### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 19

‐ 2178

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

D ERONARTE N ORWOOD

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:16

‐ cr

‐ 00648

‐ 1

— Gary Feinerman

, Judge

.

____________________

A RGUED S EPTEMBER 25, 2020

— D ECIDED D ECEMBER 14, 2020

____________________

Before R IPPLE

, B RENNAN

, and S T

. E VE

, Circuit Judges

.

R IPPLE

, Circuit Judge

. Deronarte Norwood met a fif

‐

teen

‐ year

‐ old girl at a gas station in Indianapolis. Through a

combination of drugs and manipulative affection, he enticed

her to have sexual intercourse with him and then proceeded

to prostitute her to countless men, all within a one

‐ month

timespan in 2015. A jury found him guilty of one cou nt of at

‐ tempted transportation of a minor across state lines with the

intent that the minor engage in prostitution, in violation of 182 No. 19

‐ 2178

U.S.C. § 2423(a) and (e). 1 The district court denied Mr. Nor

‐

wood’s post

‐ trial motions for a new trial and sentenced him

to 330 months’ imprisonment and five years’ supervised re

‐

lease.

Mr. Norwood filed this timely appeal, in which he alleges

error at several stages of the district court proceedings. 2 He

now asks us to determine whether there is sufficient evidence

to sustain the jury verdict. He also asks that we review vari

‐

ous rulings made by the district court during trial as well as

several matters that arose during the sentencing proceeding.

After a review of the record and a study of the relevant au

‐

thorities, we conclude that there is sufficient evidence to sus

‐

tain the jury’s verdict, that the district court’s rulings during

trial present no ground for reversal, and that the sentencing

proceeding was free of error. Accordingly, we affirm the judg

‐

ment of the district court in all respects.

I

BACKGR OUND 3

1 The jurisdiction of the district court was premised on 18 U.S.C. § 3231.

2 Our jurisdiction is premised on 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a)(2).

3 Neither the victim nor Mr. Norwood testified at trial. This account draws

primarily from the trial record and sentencing hearing transcript, but we

al so inc lude some information gleaned from the victim’s grand jury testi

‐

mony in order to provide context. During his sentencing hearing, Mr. Nor

‐

wood objected to the district court’s reliance on certain parts of the grand

jury testimony, but the district court made explicit findings with respect

to the port ions it e lected to rely upon. As we note below, the district

court’s consideration of the grand jury testimony during sentencing was

proper. See infra note 38 and accompanying text.No. 19

‐ 2178 3

Mr. Norwood first met the victim at a gas station in Indi

‐ anapolis in April 2015 after she had run away from a state

‐ run

residential facility. Mr. Norwood provided the victim with

marijuana and then took her to a hotel where he engaged in

sexual intercourse with her. A day or two later, Mr. Norwood

physically assaulted her and said that he could kill her.

In the month after they met, Mr. Norwood pressured the

victim to engage in prostitution. As part of his efforts to mar

‐

ket her services, he posted two advertisements on Back

‐ page.com—the Internet’s once leading marketplace for illicit

sex services that has since been shut down by the United

States Department of Justice. The advertisements showed the

victim wearing only undergarments. Mr. Norwood set the

first Backpage advertisement, posted on April 23, 2015, to tar

‐

get men in Chicago, Illinois, and Kenosha, Wisconsin. The

second advertisement, created on May 8, 2015, and reposted

on May 20, 2015, targeted men in Kenosha and Racine, Wis

‐

consin. Both advertisements offered “out calls,” meaning that

the victim would go to the client’s chosen location.

On May 8, the day Mr. Norwood posted the second Back

‐

page advertisement, the victim received calls from eighty

phone nu mbers with Wisconsin area codes. In total, the vic

‐

tim received over 4,000 phone calls and text messages from

phone numbers with Wisconsin area codes during the period

from May 1 through May 22, 2015. Of those calls and text

messages, 3,457 came from phone numbers with the area

code covering Racine and Kenosha, Wisconsin—the cities

that Mr. Norwood set the second Backpage advertisement to

target.

Throughout the time he attempted to prostitute her,

Mr. Norwood also repeatedly had sexual intercourse with4 No. 19

‐ 2178

the victim and continued to threaten and assault her.

Mr. Norwood, who lived in Illinois, booked hotel rooms

along the Illinois

‐ Wisconsin border for the victim to meet

men who responded to the Backpage advertisements. And

Mr. Norwood took all of the money that the victim received

from the customers, which at times totaled a few hundred

dollars per day.

On May 17, 2015, Mr. Norwood drove the victim from Il

‐

linois to Kenosha, Wisconsin. Historical cell tower data

showed both Mr. Norwood’s and the victim’s phones depart

‐ ing from the Chicago area and traveling to Kenosha. After a

few hours in Kenosh a, the victim’s phone location infor

‐

mation showed her traveling to Milwaukee. A short time

later, Mr. Norwood’s cell phone location information showed

him in Milwaukee near the victim’s phone. Cell phone rec

‐

ords from the early morning hours on May 17 showed 254

contacts with the victim’s phone number fr om phone num

‐

bers with Wisconsin area codes. Also during that time, Mr.

Norwood sent a message to a friend stating that he was “out

here getting money.” 4 Mr. Norwood, on May 18, told a friend

that he was in Milwaukee and asked the friend to send some

‐

one to his hotel.

Mr. Norwood and the victim traveled back to Illinois on

May 18. He then booked a hotel room in Zion, Illinois, along

the Illinois

‐ Wisconsin border for that night. For the follo wing

nights, Mr. Norwood booked hotel rooms in Winthrop Har

‐

bor, Illinois, another town on the Illinois

‐ Wisconsin border.

4 Tr. at 490–91.No. 19

‐ 2178 5

At those hotels, Mr. Norwood arranged for the victim to pro

‐

vide sex services to male customers.

On May 21, after Mr. Norwood had beaten her, the victim

called her Indiana

‐ based foster mother for help. That same

day, police located the victim at a hotel in Winthrop Harbor,

Illinois. In th e early hours of May 22, civilian employees with

the Indiana Department of Child Services transported the vic

‐

tim back to Indiana—first to a temporary shelter, then to a

hospital in Indianapolis where she underwent a medical eval

‐

uation.

A federal grand jury eventually indicted Mr. Norwood on

a single count of attempted transportation of a minor across

state lines with the intent that the minor engage in prostitu

‐

tion, in violation of 18 U.S.C. § 2423(a) and (e). 5 Mr. Norwood

proceeded to trial. There, the Government needed to prove

that (1) Mr. Norwood knowingly attempted to transport the

victim from Illinois to Wisconsin; (2) the victim was under the

age of eighteen; and (3) Mr. Norwood intended that the victim

engage in prostitution in Wisconsin.

The Government presented witness testimony and docu

‐

mentary evidence connecting Mr. Norwood to the Backpage

advertisements. Additionally, the Government presented tes

‐ timony and cell phone record information that showed Mr.

Norwood’s movements and the victim’s movements during

5 The Government represented to the district court at sentencing that it

proceeded only on an attempt charge because the victim was too trauma

‐

tized to testify. In its original indictment, which it later superseded with

the single attempted transportation charge, the Government charged

Mr. Norwood with one count of violating 18 U. S.C. § 15 91(a) and (b)(1),

and one count of violating 18 U.S.C. § 2423(a).6 No. 19

‐ 2178

their month together, the contacts the victim received from

phones with Wisconsin area codes, and several messages Mr.

Norwood sent to friends via text message and Facebook mes

‐

senger. The police officer who recovered the victim from the

hotel in Winthrop Harbor also testified, as did the Indiana De

‐

partment of Child Services staff who transported the victim

back to Indiana from Illinois, and then took her for a medical

examination.

A significant witness during Mr. Norwood’s trial was Cat

‐

ana Philipps, the nurse who examined the victim at the Indi

‐

ana hospital following her recovery. As part of Nurse

Philipps’s testimony, the Government offered a reda cted

copy of the victim’s medical records from that examination.

Mr. Norwood objected to the admission of those medical rec

‐

ords, but the district court overruled the objection. The Gov

‐

ernment also offered a recorded jail call between Mr. Nor

‐

wood and an unidentified female. In that call, Mr. Norwood

made statements about prostituting a young “white girl.” 6

Mr. Norwood again objected, and the Court again overruled

him. 7

At the close of the Government’s evidence, Mr. Norwood

moved for judgment of acquittal. The district court denied the

motion. Mr. Norwood then called a single defense witness,

his cousin. At the close of the defense’s evidence, Mr. Nor

‐

wood did not renew his motion for judgment of acquittal.

6 R.205, Ex. 12 at 3.

7 We defer discussion of the details of those evidentiary rulings for our

assessment of the issues Mr. Norwood raises on appeal.No. 19

‐ 2178 7

The jury returned a guilty verdict. Following the verdict,

Mr. Norwood moved for a new trial on juror bias or miscon

‐

duct grounds. The district court denied that motion, and, with

the juror issue resolved, held a sentencing hearing. At the sen

‐ tencing hearing, the district court calculated the advisory

guidelines range of 360 months to life imprisonment, then im

‐ posed a sentence of 330 months’ imprisonment. Mr. Norwood

then timely filed this appeal.

II

DISCUSSION

Mr. Norwood takes issue with many aspects of his case,

raising seven issues in total. As is often the case when a crim

‐

inal defendant raises so many issues on appe al, some issues

require more discussion than others. We start, as our case law

instructs, with Mr. Norwood’s sufficiency of the evidence

challenge. 8 We then move through the remaining issues pre

‐

sented in roughly the chronological order that they occurred

in the district court. For some issues, we supplement our dis

‐

cussion with additional, more

‐ detailed factual background.

A.

