13‐2363‐cr United States v. Ledee

In the United States Court of Appeals For the Second Circuit ________

AUGUST TERM, 2013

ARGUED: APRIL 30, 2014 DECIDED: AUGUST 8, 2014

No. 13‐2363‐cr

UNITED STATES OF AMERICA, Appellee,

v.

MICHEAL LEDEE, ALSO KNOWN AS NYCRICANMIKE, ALSO KNOWN AS MICHAEL LEDEE, Defendant‐Appellant. ________

Appeal from the United States District Court for the Eastern District of New York. No. 11‐cr‐175 – Nicholas G. Garaufis, Judge. ________

Before: WALKER, POOLER, and WESLEY, Circuit Judges. ________

Defendant‐appellant Micheal Ledee was convicted of crimes

stemming from participating via webcam in the sexual abuse of an No. 13‐2363‐cr

eight‐year‐old girl by her mother. To ensure the uninhibited

testimony of the underage victim at trial, the district court (Nicholas

G. Garaufis, Judge), on motion by the government, closed the

courtroom during the victim’s testimony to all persons who were

not directly involved in the trial, including Ledee’s parents. Ledee

argues that the closure violated his Sixth Amendment right to a

public trial. We disagree and AFFIRM.

Judge Pooler dissents in a separate opinion.

________

TIANA A. DEMAS, (Susan Corkery, on the brief), Assistant United States Attorney, for Loretta E. Lynch, United States Attorney, United States Attorney’s Office for the Eastern District of New York, Brooklyn, N.Y., for Appellee.

DAVID A. LEWIS, New York, NY, for Defendant‐ Appellant.

________

JOHN M. WALKER, JR., Circuit Judge:

Defendant‐appellant Micheal Ledee was convicted of crimes

stemming from participating via webcam in the sexual abuse of an

eight‐year‐old girl by her mother. To ensure the uninhibited

testimony of the underage victim at trial, the district court (Nicholas

G. Garaufis, Judge), on motion by the government, closed the

courtroom during the victim’s testimony to all persons who were 2 No. 13‐2363‐cr

not directly involved in the trial, including Ledee’s parents. Ledee

argues that the closure violated his Sixth Amendment right to a

public trial. We disagree and AFFIRM.

Judge Pooler dissents in a separate opinion.

BACKGROUND

On April 15, 2010, Detective Matt Messer, then a major crimes

detective in the Grant County Sherriff’s Department in Washington

State, received a tip that an unidentified person was communicating

online with a mother in Washington who had disseminated a nude

photo of her eight‐year‐old daughter and wanted to involve the

daughter in sexual acts. Detective Messer located and interviewed

the mother, who admitted to sexually abusing her daughter—whom

we identify as KO to protect her privacy—for the past few months

and regularly using a webcam to broadcast the abuse online.

Detective Messer then executed a search warrant at KO’s mother’s

apartment and seized a desktop computer and a webcam.

On May 26, 2010, and again on June 11, FBI agents logged in

to KO’s mother’s Yahoo instant messenger account. On both

occasions, the agents found an unread message sent by defendant‐

appellant Micheal Ledee to KO’s mother. The first message read

“YW [you’re welcome] . . . I would definitely put the tip of my dick

in her and put my whole [d]ick inside you.” Gov’t App. 144. The

3 No. 13‐2363‐cr

second message read “[d]amn, my dick is so hard when I see you []

and your daughter that night was hot [] I hope I get to see the both

of you again.” Gov’t App. 163.

In June 2010, the FBI forensically examined KO’s mother’s

computer and found the saved transcript of her recent Yahoo instant

messenger chats. It showed that on May 24, 2010, Ledee asked KO’s

mother to show KO to him; that KO’s mother then accepted Ledee’s

webcam invitation such that they could see each other live via

webcam; and that Ledee expressed approval at seeing KO on the

webcam. Ledee also asked KO’s mother if “she looking,” to which

KO’s mother replied yes. Gov’t App. 224. Ledee then said “how[’]s

the booty,” “looking hot,” “finger her mommy,” “that[‘]s really

nice,” “i think my dick would fit good in there,” and “[I’]m glad

[you] showed me.” Id. at 225. The next day, Ledee told KO’s

mother on instant messenger that “[you] and [your] daughter are

very hot . . . she has a nice body.” Id.

