United States v. Arnold Sherlock and Ronald Charley

Montanye’s conspiracy to vacate decision grounds appeal,

sentence on not raised on Otherwise, I

ante at 1347-48. concur in opinion.

the court’s

Order.

July 1992. suggestion rehearing en banc is

granted. judgment opinion filed panel are vacated. argument

This case will be set for before

the court en banc at a later date. America,

UNITED STATES

Plaintiff-Appellee,

Arnold SHERLOCK Ronald

Charley, Defendants-

Appellants. 87-1299,

Nos. 87-1300. Appeals, States Court

Ninth Circuit.

Argued Aug. and Submitted 1988.

Decided Jan. 1989. April

As Amended misconduct, sever-

room, prosecutorial and mistrial. for severance al motions many errors. Charley raise preindictment that excessive They contend process; the them delay denied due trial; its public afford them failed to trials, prose- as well sever failure to tri- misconduct, a fair denied them cutorial hearsay admitting testi- al; and it erred jury in- rejecting suggested mony structions. and re- conviction Sherlock’s

We reverse court committed trial. The for a new mand for denying his motions error in reversible based on primarily mistrial and severance Charley’s extra- misuse implicating Sherlock. judicial statement preju- may have joint trial Although the it did not conclude that Charley, we diced his convic- trial. We affirm deny a fair him tion. FACTS

GENERAL Rose Bennal- rapes Marie alleged several Thomascita Billie occurred ly and Navajo Indian on a school from their miles 9, 1984 Arizona. On March Reservation Indians, Navajo accompanied four girls Charley, in a truck including Sherlock and Hoidal, Public Asst. Federal M. Thomas near They stopped grounds. off the school Trebon, Phoenix, John Defender, Ariz. and two countryside where in the a windmill defendants-appellants. Ariz., for Flagstaff, All drank joined them. males other Indian Atty., Connelly, Asst. M. Thomas Sherlock, left before who except M. beer Ariz., plaintiff-appellee. Phoenix, girls tes- At trial both crimes. alleged to drink forced them boys tified contradicted witnesses beer. Other testimony. from further Later, group drove POOLE, Circuit and Before: WRIGHT Billie open stopped an area. school and WILLIAMS,* Judge. District and

Judges, Sher- the truck with that while testified raped her. Judge: lock, the doors WRIGHT, locked he A. Circuit EUGENE left she had testified that Bennally trial, jury joint a troublesome After go to the bathroom truck to and Ronald Arnold convicted sexual her to have and forced tripped her to commit intent Charley of assault intercourse. This week- Reservation. rape on an Indian girls alleged rapes, both After contradictory testi- involved the long residence. nearby Clitso witnesses, walked temporary exclu- mony of a ride back gave them Robert the court- Clitso family members sion of * nia, designation. Williams, sitting by Senior United W. David Honorable Judge, of Califor- Central District District dorm, juryA where arrived after curfew. convicted both defendants of as- sault night, girls Later that both were inter- with intent rape commit on an investigators Indian by Navajo and exam- Reservation. 18 113(a), viewed U.S.C. §§ trial, ques- 1153. The physician. many imposed ined At a sentence of years three tions arose as to statements made to the on Sherlock years, and five on dorm, Clitsos, Charley. persons investiga- trial, at the Both moved for a new tors. which the court denied.

Because arguments defendants’ must be considered in the context of their unusual BACKGROUND PROCEDURAL trial, provide we more detailed facts as charged original indictment Sher- required by analysis our of several issues. lock, Sherlock, White, E. Charley, M. rape Jr. in five counts with related ANALYSIS Because of the common sexual offenses.1 1. Fifth Amendment Due Process Claims counts, evidence, govern- crimes and try ment intended to all four defendants Charley urge preindict- Sherlock and trial, however, together. Before delay ment denied them process. They due charges against government dropped all M. government’s also contend that the failure charges. Sherlock and the several assault .preserve kit, rape allegedly exculpa- day it On the of trial dismissed with evidence, first tory deprived them of due prejudice charges against White. The process.- disagree. We final consisted of three indictment charged rape

counts. It Sherlock with of Delay A. Preindictment charged Charley Billie Thomascita and with alleged The offenses occurred on March rape Bennally of Marie Rose and carnal 9, 1984, thirty-six months before the knowledge of her.2 government filed the indictments in Febru- ¿ry 1987. The statute of limitation would Charley moved Sherlock and to dismiss 9, expired March 1989. Defendants preindictment delay on excessive and based moved to dismiss the indictments due to physical loss of evidence obtained from the delay. alleged victims. Sherlock also moved to grounds likely the trials on sever guarantees The Fifth Amendment by Charley impli- admission of a statement that defendants- will not be denied due cating him would violate his Fifth and process, preindict as a result of excessive rights. Sixth Amendment The court denied delay. ment scrutinize a violation of Wé motions,

those which were renewed at trial. guarantee two-pronged this under a test. First, week-long Charley prove and involved inconsistent must alleged actual, they non-speculative preju from the victims and oth- suffered During Bennally’s delay. er witnesses. dice from the Lo testimo- United States v. vasco, 783, 789, 2044, ny, judge temporarily excluded defen- 431 U.S. (1977); dants’ families after he determined that 52 L.Ed.2d 752 United States Moran, (9th Cir.1985), necessary protect her closure was from v. 759 F.2d disruptive spectators. Neither defendant (1986). Second, put only Charley

