United States v. Gallardo, No. 19-1282 (8th Cir. 2020)
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The Eighth Circuit affirmed defendant's conviction for two counts of Abusive Sexual Contact involving a child less than 12 years-old. The court held that the district court did not err by denying defendant's motion for acquittal; by admitting hearsay through a forensic interviewer's testimony and, even assuming that the district court abused its discretion in admitting the testimony, any error was harmless; by failing to instruct the jury on specific intent; and by failing to grant a mistrial because members of the public wore clothing with the words "Bikers Against Child Abuse" where no motion was filed, no juror indicated they had seen the insignia, and there was no prejudicial impact.
The court declined to reach the issues regarding the Speedy Trial Act and defendant's ability to testify in his own defense. Finally, the court held that the district court correctly rejected defendant's claim that because he is an Indian and 18 U.S.C. 1152 does not apply to offenses committed by one Indian against the person or property of another Indian.
Court Description: [Kobes, Author, with Erickson and Grasz, Circuit Judges] Criminal Case - conviction. Evidence was sufficient from victim to sustain conviction for two counts of abusive sexual contact involving a child less than twelve years old. District court did not abuse its discretion in admitting testimony of forensic interviewer, even though victim testified to some details and government failed to file notice. Even if admission was an abuse of discretion, any error was harmless; jury instruction relating to intent was not erroneous; failure to grant mistrial based on presence of visitors in the courtroom wearing biker vests saying "Bikers Against Child Abuse", was not error because no motion was filed, no juror indicated they had seen the regalia, and the error was not plain. Remaining claims (waiver of speedy trial, refusal to testify) concern claims of ineffective assistance of counsel which are best raised on collateral review. Claim that indictment was defective is without merit.
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