United States of America v.  Marlene Renee Geraci

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4534 
MARLENE RENEE GERACI,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-01-187-H)
Submitted: April 18, 2003
Decided: July 21, 2003
Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Marlene Renee Geraci appeals her conviction and sentence follow-
ing a jury trial for engaging in sexual contact with a child under the
age of twelve, in violation of 18 U.S.C. § 2244(a)(1) (2000), and con-
tributing to the delinquency of her two minor children, in violation of
18 U.S.C. § 13 (2000) (assimilating N.C. Gen. Stat. § 14-316.1). She
was sentenced to seventy months imprisonment on the sexual contact
charge and 120 days imprisonment on the delinquency charge, to run
concurrently. Geraci also was sentenced to three years of supervised
release. Finding no error, we affirm.
Geraci first argues that § 2244(a)(1) is unconstitutionally vague and
overbroad both on its face and as applied to her. We review the con-
stitutionality of a federal statute de novo. See United States v. Sun,
278 F.3d 302, 308 (4th Cir. 2002). For the reasons that follow, we
find that Geraci’s arguments fail.
Contrary to Geraci’s argument that facial challenges may be made
if a statute threatens a constitutionally protected right, it is well-
settled that such challenges are generally restricted to First Amend-
ment based attacks. See Broadrick v. Oklahoma, 413 U.S. 601, 610
(1973). Vagueness and overbreadth challenges that do not implicate
the First Amendment "must be examined in the light of the facts of
the case at hand." United States v. Mazurie, 419 U.S. 544, 550 (1975);
see Sun, 278 F.3d at 309. Thus, Geraci’s challenge must be tailored
to the facts of her case only, which she fails to do. Therefore, we find
that Geraci’s facial challenge to § 2244(a)(1) fails.
We also reject Geraci’s argument that § 2244(a)(1) is unconstitu-
tionally vague and overbroad as applied to her case. Geraci argues
that the statute is impermissibly vague because the definition of "sex-
ual contact" is virtually limitless. We disagree. Due process requires
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that a criminal statute provide adequate notice to a person of ordinary
intelligence that the contemplated conduct is illegal. See Sun, 278
F.3d at 309. Although Geraci claims that she did not receive proper
notice as to what criminal act she allegedly committed or the identity
of the alleged victim, we find that the statutory definition of "sexual
contact" would provide a person of ordinary intelligence clear notice
that Geraci’s conduct was proscribed. We also conclude that
§ 2244(a)(1) is not overbroad as applied to Geraci’s case. A statute
may be considered overbroad only if it criminalizes constitutionally
protected conduct. See United States v. Morison, 844 F.2d 1057, 1070
n.19 (4th Cir. 1988). Given that we have found that Geraci’s conduct
is not constitutionally protected, we find that her overbreadth argu-
ment necessarily fails as well.
Next, Geraci argues that the district court erred by permitting her
son ("RG") to testify without first holding a pretrial taint hearing to
determine the effect of allegedly overly suggestive and/or coercive
interview tactics used by investigators and therapists. We review a
district court’s denial of an evidentiary hearing for abuse of discre-
tion. See United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995). For
the following reasons, we find that Geraci’s argument is without
merit.
First, we find that Geraci simply was not entitled to such a hearing
pursuant to controlling case law. Geraci relies upon New Jersey v.
Michaels, 642 A.2d 1372, 1379 (N.J. 1994), for the proposition that
such a pretrial hearing should have been conducted. However, neither
the district court nor this court is bound by Michaels. Furthermore,
despite Geraci’s attempt to bolster the persuasive authority of
Michaels by listing several federal appellate cases that cite to
Michaels, none of these cases held that a pretrial taint hearing is a pre-
requisite to a decision whether to admit anticipated testimony.