We turn first to Mr. Norwood’s submission that the evi

‐

dence of record is insufficient to sustain his conviction. In as

‐ sessing this contention, we review the evidence in the light

most favorable to the Government and will overturn a verdict

only when the record contains no evidence, regardless of how

it is weighed, from which the jury could have found guilt

8 In this circuit, we review a sufficiency claim before examining more par

‐

ticular allegations of error. See United States v. Hopper

, 934 F.3d 740, 754

n.50 (7th Cir. 2019).8 No. 19

‐ 2178

beyond a reasonable doubt. United States v. Clark

, 787 F.3d

451, 459 (7th Cir. 2015). When a defendant moves for a judg

‐

ment of acquittal at the close of the Government’s case but

fails to renew that objection at the close of all evidence, how

‐

ever, we apply a more demanding standard and will reverse

only if “we find a ‘manifest miscarriage of justice’ unde r the

plain error standard of review.” United States v. Rea

, 621 F.3d

595, 601–02 (7th Cir. 2010) (quoting United States v. Hensley

,

574 F.3d 384, 390 (7th Cir. 2009)). Because Mr. Norwood failed

to renew his motion at the close of his evidence, the more de

‐ manding standard applies.

Under 18 U.S.C. § 2423(a), the Government must pr ove

that: (1) the defendant knowingly transported an individual

in interstate or foreign commerce; (2) the transported individ

‐

ual was under the age of eighteen; and (3) the transportatio n

was with the intent that the individual engage in prostitution

or any sexual activity that can be charged with a criminal of

‐

fense. When, as here, the Government charges an attempt to

violate § 2423(a), it does not need to prove that the defendant

successfully transported the victim over state lines. See 18

U.S.C. § 2423(e). Instead, to convict the defendant of at

‐ tempted transportation, the Government need only prove

that the defendant took a substantial step toward transporting

the victim to another state. Our case law defines a substantial

step as “some overt act adapted to, approximating, and which

in the ordinary and likely course of things will result in, the

commission of the particular crime.” United States v. Gladish

,

536 F.3d 646, 648 (7th Cir. 2008) (quoting United States v. Man

‐ ley

, 632 F.2d 978, 988 (2d Cir. 1980)).

Mr. Norwood now submits that “there are no facts [in the

trial record] demonstrating that [he] took a ‘substantial step’No. 19

‐ 2178 9

towards transporting [the victim] across state lines for prostitu

‐

tion .” 9 The only evidence on this point, Mr. Norwood con

‐

tends, was “cell tower data” showing him and the victim near

each other in Wisconsin over the span of two days. That data,

he submits, is not pinpoint accurate. Moreover, he continues,

the Government’s evidence that he and the victim stayed at a

hotel on the Illinois

‐ Wisconsin border would require the jury

to speculate improperly about his intent to cro ss into Wiscon

‐

sin.

The Government has a different view. It submits that be

‐

cause Mr. Norwood faced only an attempt charge, it simply

needed to prove that he took a substantial step toward trans

‐ porting the victim across state lines. Mr. Norwood, the Gov

‐

ernment observes, purposefully targeted the Backpage ads to

Wisconsin cities. Mr. Norwood also advertis ed that the victim

would make “out calls.” Finally, he rented a hotel room on

the Illinois

‐ Wisconsin border to allow for easy travel to cli

‐

ents. The Government also inv ites our attention to United

States v. Cosby

, 924 F.3d 329 (7th Cir. 2019). There, we rejected

a sufficiency of the evidence challenge by a defendant con

‐

victed under § 2423(a). The Cosby defendant had argued that

the Government failed to prove he intended for the minor vic

‐

tim to engage in prostitution because there was a two

‐ day gap

after the defendant and victim crossed state lines before the

prostitution commenced. See id. at 335–36. We held that evi

‐

dence of pre

‐ transport prostitution was relevant to the de

‐

fendant’s intent, particularly when the only relationship be

‐

tween the defendant and victim was “one of pimp to prosti

‐

tute.” Id. at 336.

9 Appellant’s Br. 26.10 No. 19

‐ 2178

In denying Mr. Norwood’s motion for judgment of acquit

‐

tal at the close of the Government’s evidence, the district court

reviewed the evidence in the record from which a reasonable

jury could find Mr. Norwood guilty. The district court specif

‐ ically noted the Backpage advertisements targeting Wiscon

‐

sin clients, the border

‐ town hotel, the cell site data, and the

victim’s statements in the medical records. That evidence, the

district court concluded, supported denial of Mr. Norwood’s

motion.

The district court’s decision is solidly supported by the

record. Our decision in Cosby also supports its decision.

Mr. Norwood’s relationship to the victim, like that of the

Cosby defendant and minor victim, was solely “one of pimp

to prostitute.” The Backpage evidence of Mr. Norwood’s ef

‐

forts to prostitute the victim in the time leading up to the at

‐ tempted transportation to Wisconsin was surely evidence of

his intent to continue prostituting her once they crossed state

lines. 10 Applying the more demanding standard of review,

there certainly is no manifest injustice in affirming Mr. Nor

‐

wood’s conviction. The district court carefully considered the

Government’s evidence and specifically addressed Mr. Nor

‐

wood’s arguments regarding the statute’s intent element.

B.

Having concluded that the evidence of record can sustain

Mr. Norwood’s conviction, we now examine the situations

10 As the district court noted, there was substantial evidence in the record

that Mr. Norwood transported the victim to Wisconsin. But because the

Government only charged an attempt, it did not need to prove that

Mr. Norwood and the victim actually crossed state lines.No. 19

‐ 2178 11

that arose during the merits phase of the trial that Mr. Nor

‐

wood believes made the proceedings unfair.

1

.

Mr. Norwood’s first claimed trial error involves the dis

‐

trict court’s admission of the victim’s medical records. As we

noted earlier, Nurse Philipps, who examined the victim upon

her return to Indiana, testified during Mr. Norwood’s trial. As

part of her testimony, the Government offered a reda cted

copy of the victim’s medical records from that examination.

The medical records recited that the victim had told Nurse

Philipps that she had sexual intercourse with “approximately

16 unknown males” during the prior five days and “too many

to count” since meeting Mr. Norw ood in April 2015. 11 The vic

‐

tim also told Nurse Philipps that she voluntarily had used

marijuana and cocaine, was “tricked into using heroin” one

week earlier, and had smoked a cigarette possibly laced with

crack cocaine. 12 The Government redacted all references to

Mr. Norwood; the records contained only the victim’s de

‐ scription of her sexual history and her drug use in the days

before the exam.

As we noted earlier, the victim did not testify at Mr. Nor

‐

wood’s trial. Relying on the Confrontation Clause and Fed

‐

eral Rule of Evidence 403, Mr. Norwood moved to exclude the

victim’s medical records. The dist rict court denied the motion

on both grounds. Addressing the Confrontation Clause issue,

the district court noted that Nurse Philipps had testified that

her questions, and the victim’s answers, about the number of

11 R.205, Ex. 2 at 2, 6.

12 See id. at 5 (internal quotation marks omitted).12 No. 19

‐ 2178

sexual partners and the types of sexual encounters were for

the primary purpose of diagnosis and medical treatment.

Nurse Philipps also testified that questions and answers

about the victim’s drug use, including whether the drug use

was voluntary, were for the primary purpose of medical treat

‐

ment and avoiding adverse medication interactions. On th e

basis of this testimony, the district court ruled that the re

‐

dacted medical records were nontestimonial.

On the Rule 403 objection, the district court determined

that the victim’s statements in the medical report were highly

probative of Mr. Norwood’s intent that the victim engage in

prostitution

. Although Mr. Norwood pointed to the victim’s

inability to indicate specifically the dates on which certain

sexual encounters and drug use had occurred, the district

court concluded that such an argument was one of weight,

not admissibility.

Mr. Norwood now renews his Confrontation Clause and

Rule 403 challenges to the admission of the victim’s medical

records. Because the Confrontation Clause issue requ ires the

most attention, we will address that issue before turning to

the Rule 403 issue.

a.

The Confrontation Clause provides: “In all criminal pros

‐

ecutions, the accused shall enjoy the right

... to be confronted

with the witnesses against him.” U.S. Const. amend. VI. We

review Confrontation Clause challenges de novo. See United

States v. Thompson

, 286 F.3d 950, 961 (7th Cir. 2002).

At one time, the Supreme Court interpreted the Confron

‐

tation Clause to allow for the admission of out

‐ of

‐ court state

‐

ments by an unavailable witness, provided the statementsNo. 19

‐ 2178 13

possessed an “adequate ‘indicia of reliability.’” Ohio v. Rob

‐

erts

, 448 U.S. 56, 66 (1980). In practice, statements bore suffi

‐

cient indicia of reliability if they fell into an established hear

‐

say exception or bore a “particularized guarantee[] of trust

‐

worthiness.” Id. Then came Crawford v. Washington

, 541 U.S.

36 (2004), which marked a dram atic change in the Supreme

Court’s Confrontation Clause jurisprudence. In Crawford

, the

Court sought to return the Confrontation Clause to its histor

‐

ical roots and tracked the right to confront one’s accusers from

16th century England, to the 1603 trial of Sir Walter Raleigh

for treason, to the Colonial

‐ era admiralty cases brought under

the Stamp Act, to the founding

‐ era debates surrounding the

drafting of our Constitution. Id. at 42–49.

This history, the Court observed, supported two conclu

‐

sions. First, “the principal evil at which the Confrontation

Clause was directed was the civil

‐ law mode of criminal pro

‐

cedure, and particularly its use of ex parte examinations as

evidence against the accused.” Id. at 50. Consistent with that

principal concern, the Court read the Clause’s text to guaran

‐

tee a defendant the chance to confront “witnesses” against

him. And “witnesses,” the Supreme Court observed, are those

“who bear testimony.” Id. at 51 (internal quotation marks

omitted). Testimony “typically [mea ns] ‘[a] solemn declara

‐

tion or affirmation made for the purpose of establishing or

proving some fact.’” Id. (second alteration in original) (quot

‐ ing 2 N. Webster, An American Dictionary of the English Lan

‐

guage (1828)).

