1 The Honorable Brian Stacy Miller, United States District Judge for the Eastern District of Arkansas, sitting by designation.

2 The Honorable Patrick J. Schiltz, United States District Judge for the District of Minnesota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-3010

___________ Orlando Manuel Bobadilla, *
* Petitioner-Appellee, * * Appeal from the United States v. * District Court for the District * of Minnesota. Terry Carlson, Warden, *
* Respondent-Appellant. *

___________ Submitted: May 12, 2009 Filed: August 6, 2009

___________ Before LOKEN, Chief Judge, BYE, Circuit Judge, and MILLER, District Judge. 1

___________ BYE, Circuit Judge. Warden Terry Carlson appeals the district court’s 2order granting Orlando Manual Bobadilla’s petition for writ of ha beas corpus pursuant to 28 U.S.C. § 2254. Bobadilla was convicted in Minnesota stat e court of sexually assaulting T.B., his three-year-old nephew. The district court concluded Bobadilla’s rights under the Sixth Amendment’s Confrontation Clause were vi olated and the Minnesota Supreme Court-2- unreasonably applied United States Supreme Court precedent in concluding otherwise. For the following reasons, we affirm.

I

At the time of Bobadilla’s conviction, T.B. lived with his mother. T.B.’s father lived separately with his mother, his stepfather, and his brother Bobadilla. On Friday, May 2, 2003, T.B. spent the weekend withhis father, grandmother, and other relatives. T.B.’s mother picked him up on Sunday, and, while preparing him for bed, noticed a red area near his anus. In response to his mother’s inquiry, T.B. said Bobadilla had inserted a finger into his rectum. T.B.’s mother called T.B.’s father, and they agreed to take T.B. to the emergency room at once. At the hospital, T.B. was examined by a physician, who determined the results were consistent with the abuse described by T.B. A police officer was dispatched to the hospital, where he interviewed T.B.’s parents a nd an emergency-room nurse.

Five days later, Detective Matthew L. Akerson of the Willmar Police Department conducted an inte rview with T.B. Detectiv e Akerson contacted Cherlynn Molden, a social worker employed by the Kandiyohi County Family Service Department and asked her to assist withthe interview. According to Molden, “Detective Akerson from the Police Department asked me to assist him in interviewing [T.B.]. I wasn’t involved in thatpart of the investigation [that is, the criminal investigation], but he asked me to assist him.”

Molden contacted T.B.’s mother and as ked her to bring T.B. to the police department. T.B. was escorted to a room specifically designed to make children comfortable while being ques tioned about allegations of sexual abuse. A camera hidden behind a one-way mirror recorded the in terview. Molden sat next to T.B. and asked him questions, while Akerson sat across from T.B. and observed. Molden utilized a “forensic” technique known as the “CornerHouse technique,” which consists-3- of asking questions in a structured manner to ascertain the nature of any sexual abuse. In response to the questions, T.B. confirme d the abuse he had first reported to his mother.

Bobadilla was charged in Minnesota stat e court with first- and second-degree criminal sexual conduct. After speaking to T.B. at length, the trial court judge found him not competent to testify. In lieu of his testimony, the state sought to introduce Molden’s testimony recounting her interview with T.B., as well as the video of the interview. Bobadilla objected to the admissi on of such evidence as a violation of the Confrontation Clause.

The Confrontation Clause of the Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. Amend. VI. Such right is implicated whenever a statement by an unavailable declarant is introduced into evidence at trial, and the defendant has not had an opportunity to cross-examine th e declarant. At the time of Bobadilla’s trial, the admission of such evidence was governed by the standard set forth in Ohio v. Roberts , 448 U.S. 56 (1980). In Roberts , the Supreme Court held the admission of such statements did not violate the Confr ontation Clause so long as the evidence bore “indicia of reliability” by falling “within a firmly rooted hearsay exception” or showing “particularlized guarantees of trustworthiness.” Id. at 66.

The trial court, applying Roberts , allowed Molden to te stify and permitted the state to introduce the video of T.B.’s inte rview with Molden. In addition, the jury heard testimony from T.B.’s mother concerni ng T.B.’s initial report of abuse, as well as testimony from the doctor who initially ex amined T.B. Bobadilla was convicted and sentenced to 144 months in prison.

