United States v. Timothy Yazzie , 743 F.3d 1278 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10165
Plaintiff-Appellee,
D.C. No.
v. 3:11-cr-08086-
NVW-1
TIMOTHY YAZZIE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
UNITED STATES OF AMERICA, No. 12-10326
Plaintiff-Appellee,
D.C.
v. No. 3:11-cr-
08082-GMS-1
SHONNIE SHIDALE GEORGE, AKA
Shonnie George,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
2 UNITED STATES V. YAZZIE
Argued and Submitted
November 5, 2013—San Francisco, California
Filed February 27, 2014
Before: Jerome Farris, Ferdinand F. Fernandez,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
SUMMARY*
Criminal Law
Affirming two defendants’ convictions for aggravated
sexual abuse of a minor, the panel held that the district court
did not violate the defendants’ Sixth Amendment rights to a
public trial when it closed the courtroom while the child
victims were testifying.
The panel also held that the closure of Yazzie’s trial did
not violate the requirements of 18 U.S.C. § 3509(e), which
permits a closed courtroom during the testimony of a child
witness.
The panel concluded 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.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. YAZZIE 3
COUNSEL
Michael J. Bresnehan, Law Offices of Michael J. Bresnehan,
Tempe, Arizona, for Defendant-Appellant Timothy Yazzie,
12-10165.
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, 12-10326.
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, 12-10165.
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, 12-10326.
OPINION
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.
4 UNITED STATES V. YAZZIE
§ 1291 and affirm the district court. Applying the test set out
in Waller v. Georgia, 467 U.S. 39 (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.1
I
A
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
1
In a separately filed unpublished disposition we address Yazzie’s
remaining arguments.
UNITED STATES V. YAZZIE 5
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 2010.2
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
2
Because George was not convicted of the charges involving Jane Doe
O.A., we do not discuss the allegations underlying those charges.
6 UNITED STATES V. YAZZIE
18 U.S.C. § 3509(e).3 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.
3
Section 3509(e) provides:
Closing the courtroom.—When a child testifies the
court may order the exclusion from the courtroom of all
persons, including members of the press, who do not
have a direct interest in the case. Such an order may be
made if the court determines on the record that
requiring the child to testify in open court would cause
substantial psychological harm to the child or would
result in the child’s inability to effectively
communicate. Such an order shall be narrowly tailored
to serve the Government’s specific compelling interest.
UNITED STATES V. YAZZIE 7
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
8 UNITED STATES V. YAZZIE
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
UNITED STATES V. YAZZIE 9
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 imprisonment as well as a
lifetime of supervised release.
B
Timothy Yazzie lived on the Navajo reservation in
Arizona where he cohabited with his girlfriend Sandra and
her children from prior relationships. After Sandra’s
fourteen-year-old daughter R.J. told a school official that
Yazzie had molested her, the school alerted the authorities,
and R.J. was examined by a nurse practitioner and
interviewed at the Flagstaff Medical Center Child Safe Center
on April 8, 2011. In a videotaped interview, R.J. stated that
Yazzie had forced her to engage in sexual intercourse on
numerous occasions since she was thirteen years old. R.J.
described in detail the first and last times Yazzie had sex with
her. R.J. also told the interviewer about other abusive acts:
she stated that Yazzie had hit and threatened to kill her
mother, yelled at R.J., and whipped her and her siblings with
a stick. Law enforcement agents subsequently searched
Yazzie’s residence and arrested him. In an interview with
FBI Agent James Kraus, Yazzie admitted to having regularly
engaged in sexual intercourse with R.J. over the course of
eight months.
10 UNITED STATES V. YAZZIE
A superseding indictment charged Yazzie with three
counts of aggravated sexual abuse of a minor in violation of
18 U.S.C. §§ 2241(c) and 2246. The first count alleged that
on or between January 1, 2010 and October 1, 2010, Yazzie
engaged in a sexual act with R.J., involving “contact between
the defendant’s penis and the victim’s vulva.” R.J. referred
to this incident as the “first time.” The second count alleged
that on or between March 1, 2011 and April 4, 2011, Yazzie
engaged in a sexual act with R.J., involving “contact between
the defendant’s penis and the victim’s vulva.” The third
count alleged that on or between March 1, 2011 and April 4,
2011, Yazzie engaged in a sexual act with R.J., involving
“intentional touching, not through the clothing, of the
victim’s genitalia with the defendant’s hand, with an intent to
abuse, humiliate, harass and degrade the victim and arouse
and gratify the sexual desire of the defendant.” The sexual
acts detailed in the second and third counts were both alleged
to have occurred during “the ‘last time’ as described by” R.J.
