U.S. v. Wipf
| Decision Date | 16 February 2005 |
| Docket Number | No. 03-2451.,03-2451. |
| Citation | 397 F.3d 677 |
| Parties | UNITED STATES of America, Appellee, v. Gary Lee WIPF, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Assistant Federal Public Defender, Scott F. Tilsen, argued, Minneapolis, MN, for appellant.
Assistant U.S. Attorney, Bridgid E. Dowdal, argued, Minneapolis, MN, for appellee.
Before MORRIS SHEPPARD ARNOLD, JOHN R. GIBSON, and SMITH, Circuit Judges.
Gary Wipf was convicted of multiple counts of aggravated sexual abuse and a single count of sexual abuse in the United States District Court.1 For reversal, Wipf argues that his Fourth, Fifth, and Sixth Amendment rights were violated. We find no error and affirm.
On April 4, 2002, twenty-one-year-old J.D. reported to Pat Mills, the Director of Public Safety of the Red Lake Tribal Police Department, that he had been molested by Gary Wipf during the time he attended St. Mary's Mission School on the Red Lake Indian Reservation in the early 1990s. J.D. explained that the molestation began while he was in the fourth grade and ceased at the end of his fifth-grade year. According to J.D., Wipf had taken explicit photographs of him and other young boys Wipf had molested. J.D. described multiple occasions of sexual activity including oral and anal sex at Wipf's residence, church, and school. In addition, J.D. explained that Wipf had videotaped him performing sexual acts.
Investigator Jason Lawrence, who was assigned to J.D.'s case, interviewed St. Mary's school counselor, Victoria Graves. Lawrence learned that Wipf held a position as a custodian and as a gym teacher for St. Mary's from 1990 through 1993, and from 1997 through the fall of 2001. From 1997 through 2001, Wipf coached St. Mary's boys' fifth-grade basketball and tribal youth recreation teams. Graves gave Lawrence the names of other boys linked to Wipf through St. Mary's.
Using these names, Lawrence interviewed two of the young men and then again talked to J.D. about Wipf. At this meeting, J.D. identified several additional boys who he suspected Wipf had abused. Lawrence then obtained tribal search and arrest warrants for Wipf's residence and person. At the time of his arrest, Wipf was on a game trip in Bemidji, Minnesota, with the St. Mary's fifth-grade basketball team. Wipf was found in a hotel room sharing a bed with one young boy and accompanied by four other young boys.
On that same day, Lawrence executed the search warrant at Wipf's home. During the search, Lawrence seized a number of videotapes, thirty-four rolls of undeveloped film, and thirty-two photo albums filled with photos of young boys. Police then obtained a second tribal search warrant for viewing the seized videotapes. One videotape contained graphic pornographic images of Wipf sexually assaulting a young boy identified as G.A.S.
Local authorities notified the Federal Bureau of Investigation (FBI). Based upon violation of federal child pornography laws, FBI Special Agent John Englehoff and Lawrence arrested Wipf, who had been released on bond, at his residence. Following arrest, Wipf was read his Miranda rights and transported to the Red Lake Law Enforcement Center.
At the Red Lake Law Enforcement Center, Englehoff and Lawrence interviewed Wipf. Englehoff reintroduced himself and Wipf asked, "Do I get a lawyer?" Englehoff advised Wipf that he would receive counsel, but Englehoff first wanted to advise Wipf of his Miranda rights, tell him the situation, and explain the charges against him. Englehoff then told Wipf that he had been arrested for possession of child pornography based on a number of tapes that had been seized from his home. At that point, Wipf said something to the effect of "you got me," or "you caught me." Wipf explained that he did not want to answer any questions, but Englehoff requested that Wipf reconsider his request for an attorney and talk to him about the victims who may require counseling. Wipf requested an attorney and the encounter ended.
Later, Englehoff arranged for J.D. and other juveniles to be interviewed by Dr. Darryl Zitzow, a psychologist. Confronted by Dr. Zitzow with the existence of video tapes, one of the interviewees, G.A.S., recounted how Wipf molested him.
