F I L E D

United States Court of Appeals

Tenth Circuit

SEP 15 2000

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EDWARD J., a juvenile,

Defendant-Appellant.

No. 99-2315

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. CR-99-61-JP)

Jason Bowles (Norman C. Bay, United States Attorney, with him on the brief),

Assistant United States Attorney, Albuquerque, New Mexico, for PlaintiffAppellee.

Richard A. Winterbottom (John V. Butcher, Assistant Public Defender, with him

on the briefs), Assistant Public Defender, Albuquerque, New Mexico, for

Defendant-Appellant.

Before BRORBY, ANDERSON and HENRY, Circuit Judges.

BRORBY, Circuit Judge.
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This appeal of a juvenile delinquency proceeding involves a single

evidentiary issue concerning Federal Rule of Evidence 803(4), and the more

complicated question of whether the district court erred by receiving closing

arguments and issuing its verdict in written form. We exercise our jurisdiction

under 28 U.S.C. § 1291. While we examine the constitutional arguments

presented, we ultimately affirm the district court because any perceived error was

either harmless or invited.

I. BACKGROUND

Edward J. is a juvenile who lived in his family’s compound on the Navajo

Reservation in New Mexico. Edward’s two young nieces, who we will refer to as

Jane Doe A and Jane Doe B, also lived at the compound. During the summer of

1998, Edward was nearly sixteen years old, Jane Doe A was ten years old, and

Jane Doe B was eight. In June of 1998, Edward’s sister found a note written by

Jane Doe A stating “I don’t want to be here any more, because I hate it when

Edward touches me.” Edward’s sister discussed the accusation with Jane Doe A

and then contacted local social workers, who removed the girls from the family

compound and took them to a medical center for a physical examination.

Two doctors examined and interviewed the girls. Dr. Benjamin Hoffman
1

 Rule 803 provides certain exceptions to the hearsay rule, and states in

relevant part:

The following are not excluded by the hearsay rule, even

though the declarant is available as a witness:

....

(4) Statements for purposes of medical diagnosis or treatment. 

Statements made for purposes of medical diagnosis or treatment and

describing medical history, or past or present symptoms, pain, or

sensations, or the inception or general character of the cause or

external source thereof insofar as reasonably pertinent to diagnosis or

treatment.

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conducted the initial exam, including a medical history interview, and Dr. Gillian

Mair performed a genital exam on each girl. Pursuant to Federal Rule of

Evidence 803(4),1 the district court allowed Dr. Hoffman to testify regarding

statements the girls made to him during the examinations. Dr. Hoffman, referring

to the medical reports he made the day of the examinations, testified Jane Doe A

told him Edward touched her in her “private,” pointing toward her vagina, and her

“bottom.” Dr. Hoffman went on to describe his entire interview with Jane Doe A,

which included her statements that Edward had forced her to engage in various

sexual acts. In a separate interview, Jane Doe B told Dr. Hoffman the same basic

story, which Dr. Hoffman testified included an accusation that Edward “takes off

my clothes and gets on top of me.” At trial, both girls testified consistently with

their comments to Dr. Hoffman. Edward also testified at trial, admitting he
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occasionally struck his nieces, but denying he ever sexually abused them.

At the close of evidence, the district court asked for additional briefing on

the admissibility of the two medical reports which contained the girls’ statements

to Dr. Hoffman. Edward’s counsel then had the following exchange with the

district court:

COUNSEL: May we also file written closing arguments, Your

Honor, on June 12th or – I don’t mind if you set a page limit, but I

would like an opportunity to –

THE COURT: That’s fine.

COUNSEL: – either orally or written[], do a summation to the

Court.

THE COURT: That’s fine. You may do that in writing.

COUNSEL: Thank you, Your Honor.

THE COURT: By July 12 [1999].

The parties submitted their written arguments on the admissibility of Dr.

Hoffman’s testimony and medical reports on July 16, 1999. The government filed

its written summation on the same day, while Edward’s counsel filed a request for

oral summation instead. In a written order, the district court denied the request

for oral summation and overruled Edward’s objections to Dr. Hoffman’s

testimony. Contemporaneously with this order, the district court, issued its

verdict in written form finding Edward guilty of all five counts listed in the
2

 The indictment charged Edward with five separate violations of the

Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031 to 5037, by engaging in, or

attempting to engage in, sexual acts with Indian females under the age of twelve. 

See 18 U.S.C. § 1153; 18 U.S.C. § 2241(c); 18 U.S.C. §§ 2246(2)(A), (B), (D).

