United States v. William See Walker ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3064
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of North Dakota.
William Paul See Walker, *
*
Appellant. *
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Submitted: March 15, 2006
Filed: June 20, 2006
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Before WOLLMAN, ARNOLD, and GRUENDER, Circuit Judges.
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ARNOLD, Circuit Judge.
William See Walker was convicted of one count of aggravated sexual abuse.
See 18 U.S.C. §§ 2241(c), 1153. He asserts on appeal that he was unfairly prejudiced
by the refusal of the district court1 to permit a defense expert to examine the child
whom he was accused of assaulting. He also contends that the district court erred in
determining that he was a career offender under the United States Sentencing
Guidelines. See U.S.S.G. 4B1.1. We affirm the judgment of the district court in all
respects.
1
The Honorable Patrick A. Conmy, United States District Judge for the District
of North Dakota.
Mr. See Walker was charged with aggravated sexual abuse after L.L., a seven-
year-old girl, alleged that he had placed his hands under her clothing and inserted his
fingers into her vagina. After L.L. reported the assault, she and her sister spoke with
Paula Condol, a forensic interviewer at a children's advocacy center in Bismarck,
North Dakota. Despite being present during the alleged events, L.L.'s sister was
unable to provide information, but L.L. described the assault to Ms. Condol.
A videotape of the interview between Ms. Condol and L.L. was played at Mr. See
Walker's trial, and Ms. Condol testified about the procedures used in the interview.
L.L. also testified at trial, and Mr. See Walker was convicted. After it was established
at sentencing that Mr. See Walker had previously been convicted of bank robbery and
rape, the district court found him to be a career criminal and thus imposed an
enhanced sentence of 360 months in prison.
I.
Mr. See Walker argues that he was unfairly prejudiced because the district court
refused to allow a defense expert to interview L.L. He contends that by refusing to
permit a clinical psychologist working for the defense to interview L.L., the trial court
unfairly deprived him of equal access to the evidence. We review the district court's
refusal for an abuse of discretion. United States v. Sumner, 119 F.3d 658, 663 (8th
Cir. 1997).
We have previously held that adversarial examination of this kind should be
ordered if the "denial of access would likely result in an absence of fundamental
fairness essential to the very concept of justice." United States v. Rouse, 111 F.3d
561, 568 (8th Cir. 1997) (internal quotation marks omitted), cert. denied, 522 U.S. 905(1997); see Lisenta v. California, 314 U.S. 219 (1941). Here, Mr. See Walker had
access to the videotaped statement, had the chance to cross-examine both Ms. Condol
and L.L., and could have presented expert testimony addressing what he saw as the
weaknesses of Ms. Condol's interviewing techniques. Given these numerous channels
for criticism and the fact that L.L. testified at trial, we do not think that the district
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court abused its discretion by refusing to permit Mr. See Walker's chosen psychologist
to interview L.L.
Additionally, Mr. See Walker seems to contend that the characterization of
Ms. Condol's interview as a "forensic investigation" by a trained employee improperly
bestowed an impression of credibility and veracity upon the contents of the interview,
and he asserts that this contributed to the prejudice. People calling themselves
forensic interviewers are commonly employed in these kinds of cases, see, e.g., United
States v. Bordeaux, 400 F.3d 548, 555-57 (8th Cir. 2005), and we see nothing in the
name that conveys an impression of truthfulness. We also note that Ms. Condol
expressed no opinion as to whether sexual abuse had occurred or whether L.L. was
truthful. See United States v. Whitted, 11 F.3d 782, 785-86 (8th Cir. 1993). We
conclude that Mr. See Walker's argument is without merit.
II.
Finally, Mr. See Walker argues that the present offense was not a crime of
violence and thus the district court erred in determining that he was a career offender
under the federal sentencing guidelines. See U.S.S.G. § 4B1.1. We review the district
court's interpretation of the guidelines de novo. United States v. Mohr, 407 F.3d 898,
901 (8th Cir. 2005), cert. denied, 126 S. Ct. 670 (2005).
The applicable guideline defines a crime of violence to include an offense
punishable by a term greater than one year in prison that "involves conduct that
presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2.
Identical language appears in the definition of "violent felony" in the Armed Career
Criminal Act, see 18 U.S.C. § 924(e)(2)(B)(ii), and we have interpreted that language
to require a categorical approach: The sentencing court does not consider the specific
conduct of the defendant, but instead determines whether the elements of the crime
involve conduct that " 'necessarily entails a serious potential risk of physical injury.' "
United States v. McCall, 439 F.3d 967, 970-71 (8th Cir. 2006) (en banc) (quoting
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United States v. Montgomery, 402 F.3d 48 2, 488 (5th Cir. 2005)). If the statute under
which the defendant was charged includes both conduct that presents a serious risk of
physical injury and conduct that does not, the sentencing court then examines the
charging document and jury instructions to determine whether the crime was a
"violent felony." Since the definition of “crime of violence” in § 4B1.2 is virtually
the same as the definition of “violent felony” in § 924(e), we have used the same
categorical approach to determine whether an offense is a crime of violence for
§ 4B1.2 purposes. United States v. Bockes, No. 04-3936, 2006 WL 1348571, *3
(8th Cir. May 18, 2006); United States v. Hollis, 2006 WL 1300596, *1 (8th Cir.
May 12, 2006).
Mr. See Walker was charged with and convicted of engaging and attempting
to engage knowingly in a sexual act with a person under the age of twelve years in
violation of 18 U.S.C. § 2241(c); the indictment alleged that the defendant committed
the act by intentionally touching the child's genitalia and penetrating her genital
opening with his hand and finger. We believe that this offense innately poses "a
serious potential risk of physical injury" because of the young age of the child.
U.S.S.G. § 4B1.2; cf. United States v. Alas-Castro, 184 F.3d 812, 813 (8th Cir. 1999)
(per curiam). In the past, we have concluded that offenses involving the fondling or
touching of a child's genitals were crimes of violence under 18 U.S.C. § 16(b) because
"by [their] nature" they involved “a substantial risk that physical force ... may be used
in the course of committing [them]," 18 U.S.C. § 16(b). Alas-Castro, 184 F.3d at 813-
14; United States v. Rodriguez, 979 F.2d 138, 140-41 (8th Cir. 1992). We are aware
that the definition of a crime of violence in § 16(b) differs somewhat from the one in
§ 4B1.2; the guideline, rather than focusing on the nature of the crime and the
likelihood that physical force will be used in committing it, considers the general risk
of injury that the offense poses. Leocal v. Ashcroft, 543 U.S. 1, 10 n.7 (2004);
McCall, 429 F.3d at 971. But we think that since a sexual crime against a young child
involves a substantial risk that physical force may be used in its commission, see Alas-
Castro, 184 F.3d at 813, the offense necessarily poses "a serious potential risk of
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physical injury" to the child who is the victim of that crime. U.S.S.G. § 4B1.2; see
United States v. Anderson, 438 F.3d 823, 825 (8th Cir. 2006). We conclude that Mr.
See Walker was convicted of a crime of violence for purposes of the career-offender
guideline.
III.
The district court's judgment is affirmed.
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