1

The Honorable Paul A. Magnuson, United States District Judge for the District

of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-2084

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Toua Hong Chang, *

*

Petitioner - Appellant, *

* Appeal from the United States

v. * District Court for the District

* of Minnesota.

State of Minnesota, *

*

Respondent - Appellee. *

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Submitted: January 16, 2008

Filed: April 1, 2008

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Before BYE, BEAM, and GRUENDER, Circuit Judges.

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BEAM, Circuit Judge.

A Ramsey County, Minnesota, jury convicted Toua Hong Chang of one count

of promoting prostitution of an individual under the age of eighteen for the benefit of

a gang and two counts of first-degree sexual conduct. After Chang exhausted his state

appeals, he petitioned the appropriate United States district court1

 for a writ of habeas

corpus. In his petition, Chang contended that the State of Minnesota violated his Sixth

Amendment right of confrontation at trial. The district court denied Chang's habeas
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petition, and granted him a certificate of appealability on the Sixth Amendment issue.

We affirm.

I. BACKGROUND

 Chang's convictions arose from the sexual assault allegations of four teenage

girls–X.L., T.T., P.H., and M.H. As part of the investigation into these allegations,

Detective Kevin Navara, of the Ramsey County Sheriff's Department, interviewed

each girl separately. Laurel Edinburgh, a nurse practitioner at Midwest Children's

Resource Center, also interviewed and examined X.L., P.H., and T.T., but not M.H.

At trial, only X.L., P.H., and T.T. testified. No one could locate M.H. and she

was unavailable to testify at the time of Chang's trial. During X.L.'s testimony, she

gave the following account: X.L. met Chang and one of his friends during the

summer of 2002. Chang would pick up X.L., P.H., and M.H. and take them to his

friend, Peter's, house. There they smoked methamphetamine. During X.L.'s third or

fourth visit to Peter's house, Chang told the girls they would have to either pay for the

methamphetamine or have sex with some men Chang knew. X.L. had no money, and

to satisfy Chang's demands, she had sex with two of the three men that Chang called

over to Peter's house. P.H. gave a similar account during her testimony. T.T. testified

that she knew X.L., P.H., and M.H, and that she had smoked methamphetamine with

them and Chang.

The three girls' testimony differed in one respect. X.L. testified that on one

occasion, Chang and his friend, Yang, picked her and P.H. up and took them to a

garage, where they smoked methamphetamine. While the girls were in the garage,

Chang left and later returned to find that Yang had spilled some of the

methamphetamine. Chang then loaded a large black gun and threatened to kill Yang

and the girls. Chang told the girls that they would have to have sex to pay for half of

the drugs. Chang then ordered Yang and X.L. to leave the garage. Only Chang and
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P.H. stayed in the garage. When P.H. exited the garage, she looked like she had been

crying. Later, on their way home, P.H. told X.L. that Chang had tied her up and

sexually assaulted her. During P.H.'s testimony, she stated that T.T. was at Chang's

during the sexual assault, not X.L. T.T., however, testified that she knew of the sexual

assault, but it was X.L. who was present, not her. 

Nurse Practitioner Edinburgh also testified at trial. She testified regarding the

accounts provided to her by X.L., P.H., and T.T. She also testified that a physical

examination of X.L. and P.H. revealed that they were subjected to a forceful sexual

assault.

As part of Chang's defense, he claimed that M.H. and her boyfriend, a rival

gang member, fabricated the sexual assault allegations against Chang, and that M.H.

directed the other girls to falsely accuse Chang. Chang believed that M.H. did this

because she thought he was going to harm her boyfriend. In an effort to convince the

jury that the allegations were conjured up by M.H., Chang called two witnesses to

testify about out-of-court statements M.H. made in February 2003. The first witness

testified that M.H. had told her that she falsely accused Chang of sexually assaulting

her because she believed Chang was going to do something to her boyfriend. The

second witness testified that she was present when M.H. told the first witness that she

falsely accused Chang to protect her boyfriend. 

