United States v. Cox

• Citation: 871 F.3d 479
• Decision Date: 14 September 2017
• Docket Number: No. 16-2404.,16-2404.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jeffrey Duane COX, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

871 F.3d 479

UNITED STATES of America, Plaintiff–Appellee,
v.
Jeffrey Duane COX, Defendant–Appellant.

No. 16-2404.

United States Court of Appeals, Sixth Circuit.

Argued: June 21, 2017
Decided and Filed: September 14, 2017

COUNSEL ARGUED: Scott Graham, Scott Graham PLLC, Portage, Michigan, for Appellant. Sean M. Lewis, United States Attorney's Office, Grand Rapids, Michigan, for Appellee. ON BRIEF: Scott Graham, Scott Graham PLLC, Portage, Michigan, for Appellant. Sean M. Lewis, United States Attorney's Office, Grand Rapids, Michigan, for Appellee.

Before: KEITH, BATCHELDER, and SUTTON, Circuit Judges.

KEITH, J., delivered the opinion of the court in which BATCHELDER and SUTTON, JJ., joined. SUTTON, J. (pp. 492–95), delivered a separate concurring opinion.

OPINION

DAMON J. KEITH, Circuit Judge.

Defendant Jeffrey Duane Cox ("Cox") was convicted of seven counts of Sexual

871 F.3d 483

Exploitation of a Child and/or Attempted Sexual Exploitation of a Child, in violation of 18 U.S.C. § 2251(a) and (e) ; and two counts of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). Defendant appeals his convictions and sentence. For reasons that follow, we AFFIRM.

I. Background

Over the course of two years, Defendant, along with his two romantic partners, Brandon Russell ("Russell") and Michael Henry ("Henry"), engaged in sexual acts with eight children. Defendant photographed and videotaped the children while engaging in the sexual acts. To protect the identities of the children, we shall refer to them as Child/Children 1–8, consistent with the terminology used by the parties in the district court, as well as the wording used in the Third Superseding Indictment and the entirety of the record. Children 1–7 are male; Child 8 is female.

Children 2 and 3 began frequenting Defendant's home in the summer of 2012. Defendant, Russell, and Henry engaged in sexual conduct with the children and photographed their exploits. Contact with Children 2 and 3 ultimately ended after they refused to continue visiting Defendant's home.

Defendant's illicit sexual conduct with Children 1, 7 and 8 began in the summer of 2013. The children are siblings, and Defendant watched the children after school. At trial, through closed-circuit television testimony, Child 1 testified that Defendant forced him to watch pornographic videos, and threatened to kill Child 1's family if he told anyone about the illicit conduct. Child 1 further testified that Defendant: (1) performed manual genital stimulation on Children 1 and 7; (2) inserted his penis into Child 1's rectum; and (3) wiped his semen on Child 1's chest. Child 1 was in the sixth grade at the time he delivered his testimony. Additionally, Child 7, who was in the third grade at the time he delivered his closed-circuit television testimony, stated that Defendant rubbed his buttocks on numerous occasions. The children's mother, Robin Spindlow ("Spindlow"), authenticated an illicit video that depicted Defendant and Child 1 masturbating, and Defendant attempting to convince Child 1 to perform oral sex on him.

Children 4, 5, and 6 often visited the home of Defendant, starting in the summer of 2014. Children 4 and 6 are brothers. Child 6 testified that Defendant provided the children with liquor and cigarettes. Child 6 also testified that he and Children 4 and 5 would watch pornographic videos with Defendant on Defendant's bed. Russell testified that Children 4-6 would take showers at Defendant's home. Unbeknownst to the children, there was a hidden camera in the bathroom. Defendant positioned the video camera at groin height, in such a way that it would capture the genitals and pubic region of the children as they entered and exited the shower. The video camera transmitted its images to a set of VCRs in Defendant's bedroom. From these videos, Defendant created a shorter video that cut out some of the "dead time."

Ultimately, Children 1 and 7 informed their mother about the conduct occurring at Defendant's home, and Spindlow reported Defendant to the police. Consequently, an investigation began, and on April 20, 2014, police executed a search warrant on Defendant's home and seized various electronics that captured Defendant's sexual exploits on the children. Defendant was charged with seven counts of Sexual Exploitation of a Child and/or Attempted Sexual Exploitation of a Child, in violation of

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18 U.S.C. § 2251(a) and (e) ; and two counts of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). At trial, defense witnesses testified that Defendant engaged in activities at night that he would not be able to remember, such as preparing food and talking in his sleep. The jury convicted Defendant on all counts, and he was sentenced to 2,880 months. This timely appeal followed.

II. Applicable Law and Analysis

1. Closed Circuit Testimony

Defendant first asserts that the district court erred in allowing Children 1 and 7 to testify by closed-circuit television, because "the evidence presented failed to establish a significant likelihood that the witnesses would suffer trauma by testifying in open court."

The Sixth Amendment declares that "[i]n all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witness[es] against him." This guarantee is not absolute. In Maryland v. Craig , 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), the Supreme Court declared that "if the State makes an adequate showing of necessity, 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. 3157. The Court held that approval of the use of closed-circuit television testimony is a case-specific determination in which the trial court must: "hear evidence and determine whether use of the [system] is necessary to protect the welfare of the particular child [seeking] to testify"; "find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant"; and "find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis , i.e., more than mere nervousness or excitement or some reluctance to testify." Id. at 855–56, 110 S.Ct. 3157 (internal citations and quotation marks omitted). Consequently, in response to the Craig ruling, Congress passed 18 U.S.C. § 3509, "which sets forth the conditions under which a child may testify by closed-circuit television." United States v. Moses , 137 F.3d 894, 898 (6th Cir. 1998). The statute states the following in relevant part:

(B) The court may order that the testimony of the child be taken by closed-circuit television ... 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.

18 U.S.C. § 3509(b)(1)(B). Additionally, the statute requires the trial court to support its "ruling on the child's inability to testify with findings on the record." 18 U.S.C. § 3509(b)(1)(C).

The district court conducted a motion hearing to determine whether there was an adequate and case-specific showing of necessity for the use of closed circuit television for Children 1 and 7. We review the factual findings of the district court for clear error. Moses , 137 F.3d at 898 (citing

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Hernandez v. New York , 500 U.S. 352, 364, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) ). Having reviewed the record, we are persuaded that the district court did not err in concluding that the government made an adequate showing of necessity.

The district court heard evidence from Clint Irwin ("Irwin"), a licensed professional counselor in the state of Michigan. Irwin possesses a college degree in criminal justice and a master's degree in community counseling. At the time of the hearing, Irwin was pursuing a doctorate degree in community counseling. Irwin testified to treating hundreds of children suffering from some kind of sexual abuse, receiving specific training in the field of trauma, and treating clients suffering from trauma as a result of sexual abuse.

Irwin treats Children 1 and 7. He stated to the court that forcing the children to testify in the presence of open court would further add to their trauma. Defendant stated that, from a clinical or psychological standpoint, the trauma suffered would be more profound than nervousness or reluctance to testify. Additionally, Irwin stated that given Child 1's history, his emotional unrest and bad behaviors that resulted from the...