Bintz, Robert v. Bertrand, Daniel

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-2682

ROBERT BINTZ,

Petitioner-Appellant,

v.

DANIEL BERTRAND,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 03 C 0574—Lynn Adelman, Judge.

____________

ARGUED JANUARY 11, 2005—DECIDED APRIL 7, 2005

____________

Before POSNER, MANION, and ROVNER, Circuit Judges.

MANION, Circuit Judge. Robert Bintz and his brother,

David Bintz, were convicted, in separate Wisconsin state

court proceedings, of murdering a bartender, Sandra Lison.

After failing in his state appellate challenge to his convic-

tion, Robert sought habeas corpus relief in the United States

District Court for the Eastern District of Wisconsin, asserting

that the state courts improperly allowed hearsay statements

to be used against him at trial. The Eastern District denied

the petition for writ of habeas corpus, and Robert appeals.

We affirm.

2 No. 04-2682

I

Sandra Lison was last seen alive tending bar at the

Good Times bar (“Good Times”) in Green Bay, Wisconsin

on August 3, 1987. Her body was later discovered in a forest.

As part of the initial investigation into Lison’s murder in

1987, Green Bay Police Detective Lawrence Pamperin took

a statement from David Bintz (the “Pamperin Statement”) in

which David admitted that he and his brother Robert Bintz

had visited Good Times the day of Lison’s disappearance.

David stated that he had driven Robert and a friend to Good

Times to buy a case of beer that evening. David waited in the

car while they went inside. After they returned home, David

became upset with the price charged for the beer and called

Good Times, threatening to blow it up. David told Pamperin

that he subsequently passed out. No one was charged at

that time with Lison’s murder.

Over ten years later, in 1998, David was in prison at the

Oshkosh Correctional Institution for an unrelated crime. His

cellmate, Gary Swendby, heard David talk in his sleep about

killing someone. In particular, David shouted “make sure

she’s dead.” Swendby asked David about the nocturnal

shouts, and David responded that he had been involved in

Lison’s murder. David told Swendby that he and Robert

had decided to rob Good Times for overcharging them on

beer, then decided to kill Lison after realizing that she could

identify them. David further stated that he repeatedly

commanded his brother to make sure that Lison was dead,

confiding to Swendby that they disposed of the body “up

north.”

After hearing David’s story, Swendby went to prison

officials with news of David’s involvement in Lison’s murder.

Prison officials contacted the Green Bay Police Department,

which interviewed Swendby and other inmates regarding

No. 04-2682 3

David’s comments about the murder. Eventually, Green Bay

Police Detective Robert Haglund confronted David with

Swendby’s statement, and David confirmed that it was true

(the “Haglund Admission”). David also supplied Haglund

with additional facts about Robert beating and strangling

Lison. David, however, said that he (David) did not kill

anyone.

Both brothers were charged with the murder of Lison. A

joint preliminary hearing was held, though David and

Robert were then tried separately. In May 2000, David went

to trial, and Swendby testified against him. David was con-

victed of first-degree murder.

At Robert’s trial in July 2000, David was called to testify,

but invoked his Fifth Amendment right against self-incrim-

ination. The court concluded that David was unavailable be-

cause of his assertion of the Fifth Amendment, and allowed

David’s statements to Swendby, Haglund, and Pamperin

into evidence as “statement against penal interest” excep-

tions to the hearsay rule. Swendby had been killed in an

automobile accident between the trials. The court concluded

that Swendby, like David, was an unavailable witness and

admitted his testimony from David’s trial and the joint

preliminary hearing. Other inmates from Oshkosh also

testified that David had made comments to them about the

murder (the “Oshkosh Testimony”). The court decided that

none of this evidence impinged upon Robert’s rights under

the Confrontation Clause of the Sixth Amendment to the

Constitution (“Confrontation Clause”). In addition, at trial

the prosecution offered evidence from Joan Andrews, a

former girlfriend who testified that Robert spontaneously

spoke to her about the murder. During a car ride with

Andrews, Robert recounted that he and his brother felt

Lison move in the back of the car while David was driving.