testified and on additional 88 L.Ed.2d 920 must delay, against witnesses in his defense. Each based his show when balanced it, government’s prosecution’s offends defense on the failure to the reasons conceptions justice prove guilt. those “fundamental of separate charges rape; aiding day 1. The included and abet- 2. From the first their trial involved charged separate ting rape; rape, aiding crimes assault with intent to defendants with same; predi- abetting knowledge; against separate victims. Joint trial was and and carnal abetting physical temporal proximity aiding and and the same. M. Sherlock cated on crimes, charged aiding alleged and reliance on the same and White were with and abet- ting every third-party witnesses in the two actions. the commission of crime. Second, politi- they allege that loss of lie at of our' civil and which the base rape prejudiced it Lovasco, kit them because would cal institutions.” See dirt, grass have established absence of or (quoting Mooney 97 S.Ct. at foreign genital victims’ substances in the 103, 112, Holohan, U.S. areas, phosphotase of acid on skin absence Moran, (1935)); 79 L.Ed. 791 clothing, absence stained or at 781-82. clothing. They torn note further that at We for abuse discretion review Gloyd, the girls, trial Dr. who examined the motions to dismiss. the court’s denial of testify only contemporane could Wallace, 848 F.2d States v. notes, preserved ous and that she because (9th Cir.1988); Rog kit, all evidence in the she physical had no (9th Cir.1983), ers, it in her separately to describe notes. need government that the responds jury Sherlock and of the less convicted er offense of assault intent to commit Prejudice 1. Actual rape. agree rape kit We would heavy “The has a defendant burden as to likely exculpatory not have been delay prove preindictment that a caused The record that some crime. reveals excul proof must definite prejudice: actual kit, patory evidence from the absence speculative, and the and not defendant girl, preserved semen in either must demonstrate loss of wit how Further, argued unavailability at trial. prejudicial to his ness and/or evidence necessarily did rape kit result (citations Moran, case.” preindictment delay. from the See United omitted). heavy this bur Our cases reflect Mills, Cir.) States v. den, prejudice find actual frequently as we (finding government that even if the had Wallace, See, lacking. 848 F.2d at e.g., after indicted defendants one month the 1470; Valentine, v. 783 United States F.2d crime, physical could the evidence have (9th Cir.1986). 1413, 1416-17 Here, find we unavailable), denied, 454 been U.S. showing to be prejudice the of slim. (1981). 221 70 L.Ed.2d 102 S.Ct. could not establish that Defendants First, the defendants assert that the al- government possession even of kit. had they leged repeatedly that victims testified oc- could not remember certain events that Finally, Charley alleges that the de replete Although the record is curred. lay serving him his prevented sen examples girls’ memory lapses of concurrently rape with an earlier tence sen questions relating con- asked to the tence, his would reduced total which misconduct, other sumption of alcohol and argument period confinement. That of question must whether such lost testi- we preju actual speculative too establish mony qualify prejudice necessary would Valentine, at 1417. 783 F.2d He dice. See process violation. to establish due allegations more than offers no bare deprived delay him of concurrent sen protec “emphasized This court has tencing. testimony generally falls tion from lost of the solely within the ambit statute Delay 2. Reasons Moran, 759 at limitations.” F.2d Pallan, process may we find a due 501 Before States v. United violation, Charley must (9th Cir.), Sherlock and show U.S. Here, govern delay was that the caused S.Ct. L.Ed.2d culpability. how Loud record does not indicate Billie ment’s United (9th Cir.1987); Hawk, Bennally have testified had their would Moran, F.2d at The record does not It does show dimmed. not memories government’s delay memories that the the loss of their had mean show solely gain tactical impaired undertaken “to advan ingfully defendants’ abilities Lovasco, tage over accused.” defend themselves. to, (quoting preserve, obtain access prompt at 97 S.Ct. at or to 307, 324, Marion, 92 ly 404 U.S. [exculpatory] States v. disclose evidence.” Unit 455, 465, (1971)). 30 L.Ed.2d 468 S.Ct. Alderdyce, 1365, 1370 ed States v. (9th Cir.1986); see Arizona Youngblood, Lovasco, Supreme held Court 333, 337, 488 U.S. government’s prosecution that the of a de (1988) (holding government’s that the investigative delay did not fendant after preserve potentially failure to useful evi process violate due even if his “defense process dence not denial of due unless might prejudiced by have been somewhat defendant can show bad part faith on the lapse of time.” 431 U.S. at government); Trombetta, prosecutor may A S.Ct. at 2052. have wide 487-89, (discussing S.Ct. 2533-34 latitude to decide when to seek an indict government’s duty preserve exculpa ment, especially when a case involves more evidence). tory 792-95, person. than one See id. at at 2050-51. This record does not establish the kind of gives misconduct that rise to a constitution Here, prosecution explained ade al violation. There is no indication that the pre-trial quately at the reasons for its de rape loss kit was due to the bad faith lay: government’s attempts to inter any government agency. Young See view witnesses law enforcement offi blood, 109 at 337. The court noted cers, agents working the transfer of on the government that neither the agents nor its case, investigative and other needs. The possession had or control of the kit or its ongoing investigation legitimate was a rea test results. The Gloyd of Dr. delay. son for the Torna Tom, and Anselm Bureau of Indian Affairs bene, Cir.1982). investigator, revealed that were un happened rape sure of what B. Failure to to the kit and Preserve Evidence agen did not know if law enforcement allege Sherlock and further cy ever it. had government’s preserve failure to rape right kit violated their to a fair assuming govern Even Brady Maryland, trial under kit, ment had lost the defendants were not (1963), 10 L.Ed.2d 215 deprived completely potentially exculpa subsequent cases. Trombetta, tory evidence. 467 See U.S. at 490, Supreme In Brady, (finding Court held that a 104 at 2534 that defen S.Ct. privilege ways defendant has a constitutional had alternative dants of demonstrat innocence); prosecution ing from the Alderdyce, obtain evidence mate- 787 F.2d guilt punish- (finding rial to his or relevant to the at 1370-71 no Brady violation 87, imposed. deprived complete ment to be 373 U.S. at 83 defendant when was evidence). ly exculpatory S.Ct. at 1196. “To meet this constitutional of But see Hilli 1443, materiality, pos- standard of evidence must v. 719 F.2d 1446-47 Spalding, ard (9th Cir.1983) exculpatory (holding presumes appar- sess an value that was that court destroyed, prejudice sperm sample, ent before the evidence was which was in government’s possession, be such a nature that the defendant is not avail defendant). comparable Gloyd would unable to Dr. testified that be obtain able evi- vaginal by reasonably samples dence other available she took fluid from the Trombetta, cavity alleged means.” v. 467 victims and found the California 479, 489, 2528, 2534, negative. U.S. 104 81 results to Both defendants S.Ct. (1984)(citing argued Gloyd’s testimony L.Ed.2d and the 413 United States v. that Dr. 97, 109-10, 2392, Agurs, any sperm exculpatory. 427 U.S. 96 S.Ct. absence of 2400-01, (1976)). properly 49 A the court ruled that Brady L.Ed.2d 342 We hold that may government duty prosecutor violation arise if the fails did not violate its rudimentary steps Brady.3 “to take the to under most refusing requested destroyed The court instruction on lost or also did not err in defen- dants’

