Lawrence E. Lupien v. Harold W. Clarke

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-1369
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of South Dakota.
Edward E. Bordeaux, Jr., *
*
Appellant. *
___________
Submitted: October 21, 2004
Filed: March 7, 2005
___________
Before MORRIS SHEPPARD ARNOLD, JOHN R. GIBSON, and SMITH, Circuit
Judges.
___________
MORRIS SHEPPARD ARNOLD, Circuit Judge.
Edward Bordeaux, Jr., appeals from his conviction and sentence for aggravated
sexual abuse, 18 U.S.C. §§ 1153, 2241(c), and 2246(2)(B). He argues that his
conviction is flawed because the district court allowed the prosecuting witness to
testify via closed-circuit television, admitted testimonial hearsay and other hearsay
statements, excluded exculpatory evidence, and denied his motions to suppress, for
judgment of acquittal, and for a mistrial. With respect to his sentence, he maintains
that the district court violated Blakely v. Washington, 124 S. Ct. 2531 (2004), by
making the predicate factual findings for certain sentencing enhancements (unrelated
to the fact of a prior conviction) rather than allowing the jury to make them. Because

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Mr. Bordeaux was denied the opportunity to confront his accuser as provided for in
the sixth amendment, we reverse his conviction and vacate his sentence.
I.
A grand jury indicted Mr. Bordeaux on five counts of aggravated sexual abuse
of a child; the petit jury acquitted Mr. Bordeaux on all but the first count, which
charged that he had put his penis in the mouth of AWH, a female child.
Mr. Bordeaux argues that the court should overturn his conviction because he was
deprived of his sixth amendment right to confront his accuser when AWH was
allowed to testify via closed-circuit television.
AWH took the stand at Mr. Bordeaux's trial. She answered a number of the
prosecutor's questions, usually with a single word or movement of the head, before
the prosecutor asked the court to allow her to leave the courtroom and testify by two-
way closed-circuit television. (A two-way closed-circuit system allows those in the
courtroom to watch the witness on television and also allows the witness to see the
defendant on television.) The prosecutor believed that AWH would be more
forthcoming if allowed to testify this way, though she had already answered
affirmatively when asked if Mr. Bordeaux had put his penis in her mouth.
Mr. Bordeaux's attorney, who had yet to cross-examine AWH, objected. To resolve
the issue, the judge and the attorneys questioned AWH in the judge's chambers. After
this question-and-answer session, the court found that AWH was afraid of the
defendant and of testifying in front of the jury in the large courtroom. It found that
this fear rendered AWH unable to testify in open court and therefore, pursuant to
18 U.S.C. § 3509(b)(1)(B)(i), it held that she could testify from a separate room by
two-way closed-circuit television.
The sixth amendment's confrontation clause provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses
against him." U.S. Const. amend. VI. We review de novo the district court's

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determination of the protections afforded by the confrontation clause, while we
review the underlying factual determinations for clear error. Cf. United States v.
Powell, 379 F.3d 520, 523 (8th Cir. 2004).
The Supreme Court sketched the contours of the confrontation right in cases
like this in Maryland v. Craig, 497 U.S. 836 (1990). In that case, the Court rejected
a confrontation clause challenge to a Maryland statute that allowed a child witness
in a sex abuse case to testify via a one-way closed-circuit television (which does not
allow the witness to view the defendant) under certain circumstances. Id. at 860. It
explained that the confrontation clause "reflects a preference for face-to-face
confrontation at trial," but that this preference "must occasionally give way to
considerations of public policy and the necessities of the case." Id. at 849 (internal
quotations omitted). The Court emphasized, however, that the preference is a strong
one and that a defendant's sixth amendment confrontation right "may be satisfied
absent a physical, face-to-face confrontation at trial only where denial of such
confrontation is necessary to further an important public policy and only where the
reliability of the testimony is otherwise assured." Id. at 850.
Craig sets out three findings that must be made in a case like the present one
to establish that the case sufficiently implicates an important public policy
("protecting child witnesses from the trauma of testifying in a child abuse case") to
allow testimony by one-way closed-circuit television. Id. at 855-56. For current
purposes, the only finding that matters is the second, which is that the child witness
would be traumatized by the presence of the defendant, not by the courtroom
generally. Id. at 856. Were the child afraid only of the courtroom, she could simply
testify in more comfortable surroundings, albeit with the defendant present. Id.
After Craig was decided, Congress enacted 18 U.S.C. § 3509, which provides
alternative procedures to live in-court testimony in child abuse cases. That statute,
as pertinent, allows the use of two-way closed-circuit television to present a child's