On appeal, Bobadilla once again cha llenged the admission of the video of T.B.’s interview, as well as Molden’s testimony concerning the interview, as a-4- violation of the Confrontation Clause. While his appeal was pending, the Supreme Court issued its decision in Crawford v. Washington , 541 U.S. 36 (2004), which set forth a materially different analysis for Confrontation Clause claims. In Crawford , the wife of a suspect was placed in police custody, given Miranda warnings, and asked a series of questions. The wife’s st atement implicated her husband, and the government sought to introduce the wife’s st atement at trial. Because the defendant’s wife invoked the state marital privilege a nd did not testify at trial, the defendant objected to the admission of he r statement as a Confrontati on Clause violation. The trial court admitted her statement, fi nding it bore particularlized guarantees of trustworthiness under Roberts . In Crawford , however, the Supreme Court abandoned the Roberts test, concluding the Confrontation Clause had nothing to do with the reliability of the statement at issue. Rather, the Confrontation Clause served to prevent people from bearing testimony agai nst a defendant without the defendant having an opportunity to cross-examine the bearer of the testimony. Id. at 50-51, 60- 65. Thus, the Supreme Court held the “r eliability” of a statement was immaterial. The Court held a Confrontation Clause vi olation exists whenever a “testimonial” statement is admitted against a defendant, regardless of the statement’s reliability, when he or she has had no opportunity to cross-examine the declarant. Id. at 68-69.

While the Court declined to provide a comprehensive definition as to which statements are testimonial, it did note an “accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquain tance does not.” Id. at 51. The Court discussed various possible formulations of statements which are tes timonial: (1) “ex part e in-court testimony or its functional equivalent – that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unabl e to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially”; (2) “extrajudicial statements contained in fo rmalized testimonial materials, such as affidavits, depositions, prior testimony, or c onfessions”; and (3) “statements that were made under circumstances which would l ead an objective witness reasonably to3 The remaining factors are: (1) whether the declarant was a victim or an observer; (2) whether it was the police or the declarant who initiated the conversation; (3) the location where the statements were made; (4) the declaran t’s emotional state when the statements were made; (5) the level of formality and structure of the conservation between the officer and declaran t; and (6) if and how the statements were recorded. Id. at 250.
-5- believe that the statement would be available for use at a later trial.” Id. at 51-52 (internal citations and quotation marks omitted).

In Crawford , the Court found it unnecessary to adopt one of the aforementioned formulations of testimonial statements because “[s]tate ments taken by police officers in the course of interrogations are . . . te stimonial under even a narrow standard.” Id. at 52. Furthermore, the Court used the te rm “‘interrogation’ in its colloquial, rather than any technical legal, sense.” Id. at 53 n.4. Recognizing that many definitions of “interrogation” may exist, the statement at issue in Crawford , “knowingly given in response to structured police questioning, qualifie[d] under any conceivable definition.” Id.

Because of Crawford , the Minnesota Court of Appeals unanimously reversed Bobadilla’s conviction, conc luding his Confrontation Clause rights were violated. State v. Bobadilla , 690 N.W.2d 345, 349-50 (Minn. Ct. App. 2004). The court determined T.B.’s statements made during the course of his interview with Molden were testimonial, and that, because Bobad illa did not have an opportunity to crossexamine T.B., the admission of those statem ents violated the Confrontation Clause. The Minnesota Supreme Court reversed, concluding T.B.’s statements were not testimonial. State v. Bobadilla , 709 N.W.2d 243, 256 (Minn. 2006). In doing so, the Minnesota Supreme Court applied an eight-fact or test, with the most important factors being “whether either a declarant or governme nt questioner is acting, to a substantial degree, in order to produce a statement for trial.” Id. at 252. 34 Although we will discuss this point in detail later in the opinion, while it is true Molden initiated the contact with T.B.’s mother, it was Detective Akerson who first decided to interview T.B. and requested that Molden do so.
-6- The court went on to conclude, becau se Molden’s inte rview was conducted pursuant to Minnesota Statute § 626.556, ne ither Molden nor T.B. were acting with the predominant purpose of producing a statement for trial. The stated purpose of § 626.556 “is to protect children whose healthor welfare may be jeopardized through physical abuse, neglect, or sexual abuse. ” Minn. Stat. § 626.556(1). The statute allows social workers to in terview suspected victims of sexual or physical abuse and, notably, provides that if a report of abuse alle ges a violation of a criminal statute, “the local law enforcement agency and local welf are agency shall coordinate the planning and execution of their respective investig ation and assessment efforts to avoid a duplication of fact-finding efforts and multip le interviews.” Minn. Stat. § 626.556, subd. 10(a). Furthermore, the statute requi res, in cases involving alleged sexual abuse, that an audio-video recording be made of any interviews of the alleged victim. Minn. Stat. § 626.556, subd. 10(j).

