Charboneau v. United States

• Decision Date: 11 January 2013
• Docket Number: No. 11–3511.,11–3511.
• Citation: 702 F.3d 1132
• Parties: Anthony CHARBONEAU, III, Petitioner–Appellant v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

702 F.3d 1132

Anthony CHARBONEAU, III, Petitioner–Appellant
v.
UNITED STATES of America, Respondent–Appellee.

No. 11–3511.

United States Court of Appeals,
Eighth Circuit.

Submitted: Oct. 18, 2012.
Filed: Jan. 11, 2013.

[702 F.3d 1134]

Chad R. McCabe, Bismarck, ND, for appellant.

Gary Lee Delorme, USA, Bismarck, ND, for appellee.

Before LOKEN, BEAM, and SMITH, Circuit Judges.

LOKEN, Circuit Judge.

A jury convicted Anthony Charboneau of sexual abuse of a minor, J.B., his ex-wife's cousin, and abusive sexual contact with a minor, D.C., his biological daughter, in Indian country in violation of 18 U.S.C. §§ 2243(a), 2244(a)(3), and 1153. Charboneau appealed, arguing Confrontation Clause error when a government witness described a forensic interview and medical report of D.C. We affirmed, finding no Confrontation Clause violation. United States v. Charboneau, 613 F.3d 860, 861–62 (8th Cir.2010). Charboneau then moved for post-conviction relief under 28 U.S.C. § 2255, arguing (1) the district court violated his Sixth Amendment right to a public trial by closing the courtroom to the public while D.C. testified, and (2) ineffective assistance of appellate counsel in failing to raise the public trial issue on direct appeal. The district court ¹ denied the motion without a hearing and granted a certificate of appealability. Concluding that Charboneau procedurally defaulted the public trial claim by not raising it on direct appeal, and that the procedural default

[702 F.3d 1135]

was not excused by ineffective assistance of appellate counsel, we affirm.

I.

The two-day trial turned on whether the jury believed testimony of J.B. and D.C. describing repeated sexual abuse by Charboneau while they lived at different times in his home. Prior to jury selection, counsel advised the court that the trial testimony would raise issues involving Charboneau's divorce, multiple custody disputes, and what defense counsel described as the “hidden agendas” of Robin Charboneau, Charboneau's ex-wife and D.C.'s mother, who had been treated for alcohol addiction and was making “a documentary film on rape and child abuse on the Indian reservations.” In his opening statement, defense counsel described D.C. as a “diminutive child, rather bright, wants to live with her dad very badly and is caught in the middle of a terrible, terrible divorce and custody dispute.”

D.C., who was thirteen years old at the time of trial, was the government's third trial witness. By then, the jury had learned from the first two witnesses, an FBI case agent and Robin, that D.C. first disclosed sex abuse by Charboneau to her mother. But the district court had sustained hearsay objections to what D.C. had told these witnesses, explaining to the jury, “we should hear it from the witness experiencing it.” At a sidebar conference before D.C. took the stand, the government asked the court to close the courtroom to the public during her testimony:

[THE PROSECUTOR]: Your Honor, next is a witness, she's 13 years old.... I'm looking ... Your Honor [at] a motion under 3509 ² which allows for the Court to clear the courtroom of non-interested people. There's a lot of family members in the back and it's going to be hard enough for her to testify and confront her father, who is the defendant in this case, let alone all these witnesses in the back. The law does allow the Court to clear the courtroom of non-interested people.

THE COURT: That's ... of course true, but isn't there some need for a threshold showing of difficulty before that's appropriate? And I didn't give [defense counsel] a chance to respond. What do you think?

[DEFENSE COUNSEL]: My response, Your Honor, was that [the prosecutor] prior to [jury selection] told the Court in our presence that he thought [D.C.] was going to do just fine and I don't know that she isn't going to do just fine. So I don't know that there's an extraordinary need.

[THE PROSECUTOR]: Your Honor ... [w]hat I can tell you is that last night when I prepped this child she broke down quite a bit. And being in this room with a jury is going to be difficult, with the father who's going to be difficult, with all these other eyes that are relatives in the back of the courtroom looking at her. I think it's going to cause some psychological harm to this child.

[DEFENSE COUNSEL]: Your Honor, I don't know that any more psychological harm is going to be caused to this child than what she's already endured.

[702 F.3d 1136]

THE COURT: Well, I'll tell you quite frankly I often think that trial is far worse than the crime ... in terms of the effect on the victims. I've had little people on the witness stand who look like deer in the headlights, you know, with big round eyes. It's not a pleasant thing. I hate to have you put her on and have her freeze because of the presence of these people, and I'm going to grant your request and wait for the Fargo Forum to [pillory] me for having so done, but I will grant your request.

The courtroom was closed to the public during D.C.'s testimony. It was open for all other parts of the trial, including the testimony of J.B., who was thirteen when the sexual abuse occurred and twenty years old at trial. A transcript of D.C.'s testimony (with her name redacted) is publicly available.

II.

The Sixth Amendment guarantees criminal defendants “the right to a speedy and public trial....” U.S. Const. amend. VI. While the right to a public trial is not absolute, the overriding “presumption of openness” may not be lightly overcome. Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). To justify closing a trial to the public, the party seeking closure must “advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.” Id. at 48, 104 S.Ct. 2210. Charboneau argues that the government's request and the district court's closure order violated each subpart of the inquiry required by Waller.

Charboneau did not raise these issues at trial. Indeed, trial counsel did not clearly object to closing the courtroom, probably because the § 3509(e) issue of psychological harm raised by the government's motion exactly fit the defense strategy of persuading the jury that D.C.'s mother had pressured D.C. to falsely accuse Charboneau of sex abuse in order to further Robin's “hidden agendas.” More importantly for purposes of this appeal, Charboneau did not raise a public trial issue on direct appeal, meaning this § 2255 claim was procedurally defaulted. See Becht v. United States, 403 F.3d 541, 545 (8th Cir.2005), cert. denied,546 U.S. 1177, 126 S.Ct. 1346, 164 L.Ed.2d 59 (2006). Because Charboneau asserts no claim of actual innocence, he must demonstrate cause and prejudice to excuse his procedural default. “Ineffective assistance of appellate counsel may constitute cause and prejudice to overcome a procedural default.” Id. To establish ineffective assistance, Charboneau must show that appellate counsel's performance was constitutionally deficient and that he was prejudiced by that deficiency. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We review the ultimate issue of ineffective assistance de novo. Close v. United States, 679 F.3d 714, 716 (8th Cir.2012).

A. Deficient Performance. In reviewing this factor, we apply a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Our review is particularly deferential when reviewing a claim that appellate counsel failed to raise an additional issue on direct appeal. “Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal,” Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (...