U.S. v. Farmer, 93-2652

• Decision Date: 21 September 1994
• Docket Number: No. 93-2652,93-2652
• Citation: 32 F.3d 369
• Parties: UNITED STATES of America, Appellee, v. James Fremont FARMER, Sr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 369

32 F.3d 369

UNITED STATES of America, Appellee, v. James Fremont FARMER, Sr., Appellant.

No. 93-2652.

United States Court of Appeals Eighth Circuit.

Submitted May 24, 1994.

Decided Aug. 12, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Sept. 21, 1994.

Lee C. "Kit" McCahren, Pierre, SD, for appellant.

David L. Zuercher, Asst. U.S. Atty., Pierre, SD, for appellee.

Before McMILLIAN, MAGILL and BEAM, Circuit Judges.

BEAM, Circuit Judge.

James Fremont Farmer, Sr., appeals his conviction and 180-month sentence for assault with a dangerous weapon, aggravated sexual abuse and kidnapping in violation of 18 U.S.C. Secs. 113(c), 1153, 2241(a) and 1201. He primarily challenges the district court's ¹ partial closure of the jury trial during a portion of the victim's testimony. We affirm.

I. BACKGROUND

According to the evidence at trial, the seventeen-year-old victim had been drinking at various parties all night long and she could remember very little about the evening in question. Sheila Good Shield, a twenty-six-year-old woman who was at the last party, intervened when the victim was being "pushed around" by persons at the gathering and helped the victim walk to town.

Good Shield testified that Farmer pulled up in his car and asked if she needed help in taking the victim home. Good Shield and the victim entered the car. When Farmer did not go straight to the victim's home, Good Shield became frightened and exited the car, leaving the victim with Farmer.

After Good Shield's testimony at the trial, Farmer tendered a plea of guilty, stating that he had been too drunk to remember the incident and after viewing evidentiary reports and hearing Good Shield he had become convinced that he must have committed the crimes. But, because Farmer claimed that he could not remember committing the crimes, the court went forward with the trial and had the victim testify.

The victim proceeded to tell about her recollection of the assault and her conversations with Farmer. When court recessed for the day, the victim had not completed her testimony. The court asked Farmer to consider his tendered plea overnight, gave an instruction to spectators in the courtroom to avoid any discussion of the case with members of the jury and adjourned court.

The next day Farmer advised the court that he would like to have the victim finish her testimony. Because she did not arrive in a timely fashion, another witness was called. When the victim arrived, the following exchange took place:

MR. SCHIEFFER: Your Honor, the United States would move at this time that during the testimony of the victim that the courtroom be cleared except for her immediate family and the treating psychologist.

THE COURT: Okay. The defendant may be heard on the motion.

MR. McCAHREN: We object to that, Your Honor. There is no authority for that. This Court can't order that. And it would violate the defendant's right to a fair trial and confrontation clause to the United States Constitution.

THE COURT: Okay. The objection--the motion will be granted. And all spectators other than the members of [the victim's] family will be excused from the courtroom during the balance of her testimony.

MR. McCAHREN: Your Honor, I'm going to further my objection to that. You're allowing the most critical witness's support group to remain in here and you're ordering the defendant's family to exit. And I don't know what authority the government has for that motion, what authority the Court has to grant that motion other than just the Court's inherent powers from the bench.

THE COURT: The motion has been granted. The Marshall will go ahead and ask persons other than the category--other than the category that I allowed to remain to please depart from the courtroom.

MR. McCAHREN: As long as my record is clear, I don't have any problem.

THE COURT: Very well.

Trial Transcript, Vol. II at 183-84.

The jury was then brought in and the victim completed her testimony. Farmer moved for acquittal, the court denied the motion and the jury found Farmer guilty on all three counts.