The Court’s second conclusion from its historical study

was that the Confrontation Clause prohibits the admission of

testimonial statements by a witness who does not testify at the

defendant’s trial. That is, unless the “declarant is14 No. 19

‐ 2178

unavailable,” and even then “only where the defendant has

had a prior opportunity to cross

‐ examine” the absent declar

‐

ant. Id. at 59. Moreover, it is not enough for the absent wit

‐

ness’s statement to fall into an established hearsay exception.

“[O]nly those exceptions [to confrontation] established at the

time of the founding” will permit admission of an out

‐ of

‐

court testimonial statement by a non

‐ testifying declarant. Id.

at 54 (citing Mattox v. United States

, 156 U.S. 237, 243 (1895)).

Crawford therefore requ ires, as a threshold matter, that a

court focus on whether a statement is testimonial or nontesti

‐

monial. This issue has occupied courts ever since the advent

of Crawford

. “Whatever else the term [‘testimonial’] covers, it

applies at a minimum to prior testimony at a preliminary

hearing, before a grand jury, or at a former trial; and to police

interrogations.” Id. at 68. Because Crawford ’s underlying facts

involved statements made during a formal police interview,

the admission of those statements at trial without confronta

‐

tion surely violated the Sixth Amendme nt. Id. Because it

could decide the case on that minimalist definition, the Court

did not have occasion to “spell out a comprehensive defini

‐

tion of ‘testimonial.’” Id.

The Court’s subsequent cases built a framework around

Crawford ’s historically grounded discussion of what makes a

statement “testimonial.” In Davis v. Washington and Hammon

v. Indiana

, 547 U.S. 813, 822 (2006), two cases consolidated for

decision, the Supreme Court introduced the “primary pur

‐ pose” test. Under that test, “[s]tatements are nontestimonial

when made in the course of police interro gation under cir

‐

cumstances objectively indicating that the primary purpose of

the interrogation is to enable police assistance to meet an on

‐ going emergency.” Id. By contrast, statements “areNo. 19

‐ 2178 15

testimonial when the circumstances objectively indicate that

there is no such ongoing emergency, and that the primary

purpose of the interrogation is to establish or prove past

events potentially relevant to later criminal prosecution.” Id.

Two years after it decided Davis

, the Court again ad

‐

dressed the Confrontation Clause’s scope in Giles v. California

,

554 U.S. 353 (2008). There, the Cour t reiterated that “only tes

‐

timonial statements are excluded by the Confrontation

Clause.” Id. at 376. That means “[s]tatements to friends and

neighbors about abuse and intimidation and statements to

physicians in the course of receiving treatment would be ex

‐

cluded, if at all, only by hearsay rules.” Id. A year later, the

Court held in Melendez

‐ Diaz v. Massachusetts

, 557 U.S. 305, 321

(2009), that business records, which would include medical

records, are typically nontestimonial. Documents kept in the

regular course of business, therefore, generally do not impli

‐

cate the Confrontation Clause. Id. That is, of course, unless

“the regularly conducted business activity is the production

of evidence for use at trial.” Id.

Giles and Melendez

‐ Diaz fit with the primary purpose test:

the reason for the document’s production places it within or

outside of the Confrontation Clause’s purview. Later, in Mich

‐ igan v. Bryant

, 562 U.S. 344 (2011), the Supreme Court further

elaborated on the primary purpose test. It explained that un

‐

der the primary purpose test, courts must ask whether,

viewed objectively and in full context, the primary purpose of

the declarant’s statements was to “creat[e] an out

‐ of

‐ court

substitute for trial testimony.” Id. at 358. The Supreme Cour t’s

application of that test in Hammon and Davis had focused on

the existence of an “ongoing emergency.” Id. at 358. Yet in

Bryant

, the Court cautioned that “what Davis meant by16 No. 19

‐ 2178

‘ongoing emergency’ should not be taken to imply that the

existence vel non of an ongoing emergency is dispositive of the

testimonial inquiry.” Id. at 366. Instead, an “ongoing emer

‐ gency” is simply one consideration when applying the pri

‐

mary purpose test. Bryant made clear that the totality of the cir

‐

cumstances guides the primary purpose test, not any one fac

‐

tor.

There are two additional lessons from Bryant relevant to

our decision today. Fi rst, when employing the primary pur

‐

pose test, courts should consider the “formality” of the cir

‐

cumstances in which the declarant made the statements. Id.

Formal questioning at a police station, as occurred in Craw

‐ ford

, will elicit testimonial statements. On the other hand,

questioning in less formal circumstances is less likely to elicit

testimonial statements. Id. at 366, 377. Second, “the statements

and actions of both the declarant and interrogators provide

objective evidence of the primary purpose of the interroga

‐

tion.” Id. at 367 (emphasis added). This approach is necessary

because “[i]n many instances, the primary purpose of the in

‐ terrogation will be most accurately ascertained by looking to

the contents of both the questions and the answers.” Id. at

367–68.

On this final poin t—the need to focus on both questions

and answers—the Supreme Court observed that examining

both sides of the conversation takes on added significance

when the questioner may have mixed motives. Id. (“Police of

‐

ficers in our society function as both first responders and

criminal investigators. Their dual responsibilities may mean

that they act with different motives simultaneously or in

quick succession.”). Therefore, the questioner’s identity, as

well as the “tenor” of the questioning, matters for the primaryNo. 19

‐ 2178 17

purpose test. Id. at 369. We must scrutinize the primary pur

‐

pose behind the questioner’s questions and declarant’s an

‐

swers from the perspective of an objective observer. The ques

‐

tioner’s subjective understanding does not control. Id. at 369–

70.

The Supreme Court’s decisions from Crawford through

Bryant involved statements made to law enforc ement person

‐

nel. 13 It was not until Ohio v. Clark

, 576 U.S. 237 (2015), that the

Supreme Court had an opportunity to explain how the pri

‐

mary purpose test applies to statements made to someone

who is not a law enforcement officer. In Clark

, a preschool

teacher noticed injuries to one of her students, L.P., a

three

‐ year

‐ old boy. Id. at 240–41. The teacher alerted a col

‐ league and together they questioned L.P. about the cause of

his injuries—asking directly: “Who did this? What happened

to you?” Id. (quotation marks omitted). The young child iden

‐

tified Darius Clark, his mother’s boyfriend, as the person who

hurt him. Id. at 241. The teachers notified authorities of the

suspected child abuse, which even tually led to Clark’s arrest

and indictment. Id. at 241–42. At Clark’s trial, the trial court

deemed L.P. “not competent to testify.” Id. at 242. Under

Ohio’s rules of evidence, however, “reliable hearsay [state

‐

ments] by child abuse victims” are admissible. Id. at 242 (cit

‐ ing Ohio R. Evid. 807). Clark moved to exclude L.P.’s

out

‐ of

‐ court identification under the Confrontation Clause,

but the trial court denied his motion. Id. After hearing L.P.’s

statements to his teachers, the jury convicted Clark. The

13 Although Davis involved statements made to a 911 operator, the Court

treated those statements as made to a law enforcement officer, given the

operator’s interrogation of the caller. Davis v. Washington

, 547 U.S. 813, 823

n.2 (2006).18 No. 19

‐ 2178

Supreme Court of Ohio reversed the conviction, holding that

L.P.’s statements to his teachers were testimonial.

The Supreme Court of the United States granted certiorari

and reversed the Ohio decision. Id. at 243. The Supreme Court

reviewed its post

‐ Crawford decisions and reiterated its past

holdings that “a statement cannot fall within the Confronta

‐

tion Clause unless its primary purpose was testimonial.” Id.

at 245. But the Court added two qualifiers to its discussion of

the primary purpose test. First, it noted that post

‐ Crawford de

‐

cisions also “recognized that the Confrontation Clause does

not prohibit the introduction of out

‐ of

‐ court statements that

would have been ad missible in a criminal case at the time of

the founding.” Id. at 246 (citing Giles

, 554 U.S. at 358–59; Craw

‐ ford

, 541 U.S. at 56 & n.6). Second, the Supreme Court ob

‐

served that “the primary purpose test is a necessary, but not

always sufficient, condition for the exclusion of out

‐ of

‐ court

statements under the Confrontation Clause.” Id. ; but see id. at

251–52 (Scalia, J., concurring in the judgment).

Qualifiers aside, the Supreme Court applied the primary

purpose test to Clark’s case. The Court declined to place state

‐

ments to people other th an law enforcement categorically out

‐

side of the reach of the Confrontation Clause. But the Court

cautioned that “such statements are much less likely to be tes

‐

timonial than statements to law enforcement officers.” Id. at

246 (majority opinion). The Court then concluded that the

questioning by L.P.’s teachers occurred in the context of an

ongoing em ergency; the teachers needed to know whether

L.P. was at risk of returning to his abuser at the end of the

school day. Id. at 247. The Court also concluded that the pri

‐

mary purpose of the teachers’ questions was to protect L.P.,

not to gather evidence for a prosecution. Id. And theNo. 19

‐ 2178 19

conversation between L.P. and his teachers was spontaneous

and occurred in the preschool lunchroom, undoubtedly an in

‐

formal setting. Finally, the Court observed that although

statements made to individuals who are not law enforcement

may fall within the Confrontation Clause’s scope, the ques

‐

tioner’s identity remains an important part of the interr oga

‐

tion context. Since the primary purpose test looks at the total

‐ ity of the circumstances, that L.P. made the statements to his

preschool teachers weighed heavily in the analysis. “It is com

‐

mon sense,” the Court noted, “that the relationship between

a student and his teacher is very different from that between

a citizen and the police.” Id. at 249.