On February 3, 2011, FBI agents executed a search warrant at

Ledee’s apartment in Brooklyn, during which Ledee voluntarily

agreed to speak to the agents. Ledee said that he met KO’s mother

online in early May 2010 in a chat room called “married but

looking.” Ledee admitted that during his May 24, 2010 chat with

KO’s mother, he directed her to have KO undress and to have her

4 No. 13‐2363‐cr

sexually touch KO. Ledee also admitted that he was masturbating

during the chat session and could see KO’s mother sexually abusing

KO via the webcam. Ledee signed a written statement reflecting

what he told the FBI agents and also initialed a transcript of the May

24 instant messenger chat.

In an indictment filed March 22, 2012, Ledee was charged

with conspiracy to sexually exploit a child (

(e), 3551

et seq.), sexual exploitation of a child (

(a), (e), 3551 et

seq.), and receipt of child pornography (

(a)(2),

2252(b)(1), 3551 et seq.).

On March 30, 2012, prior to trial, the government moved to

close the courtroom during KO’s testimony pursuant to

(e). Section 3509(e) permits such closure, on conditions which

the government argued were met, to all persons “who do not have a

direct interest in the case.” In support, the government submitted

an affidavit from KO’s father and legal guardian, who has had

custody of KO following her mother’s arrest. KO’s father stated that

although KO is normally outgoing, she is uncomfortable speaking in

private about her sexual abuse and has said that she does not want

to testify with members of the public and the press present in the

courtroom. KO’s father further stated that KO is aware that men

witnessed her sexual abuse online and that after her mother’s arrest

5 No. 13‐2363‐cr

was covered by the local news in KO’s hometown, people would

stop KO to express sympathy, which caused KO to break down in

tears. Finally, KO’s father stated that he did not believe that KO

would be able to communicate effectively if the courtroom were not

closed.

At a subsequent pre‐trial conference, Ledee orally opposed

the motion to the extent that it would bar Ledee’s parents from the

courtroom during KO’s testimony. The district judge asked the

government whether KO’s father would object to Ledee’s parents

being present and, after a short recess to confirm with KO’s father,

the government told the district judge that he did object. The district

judge also asked the public if anyone would like to voice support or

objection to the closure motion and received no response. The

district judge then orally granted the government’s motion to close

the courtroom during KO’s testimony and, on April 9, 2012, filed a

Memorandum & Order explaining his decision. United States v.

Ledee, No. 11‐cr‐175,

(E.D.N.Y. Apr. 9, 2012). The

district judge held that ensuring KO’s uninhibited testimony was an

overriding interest that would likely be prejudiced unless the

courtroom were closed and that such closure during KO’s testimony

would be no broader than necessary to protect that interest.

.

6 No. 13‐2363‐cr

At trial and just prior to KO testifying, the district judge asked

everyone in the gallery to leave the courtroom and confirmed with

the parties that everyone remaining in the courtroom had a direct

interest in the case. At least twenty‐five people remained, including

court staff, the legal teams, the jurors and alternates, and KO’s

father. After KO’s testimony, the district judge reopened the

courtroom to the public. The district court did not restrict the

subsequent preparation and dissemination of the transcript that

included KO’s testimony.

Following trial, the jury found Ledee guilty of all three counts.

The district judge sentenced Ledee to 325 months’ imprisonment

and lifetime supervised release.

Ledee now appeals here.

DISCUSSION

This appeal raises the single issue of whether, by excluding

the defendant Ledee’s parents from the trial during the victim’s

testimony, the district court violated Ledee’s right to a public trial

under the Sixth Amendment.

We “examine the district court’s findings of fact for clear

error, its legal determinations de novo, and its ultimate decision to

deny or grant a motion for closure for abuse of discretion.” United

States v. Doe,

(2d Cir. 1995). But “because the district

7 No. 13‐2363‐cr

court’s discretion is significantly circumscribed by constitutional

principles set forth by the Supreme Court, this court’s review is

more rigorous than would be the case in other situations in which

abuse‐of‐discretion review is conducted.”

(internal quotation

marks omitted).

Under the pertinent statute, a district court may close the

courtroom to everyone who “do[es] not have a direct interest in the

case” when a child victim of physical or sexual abuse testifies if the

court determines that not doing so would “cause substantial

psychological harm to the child or would result in the child’s

inability to effectively communicate.”

