Argued and Submitted: November 5, 2013, San Francisco, California,
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Appeal from the United States District Court for the District of Arizona. D.C. No. 3:11-cr-08086-NVW-1. Neil V. Wake, District Judge, Presiding.
Appeal from the United States District Court for the District of Arizona. D.C. No. 3:11-cr-08082-GMS-1. G. Murray Snow, District Judge, Presiding.
Michael J. Bresnehan, Law Offices of Michael J. Bresnehan, Tempe, Arizona, for Defendant-Appellant Timothy Yazzie.
Keith J. Hilzendeger (argued), Research and Writing Specialist; Jon M. Sands, Federal Public Defender, Office of the Federal Public Defender, Phoenix, Arizona, for Defendant-Appellant Shonnie Shidale George.
Karla Hotis Delord (argued), Assistant United States Attorney; John S. Leonardo, United States Attorney; Mark S. Kokanovich, Deputy Appellate Chief, United States Attorneys' Office, Phoenix, Arizona, for Plaintiff-Appellee United States of America.
Cassie Bray Woo (argued), Assistant United States Attorney; John S. Leonardo, United States Attorney; Mark S. Kokanovich, Deputy Appellate Chief, United States Attorneys' Office, Phoenix, Arizona, for Plaintiff-Appellee United States of America.
Before: Jerome Farris, Ferdinand F. Fernandez, and Sandra S. Ikuta, Circuit Judges.
IKUTA, Circuit Judge:
In this consolidated opinion we consider claims by Shonnie Shidale George and Timothy Yazzie, both of whom were on trial for sexual abuse with children, that their Sixth Amendment rights to a public trial were violated when the district court closed the courtroom while the child victims were testifying. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the district court. Applying the test set out in Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), we conclude the closures did not violate the defendants' constitutional rights. We also conclude that the closure at Yazzie's trial did not violate the statutory provision permitting a closed courtroom during the testimony of a child witness, see 18 U.S.C. § 3509(e). Finally, we conclude that Yazzie's multiple convictions under 18 U.S.C. § 2241(c) for discrete sexual acts that occurred during one sexual encounter with the victim do not violate the Double Jeopardy Clause.
George lived on the Navajo reservation in Arizona at the home of his aunt, Mrs. Pauline Mann. Several of Mrs. Mann's grandchildren (George's younger cousins) also lived on the Mann property or within walking distance. George's alleged victims were his four younger cousins: John Doe S.A. (age six), Jane Doe N.T. (age five), Jane Doe S.A. (age four), and Jane Doe O.A. (age eight).
In June 2007, Mrs. Mann's stepson Cody Thomas heard a " scream, like a cry" coming from the outhouse on the property. Thomas opened the door and saw George's six-year-old cousin, John Doe S.A., " bent over the toilet seat with [George] behind him." Both George and John Doe S.A. had their pants pulled down. According to John Doe S.A., George penetrated him anally. John Doe S.A.'s mother called the police and took her son for a medical examination, but apparently no additional investigation of the incident was completed until three years later when George again molested two of his younger relatives.
On December 3, 2010, George's younger cousins Jane Doe S.A. and Jane Doe N.T., then 4 and 5 years old, were playing beside a parked car on Mrs. Mann's property. George pulled down his and the children's pants, had them bend over, and penetrated each of them beside the car. Although George instructed the children not to tell anyone what had happened, Jane Doe N.T. told her mother shortly thereafter and received medical treatment for a urinary tract infection. Because the medical examination revealed evidence of sexual assault, Jane Doe N.T. also underwent a forensic examination. Medical personnel contacted the police. All four children were interviewed at the Flagstaff Medical Center Child Safe Center in December 2010.
The United States indicted George in the District of Arizona on April 12, 2011 on five counts of sexual abuse, pursuant to 18 U.S.C. § 2241(c), and two counts of abusive sexual contact, pursuant to 18 U.S.C. § 2244(a). Five of the counts contained in
the indictment involved the 2007 incident in the outhouse and the 2010 incident beside the parked car.