The Court then went a step beyond simply applying the

primary purpose test. It wrote that L.P.’s age “fortifie[d]” its

conclusion that his statements identifying Clark were not tes

‐

timonial. Id. at 247–48. “Statements by very young children,”

the Court observed, “will rarely, if ever, implicate the Con

‐

frontation Clause.” Id. That is because very young children

simply do not understand the legal implications of their state

‐

ments. Id. Notably, the Court then pointed to historical prac

‐

tice in 17th and 18th century England, which permitted hear

‐

say in child rape pros ecutions when the child was incompe

‐

tent to testify. Id. In their concurrence in the judgment, Jus

‐

tices Scalia and Ginsburg also concluded that L.P.’s age “re

‐

futes the notion that he is capable” of making testimonial

statements. Id. at 251 (Scalia, J., concurring in the judgment).

Like the ma jority, Justices Scalia and Ginsburg observed that,

at common law, young children were rarely competent to20 No. 19

‐ 2178

testify, so courts admitted their hearsay statements. 14 Id. at

251–52.

No decision from the Supreme Court of the United States

squarely addresses the situation before us in this case: state

‐

ments made by a minor, though not a very young child, to a

sexual assault nurse examiner (“SANE”). Statements made to

a SANE in the context of a part

‐ medical, part

‐ forensic exami

‐

nation are difficult to examine under the primary purpose

test. SANEs are medical professionals, but they also typically

receive special training to aid law enforcement in sexual as

‐

sault investigations. Sexual assault examinations conducted

by a SANE, then, can serve both a medical and investigative

function. 15 Consequently, courts applying the context

‐ specific

primary purpose test to statements made by a non

‐ testifying

victim during one of these examinations must tread carefully.

There is some, but not much, post

‐ Crawford case law from

our circuit and others applying the primary purpose test to

statements made to a SANE. In United States v. Bordeaux

, 400

F.3d 548 (8th Cir. 2005), the Eighth Circuit held that state

‐

ments made to a forensic interviewer by a young child who

accused the defendant of sexually abusing her were testimo

‐

nial. There, law enforcement officials referred the victim to a

14 Both the majority and concurring Justices in Clark drew from scholar

‐ ship on the historical treatment of child victims. See Ohio v. Clark

, 576 U.S.

237, 248 (2015) (citing Thomas D. Lyon & Raymond LaMagna, The History

of Children’s Hearsay: From Old Bailey to Post

‐ Davis, 82 Ind. L.J. 1029, 1 030,

1 041–44 (2007); John H. Langbein, The Origins of Adversary Criminal Trial

239 (2003)); id. at 251 (Scalia, J., concurring in the judgment).

15 Accord Michigan v. Bryant

, 562 U.S. 344, 367–68 (2011) (noting the poten

‐

tial for a questioner to act with multiple purposes).No. 19

‐ 2178 21

center for child evaluation. At the center, a forensic inter

‐

viewer asked the victim questions about the assault, and then

a physician conducted a medical exam. Id. at 555. Even

though there may have been some medical purpose, the

Eighth Circuit concluded that the purpose of the forensic

exam was for gathering evidence to use at trial. Id. at 557.

In a recent habeas case, Ramirez v. Tegels

, 963 F.3d 604 (7th

Cir. 2020), we were required to apply post

‐ Crawford

, pre

‐ Bry

‐

ant case law and consider the Confrontation Clause’s applica

‐

tion to statements made by a victim to a SANE. The petition

in Ramirez centered on appellate counsel’s failure to raise a

Confrontation Clause challenge to the admission of a child

victim’s out

‐ of

‐ court statements. There, the defendant stood

convicted of sexually assaulting his stepdaughter on two oc

‐

casions—once when she was seven years old, and the second

time a year later. Id. at 607. As part of the ineffective assistance

inquiry, we commented on how the primary purpose test ap

‐ plied to two sets of statements that the victim had made.

The first were statements by the victim made directly to

detectives investigating a sexual assault repo rt filed by the

victim’s mother. The State conceded that these statements

were testimonial because the defendant already had been ar

‐

rested, the statements were not spontaneous, and there was

no risk that the victim would be released to the defendant’s

custody; in short, there was no ongoing emergency. Id. at 615.

The second set of statements were made by the victim to

hospital staff during a sexual assault exam. We noted that the

victim and her mother did not go to the hospital on their own;

a detective drove them there. Id. We also noted that a detec

‐

tive was in the room for at least part of the examination. Id.

Still, we “acknowledge[d] that [the victim’s] statements22 No. 19

‐ 2178

during her examination regarding what happened to her and

whether she was hurting may have been for the primary pur

‐

pose of receiving medical treatment rather than for prosecu

‐

torial purposes.” Id. at 615–16. At the same time, her “other

statements, such as those about where the assault happened

and the iden tity of her abuser,” were for the primary purpose

of proving past events for later use at trial. Id. at 616. We also

noted that statements about the first sexual assault, which oc

‐

curred a year before the examination, were particularly likely

to be testimonial. Id. Given that Ramirez only required us to

decide whether appellate counsel was ineffective for failing to

raise a Confrontation Clause issue, we declin ed to “determine

precisely which statements would not have been admitted

under the Confrontation Clause.” Id. Moreover, because

Ramirez was a habeas petition, we applied the Confrontation

Clause case law as it existed in 2007, the year that the defend

‐

ant’s conviction became final. Thus, the law applicable in

Ramirez predated the Supreme Court’s decision in Ohio v.

Clark

, 576 U.S. at 237.

Since the Supreme Court’s decision in Clark

, there have

been few decisions from federal courts of appeals or district

courts addressing circumstances like those presented in this

case. One of the few is the Fifth Circuit’s opinion in United

States v. Barker

, 820 F.3d 167 (5th Cir. 2016), which discussed

statements made by a four

‐ and

‐ a

‐ half

‐ year

‐ old victim to a

SANE about sexual abuse by the defendant. Id. at 169. The

Fifth Circuit noted that the victim made the statements during

the SANE’s examination—which involved o btaining a medi

‐

cal history, as well as conducting a full physical examina

‐

tion—and occurred outside the presence of law enforcement.

Id. Although the SANE testified that the purpose of the examNo. 19

‐ 2178 23

was to ensure the victim’s well

‐ being, the SANE also pro

‐

duced a report that was then provided to law enforcement. Id.

The Fifth Circuit held that the child’s statements to the

SANE were not for the primary purpose of creating an

out

‐ of

‐ court substitute for trial testimony. The court relied

heavily on Clark

, noting that in both cases there was an ongo

‐ ing emergency because the questioner needed to make sure

the child would not be placed back in harm’s way after the

questioning. Id. at 171. The Fifth Circuit also observed that,

although more formal than the preschool lunchroom in Clark

, the hospita l setting for the SANE’s exam was “far different”

from a police stationhouse interrogation. Id. at 172. The Court

noted that the SANE’s special certifications did not transform

her into a law enforcement officer; she was a medical profes

‐

sional above all else. Id. Finally, the Fifth Circ uit noted the vic

‐

tim’s young age and observed, consistent with Clark

, that a

young child will rarely make testimonial statements. Id. at

171. The child’s statements to the SANE identifying the

abuser and describing the abuse, therefore, were not testimo

‐

nial.

In addition to the few federal cases applying the primary

purpose test to a victim’s statements made to a SANE, there

is a considerable body of state court decisions on the matter.

A pair of opinions from the Supreme Court of Kansas provide

helpful examples as well as a survey of the state decisional

landscape. In State v. Miller

, 264 P.3d 461 (Kan. 2011), the court

held that a four

‐ year

‐ old victim’s statements to a SANE were

nontestimonial becaus e the primary purpose of the questions

and statements were for medical treatment, not criminal pros

‐

ecution. Context drove the court’s conclusion: although there

was no ongoing emergency, the victim complained of pain,24 No. 19

‐ 2178

her mother independently sought medical treatment, the

SANE provided medical treatment, and the victim’s young

age made it unlikely she would understand the exam to be

about gathering forensic evidence. Id. at 489–90. The same day

it decided Miller

, the Supreme Court of Kansas also decided

State v. Bennington

, 264 P.3d 440 (Kan. 2011). There, the court

held that a seventy

‐ seven

‐ year

‐ old rape victim’s statements to

a SANE were testimonial. As in Miller

, the totality of the cir

‐

cumstances drove the decision in Bennington : there was no on

‐ going emergency; the victim was an adult; during the first

stage of the SANE’s examination, a police officer was present

and asked the victim questions; and during the second stage

of the examination, between only the victim and SANE, the

SANE posed questions from a police questionnaire. Id. at 453–

54.

In Miller

, the Supreme Court of Kansas scoured the body

of post

‐ Crawford state court case law invo lving statements

made by a victim to a SANE or other medical professional.

Miller

, 264 P.3d at 479–82 (collecting cases). Because Confron

‐

tation Clause challenges are so fact

‐ specific and context

‐ spe

‐

cific, the court noted that it is difficult to distill a general rule

from the large body of case law. Id. at 482. But the court ob

‐

served that when the medical provider or SAN E can testify

“that the question of ‘what happened’ was necessary for

[medical] treatment

... the statements [by the victim] are non

‐

testimonial even if there is a secondary purpose of preserving

evidence.” Id. When the opposite is the case—there is “little

to no medical purpose for the examination and the interview

is conducted by a [SANE] primarily for forensic purposes”—

the victim’s statements are likely testimonial. Id. And if law

enforcement officers participate in the SANE’s examination,No. 19

‐ 2178 25

“there is a strong trend toward finding the victim’s statements

testimonial.” Id.

Our own review of the cases collected in Miller leads us to

the same conclusions. Compare, e.g.

, State v. Slater

, 939 A.2d

1105, 1118 (Conn. 2008) (adult sexual assault victim’s state

‐

ment to nurse held nontestimonial when she described her in

‐ juries and “[n]one of [her] statements related to the identity

of her assailant nor to other details of the crime unrelated to

medical treatment”), with, e.g.

