Sixth Circuit addresses: child victim’s trial testimony via closed circuit television; and mandatory $5,000 assessment under 18 U.S.C. § 3014 

            A jury convicted Patrick Wandahsega of abusive sexual contact with his six-year-old son. He was acquitted of aggravated abuse of a child under twelve-years-old. After a hearing on the government’s motion to allow the child to testify by closed circuit television (CCTV), a magistrate judge filed a Report and Recommendation (R&R) that the testimony be admitted. Defense counsel did not object and the district court adopted the R&R.

            On appeal, the Sixth Circuit considered the defense’s failure to object to the R&R. United States v. Wandahsega. The opinion reiterates that the failure to object to the R&R constitutes a waiver of the issue on appeal if the parties are informed of the potential waiver by the magistrate judge. The default can be excused “in the interest of justice” but the defense did not meet that standard here in spite of its argument that testimony by CCTV violated Mr. Wandahsega’s Sixth Amendment confrontation rights.

            The Sixth Circuit nevertheless addressed the merits and held that there was no clear error in the district court’s findings that the child feared testifying in front of his father and there was a substantial likelihood that he would suffer emotional trauma by doing so. Moreover, the government made an adequate showing of necessity for the CCTV testimony and thus complied with the requirements of Maryland v. Craig, 497 U.S. 836 (1990) and 18 U.S.C. § 3509. Although bound by Craig, the Sixth Circuit noted that “courts and scholars have struggled to reconcile Craig” with Crawford v. Washington, 541 U.S. 36 (2004). Wandahsega, Op. at 10. The Supreme Court may ultimately have to reconcile the two cases.

            The Wandahsega opinion addressed several other issues. In response to an emergency room nurse’s question why he was there, the child said his father twice did something bad to him. The statement was admissible under Fed.R.Evid. 803(4) because it was made for medical diagnosis or treatment. That exception also applied to a doctor’s testimony about what the child said when the doctor asked to examine him. The child declined to be examined and the doctor determined that an examination was unnecessary because the child was not then in pain. The doctor asked questions to determine the urgency of a physical examination and his conversation with the child was admissible as medical diagnosis or treatment.

            The child also made statements to his grandmother and to the mother of Mr. Wandahsega’s other children accusing his father of sexual abuse. Those statements were admissible under the “residual exception” (Fed.R.Evid. 807(a)) because they were trustworthy in light of their spontaneity; consistent repetition; the child’s mental state; “the use of terminology unexpected of a child of similar age;” and the lack of a motive to fabricate. Wandahsega, Op. at 14.

            A couple of sentencing issues are also worth noting. A 5-level “pattern of activity” enhancement was applied under U.S.S.G. § 4B1.5(b)(1). There was evidence that the sexual conduct occurred on more than one occasion and the present offense of conviction can be one of “the two required occasions of prohibited sexual conduct for § 4B1.5(b)(1)’s enhancement[.]”  Wandahsega, Op. at 20.

            Although Mr. Wandahsega was acquitted of aggravated sexual abuse (18 U.S.C. § 2241(c)), that conduct was used to enhance his sentence under U.S.S.G. § 2A3.4(c)(1) because the government proved by a preponderance of the evidence that he committed the abuse. That ruling was upheld because the district court properly relied on the child’s testimony and his statements to other witnesses and Mr. Wandahsega was not sentenced above the statutory maximum.

            Lastly, the Sixth Circuit upheld the imposition of a mandatory $5,000 assessment under the Justice for Victims of Trafficking Act (JVTA), 18 U.S.C. § 3014(a)(2). The assessment is imposed “on any non-indigent person or entity convicted of an offense” relating to sexual abuse. Defendants have “20 years after the release from imprisonment” to pay the assessment. The district court is not required to make detailed factual findings if it can be inferred that the defendant’s ability to pay and other factors required by law were considered by the court.            

            Mr. Wandahsega maintained that he was indigent when he was sentenced because he had appointed counsel and the district court determined that he was unable to pay a fine. The Sixth Circuit stated that eligibility for appointed counsel was “probative but not dispositive” of indigency. Wandahsega, Op. at 25 (citation omitted). The PSR indicated that Mr. Wandahsega had $200 in a checking account and medical bills totaling $30,000 and he thought he could be employed after he got out of prison. The PSR concluded that Mr. Wandahsega could make incremental payments on the assessment. The defense did not object to the assessment so the issue was reviewed for plain error.

            In assessing indigency, the court considers whether the defendant is presently impoverished and whether he has “the means to provide for himself so that he will not always be impoverished.”  Wandahsega, Op. at 24 (citation omitted) (emphasis original). Thus, one’s future earning potential can be considered in determining indigency. Mr. Wandahsega argued that his substance abuse, mental health issues, and sex offense conviction would hinder his earning potential. The Sixth Circuit in upholding the assessment noted that Mr. Wandahsega did not address why he could not earn money while he was in prison and even if he had a minimum wage job upon release, he had not shown that “he will be unable to pay the assessment in increments over a twenty-year period.” Wandahsega, Op. at 25. The Sixth Circuit’s ruling underscores the need for counsel to be proactive at sentencing to establish a client’s indigency.