United States v. Bruce.
No. 23-7061. 1/28/2025. E.D.Okla. Judge Hartz. Sexual Abuse in Indian Country—Fed. R. Evid. 801(d)(1)(B)—Admissibility of Recorded Statements—Prior Consistent Statements—Structural Error.
January 28, 2025
Bruce was charged with two counts of aggravated sexual abuse in Indian country for sexually abusing R.W., his then 5-year-old son. During forensic interviews, R.W. stated that his father had repeatedly sodomized him while he was living with him, and R.W.’s sister E.R. said that she saw her father sodomize R.W. Bruce filed a motion in limine seeking to exclude R.W.’s and E.R.’s recorded forensic interviews (the recordings) as hearsay, and the district court denied the motion. At trial, R.W. testified in detail about the abuse, and E.R. testified that she saw her father sexually abuse R.W. Following the testimony and cross-examination of both children, the district court admitted into evidence the recordings, which were consistent with their trial testimony. The recordings were not played in the courtroom, but the jury was given access to them during its deliberations. A jury found Bruce guilty as charged, and the district court sentenced him to concurrent terms of life imprisonment on the two counts.
On appeal, Bruce argued that the district court improperly overruled his hearsay objection to the admissibility of the recordings. It is undisputed that the threshold requirements of Fed. R. Evid. 801(d)(1)(B) were met because R.W. and E.R. testified and 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 issue was whether the prior consistent statements were offered for permissible reasons under Rule 801(d)(1)(B)(i) or (ii). Here, by suggesting that R.W. had been coached by the prosecutor, the defense opened the door under subsection (i) to allow the government to rebut this charge through R.W.’s prior consistent statement. Similarly, by suggesting that E.R. had a faulty memory, the defense opened the door under subsection (ii) for the government to rehabilitate E.R.’s credibility through her prior consistent statement. Therefore, the record supports the admissibility of both recordings as prior consistent statements under Rule 801(d)(1)(B)(i) and (ii).
Bruce also argued that the district court reversibly erred by ruling prematurely on the admission of the recordings. He asserted that the district court 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. However, as Bruce conceded, the district court did not “preadmit” the forensic interviews in its order denying the motion in limine. Rather, the court said that the admissibility of the interviews was conditioned on proper foundation testimony, and by the time the court admitted the forensic interviews into evidence, the proper foundations under Rule 801(d)(1)(B) had been laid. Further, defense counsel chose to make certain credibility attacks; if he had refrained from doing so, the court could not have admitted the forensic interviews. And lastly, the court did not give the government express permission to describe the forensic interviews in its opening statement. Instead, the government risked that choice, potentially facing a mistrial if the interviews were later ruled inadmissible. And defense counsel did not contemporaneously object before, during, or after the government’s opening.
Bruce further contended that the district court committed structural error by sending the recordings to the jury room rather than playing them in court. He did not assert that he was prejudiced by this decision but claimed that he did not need to show prejudice to be entitled to a reversal. Under Weaver v. Massachusetts, 582 U.S. 286, 295–96 (2017), an error should be deemed structural in nature (1) if the right at issue does not serve to protect the defendant from erroneous conviction but protects another interest; (2) if the error’s effects are too hard to measure; and (3) if fundamental unfairness always results from the error. However, Bruce failed to explain how these rationales may apply here or show why the alleged error should be considered structural. Further, even if sending the recordings to the jury was an error, Bruce did not explain why the effects of this action are too hard to measure or why such action resulted in fundamental unfairness. Therefore, the district court did not commit a structural error by sending the recordings to the jury room.
The conviction was affirmed.