Despite his earlier admission to the federal agent, Yazzie
pleaded not guilty to all charges.
The government filed a pretrial motion to close the
courtroom during R.J.’s testimony. The government stated
that R.J. was “reluctant to discuss the sexual abuse” during
her forensic interview, even though the only other person in
the room was the interviewer. During a subsequent interview
with two attorneys, an FBI Agent, and a victim witness
advocate, R.J. “cried for the majority of the interview.”
Because R.J. “has difficulty effectively communicating about
her sexual abuse in small intimate settings,” the government
argued that she “would have even greater difficulty
communicating in a large courtroom filled with spectators.”
Therefore, the government asserted that “[w]ithout the
protections afforded under Title 18 U.S.C. § 3509, the child
UNITED STATES V. YAZZIE 11
victim . . . will likely be intimidated by the process and the
environment, such that the result may be an incomplete
testimony or an outright failure to testify.” Yazzie opposed
the motion.
The court granted the government’s motion in a written
order. Having viewed R.J.’s April 2011 forensic interview
and “considering her age, maturity, and obvious discomfort
when answering questions about the alleged sexual abuse,”
the court concluded that requiring R.J. “to testify in an open
courtroom would likely cause [her] psychological harm and
would result in [her] inability to effectively communicate.”
The court found that during R.J.’s interview she “was
visibl[y] uncomfortable during the questioning and often
retreated when asked difficult questions regarding the sexual
abuse.” Because she showed discomfort and difficulty
communicating with only one other person present, the court
concluded that “it is natural to presume that such discomfort
would only be exacerbated in [a] more public setting.” The
court stated that closing the courtroom during R.J.’s
testimony in this manner was a “less extreme alternative than
other options for protecting the child witness, such as having
the child witness’s testimony conducted by closed circuit
television.” The order nevertheless gave individuals who
wished to remain in the courtroom during the testimony the
opportunity to present an argument for doing so.
At trial, R.J. testified regarding the “first time” and the
“last time” that Yazzie forced her to engage in sexual
intercourse. She stated that Yazzie threatened to kill R.J.’s
mother if R.J. told her about his abuse. R.J. also stated that
Yazzie showed her pornography, but described it as people
having “S-E-X” because (she explained) it was difficult for
her to say the word “sex” in the courtroom. She also
12 UNITED STATES V. YAZZIE
mentioned that Yazzie had threatened R.J.’s siblings with a
sword, and hit her and her siblings with a stick.
At the end of the trial, the jury returned a guilty verdict on
all three counts in the superseding indictment. Thereafter, the
district court sentenced Yazzie to 420 months of
imprisonment for each count, to be served concurrently, as
well as a lifetime of supervised release.
II
George and Yazzie argue that closing the courtroom
during the children’s testimonies violated their Sixth
Amendment rights to a public trial. Yazzie also maintains
that the closure failed to comply with the requirements set out
in 18 U.S.C. § 3509(e).
The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial . . . .” U.S. Const. amend. VI. “Essentially, the
public-trial guarantee embodies a view of human nature, true
as a general rule, that judges, lawyers, witnesses, and jurors
will perform their respective functions more responsibly in an
open court than in secret proceedings.” Waller v. Georgia,
467 U.S. 39, 46 n.4 (1984) (quoting Estes v. Texas, 381 U.S.
532, 588 (1965) (Harlan, J., concurring)).
The Sixth Amendment requirement of a public trial “is for
the benefit the accused.” Id. at 46 (internal quotation marks
omitted). The interests of the defendant are protected because
the public will see that the defendant “is fairly dealt with and
not unjustly condemned” and the “presence of interested
spectators may keep his triers keenly alive to a sense of their
responsibility and to the importance of their functions.” Id.
UNITED STATES V. YAZZIE 13
(internal quotation marks omitted). Further, a public trial will
ensure that the “judge and prosecutor carry out their duties
responsibly,” and also “encourages witnesses to come
forward and discourages perjury.” Id.; see also United States
v. Rivera, 682 F.3d 1223, 1228 (9th Cir. 2012). In addition
to a defendant’s Sixth Amendment right, the press and public
have an implicit First Amendment right of access to criminal
trials, Waller, 467 U.S. at 46; Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 580 (1980), which allows citizens to
exercise their constitutionally protected right to discuss
governmental affairs in an informed manner. Globe
Newspaper Co. v. Superior Court, 457 U.S. 596, 604–05
(1982).