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live testimony if "[t]he child is unable to testify [in open court] because of fear."
18 U.S.C. § 3509(b)(1)(B)(i). The statute does not specify that the fear must be of the
defendant.
United States v. Turning Bear, 357 F.3d 730 (8th Cir. 2004), involved a factual
situation identical to this one: a child witness testified by two-way closed-circuit
television pursuant to § 3509 after a district court found that she was unable to testify
in open court because of fear of a combination of things, including the defendant, the
jury, and the large courtroom. We held that Mr. Turning Bear's sixth amendment
confrontation rights had been violated because the district court had not found, as
required by Craig, that the trauma caused by the presence of the defendant was the
dominant element preventing the child witness from testifying in open court. Turning
Bear, 357 F.3d at 737. In other words, we concluded that § 3509 was
unconstitutional to the extent that it requires a different showing of fear from what
Craig requires.
The government insists that use of two-way closed-circuit television was
constitutional in this case. First, it argues that Craig does not control because that
case involved a one-way closed-circuit television system, and this case involves a
two-way system, which, it says, preserves the face-to-face confrontation promised by
the sixth amendment. To support the contention that confrontation via a two-way
system is constitutionally equivalent to a face-to-face encounter, the government cites
United States v. Gigante, 166 F.3d 75 (2d Cir. 1999), cert. denied 528 U.S. 1114
(2000). In Gigante, the Second Circuit stated that "because [the district judge]
employed a two-way system that preserved the face-to-face confrontation ..., it is not
necessary to enforce the Craig standard in this case." Id. at 81. The government
distinguishes Turning Bear (which, of course, applied Craig to a two-way closed-
circuit set-up) from Mr. Bordeaux's case on the basis that the parties in Turning Bear
did not brief or argue the difference between two-way and one-way systems, and the
court did not address it. The government adds that with Craig aside, the district court

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needed to satisfy only § 3509, which, the government says, it did. Second, the
government asserts that, in any event, the district court's findings satisfy Craig
because it found that AWH was unable to testify in open court because of the
presence of the defendant.
In Turning Bear, we decided that Craig controlled two-way systems as well as
one-way systems, and we are bound by that result, United States v. Lippman,
369 F.3d 1039, 1043-44 (8th Cir. 2004), cert. denied, 125 S. Ct. 942 (2005). It does
not matter that the government raises a new argument here because our rule about the
inability of one panel to second-guess another does not contain an exception for new
arguments. If it did, the rule would be eviscerated and the stability of the law in this
circuit would be significantly undermined.
We conclude, moreover, that Craig would govern this case even if there were
not a precedent squarely on point because a "confrontation" via a two-way closed-
circuit television is not constitutionally equivalent to a face-to-face confrontation.
"Confrontation" through a two-way closed-circuit television is not different enough
from "confrontation" via a one-way closed-circuit television to justify different
treatment under Craig. It is true that a two-way closed-circuit television creates an
encounter that more closely approximates a face-to-face confrontation than a one-way
closed-circuit television does because a witness can view the defendant with a two-
way system. But two-way systems share with one-way systems a trait that by itself
justifies the application of Craig: the "confrontations" they create are virtual, and not
real in the sense that a face-to-face confrontation is real.
The virtual "confrontations" offered by closed-circuit television systems fall
short of the face-to-face standard because they do not provide the same truth-inducing
effect. The Constitution favors face-to-face confrontations to reduce the likelihood
that a witness will lie. "It is always more difficult to tell a lie about a person 'to his
face' than 'behind his back.' " Coy v. Iowa, 487 U.S. 1012, 1019 (1988). Given the

