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’s2

 order granting Orlando

Manual Bobadilla’s petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Bobadilla was convicted in Minnesota state 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 violated and the Minnesota Supreme Court
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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 with his 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 and an emergency-room nurse.

Five days later, Detective Matthew L. Akerson of the Willmar Police

Department conducted an interview with T.B. Detective Akerson contacted Cherlynn

Molden, a social worker employed by the Kandiyohi County Family Service

Department and asked her to assist with the interview. According to Molden,

“Detective Akerson from the Police Department asked me to assist him in

interviewing [T.B.]. I wasn’t involved in that part of the investigation [that is, the

criminal investigation], but he asked me to assist him.”

Molden contacted T.B.’s mother and asked her to bring T.B. to the police

department. T.B. was escorted to a room specifically designed to make children

comfortable while being questioned about allegations of sexual abuse. A camera

hidden behind a one-way mirror recorded the interview. 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
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of asking questions in a structured manner to ascertain the nature of any sexual abuse.

In response to the questions, T.B. confirmed the abuse he had first reported to his

mother.

Bobadilla was charged in Minnesota state 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 admission 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 the 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 Confrontation 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 testify and permitted the

state to introduce the video of T.B.’s interview with Molden. In addition, the jury

heard testimony from T.B.’s mother concerning T.B.’s initial report of abuse, as well

as testimony from the doctor who initially examined T.B. Bobadilla was convicted

and sentenced to 144 months in prison.

On appeal, Bobadilla once again challenged the admission of the video of

T.B.’s interview, as well as Molden’s testimony concerning the interview, as a
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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 statement implicated her husband, and the

government sought to introduce the wife’s statement at trial. Because the defendant’s

wife invoked the state marital privilege and did not testify at trial, the defendant

objected to the admission of her statement as a Confrontation Clause violation. The

trial court admitted her statement, finding 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 against 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 “reliability” of a statement was immaterial.

The Court held a Confrontation Clause violation 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 acquaintance does not.” Id. at 51. The Court discussed various possible

formulations of statements which are testimonial: (1) “ex parte in-court testimony or

its functional equivalent – that is, material such as affidavits, custodial examinations,

prior testimony that the defendant was unable to cross-examine, or similar pretrial

statements that declarants would reasonably expect to be used prosecutorially”; (2)

“extrajudicial statements contained in formalized testimonial materials, such as

affidavits, depositions, prior testimony, or confessions”; and (3) “statements that were

made under circumstances which would lead an objective witness reasonably to
3

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 declarant’s emotional state

when the statements were made; (5) the level of formality and structure of the

conservation between the officer and declarant; and (6) if and how the statements were

recorded. Id. at 250. 

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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]tatements taken by police officers

in the course of interrogations are . . . testimonial under even a narrow standard.” Id.

at 52. Furthermore, the Court used the term “‘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, concluding 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 Bobadilla did not have an opportunity to crossexamine T.B., the admission of those statements 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-factor test, with the most important factors

being “whether either a declarant or government questioner is acting, to a substantial

degree, in order to produce a statement for trial.” Id. at 252.3
4

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. 

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The court went on to conclude, because Molden’s interview was conducted

pursuant to Minnesota Statute § 626.556, neither 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 health or welfare may be jeopardized through

physical abuse, neglect, or sexual abuse.” Minn. Stat. § 626.556(1). The statute

allows social workers to interview suspected victims of sexual or physical abuse and,

notably, provides that if a report of abuse alleges a violation of a criminal statute, “the

local law enforcement agency and local welfare agency shall coordinate the planning

and execution of their respective investigation and assessment efforts to avoid a

duplication of fact-finding efforts and multiple interviews.” Minn. Stat. § 626.556,

subd. 10(a). Furthermore, the statute requires, 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 purpose of § 626.556 was to protect the health

and welfare of children, not to generate statements for trial. Id. at 254. Second, the

court found it immaterial as to the statute requiring social workers to coordinate their

investigations with law enforcement and to record the interviews so as to eliminate a

need for separate interviews by law enforcement officers, concluding such

requirements do not “necessarily indicate that 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 because the interview “was initiated by a child

protection worker in response to a report of sexual abuse for the overriding purpose

of assessing whether abuse occurred, and whether steps were therefore needed to

protect the health and welfare of the child.” Id. at 255.4
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Bobadilla next filed a petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2254 in the United States District Court for the District of Minnesota. The district

court concluded T.B.’s statements during the interview were testimonial, the

admission of such statements violated the Confrontation Clause, and the Minnesota

Supreme Court unreasonably applied Supreme Court precedent in concluding to the

contrary. The court granted the petition for writ of habeas corpus, but stayed the order

pending the outcome of this appeal.

