Eighth Circuit Court of Appeals affirms sexual abuse and assault convictions; on plain error review trial court properly admitted child victims' prior inconsistent statements to investigators; victim's brothers out of court statements were not testimonial in nature cf Crawford v. Washington, 541 U.S. 36 (2004) to trigger the Confrontation clause 044165P.pdf 12/29/05 United States v. Sherman T. Peneaux District of South Dakota Court finds on plain error analysis that various out of court victim's statements are admissible under Rule 807 (residual hearsay) Def failed to properly object to these hearsay statements. Plain error applies. We conclude that the admission of T.P.'s prior out of court statements complied with Rule 807. The government provided the requisite notice and the statements were trustworthy, material, and more probative than T.P.'s hesitant trial testimony. Admission of the evidence was also consistent with the structure and purpose of the Federal Rules of Evidence. While the residual exception should be rarely used, child abuse cases are appropriate to rely on the exception. Court finds that victim's statements to pediatrician were statements for purpose of medical treatment allowed under medical treatment hearsay exception, even if a child cannot have a motive to seek medical care we have consistently found that "a statement by a child abuse victim that the abuser is a member of the victim'simmediate household presents a sufficiently different case from that envisaged by thedrafters of Rule 803(4) that it should not fall under the general rule" and that suchstatements "are reasonably pertinent" to treatment or diagnosis. Renville, 779 F.2d at436-37; see also United States v. Gabe, 237 F.3d 954, 958 (8th Cir. 2001); Court finds no Crawford violation for admitting various out of court statements from victim and her brother, finding they were not testimonial Testimonial statements, triggering confrontation clause rights are "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Crawford. Statements made to a physician seeking to give medical aid in the form of diagnosis or treatment, are presumptively nontestimonial. See State v. Vaught, 682 N.W.2d 284, 326 (Neb. 2004). Further victim's brothers statements to foster parents also were non-testimonial according to Crawford because foster parents are not agents of the State. See White v. Chambliss, 112 F.3d 731, 739 (4th Cir. 1997) (state has no affirmative duty for children placed in foster care); The eighth circuit did hold a child victim's out of court statements to police investigators in a sex abuse case inadmissible under Crawford in United States v. Bordeaux, 400 F.3d 548 (8th Cir.2005); however in that case the declarant was giving statements to the police and was not available to testify at trial.