Although the right to a public trial is protected by the
First Amendment and Sixth Amendment, it is not absolute.
Id. at 606. In the First Amendment context, the Court held
that “[t]he presumption of openness may be overcome only
by an overriding interest based on findings that closure is
essential to preserve higher values and is narrowly tailored to
serve that interest.” Press-Enterprise Co. v. Superior Court,
464 U.S. 501, 510 (1984). The court must articulate the
interest at stake “along with findings specific enough that a
reviewing court can determine whether the closure order was
properly entered.” Id.In applying the Press-Enterprise test to a defendant’s
Sixth Amendment challenge to a courtroom closure, the
Court identified four separate factors. First, “the party
seeking to close the hearing must advance an overriding
interest that is likely to be prejudiced.” Waller, 467 U.S. at
48. The Supreme Court has recognized that “the physical and
psychological well-being of a minor” is a compelling higher
value that can justify a closure. Globe, 457 U.S. at 607–08;
14 UNITED STATES V. YAZZIE
see also Press-Enterprise Co. v. Superior Court, 478 U.S. 1,
9 n.2 (1986); Charboneau v. United States, 702 F.3d 1132,
1138 (8th Cir. 2013); Bell v. Jarvis, 236 F.3d 149, 168 (4th
Cir. 2000) (concluding that the “state demonstrated an
over-riding, compelling interest in protecting a child victim
from the embarrassment and trauma associated with relating
the details of multiple rapes and sexual molestation by a
family member”). We have held that ensuring a child
victim’s ability to effectively communicate is also a
compelling higher value that can justify a closure. See Geise
v. United States, 262 F.2d 151, 156–57 (9th Cir. 1958)
(holding that an Alaska state court did not abuse its discretion
in closing the courtroom during a rape victim’s testimony “in
view of the tender years of the prosecutrix . . . and the
difficulty of obtaining [her] testimony before a large
audience.”).
Second, Waller held that “the closure must be no broader
than necessary to protect that interest” of overriding
importance. 467 U.S. at 48. Waller held that the closure of
an entire seven-day suppression hearing to protect the privacy
of uncharged individuals whose voices had been intercepted
on a two-and-a-half hour wiretap was overbroad. Id. at
48–49. Although protecting the uncharged parties’ privacy
interest could justify closing portions of a suppression
hearing to the general public, the state had to explain the
extent to which closure was necessary to protect these
interests. Id. A closure that is more narrowly tailored to the
interest at stake may pass constitutional muster however. For
instance, a temporary closure of a courtroom during the
testimony of a rape victim is narrowly tailored where the
purpose is to protect the victim from harm. See Bell,
236 F.3d at 169.
UNITED STATES V. YAZZIE 15
Third, Waller held that “the trial court must consider
reasonable alternatives to closing the proceeding.” 467 U.S.
at 48. Waller faulted the trial court for failing to consider
whether it could close only those parts of a hearing that
jeopardized the privacy interests of the uncharged individuals
whose conversation had been intercepted by the wire taps. Id.at 48–49. “[T]rial courts are required to consider alternatives
to closure even when they are not offered by the parties.”
Presley v. Georgia, 558 U.S. 209, 214 (2010); see also United
States v. Sherlock, 962 F.2d 1349, 1359 (9th Cir. 1992).
Finally, the trial court “must make findings adequate to
support the closure.” Waller, 467 U.S. at 48. The court must
identify “the particular interest, and threat to that interest . . .
along with findings specific enough that a reviewing court
can determine whether the closure order was properly
entered.” Presley, 558 U.S. at 215 (internal quotation marks
omitted). Conclusory statements do not suffice. Id. at 216;
see also United States v. Waters, 627 F.3d 345, 361 (9th Cir.
2010) (deeming insufficient a district court’s statement that
the hearing would be closed “‘because that’s the type of
hearing it is’”). In order for the findings to be adequate, the
district court must generally hold a hearing on a closure
motion or otherwise give the defendant the opportunity to
contest the closure motion. Sherlock, 962 F.2d at 1358.