1356 harm); physical harassment and ness from Family Members II. Exclusion (to protect Sielaff, 561 F.2d at 695-96 wit Charley argue that exclu- trial); United States rape dignity ness's Bennally’s during tes- sion of their families 770, (9th Cir.1976) Akers, v. 772 their Sixth deprived them of timony denied, disorder), cert. (to 430 avoid U.S. public to a trial. We right Amendment (1977); 1181, 908, 97 S.Ct. 51 violation. constitutional find no Eisner, 987, v. 993- United States denied, 919, (6th Cir.), 97 cert. 429 U.S. 94 Trial Guarantee The Public A. (1976) (to 314, protect 50 286 S.Ct. L.Ed.2d guarantees Amendment The Sixth testifying public); witness with fear right to a enjoy “the defendant shall that a Fay, v. ex rel. Orlando 350 public The trial public trial.” speedy and Cir.1965), 967, (2d created for the benefit guarantee was 1961, 1008, 16 L.Ed.2d 384 U.S. 86 S.Ct. Georgia, 467 U.S. v. defendants. Waller (to in the court (1966) order maintain 2215, 2210, 39, 46, 81 L.Ed.2d 31 104 S.Ct. States, room); Geise United DePasquale, (1984); Gannett Co. 151, (9th Cir.1958), 2898, 2905, 368, 380, 99 S.Ct. U.S. (to 94, (1959) 4 L.Ed.2d 80 S.Ct. discourages (1979). perjury It L.Ed.2d from embarrassment protect minor witness lawyers and wit judges, ensures that trial). upheld partial rape Courts carry respective functions out their nesses narrowly tailored to serve orders closure Waller, 467 U.S. at responsibly. ordered. interests for which were Oliver, In 2215; 333 U.S. re S.Ct. at Georgia, 467 U.S. Waller 499, 506, n. n. 270 & (1984), the Su L.Ed.2d pro (1948). “Openness in court L.Ed. 682 the first time preme addressed for Court improve quality of testi ceedings may the criminal defendant’s the contours of witnesses to come mony, induce unknown It right public to a trial. Sixth Amendment testimony, cause all forward with relevant set out in Press-Enter ruled that the tests perform their duties participants Court, Superior prise Co. v. generally give conscientiously, and more (1984), gov opportunity an to observe public Co., erned total closures: 443 U.S. at judicial system.” Gannett Newspaper see Globe 383, 99 S.Ct. at openness may be presumption of Court, Superior 605- Co. overriding interest an overcome 2619-20, 73 L.Ed.2d 248 findings that closure is essen- based on and is preserve higher values nar- tial to to serve that interest. rowly tailored trial, right public to a how along to be articulated The interest ever, give way in and must is not absolute enough that a re- findings specific interests essential some cases to other viewing determine whether court can Waller, justice. of the fair administration properly entered. closure order was 2214; United 45, at S.Ct. at 467 U.S. 104 45, Waller, 741, at Hernandez, at 104 S.Ct. 2215 F.2d 467 U.S. 510, (quoting Press-Enterprise, 464 U.S. at States ex rel. Lati (9th Cir.1979); 691, (7th 824). The Court held that Sielaff, F.2d 104 S.Ct. at more 1076, hearing suppression Cir.1977), 434 U.S. closure of entire guar- trial public violated the defendant’s at 2216. antee. 467 U.S. at 104 S.Ct. recognized limita courts have Federal total closure sup- of a Waller addressed right judge a has ex on that where tions necessarily hearing pression and does during a spectators witness’s testi cluded See, e.g., Jones partial closures. govern See Her purpose. justifiable a mony for Cir.1987); Henderson, (2d nandez, (to protect wit- 608 F.2d at 747-48 likely its discretion. It instruction evidence. found jury the limits of acted within confuse the shortly Wainwright, began after she Douglas testify. Cir.1984), 469 U.S. prosecutor requested that the courtroom be (1985). In 84 L.Ed 2d 321 105 S.Ct. in might cleared order that she conclude itself, the alluded Press-Enterprise Court testimony. her He said that she was partial the distinction between total and frightened apprehensive speaking of stating by closures that when limited clo family defendants’ before members. ordered, “the values sure is constitutional judge The trial prose- concluded that the sought protected by holding open to be Bennally’s cutor could elicit testimony if he proceedings may be satisfied later mak excluded of members defendants’ families ing transcript proceedings of a the closed from the courtroom. He had observed within a reasonable time.” 464 available making some of them giggling faces and U.S. at 104 S.Ct. at 825. that, during testimony. her given He held Finding in no cases this circuit that dis- alleged, the nature of the age offenses cuss in the context of limited clo- Waller (a minor), Bennally apprehension of in sures, Circuit we note that Eleventh testifying family before the members and partial applied has a more lenient test to courtroom, justifiable actions Douglas, (up- 739 F.2d at 533 closures. excluding reasons existed for them. holding prior its decision even after We hold that the court had the Supreme vacated it and remanded Court power to a limited spec order exclusion of Waller). light for reconsideration It during Bennally’s testimony. tators impact partial of the found that closure protection young victims of sex closure, crimes of a total did not reach level from the trauma and embarrassment of “only and therefore a ‘substantial’ rather public scrutiny justifies closing parts of a ‘compelling’ than reason for the closure omitted). (citations proceeding. Press-Enterprise criminal necessary.” Id. It Court, Superior Co. v. 9 n. found further that a “substantial reason— protection unnecessary of the witness from n. (1986); Co., dignity justified Newspaper insult to her Globe U.S. at —existed 607, 610, 2622; partial closure.” Id. In cases “where Sielaff, see involved, partial (recognizing protection a closure is a court F.2d at 695 particular

