United States v. Robert Edward Fee ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15343 ELEVENTH CIRCUIT
APRIL 29, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-00029-CR-7-LSC-HGD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT EDWARD FEE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(April 29, 2011)
Before BARKETT, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
After a jury trial, Robert Edward Fee appeals his convictions for eight counts
of sexual exploitation of a minor, in violation of 18 U.S.C. §§ 2251(a) and 2, and
one count of possession of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B). Fee’s charges arose out of photographs he and his wife, Rhonda
Fee, took of Rhonda Fee’s 12-year-old daughter, K.S. At trial, K.S. testified by
two-way closed-circuit television. On appeal, Fee argues that this violated his
Sixth Amendment right to confrontation and that insufficient evidence supports his
convictions. After review, we affirm.
I. FACTUAL BACKGROUND
A. Two-Way Closed Circuit Television
The Child Victims’ and Child Witnesses’ Rights Statute provides procedures
for a child-victim to testify in federal court via a two-way, closed-circuit television.
18 U.S.C. § 3509. If the government desires to submit such testimony, it must
seek an order from the district court. Id. § 3509(b)(1)(A). The district court may
order that the child’s testimony be taken in this manner if: (1) “[t]he child is unable
to testify because of fear”; (2) “[t]here is a substantial likelihood, established by
expert testimony, that the child would suffer emotional trauma from testifying”; (3)
the child suffers from some kind of mental or other “infirmity”; or (4) conduct by
the defendant or his counsel causes the child’s inability to testify. Id.
§ 3509(b)(1)(B).
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The district court must support its ruling with specific findings on the record
and may, in its discretion, question the child in a location other than the courtroom.
Id. § 3509(b)(1)(C). The child’s closed-circuit testimony must be viewable in
court by the jury and the defendant, and the defendant must be able to
communicate privately and contemporaneously with his counsel during the child’s
testimony. Id. § 3509(b)(1)(D).
B. Evidentiary Hearing in District Court
After the government moved to allow K.S. to testify by two-way closed-
circuit television, the district court held an evidentiary hearing.
Janie Plaxco, a mental health counselor who had treated K.S., testified, inter
alia, that: (1) K.S. was scared of Defendant Fee and nervous to be in the same room
with him because of the things he had done to her; (2) K.S. was scared of testifying
in court; (3) K.S. admitted to Plaxco that she had self-mutilated her forearms
because she was upset and said she was scared to go to court; (4) Plaxco observed
the sores grow worse over time; (5) Plaxco once saw K.S. in an emergency session
because K.S.’s anxiety appeared to be escalating and because K.S. had hit her
grandmother after hearing Rhonda Fee’s voice; (6) K.S.’s anxiety level was much
more severe than that of a typical child preparing for testimony at trial and, in fact,
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Plaxco had not encountered any child as nervous to testify in court as K.S.;1 (7) on
a scale of 1 to 10, with 10 meaning a child would need to be hospitalized, K.S.’s
anxiety level was 8.5; (8) based on Plaxco’s experience with K.S., Plaxco opined
that K.S.’s testimony in front of Defendant Fee would be substantially likely to
cause K.S. emotional trauma; and (9) allowing K.S. to testify by two-way closed-
circuit television would lessen K.S.’s trauma.
Defendant Fee called Leah Belser, a forensic interviewer and therapist who
had reviewed videotape of Plaxco’s interviews of K.S. Belser testified that: (1)
Plaxco’s having conducted three, rather than one, interview may have contributed
to K.S.’s anxiety; and (2) children may, in general, mutilate themselves for many
reasons, including stress, anxiety or displacement from their family.
C. District Court’s Findings
The district court granted the government’s motion, finding Plaxco’s
testimony credible and reliable. The district court specifically credited Plaxco’s
testimony that she had “never had a child that’s been this stressed out about
coming in here and testifying,” that K.S. would suffer trauma if she testified in
court before Defendant Fee and that K.S. had mutilated herself out of fear of
1
Plaxco had worked with children in private practice for fifteen years and at a health
center for nine years. During that time, Plaxco had worked with “[h]undreds” of child victims of
sex abuse and many self-mutilating children.