These four Waller factors must be considered on a case-
by-case basis, because even a compelling interest such as
“safeguarding the physical and psychological well-being of
a minor” cannot “justify a mandatory closure rule.” Globe,
457 U.S. at 607–08 (emphasis omitted). Rather, a court must
consider the “circumstances of the particular case,” such as
“the minor victim’s age, psychological maturity and
understanding, the nature of the crime, the desires of the
16 UNITED STATES V. YAZZIE
victim, and the interests of parents and relatives,” because
these factors may affect the significance of the interest. Id.4
In addition to these constitutional requirements, Congress
has given a federal district court statutory authorization to
close a courtroom during the testimony of a minor witness “if
the court determines on the record that requiring the child to
testify in open court would cause substantial psychological
harm to the child or would result in the child’s inability to
effectively communicate.” See 18 U.S.C. § 3509(e). The
order must “be narrowly tailored to serve the Government’s
specific compelling interest.” Id.III
We now apply this legal framework to George and
Yazzie’s claims. We review George and Yazzie’s Sixth
Amendment claims de novo. United States v. Ivester,
316 F.3d 955, 958 (9th Cir. 2003). We review the district
court’s factual findings for clear error. See United States v.
4
Partial closure of a courtroom has a reduced impact on a defendant’s
rights. Therefore, a trial court ordering such a partial closure need provide
only a “substantial reason” for the closure as opposed to an “overriding
interest.” Sherlock, 962 F.2d at 1357. We deem a closure to be partial
when specified individuals are excluded, rather than the public as a whole.
See id. (applying partial closure standard where family members of the
defendant were excluded); see also Judd v. Haley, 250 F.3d 1308, 1315
(11th Cir. 2001). The government asserts that this less onerous standard
applies to both George and Yazzie, because in both cases the court
allowed some individuals to remain in the courtroom during the victims’
testimonies. We need not decide this issue here, because we resolve
George and Yazzie’s argument that the district court erred in closing the
courtroom on different grounds. See Rivera, 682 F.3d at 1236 (declining
to decide whether closure was partial or total because it violated
defendant’s Sixth Amendment right under either standard).
UNITED STATES V. YAZZIE 17
Mendoza, 530 F.3d 758, 762 (9th Cir. 2008). We review the
district court’s interpretation of a statute de novo, see United
States v. Banks, 556 F.3d 967, 972 (9th Cir. 2009), and
review the court’s application of the statute to the facts for
abuse of discretion, Advanced Micro Devices, Inc. v. Intel
Corp., 292 F.3d 664, 666 (9th Cir. 2002), aff’d, 542 U.S. 241(2004).
A
We begin by considering George’s claim that the closure
of the courtroom during the four children’s testimonies
violated his Sixth Amendment right to a public trial. We
disagree, because the district court adequately complied with
the four factors set out in Waller.5
First, the district court properly determined that there was
“an overriding interest that is likely to be prejudiced.”
Waller, 467 U.S. at 48. Specifically, it found that the
children’s abilities to effectively communicate their stories at
trial would be adversely affected absent closure of the
courtroom. See Geise, 262 F.2d at 156–57. In reaching this
conclusion, the court noted the children’s youth, the mental
difficulties of one of the children, and the family tensions
arising from George being a relative of the victims, all of
which had the potential to impact the children’s testimony.
Second, the closure was narrowly tailored to the asserted
interest because the district court closed the courtroom only
when the child victims took the stand. Unlike the situation in
Waller, where the trial court closed the courtroom for the
5
Because George does not allege that the closures violated § 3509(e),
we do not reach this issue in his case.
18 UNITED STATES V. YAZZIE
entire seven-day suppression hearing without considering the
specific need for privacy, here all portions of the trial other
than the minor witnesses’ testimony were public. Further, the
district court orchestrated the closures around breaks in the
proceedings to address George’s specific concern that the
closures would prejudice him by affecting the presumption of
innocence in the eyes of the jury.
On appeal, George argues that because the clerk’s
minutes and trial transcripts do not indicate precisely when
the courtroom was opened and closed, the courtroom might
have remained closed after the children were through
testifying. Though we review for plain error because George
did not raise this objection at trial, see United States v.
Withers, 638 F.3d 1055, 1065 n.4 (9th Cir. 2010), this
argument fails under any standard of review. Even now,
George does not allege that the courtroom was closed after
the children had left the witness stand. In the absence of
evidence in the record, or even any allegation by defense
counsel, we presume that the district court followed the law,
see United States v. Segal, 549 F.2d 1293, 1296 (9th Cir.
1977), and implemented its own order to close the courtroom
only when the children were testifying.