, State v. Romero

, 156 P.3d 694,

698 (N.M. 2007) (victim’s statement to SANE held testimonial

when it identified th e defendant has her attacker, law enforce

‐

ment arranged victim’s examination by SANE weeks after the

assault, and there was no medical purpose to the examina

‐

tion). The same general trends have held true in state court

decisions following Clark —although cases involving very

young children now tend to have an added layer of discus

‐

sion. See, e.g.

, In re J.C.

, 877 N.W.2d 447, 458 (Iowa 2016); id. at

461–63 (Wiggins, J., dissenting). We also detect another trend:

when a victim’s entire statement presents testimonial por

‐

tions alongside nontestimonial portions, state courts broadly

approve of breaking out the black marker and redacting the

testimonial parts—“[o]ften this will require examination of

individual questions and responses.” See Miller

, 264 P.3d at

487.

Mr. Norwood’s case requires that we contribute to the

body of post

‐ Crawford and post

‐ Clark case law on how the pri

‐

mary purpose test applies to statements made by an abuse or

assault victim to a medical provid er. The framework we em

‐ ploy here is intended to address some of the recurring ques

‐

tions that arise when a victim of abuse or assault makes state

‐

ments to a medical professional during an examination that26 No. 19

‐ 2178

serves, to one degree or another, both a medical and investi

‐

gatory purpose.

We start by recalling that not every statement made by an

abuse or assault victim to a medical professional implicates

the Confrontation Clause. A victim’s statements to his or her

physician in the course of a routine checkup, just like off

‐ hand

comments to friends or neighbors, are not testimonial. See

Giles

, 554 U.S. at 376. Those circumstances bear no resem

‐

blance to the out

‐ of

‐ court interrogations that the Confronta

‐

tion Clause guards against.

On the other hand, when the medical provider examines

the victim because of suspected abuse or assault, the victim’s

statements may be test imonial. In this context, courts should

ascertain whether the statements were made in the midst of

an ongoing emergency. The Supreme Court’s case law is clear

that statements made as part of an ongoing emergency do not

have the primary purpose of crea ting an out

‐ of

‐ court substi

‐

tute for testimony. See Davis

, 547 U.S. at 822. One possible ex

‐ ample of an ongoing emergency is when the medical provider

believes that the victim may be released to the custody of

whomever harmed him or her. See Clark

, 576 U.S. at 246–47

(fear that the child woul d return at the end of the school day

to his abuser was an ongoing emergency). The existence of an

ongoing emergency is not necessary to meet the primary pur

‐

pose test, but the Supreme Court’s case law tells us it is suffi

‐

cient.

In many instances the examination will not occur in the

context of an ongoing emergency, and the court must evalu

‐

ate the circumstances surrounding the victim’s statement. The

Supreme Court observed in Bryant

, 562 U.S. at 366, that for

‐ mality is a factor in the primary purpose test. Where theNo. 19

‐ 2178 27

medical provider speaks to the victim, therefore, matters. A

medical examination that takes place at a police station is very

different from one that takes place at a hospital. Police sta

‐

tions invoke formality, for purposes of the Confrontation

Clause, in a way that hospitals do not. A tougher call is be

‐

tween an exam at a hospital and one at a center with a special

focus on abuse or assault victims. Yet even if the place where

the exam occurs has a special focus on victims, statements

made during an examination should not be automatically or

even presumptively labeled testimonial. Instead, further in

‐ quiry into the extent and manner of patient care is necessary.

It also is important to consider the identity of the victim,

questioner, and others present when the statements were

made. Bryant

, 562 U.S. at 367–70. The victim characteristic that

has most frequently impacted a court’s prim ary purpose test

inquiry is the victim’s age. Though Clark ’s discussion of a

child’s age may not have been essential to the Court’s holding,

it is still informative. A very young child will rarely make

statements for the primary purpose of creating an

out

‐ of

‐ court substitute for testimony; they are typically inca

‐ pable of forming that purpose. Older childre n and adults, of

course, typically have a better understanding that allegations

of criminal conduct can lead to a prosecution. Courts should

be careful, therefore, to examine the objective circumstances

surrounding an older child’s or adult’s statements during a

SANE’s exam.

As for the questioner’s identity, th ere are three scenarios

to consider. First, the overwhelming trend after Crawford is

that when law enforcement is present at the examination and

asks the victim questions, the victim’s responses are testimo

‐

nial. See, e.g.

, Bennington

, 264 P.3d at 453–54. In those28 No. 19

‐ 2178

instances, the hospital room is, for our purposes, transformed

into a stationhouse. Second, when law enforcement officers

are in the exam room, but do not participate in the question

‐ ing, their presence still weighs on the analysis. A victim hear

‐ ing questions from and giving answers to a nurse who is

standing bes ide a police officer is objectively more likely to

understand the statements to be part of an investigation. But

an officer’s mere presence should not halt the inquiry in the

same way that an officer’s questioning would. Finally, when

the only people in the room are the medical provider and the

victim, the analysis is more straightforward. A nurse and doc

‐

tor are quite different from a police officer. Absent additional

evidence, physicians an d nurses’ primary concern is the treat

‐

ment of their patients; criminal investigation is a secondary

concern.

When the circumstances, viewed objectively, indicate

multiple purposes behind the medical professional’s ques

‐

tions and the victim’s answers, the trial court should consider

employing an in limine process to identify and redact the tes

‐

timonial portions of the victim’s statements. See Davis

, 547

U.S. at 829 (Trial courts “should redact or exclude the portions

of any statement that have become testimonial, as they do, for

example, with unduly prejudicial portio ns of otherwise ad

‐

missible evidence.”). Careful redactions can even parse the

testimonial from the nontestimonial parts of a sentence. The

primary thrust of the court’s inquiry must be whether there is

an objectively ascertainable medical reason for the inquiry. A

medical provider, faced with a victim who has suffered as

‐

sault or injury, needs to know what happened. The primary

purpose for asking what happened, therefore, is to provide

medical treatment, not to further an investigation. See Barker

,

820 F.3d at 171. The same goes for the question of when anNo. 19

‐ 2178 29

injury occurred, since the answer may well dictate the course

of treatment. 16

With this framework in mind, we turn to the facts of

Mr. Norwood’s case. We start with the obvious: the victim did

not make the incriminating statements about Mr. Norwood

during a routine medical examination. Rather, the police re

‐

covered her in Winthrop Harbor, and then case workers from

the Indiana Department of Child Services took her to the hos

‐ pital in Indianapolis. Nor did the victim make the challenge d

statements during an ongoing emergency. Unlike the child in

Clark

, there was no risk that the victim would be released from

the medical exam to Mr. Norwood’s custody.

We turn next to the identities of all involved in the victim’s

hospital examination. The victim is a minor, but she is not a

young child. Clark ’s observation that very young children

rarely will act with the primary purpose of furthering a crim

‐

inal investigation therefore does not apply here. Given that

the police recovered her from the hotel in Winthro p Harbor

only a day earlier, it is reasonable that she would recognize

that her statements about Mr. Norwood to Nurse Philipps

might be used in a later criminal prosecution. Moreover, as

we note in some detail below, the consent form that Nurse

16 There is some temporal limitation, however, when it comes to questions

about when an injury occurred. Asking about an assault or injury that oc

‐

curred a year earlier is different from asking about one that occurred much

closer to the time of the examination. In the former scenario, there would

need to be a greater showing th a t, viewed objectively, questioning when

an old injury occurred had the primary purpose of treatment, not criminal

investigation. Accord Ramirez v. Tegels

, 963 F.3d 604, 616 (7th Cir. 2020)

(distinguishing questions about sexual abuse a year earlier from questions

about more recent sexual abuse).30 No. 19

‐ 2178

Philipps tendered explicitly informed the victim that the in

‐

formation obtained during the examination would be shared

with the police if the victim reported an assault.

Nurse Philipps, the SANE who conducted the victim’s

exam, testified that there were no police officers present dur

‐ ing the exam. Civilian employees of the Indiana Department

of Child Services transported the victim from the police sta

‐

tion in Illinois back to Indiana, first to an emergency shelter,

then to the hospital. Police officers did not participate in or

observe the victim’s examination.

Nurse Philipps’s identity and the tenor of her questions

also inform how the ob jective observer would perceive the ex

‐

amination. See Bryant

, 562 U.S. at 369. Nurse Philipps testified

that, at the time of the victim’s exam, her responsibilities as a

registered nurse at the hospital included conducting sexual

assault examinations and completing forensic medical re

‐

ports. Nurse Philipps also testified that she was respon sible

for working with physicians to develop a specialized plan of

care. Before the examination, Nurse Philipps gave the victim

a “Forensic Medical Record/Sexual Assault Exam” form to

look over and sign. That form asked for the victim’s consent

to an “examination by a specially trained Sexual Assa ult

Nurse Examiner to discover and preserve evidence of the as

‐

sault.” 17 The form also noted that the medical providers

would only share evidence with law enforcement if the victim

chose to report the assault. As for the exam itself, Nurse

Philipps started by taking the victim’s medical history. She

next examined the victim for injuries or other ailments

17 R.205, Ex. 2 at 1.No. 19

‐ 2178 31

requiring treatment. Then she asked the victim about her re

‐

cent sexual history and drug use.

Under these circumstances, we conclude that the victim’s

sexual assault examination served both medical and investi

‐

gatory purposes. As the Supreme Court explained in Davis

, in

these circumstances, it is often possible to redact testimonial

parts of a conversation. Here, the district court accepted the

Government’s redacting of the victim’s medical records to re

‐

move her statements identifying Mr. Norwood. Because iden

‐ tity statements are rarely for the primary purpose of medical

treatment, redacting Mr. Norwood’s name was a prudent,

and here necessary, approach. Similarly, the Government re

‐

dacted the victim’s description of where her sexual encoun

‐

ters with Mr. Norwood and other men had occurred. Location

information is also unlikely to matter for medical purposes,

so that, too, was a prudent and necessary redaction.