The government called Detective Navara to rebut Chang's defense theory that

M.H. falsely accused Chang. Detective Navara testified that M.H. never mentioned

to him that Chang sexually assaulted or prostituted her. Detective Navara also gave

the following testimony:

Q: Now, was [M.H.] able to corroborate what the other girls had told

you?

A: Yes.
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*****

Q: Now, you said [M.H.] was able to corroborate some things; was

she able to corroborate some of the details of the incident at

Peter's house?

A: Yes.

Q: Specifically, did she tell you about a vehicle that was there that

night?

A: Yes.

Q: What did she tell you?

A: She stated that a black Mercedes S.U.V. showed up with three

older Hmong males in it.

*****

Q: And [M.H.] described the black S.U.V.?

A: Yes.

Q: The Mercedes S.U.V.?

A: Yes.

Q: And so did the other girls?

A: Yes.

Q: Did [M.H.] also talk about a gun?

A: Yes.

Q: What gun did she describe?
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A: She told me that [Chang] had a long black gun with large bullets,

and she also stated that [two other men] also had handguns.

Q: Now, you found a long black gun, didn't you?

A: Yes.

*****

Q: Did [M.H.] also talk about crystal methamphetamine?

A: Yes.

Q: Did she say who she got that from?

A: Yes. She told me that [Chang and three other men] were the

primary people that provided the girls with crystal meth.

Q: And did she tell you why the prostitution took place?

A: She stated that the girls were basically told that they had gotten

the crystal meth for free and it was time for somebody to pay up.

It is this testimony that Chang challenges on Sixth Amendment grounds.

Chang did not object to this testimony, and the trial court did not give any

limiting instruction at the time the testimony was admitted. The trial court, however,

did include the following jury instruction at the close of evidence: "[e]vidence of any

prior inconsistent statement should be considered only for the purpose of testing the

credibility and weight of the witness's testimony."

After two days of deliberations, the jury convicted Chang on all counts. Chang

then appealed his convictions to the Minnesota Court of Appeals, arguing, inter alia,

that the admission of M.H.'s out-of-court statements violated his Sixth Amendment
2

In a § 2254 proceeding, "a court must assess the prejudicial impact of

constitutional error in a state-court criminal trial under the . . . standard set forth in

Brecht, whether or not the state appellate court recognized the error and reviewed it

for harmlessness under 'the harmless beyond a reasonable doubt' standard set forth in

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right of confrontation. The Minnesota Court of Appeals, reviewing the Sixth

Amendment issue for plain error, affirmed Chang's conviction. Chang then sought

review in the Minnesota Supreme Court, which denied his petition for review. Chang

next turned to federal court by filing a petition for writ of habeas corpus in district

court. The district court denied the petition and granted him a certificate of

appealability on the Sixth Amendment issue. Chang now appeals to this court.

II. DISCUSSION

In habeas corpus proceedings, our review is limited to the issue in the certificate

of appealability. Pruitt v. United States, 233 F.3d 570, 572-73 (8th Cir. 2000). We

review the district court's findings of fact for clear error and its conclusions of law de

novo. Garcia v. Bertsch, 470 F.3d 748, 752 (8th Cir. 2006). We also apply a

presumption of correctness to the state court's findings of fact. Richardson v.

Bowersox, 188 F.3d 973, 977 (8th Cir. 1999). We may grant habeas relief "only if the

adjudication by the state courts 'resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal law,'" as determined by the

Supreme Court, or "'resulted in a decision that was based on an unreasonable

determination of the facts.'" Kenley v. Bowersox, 275 F.3d 709, 711 (8th Cir. 2002)

(quoting 28 U.S.C. § 2254(d), (e)(1)). 

Nevertheless, even if the state court decision was contrary to, or involved an

unreasonable application of, clearly established federal law, our analysis is not

complete. Specifically, we must apply Brecht's harmless-error analysis, unless the

error was a structural defect in the trial that defies harmless-error analysis. Brecht v.

Abrahamson, 507 U.S. 619, 629 (1993).2 Under Brecht, habeas relief is proper only
Chapman. Fry v. Piller, 127 S. Ct. 2321, 2328 (2007) (quoting Chapman v.

