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
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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
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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
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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 (18 U.S.C. §§ 2251(e), 3551
et seq.), sexual exploitation of a child (18 U.S.C. §§ 2251(a), (e), 3551 et
seq.), and receipt of child pornography (18 U.S.C. §§ 2252(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 18 U.S.C. §
3509(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
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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, 2012 WL 1247222 (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. Id. at *2.
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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, 63 F.3d 121, 125 (2d Cir. 1995). But “because the district
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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.” Id. (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.” 18 U.S.C. § 3509(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, 467
U.S. 39, 45 (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
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No. 13‐2363‐cr
proceeding”; and (4) the trial court must make “findings adequate to
support the closure.” United States v. Smith, 426 F.3d 567, 571 (2d
Cir. 2005) (citing Waller, 467 U.S. at 48).
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, 237 F.3d 125, 129 (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, 63 F.3d at 129.
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, 743 F.3d
1278, 1287 (9th Cir. 2014). Because the closure at issue is a relatively
narrow one, as we discuss in more detail below, “we need not
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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, 426 F.3d at 573. 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.” Id.
The Supreme Court’s decision in Globe Newspaper Co. v.
Superior Court for Norfolk County, 457 U.S. 596 (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.
Id. at 602. 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. Id. 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
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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, 2012 WL 1247222, at *1.
II. The Breadth of the Closure
The closure must be no broader than necessary to protect the
proffered interest. Bowden, 237 F.3d at 130. Here, the closure was
not broad. See id. 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, 2012 WL 1247222, 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
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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, 467 U.S. at 48. And a trial court
must do so even when alternatives are not offered by the parties.
Presley v. Georgia, 558 U.S. 209, 214 (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, 2012 WL 1247222, 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
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No. 13‐2363‐cr
ensuring that KO would be an uninhibited and effective witness.
See Waller, 467 U.S. at 48 (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. Id. at 142. 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, 558 U.S. at 214, 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.
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No. 13‐2363‐cr
IV. Factual Findings in Support
Finally, the district court must “make findings adequate to
support the closure.” Waller, 467 U.S. at 48. Such findings must
“support the particular courtroom closing ordered by the trial
judge.” Smith, 426 F.3d at 574 (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, 2012 WL
1247222, 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.” Id. 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.
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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., 464 U.S. 501, 509‐10 (1984). This
presumption is rebuttable, but courtroom closings “must be rare and only for
cause shown that outweighs the value of openness.” Id. at 509. 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, 467 U.S. 39, 45 (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, 80 F.3d 772, 776 (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, 31 F.3d 67, 69 (2d Cir. 1994); see also In
re Oliver, 333 U.S. 258, 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, 448 F.3d 533, 539 (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, 467 U.S. at 45, 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, 31 F.3d at 69.
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 558 U.S. 209, 214 (2010). Thus, “[t]rial courts are obligated to
take every reasonable measure to accommodate public attendance at criminal
trials.” Id. 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.” Id. at 215 (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, 2012 WL 1247222,
* 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.” Id. 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, 666 F.3d 836, 842 (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