Third, the district court considered reasonable alternatives
to closure. The district court held that it would have denied
the closure motion without prejudice to renewal at trial had
the videotaped interviews been insufficient to establish a
basis upon which to close the courtroom. The district court
also indicated that it would make a determination about the
need for closure individually as to each child witness, and
that its ruling “could be different with respect to each one.”
UNITED STATES V. YAZZIE 19
George now contends that the court should have also
considered alternatives to live in-court testimony, such as
testimony via a two-way closed circuit television or
videotaped depositions. We disagree. While a court must
“consider alternatives to closure even when they are not
offered by the parties,” Presley, 558 U.S. at 214, Waller
makes clear that trial courts need consider only “reasonable
alternatives” that are more narrowly tailored and more
protective of constitutional rights than the closure advocated
by the government. For instance, instead of closing an entire
hearing, a trial court should consider the reasonable
alternative of “closing only those parts of the hearing that
jeopardized the interests advanced,” Waller, 467 U.S. at 48.
Similarly, instead of excluding the public from a voir dire of
prospective jurors, the trial court should have adopted the
reasonable alternative of finding additional space in the
courtroom to accommodate members of the public who
wished to attend. Presley, 558 U.S. at 215. But a district
court need not sua sponte consider alternatives that would
potentially have a significant impact on the defendant’s
constitutional right to a fair trial and substantially alter the
nature of the proceedings. See Ayala v. Speckard, 131 F.3d
62, 72 (2d Cir. 1997) (“Even if Waller requires a trial judge
to consider alternatives to complete closure, we do not
believe that the Supreme Court wanted trial judges selecting
the alternative of limited closure to consider further
alternatives that themselves pose substantial risks to a fair
trial for the defendant.”). Here, a two-way closed circuit
television or videotaped depositions, such as George now
recommends, would materially change the nature of the
proceedings. These alternatives prohibit face-to-face
confrontation during cross-examination and raise substantial
Confrontation Clause issues. See Maryland v. Craig,
497 U.S. 836, 856–57 (1990); United States v. Miguel,
20 UNITED STATES V. YAZZIE
111 F.3d 666, 671 (9th Cir. 1997). In the absence of any
request by George, the district court’s failure to address sua
sponte alternatives that raise significant additional
constitutional concerns did not violate George’s Sixth
Amendment rights.6
Finally, the district court made adequate findings to
support the closure. Before ruling on the government’s order,
the district court confirmed that the basis of the government’s
motion was its concern that an open courtroom would
preclude the children from communicating effectively. The
court’s subsequent findings, after reviewing the videotaped
interviews, were relevant to this specific issue. Although the
district court did not expressly state that closure was
necessary to facilitate the children’s testimony, its findings
are clear in context. See Sherlock, 962 F.2d at 1359 (noting
the court’s findings were sufficient to allow the reviewing
court to “conclude there was a substantial reason to close the
proceedings”); see also United States v. Farmer, 32 F.3d 369,
371 (8th Cir. 1994) (holding that “specific findings by the
district court are not necessary if we can glean sufficient
support for a partial temporary closure from the record.”).
The court afforded George an opportunity to be heard at the
final pretrial conference, and he did not challenge the
government’s articulation of its overriding concern.
Therefore, the district court’s on-the-record findings were
sufficient.
Because the court’s rulings complied with the factors set
forth in Waller, we conclude the court closure during the
6
Moreover, the government’s reply brief in support of its § 3509(e)
motion mentioned these alternatives, and thus the district court implicitly
rejected them in ordering a temporary closure of the courtroom.
UNITED STATES V. YAZZIE 21
children’s testimonies did not violate George’s Sixth
Amendment right to a public trial.
B
We next consider Yazzie’s claim that the district court’s
order to close the courtroom during R.J.’s testimony violated
his Sixth Amendment right to a public trial. This claim
likewise fails, because the district court’s order carefully
addressed each of the Waller factors.
First, the district court identified overriding interests that
would be prejudiced absent a temporary closure of the
courtroom and concluded that requiring R.J. to testify in open
court “would likely cause [her] psychological harm and
would result in [her] inability to effectively communicate.”
See Globe, 457 U.S. at 607–08; Geise, 262 F.2d at 156–57.
Second, the court’s closure order was narrowly tailored to
address those interests. The court ordered that the courtroom
be closed only during R.J.’s testimony. Moreover, the court
stated that it would allow any spectator, whether a member of
the media, public, or family or friends of the defendant or the
child witness, “the opportunity to articulate a sufficient
interest in remaining in the courtroom during the child
witness’s testimony,” and would individually determine
whether to allow such spectator to remain in the courtroom.
