United States v. Michael Dale

1The HONORABLE PATRICK A. CONMY, United States District Judge for
the District of North Dakota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3064
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Anthony Charboneau, III, *
*
Defendant - Appellant. *
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Submitted: May 14, 2010
Filed: July 30, 2010
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Before RILEY, Chief Judge, LOKEN and MURPHY, Circuit Judges.
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LOKEN, Circuit Judge.
A jury convicted Anthony Charboneau of sexual abuse of a minor and abusive
sexual contact in Indian country in violation of 18 U.S.C. §§ 2243(a), 2244(a)(3), and
1153. Charboneau appeals the conviction, arguing that the district court 1 committed
plain error when it permitted a government witness to violate Charboneau’s Sixth
Amendment rights by referring to a forensic interview and medical report of one of
the child victims. As the child declarant testified at trial and the medical report was
not introduced into evidence, the Confrontation Clause as construed in Crawford v.

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Washington, 541 U.S. 36 (2004), and in cases applying Crawford was not implicated
by this testimony. Accordingly, we affirm.
The government’s first trial witness was FBI Special Agent Aaron Kellerman,
who served as case agent for this investigation and prosecution. Agent Kellerman
testified without objection that he had taken one of the victims, D.C., to the Red River
Children’s Advocacy Center for a forensic interview during which D.C. made
“disclosures” and identified Anthony Charboneau as the “perpetrator.” When the
prosecutor pressed for details of the disclosures, the district court sustained defense
counsel’s hearsay objections, as well as unrelated hearsay objections by the prosecutor
during defense counsel’s cross examination of Agent Kellerman. At the end of his
testimony, the district court explained its rulings to the jury:
And whenever there’s a witness going to be called who has supposedly
said it, let’s hear it from the witness and not from someone who said they
heard the witness say it. Simple as that.
D.C. and the other victim, J.B., who were thirteen and twenty years old at the time of
trial, were the government’s third and fourth trial witnesses.
On appeal, Charboneau argues that Agent Kellerman’s testimony violated
Charboneau’s Sixth Amendment rights as construed in Crawford, which held that the
Confrontation Clause bars “admission of testimonial statements of a witness who did
not appear at trial unless he was unavailable to testify, and the defendant had a prior
opportunity for cross-examination.” 541 U.S. at 53-54. Charboneau correctly notes
we have held that a child victim’s statements during a forensic interview by a social
worker may be “testimonial” under Crawford. Bobadilla v. Carlson, 575 F.3d 785,
791-93 (8th Cir. 2009), cert. denied, 130 S. Ct. 1081 (2010). But the child victim did
not testify in Bobadilla, whereas D.C. testified at Charboneau’s trial. Crawford did
not alter the principle that the Confrontation Clause “is satisfied when the hearsay

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declarants, here the alleged child victims, actually appear in court and testify in
person.” United States v. Spotted War Bonnet, 933 F.2d 1471, 1473 (8th Cir. 1991),
cert. denied, 502 U.S. 1101 (1992). Thus, as in United States v. Rodriguez, 484 F.3d
1006, 1013-14 (8th Cir.), cert. denied, 552 U.S. 890 (2007), there was no
Confrontation Clause error, much less plain error. When a child victim testifies at
trial, “Crawford is inapplicable.” United States v. Wipf, 397 F.3d 677, 682 n.2 (8th
Cir.), cert. denied, 546 U.S. 835 (2005).
When the government rested, Agent Kellerman was recalled by the defense.
After Kellerman briefly testified concerning his conversation with D.C.’s mother after
D.C.’s forensic interview, the prosecutor on cross examination asked him to describe
the forensic interview process. Kellerman related that a medical examination
sometimes follows the interview. When asked without objection if there was an exam
after D.C.’s interview, he replied, “I think there was a follow-up medical exam, yes.”
On appeal, Charboneau argues it was plain error to admit this testimony because
the “veiled reference” to a medical report violated the Confrontation Clause as
construed in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). That case held
that sworn certificates showing the results of scientific drug tests were testimonial
statements, and therefore the analysts were witnesses the defendant has a Sixth
Amendment right to confront. Id. at 2532. However, even if medical reports could
be testimonial under Melendez-Diaz, an issue we need not consider, neither the
medical report nor any out-of-court statement by the examining physician was
admitted into evidence. Thus, there was no Confrontation Clause error. See United
States v. Tucker, 533 F.3d 711, 714 (8th Cir. 2008).
Finally, Charboneau argues that his trial attorneys provided ineffective
assistance when they permitted “multiple references to a forensic interview which
were meant to bolster the heavily impeached testimony of D.C.” As in most cases, we
conclude that the record is not sufficiently developed to take up this issue on direct

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appeal. See United States v. Lee, 374 F.3d 637, 654 (8th Cir. 2004), cert. denied, 545
U.S. 1141 (2005).
The judgment of the district court is affirmed.
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