After the Government’s redactions, all that was left in the

victim’s medical reports were her descriptions of what had

happened and when it had happened. Her answers to ques

‐

tions about what happened involved detailed descriptions of

her sexual history from when she met Mr. Norwood roughly

a month earlier to when the police recovered her in Winthrop

Harbor on May 21, 2015. As Nurse Philipps testified, the num

‐

ber and types of sexual encounters mattered a great deal to

determining the best course of medical treatment. The same

is true for the victim’s description of her drug use over that

timeframe. Nurse Philipps noted that it was essential to know

what substa nces the victim had ingested, as well as whether

her drug ingestion was entirely voluntary. It was also im

‐

portant for Nurse Philipps to know when certain sexual32 No. 19

‐ 2178

encounters and drug use occurred, since the timing could al

‐

ter the victim’s treatment.

In some parts of the victim’s medical records, the Govern

‐

ment redacted entire questions. In others, the Government left

most of a sentence but redacted Mr. Norwood’s name. Both

approaches can be appropriate; the trial court must carefully

exercise its discretion in individu al circumstances. Here, the

district court properly ensured that the Government excised

the parts of the victim’s statements that lacked the primary

purpose of medical treatment. In essence, the jury only con

‐

sidered the victim’s statements to Nurse Philipps about what

had happened and when. Those statements were for the pri

‐

mary purpose of medical treatment. They are therefore non

‐

testimonial, and the district court’s admission of the victim’s

redacted medical records did not violate Mr. Norwood’s Sixth

Amendment right to Confrontation.

b.

Mr. Norwood also submits that the district court abused

its discretion in admitting the redacted hospital records be

‐

cause they should have been excluded under Federal Rule of

Evidence 403. That rule provides that “[t]he court may ex

‐

clude relevant evidence if its probative value is substantially

outweighed by a danger of

... unfair prejudice.” Fed. R. Evid.

403. Generally, we review a district court’s admission of evi

‐

dence only for abuse of discretion. But when it comes to “the

necessarily context

‐ sensitive evaluation of a claim under Rule

403, ‘we give special deference’ to the district court’s findings

and reverse only when ‘no reasonable person could take the

view adopted by the trial court.’” United States v. LeShore

, 543

F.3d 935, 939 (7th Cir. 2008) (quoting United States v. Cash

, 394

F.3d 560, 564 (7th Cir. 2005)).No. 19

‐ 2178 33

In Mr. Norwood’s view, the admission of these records

carried a high probability of prejudice because the statement

that the victim, a minor, had endured numerous acts of pros

‐

titution was sure to elicit a great deal of sympathy from the

jury. The possibility of such prejudice, he says, substantially

outweighs whatever probative value this evidence might con

‐

tribute.

We begin by noting that the evidence was relevant and

probative on the issue of Mr. Norwood’s intent, an important

element in the attempt charge that the Government had to

prove to the jury by circumstantial evidence. The medical rec

‐

ords also assisted the jury in placing the victim and Mr. Nor

‐

wood together during the period when she told Nurse

Philipps she had engaged in multiple sex acts with unknown

men. The victim’s confirmation of her drug ingestion also

aided the jury in determining whether Mr. Norwood was re

‐ ferring to the victim in his jail call discussion of prostitution.

Moreover, the district court conducted a thorough Rule

403 analysis. It noted the victim’s inability to specify exactly

when events occurred, but found the timing to be an issue of

weight, not admissibility. The district court stated: “[E]ven

though there may have been so me difficulty with [the vic

‐

tim’s] providing a chronological order for the events, the in

‐

terview notes reflect that she was pretty clear about what hap

‐ pened over the prior five days in term[s] of the number [of]

men then that she had sexual encounters with.” 18 Thus, the

record shows the district court carefully weighing the probity

and prejudice of the medical records. Ultimately, the district

18 Tr. at 316–17.34 No. 19

‐ 2178

court decided that the risk of unfair prejudice did not substan

‐ tially outweigh the records’ relevance.

This sort of evidence may well have shocked the sensibil

‐

ities of some of the jurors. But most evidence in a trial such as

this one will have such an effect. The jurors in this case had to

perform a very unpleasant duty. The fact remains, however,

that the evidence was relevant and probative on several vital

issues that the jury had to decide.

We owe a special deference to the district court’s Rule 403

balancing. Here, the record reveals that the district court un

‐

dertook a conscientious evaluation of the competing con

‐

cerns. Its conclusion was far from an abuse of discretion.

2.

During the trial, the Government also tendered for admis

‐

sion into evidence a recorded jail call between Mr. Norwood

and an unidentified female. In that recorded call, Mr. Nor

‐

wood stated that he was “pimpi ng” a young “white girl” to

whom he had given cocaine. 19 Mr. Norwood also described

the girl he was “pimping” as a runaway and said that the girl

brought in $800–$1,000 per day. In addition, Mr. Norwood

stated that someone gave the “white girl” “a whole crack

rock” in a cigarette. 20

Invoking Rule 403, Mr. Norwood objected to the admis

‐

sion of the jail call. First, he contended that it was not clear

from the recorded conversation that the reference was to the

victim; he suggested that she was not the “white girl”

19 R.205, Ex. 12 at 2–3.

20 Id. at 3.No. 19

‐ 2178 35

mentioned in the call. 21 Second, Mr. Norwood contended that

the conversation in the jail call was of limited relevance to

§ 2423(a)’s intent element—which was the Government’s ba

‐

sis for offering the recorded call—and highly prejudicial to

him because of the coarse tenor of the discussion captured in

the recording.

The district court denied Mr. Norwood’s objection. It con

‐

cluded that there was sufficient overlap between the descrip

‐

tion of the “white girl” in the recorded call and the infor

‐

mation in the victim’s medical records (particularly her age,

runaway status, and drug use) to permit the jury to conclude

that Mr. Norwood was discussing the victim. As for the call’s

relevance to the intent to engage in prostitution element, the

district court noted that the “pi mping” Mr. Norwood de

‐

scribed in the call, even if wholly undertaken in Illinois, was

evidence of Mr. Norwood’s intent to continue the same con

‐

duct in Wisconsin. 22

We cannot quarrel with the district court’s balancing of

how helpful the evidence might be to the jury against any pos

‐

sible prejudice to Mr. Norwood. The court’s methodology

was both careful and precise. It certainly cannot be character

‐

ized as an abuse of discretion.

3.

Mr. Norwood also asks that we review a matter that arose

during closing arguments. Toward the end of Mr. Norwood’s

closing argument, defense counsel referenced the thousands

of contacts between the victim’s cell phone and Wisconsin

21 R.111 at 3.

22 Tr. at 272–73.36 No. 19

‐ 2178

phone numbers. Defense counsel submitted that the lack of

any testimony from the victim’s alleged Wisconsin clients

suggested that Mr. Norwood was not prostituting her in that

state.

In rebuttal, the Government stated:

I want to be very clear about something.

The government has the burden in this

case. We need to prove this case beyond a

reasonable doubt, and the defense, they

don’t have to prove anything or present

any evidence. But they have subpoena

power like the government. They had

those telephone numbers of those clients

from Wisconsin, and they could have sub

‐ poenaed them to testify at this trial, the

same power to do that

. 23

Defense counsel did not object to the prosecutor’s rebuttal.

But now, on appeal, Mr. Norwood claims that prosecutorial

misconduct during rebuttal deprived him of due process.

When a defendant does not timely object, we review allegedly

improper statements by a prosecutor during closing argu

‐

ment for plain error. United States v. Klemis

, 859 F.3d 436, 441

(7th Cir. 2017). “The challenged remarks cannot be plain error

unless [the defendant] probably would have been acquitted if

the prosecutor had not made them.” Id. (citing United States v.

Della Rose

, 403 F.3d 891, 906 (7th Cir. 2005)).

In Darden v. Wainwright

, 477 U.S. 168 (1986), the Supreme

Court articulated a two

‐ step framework for addressing

23 Tr. at 697.No. 19

‐ 2178 37

challenges to prosecutorial statements. First, we ask whether

the statements in question were improper. If they were im

‐

proper, we then ask whether the statements “so infected the

trial with unfairness as to make the resulting conviction a de

‐

nial of due process.” Id. at 181 (quotation marks omitted)

(quoting Donnelly v. DeChristoforo

, 416 U.S. 637, 643 (1974)).

Mr. Norwood challenges two of the Government’s state

‐

ments during closing argument. First, he submits that the

Government’s reference to the defense’s subpoena power im

‐ properly shifted the burden of proof. Second, he contends that

the prosecutor’s statement that the victim had sex with five

men per day “because that is what the defendant intended her

to do” 24 mischaracterized her statements in the medical rec

‐

ords.

The Government submits that neither contested statement

is improper. With respect to the subpoena power statement,

the Government contends that its reference to the defense’s

ability to summon witnesses was entirely proper because

Mr. Norwood mentioned the absence of Wisconsin client wit

‐

nesses during his closing argument. It relies on several cases,

including United States v. Miller

, 276 F.3d 370, 374–75 (7th Cir.

2002), in which we held that “as long as it is clear to jurors that

the government carries the burden of proof, the prosecutor

may tell the jury that a defendant has the power to subpoena

witnesses.” We have held expressly that such references are

permissible when the defendant has remarked on the Govern

‐

ment’s failure to produce certain witnesses. See United States

v. Flournoy

, 842 F.3d 524, 528 (7th Cir. 2016).

24 Tr. at 661–62.38 No. 19

‐ 2178

The Government emphasizes that it correctly stated the

burden of proof immediately prior to making its statement

about Mr. Norwood’s subpoena power. It also reminds us

that the district court similarly instructed the jury on the cor

‐

rect burden. As for the alleged mischaracterization of evi

‐

dence, the Government contends that it simply asked the ju

‐

rors to draw a reasonable inference of Mr. Norwood’s intent

from the evidence. That sort of inference drawing, the Gov

‐

ernment submits, is entirely permitted when the record rea

‐ sonably supports the inference.