must look to the circumstances dignity justified exclusion of witness’s if Geise, to see the defendant still received the spectators); 262 F.2d at 156-57 safeguards public guarantee.” (finding necessary proper exclusion 561 F.2d at Sielaff, victim). Id. see 694-95. young rape to elicit conclude Waller distin We Although we do not condone the guishable do not from this case. Here we family the court removal of members from proceedings, true “closure” of but decision, room, judge’s we find that temporary exclusion from the courtroom balancing rights of the defen after during defendants’ families one witness’s protection dants and the of a victim wit determine, testimony. light We must of ness, require satisfied the constitutional trial, right public the defendants’ to a open remain to the ment that criminal trials whether the trial had a substantial Oliver, public. In re But see reason for the closure. We also must de 271-72, 499, 506-07, 92 L.Ed. 682 narrowly cide whether the closure was tai (1948) (noting held that that courts have spectators only to the ex lored to exclude very least entitled to have defendant at the necessary satisfy purpose tent to the for friends, present). counsel relatives and his which it was ordered. always right public a trial ‘has “The to being subject to the interpreted as been Bennally’s Testimony B. keep in the power to order judge’s trial 1. Exclusion Reason for public so a Were this not courtroom. option of trial at all at the Bennally, alleged might victim and main mean no ” sympathizers.’ his against Charley, emotional and became the defendant witness 1358 Waller, where the resolved Fay, context was

Hernandez, (quoting at 747 608 F.2d Court stated: control 971). judges must Trial at 850 F.2d explic- for doubt that fair forum can be little provide a [TJhere the courtroom accused right of the truth. See it Sixth Amendment in the search for the defendant than public trial Ak 747; protective of a accord no less Hernandez, F.2d at 608 right of implicit Amendment First ers, 772. F.2d at 542 public. press 2215. We at S.Ct. U.S. at 104 467 Exclusion Scope requirements procedural conclude narrowly tailored order closure The partial of the context met must be informa- elicit her Bennally and protect to also proceedings. See criminal closure of initially requested government The tion. (although the n. 2 F.2d 533 Douglas, 739 at closed com- testimony be Bennally’s than a “substantial” rather required court partial a Instead, the court issued pletely. of a in the context “compelling” reason a order, defendants’ affected which closure procedural closure, it partial indicated of her testi- duration only for the families met). must still be requirements were readmitted mony. Those excluded procedural requirements. are three There not exclude judge did The trial thereafter. hearing on the First, hold court must expressly that provided the defendants the First Amendment In closure motion. especially the public, members other repre context, appeals by news media in the courtroom. remain press, could exclud sentatives, that those have held we closure the limited aware of jury was not afforded a must be proceeding ed from the trial became transcript of order. object. Brookli opportunity to reasonable record. public Bee, 1167-68; Sacramento er, 685 F.2d at secrecy of sum, none of the we find States see also United 482; F.2d at by the Sixth condemned proceedings Cir.1987) (3d Raffoul, Oliver, at In re 333 U.S. See Amendment. hearing should pre-closure that “a (holding Aaron 506-07; 270-71, right persons as a matter granted be Cir.), (5th Capps, removal subject present and actually 423 U.S. courtroom”). from the L.Ed.2d case, do not have we In this and the press right of consider Requirements 3. Procedural proceed to criminal access public have Only the the reasons Having Amendment. ings the First concluded under closure substantially justified appeal, and base for closure were defendants tailored, Sixth exclusively on their narrowly we must argument it was and that pro trial. We right public met the to a court if the district Amendment determine here, pro where, First Amendment closing the requirements hold that cedural re raised, hearing and Ninth Supreme Court are ceedings under concerns gives the met when quirement is law. Circuit See right to be heard. defendant proce cases which discussed Most (an opportu n. 2 Douglas, F.2d at in the so have done requirements dural “any required where nity to heard is the First press exclusions under context and the contemplated the trial is closure of Enterprise, See, e.g., Press Amendment. opportu requests an objects and defendant 104 S.Ct. at 464 U.S. Douglas heard”) (quoting nity to be Brooklier, F.2d 1167-68 States (11th Cir. Wainwright, v. United Bee Cir.1982); (9th Sacramento remanded, 1983), vacated 477, 482 Court, Dist. (1984)). 3575, L.Ed.2d denied, Cir.1981), factual Second, must make the court (1982). Any Waller, support the closure. findings to protec procedural about whether doubt 2216; Brookli at at 467 U.S. Amendment in apply the Sixth would tions er, 1168; Bee, F.2d at Sacramento 656 MR. I TREBONE: would also ask the 482; F.2d at Douglas, 739 F.2d at 533 n. 2. Court to consider as a lesser alternative Third, the spectators court must consider reasonable be admonished in fashion, closing alternatives to some the courtroom. to they behave—if think Waller, any there is U.S. chance of misbehavior that Bee, 656 F.2d at 482. in Sacramento behave a certain fashion. THE my COURT: I have order. It find that requirements We these seems to again me that we have all the were met in this case. The defendants language very difficulties and in- subtle given ample opportunity were heard. be ferences of that. government proposed closing When the Although question, it is a close we find in July courtroom late the afternoon on that the properly court considered reason- 1987, Charley’s objected. counsel able alternatives to closure. The trial study court indicated that it would the is judge expressed concern “language overnight, again sue up and take it difficulties,” rejected the alternative of following morning. morning On the admonishing the observers to behave. July hearing a on the matter was held Throughout trial, the court utilized an presence jury. outside the At that interpreter Navajo in the language. While time, joined Sherlock’s in Charley’s counsel might explicit have made more objection, Charley and counsel for ex findings regarding alternatives, reasonable plained objection his on the record. Al we find no constitutional error.

