The opinion of the court was delivered by: Patrick A. Conmy, Senior District Judge United States District Court
Before the Court is defendant Anthony Charboneau's motion pursuant to 28 U.S.C. § 2255 which was filed on June 27, 2011. See Docket No. 75. The motion is filed pro se. The government filed an brief in opposition to the defendant's motion on August 30, 2011. See Docket No. 77. Charboneau filed a reply on October 3, 2011. See Docket No. 78. For the reasons explained below, the motion is denied.
Charboneau was found guilty of one count of sexual abuse of a minor (count one) and one count of abusive sexual contact (count two) on May 19, 2009. He was sentenced to 46 months imprisonment on August 13, 2009. An appeal was taken. The conviction was affirmed on July 30, 2010. United States v. Charboneau, 613 F.3d 860 (8th Cir. 2010). Charboneau raises two issues in his motion: (1) his Sixth Amendment public trial right was violated when the courtroom was temporarily closed, and, (2) ineffective assistance of appellate counsel in failing to raise the public trial issue on direct appeal.
The superseding indictment in this case charged unlawful sexual contacts with two minor females. Count one alleged sexual abuse of a minor, J.B., who was at least twelve but less than sixteen years old when the abuse occurred. J.B. was twenty years old at the time of trial. Count two alleged abusive sexual contact with a minor, D.C., who was at least twelve but less than sixteen years old when the abuse occurred. D.C. is Charboneau's biological daughter. D.C. was thirteen years old at the time of trial. The government moved to close the courtroom to the public during the testimony of D.C. under 18 U.S.C. § 3509(e). Section 3509(e) permits the court to close the courtroom during the testimony of child upon a finding that requiring a child to testify in open court would cause the child substantial psychological harm. The court granted the motion over the objection of defense counsel. The following sidebar discussion was held outside the hearing of the jury prior to the motion being granted:
MR. DELORME [the prosecutor]: Your Honor, next is a witness, she's 13 years old. She's 13 years of age. And what I'm looking at, Your Honor, is doing a motion under 3509 which allows for the Court to clear the courtroom of non-interested people. There's a lot of family members in the back and it's going to be hard enough for her to testify and confront her father, who is the defendant in this case, let alone all these witnesses in the back. The law does allow the Court to clear the courtroom of non-interested people.
THE COURT: That's probably -- well, that is of course true, but isn't there some need for a threshold showing of difficulty before that's appropriate? And I didn't give you people a chance to respond. What do you think?
MR. ROSENQUIST [defense counsel]: My response, Your Honor, was that Mr. Delorme prior to any court at all today during preliminary instructions indicated that although he had a DVD he filed that or filed a motion to use it simply because he didn't know whether or not she's going to be able to testify, if she'd freeze up. He told the Court in our presence that he thought she was going to do just fine and I don't know that she isn't going to do just fine. So I don't know that there's an extraordinary need.
MR. DELORME [the prosecutor]: Your Honor, and I meant that she'd do fine insofar as not freezing up to the point that I could get that in. What I can tell you is that last night when I prepped this child she broke down quite a bit. And being in this room with a jury is going to be difficult, with the father who's going to be difficult, with all these other eyes that are relatives in the back of the courtroom looking at her. I think it's going to cause some psychological harm to this child.
MR. ROSENQUIST [defense counsel]: Your Honor, I don't know that any more psychological harm is going to be caused to this child than what she's already endured.
THE COURT: Well, I'll tell you quite frankly I often think that trial is far worse than the crime for which there is the accused in terms of the effect on the victims. I've had little people on the witness stand who look like deer in the headlights, you know, with big round eyes. It's not a pleasant thing. I hate to have you put her on and have her freeze because of the presence of these people, and I'm going to grant your request and wait for the Fargo Forum to pillar me for having so done, but I will grant your request.
MR. ROSENQUIST [defense counsel]: Thank you, Your Honor. (Sidebar concluded.) (In open court, all counsel and the Defendant present, in the presence and hearing of the jury:)
THE COURT: Ladies and gentlemen, we're going to have a young lady, child witness on the witness stand, and in an effort to make this as easy as possible a request has been made to me that I remove you from the courtroom at least temporarily during her testimony. So counsel have made a motion that I clear the courtroom of all non-essential people during her testimony. And out of fairness to everyone I think that -- I have granted that request so I'm going to chase you out for a few minutes and we'll notify you when you can come back.
Docket No. 58, pp.161-63.
The courtroom was closed to all spectators during the testimony of D.C., including during her testimony as a rebuttal witness for the government, but was open to all spectators during the rest of trial, including the testimony of J.B. The transcript of D.C.'s testimony was and is open to the public. There was no media ...