Like his brother, Robert was convicted of murder.

4 No. 04-2682

In 2001, Robert appealed his conviction to the Wisconsin

Court of Appeals, claiming that the introduction of the

Pamperin Statement and Swendby’s testimony, particularly

comments from David to Swendby, violated Robert’s

Confrontation Clause rights because he had no opportunity

to cross-examine David or Swendby. The Court of Appeals

disagreed and affirmed the conviction in 2002, analyzing the

challenge under the framework provided by the

United States Supreme Court in Ohio v. Roberts, 448 U.S. 56

(1980), and Lilly v. Virginia, 527 U.S. 116 (1999) (plurality

opinion). Robert then appealed to the Wisconsin Supreme

Court. In his petition to the Wisconsin Supreme Court,

Robert only argued two violations of the Confrontation Clause:

(1) the Pamperin Statement; and (2) David’s statements to

Swendby introduced through Swendby at David’s trial. The

Wisconsin Supreme Court declined review.

In June 2003, Robert filed a petition for writ of

habeas corpus in the United States District Court for the

Eastern District of Wisconsin, pursuant to 28 U.S.C. § 2254.

Before the district court, Robert challenged the Oshkosh

Testimony, as well as the previously challenged statements

of David and Swendby. After the initial briefs were filed,

the United States Supreme Court issued its decision in

Crawford v. Washington, 124 S.Ct. 1354 (2004), which ad-

dressed the continuing validity of the Roberts/Lilly frame-

work for Confrontation Clause analysis. Robert then filed a

supplemental brief in the district court regarding the

applicability of Crawford. The district court denied the

habeas petition. It first found that Robert had procedurally

defaulted on his challenge to the Oshkosh Testimony. The

district court further concluded that Crawford did not apply

at the time of the state court rulings and that the introduc-

tion of the statements from David and Swendby did not vio-

late the then-applicable Supreme Court precedent regarding

the Confrontation Clause. Robert appeals.

No. 04-2682 5

II

A

Before addressing Robert’s Confrontation Clause argu-

ment, we must first determine what statements are actually at

issue. In his brief before this court, Robert objects to four

pieces of evidence offered at trial: (1) the Pamperin

Statement; (2) Swendby’s previous testimony concerning

statements from David to Swendby about the murder; (3)

1

the Haglund Admission; and (4) the Oshkosh Testimony.

The State of Wisconsin contends that Robert has procedur-

ally defaulted on any challenges to the latter two statements

by failing to raise these objections at every level of the state

court proceedings.

According to 28 U.S.C. § 2254(b)(1)(A), a habeas petition

shall not be granted unless the petitioner “has exhausted the

remedies available in the courts of the State.” The petitioner

must establish that he fully and fairly presented his claims

to the state appellate courts, thus giving the state courts a

1

This footnote compiles the statements at issue for ease of

reference.

• Pamperin Statement: David Bintz’s 1987 comments to Detective

Pamperin regarding his activities on the night of Lison’s

murder.

• Haglund Admission: David Bintz’s 1998 statement to Detective

Haglund confirming Swendby’s statement that David had

admitted to being involved in Lison’s murder.

• Swendby’s testimony: Testimony by Swendby at David Bintz’s

trial regarding comments David made to Swendby about

Lison’s murder.

• Oshkosh Testimony: Testimony by Oshkosh inmates at David

Bintz’s trial regarding comments David made to them about

Lison’s murder.