though Charley complains that an eviden sum, we find that the court met the held, tiary hearing requested was not he procedural requirements imposed by Su- none, required and it was not event. preme Court and Ninth precedent Circuit (the Raffoul, opportu See 826 F.2d at 225 “ imposing partial proceed- a closure of the nity to be heard ‘need not take the form ” “ ings. public rights Defendants’ under evidentiary hearing’ of an and ‘need not the Sixth Amendment were not violated. encompass legal argument extended ”) delay’ Co., results in (quoting Gannett III. Failure to Sever 2939) (Black 443 U.S. at 99 S.Ct. at mun, J., concurring in part dissenting Sherlock claims that the court erred in part). Charley’s right to be heard was denying several motions to sever. He re- met. upon States, lies Bruton v. United 20 L.Ed.2d 476 We also find that the court met the re- (1968), prejudiced and asserts he quirement adequate it that make factual Charley’s the admission of statement findings. The court found that some of the allegedly implicated him in the assault family peered defendants’ members alleges of Billie. He further the court giggled at the witnesses and that refusing impeach erred in him allow presence during Bennally’s Charley prior with a assault conviction af- would cause her trauma and embarrass- ter that statement was admitted. Sherlock above, ment. As indicated the court’s find- also claim that their irreconcil- ings were sufficient to allow us to conclude able defenses mandated severance. that there was a substantial reason to close may The court order a severance when it proceedings. The district court’s factu- appears may preju- that a defendant findings adequate. al were significantly by joint diced trial with his properly Whether considered codefendant. re- Fed.R.Crim.P. 14. We presents reasonable alternatives closure view for abuse of discretion for a denial of difficulty. some After the court stated Gonzales, 749 severance. United States v. partial that it would allow closure (9th Cir.1984). families, to the defendants’ there followed colloquy this between must demonstrate the court and Char- The defendant ley’s joint manifestly prej- counsel: trial “was so al, require trial to exer the court denied the motion each

udicial to the but time. way, by his in but order cise discretion one separate ing a trial.” United States During portion the of its case de (9th Cir.1982);

Abushi, 682 F.2d Sherlock, government to the called voted Escalante, investigator testify Charley’s the to about Cir.), immediately He called statement. was be (1980). 66 L.Ed.2d 71 alleged victim, Billie. fore Sherlock’s Over his He must also show violation of one of objection, the allowed him Sherlock’s court rights by joint reason of the him, substantive testify Charley to that “He told saw unavailability trial: of full cross-exami- girl sitting in the the other cab truck nation, present opportunity clothes, of an appar lack That without naked.” defense, of hearsay by individual denial Sixth in as an ent came “admission” rights, Charley. investigator Amendment confrontation lack of not did mention However, separate among by with he did counsel defendants Sherlock name. iden interests, properly tify girl failure Billie as in the conflicting or the truck. Sherlock impeach Charley by jury admissibility the was not allowed to his to instruct the on prior assault conviction.4 At the end of the of evidence as each defendant. investigator’s testimony, gave the a Escalante, prime 637 F.2d at 1201. The cautionary Charley’s instruction on statem assessing prejudicial the consideration ent.5 of the court joint effect a is whether instructions, jury The court’s delivered may reasonably expect jury to collate closing argument, repeated before the lim- appraise independent evidence not iting admonitions. Sherlock did com- of against each defendant in view its vol during closing on the his ment statement limiting court’s ume instructions. argument, although he refer to Id.; did Douglass, 780 See States v. United flimsy in the (9th Cir.1986); and inconsistent evidence case rebuttal, despite him. (9th against Then Brady, instructions, limiting prosecutor Cir.1978), two emphasized Charley's three times that government’s statement buttressed the Charley’s A. Statement against moved case Sherlock. Sherlock for ground. on that The court denied mistrial Charley, testify during did who not that that motion and ruled trial, allegedly investigator told an he that replying arguments proper were rebuttal Billie, Sherlock, had saw who been with arguments. We defense counsel’s dis- sitting naked in front of the truck. Sher- agree. impeach he lock noted that would have by introducing Charley’s that statement 1. Bruton Claim

