who appeals his conviction for transporting a minor in interstate commerce and his thirty year prison sentence i would like to reserve two minutes of rebuttal time the brief presents a number of issues  for the court's consideration i would like to start out with addressing the issue involving the right to a public trial that the right is established in the sixth amendment and the supreme court has stated that the right is designed to assure certain protections and i think the most important one here is that the presence of the public in the courtroom ensures or at least  inhance is the obligation of a witness to tell the truth what do you do about the waiver that that of course is the government's key argument here because if you remove the waiver issue there's no question here that the court failed to comply with the criteria of the statute for closing the courtroom in the case of the juvenile witness our response is twofold  number one that for a valid wavered of a constitutional right to exist that the johnson versus service standard from the supreme court applies and there must be some showing that the waiver of the explain to me why if the serbs factors are relevant they were mad they were not met because the record shows that number one defense counsel did not respond to the motion and when the court asked defense counsel about his position he thought that the motion that had been filed was simply to exclude the media from the court room not the public so he was aware that some motion was filed but he didn't read it didn't bother to respond to it and when he was and like as to exactly what the government was requesting here a complete closure of the courtroom when the most important witness testified i mean i don't i just don't think this is how the knowing in intelligent inquiry works i think it's you know if someone puts a motion in front of you and says here's what we're doing to decide whether there's been a waiver you don't put the lawyer on the stand and say did you read the motion did you understand the motion did you talk to your client i mean that's not and i think that's how it works i think that the court to needs to make sure that the client understood what was going on well actually i mean there you know there's some context in which into the defendant on the stand in question that whether he knows what he's giving up i mean i'm thinking for example when a defendant decides not to testify the court has no independent obligation to ascertain the knowing in willingness of that whatever sometimes the court do and sometimes it's the at the instigation  trial and i can understand that that's not binding on the court but we think that due to the caret that there's no case law that puts that d d squarely on the  sort of tell a story that when counsel initially counsel thought it was just the press and then realized it was the entire public so did counsel do something at that point no that's the problem and he did nothing he didn't ask for a recess he didn't say oh i've misunderstood this i'll need a few minutes to look at what the government filed maybe read the case so from the standpoint of the reviewing court apart from the ineffective assistance claim all we have is a waiver i would not call that a waiver your honor not not under the state of the record there was no mention of the sixth amendment no mention of the right to a public trial the judge referred to it in terms of well we just want to clear the court room during the testimony of the one witness and hear the defendant is just i mean he's obviously doesn't know what's what's going on because he's not getting anything from the court or his attorney as far as what's at stake here so and our alternate argument is in effect of assistance of console that ordinarily that must be pursued in a post conviction petition so that counsel can explain himself but i think here we have a strong enough  record the fact that the defense counsel did not know what the government requested and never asked for a recess in order to determine what the government was requesting in word and get this information from  two or three page colloquy right before a jury board here wouldn't help the twenty to fifty five petition to be able to have more information from the lawyer and it seems this is the part of asking for ineffective assistance seeking ineffective assistance relief and direct appeal that seems quite hurtful to criminal defendants because you don't get another one and you're stuck with the record as is and i'm sure you didn't spend all your time trying to establish the predicate for an the sixth amendment guaranteed console of mr whalen was entitled to is the record show whether anyone was trying to get into the courtroom or would have gone into the courtroom knowing that the record would not show that  does show that it was close to definitely shows that because the judge told the jury what was going on and i guess you would say that doesn't matter because you would call it some form of structural problem yes there is whether it would be classified as structur that's a little bit of a head scratcher to me about why how you just win even if it's a preserved air so you have this common pressley about you know you have to consider other alternatives right before closing the courtroom that seems like a strange inquiry given what the judge did here like if if you want to follow that rule all you do is the judge as you say will alternative a is shut the courtroom down for the whole trial i have this young victim and i'm going to shut it down for the whole trial and then he said presley says i have to consider alternatives i know my alternative i'll shut it down just while she's testifying i would seriously know that there