Bintz, Robert v. Bertrand, Daniel

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2682
ROBERT BINTZ,
Petitioner-Appellant,
v.
DANIEL BERTRAND,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03 C 0574—Lynn Adelman, Judge.
____________
ARGUED JANUARY 11, 2005—DECIDED APRIL 7, 2005
____________
Before POSNER, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge. Robert Bintz and his brother,
David Bintz, were convicted, in separate Wisconsin state
court proceedings, of murdering a bartender, Sandra Lison.
After failing in his state appellate challenge to his convic-
tion, Robert sought habeas corpus relief in the United States
District Court for the Eastern District of Wisconsin, asserting
that the state courts improperly allowed hearsay statements
to be used against him at trial. The Eastern District denied
the petition for writ of habeas corpus, and Robert appeals.
We affirm.
2 No. 04-2682
I
Sandra Lison was last seen alive tending bar at the
Good Times bar (“Good Times”) in Green Bay, Wisconsin
on August 3, 1987. Her body was later discovered in a forest.
As part of the initial investigation into Lison’s murder in
1987, Green Bay Police Detective Lawrence Pamperin took
a statement from David Bintz (the “Pamperin Statement”) in
which David admitted that he and his brother Robert Bintz
had visited Good Times the day of Lison’s disappearance.
David stated that he had driven Robert and a friend to Good
Times to buy a case of beer that evening. David waited in the
car while they went inside. After they returned home, David
became upset with the price charged for the beer and called
Good Times, threatening to blow it up. David told Pamperin
that he subsequently passed out. No one was charged at
that time with Lison’s murder.
Over ten years later, in 1998, David was in prison at the
Oshkosh Correctional Institution for an unrelated crime. His
cellmate, Gary Swendby, heard David talk in his sleep about
killing someone. In particular, David shouted “make sure
she’s dead.” Swendby asked David about the nocturnal
shouts, and David responded that he had been involved in
Lison’s murder. David told Swendby that he and Robert
had decided to rob Good Times for overcharging them on
beer, then decided to kill Lison after realizing that she could
identify them. David further stated that he repeatedly
commanded his brother to make sure that Lison was dead,
confiding to Swendby that they disposed of the body “up
north.”
After hearing David’s story, Swendby went to prison
officials with news of David’s involvement in Lison’s murder.
Prison officials contacted the Green Bay Police Department,
which interviewed Swendby and other inmates regarding
No. 04-2682 3
David’s comments about the murder. Eventually, Green Bay
Police Detective Robert Haglund confronted David with
Swendby’s statement, and David confirmed that it was true
(the “Haglund Admission”). David also supplied Haglund
with additional facts about Robert beating and strangling
Lison. David, however, said that he (David) did not kill
anyone.
Both brothers were charged with the murder of Lison. A
joint preliminary hearing was held, though David and
Robert were then tried separately. In May 2000, David went
to trial, and Swendby testified against him. David was con-
victed of first-degree murder.
At Robert’s trial in July 2000, David was called to testify,
but invoked his Fifth Amendment right against self-incrim-
ination. The court concluded that David was unavailable be-
cause of his assertion of the Fifth Amendment, and allowed
David’s statements to Swendby, Haglund, and Pamperin
into evidence as “statement against penal interest” excep-
tions to the hearsay rule. Swendby had been killed in an
automobile accident between the trials. The court concluded
that Swendby, like David, was an unavailable witness and
admitted his testimony from David’s trial and the joint
preliminary hearing. Other inmates from Oshkosh also
testified that David had made comments to them about the
murder (the “Oshkosh Testimony”). The court decided that
none of this evidence impinged upon Robert’s rights under
the Confrontation Clause of the Sixth Amendment to the
Constitution (“Confrontation Clause”). In addition, at trial
the prosecution offered evidence from Joan Andrews, a
former girlfriend who testified that Robert spontaneously
spoke to her about the murder. During a car ride with
Andrews, Robert recounted that he and his brother felt
Lison move in the back of the car while David was driving.