(e). But the

Constitution of the United States circumscribes this discretion. The

Sixth Amendment provides, in relevant part, that “the accused shall

enjoy the right to a . . . public trial.” U.S. Const. amend. VI. This

right, however, “may give way in certain cases to other rights or

interests. . . . Such circumstances will be rare, . . . and the balance of

interests must be struck with special care.” Waller v. Georgia,

(1984). In order to close the courtroom in compliance

with the Sixth Amendment, (1) the closure must “advance an

overriding interest that is likely to be prejudiced”; (2) the closure

must be “no broader than necessary to protect that interest”; (3) the

trial court must consider “reasonable alternatives to closing the

8 No. 13‐2363‐cr

proceeding”; and (4) the trial court must make “findings adequate to

support the closure.” United States v. Smith,

(2d

Cir. 2005) (citing Waller,

).

I. The Interest Prejudiced

Notwithstanding that the closure must “advance an

overriding interest that is likely to be prejudiced,” the more

extensive the closure that is sought, the greater the burden on the

party seeking closure. See Doe, 63 F.3d at 128‐29. “[I]f a party seeks

a broad closure, it must demonstrate that the interest that the closure

would purportedly serve is especially grave, and that the risk that

would be posed to that interest by not closing the courtroom is more

than serious.” Bowden v. Keane,

(2d Cir. 2001)

(internal quotation marks omitted). “When limited closure . . . is at

issue, the prejudice asserted need only supply a ‘substantial reason’

for closure.” Doe,

.

The interest at risk of being prejudiced—KO’s ability to

effectively communicate about her abuse—was sufficient to justify

the relatively narrow closure here. Indeed, “ensuring a child

victim’s ability to effectively communicate is [] a compelling higher

value that can justify a closure.” United States v. Yazzie,

(9th Cir. 2014). Because the closure at issue is a relatively

narrow one, as we discuss in more detail below, “we need not

9 No. 13‐2363‐cr

demand compelling record evidence that” the goal of

communicating effectively is advanced by closing the courtroom to

the public during KO’s testimony. Smith,

. All we

need conclude, as we do here, is that the “district court’s common

sense conclusion” that KO would likely not be able to communicate

effectively in an open courtroom “satisfies this undemanding

inquiry.”

The Supreme Court’s decision in Globe Newspaper Co. v.

Superior Court for Norfolk County,

(1982), does not

compel a different result. There, the Court held that a Massachusetts

state law barring the press and public from trials during the

testimony of minor sex‐offense victims violated the First

Amendment’s guarantee of the right to access criminal proceedings.

. The Court found that the law could not be justified on the

basis of encouraging minor victims to provide accurate testimony

because it was not shown that mandatory closure would always

further such an interest.

at 609‐10. Here, however, we are not

dealing with a generally applicable law that mandates closure in

every case, but rather a tailored closure as applied to one eight‐year‐

old sex‐abuse victim (ten years old at the time of trial) under the

circumstances of this case. Indeed, the district court here relied on

an affidavit from KO’s father that was “based on specific instances

10 No. 13‐2363‐cr

he has observed, and the effect press coverage has had on KO in the

past, rather than a generalized or projected fear or discomfort.”

Ledee,

, at *1.

II. The Breadth of the Closure

The closure must be no broader than necessary to protect the

proffered interest. Bowden,

. Here, the closure was

not broad. See

at 129‐130 (providing that whether a closure is

broad or narrow depends on factors including its duration, whether

transcripts of the closed proceedings are made available, and

whether the closure applied to selected persons or the entire public).

Although the closure barred the general public, it applied only

during KO’s testimony, not to any other aspect of the trial, and the

government did not object to the transcript of KO’s testimony being

made available to the public. Ledee,

, at *2.

Ledee argues that the closure was broader than necessary

because the inclusion of two additional spectators—Ledee’s

parents—would not have prejudiced KO’s ability to testify. We do

not believe the district judge erred in determining the breadth of the

closure here. Excluding all of the public, including Ledee’s parents,

allowed the district judge to tell KO when she took the stand that

“all the people who are here[] are people who have to be here . . .

[o]therwise, everyone’s been excluded,” Appellant App. 53, as was

11 No. 13‐2363‐cr

reasonably necessary to encourage KO’s effective communication. A

certain amount of line drawing is inherent in any closure decision.