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ubiquity of television, even children are keenly aware that a television image of a
person (including a defendant in the case of a two-way system) is not the person –
something is lost in the translation. Thus, a defendant watching a witness through a
monitor will not have the same truth-inducing effect as an unmediated gaze across the
courtroom. We are not alone in noting that something may be lost when a two-way
closed-circuit television is employed, for even the Gigante court admitted that there
may be "intangible elements" of confrontation that are "reduced or eliminated by
remote testimony." Gigante, 166 F.3d at 81. Admittedly, the "confrontation" offered
by a one-way system is, for lack of a better phrase, even more virtual because it
depends on the witness envisioning the defendant to create the "confrontation." And
one can imagine that this incremental step away from face-to-face confrontations
results in a further diluted truth-inducing effect. That said, the touchstone for
deciding whether a "confrontation" satisfies the Constitution is whether it is likely to
lead a witness to tell the truth to the same degree that a face-to-face confrontation
does, and in this respect two-way systems are like one-way systems: they both fall
short.
Gigante does not persuade us that "confrontation" through a two-way closed-
circuit television is constitutionally equivalent to a face-to-face confrontation because
it neglects the intangible but crucial differences between a face-to-face confrontation
and a "confrontation" that is electronically created by cameras, cables, and monitors.
We thus join the Eleventh Circuit in rejecting Gigante's view of the "confrontation"
that two-way closed-circuit television systems afford. United States v. Yates,
391 F.3d 1182, 1186 (11th Cir. 2004).
Even if we assumed that a two-way system might conceivably capture the
essence of the face-to-face confrontation in some situations, whether it actually did
would turn on the answers to a myriad of hard logistical questions (How big must the
monitor be? Where should it be placed? Where should the camera focused on the

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defendant be placed?) that would render the theoretical promise of the two-way
system practically unattainable.
The district court's findings did not satisfy the Craig standard. The district
court found that AWH's fear of the defendant was only one reason why she could not
testify in open court; it did not find that AWH's fear of the defendant was the
dominant reason. See Turning Bear, 357 F.3d at 737. The district court therefore
denied Mr. Bordeaux his sixth amendment right to confront AWH.
II.
Mr. Bordeaux also maintains that the district court violated the confrontation
clause by admitting a statement that AWH made out of court to an individual whom
the government itself calls a "forensic interviewer." After the allegations of sexual
abuse arose, government officials referred AWH to a center for child evaluation. At
this center, she was interviewed by a forensic interviewer before being examined by
a doctor. Consistent with the center's standard operating procedure, the interview was
videotaped: as was the custom, two copies of the videotape were made – one for the
patient's medical records and one for law enforcement officials. On the videotape,
AWH indicates that Mr. Bordeaux put his penis in her mouth. The district court
admitted the tape into evidence, and it was shown to the jury. The district court also
admitted hearsay statements from a doctor at the center who observed the interview;
the doctor recounted what AWH had said during her interview.
The confrontation clause bars the admission at trial of the testimonial
statements of a witness who is absent from trial, unless the witness is unavailable to
testify and the defendant had a prior opportunity to cross-examine her. Crawford v.
Washington, 124 S. Ct. 1354, 1369 (2004). Crawford does not provide a firm
definition of the phrase "testimonial statement"; the Court noted, however, that the
confrontation clause must be interpreted with an eye toward the principal evil at
which it was directed, namely the use of "ex parte examinations as evidence against

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the accused." Id. at 1363. The Court explained that "[w]hatever else the term
[testimonial] covers, it applies at a minimum to prior testimony at a preliminary
hearing, before a grand jury, or at a former trial; and to police interrogations." Id. at
1374. The Court did not discuss what circumstances would render a witness "absent"
from trial.
Mr. Bordeaux argues that AWH's statements during the forensic interview are
testimonial because they were made at an interview that was set up by law
enforcement officials and had a law enforcement purpose. He adds that because
AWH's closed-circuit testimony contravened the confrontation clause, she was absent
from the trial for Crawford purposes.
The government asserts that evidence about the statements does not run afoul
of the confrontation clause because AWH testified at trial and the statements at the
interview were made for the purpose of medical treatment and thus are not
testimonial. It cites United States v. Rouse, 111 F.3d 561, 568-70 (8th Cir. 1997),
cert. denied, 522 U.S. 905 (1997), as support for the assertion that testimony via a
two-way closed-circuit television counts as appearing in court for confrontation-
clause purposes.
We hold that Mr. Bordeaux's sixth amendment rights were violated. First of
all, AWH's statements are testimonial. Statements elicited during police
interrogations lie at the core of the definition of "testimonial." Crawford, 124 S. Ct.
at 1374. A police interrogation is formal (i.e., it comprises more than a series of
offhand comments – it has the form of an interview), involves the government, and
has a law enforcement purpose. The same is true of the interview here. The formality
of the questioning and the government involvement in it are undisputed in this case.
The purpose of the interview (and by extension, the purpose of the statements) is
disputed, but the evidence requires the conclusion that the purpose was to collect
information for law enforcement. First, as a matter of course, the center made one