The Government is correct. Miller and Flournoy permit the

Government to tell the jury about the defendant’s subpoena

power, so long as the jury is correctly instructed on the bur

‐

den of proof. Here, the Government explicitly acknowledged

before the jury that Mr. Norwood did not bear any burden of

proof, and the district court reiterated the same during final

instructions. The Gove rnment’s reference to Mr. Norwood’s

subpoena power, moreover, was in response to his argument

on the failure to call Wisconsin clients. See Flournoy

, 842 F.3d

at 527–29. Because we see no impropriety in the Govern

‐

ment’s statement, we need not examine Darden ’s second

prong.

We similarly see no misconduct in the second challenged

statement. By arguing that the victim had sex with five men

per day because that was what Mr. Norwood intended, the

Government simply asked the jury to draw a reasonable in

‐

ference from the evidence. The statements from Mr. Norwood

about “pimping” and the Backpage advertisements for theNo. 19

‐ 2178 39

victim’s services would support reasonably such an inference.

Neither statement is improper. 25

4.

Mr. Norwood next asks us to examine a matter involving

one of the jurors in his case. Specifically, Mr. Norwood con

‐

tends that post

‐ trial statements by one of the jurors suggested

possible bias or misconduct during deliberations. He submits

that the district court erred by denying his motion for a new

trial based on the juror issue, and in not co nducting further

hearings into the matter. We, however, see no error in the dis

‐

trict court’s decisions with respect to the juror issue.

When the clerk polled the jury, Juror #3 hesitated before

confirming that the guilty verdict was her verdict. 26 Once the

district court excused the jury, defense counsel made a record

of Juror #3’s hesitation during the polling. The district court

then brought the jury back and repolled each juror. During

the second poll, Juror #3 again affirmed her verdict. After this

second poll, defense counsel did not seek further action.

The next day, Juror #3 called the district court’s chambers

and asked to speak to the judge about the verdict. Without

25 Mr. Norwood also brings a cumulative error challenge based on the

combination of the (1) admission of the victim’s medical records; (2) ad

‐

mission of the recorded jail call; and (3) Government’s statements during

its rebuttal closing argument. Appellant’s Br. 32–33. Because none of these

evidentiary decisions and prosecutorial statements were er ror, there ca n

be no cumulative error.

26 Defense counsel stated on the record that he saw Juror #3 shake her

head before affirming her verdict. Tr. at 719. The district court and Gov

‐

ernment only noted a hesitation or pause by Juror #3 during the polling

process. Id. at 72 0.40 No. 19

‐ 2178

returning the call, the district court conferred with counsel

and then decided to call Juror #3 back. The call was made from

the courtroom, with counsel and Mr. Norwood present. The

court informed the parties that it planned to say: “So, you

called, and what did you call about?” 27 Defense counsel asked

for a more specific inquiry, but the Government objected that

such an approach risked improperly intruding on the jury’s

deliberations.

When asked why she had called, Juror #3 made vague

statements about her uneasiness with the guilty verdict that

the jury had returned one day earlier. In part, Juror #3 stated:

I wasn’t pleased with what I had said be

‐

cause I didn’t really agree with them on

that. That’s the reason why I was acting

hesitant in the courtroom. I haven’t spoke

to anybody about this case or anything.

It’s just been on my mind, and I wanted to

go with my own opinion. I didn’t want to

go with them.

...

I had questions, you know; and talking

amongst jurors, I didn’t get the answers

that I needed, and I didn’t feel like the ver

‐

dict that I said was right. 28

Id. at 5–6. Juror #3 then referenced the victim’s birth certifi

‐

cate, which was admitted into evidence to establish her age.

27 Mar. 23, 2018 Tr. at 5.

28 Id. at 5–6.No. 19

‐ 2178 41

At that point, the district court told Juror #3 that it was going

to disconnect the line and call her back in a few minutes.

Once the district court disconnected the line, it sought

counsels’ views on how to proceed. The Government took the

view that no further inquiry was needed beca use Juror #3 had

not “said anything that would allow for a permissible in

‐ quiry.” 29 Defense counsel contended, however, that further

inquiry was needed and again noted Juror #3’s hesitation dur

‐ ing the first jury poll.

The district court decided to call Juror #3 again to complete

the record. When the district court reached Juror #3 the sec

‐

ond time, it asked if there was anything Juror #3 would like

to add to her earlier statements. Juror #3 told the district court

that she “had a lump in [her] throat” during deliberations. 30

She went on to say that she had “a lot of questions [she]

wanted answered.” 31 Finally, she stated: “I didn’t just want to

throw a thing out there because everybody else has said it be

‐

cause that’s not what I pledged to do. That’s why I was so

hesitant in the feelings that I had, and I don’t like to feel this

way.” 32

When Juror #3 finished speaking, the district court asked

whether there was anything else she would like to add. Juror

#3 responded that there was not. After ending the call, the dis

‐

trict court requested that the parties brief the impact of Juror

29 Id. at 8.

30 Id. at 13.

31 Id.

32 Id.42 No. 19

‐ 2178

#3’s call under Federal Rule of Evidence 606 and the Supreme

Court’s decision in Peña

‐ Rodriguez v. Colorado

, 137 S. Ct. 855

(2017). 33

Mr. Norwood filed a motion for new trial or, in the alter

‐

native, for a further inquiry based on Juror #3’s phone call.

The Government responded, contending that Juror #3’s call

did not implicate any exception to the no

‐ impeachment rule

in Rule 606(b) and did not implicate Peña

‐ Rodriguez ’s limited

exception to inquire into racial ani mus during the jury’s de

‐

liberations. Then, with the district court’s permission, each

side filed a supplemental brief to address whether United

States v. Daniels

, 803 F.3d 335 (7th Cir. 2015), required the dis

‐

trict court to inquire further into Juror #3’s reason for calling.

The district court denied Mr. Norw ood’s motion for new

trial based on Juror #3’s call, as well as his request for further

inquiry. Juror #3, the court explained, did not mention (1) any

extraneous prejudicial information brought to the jurors’ at

‐

tention; (2) any outside influences; or (3) a mistake in the ver

‐

dict form. 34 Nor did Juror #3 mention any other juror’s mak

‐ ing racial comments or exhibiting racial bias, so Peña

‐ Rodri

‐

guez did not require a new trial or further inquiry.

Mr. Norwood now contends that the district court erred in

denying his new trial motion and in refusing to further ques

‐

tion Juror #3. We review a district court’s handling of allega

‐

tions of juro r bias or misconduct for abuse of discretion. See

33 Mr. Norwood contended that Juror #3’s call implicated Peña

‐ Rodriguez

because both Juror #3 and Mr. Norwood are African American, but the

victim is not.

34 May 9, 2018 Tr. at 18.No. 19

‐ 2178 43

United States v. Farmer

, 717 F.3d 559, 564 (7th Cir. 2013). Fed

‐

eral Rule of Evidence 606(b) generally prohibits a juror from

testifying about “any statement made or incident that oc

‐

curred during the jury’s deliberations; the effect of anything

on that juror’s or another juror’s vote; or any juror’s mental

processes concerning the verdict or indictment.” The rule,

however, provides three limited exceptions to that general

prohibition. First, when “extraneous prejudicial information

was improperly brought to the jury’s attention.” Fed. R. Evid.

606(b)(2)(A). Second, when “an outside influence was im

‐ properly brought to bear on any juror.” Fed. R. Evid.

606(b)(2)(B). Third, when there was a mistake entering the

verdict on the verdict form. Fed. R. Evid. 606(b)(2)(C).

In addition to Rule 606(b)’s limited exceptions, the Su

‐

preme Court has identified an exception to the “no

‐ impeach

‐

ment rule” when there is evidence of a juror’s racial animus

during deliberations. See Peña

‐ Rodriguez

, 137 S. Ct. at 869.

There, evidence came to light that a juror in a criminal case

had made explicit racist statements during deliberations. The

Supreme Court held “that where a juror makes a clear state

‐

ment that indicates he or she relied on racial stereotypes or

animus to convict a criminal defendant, the Sixth Amend

‐

ment requires that the no

‐ impeachment rule give way.” Id.

But the Supreme Court clarified that “[f]or the inquiry to pro

‐

ceed, there must be a showing that one or more jurors made

statements exhibiting overt racial bias that cast serious doubt”

on the jury’s impartiality. Id. (emphasis added).

With respect to the district court’s obligation to follow up

on post

‐ verdict allegations of juror bias or misconduct, United

States v. Daniels

, 803 F.3d at 355, provides the standard. There

a jury convicted two defendants on all counts against them.44 No. 19

‐ 2178

The district court polled the jury, and each juror affirmed their

guilty vote. Later that same day, after the court excused the

jurors, a juror visited the court’s chambers and told a staff

member: “I cannot live with myself knowing what I did. I felt

bullied into making the decision that I made.” Id. at 354. The

following weekend, the same juror called the court’s cham

‐

bers and left a voicemail saying: “I wanted to pretty much

change my verdict to not guilty because I feel I was bullied

and railroaded in the jury deliberation process.” Id. at 354–55.

The defendants asked the district court to question the juror

further. We affirmed the district cour t’s denial of that request.

We held that the juror’s statements did not suggest any per

‐

missible basis under Rule 606(b) to interrogate the juror about

deliberations. Nor was there any “evidence of outside influ

‐

ence or a threat of physical harm.” Id. at 355.

Here, all of Mr. Norwood’s contentions require substantial

speculation beyond Juror #3’s post

‐ ver dict statements.