First, the court noted the express purpos e of § 626.556 was to protect the health and welfare of children, not to gene rate statements for trial. Id. at 254. Second, the court found it immaterial as to the statute re quiring social workers to coordinate their investigations with law enforcement and to r ecord the interviews so as to eliminate a need for separate interviews by law enforcement officers, concluding such requirements do not “necessarily indicate th at the purpose of the interview was to create a formalized statement for trial.” Id. at 255. In sum, the court concluded the statements were not testimonial becausethe interview “was initiated by a child protection worker in response to a repor t of sexual abuse for the overriding purpose of assessing whether abuse occurred, and whether steps were therefore needed to protect the health and welf are of the child.” Id. at 255. 4-7- Bobadilla next filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court fo r the District of Minnesota. The district court concluded T.B.’s statements duri ng the interview were testimonial, the admission of such statements violated th e Confrontation Clause, and the Minnesota Supreme Court unreasonably applied Suprem e Court precedent in concluding to the contrary. The court granted the petition for wr it of habeas corpus, but stayed the order pending the outcome of this appeal.

II

In a habeas proceeding, this Court revi ews the district court’s conclusions of law de novo and its factual findings for clear error. Randolph v. Kenna , 276 F.3d 401, 403 (8th Cir. 2002). The Supreme Court has st ated “that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secu re release from illegal custody.” Preiser v. Rodriguez , 411 U.S. 475, 484 (1973). A writ of habeas corpus is appropriate when a state prisoner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A person is in custody in violation of the Constitution “‘if any consecutive sentence th e prisoner is scheduled to serve was imposed as the result of a deprivation of c onstitutional rights.’” Garlotte v. Fordice , 515 U.S. 39, 41 (1995) (quoting Peyton v. Rowe , 391 U.S. 54, 64-65 (1968)).

The Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254, limits the power of federal courts to grant habeas relief for any claim “adjudicated on the merits in State c ourt proceedings” unless the adjudication:
(1) 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; or-8- (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presen ted in the State court proceeding.
28 U.S.C. § 2254(d).

The district court correctly concluded the decision of the Minnesota Supreme Court was not contrary to clearly estab lished Federal law, as determined by the Supreme Court. Under the “contrary to” clause, federal courts may grant a writ of habeas corpus only if “the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court ha s on a set of materially indistinguishable facts.” Williams v. Taylor , 529 U.S. 362, 413 (2000). Because the Minnesota Supreme Court applied the govern ing legal rule from Crawford– that the admission of testimonial statements absent an opportunity to cross-examine the declarant violates the Confrontation Clause – and did not reach a contrary conclusion on a set of materially indistinguishable facts, its decision was not “contrary to” clearly established law. See id. at 405-06.