6 No. 04-2682

meaningful opportunity to consider the substance of the

claims that he later presents in his federal challenge. See,

e.g., Harris v. McAdory, 334 F.3d 665, 668 (7th Cir. 2003). Fair

presentment requires that the petitioner assert his claims

through one complete round of state court review. See, e.g.,

Lewis v. Sternes, 390 F.3d 1019, 1025-26 (7th Cir. 2004). In the

state courts, the petitioner must present both the operative

facts and legal principles that control each of his claims. See

Rittenhouse v. Battles, 263 F.3d 689, 695-96 (7th Cir. 2001). “A

habeas petitioner who has exhausted his state court reme-

dies without properly asserting his federal claim at each

level of state court review has procedurally defaulted that

claim.” Lewis, 390 F.3d at 1026. If a petitioner has procedur-

ally defaulted his claim,

he may obtain federal habeas relief only upon a show-

ing of cause and prejudice for the default or upon a

showing that a failure to grant him relief would work a

fundamental miscarriage of justice. A fundamental

miscarriage of justice occurs when “a constitutional

violation has probably resulted in the conviction of one

who is actually innocent.”

Moore v. Casperson, 345 F.3d 474, 484 (7th Cir. 2004) (quoting

Thomas v. McCaughtry, 201 F.3d 995, 999 (7th Cir. 2000)).

Cause for a default is ordinarily established by showing that

some external obstacle prevented the petitioner from

presenting his claim to the state courts. See Lewis, 390 F.3d

at 1026.

Against this backdrop, we consider whether Robert de-

faulted on his Confrontation Clause challenges related to the

Haglund Admission and the Oshkosh Testimony. In Robert’s

initial brief on direct appeal to the Wisconsin Court of

Appeals, he only referenced the Haglund Admission once

and did not present any argument regarding its admissibil-

No. 04-2682 7

ity. In its response brief in the direct appeal, Wisconsin

specifically pointed out that Robert did not challenge the

Haglund Admission. Robert neither challenged this char-

acterization nor introduced this issue in his reply brief in the

state appellate court. Likewise, he did not address the

Haglund Admission in his petition for review to the Wis-

consin Supreme Court. Accordingly, Robert failed to fully

and fairly present this issue to the Wisconsin courts, and so

procedurally defaulted on any claim relating to the Haglund

Admission.

Robert still could qualify for habeas relief regarding the

Haglund Admission if he could establish cause for the

procedural default or a fundamental miscarriage of justice.

Robert, however, has shown neither an external impediment

that led to the procedural default nor that the procedural

default would cause a fundamental miscarriage of justice.

Robert states in his reply brief that failure to consider the

constitutionality of the Haglund Admission would result in

a fundamental miscarriage of justice, but fails to develop

this argument or show that he was actually innocent. His

conclusory statement is insufficient to obtain habeas relief.

Robert cannot avoid the effects of the procedural default of

2

his claim relating to the Haglund Admission.

Robert’s challenge to the Oshkosh Testimony encounters

similar, though not identical, problems. The district court

found procedural default regarding the Oshkosh Testimony,

a ruling that we review de novo. See Lewis, 390 F.3d at 1025.

2

It also appears that Robert failed to challenge the Haglund

Admission before the district court, making only a few general

references to it. This would constitute an independent ground

barring Robert from pursuing his claim. See Winsett v. Washington,

130 F.3d 269, 273 (7th Cir. 1997) (“Normally, a party waives those

issues it fails to raise in the district court.”).

8 No. 04-2682

It appears that Robert did raise this issue in his initial brief

before the Wisconsin Court of Appeals. Robert, however,

never presented the Oshkosh Testimony to the Wisconsin

Supreme Court in his petition for that court to review the

decision of the Wisconsin Court of Appeals. While the

Wisconsin Supreme Court denied his petition for review,

Robert was still required to present the issue to it. See

O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (“Boerckel’s

failure to present three of his federal habeas claims to the

Illinois Supreme Court in a timely fashion has resulted in a

procedural default of those claims”); Moore, 345 F.3d at 485-

86 (Wisconsin Supreme Court’s discretion to grant judicial

review is similar to that of the Illinois Supreme Court, and

Boerckel requires presentation of all issues to that court).