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indictment.2 The district court subsequently held a dispositional hearing and

sentenced Edward to probation until his twenty-first birthday. As special

conditions of his probation, the district court ordered Edward to spend at least six

months in a youth detention center, followed by up to a year in a transitional

youth center, prior to his return to the community. The district court also ordered

Edward to pay restitution in the amount of $560.05.

Prior to ending the dispositional hearing, the district court notified Edward

of his right to appeal. Edward timely availed himself of this right, arguing the

district court erred by (1) “admitting into evidence the alleged child victims’

statements to a doctor under Federal Rule of Evidence 803(4) without proof that

each of the statements was made with the children’s understanding of the medical

significance of being truthful,” and (2) “depriving the defendant of his right to be

present at all critical stages of the bench trial when it denied his request for oral

summation and delivered its verdict in writing.”
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II. STANDARD OF REVIEW

Whether the district court’s refusal to grant oral summation violated

Edward’s due process rights is a legal question we review de novo. See Larson v.

Tansy, 911 F.2d 392, 394 (10th Cir. 1990). However, Edward did not object to,

or otherwise raise the issue of, the district court’s issuance of a written verdict

prior to the current appeal. Therefore, our review of this issue is for plain error,

although we do not rigidly apply the plain error rule in this instance because the

appeal raises constitutional issues. See United States v. Santiago, 977 F.2d 517,

521-22 (10th Cir. 1992). We review evidentiary rulings for abuse of discretion,

and “[o]ur review of decisions admitting statements contested as hearsay is

especially deferential.” United States v. Norman T., 129 F.3d 1099, 1105 (10th

Cir. 1997), cert. denied, 523 U.S. 1031 (1988).

III. DISCUSSION

A. Admission of Statements Made to Dr. Hoffman

Edward argues on appeal the district court abused its discretion in

admitting the testimony of Dr. Hoffman under the medical history hearsay

exception of Fed. R. of Evid. 803(4) because the government failed to “establish

the children understood the medical importance of telling the truth” to Dr.

Hoffman during the examination. Edward argues without such evidence the
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rationale behind the medical history exception is no longer applicable. While he

concedes we have previously rejected this same argument, Edward encourages us

to adopt the reasoning of the Eighth Circuit and establish a presumption that Rule

803(4) does not apply to statements given by young children to their doctors

identifying their abusers unless the physician first explains to the child such

information is important for their treatment. We decline to do so.

“The rationale behind the Rule 803(4) exception is that because a patient's

medical care depends on the accuracy of the information she provides, the patient

has a selfish motive to be truthful; consequently, a patient's statements to her

physician are likely to be particularly reliable.” United States v. Pacheco, 154

F.3d 1236, 1240 (10th Cir. 1998), cert. denied, 525 U.S. 1112 (1999). The Eighth

Circuit has held young children do not necessarily understand the medical

importance of being truthful, and therefore young victims’ statements to their

doctors

are admissible only when the prosecution is able to demonstrate that

the victim’s motive in making the statement was consistent with the

purpose of promoting treatment – that is, “where the physician makes

clear to the victim that the inquiry into the identity of the abuser is

important to diagnosis and treatment, and the victim manifests such

an understanding.”

Olesen v. Class, 164 F.3d 1096, 1098 (8th Cir. 1999) (quoting United States v.

Renville, 779 F.2d 430, 438 (8th Cir. 1985)). We have specifically rejected this
3

 Because we decline to accept the Eighth Circuit’s presumptions, the

government had no burden here to show the girls understood the medical

importance of telling the truth. Moreover, Edward fails to point to any evidence

in the record tending to show the girls did not understand they were seeking

medical treatment, or the importance of being truthful when talking to a doctor. 

In fact, the evidence in the record is to the contrary. The girls were eight and ten

years old at the time of the examination, and both had been to the medical clinic

on numerous occasions. As the district court noted, both girls were significantly

older and more likely to understand the import of their statements than the fiveyear-old victim in Norman. 129 F.3d at 1105. Both girls were mature enough to

request that a female doctor perform the genital exam. Furthermore, the girls

testified at trial and Edward’s counsel had a full opportunity to subject them to

cross-examination. Even if we adopted the Eighth Circuit’s reasoning, we would

hold admission of Dr. Hoffman’s testimony harmless given the nature of the girls’

trial testimony and the district court’s specific statement he found both girls “very

credible.” See Norman T., 129 F.3d at 1106 n.3.