Like his brother, Robert was convicted of murder.
4 No. 04-2682
In 2001, Robert appealed his conviction to the Wisconsin
Court of Appeals, claiming that the introduction of the
Pamperin Statement and Swendby’s testimony, particularly
comments from David to Swendby, violated Robert’s
Confrontation Clause rights because he had no opportunity
to cross-examine David or Swendby. The Court of Appeals
disagreed and affirmed the conviction in 2002, analyzing the
challenge under the framework provided by the
United States Supreme Court in Ohio v. Roberts, 448 U.S. 56
(1980), and Lilly v. Virginia, 527 U.S. 116 (1999) (plurality
opinion). Robert then appealed to the Wisconsin Supreme
Court. In his petition to the Wisconsin Supreme Court,
Robert only argued two violations of the Confrontation Clause:
(1) the Pamperin Statement; and (2) David’s statements to
Swendby introduced through Swendby at David’s trial. The
Wisconsin Supreme Court declined review.
In June 2003, Robert filed a petition for writ of
habeas corpus in the United States District Court for the
Eastern District of Wisconsin, pursuant to 28 U.S.C. § 2254.
Before the district court, Robert challenged the Oshkosh
Testimony, as well as the previously challenged statements
of David and Swendby. After the initial briefs were filed,
the United States Supreme Court issued its decision in
Crawford v. Washington, 124 S. Ct. 1354 (2004), which ad-
dressed the continuing validity of the Roberts/Lilly frame-
work for Confrontation Clause analysis. Robert then filed a
supplemental brief in the district court regarding the
applicability of Crawford. The district court denied the
habeas petition. It first found that Robert had procedurally
defaulted on his challenge to the Oshkosh Testimony. The
district court further concluded that Crawford did not apply
at the time of the state court rulings and that the introduc-
tion of the statements from David and Swendby did not vio-
late the then-applicable Supreme Court precedent regarding
the Confrontation Clause. Robert appeals.
No. 04-2682 5
II
A
Before addressing Robert’s Confrontation Clause argu-
ment, we must first determine what statements are actually at
issue. In his brief before this court, Robert objects to four
pieces of evidence offered at trial: (1) the Pamperin
Statement; (2) Swendby’s previous testimony concerning
statements from David to Swendby about the murder; (3)
1
the Haglund Admission; and (4) the Oshkosh Testimony.
The State of Wisconsin contends that Robert has procedur-
ally defaulted on any challenges to the latter two statements
by failing to raise these objections at every level of the state
court proceedings.
According to 28 U.S.C. § 2254(b)(1)(A), a habeas petition
shall not be granted unless the petitioner “has exhausted the
remedies available in the courts of the State.” The petitioner
must establish that he fully and fairly presented his claims
to the state appellate courts, thus giving the state courts a
1
This footnote compiles the statements at issue for ease of
reference.
• Pamperin Statement: David Bintz’s 1987 comments to Detective
Pamperin regarding his activities on the night of Lison’s
murder.
• Haglund Admission: David Bintz’s 1998 statement to Detective
Haglund confirming Swendby’s statement that David had
admitted to being involved in Lison’s murder.
• Swendby’s testimony: Testimony by Swendby at David Bintz’s
trial regarding comments David made to Swendby about
Lison’s murder.
• Oshkosh Testimony: Testimony by Oshkosh inmates at David
Bintz’s trial regarding comments David made to them about
Lison’s murder.
