U.S. v. Miguel, 95-10033
| Citation | 111 F.3d 666 |
| Decision Date | 15 April 1997 |
| Docket Number | No. 95-10033,95-10033 |
| Parties | 97 Cal. Daily Op. Serv. 2741, 97 Daily Journal D.A.R. 4869 UNITED STATES of America, Plaintiff-Appellee, v. Percy Mark MIGUEL, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Terry L. Chandler, Assistant United States Attorney, Tucson, AZ, for plaintiff-appellee.
Javier Chon-Lopez, Assistant Federal Public Defender, Tucson, AZ, for defendant-appellant.
Appeal from the United States District Court for the District of Arizona, William D. Browning, District Judge, Presiding at Deposition John M. Roll, District Judge, Presiding at Trial and Sentencing. D.C. No. CR-93-00609-JMR.
Before: CANBY and FERNANDEZ, Circuit Judges, and JONES, * District Judge.
Percy Mark Miguel appeals his jury conviction of two counts of abusive sexual contact in violation of 18 U.S.C. § 2244(a)(1). Miguel's primary contention is that the district court's procedure for taking the eleven-year-old victim's videotaped deposition violated 18 U.S.C. § 3509 as well as Miguel's Sixth Amendment rights to confrontation of witnesses and assistance of counsel. The fatal defect in the procedure, according to Miguel, is that it failed to afford him the "means of private, contemporaneous communication" with his counsel that the statute guarantees, id. at § 3509(b)(2)(B)(iv), and instead allowed him to communicate with counsel only during breaks in the deposition. We agree that the procedure violated the statute but conclude that, in the circumstances of this case, there was no reversible violation of the constitutional rights of confrontation or assistance of counsel. Because Miguel has shown no prejudice resulting from the district court's error, and because we find no merit in Miguel's other arguments, 1 we affirm his conviction.
Miguel was first tried by jury in July 1994 in the United States District Court for the District of Arizona, but the jury could not agree and the district court declared a mistrial. During that first trial, the victim, an eleven-year-old boy, testified via closed circuit television. Miguel received a transcript of this testimony.
After the filing of a superseding indictment and the dismissal of some of the charges, Miguel faced one count of aggravated sexual abuse in violation of 18 U.S.C. § 2241(c) and two counts of abusive sexual contact in violation of 18 U.S.C. § 2244(a)(1). His case was set for a second jury trial.
Before the second trial, the district judge ordered, over Miguel's objection, that the victim could give deposition testimony by videotape outside of Miguel's presence under 18 U.S.C. § 3509(b)(2), which governs videotaped depositions of children. The district judge made the requisite findings under § 3509(b)(2)(B)(i)(I) and (II) that the victim would be unable to testify in Miguel's presence because of fear and would suffer emotional trauma from testifying in open court. The district judge then set the terms for the videotaped deposition. Miguel was to watch the deposition from a separate room via closed circuit television. Although defense counsel asserted that the defendant was entitled to electronic communication with counsel during the deposition, the district court rejected that suggestion on the ground that telephone communication during the deposition would intimidate the victim. The court ruled that counsel could consult with Miguel during breaks in the deposition, and Miguel and his counsel could review the deposition to make additional objections before it was shown to the jury at trial.
During the videotaped deposition, both of Miguel's attorneys elected to sit in the courtroom where the victim was giving his deposition, although only one of the attorneys could cross-examine the victim. The victim's testimony at the second deposition was essentially similar to his testimony at the first trial. At the close of direct examination, defense counsel did not request a recess to confer with Miguel, although the court's conditions allowed for such a recess.
The jury viewed the videotaped deposition at trial. The jury acquitted Miguel of aggravated sexual abuse, but convicted him of two counts of abusive sexual contact in violation of 18 U.S.C. § 2244(a)(1).
We review de novo the district court's interpretation of a statute. See United States v. Ripinsky, 20 F.3d 359 (9th Cir.1994). We also review de novo whether the district court violated Miguel's Sixth Amendment rights to confrontation of witnesses and the assistance of counsel. See United States v. Jenkins, 884 F.2d 433, 435 (9th Cir.1989); United States v. Lucas, 873 F.2d 1279, 1280 (9th Cir.1989).