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Defendant Fee. The district court found that K.S. would be unable to testify in the
defendants’ presence because of her fear of them and that, if K.S. were to testify in
court, she would “close up” and would “not say a word other than muttering” due
to the fear and emotional trauma of being in her mother’s and stepfather’s
presence.
The district court explained that it would comply with the statutory
requirements of § 3509(b)(1)(D) as to the manner in which K.S.’s televised
testimony would be transmitted. The district court noted that, to ensure the
requirements of the Confrontation Clause were met, K.S. would be sworn in the
jury’s presence, the jury would be able to view K.S.’s demeanor from the waist up
and the defendants would be allowed to communicate contemporaneously with
their counsel.
D. Trial
At trial, K.S. was examined by attorneys for the government and the defense
in the judge’s chambers. K.S.’s sworn testimony was transmitted by two-way
closed-circuit television into the courtroom, where the defendants, the judge and
the jury could observe it. A video monitor in the judge’s chambers displayed the
courtroom, including the defendants and the judge. Before K.S. testified, the
district court confirmed that K.S. could see the defendants on the monitor if she
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looked at it. The district court administered the oath to K.S., asking several
questions to ensure she understood what it meant to tell the truth. During K.S.’s
testimony, the defendants were able to communicate with their counsel by cell
phone.
II. DISCUSSION
A. Confrontation Clause Claim
After record review, we conclude that Defendant Fee’s Sixth Amendment
right of confrontation was not violated.2
Here, the district court complied with the procedures outlined in § 3509 and
made the findings required by § 3509(b)(1)(B). To comport with the
Confrontation Clause, the district court’s § 3509(b)(1)(B) findings must satisfy the
Supreme Court’s test in Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157 (1990).
United States v. Yates, 438 F.3d 1307, 1313 (11th Cir. 2006) (en banc).3
Under Maryland v. Craig, after holding an evidentiary hearing, the trial court
2
We review de novo a defendant’s claim that his Sixth Amendment rights were violated.
United States v. Yates, 438 F.3d 1307, 1311 (11th Cir. 2006) (en banc).
3
The Sixth Amendment’s Confrontation Clause “guarantees the defendant a face-to-face
meeting with witnesses appearing before the trier of fact.” Yates, 438 F.3d at 1312 (quotation
marks omitted). The right to a face-to-face confrontation is not absolute. Id. The Sixth
Amendment “may be satisfied absent a physical, face-to-face confrontation at trial only where
denial of such confrontation is necessary to further an important public policy and only where
the reliability of the testimony is otherwise assured.” Id. (quoting Craig, 497 U.S. at 850, 110 S.
Ct. at 3166).
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must make a “case-specific” “finding of necessity,” which includes a determination
that: (1) the special procedure “is necessary to protect the welfare of the particular
child witness who seeks to testify”; (2) “the child witness would be traumatized,
not by the courtroom generally, but by the presence of the defendant”; and (3) “the
emotional distress suffered by the child witness in the presence of the defendant is
more than de minimis, i.e., more than mere nervousness or excitement or some
reluctance to testify.” 497 U.S. at 856, 110 S. Ct. at 3169 (quotation marks
omitted).
Based on the evidence presented at the hearing, the government adequately
demonstrated that having to testify in Defendant Fee’s presence would have
traumatized K.S., that her emotional distress would have been much more than
mere nervousness or reluctance to testify and that conducting K.S.’s testimony by
closed-circuit television was necessary to serve the public purpose of protecting
K.S. from that emotional trauma. As in Craig, the reliability of the child’s
testimony was assured by the administration of the oath in front of the jury, by the
jury’s ability to view the child as she testified and by Fee’s ability to cross-
examine her.
Defendant Fee’s contention that the district court did not make adequate
findings is belied by the record. The district court emphasized Plaxco’s expert
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testimony that K.S. was more anxious to testify in court than any other child with
whom she had worked. The district court further found that K.S. feared being in
Defendant Fee’s presence and would suffer emotional trauma if she testified in
front of him. These findings satisfy the Craig test.