is no other alternative yes oh so you why isn't that very test satisfied here the alternative is an open court room that the juveniles testify all the time proceedings even in cases like this and there was the statute says that the government must show substantial psychological harm or inability to effectively communicate in order to justify closure this young lady was sixteen years old by the time the case went to trial there's no indication in the record that she was going to be traumatized or unable to recites her story in an open court room but isn't the reason we don't know that because the link to it well i mean you know i am not sure that it can be waived the judge said oh this is the statutory criteria and rather than hearing anything he just read the statute and says these are my  findings if i may i did want to address the the trial issues involving the lay opinion testimony which i think is is also a very important issue here we had a child services  worker call to the stand she had no independent knowledge of what had occurred she was called solely for the purpose of testifying about her interview of the young lady and  she gave two opinions regarding why this young lady for most of the interview was saying nothing happened between mr whalen and me and she says well the reason for that is that she had affection for mr whalen and wanted to protect him from criminal prosecution but that at the end when she said that he did do something to hurt her explanation the caseworker is that well i could tell from watching her that she she finally unburdened herself typically the the trial judge may not jump in and say oh i want to put labels on the well and the defense lawyer takes no steps to either object because improper light testimony opinion  money or because she's just as an expert based on her experience who conducted many of these interviews coming how do we know i mean well i mean you're not you maybe you're right but not necessarily possible but it's far as expert testimony in the cases recognized the ability of the prosecution to call an expert to talk generally about syndrome but not to whether it's an expert or a lay witness the witness cannot give an opinion regarding the credibility of the particular here i wouldn't call it exactly an opinion about credibility but what happens here is the witness starts talking about what generally happens in these interviews and then he does beer into talking about highly specific direct but it's a little more complicated than just she's giving a leg opinion test why disagreeably in a criminal case typically the witnesses are interviewed by somebody an agent detective the prosecutor and we don't  cases just call like the f b i agent to say well tell us how you interviewed snitch so and so who is pointing the finger at the defendant because it's not relevant to the  experts to talk about the interviewing minor sexual assault victims which but that wasn't the purpose in calling the last witness that what what authority does the prosecutor must say i'm calling her is before the proceed to question i mean the burden is on the defense counsel to say something well that is the problem in this case and we're arguing that's playing there one more point i'd like to make and that is defense counsel wanted to cross examine the young lady using the audio recording of this precise interview that's another area you climb right and under this court's decision in s versus eben's you're going to another place and unless there are other questions i'd suggest you rest on your brief move in with regard to that other is i would like to ask a question about that i think to me that's the most problematic aspect of this case much more so than closing the courtroom or this witness's testimony because i think it was apparent to everybody that she liked this guy and didn't want to get him in trouble but so did counsel ever say to the judge look the transcript isn't good enough i want to show to the jury that this woman's will was finally overboard by this counselor and i want the jury to hear how she repeatedly denied it and then finally she told the council what the council wanted to hear and it's important for the jury to hear the tape he did not say it that articulately however he did he said that he wanted to elicit this information he said specifically that the interviewers were admonishing her repeatedly you need to tell the truth and by his count fifteen times she said no he did not do anything  to me and he also complained that he started out cross examining the young lady just through verbal questions and she continued to say well i don't recall that interview no i don't recall the details so he actually used the transcript party actually use the transcript i realize he didn't get used the video did he use the transcript he tried and it didn't work because who'd regardless of what he read please the court your honor for several reasons this court should affirm the judgment of the district court first of all at trial mr whalen's counsel did waive the right to have several issues even considered by this court on appeal on other instances that right was forfeited and under a plain air standard of review this court should affirm the judgment of the district court regarding the  effective assistance of counsel argument there's there's been no showing the mr whalen has not met his very heavy burden of showing this counsel provided ineffective assistance at trial under stric and then third you know that we haven't discussed yet the sentencing enhancements were properly applied by the district court so what do you would you guys prefer that we reserve resolve these ineffective assistance claims now or or do you think that's a little unfair to the