Title 18 U.S.C. § 3509 was enacted in the aftermath of Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), in which the Supreme Court upheld Maryland's procedure permitting a child witness alleged to be the victim of abuse to testify by one-way closed-circuit television, out of the presence of the defendant. In rejecting a challenge based on the Confrontation Clause, the Court held that the State's interest in protecting the physical and psychological health of child-abuse victims could, in specific cases, outweigh the defendant's right to confront his or her accusers in person in the courtroom. Id. at 853, 110 S.Ct. at 3167. Such testimony could be permitted, however, only upon a case-specific finding of necessity. Id. at 855, 110 S.Ct. at 3168-69. The Court noted that under the Maryland procedure, the defendant remained "in electronic communication with defense counsel," id. at 842, 110 S.Ct. at 3161, and emphasized that the procedure preserved the adversarial attributes of testimony under oath, opportunity for full cross-examination, and opportunity for the court and jury to observe (albeit by television) the witness as he or she testified. Id. at 857, 110 S.Ct. at 3169-70.
Section 3509 preserves and expands upon the protections that the Court found important in Craig. The statute permits testimony by two-way closed-circuit television, or by videotaped deposition (with the defendant connected by two-way television), upon case-specific findings, inter alia, that the child is unable to testify in open court in the presence of the defendant "because of fear" or because "there is a substantial likelihood, established by expert testimony, that the child would suffer emotional trauma from testifying." § 3509(b)(1)(B)(i),(ii) and (b)(2)(B)(i)(I),(II). In Miguel's case, the district court made the requisite findings, and Miguel does not contest them here. The statute also provides, however:
If the court orders that the defendant be excluded from the deposition room, the court shall order that ... the defendant be provided with a means of private, contemporaneous communication with the defendant's attorney during the deposition.
18 U.S.C. § 3509(b)(2)(B)(iv) (1995) (emphasis added). Miguel contends, and we agree, that the district court's procedure fell short of this statutory requirement.
The statute calls for "contemporaneous communication" between the absent defendant and his counsel during the deposition. To ascertain the meaning of that statutory term, we start with the words' ordinary meaning. United States v. James, 478 U.S. 597, 604, 106 S.Ct. 3116, 3120-21, 92 L.Ed.2d 483 (1986). The Random House College Dictionary defines "contemporaneous" as "simultaneous, concurrent." THE RANDOM HOUSE COLLEGE DICTIONARY 290 (1st ed. 1980). Webster's Dictionary defines "contemporaneous" as "occurring at the same time." WEBSTER'S INTERNATIONAL DICTIONARY 575 (2d. ed. 1936). The plain meaning of the statute, accordingly, is that the defendant must be able to communicate with his or her attorney instantly during the deposition. Nothing in the legislative history of section 3509 indicates a "clearly expressed legislative intention" to deviate from the plain meaning of its terms. See Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). Indeed, section 3509 was enacted in the wake of Craig, in which the defendant "remain[ed] in electronic communication with defense counsel." Craig, 497 U.S. at 842, 110 S.Ct. at 3161. There is accordingly every reason to conclude that a similar type of electronic communication between the defendant and his counsel is required by section 3509.
The district court's arrangements did not provide for contemporaneous communication. Miguel, watching the examination of the victim on the television screen, had no instantaneous way to communicate with his counsel in the courtroom. Indeed, the record does not show that Miguel had any means of requesting a break in the proceeding. The district court assured counsel, not Miguel, that if the need for communication arose, counsel could ask for a recess or take advantage of a regular break in the deposition to confer with Miguel. The statute, however, guarantees that the defendant, not counsel, be provided with a means of contemporaneous communication. The district court's arrangement did not suffice.
The district court rejected the defendant's request for a telephone connection on the ground that it would intimidate the child witness to have counsel talking with his client during the deposition. Congress, however, has already struck the balance and determined that the absent defendant is entitled to contemporaneous communication with his attorney during the deposition. Section 3509 represents a careful compromise of highly important rights. When the statute's procedure is invoked, the defendant loses the customary right to confront the witness face-to-face. § 3509(b)(1)(B)(i), (b)(2)(B)(i)(I); see Craig, 497 U.S. at 857, 110 S.Ct. at 3169-70. To retain some of the protections inherent in the confrontation of witnesses, Congress has specified that the child witness may testify by two-way closed-circuit...
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