U.S. v. Bordeaux

• Decision Date: 07 March 2005
• Docket Number: No. 04-1369.,04-1369.
• Citation: 400 F.3d 548
• Parties: UNITED STATES of America, Appellee, v. Edward E. BORDEAUX, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

400 F.3d 548

UNITED STATES of America, Appellee, v. Edward E. BORDEAUX, Jr., Appellant.

No. 04-1369.

United States Court of Appeals, Eighth Circuit.

Submitted: October 21, 2004.

Filed: March 7, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Edward G. Albright, argued, Asst. Federal Public Defender, Pierre, SD (Jeffrey L. Viken, Federal Public Defender, on the brief), for appellant.

Randolph J. Seiler, argued, Asst. U.S. Atty., Pierre, SD, for appellee.

Before MORRIS SHEPPARD ARNOLD, JOHN R. GIBSON, and SMITH, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Edward Bordeaux, Jr., appeals from his conviction and sentence for aggravated sexual abuse, 18 U.S.C. §§ 1153, 2241(c), and 2246(2)(B). He argues that his conviction is flawed because the district court allowed the prosecuting witness to testify via closed-circuit television, admitted testimonial hearsay and other hearsay statements, excluded exculpatory evidence, and denied his motions to suppress, for judgment of acquittal, and for a mistrial. With respect to his sentence, he maintains that the district court violated Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), by making the predicate factual findings for certain sentencing enhancements (unrelated to the fact of a prior conviction) rather than allowing the jury to make them. Because Mr. Bordeaux was denied the opportunity to confront his accuser as provided for in the sixth amendment, we reverse his conviction and vacate his sentence.

I.

A grand jury indicted Mr. Bordeaux on five counts of aggravated sexual abuse of a child; the petit jury acquitted Mr. Bordeaux on all but the first count, which charged that he had put his penis in the mouth of AWH, a female child. Mr. Bordeaux argues that the court should overturn his conviction because he was deprived of his sixth amendment right to confront his accuser when AWH was allowed to testify via closed-circuit television.

AWH took the stand at Mr. Bordeaux's trial. She answered a number of the prosecutor's questions, usually with a single word or movement of the head, before the prosecutor asked the court to allow her to leave the courtroom and testify by two-way closed-circuit television. (A two-way closed-circuit system allows those in the courtroom to watch the witness on television and also allows the witness to see the defendant on television.) The prosecutor believed that AWH would be more forthcoming if allowed to testify this way, though she had already answered affirmatively when asked if Mr. Bordeaux had put his penis in her mouth. Mr. Bordeaux's attorney, who had yet to cross-examine AWH, objected. To resolve the issue, the judge and the attorneys questioned AWH in the judge's chambers. After this question-and-answer session, the court found that AWH was afraid of the defendant and of testifying in front of the jury in the large courtroom. It found that this fear rendered AWH unable to testify in open court and therefore, pursuant to 18 U.S.C. § 3509(b)(1)(B)(i), it held that she could testify from a separate room by two-way closed-circuit television.

The sixth amendment's confrontation clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him." U.S. Const. amend. VI. We review de novo the district court's determination of the protections afforded by the confrontation clause, while we review the underlying factual determinations for clear error. Cf. United States v. Powell, 379 F.3d 520, 523 (8th Cir.2004).

The Supreme Court sketched the contours of the confrontation right in cases like this in Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). In that case, the Court rejected a confrontation clause challenge to a Maryland statute that allowed a child witness in a sex abuse case to testify via a one-way closed-circuit television (which does not allow the witness to view the defendant) under certain circumstances. Id. at 860, 110 S.Ct. 3157. It explained that the confrontation clause "reflects a preference for face-to-face confrontation at trial," but that this preference "must occasionally give way to considerations of public policy and the necessities of the case." Id. at 849, 110 S.Ct. 3157 (internal quotations omitted). The Court emphasized, however, that the preference is a strong one and that a defendant's sixth amendment confrontation right "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. at 850, 110 S.Ct. 3157.

