                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-3010
                                   ___________

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

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

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

BYE, Circuit Judge.

       Warden Terry Carlson appeals the district court’s2 order granting Orlando
Manual Bobadilla’s petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Bobadilla was convicted in Minnesota state court of sexually assaulting T.B., his
three-year-old nephew. The district court concluded Bobadilla’s rights under the Sixth
Amendment’s Confrontation Clause were violated and the Minnesota Supreme Court

      1
        The Honorable Brian Stacy Miller, United States District Judge for the Eastern
District of Arkansas, sitting by designation.
      2
      The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota.
unreasonably applied United States Supreme Court precedent in concluding otherwise.
For the following reasons, we affirm.

                                           I

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

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

       Molden contacted T.B.’s mother and asked her to bring T.B. to the police
department. T.B. was escorted to a room specifically designed to make children
comfortable while being questioned about allegations of sexual abuse. A camera
hidden behind a one-way mirror recorded the interview. Molden sat next to T.B. and
asked him questions, while Akerson sat across from T.B. and observed. Molden
utilized a “forensic” technique known as the “CornerHouse technique,” which consists


                                         -2-
of asking questions in a structured manner to ascertain the nature of any sexual abuse.
In response to the questions, T.B. confirmed the abuse he had first reported to his
mother.

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

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

       The trial court, applying Roberts, allowed Molden to testify and permitted the
state to introduce the video of T.B.’s interview with Molden. In addition, the jury
heard testimony from T.B.’s mother concerning T.B.’s initial report of abuse, as well
as testimony from the doctor who initially examined T.B. Bobadilla was convicted
and sentenced to 144 months in prison.

      On appeal, Bobadilla once again challenged the admission of the video of
T.B.’s interview, as well as Molden’s testimony concerning the interview, as a


                                          -3-
violation of the Confrontation Clause. While his appeal was pending, the Supreme
Court issued its decision in Crawford v. Washington, 541 U.S. 36 (2004), which set
forth a materially different analysis for Confrontation Clause claims. In Crawford, the
wife of a suspect was placed in police custody, given Miranda warnings, and asked
a series of questions. The wife’s statement implicated her husband, and the
government sought to introduce the wife’s statement at trial. Because the defendant’s
wife invoked the state marital privilege and did not testify at trial, the defendant
objected to the admission of her statement as a Confrontation Clause violation. The
trial court admitted her statement, finding it bore particularlized guarantees of
trustworthiness under Roberts. In Crawford, however, the Supreme Court abandoned
the Roberts test, concluding the Confrontation Clause had nothing to do with the
reliability of the statement at issue. Rather, the Confrontation Clause served to
prevent people from bearing testimony against a defendant without the defendant
having an opportunity to cross-examine the bearer of the testimony. Id. at 50-51, 60-
65. Thus, the Supreme Court held the “reliability” of a statement was immaterial.
The Court held a Confrontation Clause violation exists whenever a “testimonial”
statement is admitted against a defendant, regardless of the statement’s reliability,
when he or she has had no opportunity to cross-examine the declarant. Id. at 68-69.

       While the Court declined to provide a comprehensive definition as to which
statements are testimonial, it did note an “accuser who makes a formal statement to
government officers bears testimony in a sense that a person who makes a casual
remark to an acquaintance does not.” Id. at 51. The Court discussed various possible
formulations of statements which are testimonial: (1) “ex parte in-court testimony or
its functional equivalent – that is, material such as affidavits, custodial examinations,
prior testimony that the defendant was unable to cross-examine, or similar pretrial
statements that declarants would reasonably expect to be used prosecutorially”; (2)
“extrajudicial statements contained in formalized testimonial materials, such as
affidavits, depositions, prior testimony, or confessions”; and (3) “statements that were
made under circumstances which would lead an objective witness reasonably to


                                          -4-
believe that the statement would be available for use at a later trial.” Id. at 51-52
(internal citations and quotation marks omitted).