The district court was correct to conc lude, however, that the decision of the Minnesota Supreme Court was an “unr easonable application” of Crawford . Under this clause, a federal habeas court may gran t the writ if “the state court identifies the correct legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the principal case.” Id. at 413. Additionally a decision “also involves an unreasonable application of [the] Court’s precedent if the state court either unreasonably extends a legal princi ple from [Supreme Cour t] precedent to a new context where it should not apply or unr easonably refuses to extend that principle to a new context where it should apply.” Id. at 407. The Supreme Court has noted, however, that “an unreasonable application of federal law is different from an incorrect application of federal law.” Id. at 410 (emphasis in original).-9- Crawfordheld that statements taken by police officers in the course of interrogations are testimonial under even the narrowest standard, and it was unreasonable for the Minnesota Supreme Court not to conclude the interview of T.B. was, in all relevant aspects, a form of po lice interrogation. First, the interview was initiated by a police officer. Second, the interview was conducted for the purpose of the criminal investigation. Although Mold en contacted T.B.’s mother, the evidence demonstrates it was Detective Akerson who requested Molden to do so. Furthermore, Molden stated Detective Akerson asked her to “assist him” in questioning T.B. and that she was not involved in the criminal investigation until Detective Akerson “asked [her] to assist him.” Third, the intervie w was not conducted until five days after the abuse was first alleged, which indicates th e purpose of the interview was to confirm a past allegation of abuse rath er than to assess immediate th reats to T.B.’s health and welfare. Because of these circumstances, this interview was no different than any other police interrogation: it was initiated by a police officer a significant time after the incident occurred for the purpose of gathering evidence during a criminal investigation.

The only significant difference between th e interview involved in the present case and the one held to be testimonial in Crawfordis instead of a police officer asking questions about a suspected criminal violation, he sat silent while a social worker did the same. We find this to be a distinction without a difference. In addition to the aforementioned facts, the intervie w took place at police headquarters in a room specifically designed for the interrogati on of children who allege sexual abuse. Furthermore, under the statute, the interv iew was recorded for the sole purpose of eliminating the need for T.B. to be interviewed by law enforcement personnel. Molden also utilized a structured, “foren sic” method of interrogating T.B. Notably, Crawfordidentified a “recorded statement, know ingly given in response to structured police questioning,” as qualifying under any conceivable definition of interrogation. 541 U.S. at 53 n.4. In sum, Justice Page was correct to conclude Molden was simply acting as a “surrogate intervie wer” for the police. Bobadilla , 709 N.W.2d at 258-10- (Page, J., dissenting). Molden was contactedby a police officer to assist with the criminal investigation, the interview took place several days afte r the abuse allegedly occurred, the interview was conducted at police headquarters with a police officer present, and Molden utilized a structuredmethod of questioning to elicit T.B.’s statements. As such, it was unreasonable for the Minnesota Supreme Court to conclude, even though the questioning wa s undertaken by a so cial worker, the statements made by T.B. during his interrogation were in any way different than the statements found to be testimonial in Crawford

. We, like the district court, are unpe rsuaded by the existence of Minnesota Statute § 626.556. While it is true the statut e authorizes social workers to interview alleged victims of abuse for the purpose of protecting their health and welfare, the circumstances of the present case, as de scribed above, indicat e such was not the purpose of T.B.’s interview. Contrary to the Minnesota Supreme Court’s assertion, this interview was not conducted “for the overriding purpose of assessing whether abuse occurred, and whether steps were ther efore needed to protect the health and welfare of the child.” Id. at 255. Molden’s testimony makes clear she decided to interview T.B. only after Detective Akerson asked her to assist him with the criminal investigation. The interview being conducte d five days after the alleged abuse is a further indication of its purpose, which was to elicit information for use at trial, rather than determining whether step s were needed to protect T. B.’s immediate health and welfare. Furthermore, given the allege d abuse was reported promptly and T.B.’s parents voluntarily c ooperated with the investigation, there is no evidence T.B.’s health or welfare was in further danger. Additionally, the district court did not clearly err in finding Molden did not ask the typeof questions one would reasonably expect if the purpose of the interview was to asse ss “imminent” risks to T.B.’s health and welfare, such as whether he had recently seen Bobadilla or wh ether he was spending any time at his grandmother’s house. In stead, the interview consisted of highly structured questioning aimed at getting T.B. to repeat, on videotape, his allegation of abuse.-11- Thus, even if the purpose of an interview under Minnesota Statute § 626.556 is to assess immediate threats to a child’s health and welfare, and thus different than the purpose of the police interrogation found to include testimonial statements in Crawford , such was not the purpose of this particular interview. It is the circumstances of the interview at issue which must control, not just the purpose of the statute itself. As the district court astu tely noted, if a prosecutor six months after abuse occurred asked a social worker to help him videotape a statement for an upcoming trial, it would be unreasonable to conclude the purpose of the interview was to protect the child from immediate danger justbecause the statute says as much. Just as such situation would clearly be akinto the police interrogation in Crawford , so too is the present interview, and it was unreas onable for the Minnesota Supreme Court to conclude otherwise.