The court also considered reasonable alternatives, stating
that its limited closure order was “a less extreme alternative
than other options for protecting the child witness, such as
having the child witness’s testimony conducted by closed
circuit television.”
22 UNITED STATES V. YAZZIE
Finally, the court made findings that sufficiently
identified the particular interest at stake and the threat to that
interest. After giving Yazzie the opportunity to be heard, the
court noted the government’s testimony regarding R.J.’s
anxiety and its concern that the presence of defendant’s
family members would have a chilling effect on her
testimony. Further, the court stated that it had independently
reviewed the videotape of an interview with R.J., and reached
a similar conclusion. These findings provide ample support
for the court’s determination that closing the courtroom was
justified to protect R.J.’s psychological well being and ability
to communicate effectively.
Yazzie claims the district court’s methodology for
determining the strength of the asserted interests was not
sufficiently rigorous. According to Yazzie, the district court
erred in relying on the prosecutor’s statements and its review
of a seven-month-old video. Instead, Yazzie contends that
the court should have had the child evaluated by a behavioral
scientist, appointed a guardian ad litem, or observed the child
in person, prior to making its determination. We disagree.
The court made reasonable determinations based on its
review of the videotape, the government’s assertions, and its
commonsense understanding that child victims may have
difficulty testifying about sexual abuse in a public setting
where the defendant’s friends and family are present. While
a court may consider expert testimony on a child’s
psychological well-being or ability to testify, it is not
constitutionally required to do so. Moreover, although the
court gave Yazzie an opportunity to be heard, he did not raise
this issue to the district court or explain his reasons for
believing that such additional investigation was justified in
this particular case. Accordingly, the district court did not
commit error, let alone plain error, in not requiring this
UNITED STATES V. YAZZIE 23
additional information. See Globe, 457 U.S. at 608 (noting
that the trial court must determine on a “case-by-case basis”
whether closure is necessary and listing several factors for the
court’s consideration (emphasis added)).7 For these reasons,
we conclude that the court closure did not violate Yazzie’s
Sixth Amendment right to a public trial.
C
Yazzie also maintains that the district court’s closure
order violated the requirements set out in 18 U.S.C.
§ 3509(e). Yazzie first contends that the court violated
§ 3509(e) by failing to follow the procedures set forth in
§ 3509(g) and (h) or by failing to hold a hearing to examine
the child witness. Again, we disagree.
Section 3509 makes available a range of procedures to
protect the rights of child victims and witnesses. In addition
to authorizing closure of the courtroom, id. § 3509(e), the
statute authorizes courts to protect children from testifying in
open court under certain circumstances by allowing them to
testify via two-way closed circuit television or videotaped
depositions, id. § 3509(b). Section 3509 also authorizes a
court to work with a “multidisciplinary child abuse team”
established by state and local governments to assist child
victims and witnesses. Id. § 3509(g). These teams provide
expert services to a child, including medical evaluations
7
Yazzie points to R.J.’s testimony on the stand that she was “feeling
happy” the day of trial and defense counsel’s observation that R.J.
“seemed far more composed [at trial] than one would have predicted by
listening to the prosecutor’s pretrial assessment of R.J.” But we must
evaluate the reasonableness of the court’s conclusion at the time it ordered
the closure, and cannot rely on hindsight based on events that occurred
during the trial.
24 UNITED STATES V. YAZZIE
related to abuse or neglect and psychological and psychiatric
diagnoses. Id. The court is also authorized to appoint a
guardian ad litem “to protect the best interests of the child”
and “make recommendations to the court concerning the
welfare of the child.” Id. § 3509(h).
By its terms, § 3509(e) does not require the court to hear
testimony from the child, a guardian ad litem, or expert, prior
to deciding a closure motion. While § 3509(g) and (h)
authorize the court to use experts and guardians ad litem to
further the interests of the child, neither of these provisions
limit or condition the court’s authority under § 3509(e).
Indeed, Congress required expert testimony in only one
limited circumstance. When a court orders that a child’s
testimony be taken by two-way closed circuit television, the
order must be supported by the court’s finding that the child
is unable to testify in open court in the presence of the
defendant for any one of four reasons. Id. § 3509(b)(1)(B).