II. DISCUSSION

A. Partial Closure

A public trial, protected by the Sixth Amendment rights of the accused and the implicit First Amendment rights of the press and public, allows the public to see for itself that the accused is dealt with fairly and not unjustly condemned and ensures that judges, prosecutors and witnesses carry out their respective duties with a keen sense of the importance of their functions. Woods v. Kuhlmann, 977 F.2d 74, 76 (2nd Cir.1992) (citing Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 2215, 81 L.Ed.2d 31 (1984)). In Waller, the Supreme Court reaffirmed that a party seeking to close a hearing "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." 467 U.S. at 48, 104 S.Ct. at 2216.

In Woods, the trial court ordered all members of the defendant's family from the courtroom after the prosecutor informed the judge that a witness was terrified of retaliation from the defendant's family. 977 F.2d at 75. The Second Circuit joined the Ninth, Tenth, and Eleventh Circuits in concluding that "when a trial judge orders a partial, as opposed to a total, closure of a court proceeding at the request of one party, a 'substantial reason' rather than Waller's 'overriding interest' will justify the closure," because a partial closure does not "implicate the same secrecy and fairness concerns that a total closure does." Id. at 76 (see cases cited therein). Noting that the trial judge had asked the witness whether it was true she was reluctant to testify because she feared for her safety and that the judge had an in-chambers conference with the attorneys, the court concluded the record was sufficient to support the partial, temporary closure of the trial. Id. at 77-78.

Similarly, in United States v. Galloway, the Tenth Circuit acknowledged that a "partial closure need only be supported by a 'substantial' interest, rather than a 'compelling' one." 937 F.2d 542, 546 (10th Cir.1991). The court nonetheless held that the trial court must make sufficient findings to allow the reviewing court to determine whether the partial closure was proper. Id. The court determined that the appropriate factors to weigh include the age of an alleged victim, the nature of an alleged offense and the potential for harm to the victim. Id. Noting that the trial court had failed to make such findings on the record, the court declined to reverse the defendant's conviction, but instead remanded the case for further findings. Id. at 546-47.

Here, however, we see no need for a remand even though the district court made no explicit findings. In this circuit, specific findings by the district court are not necessary if we can glean sufficient support for a partial temporary closure from the record. See United States v. Lucas, 932 F.2d 1210, 1216-17 (8th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 399, 116 L.Ed.2d 348 (1991). In Lucas, we noted that our review of the issue of right to a public trial is for abuse of discretion. Id. at 1217. Although Lucas dealt with a screen that shielded the witness from spectators, Farmer presents the same legal issue. In Lucas, we said, "[c]onsidering the record before the District Court, we find no abuse of discretion in [the] conclusion that a screen should be used...." Id. at 1217.

We have reviewed the record in this case and, likewise, find no abuse of discretion by the district court. There is evidence in the record showing that Farmer had threatened the victim and that she feared retaliation by Farmer and his family. Trial Transcript, Vol. I at 59-60, 119, 147. Indeed, evidence of the victim's age, the brutal nature of the offense and the victim's well-reasoned fear of Farmer and his family was more than enough to justify the decision.

B. Acceptance of Responsibility

The other issue raised by Farmer involves a requested reduction in sentence for acceptance of responsibility under USSG Sec. 3E1.1. We review the district court's determination to deny such reduction under a clearly erroneous standard. The burden of proof on the issue of acceptance of responsibility was upon Farmer. United States v. Lublin, 981 F.2d 367, 370 (8th Cir.1992). Given the fact that Farmer admitted, for sentencing purposes, a physical assault on the victim but steadfastly denied the sexual attack, we see no clear error. See United States v. McQuay, 7 F.3d 800, 801 (8th Cir.1993) (court gives great deference to district court's refusal to grant reduction).

III. CONCLUSION

The district court did not abuse its discretion in the partial, temporary closure of the public trial and did not clearly err in denying a reduction in sentence under USSG Sec. 3E1.1. Accordingly, we affirm.

McMILLIAN, Circuit Judge, dissenting.

I respectfully dissent. The majority opinion ignores the legal principles that have developed to ensure that a defendant enjoys his or her Sixth Amendment right to a public trial. The Supreme Court has emphasized the need for specific findings to help determine whether or not a closure order is justified:

The 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. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 2214, 81 L.Ed.2d 31 (1984) (Waller ). See also Press-Enterprise Co. v....