United States v. Deronarte Norwood

• Court: Court of Appeals for the Seventh Circuit
• Decided: December 14, 2020
• Docket: 19-2178
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 19‐2178 UNITED STATES OF AMERICA, Plaintiff‐Appellee, v.

DERONARTE NORWOOD, 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. ____________________

ARGUED SEPTEMBER 25, 2020 — DECIDED DECEMBER 14, 2020 ____________________

Before RIPPLE, BRENNAN, and ST. EVE, Circuit Judges. RIPPLE, 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 count of at‐ tempted transportation of a minor across state lines with the intent that the minor engage in prostitution, in violation of 18 2 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 BACKGROUND3

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 also include 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 portions it elected 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 numbers 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 with 4 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 Kenosha, 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 from 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 following 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 the 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. § 1591(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 redacted 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 appeal, 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’ under 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 prove 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 transportation 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 cross 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 advertised 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 invites 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 redacted 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. Norwood 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 district 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 the 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 requires 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 statements No. 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 dramatic 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 [means] ‘[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 is 14 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 requires, 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 Amendment. 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 interrogation 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 “are No. 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 Court 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 Court’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 by 16 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. First, 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 point—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 primary No. 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 enforcement 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 eventually 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 admissible 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 than 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 emergency; 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 the No. 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 interroga‐ 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 prosecutions 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 majority, Justices Scalia and Ginsburg observed that, at common law, young children were rarely competent to 20 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, 1030, 1041–44 (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 report 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] statements 22 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 identity 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 declined 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 obtaining 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 exam No. 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 hospital 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 Circuit 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 because 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 involving 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 SANE 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 the 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 provider. 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 that 26 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 testimonial. 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 creating 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 would 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 the No. 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 primary 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 children 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, there 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 those 28 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 beside 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 and 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 portions 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 an No. 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 challenged 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 Winthrop 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 that, 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 objective 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 responsible 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 Assault 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 substances 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 sexual 32 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 individual 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 some 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 “pimping” 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 “pimping” 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 Government’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 the No. 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 conducting 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 error, there can 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 720. 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 because 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 animus 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. Norwood’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 juror 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 court’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‐verdict 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 provision 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 because 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 mention No. 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 nothing 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 reasonable. 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 imposed 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 defendant 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’ application 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 in 48 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 prohibited 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 conduct No. 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 objection based 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 judgment of the district court is affirmed. AFFIRMED