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presumption against admission of hearsay evidence under the Rule 803(4)

exception in the case of children. See Pacheco, 154 F.3d at 1240-42; Norman T.,

129 F.3d at 1105-06. “Under the doctrine of stare decisis, this panel cannot

overturn the decision of another panel of this court” barring en banc

reconsideration, a superseding contrary Supreme Court decision, or authorization

of all currently active judges on the court. United States v. Meyers, 200 F.3d 715,

720-21 (10th Cir. 2000). Because none of the aforementioned events has come to

fruition, we reject Edward’s argument and hold the testimony of Dr. Hoffman

properly admitted.3
4

 Rule 43 is entitled “Presence of the Defendant,” and states:

(a) Presence Required. The defendant shall be present at the

arraignment, at the time of the plea, at every stage of the trial

including the impaneling of the jury and the return of the verdict, and

at the imposition of sentence, except as otherwise provided by this

rule.

Fed. R. Crim. P. 43(a). The Federal Rules of Criminal Procedure apply to

juvenile delinquency proceedings unless they are inconsistent with the Federal

Juvenile Delinquency Act. See Fed. R. Crim. P. 54(b)(5).

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B. Propriety of Written Summation and Delivery of the Verdict

Edward next requests a new trial, arguing that “[b]y conducting the closing

argument and verdict stage of the trial in writing, the trial court prejudicially

deprived Edward of his right to be present under the Due Process Clause and

Federal Rule of Criminal Procedure 43.”4 In support of this argument, Edward

cites cases establishing and applying the well-settled constitutional right of a

criminal defendant to be present during critical stages of trial. We find Edward’s

argument unpersuasive.

We begin with a discussion of the right to be present generally afforded to

criminal defendants and the unique character of juvenile proceedings in contrast

thereto. In previously examining a criminal defendant’s due process right to be

present at trial, we quoted the Supreme Court in holding the right arises
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“whenever his presence has a relation, reasonably substantial, to the

fulness of his opportunity to defend against the charge.... [T]he

presence of a defendant is a condition of due process to the extent

that a fair and just hearing would be thwarted by his absence, and to

that extent only.” ... [D]ue process does not require the defendant’s

presence “when [his] presence would be useless, or the benefit but a

shadow.”

Larson, 911 F.2d at 394 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-108

(1934)). Employing this standard, we held a criminal defendant has a

constitutional right to be present for summations delivered at a jury trial. See id.;

Burrell v. Aaron, 560 F.2d 988, 989 (10th Cir. 1977), cert. denied, 434 U.S. 1018

(1978).

However, unlike the situation in Larson, this is not a criminal proceeding,

but a juvenile matter. As Edward’s counsel pointed out at the dispositional

hearing, “[a] successful prosecution under the [Federal Juvenile Delinquency] Act

results in a civil determination of status rather than a felony or misdemeanor

conviction.” United States v. Sealed Appellant, 123 F.3d 232, 233 (5th Cir.

1997). Accord United States v. Brian N., 900 F.2d 218, 220 (10th Cir. 1990). 

The Supreme Court has taken a slightly different approach, recognizing “[l]ittle,

indeed, is to be gained by any attempt simplistically to call the juvenile court

proceeding either civil or criminal,” because while the proceeding “has not yet

been held to be a criminal prosecution[] within the meaning and reach of the Sixth
5

 Edward actually couches his argument in terms of a right to be present at

closing arguments.

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Amendment,” it is not “devoid of criminal aspects merely because it usually has

been given the civil label.” McKeiver v. Pennsylvania, 403 U.S. 528, 541 (1971)

(quotation marks omitted). Precisely because of the unique nature of the juvenile

court proceeding, the Supreme Court has specifically refused to hold “all rights

constitutionally assured to an adult accused of crime also are to be enforced or

made available to the juvenile in his delinquency proceeding.” Id. at 533. “[T]he

Due Process Clause has a role to play,” see In re Gault, 387 U.S. 1, 13 (1967), in

juvenile trial proceedings, and the standard we use to measure the extent of that

role is one of fundamental fairness. McKeiver, 403 U.S. at 543. Bearing this in

mind, we carefully examine Edward’s two-part argument.

1. Written Statement

Edward first argues he had a right to present oral summation.5 In support

of his position, he cites several unrelated cases and attempts to tie them together. 

Edward first cites Larson for the proposition stated above: a criminal defendant

has a right to be present for summations in a jury trial in order to provide

assistance to counsel and exert psychological influence on the jury. See Larson,

911 F.2d at 396. He then cites Herring v. New York, 422 U.S. 853 (1975), where
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the Supreme Court held a criminal defendant cannot be completely denied the

right to present a closing summation in the context of a bench trial. Id. at 863,

865. Finally, Edward points to a case from the Second Circuit that held the

psychological impact a defendant has on the jury is equally applicable when the

fact finder is the court itself. See United States v. Canady, 126 F.3d 352, 362 (2d

Cir. 1997), cert. denied, 522 U.S. 1134 (1998). Therefore, Edward reasons, he

had a constitutional right to offer an oral summation at trial.