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

      Because of Crawford, the Minnesota Court of Appeals unanimously reversed
Bobadilla’s conviction, concluding his Confrontation Clause rights were violated.
State v. Bobadilla, 690 N.W.2d 345, 349-50 (Minn. Ct. App. 2004). The court
determined T.B.’s statements made during the course of his interview with Molden
were testimonial, and that, because Bobadilla did not have an opportunity to cross-
examine T.B., the admission of those statements violated the Confrontation Clause.
The Minnesota Supreme Court reversed, concluding T.B.’s statements were not
testimonial. State v. Bobadilla, 709 N.W.2d 243, 256 (Minn. 2006). In doing so, the
Minnesota Supreme Court applied an eight-factor test, with the most important factors
being “whether either a declarant or government questioner is acting, to a substantial
degree, in order to produce a statement for trial.” Id. at 252.3




      3
        The remaining factors are: (1) whether the declarant was a victim or an
observer; (2) whether it was the police or the declarant who initiated the conversation;
(3) the location where the statements were made; (4) the declarant’s emotional state
when the statements were made; (5) the level of formality and structure of the
conservation between the officer and declarant; and (6) if and how the statements were
recorded. Id. at 250.

                                          -5-
       The court went on to conclude, because Molden’s interview was conducted
pursuant to Minnesota Statute § 626.556, neither Molden nor T.B. were acting with
the predominant purpose of producing a statement for trial. The stated purpose of
§ 626.556 “is to protect children whose health or welfare may be jeopardized through
physical abuse, neglect, or sexual abuse.” Minn. Stat. § 626.556(1). The statute
allows social workers to interview suspected victims of sexual or physical abuse and,
notably, provides that if a report of abuse alleges a violation of a criminal statute, “the
local law enforcement agency and local welfare agency shall coordinate the planning
and execution of their respective investigation and assessment efforts to avoid a
duplication of fact-finding efforts and multiple interviews.” Minn. Stat. § 626.556,
subd. 10(a). Furthermore, the statute requires, in cases involving alleged sexual abuse,
that an audio-video recording be made of any interviews of the alleged victim. Minn.
Stat. § 626.556, subd. 10(j).

       First, the court noted the express purpose of § 626.556 was to protect the health
and welfare of children, not to generate statements for trial. Id. at 254. Second, the
court found it immaterial as to the statute requiring social workers to coordinate their
investigations with law enforcement and to record the interviews so as to eliminate a
need for separate interviews by law enforcement officers, concluding such
requirements do not “necessarily indicate that the purpose of the interview was to
create a formalized statement for trial.” Id. at 255. In sum, the court concluded the
statements were not testimonial because the interview “was initiated by a child
protection worker in response to a report of sexual abuse for the overriding purpose
of assessing whether abuse occurred, and whether steps were therefore needed to
protect the health and welfare of the child.” Id. at 255.4




      4
       Although we will discuss this point in detail later in the opinion, while it is true
Molden initiated the contact with T.B.’s mother, it was Detective Akerson who first
decided to interview T.B. and requested that Molden do so.

                                           -6-
      Bobadilla next filed a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 in the United States District Court for the District of Minnesota. The district
court concluded T.B.’s statements during the interview were testimonial, the
admission of such statements violated the Confrontation Clause, and the Minnesota
Supreme Court unreasonably applied Supreme Court precedent in concluding to the
contrary. The court granted the petition for writ of habeas corpus, but stayed the order
pending the outcome of this appeal.

                                            II

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

      The Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C.
§ 2254, limits the power of federal courts to grant habeas relief for any claim
“adjudicated on the merits in State court proceedings” unless the adjudication:

      (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or




                                           -7-
      (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the State
      court proceeding.