Contrary to Defendant Fee’s contention, the district court was not required
to make a specific finding that the case was “different from any other criminal
prosecution” where it would be “convenient” for the government to present closed-
circuit testimony. Fee borrows language from Yates, in which we concluded that
the government’s need to obtain testimony from witnesses in Australia using video
conferencing did not outweigh the defendant’s right to face-to-face confrontation.
See 438 F.3d at 1315-16. However, we noted in Yates, that the case was “not a
case like Craig where, in order to preserve the delicate psyche of the child who was
the alleged victim of abuse, it was necessary” to allow the witness to testify outside
the defendant’s presence. Id. at 1317 n.10. In a case, such as this one, involving
the testimony of an alleged child sexual exploitation victim, it is sufficient that the
district court made the specific findings required by Craig and followed the
procedures in § 3509.
We also reject Fee’s argument that the district court improperly relied on
Plaxco’s expert testimony and disregarded the testimony of defense witness Belser.
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The district court properly credited the testimony of Plaxco, rather than Belser,
given that Plaxco had been counseling K.S. for about six months, had observed
K.S. on multiple occasions and opined specifically about K.S.’s anxiety level and
the effect testifying before the defendants would have on K.S. Belser, on the other
hand, merely observed portions of a videotape of Plaxco’s meetings with K.S. and
made general statements as to other possible sources of anxiety.4 In sum, Fee has
not shown that the district court violated his Sixth Amendment right to
confrontation by allowing K.S. to testify via two-way closed-circuit television.
B. Sufficiency of the Evidence
Fee argues that the district court erred when it denied his motion for
judgment of acquittal following the close of the government’s case and his post-
verdict motion for a new trial. Specifically, Fee contends the government failed to
prove that: (1) the pictures of K.S. contained “sexually explicit conduct”; or (2) the
requisite intent to sexually exploit K.S. or to possess child pornography.5
4
We also reject Defendant Fee’s contention that the district court should have questioned
K.S. before ruling on the government’s motion. The district court stated that it did not see a
need to directly question K.S., noting that Plaxco’s testimony had been helpful in conveying
K.S.’s feelings about testifying before the defendants. This decision was within the district
court’s discretion, see 18 U.S.C. § 3509(b)(1)(C), and Fee has not shown that the district court
abused that discretion.
5
We review de novo whether the record contains sufficient evidence to support the jury’s
verdict. United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). In assessing the
sufficiency of the evidence, the evidence is viewed “in the light most favorable to the
government, and drawing all reasonable factual inferences in favor of the jury’s verdict.” Id.9
To convict a defendant of sexual exploitation of a minor, the government
must prove beyond a reasonable doubt that: (1) the defendant knowingly
employed, used, persuaded, induced, enticed, or coerced a minor to engage in
sexually explicit conduct; (2) the defendant did so for the purpose of producing a
visual depiction of the conduct; and (3) the visual depiction was produced using
materials that had traveled in interstate commerce. 18 U.S.C. § 2251(a). “Sexually
explicit conduct” includes the “graphic or simulated lascivious exhibition of the
genitals.” Id. § 2256(2)(B)(iii).
To convict a defendant of possession of child pornography, the government
must prove that: (1) the defendant knowingly possessed an item of child
pornography; and (2) the item of child pornography was produced using materials
that had traveled in interstate commerce. Id. § 2252A(a)(5)(B). “Child
pornography” is defined as “any visual depiction, including any photograph . . . of
sexual explicit conduct, where . . . the production of such visual depiction involves
the use of a minor engaging in sexually explicit conduct.” Id. § 2256(8).
Viewing the evidence in the light most favorable to the government and the
jury’s verdict, a jury reasonably could have found beyond a reasonable doubt that
Fee persuaded K.S. to engage in sexually explicit conduct for the purpose of
producing photographs of that conduct and that Fee knowingly possessed the
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sexually explicit photographs of K.S.