II

In a habeas proceeding, this Court reviews 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 stated “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 secure 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 the prisoner is scheduled to serve was

imposed as the result of a deprivation of constitutional 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 court 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
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(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented 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 established 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 has on a set of materially indistinguishable

facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). Because the Minnesota

Supreme Court applied the governing 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 conclude, however, that the decision of the

Minnesota Supreme Court was an “unreasonable application” of Crawford. Under

this clause, a federal habeas court may grant 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 principle from [Supreme Court] precedent to a

new context where it should not apply or unreasonably 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).
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Crawford held 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 police interrogation. First, the interview was

initiated by a police officer. Second, the interview was conducted for the purpose of

the criminal investigation. Although Molden 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 interview was not conducted until five days after the

abuse was first alleged, which indicates the purpose of the interview was to confirm

a past allegation of abuse rather than to assess immediate threats 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 the interview involved in the present

case and the one held to be testimonial in Crawford is 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 interview took place at police headquarters in a room

specifically designed for the interrogation of children who allege sexual abuse.

Furthermore, under the statute, the interview 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, “forensic” method of interrogating T.B. Notably,

Crawford identified a “recorded statement, knowingly 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 interviewer” for the police. Bobadilla, 709 N.W.2d at 258
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(Page, J., dissenting). Molden was contacted by a police officer to assist with the

criminal investigation, the interview took place several days after the abuse allegedly

occurred, the interview was conducted at police headquarters with a police officer

present, and Molden utilized a structured method of questioning to elicit T.B.’s

statements. As such, it was unreasonable for the Minnesota Supreme Court to

conclude, even though the questioning was undertaken by a social 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 unpersuaded by the existence of Minnesota

Statute § 626.556. While it is true the statute 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 described above, indicate 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 therefore 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 conducted 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 steps were needed to protect T.B.’s immediate health and

welfare. Furthermore, given the alleged abuse was reported promptly and T.B.’s

parents voluntarily cooperated 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 type of questions one would reasonably expect

if the purpose of the interview was to assess “imminent” risks to T.B.’s health and

welfare, such as whether he had recently seen Bobadilla or whether he was spending

any time at his grandmother’s house. Instead, the interview consisted of highly

structured questioning aimed at getting T.B. to repeat, on videotape, his allegation of

abuse.
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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 astutely 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 just because the statute says as much. Just

as such situation would clearly be akin to the police interrogation in Crawford, so too

is the present interview, and it was unreasonable for the Minnesota Supreme Court to

conclude otherwise.

Additionally, the statute, rather than dispelling the hallmarks of traditional

police interrogations, requires them. The statute 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 interview with the victim.

In such cases, the social worker’s interview 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, Crawford held statements made during police interrogations are

testimonial. The Minnesota Supreme Court unreasonably applied Crawford in holding

T.B.’s statements made during his interview with Molden and Detective Akerson were

not testimonial. Just as in Crawford, the interview in the present case was initiated by
5

The Supreme Court has since issued additional decisions interpreting the scope

of the Confrontation Clause. Davis v. Washington, 126 S. Ct. 2266 (2006) (holding

that statements made during a 911 emergency call were not testimonial, while

statements made to a police officer after the danger had passed were testimonial);

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a police officer to obtain statements for use during a criminal investigation, was

recorded so further law enforcement interviews would be unnecessary, 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, which required Molden to act as a substitute

for a police interrogator. Thus, we agree with the district court about Bobadilla’s

Confrontation Clause rights being violated and the Minnesota Supreme Court

unreasonably applying Crawford in concluding to the contrary.

The district court was also correct to conclude the violation of the Confrontation

Clause was not harmless. In determining whether an error is harmless we ask whether

“the error had a substantial and injurious effect or influence in determining the jury’s

verdict.” Toua Hong Chang v. Minnesota, 521 F.3d 828, 832 (8th Cir. 2008). While

there was other evidence tending to prove Bobadilla’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 evidence 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 indicating 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 effect in influencing the jury’s verdict. Thus, the error was

not harmless.5
Melendez-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 circumstances 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, however, 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 unreasonably applied Supreme Court precedent

at the time of its decision.

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III

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

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