28 U.S.C. § 2254(d).

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

       The district court was correct to conclude, however, that the decision of the
Minnesota Supreme Court was an “unreasonable application” of Crawford. Under
this clause, a federal habeas court may grant the writ if “the state court identifies the
correct legal principle from [the Supreme] Court’s decisions but unreasonably applies
that principle to the facts of the principal case.” Id. at 413. Additionally a decision
“also involves an unreasonable application of [the] Court’s precedent if the state court
either unreasonably extends a legal principle from [Supreme Court] precedent to a
new context where it should not apply or unreasonably refuses to extend that principle
to a new context where it should apply.” Id. at 407. The Supreme Court has noted,
however, that “an unreasonable application of federal law is different from an
incorrect application of federal law.” Id. at 410 (emphasis in original).



                                          -8-
        Crawford held that statements taken by police officers in the course of
interrogations are testimonial under even the narrowest standard, and it was
unreasonable for the Minnesota Supreme Court not to conclude the interview of T.B.
was, in all relevant aspects, a form of police interrogation. First, the interview was
initiated by a police officer. Second, the interview was conducted for the purpose of
the criminal investigation. Although Molden contacted T.B.’s mother, the evidence
demonstrates it was Detective Akerson who requested Molden to do so. Furthermore,
Molden stated Detective Akerson asked her to “assist him” in questioning T.B. and
that she was not involved in the criminal investigation until Detective Akerson “asked
[her] to assist him.” Third, the interview was not conducted until five days after the
abuse was first alleged, which indicates the purpose of the interview was to confirm
a past allegation of abuse rather than to assess immediate threats to T.B.’s health and
welfare. Because of these circumstances, this interview was no different than any
other police interrogation: it was initiated by a police officer a significant time after
the incident occurred for the purpose of gathering evidence during a criminal
investigation.

       The only significant difference between the interview involved in the present
case and the one held to be testimonial in Crawford is instead of a police officer
asking questions about a suspected criminal violation, he sat silent while a social
worker did the same. We find this to be a distinction without a difference. In addition
to the aforementioned facts, the interview took place at police headquarters in a room
specifically designed for the interrogation of children who allege sexual abuse.
Furthermore, under the statute, the interview was recorded for the sole purpose of
eliminating the need for T.B. to be interviewed by law enforcement personnel.
Molden also utilized a structured, “forensic” method of interrogating T.B. Notably,
Crawford identified a “recorded statement, knowingly given in response to structured
police questioning,” as qualifying under any conceivable definition of interrogation.
541 U.S. at 53 n.4. In sum, Justice Page was correct to conclude Molden was simply
acting as a “surrogate interviewer” for the police. Bobadilla, 709 N.W.2d at 258


                                          -9-
(Page, J., dissenting). Molden was contacted by a police officer to assist with the
criminal investigation, the interview took place several days after the abuse allegedly
occurred, the interview was conducted at police headquarters with a police officer
present, and Molden utilized a structured method of questioning to elicit T.B.’s
statements. As such, it was unreasonable for the Minnesota Supreme Court to
conclude, even though the questioning was undertaken by a social worker, the
statements made by T.B. during his interrogation were in any way different than the
statements found to be testimonial in Crawford.

        We, like the district court, are unpersuaded by the existence of Minnesota
Statute § 626.556. While it is true the statute authorizes social workers to interview
alleged victims of abuse for the purpose of protecting their health and welfare, the
circumstances of the present case, as described above, indicate such was not the
purpose of T.B.’s interview. Contrary to the Minnesota Supreme Court’s assertion,
this interview was not conducted “for the overriding purpose of assessing whether
abuse occurred, and whether steps were therefore needed to protect the health and
welfare of the child.” Id. at 255. Molden’s testimony makes clear she decided to
interview T.B. only after Detective Akerson asked her to assist him with the criminal
investigation. The interview being conducted five days after the alleged abuse is a
further indication of its purpose, which was to elicit information for use at trial, rather
than determining whether steps were needed to protect T.B.’s immediate health and
welfare. Furthermore, given the alleged abuse was reported promptly and T.B.’s
parents voluntarily cooperated with the investigation, there is no evidence T.B.’s
health or welfare was in further danger. Additionally, the district court did not clearly
err in finding Molden did not ask the type of questions one would reasonably expect
if the purpose of the interview was to assess “imminent” risks to T.B.’s health and
welfare, such as whether he had recently seen Bobadilla or whether he was spending
any time at his grandmother’s house. Instead, the interview consisted of highly
structured questioning aimed at getting T.B. to repeat, on videotape, his allegation of
abuse.