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copy of the videotape of this kind of interview for use by law enforcement. Second,
at trial, the prosecutor repeatedly referred to the interview as a "forensic" interview,
meaning that it "pertain[ed] to, [was] connected with, or [was to be] used in courts
of law." Oxford English Dictionary Online Edition (taken from second print ed.
1989). That AWH's statements may have also had a medical purpose does not change
the fact that they were testimonial, because Crawford does not indicate, and logic
does not dictate, that multi-purpose statements cannot be testimonial.
Secondly, AWH did not appear at trial. A witness has not appeared for
purposes of the confrontation clause when her method of testifying violated that
clause. Turning Bear, 357 F.3d at 738. AWH's testimony via closed-circuit
television violated the clause, and so we do not consider it when determining whether
she appeared at trial. See id. The remaining question, then, is whether AWH
appeared at trial when she testified in open court prior to testifying on the closed-
circuit system. The answer is no. In addition to expressing a strong "preference" for
face-to-face encounters, the confrontation clause affords defendants the right to cross-
examine the witnesses against them. Douglas v. Alabama, 380 U.S. 415, 418-19
(1965). Mr. Bordeaux did not have the chance to cross-examine AWH in open court;
he was not able to cross-examine her until after she began testifying via the closed-
circuit system. The cross-examination was a component of AWH's closed-circuit
testimony, and as the confrontation-clause violation rendered this testimony nugatory,
see Turning Bear, 357 F.3d at 738, it nullified as well the cross-examination.
Because Mr. Bordeaux was deprived of his constitutionally guaranteed opportunity
to cross-examine AWH, we conclude that her open-court testimony was inadmissible,
cf. Turning Bear, 357 F.3d at 738, and, in light of the fact that she provided no
admissible testimony, that she was absent from trial, see id.
Our holding in Rouse accords with our conclusion here. In Rouse, we decided
that the child witnesses who had testified via a two-way closed-circuit television had
confronted the defendants as required by the Constitution. Rouse, 111 F.3d at 568-

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69. A corollary to this, of course, is that the witnesses appeared at the trial. In Rouse,
however, we determined that the witnesses had confronted the defendants because the
district court had made the fear-of-the-defendant findings required by Craig. Rouse,
111 F.3d at 568-69. In other words, in Rouse we applied the same standard that we
apply here. Under that standard, as we explained above, AWH did not confront
Mr. Bordeaux as required by the sixth amendment and so was legally absent from
trial.
In short, we decide that evidence from the forensic interview must be excluded
under the confrontation clause because the interview was the sort of "ex parte
examination" at which the confrontation clause is aimed and AWH was absent from
trial. See Crawford, 124 S. Ct. at 1363.
III.
Mr. Bordeaux maintains that the district court should have excluded as hearsay
the testimony from three female witnesses who testified to out-of-court statements
made to them by AWH about alleged sexual abuse. The court ruled that the
statements were not hearsay because they were "consistent with the declarant's
testimony and [were] offered to rebut an express or implied charge against the
declarant of ... improper influence," Fed. R. Evid. 801(d)(1)(B), namely that these
women convinced AWH to say that she was molested because they were angry with
Mr. Bordeaux about a financial matter.
We conclude that the out-of-court statements were hearsay and the district
court should have excluded them. The legal predicates for the application of the
hearsay exception contained in Rule 801(d)(1)(B) were not present in this case. For
Rule 801(d)(1)(B) to apply, the declarant – AWH in this instance – must testify at the
trial and be subject to cross-examination concerning her out-of-court statements.
Fed. R. Civ. P. 801(d)(1)(B). As explained above, AWH did not testify at the trial