Edward’s reasoning is unavailing for several reasons. First, we do not

accept the Second Circuit’s reasoning in Canady as applied to juvenile

proceedings. While the presence of the defendant during closing arguments may

exert a psychological influence on a jury, we find the likelihood of such an impact

on a district judge in a juvenile proceeding to be minimal. Second, Herring is

distinguishable. The Herring Court confronted a situation where the trial court

completely foreclosed the defendant from presenting a summation, and the

Court’s decision was grounded in the Sixth Amendment right to counsel, not the

Due Process Clause right to be present. Herring, 422 U.S. at 856-57. We find

nothing in Herring which requires the summations be presented orally to the
6

 The Court did say, in limiting its holding to the facts presented,

“[n]othing said in this opinion is to be understood as implying the existence of a

constitutional right to oral argument at any other stage of the trial or appellate

process.” Herring, 422 U.S. at 863 n.13.

7

 Edward argues oral summation is necessary because “he wanted to be

present to hear the case argued and to object to any improper closing by the

government.” Oral argument is not necessary to accomplish these goals in the

bench trial setting. Edward was present for the one-day trial and was fully aware

of the government’s arguments and theories. In addition, Edward’s counsel

received a copy of the prosecutor’s written summation, so he could determine if

the prosecutor made objectionable statements to the court. He made no objections

in this case, nor did he point to any improper argument on appeal. Finally, the

danger a trial court might be unfairly swayed by an improper argument is

negligible. Judges understand closing arguments are not evidence, and are able to

sort the wheat from the chaff as far as what is proper argument.

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court.6 See United States v. Stenzel, 49 F.3d 658, 662 n.2 (10th Cir.), cert.

denied, 516 U.S. 840 (1995) (noting written summation might have precluded

appeal on issue of whether district court had duty to inquire if counsel desired to

make closing arguments). Proper adjudication of a case often demands careful

reflection on the facts presented, and the application of those facts to the law. 

Written summations are a helpful tool for the trial court in accomplishing what

can be a complicated task of sorting through evidence presented at trial. We

would perform a disservice to the interests of fairness and justice if we

completely precluded the use of written summations at the close of a criminal

bench trial, and instead insisted on oral summations.7 Third, even if we required

oral summations in criminal bench trials, we would need to determine if such a
8

 In his request for oral summation, Edward’s counsel stated he would

submit a final written summation – a promise that went unfulfilled. We also note

the trial court was fully aware of Edward’s defense theory because the court heard

arguments on Edward’s motions for acquittal and directed verdict at the close of

the government’s case. In addition, Edward did file a written Motion for

Judgment of Acquittal contemporaneously with his request for oral summation.

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requirement was necessary in a juvenile trial proceeding. However, we do not

need to make that determination here because Edward invited any perceived error.

As recounted earlier, at the close of trial Edward’s counsel asked the trial

court for the opportunity to present a closing argument and actually suggested the

argument be in written form: “May we also file written closing arguments, Your

Honor, ... I don’t mind if you set a page limit, but I would like an opportunity to –

... either orally or written[], do a summation to the Court.” Two weeks later,

when the deadline for the written summations and post-trial motions arrived,

Edward’s counsel filed a request for oral summation instead.8 However, at this

point the trial court had mulled the case over for days. The government prepared

its written summation and filed it with the trial court the same day Edward filed

his request. The trial court was ready to review the summations and make its

rulings. “The invited error doctrine prevents a party from inducing action by a

court and later seeking reversal on the ground that the requested action was

error.” United States v. Johnson, 183 F.3d 1175, 1178 n.2 (10th Cir. 1999). We
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hold the district court was under no obligation to rearrange its schedule to

accommodate Edward’s belated motion, having already granted his original

request for written argument.

2. Written Verdict

Whether Edward was entitled to be present at the trial court’s rendering of

the verdict is a more difficult question. Edward again cites Larson and Canady as

supporting his position. In Larson, we held a criminal defendant has a due

process right to be present for the rendition of a jury verdict, citing the same

opportunity to assist counsel and influence the jury as mentioned in the closing

argument context discussed above. See Larson, 911 F.2d at 395-96. The Second

Circuit extended our logic one step further to require physical presence of a

criminal defendant for the rendering of a verdict following a bench trial. See

Canady, 126 F.3d at 361-62. Edward invites us to extend the logic further yet,

and require the presence of juvenile defendants. We decline to do so.

