Stromberg thus establishes that there is "error" in such a case; it does not speak to whether the error may be harmless. The Court in Neder made no mention of the Stromberg line of cases when it catalogued those "structural errors" that defy harmless-error review, and for the reasons discussed, we believe that a Stromberg-type instructional error is an error in the trial process itself that may be reviewed for harmlessness. Indeed, we have held that a jury instruction using the erroneous "appears to be" language from the CPPA was not "plain error" warranting relief, United States v. Wolk, 337 F.3d 997, 1004 (8th Cir. 2003), and that holding "cuts against the argument" that the flawed instruction will always render a trial unfair. See Neder, 527 U.S. at 9, 119 S.Ct. 1827.

The defendant was told that he was free to terminate the interview and leave, which is "'[t]he most obvious and effective means of demonstrating that a suspect has not been taken into custody.'" United States v. Czichray, 378 F.3d 822, 826 (8th Cir. 2004); see also United States v. Huether, 673 F.3d 789, 794 (8th Cir. 2012); United States v. Perrin, 659 F.3d 718, 721 (8th Cir. 2011); United States v. Wolk, 337 F.3d 997, 1006 (8th Cir. 2003). Further, the defendant was questioned in his own home, which is "'not indicative of the type of inherently coercive setting that normally accompanies a custodial interrogation.'"

"We review the district court's ruling of a Batson challenge for clear error." United States v. Wolk, 337 F.3d 997, 1007 (8th Cir. 2003).

Hill's appellate counsel was right to concede that Hill failed to present a prima facie case. See, e.g. , United States v. Wolk , 337 F.3d 997, 1007 (8th Cir. 2003) ("The mere recitation of the fact that black jurors were struck from the jury cannot alone establish a prima facie case."); United States v. Young-Bey , 893 F.2d 178, 180 (8th Cir. 1990) ("To establish a prima facie case under Batson the defendant must point to more than the bare fact of the removal of certain venirepersons and the absence of an obvious valid reason for the removal."). And the Government is correct that if the objecting party fails to present a prima facie case, then the district court should overrule the objection without requiring a race-neutral explanation.

In Batson, the Supreme Court set forth a three-step analysis for peremptory challenges under the Equal Protection Clause of the Fourteenth Amendment. "First, the opponent of the peremptory challenge must establish a prima facie showing that the challenge is discriminatory." United States v. Wolk, 337 F.3d 997, 1007 (8th Cir. 2003). Second, "[t]he proponent of the peremptory challenge must then articulate a race-neutral explanation for the challenge.

We have defined the term sadism as the infliction of pain on a love object to obtain sexual release, and as delight in physical or mental cruelty. United States v. Wolk, 337 F.3d 997, 1008 (8th Cir. 2003); United States v. Parker, 267 F.3d 839, 847 (8th Cir. 2001). We have defined violence as the exertion of physical force to injure or abuse.

Whether a suspect is informed at the time of questioning that he is not considered under arrest is one of several factors courts consider in determining whether the suspect is "in custody" for Miranda purposes. See United States v. Wolk, 337 F.3d 997, 1006 (8th Cir. 2003). Trooper Engum testified that he informed Dolson "[w]hen he was in my back seat, the fact that — at that point in time he wasn't under arrest.

This court has repeatedly reviewed forfeited First Amendment claims for plain error. See, e.g., United States v. Wolk, 337 F.3d 997, 1003–04 (8th Cir.2003); United States v. Bausch, 140 F.3d 739, 741 (8th Cir.1998). Christenson cites Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), and Hurley v. Irish–American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995), for the proposition that de novo review is required, but neither of those cases involved any issue of forfeiture, and they do not control the standard of review in this case.

In fact, many depictions which are unarguably sadistic in nature do not involve violence or pain, but rather subjugation and humiliation. See, e.g., United States v. Wolk, 337 F.3d 997, 1007-08 (8th Cir. 2003) (pictures of young girl in a collar were sadistic); Turchen, 187 F.3d at 740 (picture of adult males urinating on the face of a grimacing child were sadistic). In Lyckman, we held that the photographs at issue depicted conduct that "caused the children pain, physical or emotional or both."

"Where the only evidence is that a black prospective juror was struck, a prima facie Batson claim does not arise." Branch, 989 F.2d at 755; see also United States v. Wolk, 337 F.3d 997, 1007 (8th Cir. 2003) ("The mere recitation of the fact that black jurors were struck from the jury cannot alone establish a prima facie case."). It is noteworthy that defense counsel testified during the Batson hearing that there were race-neutral reasons that could support all three strikes.