Only one of these four reasons requires an expert: the court’s
finding that “[t]here is a substantial likelihood, established by
expert testimony, that the child would suffer emotional
trauma from testifying.” Id. § 3509(b)(1)(B)(ii) (emphasis
added). Because Congress knew how to impose a
requirement that the court obtain expert testimony, and
enacted such a requirement in one limited circumstance, the
absence of any similar language in § 3509(e) underscores our
determination that it imposes no similar requirement.
Finally, Yazzie argues that the court erred by excluding
family members of the defendant under § 3509(e), which
allows a district court to exclude only those persons “who do
not have a direct interest in the case.” Yazzie claims that his
family members have a direct interest in his case, and
therefore should not have been excluded. We reject this
UNITED STATES V. YAZZIE 25
argument. While family members of the victim or defendant
may have a more intense personal interest in a case than
members of the general public, they do not have a direct
interest in a criminal case as do the defendant and the
government, and their attorneys at trial. The statute does not
require a court to evaluate the level of concern a member of
the public (whether a member of the media or a family
member) may have regarding the outcome of a particular
trial. Indeed, Yazzie’s argument that a defendant’s family
members cannot be excluded from a trial is contrary to the
protective goals of § 3509, because child victims and
witnesses are often most intimidated by the defendant’s
family members among the spectators. See, e.g., Sherlock,
962 F.2d at 1359 (affirming exclusion during rape victim’s
testimony of defendant’s family members who “peered and
giggled” at the witnesses); United States v. Osborne, 68 F.3d
94, 97 (5th Cir. 1995); cf. Woods v. Kuhlmann, 977 F.2d 74,
77 (2d Cir. 1992); Nieto v. Sullivan, 879 F.2d 743, 753–54
(10th Cir. 1989).
Accordingly, we conclude that Yazzie’s statutory
argument is also without merit and that the district court’s
closure order did not violate § 3509(e).
IV
Finally, we turn to Yazzie’s argument that his convictions
on the second and third counts alleged in the indictment
violate the Double Jeopardy Clause. Yazzie asserts that the
conduct alleged in the second count, a sexual act with R.J.
involving “contact between the defendant’s penis and the
victim’s vulva,” and the conduct alleged in the third count, a
sexual act with R.J. involving “intentional touching, not
through the clothing, of the victim’s genitalia with the
26 UNITED STATES V. YAZZIE
defendant’s hand” both occurred during the incident that R.J.
termed the “last time,” and therefore impose multiple
criminal punishments for the same offense.
Because Yazzie failed to raise this claim to the district
court, we review for plain error. United States v. Sykes,
658 F.3d 1140, 1149 (9th Cir. 2011). “Under the plain error
standard, we will affirm . . . unless: (1) there has been an
error in the proceedings below; (2) that error was plain; (3) it
affected substantial rights; and (4) it seriously affected the
fairness, integrity, or public reputation of judicial
proceedings.” United States v. Davenport, 519 F.3d 940, 943
(9th Cir. 2008).8
The Double Jeopardy Clause of the Fifth Amendment
states: “[N]or shall any person be subject for the same offense
to be twice put in jeopardy of life or limb . . . .” U.S. Const.,
amend. V. “[S]ince Congress has full authority to define
distinct offenses and to prescribe punishments for those
offenses, ‘the question of what punishments are
constitutionally permissible is not different from the question
of what punishments the Legislative Branch intended to be
imposed.’” United States v. Wolfswinkel, 44 F.3d 782, 784
(9th Cir. 1995) (quoting Albernaz v. United States, 450 U.S.
333, 344 (1981)). “If Congress enacts statutes that indicate
an intent to impose separate punishments, those statutes
define separate offenses, and the punishments do not violate
the Constitution.” Id. Once Congress has defined an offense
in a statute, we must determine the “allowable unit of
8
Although Yazzie is concurrently serving the sentences imposed for
these convictions, the issue is not moot because the potential collateral
consequences of an additional conviction affect substantial rights. See
Davenport, 519 F.3d at 947.
UNITED STATES V. YAZZIE 27
prosecution” defined by Congress. United States v. Universal
C.I.T. Credit Corp., 344 U.S. 218, 221 (1952). The issue is
therefore one of statutory construction. See Bell v. United
States, 349 U.S. 81, 81, 83–84 (1955); see also Sanabria v.
United States, 437 U.S. 54, 69–70 (1978).
Accordingly, we begin with the text of 18 U.S.C.