Here, the district judge reasonably confined the closure to those who

were not necessary to the functioning of the trial.

III. Reasonable Alternatives to Closure

“[T]he trial court must consider reasonable alternatives to

closing the proceeding.” Waller,

. And a trial court

must do so even when alternatives are not offered by the parties.

Presley v. Georgia,

(2010) (per curiam). Ledee

contends that the district court here erred by not considering any

alternatives to closure. We disagree.

The district court, in granting the government’s motion to

close the courtroom, stated that “[t]he parties have not advised the

court of any reasonable alternatives to the courtroom closure, and

the court is not aware of any.” Ledee,

, at *2. Ledee

now suggests two alternatives that he claims the district judge

should have considered: relocating seating in the courtroom to make

Ledee’s parents inconspicuous to KO when testifying and allowing

Ledee’s parents to view KO’s testimony from a different room via

closed circuit television.

The district court did not have a duty to consider these

alternatives, however, because they are not reasonable solutions for

12 No. 13‐2363‐cr

ensuring that KO would be an uninhibited and effective witness.

See Waller,

(reasonable alternatives to closure must be

considered). KO’s father’s affidavit established that KO had a

particularized emotional fear of others witnessing the story of her

sexual abuse. See Appellant App. 140‐42. It caused KO to “break

down in tears” when residents of her hometown heard of her abuse

and expressed sympathy to her in public.

. Neither placing

Ledee’s parents in inconspicuous seats nor allowing them to watch

KO’s testimony on closed circuit television would have permitted

the district judge to tell KO that no nonessential persons were

witnessing her testimony. In other words, because of KO’s

particularized emotional trauma, the district court did not err in

concluding that there were no reasonable alternatives to closure to

ensure that KO would be able to communicate effectively.

Because a district court has the duty to sua sponte consider

reasonable alternatives to closure, see Presley,

, we

think it best practice for the district court to err on the side of caution

by considering the widest possible array of alternatives. But because

Ledee has posited no identifiable reasonable alternatives to closure

here, and we can think of none, we find no error in this regard.

13 No. 13‐2363‐cr

IV. Factual Findings in Support

Finally, the district court must “make findings adequate to

support the closure.” Waller,

. Such findings must

“support the particular courtroom closing ordered by the trial

judge.” Smith,

(internal quotation marks and

emphasis omitted).

Here, the district judge, relying on an affidavit from KO’s

father, made particularized findings adequate to support closing the

courtroom during KO’s testimony. The district judge acknowledged

that simply a parent’s opinion about his or her child’s ability to

testify would be an insufficient justification. See Ledee,

, at *2. Instead, the district judge credited KO’s father’s

evaluation of KO’s emotional state because it was “based on specific

instances he has observed, and the effect press coverage has had on

KO in the past, rather than a generalized or projected fear or

discomfort.”

at*1. Moreover, KO’s father’s affidavit established

that KO was old enough to understand the consequences of having

the press and public present in the courtroom, supporting the

efficacy of the narrow closure in this case. Appellant App. 141, ¶ 8.

CONCLUSION

For the reasons stated above, we AFFIRM the judgment of the

district court.

14 POOLER, Circuit Judge:

I respectfully dissent. The district court, in contravention of Supreme

Court precedent, failed to make an adequate record as to what alternatives to

closure it considered and why those alternatives were deemed inadequate.

“In all criminal prosecutions, the accused shall enjoy the right to a . . .

public trial.” U.S. Const. amend. VI. The Supreme Court teaches that in criminal

cases, there is a presumption that the courtroom will be open to the public. See

Press‐Enterprise Co. v. Superior Court of Calif.,

, 509‐10 (1984). This

presumption is rebuttable, but courtroom closings “must be rare and only for

cause shown that outweighs the value of openness.”

. Thus:

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,

(1984) (citation and internal quotation marks

omitted).

“The exclusion of courtroom observers, especially a defendantʹs family

members and friends, even from part of a criminal trial, is not a step to be taken

lightly.” Guzman v. Scully,

(2d Cir. 1996). “[T]he Supreme Court has specifically noted a special concern for assuring the attendance of family

members of the accused.” Vidal v. Williams,

(2d Cir. 1994); see also In

re Oliver,

, 271‐72 (1948) (defendant is “at the very least entitled to

have his friends, relatives and counsel present, no matter with what offense he

may be charged.”). Thus, “[u]nder Waller and its progeny, courts must

undertake a more exacting inquiry when excluding family members, as

distinguished from the general public[.]” Smith v. Hollins,

(2d

Cir. 2006) (citation omitted).

