United States v. Arthur Neal ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-2629
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Arthur Robert Neal, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: November 15, 2010
Filed: February 9, 2011
___________
Before SMITH, BEAM, and BENTON, Circuit Judges.
___________
PER CURIAM.
In July 2009, a grand jury charged Arthur Neal in a two-count indictment with,
generally stated, the production of child pornography, and possession of child
pornography, in violation of 18 U.S.C. § 2251(a) and (e), and § 2252A(a)(5)(B) and
(b)(2), respectively. Neal pleaded guilty to the production charge and the court1
dismissed the possession charge on the government's motion.
1
The Honorable Linda R. Reade, Chief United States District Judge for the
Northern District of Iowa.
In support of Neal's guilty plea, he stipulated that in approximately 2008 he
induced a thirteen-year-old female to engage in sexually explicit conduct for the
purpose of producing visual depictions of the same. Neal knew the thirteen-year-old
victim because he occasionally supervised her. The photographs at issue in the instant
case were discovered by Neal's former roommate in April 2009 in the trailer that the
two had shared. In December 2008, the victim disclosed to her school nurse that she
had been sexually abused by Neal. Following this disclosure, the local Child
Protection Center conducted a videotaped interview with the victim where she
repeated the accusation.
At sentencing, Neal objected to the court's admission and consideration of the
videotaped recording of the victim's allegations of abuse, arguing that the video was
not reliable evidence and that the minor victim should testify. The district court
admitted the out-of-court statement after conducting a thorough review on the record
regarding the reliability of the video in light of what the court viewed as corroborating
evidence in the case. On appeal, Neal claims the district court abused its discretion
in finding that the hearsay statement of the minor victim was sufficiently reliable for
consideration at sentencing. He claims that the absence of a courtroom confrontation
leaves ample room for mistaken decision-making on these facts.
We review the decision to admit the victim's hearsay statement for sentencing
purposes for abuse of discretion, recognizing that the right of confrontation does not
apply in sentencing proceedings. United States v. Bastian, 603 F.3d 460, 466-67 (8th
Cir. 2010); United States v. Brown, 430 F.3d 942, 944 (8th Cir. 2005); United States
v. Wallace, 408 F.3d 1046, 1048 (8th Cir. 2005). Hearsay is admissible in sentencing
proceedings so long as it bears some indicia of reliability. United States v. Schlosser,
558 F.3d 736, 740 (8th Cir. 2009). Here, the district court was thorough and concise
in its colloquy articulating the indicium of reliability as to the video interview. On
this record we find no abuse of discretion. Accordingly, we affirm.
______________________________
-2-