Prior to trial, the government moved to close the courtroom during each child's testimony, pursuant to 18 U.S.C. § 3509(e). The government argued that closure was necessary to avoid intimidating the children, which might result in incomplete testimony or preclude their testimony altogether. The government noted that the children were young (one child was five, another was six) and the ten-year-old boy was mentally slow. The children would be called upon to testify about difficult and traumatic events. Family members for both the victims and defendant might attend the trial, which could cause the victims to experience shyness, shame, and embarrassment. Further, the victims might be intimidated by the large courtroom, strange faces on a jury, a judge who sits above them, and attorneys asking them intimate questions. The government argued that closure was the " least restrictive method of child witness protection" available, because alternatives such as a two-way closed circuit television or videotaped depositions require closer judicial scrutiny, see 18 U.S.C. § 3509(b). The government submitted the videotaped forensic interviews of the children at the Flagstaff Medical Center Child Safe Center for the court's review.
George opposed the motion and requested an evidentiary hearing. In his opposition, George stated that his primary concern was the closure's " potential to unduly and unfairly prejudice" him by suggesting to the jury that the children needed protection.
At the December 12, 2011 final pretrial conference, the parties reiterated their positions. At the request of the district court, the government confirmed that its closure motion was based on the concern that an open courtroom would prevent the children from communicating effectively, and not on the concern that it would cause the children psychological harm. Defense counsel reiterated the concern that a closed courtroom " would affect the presumption of innocence." After hearing from the parties, the court explained the procedure it would follow before ruling on the closure motion. The court would first view the children's videotaped interviews in advance of trial, and then interview each child on the stand (out of the jury's view). Based on this additional information, the court would determine whether closure was necessary. The government opposed this procedure based on its view that the children would be more intimidated by the judge's questioning than by taking the stand. In response, the district court adopted a revised procedure. It stated that it would view the children's interviews and determine if the videotapes provided a sufficient basis to close the courtroom for one or more witnesses. If the court determined that the interviews did not establish a basis for closure, the court would deny the closure motion without prejudice to the government moving again for closure during the course of questioning at trial.
After reviewing the videotaped interviews, the court granted the government's motion. The court noted that Jane Doe N.T. and Jane Doe S.A. (who were then five and six years old) were " very, very young," and John Does S.A., who was then ten years old, had " some cognitive impairments." The oldest girl, Jane Doe O.A., who was then twelve years old, while " articulate and mature for her age, is nonetheless a fairly young person." While all of the children mentioned " extreme family tensions and divisions and anger," Jane Doe O.A. " was the one who, it seems... more than others, seemed to be focused on the family difficulties that this case has caused, and the anger." Accordingly, the court ruled it would close the courtroom for all four children.
After making this ruling, the court stated that it would address the defendant's concern about undue prejudice. At the court's suggestion, the government agreed to call each victim near a time when the court would ordinarily take a break and clear the courtroom, then bring the jury back in to hear the victims' testimony without notifying the jury that the courtroom had been closed. This approach would " help alleviate any concern that the jury might be informed that this is a closed setting." In response to this discussion, defense counsel stated, " That's fine."
On January 5, 2012, on the first day of testimony before the jury was seated, the district court asked the government to confirm the procedure for closing the courtroom. The government stated that after the first adult witness was finished testifying, it would " ask to take a break" and " as soon as we are on that break, we should have a note that the courtroom is sealed at this time for this part of the testimony and have the courtroom locked." Later that day, John Doe S.A. testified about the day George molested him in the outhouse. Jane Doe N.T. then testified that George had molested her and Jane Doe S.A. by the parked car. The following morning, while the jury was excused from the courtroom, the district court ordered the courtroom closed. When the jury returned to their seats, Jane Doe S.A. provided similar testimony. Jane Doe O.A. also testified that afternoon.
The jury convicted George on four counts of aggravated sexual abuse, and acquitted him of the remaining charges. The district court subsequently sentenced George to four concurrent 30-year terms of ...