While the right to have family members present “may give way in certain

cases to other rights or interests.” Waller,

, the majority fails to

appreciate the difference between excluding the defendant’s parents and

excluding the general public and the press. But no one disagrees with the

decision to close the courtroom to the press and general public. The majority

finds that excluding Ledee’s parents “allowed the district judge to tell KO when

she took the stand that ‘all of the people who are here[] are people who have to

be here . . . [o]therwise, everyone’s been excluded.” Majority Op. at 12 (quoting

App’x at 53). However, Ledee’s parents were plausibly within the group of

people “who have to be” in the courtroom, given the “special concern for

2 assuring the attendance of family members of the accused” to protect the

defendant’s Sixth Amendment rights. Vidal,

.

That failing aside, my dissent rests primarily on the district court’s failure

to create a record of what reasonable alternatives to courtroom closure it

considered, and why those alternatives were inadequate. Once a defendant

objects to a courtroom closing, a trial court is required to consider reasonable

alternatives to the closing, even in the absence of suggestions from the parties.

Presley v. Georgia

(2010). Thus, “[t]rial courts are obligated to

take every reasonable measure to accommodate public attendance at criminal

trials.”

There is no question that in some cases, an “overriding interest that is

likely to be prejudiced” will provide a basis for closing the courtroom, unable to

be overcome by a reasonable alternative. But when that is the case, “the

particular interest, and threat to that interest, must be articulated along with

findings specific enough that a reviewing court can determine whether the

closure order was properly entered.”

(internal quotation marks

omitted).

No such record exists here. The sum total of the district court’s analysis of

this Waller factor consists of the following statement: “[t]he parties have not

3 advised the court of any reasonable alternatives to the courtroom closure, and the

court is not aware of any.” United States v. Ledee, No. 11‐cr‐175,

,

* 2 (E.D.N.Y. 2012). There is no indication in the record of what alternatives to

barring Ledee’s parents during KO’s testimony the district court considered.

Compounding this error, the majority goes on to conclude, on a bare record, that

no reasonable alternatives exist based on (1) the two alternatives proposed by

defense counsel on appeal; and (2) the majority’s inability to come up with

another alternative. Majority Op. at 13. The majority concludes that “[t]he

district court did not have a duty to consider these alternatives . . . because they

are not reasonable solutions for ensuring that KO would be an uninhibited and

effective witness.”

An appellate court should not, in the first instance, be

determining what is and is not a reasonable alternative. See, e.g., TIFD III‐E, Inc.

v. United States,

(2d Cir. 2012) (noting that “an appellate courtʹs

conventional and salutary preference” is “for addressing issues after they have

been considered by the court of first instance,” as it “gives the appellate court the

benefit of the district courtʹs analysis”).

We cannot tell from the bare record before us whether the district court

considered these alternatives, or, indeed, if the district court considered any

4 alternatives to simply excluding Ledee’s parents from the courtroom. Perhaps a

screen would have allowed KO to testify with Ledee’s parents in the courtroom,

or perhaps his parents could have listened to her testimony via a live audio feed.

KO did express to her father a generalized (and understandable) fear of the

public and press witnessing her testimony. But the Sixth Amendment gives a

criminal defendant the right to have the public witness his trial, and as discussed

above a district court must make a particular effort to allow a defendant’s family

to stand witness. The record offers us nothing to review on appeal as to how the

district court reached the conclusion that no reasonable alternatives to excluding

Ledee’s parents from the courtroom existed. Instead of affirming, I would

remand with limited instructions directing the district court to set out its

rationale as to what alternatives it considered and why it deemed those

alternatives inadequate so that we may consider the issue of a possible Sixth

Amendment violation on a full and complete record.

I am well aware that, as detailed in the majority opinion, the defendant

here stood accused of horrific crimes against a child. I am also sympathetic to

KO’s father’s desire to shield his daughter from further distress. Indeed, on a

fully developed record, I may well have joined the majority. But I cannot escape

5 Presley’s clear directive that the district court make findings as to why there are

no reasonable alternatives to closing the courtroom to Ledee’s parents, and as no

such findings exist here, I respectfully dissent.

6