defendants and well your honor typically this court will not consider as you know an ineffective assistance of counsel claim absent a sufficiently developed record to allow the court to make that because it allows typically an opportunity for counsel the counsel whose alleged been ineffective to provide an explanation for decisions that were made in a case like this wh heaviest petition here well but it would leave that would come down rather yes ma'am that's correct but the united states feels that the record is sufficient to allow the court to consider the ineffective assistance of counsel  issue here if it's if it so chooses on appeal mr whalen says that there is no conceivable reason why mr whalen's try counsel trial counsel did or didn't do certain things in essence what it boils down to is a second guessing of the trial council's strategic or tactical decisions one can only try to divine what might have been the reasons for these decisions i think any of us who've tried cases i probably could come up with plausible reasons myself why why mr whalen straub counsel did or did not do certain things i think under strickland it's a very heavy burden to show that the trial counsel failed to meet an objective reasonable new standard and i don't think that there's any by any stretch of the imagination mr whalen has sustained that burden on appeal here well made clear i'm most interested in this tape how how do you justify not letting counsel show to the jury what it took to get this young woman to say that he had actually had inappropriate physical contact with her where your honor that was not the stated purpose for trying to introduce the tape the interview was two and a half hours long and for the court to have allowed that to be played in its entirety obviously would have taken a great deal of the court to use this tape to impeach haley on cross examination now mr whalen on appeal cites the evans case which mr belly was starting to talk about just a minute ago the evans case is distinguish from the case and bar in that in the evans case the reason force for admitting a tape of an interview was not to impeach the victim on cross examination but rather to show that prosecutors improperly coached the witness to testify a certain way that's same thing i think in the sense that there's one person whose credibility is crucial and that's the victim no one else was there besides the defendant in the victim and so ultimately the question is is the victim credible she gets on the stand and she says certain things happen it's one thing to say ok you gave a prior inconsistent statement you've admitted it you're maintaining that it's false but you're also impeaching her when you publish this tape to the jury so they see what was involved in bringing her to the point that she's testifying on the stand it isn't peach when you're showing the jury that what she's saying on the stand is  credible because of these two hour interactions that lead to it your honor there already been testimony to that effect hayley had testified that she started off by giving false information to the to the social worker during the interview and she explained why over time she of she eventually told the truth the social worker also said that initially haley was denying that archie way one had had sexual contact with her but over the span of a couple of hours built reporter and ultimately changed what she was saying so but it impeaches both of them because the question is did she establish me poor or did she browbeat her into a change in her purse her position and one would think that the best evidence is actually watching that interaction to see what was the nature of that interaction your honor district courts enjoy broad latitude in rulings of evidentiary admissibility  in this case judge mckinley felt that the better way of handling the admission of that evidence would be to use specific portions of the videotape in the cross examination of hayley rather than playing the entire thing  she could not they were a lot of it all for accuracy it was a letter your honor so so there was from your perspective would there have been any allegation of undue influence on the part of the social worker or was it merely highly your honor the record shows the defense counsel was trying to admit this tape of the interview to show that hailey was not reliable that her credibility was in question now the district court to try to facilitate the cross examination said i won't let you play the entire tape but i'll let you play excerpts of it defense counsel at trial was not prepared to edit that tape and so that it was suggested that the transcript be used in that certain portions of the transcript so could as the judge i'm going to need a few minutes to a dent in the particular part or could we take a not ask for time to edit the tape what he didn't ask for was time to go through the transcript and mark portions that he thought he wanted to use during cross examination in fact he did take that time and came back and then continued with his cross examination that he didn't have the technological capability to edit the tape right correct or are it was his response wasn't i need that to hold two and a half hours the only way to do this fairly is the whole tune of arrows that was in its response his response was  counsel well he has for time your honor to go through the transcript and mark the parts that he wanted he was given that time he came back and finished this cross examination now what he was doing however was reading most of the transcript in its entirety trying to admit substantive information from that transcript under the guise of an attempt to impeach haley's credibility now what he was doing is is trying to  hearsay and sworn