§ 2241(c), the statute of conviction, which provides:
Whoever . . . knowingly engages in a sexual
act with another person who has not attained
the age of 12 years, or knowingly engages in
a sexual act under the circumstances described
in subsections (a) and (b) with another person
who has attained the age of 12 years but has
not attained the age of 16 years (and is at least
4 years younger than the person so engaging),
or attempts to do so, shall be fined under this
title and imprisoned for not less than 30 years
or for life.
18 U.S.C. § 2241(c) (emphasis added). The term “sexual act”
is defined in a separate provision as:
(A) contact between the penis and the vulva or
the penis and the anus, and for purposes of
this subparagraph contact involving the penis
occurs upon penetration, however, slight;
(B) contact between the mouth and the penis,
the mouth and the vulva, or the mouth and the
anus;
28 UNITED STATES V. YAZZIE
(C) the penetration, however slight, of the
anal or genital opening of another by a hand
or finger or by any object, with an intent to
abuse, humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person; or
(D) the intentional touching, not through the
clothing, of the genitalia of another person
who has not attained the age of 16 years with
an intent to abuse, humiliate, harass, degrade,
or arouse or gratify the sexual desire of any
person[.]
18 U.S.C. § 2246(2).
Because § 2241(c) makes it unlawful to engage in a
“sexual act,” and § 2246(2) defines “sexual act” as any one of
four specific actions, we conclude that the “allowable unit of
prosecution” intended by Congress is each individual sexual
act listed in § 2246(2). Although Congress could have
defined “sexual act” to mean a single sexual encounter
involving one or more of the actions listed in § 2246(2),
Congress chose not to do so, and instead made each type of
conduct listed in § 2246(2) a separate “sexual act”
criminalized by § 2241(c). Because Congress’s intent is the
touchstone for determining the scope of protection afforded
by the Double Jeopardy Clause, we conclude that each sexual
act listed in § 2246(2) constitutes a separate violation of
§ 2241(c). Therefore, a defendant can be convicted of
multiple violations of § 2241(c) for performing multiple
listed sexual acts without violating the Double Jeopardy
Clause’s protection against multiple punishments for the
same offense, even if the defendant performed those sexual
acts in the course of a single sexual encounter. In reaching
UNITED STATES V. YAZZIE 29
this conclusion, we join the only other circuit to have
considered this issue. See United States v. Two Elk, 526 F.3d
890, 898–99 (8th Cir. 2008) (holding that § 2241(c) punishes
separate acts, not a single course of conduct).
In light of this analysis, Yazzie’s convictions under the
second and third counts in the superseding indictment do not
raise double jeopardy concerns. Although the conduct
described in those counts both occurred during “the last time”
as described by R.J., each count alleges a separate sexual act
that is listed in § 2246(2). We conclude there was no
error—much less plain error—in allowing both convictions
on Count II and Count III to stand.
While Yazzie concedes that § 2241(c), when read in
conjunction with § 2246(2), allows separate punishments for
each act set forth in § 2246(2), he argues that Congress did
not intend that a defendant be punished for two sexual acts in
circumstances where the first is “merely incidental” to the
second. This argument is meritless, because in determining
whether a conviction imposes multiple criminal punishments
for the same offense, we look only to Congressional intent,
not to whether one offense was incidental to another.9 As the
Supreme Court has explained, “[i]n determining the
permissibility of the imposition of cumulative punishment for
the crime of rape and the crime of unintentional killing in the
course of rape,” the “dispositive question was whether
Congress intended to authorize separate punishments for the
two crimes.” Albernaz, 450 U.S. at 344 (internal quotation
9
For the same reason we reject Yazzie’s contention that “R.J.’s
testimony left entirely open the question of whether the act described in
count three was a necessary or functional part of the act described in count
two.”
30 UNITED STATES V. YAZZIE
marks omitted); cf. Rhoden v. Rowland, 10 F.3d 1457, 1461
(9th Cir. 1993) (“[I]t is well settled that a single transaction
can give rise to distinct offenses under separate statutes
without violating the Double Jeopardy Clause.” (internal
quotation marks omitted)). We rejected a similar argument
raised by a habeas petitioner convicted of both the sexual act
of digital penetration and the act of intercourse. Rhoden,
10 F.3d at 1461–62. Although the petitioner argued that
because “the digital penetration was incidental to the act of
intercourse” it could not “constitutionally be punished as a
separate crime,” we concluded that the two offenses were
separate under California law, and therefore the conviction on
both offenses did not give rise to any Double Jeopardy
concern. Id.AFFIRMED.