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and was not subject to cross-examination. Thus, her out-of-court statements could
not have come in under Rule 801(d)(1)(B) and were inadmissible hearsay.
We add a few observations that will become relevant if a second trial occurs
and AWH testifies at it. For out-of-court statements consistent with a declarant's trial
testimony to be admissible to rebut the charge that the declarant's trial testimony is
the result of an improper influence, the out-of-court statements must pre-date the
instance that the improper influence was allegedly brought to bear on the declarant.
Tome v. United States, 513 U.S. 150, 156 (1995). The defendant asserts on appeal
that AWH made the relevant out-of-court statements after the women had a motive
to influence her. He does not specifically contend, however, that AWH made the
statements after the women had first exerted an improper influence on AWH, and this
is what matters. If AWH made the statements after the women had a motive to
influence her, but before they actually brought their influence to bear, then the
statements would be admissible under Rule 801(d)(1)(B); the "motive" explicitly
referred to in the Rule is the declarant's motive to lie, see United States v. Forrester,
60 F.3d 52, 64 (2d Cir. 1995). (The defendant does not claim that the financial
dispute directly motivated AWH to lie.) But if AWH made the statements after the
women supposedly exerted an improper influence on her, then they would not be
admissible under Rule 801(d)(1)(B).
IV.
Mr. Bordeaux maintains that the district deprived him of his right to a fair trial
by excluding certain evidence from the videotaped interview of AWH. In her
interview, AWH indicated that Mr. Bordeaux had put his penis in her mouth. When
asked if anyone other than Mr. Bordeaux had done bad things to her, she named her
brother's friend, Luke (though she did not specify what bad things he had done).
Prior to trial, Mr. Bordeaux filed a motion for leave to offer AWH's statement
about Luke under Federal Rule of Evidence 412 (b)(1)(C). This subsection provides

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for the admission of evidence related to past sexual behavior when the "exclusion of
[the evidence] would violate the constitutional rights of the defendant." Fed. R. Evid.
412(b)(1)(C). It is an exception to the general rule that "[e]vidence offered to prove
that any alleged victim engaged in other sexual behavior" is inadmissible, Fed. R.
Evid. 412(a)(1), the purpose of which is to protect the alleged victims of sexual
assault from harassment or embarrassment. Ellsworth v. Warden, 333 F.3d 1, 7
(1st Cir. 2003). Mr. Bordeaux argued that the statement supported the inference that
someone other than the defendant might have been the source of AWH's sexual
knowledge. The court did not rule on Mr. Bordeaux's source-of-knowledge
argument, though it did reject a different Rule 412 argument that Mr. Bordeaux made.
The Constitution guarantees every criminal defendant a fair trial. United States
v. Ruiz, 536 U.S. 622, 628 (2002). A constituent element of this guarantee is a
defendant's right, grounded in the fifth and sixth amendments, to introduce evidence
in his own defense. See United States v. Bear Stops, 997 F.2d 451, 454 (8th Cir.
1993). The right is not without limitation; it may sometimes have to "bow to
accommodate other legitimate interests in the criminal trial process." United States
v. Scheffer, 523 U.S. 303, 308 (1998) (internal quotations omitted). "Restrictions on
a criminal defendant's right[] ... to present evidence[, however,] 'may not be arbitrary
or disproportionate to the purposes they are designed to serve.' " Michigan v. Lucas,
500 U.S. 145, 151 (1991) (quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)).
Mr. Bordeaux argues that the district court should have admitted the statements
about Luke as evidence of an alternate source of AWH's knowledge about oral sex.
Excluding the statement about Luke, Mr. Bordeaux posits, violated his constitutional
right to a fair trial and, redundantly, Rule 412(b)(1)(C), because it inhibited his ability
to mount a vigorous defense.
The district court did not violate Mr. Bordeaux's right to introduce evidence in
his defense by excluding AWH's statement about Luke. To the extent one

