation marks omitted).
The Supreme Court has identified “at least three broad rationales” for why an
error should be deemed structural in nature: (1) “if the right at issue is not designed
to protect the defendant from erroneous conviction but instead protects some other
interest”; (2) “if the effects of the error are simply too hard to measure”; and (3) “if
the error always results in fundamental unfairness.” Weaver, 582 U.S. at 295–96.
These principles must serve as our guideposts in determining whether an error
is structural. Yet Defendant has utterly failed to explain how they show why the
purported error here should be considered structural. He argues that sending
admitted-but-not-played interview recordings to the jury room violated Rule 43 of the
Federal Rules of Criminal Procedure (which requires that the defendant be present at
“every trial stage”), not any of his “basic, constitutional guarantees.” Weaver,
582
U.S. at 295
. And he fails to explain how the district court’s decision “affect[ed] the
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framework within which the trial proceed[ed], rather than being simply a[] [possible]
error in the trial process itself.”
Id.
(emphasis added and internal quotation marks
omitted).
Nor does Defendant try to explain how any of the three structural-error
rationales apply here; and if there is some explanation, it is not obvious to us. First,
he might have shown that his asserted “right”—to be present when the evidence was
presented to the jury—served to protect some interest other than to avoid an
erroneous conviction.
Id.
We recently said that the right to effective assistance of
counsel was “derived solely to promote adversarial fairness,” and therefore denial of
that right would not be structural error. United States v. Hohn,
123 F.4th 1084, 1111
(10th Cir. 2024) (en banc). There is nothing in Defendant’s briefs that might suggest
why the error he asserts here should be treated differently.
Second, even if sending admitted-but-not-played recordings to the jury was an
error, Defendant has not explained why its effects are “too hard to measure.” Weaver,
582 U.S. at 295
. We know exactly what prejudicial evidence the jury may have seen.
See Hohn,
123 F.4th at 1110
. We recognize that when a defendant is “denied the right
to select his or her own attorney,” there can be a cascading and incalculable impact.
Weaver,
582 U.S. at 295
. But Defendant has made no effort to explain why the
impact of sending the jury two half-hour interview recordings at the end of the trial is
likewise incapable of valuation.
Third, and finally, Defendant has not explained why sending admitted-but-not-
played evidence would “always result[] in fundamental unfairness.”
Id. at 296
. In
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particular, the recordings in this case were properly admitted into evidence and
Defendant had full opportunities to cross-examine the children interviewed. See R.,
Vol. III at 10–11 (before opening statements defense counsel confirmed with the
court that “we can cross-examine on the whole tape, whether or not the jury hears it
or not”); Aplt. Reply Br. at 10 (“Defendant’s attack on R.W. and E.R.’s credibility
was directed not only at their trial testimony, but with equal force at the statements
each made in their forensic interviews.”).
Rather than grappling with Weaver or Greer, Defendant relies on United States
v. Noushfar,
78 F.3d 1442
(9th Cir. 1996). But that case preceded the Supreme
Court’s opinions in Weaver (2017) and Greer (2021), which more fully explicated
the structural-error doctrine. In addition, unlike the case before us, those whose
conversations were recorded in Noushfar apparently had not testified at trial. See
id.
at 1445
(playing the tapes in the jury room was “akin to allowing a new witness to
testify privately, without cross-examination”). And the Ninth Circuit itself limited the
scope of Noushfar even before Weaver and Greer, when it characterized the error in
Noushfar as involving so many incriminating tapes (14) of conversations with the
defendants that it would be “impossible for the reviewing court to determine the
impact on jurors.” Eslaminia v. White,
136 F.3d 1234
, 1237 n.1 (9th Cir. 1998). That
concern is absent here.
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In short, Defendant has not shown that the district court committed a structural
error by sending the admitted-but-not-played interview recordings to the jury room.4
III. CONCLUSION
We AFFIRM Defendant’s conviction.
4
Defendant also relies on United States v. Magana, where the issue facing the
Seventh Circuit was whether the district court abused its discretion by declining to
declare a mistrial after learning that the transcripts for over 200 audiotapes—which
had been admitted into evidence but not played at trial—had been sent to the jury
room.
118 F.3d 1173
, 1181–83 (7th Cir. 1997). But the court affirmed the district
court’s decision, in part because “the transcripts and tapes had been properly
admitted in evidence.”
Id. at 1184
(emphasis added). And it merely assumed, rather
than deciding, that the transcripts were “improperly before the jury.”
Id.
This
decision thus offers more assistance to the government than to Defendant.
Page 22Case Information
- Court
- 10th Cir.
- Decision Date
- January 28, 2025
- Status
- Precedential