6 No. 04-2682
meaningful opportunity to consider the substance of the
claims that he later presents in his federal challenge. See,
e.g., Harris v. McAdory, 334 F.3d 665, 668 (7th Cir. 2003). Fair
presentment requires that the petitioner assert his claims
through one complete round of state court review. See, e.g.,
Lewis v. Sternes, 390 F.3d 1019, 1025-26 (7th Cir. 2004). In the
state courts, the petitioner must present both the operative
facts and legal principles that control each of his claims. See
Rittenhouse v. Battles, 263 F.3d 689, 695-96 (7th Cir. 2001). “A
habeas petitioner who has exhausted his state court reme-
dies without properly asserting his federal claim at each
level of state court review has procedurally defaulted that
claim.” Lewis, 390 F.3d at 1026. If a petitioner has procedur-
ally defaulted his claim,
he may obtain federal habeas relief only upon a show-
ing of cause and prejudice for the default or upon a
showing that a failure to grant him relief would work a
fundamental miscarriage of justice. A fundamental
miscarriage of justice occurs when “a constitutional
violation has probably resulted in the conviction of one
who is actually innocent.”
Moore v. Casperson, 345 F.3d 474, 484 (7th Cir. 2004) (quoting
Thomas v. McCaughtry, 201 F.3d 995, 999 (7th Cir. 2000)).
Cause for a default is ordinarily established by showing that
some external obstacle prevented the petitioner from
presenting his claim to the state courts. See Lewis, 390 F.3d
at 1026.
Against this backdrop, we consider whether Robert de-
faulted on his Confrontation Clause challenges related to the
Haglund Admission and the Oshkosh Testimony. In Robert’s
initial brief on direct appeal to the Wisconsin Court of
Appeals, he only referenced the Haglund Admission once
and did not present any argument regarding its admissibil-
No. 04-2682 7
ity. In its response brief in the direct appeal, Wisconsin
specifically pointed out that Robert did not challenge the
Haglund Admission. Robert neither challenged this char-
acterization nor introduced this issue in his reply brief in the
state appellate court. Likewise, he did not address the
Haglund Admission in his petition for review to the Wis-
consin Supreme Court. Accordingly, Robert failed to fully
and fairly present this issue to the Wisconsin courts, and so
procedurally defaulted on any claim relating to the Haglund
Admission.
Robert still could qualify for habeas relief regarding the
Haglund Admission if he could establish cause for the
procedural default or a fundamental miscarriage of justice.
Robert, however, has shown neither an external impediment
that led to the procedural default nor that the procedural
default would cause a fundamental miscarriage of justice.
Robert states in his reply brief that failure to consider the
constitutionality of the Haglund Admission would result in
a fundamental miscarriage of justice, but fails to develop
this argument or show that he was actually innocent. His
conclusory statement is insufficient to obtain habeas relief.
Robert cannot avoid the effects of the procedural default of
2
his claim relating to the Haglund Admission.
Robert’s challenge to the Oshkosh Testimony encounters
similar, though not identical, problems. The district court
found procedural default regarding the Oshkosh Testimony,
a ruling that we review de novo. See Lewis, 390 F.3d at 1025.
2
It also appears that Robert failed to challenge the Haglund
Admission before the district court, making only a few general
references to it. This would constitute an independent ground
barring Robert from pursuing his claim. See Winsett v. Washington,
130 F.3d 269, 273 (7th Cir. 1997) (“Normally, a party waives those
issues it fails to raise in the district court.”).
8 No. 04-2682
It appears that Robert did raise this issue in his initial brief
before the Wisconsin Court of Appeals. Robert, however,
never presented the Oshkosh Testimony to the Wisconsin
Supreme Court in his petition for that court to review the
decision of the Wisconsin Court of Appeals. While the
Wisconsin Supreme Court denied his petition for review,
Robert was still required to present the issue to it. See
O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (“Boerckel’s
failure to present three of his federal habeas claims to the
Illinois Supreme Court in a timely fashion has resulted in a
procedural default of those claims”); Moore, 345 F.3d at 485-
86 (Wisconsin Supreme Court’s discretion to grant judicial
review is similar to that of the Illinois Supreme Court, and
Boerckel requires presentation of all issues to that court).
Robert does not argue either cause for his procedural de-
fault or that the procedural default would cause a funda-
mental miscarriage of justice. As Robert failed to properly
exhaust his state remedies, he has procedurally defaulted
his challenge to the Oshkosh Testimony.