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understands the statement to refer to sexual conduct, it triggers Rule 412's general
prohibition against the introduction of evidence of an alleged abuse victim's past
sexual conduct. See generally Rouse, 111 F.3d at 569 n.7. This restriction does not
violate Mr. Bordeaux's constitutional right to introduce evidence in his defense
because it is not arbitrary or disproportionate to the purpose it is designed to serve.
The restriction (i.e., the exclusion) is not arbitrary because there exists a reasonable
explanation for it – the prevention of harassment or embarrassment of AWH. Nor is
the exclusion disproportionate to its purpose. AWH's statement about Luke provides
scant insight into whether he is a source of her knowledge of oral sex because it does
not refer to any specific sexual acts engaged in with Luke. Preventing the potential
embarrassment or harassment of alleged victims of sexual abuse, moreover, is an
important interest. See United States v. Powell, 226 F.3d 1181, 1199 (10th Cir.
2000), cert. denied, 531 U.S. 1166 (2001). In light of the minimal probative value
of the evidence and the important purpose of the exclusion, then, exclusion of the
statement was not disproportionate to the purpose behind the exclusion. Cf. United
States v. White Buffalo, 84 F.3d 1052, 1054 (8th Cir. 1996); United States v. Bartlett,
856 F.2d 1071, 1088-89 (8th Cir. 1988).
V.
Mr. Bordeaux argues that the district court should have suppressed evidence
of a statement that he made to a Federal Bureau of Investigation agent because the
agent had not apprised him of his Miranda rights. See Miranda v. Arizona, 384 U.S.
436 (1966). No one disputes that the agent questioned Mr. Bordeaux, so the only
issue is whether Mr. Bordeaux was in custody, for only custodial interrogations
necessitate Miranda warnings. See, e.g., Oregon v. Elstad, 470 U.S. 298, 309 (1985).
The agent scheduled an interview with Mr. Bordeaux. At the appointed time,
the agent and an investigator with the local tribal police force arrived at
Mr. Bordeaux's apartment. The agent asked Mr. Bordeaux whether he wanted to talk
in the apartment or in the vehicle that the agent and the investigator had arrived in,

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a silver Chevrolet Tahoe (a large sport-utility vehicle), which was parked in front of
Mr. Bordeaux's apartment building. Mr. Bordeaux chose to speak in the Tahoe,
which was unmarked and betrayed the fact that it was a police vehicle only because
it had a police radio. The agent sat in the driver's seat, Mr. Bordeaux sat in the front
passenger's seat, and the investigator sat in the back seat. Though both the agent and
the investigator were armed, both had concealed their weapons under their clothing.
At the outset of the interview, the agent told Mr. Bordeaux, who has a below
average I.Q., that he was not under arrest, that he would not be arrested at the end of
the interview, that his participation in the interview was completely voluntary, and
that he could end the interview at any time. The agent also showed Mr. Bordeaux
that the Tahoe's doors were unlocked. About fifty minutes into the interview,
Mr. Bordeaux went into his apartment, by himself, to use the bathroom. He returned
after two or three minutes. Mr. Bordeaux then told the agent that he drank heavily
when his father died and that he may have done things, like abuse AWH, that he did
not remember. After an hour and forty-five minutes, during which time the tribal
investigator did not actively participate in the questioning, Mr. Bordeaux stopped the
interview and said that he would not answer any more questions until he was
represented by an attorney. At that time, the agent told Mr. Bordeaux that he had a
warrant authorizing the collection of a urine sample, and he took Mr. Bordeaux to a
medical clinic where the sample was collected.
The district court denied Mr. Bordeaux’s motion to suppress his statements to
the officers, finding that he was not in custody. We review the district court's custody
determination de novo and its underlying factual findings for clear error. United
States v. Czichray, 378 F.3d 822, 831 (8th Cir. 2004), petition for cert. filed,
78 U.S.L.W. 3401 (U.S. Jan. 3, 2005) (No. 04-894).
The crux of this question is whether, viewing the circumstances as a whole, a
reasonable person in Mr. Bordeaux's position would have believed that law