Additionally, the statute, rather than dispelling the hallmarks of traditional police interrogations, requires them. The st atute mandates social workers and police officers coordinate the planning and execution of their investigation to eliminate the need for multiple interviews. Thus, even if a social worker is acting for a different purpose, the statute requires the interview to achieve another purpose akin to a police interrogation: assisting law enforcement with the investigation of a suspected criminal violation. In this vein, the statute also requires the social worker to videotape the interview so police officers do not have to conduct a second intervie w with the victim. In such cases, the social worker’s intervie w is a substitute for, and functions as, the police interrogation. Far from making such interviews unlike the police interrogation in Crawford , the statute mandates them to be the functional equivalent of such interrogations.

In sum, Crawfordheld statements made during police interrogations are testimonial. The Minnesota Supreme Court unreasonably applied Crawfordin holding T.B.’s statements made during his intervie w with Molden and Detective Akerson were not testimonial. Just as in Crawford , the interview in the pr esent case was initiated by5 The Supreme Court has sin ce issued additional decisions interpreting the scope of the Confrontation Clau se. Davis v. Washington , 126 S. Ct. 2266 (2006) (holding that statements made during a 911 emer gency call were not testimonial, while statements made to a police officer afte r the danger had passed were testimonial);
-12- a police officer to obtain statements for use during a criminal investigation, was recorded so further law enforcement inte rviews would be unn ecessary, and involved structured questioning designed to confirm a prior allegation of abuse. No one disputes should Detective Akerson have conducted the questioning, such statements would be testimonial under Crawford . It was unreasonable for the Minnesota Supreme Court to conclude just because he requested another government agent to ask the same questions in order to achieve the same purpose, the result is different. Our conclusion is reinforced by § 626.526, whic h required Molden to act as a substitute for a police interrogator. Thus, we agree with the district c ourt about Bobadilla’s Confrontation Clause rights being viol ated and the Minnesota Supreme Court unreasonably applying Crawfordin concluding to the contrary.

The district court was also correct to c onclude the violation of the Confrontation Clause was not harmless. Indetermining whether an erro r is harmless we ask whether “the error had a substantial a nd injurious effect or influe nce in determining the jury’s verdict.” Toua H ong Chang v. Minnesota , 521 F.3d 828, 832 (8th Cir. 2008). While there was other evidence tending to proveBobadilla’s guilt, it is clear the prosecution’s case rested heavily on Molden’s testimony and the videotape of her interview with T.B. The only other evid ence admitted into trial was the testimony of T.B.’s mother recounting T.B.’s first statement he made about the abuse – the only statement outside of the interview in which he identifies Bobadilla as the perpetrator – as well as testimony from the doctor i ndicating the medical examination was consistent with sexual abuse. Given the other evidence of Bobadilla’s guilt was minimal, it is likely the admission of T.B.’s statements made during the course of the interview had a substantial eff ect in influencing the jury’s verdict. Thus, the error was not harmless. 5Melendez-Diaz v. Mass. , 129 S. Ct. 2527 (2009) (holding that lab analyses introduced into trial are testimonial). The Court’s decision in Davis strongly supports our conclusion that T.B.’s statements made during the course of the interview with Molden were testimonial, because “the circ umstances indicate that there is no . . . emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” 124 S. Ct. at 2273-74. Davis does not influence our analysis, howev er, because it was issued after the decision of the Minnesota Supreme Court in the present case, and does not impact whether the Minnesota Supreme Court unr easonably applied Supreme Court precedent at the time of its decision.
-13- III

For the aforementioned reasons, we affirm the decision of the district court.

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