B
Having removed the underbrush, we now turn to Robert’s
remaining argument—that two pieces of evidence intro-
duced at trial violated Robert’s rights under the Confronta-
tion Clause, entitling him to habeas relief. “In an appeal
from a ruling on a petition for habeas relief, we review the
district court’s findings of fact for clear error and its rulings
on issues of law de novo.” Denny v. Gudmandson, 252 F.3d
896, 900 (7th Cir. 2001). To qualify for habeas relief, Robert
must show that the state court proceedings adjudicating his
claim “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1).
No. 04-2682 9
1. Consideration of New Supreme Court Decisions
As a general matter, we look at the Supreme Court’s
holdings as of the time of the relevant state court decision to
determine clearly established federal law. See Lockyer
v. Andrade, 538 U.S. 63, 71-72 (2003). The Supreme Court
prohibits analyzing the reasonableness of a state court de-
termination in light of a “new” Supreme Court rule pro-
pounded after the state court made its decision. See Teague
v. Lane, 489 U.S. 288, 301 (1989).
In general, . . . a case announces a new rule when it
breaks new ground or imposes a new obligation on
the States or the Federal Government. . . . To put it
differently, a case announces a new rule if the result was
not dictated by precedent existing at the time the defen-
dant’s conviction became final.
Id. (emphasis in original). Teague does allow two types of
new rules as “exceptions” to its bar: “(1) new rules that
place certain kinds of primary, private individual conduct
beyond the power of the criminal law-making authority to
proscribe, and (2) rules that define procedure implicit in the
concept of ordered liberty.” Mankarious v. United States, 282
3
F.3d 940, 943 (7th Cir. 2002). A new rule qualifies for the
latter exception (and applies retroactively) if it is a water-
shed rule that implicates the fundamental fairness and
accuracy of the criminal proceeding. See Spreitzer v. Peters,
114 F.3d 1435, 1448 (7th Cir. 1997); Lambert v. McBride, 365
F.3d 557, 562 (7th Cir. 2004).
3
“Rules that fall within what we have referred to as Teague’s first
exception ‘are more accurately characterized as substantive rules
not subject to [Teague’s] bar.’ ” Beard v. Banks, 124 S. Ct. 2504, 2510
n.3 (2004) (quoting Schriro v. Summerlin, 124 S. Ct. 2519, 2523 n. 4
(2004)).
10 No. 04-2682
2. Application of Teague Principles to Crawford
Robert contends that we should review his state court
conviction in light of the Confrontation Clause principles
regarding hearsay statements of unavailable witnesses an-
nounced by the Supreme Court in Crawford v. Washington,
124 S. Ct. 1354 (2004). As the Supreme Court decided Crawford
after the Wisconsin Supreme Court denied Robert’s petition
for review, we begin by determining whether Crawford an-
4
nounced a new rule according to Teague and its progeny.
We first examine the state of Supreme Court Confrontation
Clause jurisprudence before Crawford and decide whether
Crawford was a departure from the precedent. This is the
first time that this issue has been directly presented for
ruling in this circuit. See Owens v. Frank, 394 F.3d 490, 501 n.
8 (7th Cir. 2005) (expressly reserving the question of
whether Crawford should be applied retroactively).
The Confrontation Clause guarantees an accused the right
“to be confronted with the witnesses against him.” U.S.
Const. Amend. VI; Pointer v. Texas, 380 U.S. 400, 403 (1965)
(applying Sixth Amendment to the States by virtue of the
Fourteenth Amendment). Prior to Crawford, the Supreme
Court authorized the introduction of hearsay statements
against a criminal defendant in certain circumstances. By their
nature such statements do not afford the opportunity for
cross-examination of the person who made them. See
4
“A state conviction and sentence become final for purposes of
retroactivity analysis when the availability of direct appeal to the
state courts has been exhausted and the time for filing a petition
for a writ of certiorari has elapsed or a timely filed petition has
been finally denied.” Spreitzer v. Peters, 114 F.3d 1435, 1442 (7th
Cir. 1997) (quoting Stewart v. Lane, 60 F.3d 296, 300 (7th Cir.
