U.S. v. Garcia

• Decision Date: 20 October 1993
• Docket Number: No. 92-10285,92-10285
• Citation: 7 F.3d 885
• Parties: , 39 Fed. R. Evid. Serv. 1026 UNITED STATES of America, Plaintiff-Appellee, v. Lorenzo GARCIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 885

7 F.3d 885

121 A.L.R.Fed. 827, 39 Fed. R. Evid. Serv. 1026

UNITED STATES of America, Plaintiff-Appellee, v. Lorenzo GARCIA, Defendant-Appellant.

No. 92-10285.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 14, 1993.

Decided Oct. 20, 1993.

Phil Noland, Phoenix, AZ, for defendant-appellant.

Elizabeth M. Overholt, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona (Phoenix).

Before: CHOY, BROWNING, and CANBY, Circuit Judges.

CHOY, Circuit Judge:

Lorenzo Garcia appeals his jury conviction for aggravated sexual abuse of a child. He requests that his conviction be vacated and his case remanded for a new trial, arguing (1) that the district court violated his Sixth Amendment right to confrontation by allowing the minor victim to testify at trial via two-way closed circuit television, and (2) that the district court erroneously refused to instruct the jury regarding abusive sexual contact as a lesser-included offense of aggravated sexual abuse. We find these arguments without merit and we affirm.

I. PROCEDURAL BACKGROUND

Defendant Lorenzo Garcia was indicted on four counts of aggravated sexual abuse of a child in violation of 18 U.S.C. §§ 2241(c) and 1153. Prior to trial, the government made a motion to allow Jane Doe, the minor victim named in the indictment, to testify via two-way closed circuit television pursuant to 18 U.S.C. § 3509(b)(1). After several hearings, the trial court granted the government's motion. The victim testified at trial via closed circuit television and the jury convicted Garcia of all four counts of aggravated sexual abuse. Garcia made a motion for a new trial, which the district court denied. Garcia was sentenced to 96 months in prison to be followed by a five year term of supervised release.

II. FACTUAL BACKGROUND

Garcia is a Navajo Indian. He is mildly retarded and at the time of the incidents lived with his mother, Iris Garcia, on a Navajo reservation. Jane Doe is the defendant's niece. The allegations of sexual abuse arose after a conversation between Jane Doe and Rita Begay, Jane's aunt, concerning the facts of life. During this conversation, Jane told her aunt that "someone was already doing it to her."

Following the government's motion for the use of two-way closed circuit television, the district court conducted hearings to determine whether Jane should be permitted to testify out of the physical presence of the defendant. The district court questioned Jane in chambers. Jane expressed fear of Garcia, although she gave contradictory answers regarding whether she could testify at trial in front of him. Several family members testified at the hearings that Jane was shy and would be afraid to talk in front of the defendant. There was also some testimony suggesting that family members had pressured Jane not to testify.

Delphine Clashin, a children's mental health specialist who had counseled Jane, testified that Jane was very shy and that she was frightened and ashamed when talking about the abuse. Over the defendant's objection, Ms. Clashin testified that in her expert opinion Jane would be emotionally traumatized by the defendant's appearance in the courtroom and that using closed-circuit TV would lessen the trauma.

Dr. Herschel Rozensweig, a psychiatrist specializing in children and adolescents, also testified as an expert witness. Dr. Rozensweig had not met Jane and he testified in response to hypothetical questions concerning a child in Jane's situation. Dr. Rozensweig testified that a shy, Native American, eleven-year old female who was a victim of sexual abuse by her uncle over a period of two years would be very hesitant to talk about the abuse. According to Dr. Rozensweig, if family members discourage the child from testifying, that "makes testifying extraordinarily difficult." Dr. Rozensweig testified that it was quite possible that a child fitting the above description would be traumatized by testifying in the courtroom and that testifying via two-way closed circuit television would be less stressful.

Jane was eleven when she testified at trial via two-way closed circuit television. Jane testified about several occasions when the defendant was "nasty" to her and put his penis inside her. Jane also testified that sex with the defendant included kissing and touching.

