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United States v. Bordeaux

United States Court of Appeals for the Eighth Circuit

October 21, 2004, Submitted ; March 7, 2005, Filed

No. 04-1369

Opinion

 [*552]  MORRIS SHEPPARD ARNOLD, Circuit Judge.

Edward Bordeaux, Jr., appeals from his conviction and sentence for aggravated sexual abuse, 18 U.S.C. §§ 1153, 2241(c), and 2246(2)(B). He argues that his conviction is flawed because the district court allowed the prosecuting witness to testify via closed-circuit television, admitted testimonial hearsay and other hearsay statements, excluded exculpatory evidence, and denied his motions to suppress, for judgment of acquittal, and for a mistrial. With respect to his sentence, he maintains that the district court violated Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), by making the predicate [**2]  factual findings for certain sentencing enhancements (unrelated to the fact of a prior conviction) rather than allowing the jury to make them. Because Mr. Bordeaux was denied the opportunity to confront his accuser as provided for in the sixth amendment, we reverse his conviction and vacate his sentence.

A grand jury indicted Mr. Bordeaux on five counts of aggravated sexual abuse of a child; the petit jury acquitted Mr. Bordeaux on all but the first count, which charged that he had put his penis in the mouth of AWH, a female child. Mr. Bordeaux argues that the court should overturn his conviction because he was deprived of his sixth amendment right to confront his accuser when AWH was allowed to testify via closed-circuit television.

AWH took the stand at Mr. Bordeaux's trial. She answered a number of the prosecutor's questions, usually with a single word or movement of the head, before the prosecutor asked the court to allow her to leave the courtroom and testify by two-way closed-circuit television. (A two-way closed-circuit system allows those in the courtroom to watch the witness on television and also allows the witness to see the defendant on television.) The prosecutor [**3]  believed that AWH would be more forthcoming if allowed to testify this way, though she had already answered affirmatively when asked if Mr. Bordeaux had put his penis in her mouth. Mr. Bordeaux's attorney, who had yet to cross-examine AWH, objected. To resolve the issue, the judge and the attorneys questioned AWH in the judge's chambers. After this question-and-answer session, the court found that AWH was afraid of the defendant and of testifying in front of the jury in the large courtroom. It found that this fear rendered AWH unable to testify in open court and therefore, pursuant to 18 U.S.C. § 3509(b)(1)(B)(i), it held that she could testify from a separate room by two-way closed-circuit television.

The sixth amendment's confrontation clause provides that ] "in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him." U.S. Const. amend. VI. ] We review de novo the district court's determination of the protections afforded by the confrontation clause, while we review the underlying factual determinations for clear error. Cf. United States v. Powell, 379 F.3d 520, 523 (8th Cir. 2004). [**4]  

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400 F.3d 548 *; 2005 U.S. App. LEXIS 3728 **; 66 Fed. R. Evid. Serv. (Callaghan) 837

United States of America, Appellee, v. Edward E. Bordeaux, Jr., Appellant.

Subsequent History: Rehearing denied by, Rehearing, en banc, denied by United States v. Bordeaux, 2005 U.S. App. LEXIS 9866 (8th Cir., May 27, 2005)

Prior History:  [**1]  Appeal from the United States District Court for the District of South Dakota.

Disposition: Reversed and remanded.

CORE TERMS

interview, confrontation, closed-circuit, television, two-way, district court, face-to-face, confrontation clause, sexual, cross-examine, custody, hearsay, one-way, open court, inadmissible, questioning, testimonial, argues, out-of-court, testifying, courtroom, witnesses, forensic, rights, sixth amendment, interrogations, investigator, videotape, improper influence, child witness

Constitutional Law, Fundamental Rights, Criminal Process, Right to Confrontation, Criminal Law & Procedure, Trials, Defendant's Rights, General Overview, Standards of Review, Clearly Erroneous Review, De Novo Review, Examination of Witnesses, Child Witnesses, Preliminary Proceedings, Preliminary Hearings, Evidence, Commencement of Criminal Proceedings, Interrogation, Cross-Examination, Witnesses, Unavailability, Miranda Rights, Self-Incrimination Privilege, Custodial Interrogation, Evidence, Exemptions, Prior Statements, Hearsay, Sexual Assault, Abuse of Adults, Relevance, Preservation of Relevant Evidence, Exclusion & Preservation by Prosecutors, Conduct Evidence, Sex Offenses, Rape Shield Laws, Right to Fair Trial, Noncustodial Confessions & Statements, Findings of Fact, Voluntariness, Double Jeopardy, Double Jeopardy Protection, Acquittals, Convictions, Substantial Evidence, Weight & Sufficiency, Harmless & Invited Error, Constitutional Rights