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enforcement officers had limited his or her freedom of movement to a degree
associated with formal arrest. California v. Beheler, 463 U.S. 1121, 1125 (1983);
United States v. LeBrun, 363 F.3d 715, 723-24 (8th Cir. 2004), cert. denied,
73 U.S.L.W. 3162 (U.S. Feb. 22, 2005) (No. 04-332). Mr. Bordeaux presents his
intelligence and the details of the interview as the circumstances mainly relevant in
this interview. See LeBrun, 363 F.3d at 723. In United States v. Griffin, 922 F.2d
1343, 1349 (8th Cir. 1990), we identified six matters to consider when determining
whether a person was in custody. These matters, while instructive, see, e.g., United
States v. Galceran, 301 F.3d 927, 929-931 (8th Cir. 2002), are not dispositive: "[T]he
court must consider whether the historical facts, as opposed to the one-step-removed
Griffin factors, establish custody." Czichray, 378 F.3d at 828.
We conclude that Mr. Bordeaux was not in custody. The agent told
Mr. Bordeaux that his participation in the interview was voluntary, that he could end
the interview at any time, that he was not under arrest, and that he would not be
arrested at the end of the interview. He had unrestrained freedom of movement
during the interview – the officers allowed him to go into the apartment building by
himself in the midst of the interview. He also was not subjected to any strong arm or
deceptive tactics; no one menaced or tricked him. Finally, notwithstanding his low
IQ, it was not reasonable for him to believe that he was in custody: No great mental
acumen was required to understand his situation.
VI.
Mr. Bordeaux also argues that his statement to the FBI agent that he might have
done things that he did not remember was involuntary under the fifth amendment.
The fifth amendment prohibits the introduction of involuntary statements at trial.
Chavez v. Martinez, 538 U.S. 760, 769 (2003). A statement is involuntary if it was
extracted by use of physical and or psychological pressure that overbore a defendant's
will. Wilson v. Lawrence County, 260 F.3d 946, 952 (8th Cir. 2001). We cannot find
that a statement was involuntary unless it is established that law enforcement officials

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engaged in coercive activity. United States v. Rohrbach, 813 F.2d 142, 144 (8th Cir.
1987), cert. denied, 482 U.S. 909 (1987). Whether a statement was involuntary is
judged by the totality of the circumstances. LeBrun, 363 F.3d at 724. We review the
district court's legal conclusions about voluntariness de novo and its underlying
findings of fact for clear error. Id.
Mr. Bordeaux maintains that he was coerced because two officers interrogated
him in a police vehicle without anyone else present, and neither one advised him of
his Miranda rights. The officers did not coerce Mr. Bordeaux by choosing a
psychologically overbearing setting for the interview. As we have already said, the
Tahoe was unmarked and it was devoid of many of the potentially intimidating
trappings of police cars (e.g., a divider between the front and back seats); it was
parked in front of Mr. Bordeaux's building, not a secluded spot; and the tribal
investigator did not actively participate in the interview, she merely observed it from
the back seat. Also, the fact that Mr. Bordeaux chose to speak in the Tahoe rather
than in his home is some evidence that the Tahoe's environment was not coercive:
Given that one's home is not generally thought to be foreboding, cf. United States v.
Axsom, 289 F.3d 496, 502 (8th Cir. 2002), Mr. Bordeaux's choice of the Tahoe
indicates that it was a place in which he felt comfortable, and not simply the lesser of
two evils.
Nor did the officers coerce Mr. Bordeaux by neglecting to advise him of his
Miranda rights. The Supreme Court created the Miranda warnings as a palliative for
the inherently coercive atmosphere of a custodial interrogation. Mr. Bordeaux was
not in custody at the time of his questioning and so was not entitled to be informed
of his Miranda rights. To hold that the officers coerced Mr. Bordeaux by failing to
advise him of these rights would be to hold that Mr. Bordeaux was coerced because
he was not given something that he did not need. We reject the argument.