Robert does not argue either cause for his procedural de-

fault or that the procedural default would cause a funda-

mental miscarriage of justice. As Robert failed to properly

exhaust his state remedies, he has procedurally defaulted

his challenge to the Oshkosh Testimony.

B

Having removed the underbrush, we now turn to Robert’s

remaining argument—that two pieces of evidence intro-

duced at trial violated Robert’s rights under the Confronta-

tion Clause, entitling him to habeas relief. “In an appeal

from a ruling on a petition for habeas relief, we review the

district court’s findings of fact for clear error and its rulings

on issues of law de novo.” Denny v. Gudmandson, 252 F.3d

896, 900 (7th Cir. 2001). To qualify for habeas relief, Robert

must show that the state court proceedings adjudicating his

claim “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.” 28 U.S.C. § 2254(d)(1).

No. 04-2682 9

1. Consideration of New Supreme Court Decisions

As a general matter, we look at the Supreme Court’s

holdings as of the time of the relevant state court decision to

determine clearly established federal law. See Lockyer

v. Andrade, 538 U.S. 63, 71-72 (2003). The Supreme Court

prohibits analyzing the reasonableness of a state court de-

termination in light of a “new” Supreme Court rule pro-

pounded after the state court made its decision. See Teague

v. Lane, 489 U.S. 288, 301 (1989).

In general, . . . a case announces a new rule when it

breaks new ground or imposes a new obligation on

the States or the Federal Government. . . . To put it

differently, a case announces a new rule if the result was

not dictated by precedent existing at the time the defen-

dant’s conviction became final.

Id. (emphasis in original). Teague does allow two types of

new rules as “exceptions” to its bar: “(1) new rules that

place certain kinds of primary, private individual conduct

beyond the power of the criminal law-making authority to

proscribe, and (2) rules that define procedure implicit in the

concept of ordered liberty.” Mankarious v. United States, 282

3

F.3d 940, 943 (7th Cir. 2002). A new rule qualifies for the

latter exception (and applies retroactively) if it is a water-

shed rule that implicates the fundamental fairness and

accuracy of the criminal proceeding. See Spreitzer v. Peters,

114 F.3d 1435, 1448 (7th Cir. 1997); Lambert v. McBride, 365

F.3d 557, 562 (7th Cir. 2004).

3

“Rules that fall within what we have referred to as Teague’s first

exception ‘are more accurately characterized as substantive rules

not subject to [Teague’s] bar.’ ” Beard v. Banks, 124 S.Ct. 2504, 2510

n.3 (2004) (quoting Schriro v. Summerlin, 124 S.Ct. 2519, 2523 n. 4

(2004)).

10 No. 04-2682

2. Application of Teague Principles to Crawford

Robert contends that we should review his state court

conviction in light of the Confrontation Clause principles

regarding hearsay statements of unavailable witnesses an-

nounced by the Supreme Court in Crawford v. Washington,

124 S.Ct. 1354 (2004). As the Supreme Court decided Crawford

after the Wisconsin Supreme Court denied Robert’s petition

for review, we begin by determining whether Crawford an-

4

nounced a new rule according to Teague and its progeny.

We first examine the state of Supreme Court Confrontation

Clause jurisprudence before Crawford and decide whether

Crawford was a departure from the precedent. This is the

first time that this issue has been directly presented for

ruling in this circuit. See Owens v. Frank, 394 F.3d 490, 501 n.

8 (7th Cir. 2005) (expressly reserving the question of

whether Crawford should be applied retroactively).

The Confrontation Clause guarantees an accused the right

“to be confronted with the witnesses against him.” U.S.

Const. Amend. VI; Pointer v. Texas, 380 U.S. 400, 403 (1965)

(applying Sixth Amendment to the States by virtue of the

Fourteenth Amendment). Prior to Crawford, the Supreme

Court authorized the introduction of hearsay statements

against a criminal defendant in certain circumstances. By their

nature such statements do not afford the opportunity for

cross-examination of the person who made them. See

4

“A state conviction and sentence become final for purposes of

retroactivity analysis when the availability of direct appeal to the

state courts has been exhausted and the time for filing a petition

for a writ of certiorari has elapsed or a timely filed petition has

been finally denied.” Spreitzer v. Peters, 114 F.3d 1435, 1442 (7th

Cir. 1997) (quoting Stewart v. Lane, 60 F.3d 296, 300 (7th Cir.