prior of assault with intent to conviction deprived his rape. impeachment evi- defendant is Sixth Admission “[A] dence, however, right in a of confrontation when would be troublesome Amendment incriminating facially of a joint trial. Sherlock moved to sever his confession nontestifying ground during trial on that tri- codefendant is introduced at before challenges ruling ruling emphasizes This 4. Sherlock also the court's have been admissible. impeaching Charley’s joint by barred him from state- prejudice trial. caused through prior ment mention conviction. We the decision to admit or exclude review concerning testimony you heard state- "The evidence for abuse of discretion. United States made Ronald should con- ment Rubio, (9th Cir.1983). against Charley. in the case Mr. sidered Here, prejudice would have resulted deciding may you it are You consider when Charley's prior sex offense is admission beyond government proved has whether beyond question. The conviction excluded defendant, doubt that the other Ar- reasonable 403, 609(a). properly under Fed.R.Evid. We Sherlock, committed crime which nold note, however, if trials had been sev- charged he is in the indictment.” ered, impeachment would conviction trial, any instruct reference to his jury even if the or her existence.” 481 joint 211, at only against U.S. S.Ct. at 1709. the confession ed to consider Marsh, the codefendant.” Richardson Court, however, The pros- found that the 107 S.Ct. 481 U.S. by seeking ecutor had erred to undo the (1987); Bruton, 391 U.S. at see limiting by urging jury instruction the Court, 135-36, in at 1627-28. The 88 S.Ct. evaluating use the redacted statement in rule, the its latest treatment of Bruton the Although codefendant’s case.6 Id. the implication” doc rejected the “contextual prosecutor jury had cautioned the not to required a court to assess wheth trine that use the against codefendant’s confession evidence, er, light of all of the a code- Marsh, he later linked her to the redacted powerfully in confession was so fendant’s by referring statement to it in the case new, separate trial criminating that a against her. Richardson, required for the defendant. Here, question Charley’s we whether at 1706. It held clearly inculpated statement Sherlock on its facially limited to incrimina that the rule is during investigator’s testimony. face the ting confessions. prosecutor the redacted statement to investigator exclude name. The Sherlock’s Richardson, also found that In the Court did not mention that Sherlock was in the to eliminate Bru- redaction can serve truck with Billie. The statement did not 209, 107 problems. Id. at ton incriminate him unless linked with other Yarbrough, 852 F.2d see United States v. evidence introduced at trial. Under Rich- Cir.), ardson, prosecutor the did not violate Sher- 171, 102 L.Ed.2d 140 rights. lock’s Sixth Amendment objected There the defendant Marsh extrajudicial admission of a codefendant’s 2. Discretion To Court’s Order Sever- incriminated her it statements that because ance her direct evidence of provided robbery. specific intent to commit armed Richardson, however, As in held that “the Confrontation Court prejudicial statement’s effect became clear by the admission of a during closing argument prosecu is not violated Clause when limiting confession nontestifying codefendant’s tor flouted the instructions when, proper limiting urged jury instruction to consider it connection with a here, against to elimi his case Sherlock.7 To show the confession is redacted with name, deny- that the court abused its discretion only the defendant’s but nate not tempt by prosecution prosecutor’s to circumvent subse- 6. It is unclear whether Confrontation strictures of Bruton and the nontestifying quent misuse of the codefendant’s 923-24, N.E.2d at Ill.Dec. at Clause." 117 problem presents a or wheth- statement Bruton (citations omitted). 23-24 misconduct, prosecutorial which is er there is error, necessarily a Bruton that warrants by response coun- to comments Sherlock’s new trial. government's case was burdened sel that stated, inconsistencies, many “Earl he Richardson, has at least one state court Since Billie naked. There was White saw Thomascita reversing upon it in a conviction for relied took of Ronald that Officer Yazzie a statement Cruz, People v. 121 Ill.2d Bruton error. Charley Billie naked.” that he saw Thomascita Ill.Dec. 521 N.E.2d stated, later, you believe he “If A few moments (1988). In 102 L.Ed.2d 146 story was read or the statement Cruz, nontestifying codefend- a statement Billie that he saw Thomascita Ronald with the name of Cruz rea- ant was admitted Later, he ...” naked in the cab of the truck prose as Cruz's statements. The dacted as well jury, explicitly Sherlock] told the “[Counsel argument encouraged jurors closing cutor in guilty, stated that Arnold Sherlock could not against statements to consider the codefendants’ Well, there given government’s witnesses. jury The court found that the could each other. here, rape just Thomascita wasn’t Billie, victim limiting the court’s instructions not follow gentlemen. We also have ladies and encouraged jurors prosecution White, to consid testimony saw her naked of Earl Jr. who against the oth Charley’s each codefendant’s admission came in with er statement that and Ron interview, saw her a “de that he also actions were Officer Yazzie’s er and unacceptable the truck.” constitutionally at- naked liberate many prior on was attacked based preju Sherlock severance, must show defendant ing statements. Corroboration magnitude inconsistent trial of joint from the such dice Escalante, only from came statements denied a fair trial. he was Charley. he was by that made White and White 1201. He show F.2d at must 637 conviction, against impeached prior felony prejudice with a compelling “suffered exchange to afford for prejudice unable dismissal with trial court was his the which Romanello, Charley’s friend. testimony, and v. his bias protection.” U.S. Here, Cir.1984). the court (5th nothing that testified 177 Two other witnesses Thus, jury properly only about the Billie. happened failed to instruct had to the prosecutor’s for Billie’s tes- Charley’s unimpeached statement after corroboration prosecutor’s Further, that Charley’s comments. We timony statement. .find inability to cross- actions, impeach and Sherlock’s to Char- inability of Sherlock prejudiced significantly Charley, examine testi- credibility of Billie’s ley bolstered opportunity Sherlock. to mony. denied the He was Charley on a that statement cross-examine underlying Richardson’s theory The eventually implicated him. generally follow limit jurors holding is that instructions, less in “rule ... rooted ing Sherlock, conceptions “fundamental For presumption certitude that the by the absolute play” were lost justice” and “fair of represents it true than in the belief that that court conclude trial’s end.9 We of practical accommodation a reasonable denying by his mo its discretion abused the defendant the state interests of and joint trial was so for severance. tions Id., justice process.” in the require the manifestly prejudicial as to crimina] (emphasis at 1709 separate trial. Abu to order a See court added). government violated Here the should shi, F.2d at 1296. It at least prosecu accommodation. pragmatic a mistrial. United have declared See Charley’s against “admission” use of (9th tor’s F.2d Toomey, 764 States com that the trial was so reveals Sherlock Cir.1985) (mistrial more granted when it is apply the not even he could plicated that materially the error than not that probable understood, that he limiting instructions or verdict), denied, 474 U.S. affected intended, Although his misconduct. and limiting instructions be gave Antagonistic fol B. closing argument, no instructions Defenses fore prejudicial remarks. prosecutor’s lowed argue Charley and also improper use the statement The latter’s denying mo erred in their that the court expectation that any reasonable removed were sever defenses tions to because giv follow the jury would instructions sever mutually antagonistic. To obtain argument. before en ground, on that defendants ance based acceptance of one “the must show that Also, the conclusion supports the record acquittal preclude the will party’s mis- defense or misconduct v. Ra party.” United States Bil- of the other prejudiced Sherlock. significantly take (9th Cir.1983). mirez, by F.2d raped testimony that she had been lie’s error, perhaps his intent to use the reflected statement Sherlock ar- to the Bruton In addition 8. statement, Charley. merely by gued if an "admission” that the admitted than more crimes, alleged place at the scene of the prejudicial Sher- effect to Its was cumulative. Also, contrary cross-examinations defendants' probative outweighed greatly its minimal lock Smith, T. Sherlock of witnesses treatments objection, the response value. Sherlock's support finding our at trial and White argued Charley's had statement prosecutor denying Sherlock’s motion court erred was no to Sherlock's case. "There no relation inculpation prosecutor’s ad- III.B. Some of sever. See It is defendants.... closing argument also ditional comments [Charley] for the reason not cumulative IV.A.2. factors prejudiced Sherlock. See These and Thomas- saw Arnold Sherlock states that he require, reversal support, alone do not but pants in the truck cita Billie with nothing down conviction. Sherlock's regards to that before has come out these We note that in this trial." comments is insuffi defenses Antagonism between antagonistic (1985); Lee,