In addition to our earlier-stated reluctance to adopt the Second Circuit’s

reasoning as applied to juvenile proceedings, we have a further reason for not

extending Canady. The Second Circuit in Canady relied in part on the criminal

defendant’s right to an open “public trial” in holding the district court erred by
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issuing its verdict in written form. Id. at 362-63. As support for its position, the

panel stated “[t]here is a distinctly useful purpose in ensuring that the

pronouncement of the defendant's guilt or innocence by the court is both

face-to-face and public. It assures that the trial court is ‘keenly alive to a sense of

its responsibility and to the importance of its functions.’” Id. at 361 (quoting

Waller v. Georgia, 467 U.S. 39, 46 (1984)) (alterations omitted). Waller is a case

devoted to the Sixth Amendment right to a “public trial.” Waller, 467 U.S. at 43-

44. In relying on Walker, Edward fails to appreciate the difference between a

criminal trial and a juvenile proceeding.

We have not extended the “public trial” right to juvenile defendants. In

McKeiver, the Supreme Court seemed to express disdain for the idea when it held

the right to a jury trial did not apply to juvenile proceedings. The Court clearly

insinuated the “public trial” right would be incompatible with the traditional

nature of the juvenile proceeding when it stated: “[I]f the jury trial were to be

injected into the juvenile court system as a matter of right, it would bring with it

into that system the traditional delay, the formality, and the clamor of the

adversary system and, possibly, the public trial.” McKeiver, 403 U.S. at 550. 

Indeed, in Edward’s case, the district court meticulously guarded the privacy of

the proceedings, presumably to protect Edward’s interests. When deciding
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whether due process requires application of certain constitutional rights to

juvenile proceedings, the Supreme Court has focused on “fundamental fairness”

with an emphasis on fact-finding procedures. See McKeiver, 403 U.S. at 543

(stating emphasis on fact-finding led to applying “[t]he requirements of notice,

counsel, confrontation, cross-examination, and standard of proof” to the juvenile

setting, but rejecting right to jury trial because “one cannot say that in our legal

system the jury is a necessary component of accurate fact-finding”). Given our

view of Canady and the Supreme Court’s emphasis on applying those rights

related to fact-finding to juvenile proceedings, we see no justification for

adopting a constitutional rule requiring the presence of juvenile defendants for the

rendering of the verdict at the close of a bench trial.

Again, however, we point out we would affirm the district court regardless

of our determination of the constitutional question because any perceived error in

not reading the verdict in open court was harmless. In so holding, we note all but

a “limited class of fundamental constitutional errors” are subject to harmless error

analysis. Neder v. United States, 527 U.S. 1, 7-8 (1999). That limited class

includes a complete denial of counsel, biased trial judge, racial discrimination in

selection of grand juries, denial of self-representation at trial, denial of public

trial, and a defective reasonable doubt instruction. See id. at 8. These errors
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affect “the framework within which the trial proceeds, rather than simply ... the

trial process itself.” Id. (quotation marks and citation omitted). Failing to

announce the verdict in a juvenile court proceeding hardly rises to the level of the

structural errors listed above because it does not necessarily render “the

proceeding fundamentally unfair or an unreliable vehicle for determining guilt or

innocence.” Id. at 9. In addition, we have previously applied harmless error

analysis to the deprivation of a criminal defendant’s right to be present at

rendition of the verdict. See Larson, 911 F.2d at 396.

When we apply harmless error analysis, we require “the beneficiary of a

constitutional error to prove beyond a reasonable doubt that the error complained

of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S.

18, 24 (1967), quoted in Neder, 527 U.S. at 15. We are confident the district

court’s verdict was not impacted by the fact it was issued in written form, and not

read in open court in Edward’s presence. First, the district court explicitly

concluded “oral summation would not assist” him in his decision. Second, the

district court carefully reviewed the testimony, made supportable credibility

determinations, and found Edward guilty. The court’s own conclusion and

thorough analysis convinces us the verdict would not have changed with a

theoretical change in method of delivery. Therefore, we find any perceived error
9

 Rule 43 is also subject to harmless error analysis. See Rogers v. United

States, 422 U.S. 35, 40 (1975); Santiago, 977 F.2d at 521 n.5. Therefore, we

affirm despite any possible violation of Rule 43 for the same reasons detailed

above.

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harmless.9

Having reviewed the issues raised on appeal, we doubt the sagacity of

Edward’s constitutional and Rule 43 arguments as outlined in our discussion. 

However, we dispose of these issues on alternative grounds because any potential

errors were either invited or harmless. In addition, we hold the district court did

not error by admitting the testimony of Dr. Hoffman under Fed. R. Evid. 803(4). 

Accordingly, we AFFIRM.