1995)). The Wisconsin Supreme Court denied Robert’s petition for

review on October 21, 2002.

No. 04-2682 11

Roberts, 448 U.S. at 65-68. In Roberts, the Supreme Court

noted the Framers’ preference for face-to-face accusation,

but carved an exception to allow the introduction at trial of

statements from witnesses who were unavailable to testify.

See id. at 65-66. The Supreme Court held that if a hearsay

declarant is found to be unavailable at trial, his statement

still can be admissible if: (1) it bears adequate “indicia of

reliability” by falling within a firmly rooted hearsay ex-

ception; or (2) it contains “particularized guarantees of

trustworthiness.” Id. at 66.

In 1999, the Supreme Court confirmed that the general

framework of Roberts remained valid. See Lilly, 527 U.S. at

124-25. In that case, the Supreme Court determined that a

statement against penal interest, which incriminated both

the declarant and the defendant, did not constitute a firmly

rooted exception to the hearsay bar under the first prong of

Roberts. See id. at 134. The Supreme Court was concerned

about a declarant who, under police interrogation, incul-

pated himself to a minor extent, while shifting the bulk of

the blame to the defendant. See id. at 121. Moving to the

second prong of the Roberts analysis, the Supreme Court de-

cided that Virginia had not offered sufficient particularized

guarantees of trustworthiness. See id. at 138-39. Therefore,

the hearsay statements were inadmissible. See id. at 139-40.

Lilly, however, did not fundamentally disturb either the

Roberts framework or disrupt its ruling that an unavailable

declarant’s statements could be used at trial in certain

circumstances.

In 2004, however, Crawford overruled Roberts. See

Crawford, 124 S.Ct. at 1374. The Supreme Court held that the

Confrontation Clause required that testimonial statements

from witnesses absent from trial should be admitted only

when the declarant is unavailable and the defendant had a

prior opportunity to cross-examine. See id. The Supreme

12 No. 04-2682

Court concluded that the Roberts test departed from this

principle by allowing a “jury to hear evidence, untested by

the adversary process, based on a mere judicial determina-

tion of reliability.” Id. at 1370. “The unpardonable vice of the

Roberts test, however, is . . . its demonstrated capacity to

admit core testimonial statements that the Confrontation

Clause plainly meant to exclude.” Id. at 1371.

It seems clear that Crawford was a clean break from the

line of precedent established by Roberts. Crawford considered

and rejected the continuing application of Roberts. Neverthe-

less, a state court would not have acted unreasonably by

failing to anticipate this ruling and applying Roberts. See

O’Dell v. Netherland, 521 U.S. 151, 156 (1997) (“At bottom,

the Teague doctrine ‘validates reasonable good-faith inter-

pretations of existing precedents made by state courts even

though they are shown to be contrary to later decisions.’ ”)

(citations omitted). Crawford was thus a new rule for

purposes of Teague.

This conclusion does not end the Teague analysis, however.

We must also determine whether Crawford might apply ret-

roactively based on the two exceptions to the Teague rule.

See Teague, 489 U.S. at 307, 310. Regarding the first, Crawford

does not place certain types of conduct outside of the

criminal law-making power to punish, and, therefore, the

only issue is whether Crawford announced a watershed rule

implicating the fundamental fairness and accuracy of the

criminal proceeding.