cient; must be the defenses see 744 F.2d at mutu point being irreconcilable Berkowitz, United States v. 546; see United Id. at ally exclusive. (5th Cir.1981). Considering Adler, amended States defendant, offered each (9th Cir. F.2d 491 superceded, 879 both, neither, jury could have believed that Polizzi, 801 F.2d 1988); States United or one of the men had committed the (9th Cir.1986); alleged acts. The defense of one did not Romanello, Cir. necessarily guilt indicate the of the other. must show that 1984). The defendant Further, underlying purposes of the must of the defenses or core essence “[t]he requiring rule severance based on irrecon- jury, in order to that the be in conflict such defense, implicated must neces cilable defenses were not here. the core of one believe the core of the other.” sarily disbelieve primary danger that the rule seeks to Romanello, 726 F.2d at United prose- is a defendant faced with two avoid (5th Lee, F.2d States v. government and his codefend- cutors—the Cir.1984). Lee, 744 F.2d at 1126. Examination ant. record does not convince us that of the court found that Sherlock Here the played counsel the role of a second each defenses on claims Charley based their and alleged prosecutor. commit the Each directed his examination that did not It concluded that establishing crimes. the inno- of witnesses toward placed at the scene of both witnesses guilt cence of his client and not the crime, with a different victim about each Stotts, v. other. See United States defense that Sherlock same time. The (5th Cir.1986)(defenses F.2d 1321-22 preclude the rape Billie did not did not antagonistic no defen- mutually where rape Bennally. Charley did conclusion guilty). alleged that the other was dant Thus, defenses were not it ruled that the focused on the failure of Their defenses mutually exclusive. empha- government prove guilt and however, argue, The defendants given by the inconsistent stories sized the core of in order to believe the jury, In the few alleged victims and witnesses. Sherlock, testimony offered on behalf inculpatory evidence where instances testimony of must have disbelieved defendant, the emerges against the other Charley.10 We have on behalf of fered merely cumulative. testimony elicited was carefully entire trial tran examined attacks do not those isolated We find that to be over script and find their claims necessary prejudice compelling create an Although defendant took each stated. See, e.g., a severance. United to mandate as to some witnesses adversarial stance (5th Carrion, v. States other, favorably for the testified who Cir.1987) (no where compelling prejudice antago defense was not so core of each client). his focus on maintained counsel mutually exclusive. The to be nistic as by raised that the defenses We conclude among hostility defen presence of mere so irrecon- Charley were not Sherlock exculpate of one to or the desire dants mutually exclusive. See as to be cilable does not by inculpating the other himself (finding Berkowitz, F.2d at 1134 man prejudice generate the kind defenses, in the criminal noninvolvement v. Hen United States dates severance. exclusive). mutually Cir.), activity, not (7th drix, defense, (2) Bennally for her essence, helped look had Sherlock Charley’s White testi- In addition, Bennally pants attack. In (1) Charley after her the whole fied that time; (2) he was naked; Billie in the (3) Sherlock and that she saw Bennally he testified he never saw go the bath- together left to naked; (4) help before she truck saw Charlie he saw Billie hand, testi- her. Billie attacked room when pants. other her On the Billie look for alleged rape, for she looked defense, fied that after both Smith and T. Sherlock Sherlock’s pants. Bennally found her without (1) Bennally; Charley had attacked testified that objected outside free.” Defendants of Error Claims IV. Other comments presence. “Prosecutorial jury’s Misconduct A. Prosecutorial objects are reviewed to which defendant prosecu- Charley claim that v. United States ‘harmless error’.” for misconduct, in addition to misuse torial (9th Cir.1986) Endicott, 803 F.2d statement, extrajudicial denied Charley’s omitted). decide (citation We must wheth- review of the entire trial. Our them a fair statement, con- er the that no other reversible us record convinces trial, the entire in the context of sidered occurred. misconduct ability the evi- jury’s affected Young, fairly. States dence United Testimony Perjured 1. Presentation of 1038, 1048-49, 19-20, (1985); McKoy, obtained the L.Ed.2d “A conviction Cir.1985). (9th testimony must perjured be 771 F.2d knowing use of any reasonable likeli if there is aside set States, Hall testimony could the false hood that Cir.1969), reversed a (5th the court of the trial.” United outcome affected the. misconduct prosecutorial conviction Polizzi, a statement argument that included 473 Cir.1986); Bagley, v. see United States only guilty.” the try prosecute to “we 3375, 3381-83, 667, 678-80, 105 S.Ct. U.S. try prosecute to The statement “we Holohan, (1985); Mooney v. L.Ed.2d 481 87 Expres- not defensible. guilty” is 341, 340, 103, 112, 79 guilt are opinion of of individual sions required (1935). will be Reversal L.Ed. 791 This statement dubious best.... presents knowingly prosecution fact. The predetermined guilt takes States v. testimony. See United false is, least, effort to an lead remark 2392, 97, 103, 96 S.Ct. Agurs, 427 U.S. govern- that the whole jury to believe (1976); Brown v. 49 L.Ed.2d already deter- had establishment mental (11th 1457, 1464-66 785 F.2d Wainwright, guilty on evidence appellant to be mined Cir.1986). Or, arguably it them.... not before Charley assert that that as a to mean may be construed by presenting witnesses prosecutor, matter the administrative defen- pretrial stories, necessarily contradictory with charged guilty as had been found dant argu testimony. That perjured presented prosecuted. not have been else he would allege They fail to that lacks merit. ment Id. story was true knew which prosecutor incompatible is with The statement knowledge of whose tes or false. Without innocence. See United presumption false, timony he could not know F.2d Cummings, 468 v. States testimony. See presented perjured ingly Cir.1972). prosecutorial mis- (9th pure isIt Rovetuso, v. for a always improper is conduct. “[I]t Cir.1985), (7th suggest that a defendant to prosecutor (1986); being merely prose- he is guilty because Baker, 850 F.2d v. States accord United has indicted.” United States cuted or been Cir.1988). (9th The record does Cir.1979). (6th Bess, that the presume not and we do not show testimony. used false prosecutor sug- erred in prosecutor We find guilty be- were gesting defendants 2. Prosecutor’s Comment being prosecuted. How- they cause were ever, the statement context pros we hold that argument, the In his rebuttal require, does not rever- support, but try would stated, to convict “We neither ecutor trial, the the entire In the context of go sal.11 guilty to nor allow innocent try nor stated, convict the innocent my purpose neither to "My job, We prosecutor 11. guilty go are get through free. These matters being the truth and here is to allow justice is done. see that that truth to credibility They argue of witnesses. misconduct did affect fairly. theory that this them their evidence denied de ability jury’s