1995)). The Wisconsin Supreme Court denied Robert’s petition for
review on October 21, 2002.
No. 04-2682 11
Roberts, 448 U.S. at 65-68. In Roberts, the Supreme Court
noted the Framers’ preference for face-to-face accusation,
but carved an exception to allow the introduction at trial of
statements from witnesses who were unavailable to testify.
See id. at 65-66. The Supreme Court held that if a hearsay
declarant is found to be unavailable at trial, his statement
still can be admissible if: (1) it bears adequate “indicia of
reliability” by falling within a firmly rooted hearsay ex-
ception; or (2) it contains “particularized guarantees of
trustworthiness.” Id. at 66.
In 1999, the Supreme Court confirmed that the general
framework of Roberts remained valid. See Lilly, 527 U.S. at
124-25. In that case, the Supreme Court determined that a
statement against penal interest, which incriminated both
the declarant and the defendant, did not constitute a firmly
rooted exception to the hearsay bar under the first prong of
Roberts. See id. at 134. The Supreme Court was concerned
about a declarant who, under police interrogation, incul-
pated himself to a minor extent, while shifting the bulk of
the blame to the defendant. See id. at 121. Moving to the
second prong of the Roberts analysis, the Supreme Court de-
cided that Virginia had not offered sufficient particularized
guarantees of trustworthiness. See id. at 138-39. Therefore,
the hearsay statements were inadmissible. See id. at 139-40.
Lilly, however, did not fundamentally disturb either the
Roberts framework or disrupt its ruling that an unavailable
declarant’s statements could be used at trial in certain
circumstances.
In 2004, however, Crawford overruled Roberts. See
Crawford, 124 S. Ct. at 1374. The Supreme Court held that the
Confrontation Clause required that testimonial statements
from witnesses absent from trial should be admitted only
when the declarant is unavailable and the defendant had a
prior opportunity to cross-examine. See id. The Supreme
12 No. 04-2682
Court concluded that the Roberts test departed from this
principle by allowing a “jury to hear evidence, untested by
the adversary process, based on a mere judicial determina-
tion of reliability.” Id. at 1370. “The unpardonable vice of the
Roberts test, however, is . . . its demonstrated capacity to
admit core testimonial statements that the Confrontation
Clause plainly meant to exclude.” Id. at 1371.
It seems clear that Crawford was a clean break from the
line of precedent established by Roberts. Crawford considered
and rejected the continuing application of Roberts. Neverthe-
less, a state court would not have acted unreasonably by
failing to anticipate this ruling and applying Roberts. See
O’Dell v. Netherland, 521 U.S. 151, 156 (1997) (“At bottom,
the Teague doctrine ‘validates reasonable good-faith inter-
pretations of existing precedents made by state courts even
though they are shown to be contrary to later decisions.’ ”)
(citations omitted). Crawford was thus a new rule for
purposes of Teague.
This conclusion does not end the Teague analysis, however.
We must also determine whether Crawford might apply ret-
roactively based on the two exceptions to the Teague rule.
See Teague, 489 U.S. at 307, 310. Regarding the first, Crawford
does not place certain types of conduct outside of the
criminal law-making power to punish, and, therefore, the
only issue is whether Crawford announced a watershed rule
implicating the fundamental fairness and accuracy of the
criminal proceeding.