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VII.
Mr. Bordeaux contends that without the inadmissible evidence (the closed-
circuit testimony, the evidence related to the forensic interview, and the other hearsay
testimony) there was insufficient evidence to support his conviction and that we
should therefore enter a judgment of acquittal. The argument in favor of this position
is an argument by analogy. If an appellate court finds that there was insufficient
evidence to support a conviction in a criminal case in which the district court did not
admit any inadmissible evidence, the double jeopardy clause of the fifth amendment
bars retrial and requires the appellate court to enter a judgment of acquittal. See, e.g.,
United States v. Rea, 300 F.3d 952, 957 (8th Cir. 2002). So, the argument goes, if a
trial court accepted inadmissible evidence and the admissible evidence was
insufficient to support the conviction, we should reverse the conviction and enter a
judgment of acquittal.
The Supreme Court, however, squarely rejected this contention in Lockhart v.
Nelson, 488 U.S. 33, 40 (1988). The Court concluded that "[p]ermitting retrial in this
instance is not the sort of governmental oppression at which the Double Jeopardy
Clause is aimed; rather it serves the interest of the defendant by affording him an
opportunity to 'obtai[n] a fair readjudication of his guilt free from error.' " Id. at 42
(quoting Burks v. United States, 437 U.S. 1, 15 (1978) (alteration in Lockhart). The
Court worried that acquittal would have been a windfall for the defendant because the
prosecution might have had evidence that it withheld and would have introduced had
the district court properly excluded the inadmissible evidence. Id. Relatedly, if the
double jeopardy clause were interpreted to require courts of appeals to acquit
defendants in this situation, it "would lead the government to 'overtry' its cases – to
introduce redundant evidence of the defendant's guilt – in order to insure itself against
the risk of not being able to retry the defendant should some of its evidence be held
on appeal to be inadmissible." United States v. Tranowski, 702 F.2d 668, 671
(7th Cir. 1983), cert. denied, 468 U.S. 1217 (1984).

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Contrary to the premise of Mr. Bordeaux's argument, when considering an
argument for acquittal based on the insufficiency of the evidence in a case like this
one (i.e., where some of the evidence should not have been admitted), we review all
of the evidence admitted in the trial court. Lockhart, 488 U.S. at 40-41.
Mr. Bordeaux's attorney conceded at oral argument that AWH's videotaped
statements alone would support the conviction. Thus we have no trouble concluding
that the evidence admitted at trial sufficed to sustain the conviction.
VIII.
The district court violated Mr. Bordeaux's sixth amendment right to
confrontation by allowing AWH to testify by closed-circuit television and by
admitting evidence related to her statements at the forensic interview. He is entitled
to relief if the errors were not "so unimportant and insignificant that they may ... be
deemed harmless." Chapman v. California, 386 U.S. 18, 22 (1967); see also Turning
Bear, 357 F.3d at 740-41. We determine whether an error is harmless by considering
"not what effect the constitutional error might generally be expected to have upon a
reasonable jury, but rather what effect it had upon the guilty verdict in the case at
hand." Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). If the admissible evidence
with respect to Mr. Bordeaux's conviction was overwhelming, "then it is likely that
the ... errors were harmless." Turning Bear, 357 F.3d at 741.
We conclude that the district court's errors were not harmless. The only
admissible evidence of Mr. Bordeaux's guilt was his statement to the FBI agent that
he might have done things that he no longer remembered doing. Needless to say, this
statement does not constitute overwhelming evidence of guilt. Thus the district
court's constitutional errors were not harmless, and Mr. Bordeaux is entitled to relief.
The appropriate way to remedy these constitutional errors is to reverse
Mr. Bordeaux's conviction and remand this case to the district court for a new trial.
United States v. Love, 329 F.3d 981, 983 (8th Cir. 2003). Because these errors call

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for remand, we need not decide whether the district court's admission of the hearsay
testimony from the three female witnesses would have warranted a reversal. Finally,
because we have decided to reverse Mr. Bordeaux's conviction, we need not address
the Blakely issues presented by his sentencing.
IX.
During his closing argument, the prosecutor analogized the reasonable doubt
standard to a puzzle and asserted that "every puzzle piece doesn't have to fit exactly"
for the jury to find Mr. Bordeaux guilty beyond a reasonable doubt. He then stated
that "[t]he defense's responsibility is to come in and kick those puzzle pieces around."
Mr. Bordeaux's attorney objected and moved for a mistrial. The judge sustained the
objection and denied the motion for a mistrial. On appeal, Mr. Bordeaux argues that
the district court erred in denying the motion. While we do not necessarily condone
the prosecutor's remark, we need not address Mr. Bordeaux's argument because other
grounds require us to remand the case, and the matter is unlikely to arise on retrial.
X.
For the above stated reasons, we reverse Mr. Bordeaux's conviction and
remand for a new trial.
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