fense, which was that the stories victims’ were lies. Testimony See United States Ibarra- Hearsay Nez B. Alcarez, (9th Cir.1987) objected to admission of (defendant to an instruction entitled cover Nez, testimony by who was roommate theory ing legal with a basis defense Bennally at the Billie and time evidentiary support); and some testimony included alleged crimes. The Bright, de States Escobar girls had Nez informed statements (9th Cir.1984)(failure to instruct jury raped. The court ad they had been theory legally that is on a defense sound ut hearsay under the excited mitted that supported by per the evidence is se 803(2). We exception. Fed.R.Evid. terance reversible). of discretion. United review for abuse They jury offered an instruction that the Cowley, 720 F.2d might all of a Cir.1983), discredit witness’s if it found the had lied on a materi witness gave issue. The instead this al cir approximately her statement Billie made pattern dealing cuit’s instruction wit Bennally made the assault. one hour after credibility. jury ness It instructed the spoken Both even later. had her statement they any part could all or “disbelieve telling persons before Nez to several testimony.” witness’s That instruction They had time to think raped. had been jury adopt allowed the defendants' to invent an excuse actions and about their theory of the case. “It is not error to arrival at the dorm with about their late proposed instruction if the other refuse a hearsay The state their breath. alcohol on instructions, entirety, in viewed scope of the not fall under the ments do Ibarra-Alcarez, theory.” cover that exception. excited utterance See United Hayes, F.2d at (9th McLennan, 563 F.2d States v. Cir.1986), or Cir.1977) (declarant must so excited 1086, 107 S.Ct. he did not reflect on what distraught that (1987). its court did not abuse The saying), he was refusing proposed discretion in defendants’ 1607, 56 L.Ed.2d 60 giving in this circuit’s mod instruction and if the statements do come Even not el instruction. exception, hearsay their admission within a CONCLUSION other witness At least two was harmless. Sherlock’s conviction and We REVERSE girls had told them es testified a new trial. WE AFFIRM remand for raped.12 We they been conclude had Charley’s conviction. testimony if of Nez’s was even admission issue now. The mandate will erroneous, ground not for reversal. it is POOLE, Dissenting: Judge, Circuit Credibility on Jury Instruction C. proceedings in reviewing the this After Finally, defendants claim that rehearing, I petition for light case in of the refusing their on in instruction court erred (through prior only testimony impeachment evidence through in you for to decide witnesses, testimony might questioning) be. which the whatever that statement inconsistent you, asking is not ladies develop, the Government prosecutor And over defen- was allowed anything buy gentlemen, or to smoke against objections, his own witness. The dant's any gambling do in this wares case. or mistrial. In rebut- motion for court denied the your expect you will base decision We again argument prosecutor referred to tal testimony that on the evidence and the this case you girls they said Ms. Clitso’s over the heard from the witnesses misconduct, raped. The had been of the last two weeks.” course however, require reversal. does not Clitso, witness, Ms. 12. A testified third raped. girls came her had been That told Bee, in- all of which has been lier and Sacramento that a mistake am convinced press trials. of the from the exclusion cured the mere volve that cannot be made public brings to the absent represented by press the The nomenclature change of family and opinion. To the trial. to the narrative of majority’s amendments part of the prosecutor defendant are judge and friends of the what alleviate is presence at hav- interest public whose very the victim-witness’s distress deemed recounting Thus, which through the ordeal the considerations ing go protected. fami- admitting press, the defendant’s experience before serviced in must be members, family judge expelled the identi- ly family are similar but not public and proceed- portion this cal, different sources. Our members and stem from I share the experience, some ings. press/fair From trial treatment of free case law But I know also that judge’s family concern. or way explains why in no unwarned controlling many means judge friends, body public, has spectators from of banish- spectators public short the behavior from an ousted otherwise should be public courtroom. ment from the trial. opin to the majority’s amendments expulsion this case order in Because are a nost response to this concern supported by

ion precipitous, not was “The faulty premised record, rum on a conclusion: access access shut off where narrowly pro tailored vital, order defen- closure to the miscellaneous I institution, information.” Bennally and elicit her I tect spectator or but to dant summary application of and the disagree, majority’s from the respectfully dissent call ignores principles which this label opinion. amended forewarning by judge the trial —an through dras order less to maintain effort expulsion of friends and than the tic means simply

family. Attendees cannot be of the courtroom unless out

thrown findings that supportable can make SOCIETY OF OBSTETRICIANS GUAM through less maintained order can not be GYNECOLOGISTS; Nurs AND Guam Georgia, drastic means. Waller Association; Milton The Reverend es 48, 104 2210, 2216, Konwith; Cole, Jr.; A. Laurie Edmund Freeman, M.D.; Griley, S. William M.D.; M.D.; Dunlop, behalf of given no on Charley’s family members were John similarly situ maintaining requi- and all others admonishment about themselves fact, ated, patients, decorum, all their women no second chance. site Plaintiffs-Appellees, sign felt given no were expul- order before any need to demand that decorum There is no indication sion. Guam, ADA, Joseph F. Governor by some have been maintained could capacity, Defendant- his official and, major- step contrary to the less drastic Appellant. amendments, ity’s no indication No. 90-16706. less alternatives. judge considered drastic to con- slightest not the effort There Appeals, Court of to the or threats of sanctions fine sanctions Ninth Circuit. might deemed specific individuals who be 4, 1991. Nov. Argued and Submitted experienced responsible actors. An to use all mea- expected judge should April 1992. Decided decorum— necessary for order and sures Amended June As and no more. proce- Finally, in its examination of order propriety the closure

dural Enterprise, Brook-

majority cites to Press

Case Details

Case Name: United States v. Arnold Sherlock and Ronald Charley

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 27, 1992

Citation: 962 F.2d 1349

Docket Number: 87-1299, 87-1300

Court Abbreviation: 9th Cir.