Originally, a one-count indictment was filed in the District of Minnesota charging Wipf with possession of child pornography. Wipf immediately filed a motion to suppress his inculpatory custodial statement and filed a separate suppression motion for the evidence seized from his home. Following a hearing, Magistrate Judge Erickson recommended that Wipf's suppression motion be denied with respect to the custodial statements, but that the motion be granted with respect to the evidence seized from Wipf's home. The district court adopted the Magistrate Judge's recommendations.
The government filed a nine-count superseding indictment in the District of Minnesota charging Wipf with possession and manufacturing of child pornography; aggravated sexual abuse of J.D., a minor; sexual abuse of G.A.S., a minor; and transportation of a minor with intent to engage in sexual activity. Prior to trial, the government moved to dismiss the charges of possession and manufacturing of child pornography as they were predicated on evidence suppressed by the district court. In addition, the district court dismissed the charge of transportation of a minor with intent to engage in sexual activity. A jury convicted Wipf on the remaining charges, and the district court sentenced him to 480 months' imprisonment for the three counts of aggravated sexual abuse of J.D., and 180 months' imprisonment for the sexual abuse of G.A.S., all to be served concurrently.
Wipf first argues that the district court violated his Sixth Amendment right to confront witnesses by allowing Dr. Zitzow to testify about his interviews with J.D. and G.A.S. For support, Wipf points to United States v. Sumner, 204 F.3d 1182, 1185 (8th Cir.2000), where we held that the admission of a child-victim's hearsay statement to a clinical psychologist violated the Sixth Amendment Confrontation Clause. However, the child victim did not testify at trial in Sumner. We have explained that "the Confrontation Clause is ... satisfied when the hearsay declarant testifies at trial and is available for cross-examination." Bear Stops v. United States, 339 F.3d 777, 781 (8th Cir.2003). In this case, both J.D. and G.A.S. testified at trial and were available for cross-examination. Wipf has shown no violation of the Confrontation Clause with respect to Dr. Zitzow's testimony.2
Wipf also claims that the district court erred in admitting the statements of J.D. and G.A.S. under the medical diagnosis and treatment exception to the hearsay rule. See Fed. R. Evid 803(4). Even if a district court errs with respect to an evidentiary ruling, we will not reverse the conviction if the error was harmless. United States v. Lupino, 301 F.3d 642, 645 (8th Cir.2002). An evidentiary error is harmless if the substantial rights of the defendant were unaffected and the error did not influence or had only a slight influence on the verdict. United States v. Blue Bird, 372 F.3d 989 (8th Cir.2004). In this case, the trial testimony of both G.A.S. and J.D. mirrored the testimony of Dr. Zitzow. As such, Dr. Zitzow's testimony was merely cumulative and did not likely influence the jury. See, e.g., United States v. Balfany, 965 F.2d 575 (8th Cir.1992) ().
For his second point on appeal, Wipf contends that the district court impermissibly restricted his cross-examination of J.D. The United States Supreme Court has emphasized that "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam) (emphasis in original). Thus, "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); see also Newton v. Kemna, 354 F.3d 776, 781 (8th Cir.2004). We review a district court's decision to limit cross-examination for an abuse of discretion, reversing only if there has been clear abuse of discretion and a showing of prejudice to the defendant. United States v. Cody, 114 F.3d 772 (8th Cir.1997).
Following direct examination of J.D., Wipf sought to discredit him and establish a sinister motive for J.D.'s reporting Wipf's sexual abuse to authorities. According to Wipf, J.D. made the sexual-abuse claim in an attempt to exculpate himself from an alleged sexual assault. Wipf had only an unsubstantiated allegation found in a police report to support this impeachment theory. At the time J.D. made his report of abuse, he was neither under investigation nor suspected of any criminal activity. Given the lack of supporting evidence, we cannot say the district court abused its discretion in limiting this line of questioning.
Wipf relies on United States v. Love, 329 F.3d 981 (8th Cir.2003), where we held that a defendant's right of confrontation was violated in a prosecution for being a felon in possession of a firearm. The district court prohibited cross-examination of a key government witness as to his mental defects. Id. The witness testified that he observed the defendant with firearms, but the...
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