In Teague, the Supreme Court limited this exception to
“those new procedures without which the likelihood of an
accurate conviction is seriously diminished.” Teague, 489
U.S. at 313. The example that the Supreme Court has used
for this exception is Gideon v. Wainwright, 372 U.S. 335, 343
(1963), which established an affirmative right to counsel in
No. 04-2682 13
felony cases. See O’Dell, 521 U.S. at 167. “And, because any
qualifying rule ‘would be so central to an accurate determi-
nation of innocence or guilt [that it is] unlikely that many
such components of basic due process have yet to emerge,’
it should come as no surprise that we have yet to find a new
rule that falls under the second Teague exception.” Beard, 124
S. Ct. at 2513-14 (internal citations omitted).
Crawford does not rise to this level. While important,
it does not introduce any fundamentally new concepts to
address the fairness or accuracy of a trial; instead it calls for
a complete implementation of a protection that already
exists—the Confrontation Clause. Further, it is unclear that
Crawford’s modification to the hearsay rules will markedly
improve the accuracy of convictions. See Mungo v. Duncan,
393 F.3d 327, 335-36 (2d Cir. 2004) (noting that, while some
inaccurate evidence will be barred under the new rule,
“Crawford also precludes admission of highly reliable testi-
monial out-of-court statements that would have been admis-
sible under the old rules.”). Crawford is not a guarantee of
accuracy, but an extension of the full constitutional protec-
tions of the Sixth Amendment. While the two concepts
overlap, they are not synonymous. Crawford, therefore, is
not a watershed change for purposes of the second Teague
5
exception and does not apply retroactively.
5
We are not alone in reaching this conclusion. See Brown v.
Uphoff, 381 F.3d 1219, 1227 (10th Cir. 2004) (“We conclude that
Crawford is not a watershed decision and is, therefore, not re-
troactively applicable to Brown’s initial habeas petition.”); Mungo
v. Duncan, 393 F.3d 327, 336 (2d Cir. 2004) (“we conclude that
Crawford is not a watershed rule.”)
14 No. 04-2682
3. Analysis under pre-Crawford Confrontation Clause Precedent
We proceed, therefore, to analyze Robert’s Confrontation
Clause claims according to Roberts and Lilly, the clearly es-
tablished Supreme Court precedent at the time of the state
6
court decisions. Robert first challenges the introduction of
the Pamperin Statement at his trial. At the time of Robert’s
trial, an accomplice’s confession inculpating a criminal
defendant did not qualify as a firmly rooted hearsay excep-
tion, so the statement had to bear particularized guarantees
of trustworthiness to be admissible. See Lilly, 527 U.S. at 135.
Particularized guarantees of trustworthiness exist if the
totality of the circumstances surrounding the statement in-
dicate that the statement is “so trustworthy that adversarial
testing would add little to its reliability.” Idaho v. Wright, 497
U.S. 805, 821 (1990). The Supreme Court declined to endorse
a mechanical test to determine the particularized guarantees
of trustworthiness for purposes of the Confrontation Clause.
See id. at 822. The Supreme Court has previously stated that
“the very fact that a statement is genuinely self-
inculpatory . . . is itself one of the ‘particularized guarantees
of trustworthiness’ that makes a statement admissible under
the Confrontation Clause.” Williamson v. United States, 512
U.S. 594, 605 (1994). Additionally, a high level of detail in a
statement and the “absence of any offer of leniency”
undercut a motive to lie and provide assurances of trust-
worthiness. See Brown v. Uphoff, 381 F.3d 1219, 1228 (10th
Cir. 2004).
6
Robert also asks this court to reconsider whether the AEDPA
effectively codified Teague and its exceptions, but fails to give any
reason why we should disturb our ruling in Gosier v. Welborn, 175
F.3d 504, 510 (7th Cir. 1999). Therefore, we will not do so.
No. 04-2682 15
In this case, the Pamperin Statement contained the required
particularized guarantees of trustworthiness to satisfy the
post-Lilly Confrontation Clause analysis. First, David ac-
tually inculpated himself in the Pamperin Statement. While
the Pamperin Statement did not contain any admissions
regarding the murder, it was genuinely self-inculpatory for
David in that it placed him at the murder scene several
hours before the murder. This is precisely the same evidence
that Robert opposes based on its inculpatory value for him.