Pam Kirsch and John Barker with the Tuscaloosa County Sheriff’s Office
found eight photographs of K.S. in a drawer in Defendant Fee’s bedroom bound
together by a rubber band with a photograph of Defendant Fee naked. The eight
photographs of K.S. included two of K.S. in a cast, three focused on K.S.’s genital
area, one with K.S. spreading her genitals, one showing K.S. with her legs over her
head and two of K.S. lying naked on a bed. The officers also found cameras in
K.S.’s bedroom and bathroom and a television in Fee’s bedroom that displayed
K.S.’s bedroom and bathroom. During an interview, K.S. told Kirsch that Fee took
the photographs and had put a Q-tip inside her vagina, which hurt her.
K.S. testified that Fee took the photographs, that she did not want him to
take the photographs because “it was wrong” and that, because she kicked, her
mother held her legs open while the photographs were taken. K.S. said that Fee
watched her on the television while she was in her bedroom and bathroom. Fee
also touched K.S. between her legs, when her clothes were both on and off, in a
way she did not want him to touch her. Fee touched her “a lot” both inside and
outside her genitals and caused her pain that felt “like a knife.”
During this time, K.S., who has cerebral palsy, had two surgeries to correct
her feet and was required to wear a cast for a long period of time. Between the two
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surgeries, K.S. developed an infection between her legs. During a routine
appointment, Dr. Karen Burgess diagnosed K.S. with a vaginal infection and
recommended bathing and use of Vaseline. Dr. Burgess did not recommend that
Fee take pictures of K.S.’s vagina. K.S. acknowledged that she used a cream for
the infection, that she had trouble bathing by herself and needed help applying the
cream, that Defendant Fee sometimes helped her bathe or apply the cream and that
the defendants showed her the pictures because they said she was not bathing
correctly.
Defendant Fee testified and admitted he took the photographs of K.S.
Defendant Fee maintained that he took the pictures because K.S. had an infection
and was having trouble keeping herself clean. He and his wife tried to explain to
K.S. how to keep her vaginal area clean. Fee denied taking the pictures to make
child pornography. Fee said he put the camera in K.S.’s bathroom to make sure
she bathed fully and did not fall when getting out of the tub, and he put the camera
in K.S.’s bedroom to make sure she was not “goofing off” and was getting dressed.
In challenging the sufficiency of the evidence, Fee relies on his testimony
that he took the pictures only to teach K.S. how to clean herself.6 However, the
6
We may consider Fee’s testimony because he waived any objection to the district court’s
denial of his initial Federal Rule of Criminal Procedure 29 motion for a judgment of acquittal by
testifying in his defense. See United States v. Alejandro, 118 F.3d 1518, 1520-21 (11th Cir.
1997).
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jury was free to discredit Fee’s testimony, which it clearly did. See United States
v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006) (explaining that credibility
questions are for the jury to resolve and we will assume the jury answered them in
a manner that supports the jury’s verdict). If the jury disbelieves a defendant’s
testimony, the jury may consider that testimony as substantive evidence of his
guilt. United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995). This rule applies
with special force when the issue involves the elements of intent or knowledge. Id.
at 315.
We reject Fee’s claim that K.S. corroborated his innocent motive. K.S.
testified that Fee and her mother told her they took the pictures to show her how to
properly clean herself, but she also said that she did not want Fee to take them
because it was wrong, that she kicked when the pictures were taken, that her
mother held her legs apart and that Fee touched her between her legs “a lot” and
that it hurt. Moreover, Fee kept the pictures bound together with a picture of
himself naked and watched K.S. on a television in his bedroom while K.S. was in
her bedroom and bathroom.
The jury could reasonably conclude from the totality of the evidence that
Fee’s motive for taking the pictures was not innocent, and that he used K.S.’s
vaginal infection as an excuse to produce pictures depicting K.S. engaged in
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sexually explicit conduct. The jury also could reasonably conclude, given the
nature of the depictions of K.S. and the focus on her genitals, that the photographs
showed “sexually explicit conduct” and that Fee knowingly possessed them.
Accordingly, we conclude that there was sufficient evidence supporting
Fee’s convictions.7
AFFIRMED.
7
On appeal, Defendant Fee does not challenge any advisory guidelines calculations or his
ultimate sentences.
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