                                           -10-
        Thus, even if the purpose of an interview under Minnesota Statute § 626.556
is to assess immediate threats to a child’s health and welfare, and thus different than
the purpose of the police interrogation found to include testimonial statements in
Crawford, such was not the purpose of this particular interview. It is the
circumstances of the interview at issue which must control, not just the purpose of the
statute itself. As the district court astutely noted, if a prosecutor six months after
abuse occurred asked a social worker to help him videotape a statement for an
upcoming trial, it would be unreasonable to conclude the purpose of the interview was
to protect the child from immediate danger just because the statute says as much. Just
as such situation would clearly be akin to the police interrogation in Crawford, so too
is the present interview, and it was unreasonable for the Minnesota Supreme Court to
conclude otherwise.

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

       In sum, Crawford held statements made during police interrogations are
testimonial. The Minnesota Supreme Court unreasonably applied Crawford in holding
T.B.’s statements made during his interview with Molden and Detective Akerson were
not testimonial. Just as in Crawford, the interview in the present case was initiated by


                                         -11-
a police officer to obtain statements for use during a criminal investigation, was
recorded so further law enforcement interviews would be unnecessary, and involved
structured questioning designed to confirm a prior allegation of abuse. No one
disputes should Detective Akerson have conducted the questioning, such statements
would be testimonial under Crawford. It was unreasonable for the Minnesota
Supreme Court to conclude just because he requested another government agent to ask
the same questions in order to achieve the same purpose, the result is different. Our
conclusion is reinforced by § 626.526, which required Molden to act as a substitute
for a police interrogator. Thus, we agree with the district court about Bobadilla’s
Confrontation Clause rights being violated and the Minnesota Supreme Court
unreasonably applying Crawford in concluding to the contrary.

       The district court was also correct to conclude the violation of the Confrontation
Clause was not harmless. In determining whether an error is harmless we ask whether
“the error had a substantial and injurious effect or influence in determining the jury’s
verdict.” Toua Hong Chang v. Minnesota, 521 F.3d 828, 832 (8th Cir. 2008). While
there was other evidence tending to prove Bobadilla’s guilt, it is clear the
prosecution’s case rested heavily on Molden’s testimony and the videotape of her
interview with T.B. The only other evidence admitted into trial was the testimony of
T.B.’s mother recounting T.B.’s first statement he made about the abuse – the only
statement outside of the interview in which he identifies Bobadilla as the perpetrator
– as well as testimony from the doctor indicating the medical examination was
consistent with sexual abuse. Given the other evidence of Bobadilla’s guilt was
minimal, it is likely the admission of T.B.’s statements made during the course of the
interview had a substantial effect in influencing the jury’s verdict. Thus, the error was
not harmless.5


      5
        The Supreme Court has since issued additional decisions interpreting the scope
of the Confrontation Clause. Davis v. Washington, 126 S. Ct. 2266 (2006) (holding
that statements made during a 911 emergency call were not testimonial, while
statements made to a police officer after the danger had passed were testimonial);

                                          -12-
                                          III

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




Melendez-Diaz v. Mass., 129 S. Ct. 2527 (2009) (holding that lab analyses introduced
into trial are testimonial). The Court’s decision in Davis strongly supports our
conclusion that T.B.’s statements made during the course of the interview with
Molden were testimonial, because “the circumstances indicate that there is no . . .
emergency, and that the primary purpose of the interrogation is to establish or prove
past events potentially relevant to later criminal prosecution.” 124 S. Ct. at 2273-74.
Davis does not influence our analysis, however, because it was issued after the
decision of the Minnesota Supreme Court in the present case, and does not impact
whether the Minnesota Supreme Court unreasonably applied Supreme Court precedent
at the time of its decision.

                                         -13-