III. DISCUSSION

A. Sixth Amendment Right to Confrontation

Garcia argues that Jane Doe's testimony via two-way closed circuit television violated his Sixth Amendment right to confrontation because the district court did not make findings sufficient to authorize the use of that procedure.

In Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), the Supreme Court considered whether the Sixth Amendment Confrontation Clause was violated by the use of one-way closed circuit television to allow a child witness in a child abuse case to testify at trial outside of the defendant's presence. The Supreme Court explained that "our precedents establish that 'the Confrontation Clause reflects a preference for face-to-face confrontation at trial,' a preference that 'must occasionally give way to considerations of public policy and the necessities of the case.' " Id., at 849, 110 S.Ct. at 3165 (emphasis in original) (citations omitted). The Court held that "the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant." Id., at 855, 110 S.Ct. at 3169.

Prior to using such a special procedure, the State must make an adequate showing of necessity. In determining necessity, the inquiry must be case-specific: the trial court must determine whether the procedure requested "is necessary to protect the welfare of the particular child witness who seeks to testify." Id. Furthermore, the trial court must find that the child witness would be traumatized by the defendant's presence, not by the courtroom generally. Id., at 856, 110 S.Ct. at 3169. Finally, the trial court must find that the emotional distress suffered by the child witness in the defendant's presence rises to a level that is more than de minimis. Id.

After the Supreme Court's decision in Craig, Congress enacted 18 U.S.C. § 3509, which provides for alternative procedures to live in-court testimony. Title 18 U.S.C. § 3509(b)(1) addresses the use of two-way closed circuit television to present a child's live testimony. It states in part:

(B) The court may order that the testimony of the child be taken by closed-circuit television as provided in subparagraph (A) if the court finds that the child is unable to testify in open court in the presence of the defendant, for any of the following reasons:

(i) The child is unable to testify because of fear.

(ii) There is a substantial likelihood, established by expert testimony, that the child would suffer emotional trauma from testifying.

(iii) The child suffers a mental or other infirmity.

(iv) Conduct by defendant or defense counsel causes the child to be unable to continue testifying.

(C) The court shall support a ruling on the child's inability to testify with findings on the record. In determining whether the impact on an individual child of one or more of the factors described in subparagraph (B) is so substantial as to justify an order under subparagraph (A), the court may question the minor in chambers, or at some other comfortable place other than the courtroom, on the record for a reasonable period of time with the child attendant, the prosecutor, the child's attorney, the guardian ad litem, and the defense counsel present.

18 U.S.C. § 3509.

1. Constitutionality of 18 U.S.C. § 3509

Garcia asserts that 18 U.S.C. § 3509 differs in several respects from the requirements set forth in Craig and argues that "[a]pplication of any of the differences contrary to the specific holding of Craig would render the statute unconstitutional." Garcia argues that because the statute says "if the court finds that the child is unable to testify in open court in the presence of the defendant ..." (emphasis added), the statute adds a factor which was specifically excluded in Craig. Garcia states "[i]n Craig, the court wrote that to protect the child from courtroom trauma the child could testify in less intimidating surroundings with the defendant present without violating his right to confrontation."

Given that 18 U.S.C. § 3509 was enacted after the Court issued its decision in Craig, we find it far more likely that Congress intended that clause to be interpreted as codifying the requirement in Craig that the child be unable to testify in open court due to the presence of the defendant. Furthermore, the district court in this case explicitly recognized that if Jane was traumatized only by the courtroom surroundings, and not by the defendant's presence, it could take steps to ameliorate her trauma short of removing her from the defendant's presence. Accordingly, it is clear that the district court did not misapply that clause of the Child Victims' and Child Witnesses' Rights statute in contravention of the Supreme Court's holding in Craig.

Garcia also asserts that the statute is not clear on how much emotional trauma the child must suffer to justify the use of closed circuit television. The Supreme Court in Craig declined to specify the amount of emotional distress required, holding only that it must be more than de minimis. Craig, 497 U.S. at 856, 110 S.Ct. at 3169. The Supreme Court stated that it need not decide the minimum showing required because the statute at issue in Craig, which required a showing that the child "will suffer 'serious emotional distress such that the child cannot reasonably communicate,' clearly ... [met] constitutional...