The Pamperin Statement, however, had an even greater
inculpatory effect for David, as he also admitted calling
Good Times with a bomb threat.
The inculpatory nature of the Pamperin Statement is not
its only particularized guarantee of trustworthiness. The
Pamperin Statement was given without any offer of leniency
by police. This makes sense, as David was neither detained
by police nor threatened with any prosecution in 1987. In
short, David was facing none of the pressures that might
give an incentive to shift blame to another person. This
differs in all material respects with the situation in Lilly, in
which a suspect was taken into custody, asked leading
questions in a police interrogation, and threatened with
prosecution. See id. at 121-22. The Pamperin Statement also
had a relatively high degree of detail regarding what the
brothers and their friend did on the night of August 2, 1987.
Given these factors, we cannot say that the Wisconsin Court
of Appeals acted unreasonably in determining that the
Pamperin Statement bore particularized guarantees of
trustworthiness.
Robert also claims that the introduction of Swendby’s
statements from David’s trial regarding David’s admissions
to him constituted a Confrontation Clause violation. While
there are two levels of hearsay in this evidence, Robert only
challenges the statements of David to Swendby as violative
16 No. 04-2682
of his Confrontation Clause rights. Robert contends that,
since prison officials were involved in procuring the state-
ments, the Wisconsin Court of Appeals incorrectly con-
cluded that the statements bore particularized guarantees of
trustworthiness.
However, David’s statements to Swendby occurred after
Swendby asked David about his sleeptalking. At this time,
there was no involvement by either police or prison author-
ities. David then confided in Swendby, admitting that he
committed the murder with his brother and offering some
details. This court has held that jailhouse confessions to
cellmates “are also trustworthy and admissible,” satisfying
the requirement of particularized guarantees of trustworthi-
ness. United States v. Westmoreland, 240 F.3d 618, 627-28 (7th
Cir. 2001). Only after David confessed to him did Swendby
inform authorities who asked him to gather more informa-
tion. This after-the-fact involvement by the authorities does
not make David’s statements to Swendby untrustworthy.
The Wisconsin Court of Appeals acted reasonably in
concluding that these statements had particularized guaran-
tees of trustworthiness.
C
Additionally, even if we were to find that the trial court
committed some constitutional violation in admitting the
Pamperin Statement or Swendby’s testimony, we would
deem such a violation a harmless error in this case. Under
this analysis, a new trial is warranted if the error has a
substantial and injurious effect or influence on determining
the jury verdict. See Brecht v. Abrahamson, 507 U.S. 619, 638
(1993). “Even where the jury has been exposed to evidence
that is not properly before it, a defendant is not automati-
cally entitled to a new trial.” United States v. Gonzalez, 319
No. 04-2682 17
F.3d 291, 297 (7th Cir. 2003). A new trial is in order only if
the evidence had a prejudicial effect. See id. In this case, the
challenged evidence did not have a substantial effect in
determining the jury’s verdict because of the other evidence
presented at trial, which supported that finding. The
Pamperin Statement simply established that Robert pur-
chased beer from Lison’s bar on the day she was murdered.
While the statements from David to Swendby are more sub-
stantive, they are cumulative. David independently con-
firmed to the police in 1998 what he had told Swendby about
the murder. Inmates at Oshkosh also reported that David
told them about the murder, implicating both brothers. Fi-
nally, Andrews testified that Robert talked about the mur-
der with her. Given the amount of evidence establishing
that David and Robert committed the murder, any error
regarding the admission of the Swendby statements cannot
be held to be prejudicial.
III
Robert Bintz has failed to show that the Wisconsin courts
acted unreasonably when denying his Confrontation Clause
claims. Those claims that were not procedurally defaulted
were properly analyzed under the relevant Supreme Court
precedent. We AFFIRM the denial of the petition for writ of
habeas corpus.
18 No. 04-2682
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-7-05