Appeal from the United States District Court for the Northern District of Iowa.
The opinion of the court was delivered by: John R. Gibson, Circuit Judge.
Submitted: February 12, 2008
Before WOLLMAN, JOHN R. GIBSON, and SHEPHERD, Circuit Judges.
James Howard Bentley was sentenced to 1200 months' incarceration after being convicted by a jury of six counts relating to child pornography: two counts of sexual exploitation of a child under 18 U.S.C. § 2251(a) and (c); two counts of possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B) and (b)(2); and two counts of interstate transportation of child pornography under 18 U.S.C. § 2252A(a)(1) and (b)(1). He appeals his conviction on three grounds: (1) the district court*fn1 limited his cross-examination of government witnesses in violation of his Sixth Amendment rights; (2) the prosecution engaged in misconduct during trial; and (3) the testimony of two trial witnesses should have been excluded under Federal Rule of Evidence 403. We affirm.
Bentley regularly babysat overnight for J.G., a ten-year-old girl. On occasion, when he babysat for J.G., he would also watch L.G., J.G.'s younger sister. J.G., who is now deceased, and L.G. are the daughters of Bentley's former girlfriend, Trena Gage. J.G. called Bentley "dad." Bentley often babysat for J.G. on weekends when his wife, Richelle Bentley, was at work. Richelle testified that sometimes when Bentley babysat for J.G., Richelle would take their own children to another babysitter. In October or November 2003, Bentley took 10 Polaroid photographs of J.G. and L.G. at his home in Cedar Rapids, Iowa. The photographs of J.G. depicted her nude and provocatively posed on Bentley's bed. Her genitals were exposed in them. There was only one photograph of L.G., who was then one year old. That photo focused on her nude genitals and showed her legs held aloft by an adult hand that Richelle recognized as Bentley's.
Bentley moved to Arkansas with his family for a brief period. After the move, Richelle discovered the photographs in Bentley's coat pocket. Richelle showed the photos to her aunt, Tina Hartson, and a neighbor, Stacey Lindsey. Stacey Lindsey is married to Roger Lindsey, who was Bentley's best friend. Roger Lindsey did not see the photos, but the women discussed them with him. Richelle ultimately returned them to Bentley's coat pocket.
Richelle later confronted Bentley regarding the photographs. He first denied knowing that the photographs existed. He later acknowledged that he had seen the photographs, but claimed that they were not his. He told Richelle that he had found them under an air conditioner in their home in Cedar Rapids, Iowa. Bentley said that he would send the photographs to Trena Gage so that she could take action on them. Bentley then took them back from Richelle, and there is no evidence that anyone has seen them since. In a separate conversation, Bentley told Hartson that he found the photos under an air conditioner on the second floor of the house in Cedar Rapids, and that he had brought them to Arkansas to burn them. He also told Roger Lindsey that he found them in the basement of the house in Cedar Rapids.
After Bentley returned with his family to Iowa, he resumed contact with Trena Gage. He resumed baby-sitting for J.G., including overnight visits. Bentley did not tell Trena Gage about the photographs, nor did he give them to her.
In November 2004, Bentley was arrested on a state law charge of sexual abuse based on allegations that he molested J.G.*fn2 He waived his Miranda rights and was interviewed by Cedar Rapids Police Officer Anne Deutmeyer. During this interview, Bentley denied knowing of or possessing the photographs of J.G. and L.G., and he stated that his inability to recall anything about the photographs may have been caused by excessive drinking while he was living in Arkansas.
Neither J.G. nor L.G. was able to testify at trial. J.G. was abducted and murdered by Bentley's brother, Roger Bentley,*fn3 while Bentley was in custody on the state law sexual abuse charges. L.G. was unable to testify because she had been an infant at the time of the charged conduct.
Both Bentley and the government submitted motions in limine. Bentley sought to exclude (1) a videotaped interview of J.G. with child protection workers at St. Luke's hospital, in which she described being sexually abused by Bentley, including allegations that he took naked photographs of her and L.G.; (2) the testimony of a play therapist who interviewed J.G.; and (3) the testimony of two witnesses, A.J. and C.T., who alleged that Bentley sexually molested them when they were children. The court granted Bentley's motion with respect to the interview of J.G. and the testimony from the play therapist. The court denied Bentley's motion with respect to A.J. and C.T., finding that their testimony was admissible under Federal Rule of Evidence 414, which permits the introduction of propensity evidence in child molestation cases.
In its motion, the government sought to admit Bentley's statements to Richelle Bentley, Tina Hartson, and Roger Lindsey about where he found the photographs and what he planned to do with them. The government sought to exclude other statements Bentley made to the same individuals, in which he said that he believed the photographs belonged to his brother, Roger Bentley. The court granted the government's motion in full.
Bentley first contends that his Sixth Amendment rights were violated when the district court limited his cross-examination of Tina Hartson, Stacey Lindsey, Roger Lindsey, and Officer Anne Deutmeyer. Bentley argues that the court unfairly restricted his ability to develop his defense theory that his brother, Roger Bentley, had taken the photographs of J.G. and L.G. The government argues that the trial court correctly ruled that the responses called for irrelevant speculation and hearsay.
"We review evidentiary rulings regarding the scope of cross examination for abuse of discretion, but where the Confrontation Clause is implicated, we consider the matter de novo." United States v. Kenyon, 481 F.3d 1054, 1063 (8th Cir. 2007) (citations omitted). The Confrontation Clause of the Sixth Amendment is violated when cross-examination is limited to such a degree that "the trial court did not permit defense counsel to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the credibility of the witness." Delaware v. Fensterer, 474 U.S. 15, 19 (1985) (quotation marks omitted). If the limits imposed violate the right of confrontation, we must "consider whether the record shows 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" United States v. Love, 329 F.3d 981, 985 (8th Cir. 2003) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986)).
Bentley argues that his ability to present his defense was hampered when the district court excluded testimony from some of the government witnesses that they originally believed that his brother, Roger Bentley, took the photographs of J.G. and L.G. On cross-examination, Bentley's counsel asked Tina Hartson whether she assumed Roger had taken the photographs when she first saw them. Later, Bentley's counsel asked Hartson about whether, in a previous deposition, she had said that she did not believe Bentley took them. The district court did not allow Hartson to respond. Similarly, during Stacey Lindsey's cross-examination, Bentley's counsel asked her whether her husband, Roger Lindsey, had talked to her about where he thought the "photographs derived from." After Stacey Lindsey answered, "Yes," the government objected and the court struck the question and answer. Similarly, the ...