Mr. Norwood acknowledges that there was no external influ

‐

ence on the jury, but he contends that possible internal pres

‐

sure tainted the deliberations. Although it is not entirely clear

what provis ion of Rule 606(b) Mr. Norwood relies on, it ap

‐

pears that he believes that Peña

‐ Rodriguez required further in

‐ quiry because Juror #3 and Mr. Norwood are African Ameri

‐

can, and the victim is not. Mr. Norwood distinguishes Daniels

on racial grounds, as well as beca use the juror in Daniels did

not display discomfort with the verdict until after the jury was

discharged, whereas Juror #3 showed hesitation during the

polling process.

The Government submits that none of the three exceptions

to Rule 606(b) are present. Juror #3 did not mentionNo. 19

‐ 2178 45

extraneous prejudicial information or outside influence. 35 Ad

‐ dressing Mr. Norwood’s Peña

‐ Rodriguez arguments, the Gov

‐

ernment submits that Mr. Norwood is relying entirely on

speculation. Juror #3 did not mention race at all.

After full briefing, the district court accepted the Govern

‐

ment’s position. The district court determined that none of the

exceptions to Rule 606(b) were applicable and then noted that

Juror #3 did not mention racial animus at all, so Peña

‐ Rodri

‐

guez did not apply. The district court’s determination was

certainly not an abuse of its discretion. Juror #3 at most men

‐

tioned internal pressure, but Rule 606(b)(2)(B) only excepts

certain types of external pressure from the general no

‐ im

‐ peachment rule. Peña

‐ Rodriguez

, moreover, requires a clear

statement of overt racial bias. Juror #3’s post

‐ verdict state

‐

ments did not mention race at all. Moreover, the district

court’s examination of the problem was thorough. The district

court called Juror #3 on the record and gave her three oppor

‐

tunities to say what was on her mind. At the end, the court

confirmed that Juror #3 had noth ing else to say. There was no

need for further inquiry. The district court properly denied

Mr. Norwood’s motions.

C.

We now examine Mr. Norwood’s contentions with respect

to the sentencing hearing. He raises two issues before us: one

having to do with the substantive reasonableness of his sen

‐

tence, the other with an enhancement that the district court

applied under the Sentencing Guidelines. The principles

guiding our inquiry are well established. We review a district

35 No one argues that there was a mistake in the verdict form.46 No. 19

‐ 2178

court’s application of the Sentencing Guidelines de novo and

its factual findings for clear error. See United States v. Castro

‐

Alvarado

, 755 F.3d 472, 475 (7th Cir. 2014). When, as here, a

defendant challenges a below

‐ guidelines sentence as too high,

we review the substantive reasonableness of the sentence for

abuse of discretion and presume the sentence is reaso nable.

See United States v. Poetz

, 582 F.3d 835, 837 (7th Cir. 2009).

1.

We will address Mr. Norwood’s substantive reasonable

‐

ness issue before his guidelines enhancement challenge. Dur

‐ ing Mr. Norwood’s sentencing hearing, the district court cal

‐

culated the advisory guidelines range of 360 months to life

imprisonment, then impo sed a sentence of 330 months’ im

‐ prisonment. The district court also considered the factors

listed in 18 U.S.C. § 3553(a). As it went factor by factor

through § 3553(a), the district court noted Mr. Norwood’s

lack of remorse. That lack of remorse, the district court ob

‐

served, could reasonably mean Mr. Norwood “poses a greater

threat of re

‐ offending upon his release.” 36

Mr. Norwood takes issue with the district court’s refer

‐

ence to his lack of remorse and failure to accept responsibility

during its 18 U.S.C. § 3553(a) analysis. He submits that the

district court impermissibly increased his sentence because he

refused to disclaim his innocence.

These contentions need to be evaluated in context. Our re

‐

view of the sentencing record shows that the district court’s

consideration of the 18 U.S.C. § 3553(a) factors was nothing

short of meticulous. Even absent the presumption of

36 Sent. Tr. at 58.No. 19

‐ 2178 47

reasonableness granted to the below

‐ guidelines sentence,

there is simply no basis to upset the district court’s thorough

inquiry. The sentencing transcript makes clear that the district

court considered Mr. Norwood’s lack of remorse in the con

‐

text of the need for deterrence, not as a free

‐ floating consider

‐

ation. Section 3553(a)(2) mandates the district court to con

‐

sider specific deterrence in imposing a sentence. It was rea

‐

sonable for the district court to conclude that Mr. Norwood’s

allocution manifested a failure to understand the serious

harm that he had inflicted on the victim, thus making him

more likely to commit similar offenses after his release. There

‐

fore, we affirm the substantive reasonableness of Mr. Nor

‐

wood’s sentence.

2.

We now turn to the final issue in this case. Mr. Norwood

challenges the application of the five

‐ level enhancement of

§ 4B1.5(b) of the Sentencing Guidelines. That enhancement

has three elements: (1) that the de fendant committed a “cov

‐

ered sex crime”; (2) that neither U.S.S.G. § 4B1.1 nor § 4B1.5(a)

applies; and (3) that the defendant engaged in a pattern of ac

‐ tivity involving prohibited sexual conduct. Mr. Norwood’s

challenge centers on the third element, which requires us to

consider a pair of terms defined in the Sentencing Guidelines’

applicatio n notes: “prohibited sexual conduct” and “pattern

of activity.”

Application note 4 to § 4B1.5 defines “prohibited sexual

conduct” to include any offense listed in the “repeat offender”

statute, 18 U.S.C. § 2426(b)(1)(A), which in turn includes of

‐

fenses under Chapter 109A of Title 18 and conduct that would

constitute a Chapter 109A offense but for the lack of a juris

‐

dictional hook. A person violates 18 U.S.C. § 2243, which is in48 No. 19

‐ 2178

Chapter 109A, when there is a basis for federal jurisdiction

and he or she “knowingly engages in a sexual act with an

‐

other person who (1) has attained the age of 12 years but has

not attained the age of 16 years; and (2) is at least four years

younger than the person so engaging.”

As for “pattern of activity,” application note 4 states: “the

defendant engaged in a pattern of activity involving prohib

‐

ited sexual conduct if on at least two separate occasions, the

defendant engaged in prohibited sexual conduct with a mi

‐

nor.” The note then clarifies that the prohib ited sexual con

‐

duct that forms the pattern of activity does not need to result

in a conviction. See U.S.S.G. § 4B1.5, cmt. n.4(B)(ii).

Mr. Norwood’s challenge to the § 4B1.5(b) enhancement

stems both from his misreading of the application note and

from his disagreement with the district court’s fact finding.

He misreads application note 4 in § 4B1.5 to require that he

has been convicted of being a repeat offender under 18 U.S.C.

§ 2426. But § 4B1.5(b) does not require that he be convicted as

a repeat offender under § 2426 to qualify for the enhancement.

Instead, the enhancement simply incorporates offenses listed

in § 2426(b)(1)(A), for which multiple violations would make

an individual a repeat offender.

On Mr. Norwood’s point about the pattern of activity, the

Government contends that the victim’s grand jury testimony

and statement to the FBI about her multiple sexual encounters

with Mr. Norwood are reliable. And the Government submits

that the district court made a proper and reasonable factual

finding by a preponderance of the evidence that Mr. Nor

‐

wood had sexual intercourse with the victim on at least two

occasions, a violation of 18 U.S.C. § 2243. There is no doubt

that 18 U.S.C. § 2243 constitutes prohibited sexual conductNo. 19

‐ 2178 49

because it is an offense in Chapter 109A, which

§ 2426(b)(1)(A) includes.

That takes us to Mr. Norwood’s disagreement with the

district court’s factual finding that he engaged in prohibited

sexual conduct with the victim on at least two occasions.

Based on our review of the record, the district court reasona

‐ bly found by a preponderance of the evidence that Mr. Nor

‐

wood engaged in a pattern of activity involving prohibited

sexual conduct with the victim. At sentencing, the district

court found that “[t]here is reliable evidence in the record es

‐ tablishing by a preponderance of the evidence that Mr. Nor

‐

wood had sex with [the victim] at least twice.” 37 The district

court pointed to the victim’s grand jury testimony that she

had sexual intercourse with Mr. Norwood when they first

met, as well as on other occasions over the following month. 38

The district court also noted Mr. Norwood’s statements dur

‐ ing the jail call that appear to reference the victim’s being “in

love with [him],” which the district court found to be an im

‐ plicit admission of his sexual relationship with her. 39 Finally,

the district court noted the medical records containing the

37 Id. at 28.

38 At sentencing, Mr. Norwood objected to the district court’s reliance on

certain parts of the grand jury testimony, but the district court made ex

‐ plicit findings with respect to the portions it elected to rely upon. In his

reply brief, Mr. Norwood also makes a meritless obj ection ba sed on the

Sixth Amendment right to confrontation. See United States v. Roche

, 415

F.3d 614, 618 (7th Cir. 2005) (noting that “the relevant provision at sen

‐ tencing is the due process clause, not the confrontation clause,” which

does not require cross

‐ examination of a declarant).

39 Sent. Tr. at 28

.50 No. 19

‐ 2178

victim’s statement that she and Mr. Norwood had sex multi

‐ ple times.

Had there been federal jurisdiction, the conduct found by

the district court at sentencing would constitute a violation of

18 U.S.C. § 2243, which therefore makes it prohibited sexual

conduct. Moreover, because the district court found that

Mr. Norwood had sexual relations with the victim on at least

two occasions, it was a pattern of activity of prohibited sexual

conduct. See U.S.S.G. § 4B1.5, cmt. n.4(B)(ii). The district court

pointed to specific evidence that it found reliable and credi

‐

ble. It correctly applied the five

‐ level enhancement of

§ 4B1.5(b).

Conclusion

There is sufficient evidence to sustain the conviction. The

district court’s admission of hospital records did not violate

the Confrontation Clause. The district court acted well within

its discretion on all other evidentiary questions. The district

court correctly applied the United States Sentencing Guide

‐

lines and otherwise appropriately exercised its discretion in

sentencing Mr. Norwood. Accordingly, the judg ment of the

district court is affirmed.

AFFIRMED