California, 386 U.S. 18, 23-24 (1967)). This differs from this Circuit's previous

approach. Before Fry, we applied Chapman's harmless-error analysis in a habeas

proceeding when the state court did not conduct its own Chapman analysis. See

Evans v. Lock, 193 F.3d 1000, 1003 (8th Cir. 1999).

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We decline to conduct a plain-error review as the State of Minnesota requests.

There appears to be a decisional split within our Circuit regarding the appropriateness

of plain-error review in the habeas context. In James v. Bowersox, Chief Judge Loken

wrote that "we may not simply conduct our own plain error review de novo," but must

apply AEDPA (and, according to the Supreme Court in Fry, Brecht). 187 F.3d 866,

869 (8th Cir. 1999). This rule is in line with the Supreme Court's ruling in Frady. In

that case, the Court held that "the 'plain error' standard is out of place when a prisoner

launches a collateral attack against a criminal conviction." United States v. Frady, 456

U.S. 152, 164 (1982) (ruling in the context of a § 2255 proceeding); see also id., at

181 (Brennan, J., dissenting) (noting that the "Court's assumption that [plain-error

review] is inapplicable to proceedings under § 2255 is built upon dictum in Henderson

v. Kibbe, 431 U.S. 145, 154 (1977), which suggests that the plain-error Rule is

inapplicable in a habeas corpus action under 28 U.S.C. § 2254"). In contrast, courts

such as the Richardson court have reviewed for plain error when the state court did

so. 188 F.3d at 979. When there is an intra-circuit split, we are free to choose which

line of cases to follow, and we choose to follow James and Frady. Kostelec v. State

Farm Fire & Cas. Co., 64 F.3d 1220, 1228 n.8 (8th Cir. 1995). 

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if the error had a "substantial and injurious effect or influence in determining the jury's

verdict." Id. at 623 (internal quotations omitted). A "substantial and injurious effect"

occurs when the court finds itself in "grave doubt" about the effect of the error on the

jury's verdict. O'Neal v. McAninch, 513 U.S. 432, 435 (1995). "Grave doubt" exists

where the issue of harmlessness is "so evenly balanced that [the court] feels [itself] in

virtual equipoise as to the harmlessness of the error." Id. With that said, under Fry,

we are not required to conduct a formal application of both the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA) and Brecht because the Brecht analysis

"obviously subsumes the [AEDPA test]." Fry, 127 S. Ct. at 2327.3
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The only issued certified for appeal is whether the admission of M.H.'s out-ofcourt statements violated Chang's Sixth Amendment confrontation right. Because we

conclude that any constitutional error with respect to the introduction of M.H.'s out-ofcourt statements lacked a substantial and injurious effect, we see no reason to reach

the Sixth Amendment issue.

To help us determine whether the admission of M.H.'s out-of court statements

rose to the level of Brecht error, we consider the following factors: (1) the importance

of the witness' testimony in the prosecution's case; (2) whether the testimony was

cumulative; (3) the presence or absence of evidence corroborating or contradicting the

testimony of the witness on material points; (4) the extent of cross-examination

otherwise permitted; and (5) the overall strength of the prosecution's case. Delaware

v. Van Arsdall, 475 U.S. 673, 684 (1986) (stating the factors a court should consider

when conducting a Chapman harmless-error analysis).

Here, the admission of M.H.'s statements did not rise to the level of Brecht

error. Indeed, M.H.'s statements added nothing to the prosecution's case and only

served to corroborate the testimony of the three girls who did testify at trial. These

three girls each implicated Chang with their testimony. Furthermore, Chang crossexamined each girl and Detective Navara. Additionally, Nurse Practitioner Edinburgh

testified that both X.L. and P.H. exhibited signs of forceful sexual abuse. And

although each female's testimony differed slightly, there was a plethora of evidence

from which a jury could find Chang guilty. Thus, any trial court error does not require

our reversal. 

III. CONCLUSION

For the foregoing reasons, we affirm the district court's order denying Chang's

petition for writ of habeas.

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