In Teague, the Supreme Court limited this exception to

“those new procedures without which the likelihood of an

accurate conviction is seriously diminished.” Teague, 489

U.S. at 313. The example that the Supreme Court has used

for this exception is Gideon v. Wainwright, 372 U.S. 335, 343

(1963), which established an affirmative right to counsel in

No. 04-2682 13

felony cases. See O’Dell, 521 U.S. at 167. “And, because any

qualifying rule ‘would be so central to an accurate determi-

nation of innocence or guilt [that it is] unlikely that many

such components of basic due process have yet to emerge,’

it should come as no surprise that we have yet to find a new

rule that falls under the second Teague exception.” Beard, 124

S.Ct. at 2513-14 (internal citations omitted).

Crawford does not rise to this level. While important,

it does not introduce any fundamentally new concepts to

address the fairness or accuracy of a trial; instead it calls for

a complete implementation of a protection that already

exists—the Confrontation Clause. Further, it is unclear that

Crawford’s modification to the hearsay rules will markedly

improve the accuracy of convictions. See Mungo v. Duncan,

393 F.3d 327, 335-36 (2d Cir. 2004) (noting that, while some

inaccurate evidence will be barred under the new rule,

“Crawford also precludes admission of highly reliable testi-

monial out-of-court statements that would have been admis-

sible under the old rules.”). Crawford is not a guarantee of

accuracy, but an extension of the full constitutional protec-

tions of the Sixth Amendment. While the two concepts

overlap, they are not synonymous. Crawford, therefore, is

not a watershed change for purposes of the second Teague

5

exception and does not apply retroactively.

5

We are not alone in reaching this conclusion. See Brown v.

Uphoff, 381 F.3d 1219, 1227 (10th Cir. 2004) (“We conclude that

Crawford is not a watershed decision and is, therefore, not re-

troactively applicable to Brown’s initial habeas petition.”); Mungo

v. Duncan, 393 F.3d 327, 336 (2d Cir. 2004) (“we conclude that

Crawford is not a watershed rule.”)

14 No. 04-2682

3. Analysis under pre-Crawford Confrontation Clause Precedent

We proceed, therefore, to analyze Robert’s Confrontation

Clause claims according to Roberts and Lilly, the clearly es-

tablished Supreme Court precedent at the time of the state

6

court decisions. Robert first challenges the introduction of

the Pamperin Statement at his trial. At the time of Robert’s

trial, an accomplice’s confession inculpating a criminal

defendant did not qualify as a firmly rooted hearsay excep-

tion, so the statement had to bear particularized guarantees

of trustworthiness to be admissible. See Lilly, 527 U.S. at 135.

Particularized guarantees of trustworthiness exist if the

totality of the circumstances surrounding the statement in-

dicate that the statement is “so trustworthy that adversarial

testing would add little to its reliability.” Idaho v. Wright, 497

U.S. 805, 821 (1990). The Supreme Court declined to endorse

a mechanical test to determine the particularized guarantees

of trustworthiness for purposes of the Confrontation Clause.

See id. at 822. The Supreme Court has previously stated that

“the very fact that a statement is genuinely self-

inculpatory . . . is itself one of the ‘particularized guarantees

of trustworthiness’ that makes a statement admissible under

the Confrontation Clause.” Williamson v. United States, 512

U.S. 594, 605 (1994). Additionally, a high level of detail in a

statement and the “absence of any offer of leniency”

undercut a motive to lie and provide assurances of trust-

worthiness. See Brown v. Uphoff, 381 F.3d 1219, 1228 (10th

Cir. 2004).

6

Robert also asks this court to reconsider whether the AEDPA

effectively codified Teague and its exceptions, but fails to give any

reason why we should disturb our ruling in Gosier v. Welborn, 175

F.3d 504, 510 (7th Cir. 1999). Therefore, we will not do so.

No. 04-2682 15

In this case, the Pamperin Statement contained the required

particularized guarantees of trustworthiness to satisfy the

post-Lilly Confrontation Clause analysis. First, David ac-

tually inculpated himself in the Pamperin Statement. While

the Pamperin Statement did not contain any admissions

regarding the murder, it was genuinely self-inculpatory for

David in that it placed him at the murder scene several

hours before the murder. This is precisely the same evidence

that Robert opposes based on its inculpatory value for him.