Second, Geraci was afforded ample opportunity to develop the evi-
dence and arguments in support of her contention that RG’s testimony
was tainted. Specifically, an evidentiary hearing was held at which
she presented evidence that RG’s memory was contaminated by the
interviews. Although Geraci urged the district court to exclude this
testimony, the court declined to do so. The district court limited nei-
ther the presentation of evidence on Geraci’s behalf nor the scope of
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the argument. Moreover, it appears that defense counsel never com-
plained below that Geraci was denied an opportunity to be heard on
the motion, nor has defense counsel suggested what further evidence
could have been presented in support of Geraci’s argument.
Lastly, Geraci’s argument fails because she cannot demonstrate
any likelihood that RG’s recollection of the material events was, in
fact, influenced by improper investigative or interview techniques.
Geraci’s contention that investigators asked suggestive or leading
questions is not supported by the record. Likewise, investigators nei-
ther accused anyone of wrongdoing nor furnished information to RG
concerning the alleged events. When viewed in context, Geraci’s con-
tention that investigators forced RG to remain in the interview room
when he wanted to leave, threatened him, and promised him new toys
is unpersuasive. It appears that the investigators were merely attempt-
ing to focus the attention of a young child with a short attention span,
and who was observed to change the subject when asked about sensi-
tive topics, back onto their line of questioning. Moreover, the thera-
pists’ interviews with RG do not appear to have been overly
suggestive or coercive. In fact, it took RG several months to discuss
the events that occurred and, even then, he made the initial disclo-
sures only through drawings.
Finally, Geraci argues that the district court erred by allowing the
alleged hearsay testimony of Jennifer Wilson, Justin Kurtz, and Jes-
sica Rancont. We review the admission of alleged hearsay evidence
for abuse of discretion. See United States v. Mohr, 318 F.3d 613, 618
(4th Cir. 2003). Furthermore, a harmless error analysis is applied to
evidentiary rulings. See Fed. R. Crim. P. 52(a); see also United States
v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997).
Contrary to Geraci’s argument, we find that the district court did
not abuse its discretion by admitting the testimony of Jennifer Wilson
pursuant to Fed. R. Evid. 807, the residual hearsay exception. Geraci
argues that because RG could have testified to a statement he made
to Wilson, Wilson’s testimony regarding RG’s statement was not bet-
ter than other available evidence. Nonetheless, the testimony of RG’s
therapists provides ample evidence that RG would not have been psy-
chologically capable of testifying to this matter. Cf. United States v.
Dorian, 803 F.2d 1439, 1445 (8th Cir. 1986) (holding admission of
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testimony under residual exception proper when victim-declarant
"was simply unable to testify meaningfully."). Furthermore, the cir-
cumstances surrounding the statement made to Wilson satisfy the
Rule 807 requirement of the circumstantial guarantee of trustworthi-
ness. Specifically, the statement was made to Wilson spontaneously
and in relaxed circumstances while Wilson was putting RG to bed,
thus providing no motive for RG to be untruthful. See Idaho v.
Wright, 497 U.S. 805, 826-27 (1990).
We find that Geraci’s argument that the district court improperly
admitted the testimony of Justin Kurtz and Jessica Rancont also fails.
Pursuant to Fed. R. Evid. 801(d)(1)(B), a statement is not hearsay if
"the declarant testifies at the trial . . . and is subject to cross-
examination regarding the statement, and the statement is . . . consis-
tent with the declarant’s testimony and is offered to rebut an express
or implied charge against the declarant of recent fabrication or
improper influence or motive. The statement must be made before the
declarant had a motive to fabricate." United States v. Henderson, 717
F.2d 135, 138 (4th Cir. 1983).
We find that RG’s out-of-court statements to Justin and Jessica
meet the requirements of Rule 801(d)(1)(B). First, the statements
were offered to rebut the defense’s argument that RG’s testimony had
been tainted by the improper influence of investigators and therapists.
Furthermore, the statements were consistent with RG’s testimony and,
finally, RG made the statements to Justin and Jessica before he had
any contact with investigators or therapists, thereby eliminating the
possibility that the statements were the result of improper influence.
Accordingly, we affirm Geraci’s conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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