statement of haley during this interview and the united states did object on grounds that it was inadmissible as hearsay it was not being used properly to impeach or he was trying to admit large swaths of the interview transcript rather than being surgical enough to impeach her properly and you talk a little bit about what the law is and other circuits with that whether or not it's error to seems a little hard to argue plain error your honor i do not know what other circuits have held on this issue are there any other questions regarding that issue your honor i have limited time left but going to the court room closure issue clearly that's a waiver he said twice no objection your honor  there was a motion filed prior to trial i think it's speculation to say that he somehow didn't read or understand that and we have no idea what he did or did not discuss with mr whalen and so you know clearly that's that's waived and i don't think it's even reviewable by this court under the a line ok so the u s supreme court alternatively even if it's forfeited going through the olando analysis there was no  by the district court here this was a very narrowly tailored closure of the courtroom it was only during a lease examination and if you take a look at the colloquy leading up to the ruling on the motion to close the courtroom it's pretty apparent that nobody was really in the courtroom anyway at that time the media wasn't there the only people who apparently were in the courtroom at the time were the courtroom personnel the parties and their counsel and the marshals since mr whalen was in you're on it relevant and i well i mean it seems funny to have two cases one in which some people wander  god knows why another case where no one wanders in or was even potentially could wander in and somehow the outcome is different but it is relevant your honor under the old law no analysis first of all this was nearly tailored so there was no error but assuming there was it wasn't plain error and further assuming that it was plain i don't know how anyone could ever bear the burden of proving prejudice here because there's no way of showing well but there would have been closed out not i mean we're not talking here about the rights of the people who were actually in the courtroom or who might have thought to enter the court right during the proceeding even if you know at a later time i mean what we're talking about is the interest in rod correct your honor and so when you start saying nobody was in there any why that made their warning the members of the public who were deprived of the opportunity to do anything they might want to do at least at the time the proceeding began to be held yes your honor but mr whalen's argument on appeal is that by closing out the public he was denied his right to a public trial i don't think he's made any any showing that there would have been anyone in there anyway and under the own law no analysis even if all those elements that we just discussed you have a case that says this point is relevant that  denial faxes to a public trial the question of prejudice whether under a law now or anything else turns on whether there were people that would have otherwise come into the courtroom no your honor i don't have a case to that effect  you have two minutes i'd like to make a few points i think it's important to take into account that these two trial issues that there are you're somewhat intertwined you have a caseworker who's testifying giving her opinions regarding the reasons why this young lady said one thing during most of the interview and then changed her story later ron and then you have a defense attorney who is asking to play the tape for the jury so that the jury can appreciate firsthand exactly what went on so these two issues are related number two there's there was an element of good cop bad cop to the interview what hasn't been mentioned is that there was a local police officer or detective present and defense counsel indicated that this detective officer was trying to trick the young lady  how can we assess this argument to combine if we don't have the tape or the transcript in the quel i think would have been good practice to proffer it but it's my understanding that on cross examination defense counsel doesn't have the obligation to proffer information in that but i agree it would have been i don't i'm not saying one way or the other i'm just saying what do we do it seems really speculative well i mean i think under the evans case  to use the tag yes one of the recent debt yes do you disagree with the answer that counsel gave because judge givens asked what was the purpose for the tape to show that she's unreliable because she had made inconsistent statements previously or was it to show that they browbeat of her into saying this and counsel represented that it was the former not the latter now what's your position i would represent it was both and th are legitimate reasons i agree that they're both legitimate reasons but where they both presented to the court yes so your position is that counsel made that clear to the court you know have a citation to the transcript readily i may make one final point regarding this editing of a tape i've been there and i'm less you as a c g a console have a young tech person and you've coded the transcripts with the counter numbers on the recording equipment bets true but you can also say to the court look i understand what you're saying but i only have this technology the court has the technology and i ask that you facilitate it it's not i mean it's not up to the defendant to provide the technology to present his defense so you you know you you've got it let the court know what you think it ok thank you very much thank you