The Pamperin Statement, however, had an even greater

inculpatory effect for David, as he also admitted calling

Good Times with a bomb threat.

The inculpatory nature of the Pamperin Statement is not

its only particularized guarantee of trustworthiness. The

Pamperin Statement was given without any offer of leniency

by police. This makes sense, as David was neither detained

by police nor threatened with any prosecution in 1987. In

short, David was facing none of the pressures that might

give an incentive to shift blame to another person. This

differs in all material respects with the situation in Lilly, in

which a suspect was taken into custody, asked leading

questions in a police interrogation, and threatened with

prosecution. See id. at 121-22. The Pamperin Statement also

had a relatively high degree of detail regarding what the

brothers and their friend did on the night of August 2, 1987.

Given these factors, we cannot say that the Wisconsin Court

of Appeals acted unreasonably in determining that the

Pamperin Statement bore particularized guarantees of

trustworthiness.

Robert also claims that the introduction of Swendby’s

statements from David’s trial regarding David’s admissions

to him constituted a Confrontation Clause violation. While

there are two levels of hearsay in this evidence, Robert only

challenges the statements of David to Swendby as violative

16 No. 04-2682

of his Confrontation Clause rights. Robert contends that,

since prison officials were involved in procuring the state-

ments, the Wisconsin Court of Appeals incorrectly con-

cluded that the statements bore particularized guarantees of

trustworthiness.

However, David’s statements to Swendby occurred after

Swendby asked David about his sleeptalking. At this time,

there was no involvement by either police or prison author-

ities. David then confided in Swendby, admitting that he

committed the murder with his brother and offering some

details. This court has held that jailhouse confessions to

cellmates “are also trustworthy and admissible,” satisfying

the requirement of particularized guarantees of trustworthi-

ness. United States v. Westmoreland, 240 F.3d 618, 627-28 (7th

Cir. 2001). Only after David confessed to him did Swendby

inform authorities who asked him to gather more informa-

tion. This after-the-fact involvement by the authorities does

not make David’s statements to Swendby untrustworthy.

The Wisconsin Court of Appeals acted reasonably in

concluding that these statements had particularized guaran-

tees of trustworthiness.

C

Additionally, even if we were to find that the trial court

committed some constitutional violation in admitting the

Pamperin Statement or Swendby’s testimony, we would

deem such a violation a harmless error in this case. Under

this analysis, a new trial is warranted if the error has a

substantial and injurious effect or influence on determining

the jury verdict. See Brecht v. Abrahamson, 507 U.S. 619, 638

(1993). “Even where the jury has been exposed to evidence

that is not properly before it, a defendant is not automati-

cally entitled to a new trial.” United States v. Gonzalez, 319

No. 04-2682 17

F.3d 291, 297 (7th Cir. 2003). A new trial is in order only if

the evidence had a prejudicial effect. See id. In this case, the

challenged evidence did not have a substantial effect in

determining the jury’s verdict because of the other evidence

presented at trial, which supported that finding. The

Pamperin Statement simply established that Robert pur-

chased beer from Lison’s bar on the day she was murdered.

While the statements from David to Swendby are more sub-

stantive, they are cumulative. David independently con-

firmed to the police in 1998 what he had told Swendby about

the murder. Inmates at Oshkosh also reported that David

told them about the murder, implicating both brothers. Fi-

nally, Andrews testified that Robert talked about the mur-

der with her. Given the amount of evidence establishing

that David and Robert committed the murder, any error

regarding the admission of the Swendby statements cannot

be held to be prejudicial.

III

Robert Bintz has failed to show that the Wisconsin courts

acted unreasonably when denying his Confrontation Clause

claims. Those claims that were not procedurally defaulted

were properly analyzed under the relevant Supreme Court

precedent. We AFFIRM the denial of the petition for writ of

habeas corpus.

18 No. 04-2682

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—4-7-05