Craig sets out three findings that must be made in a case like the present one to establish that the case sufficiently implicates an important public policy ("protecting child witnesses from the trauma of testifying in a child abuse case") to allow testimony by one-way closed-circuit television. Id. at 855-56, 110 S.Ct. 3157. For current purposes, the only finding that matters is the second, which is that the child witness would be traumatized by the presence of the defendant, not by the courtroom generally. Id. at 856, 110 S.Ct. 3157. Were the child afraid only of the courtroom, she could simply testify in more comfortable surroundings, albeit with the defendant present. Id.

After Craig was decided, Congress enacted 18 U.S.C. § 3509, which provides alternative procedures to live in-court testimony in child abuse cases. That statute, as pertinent, allows the use of two-way closed-circuit television to present a child's live testimony if "[t]he child is unable to testify [in open court] because of fear." 18 U.S.C. § 3509(b)(1)(B)(i). The statute does not specify that the fear must be of the defendant.

United States v. Turning Bear, 357 F.3d 730 (8th Cir.2004), involved a factual situation identical to this one: a child witness testified by two-way closed-circuit television pursuant to § 3509 after a district court found that she was unable to testify in open court because of fear of a combination of things, including the defendant, the jury, and the large courtroom. We held that Mr. Turning Bear's sixth amendment confrontation rights had been violated because the district court had not found, as required by Craig, that the trauma caused by the presence of the defendant was the dominant element preventing the child witness from testifying in open court. Turning Bear, 357 F.3d at 737. In other words, we concluded that § 3509 was unconstitutional to the extent that it requires a different showing of fear from what Craig requires.

The government insists that use of two-way closed-circuit television was constitutional in this case. First, it argues that Craig does not control because that case involved a one-way closed-circuit television system, and this case involves a two-way system, which, it says, preserves the face-to-face confrontation promised by the sixth amendment. To support the contention that confrontation via a two-way system is constitutionally equivalent to a face-to-face encounter, the government cites United States v. Gigante, 166 F.3d 75 (2d Cir.1999), cert. denied 528 U.S. 1114, 120 S.Ct. 931, 145 L.Ed.2d 811 (2000). In Gigante, the Second Circuit stated that "because [the district judge] employed a two-way system that preserved the face-to-face confrontation ..., it is not necessary to enforce the Craig standard in this case." Id. at 81. The government distinguishes Turning Bear (which, of course, applied Craig to a two-way closed-circuit set-up) from Mr. Bordeaux's case on the basis that the parties in Turning Bear did not brief or argue the difference between two-way and one-way systems, and the court did not address it. The government adds that with Craig aside, the district court needed to satisfy only § 3509, which, the government says, it did. Second, the government asserts that, in any event, the district court's findings satisfy Craig because it found that AWH was unable to testify in open court because of the presence of the defendant.

In Turning Bear, we decided that Craig controlled two-way systems as well as one-way systems, and we are bound by that result, United States v. Lippman, 369 F.3d 1039, 1043-44 (8th Cir.2004), cert. denied, ___ U.S. ___, 125 S.Ct. 942, ___ L.Ed.2d ___ (2005). It does not matter that the government raises a new argument here because our rule about the inability of one panel to second-guess another does not contain an exception for new arguments. If it did, the rule would be eviscerated and the stability of the law in this circuit would be significantly undermined.

We conclude, moreover, that Craig would govern this case even if there were not a precedent squarely on point because a "confrontation" via a two-way closed circuit television is not constitutionally equivalent to a face-to-face confrontation. "Confrontation" through a two-way closed-circuit television is not different enough from "confrontation" via a one-way closed-circuit television to justify different treatment under Craig. It is true that a two-way closed-circuit television creates an encounter that more closely approximates a face-to-face confrontation than a one-way closed-circuit television does because a witness can view the defendant with a two-way system. But two-way systems share with one-way systems a trait that by itself justifies the application of Craig: the "confrontations" they create are virtual, and not real in the sense that a face-to-face confrontation is real.

The virtual "confrontations" offered by closed-circuit television systems fall short of the face-to-face standard because they do not provide the same truth-inducing effect. The Constitution favors face-to-face confrontations to reduce the likelihood that a witness will lie. "It is always more difficult to tell a lie about a person `to his face' than `behind his back.'" Coy v. Iowa...