## 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, AssistantPublic Defender, with him on the briefs), Assistant Public Defender, Albuquer que, New Mexico, for Defendant-Appellant.

Before BRORBY, ANDERSON and HENRY , Circuit Judges.

BRORBY , Circuit Judge.-2-

This appeal of a juvenile delinquency proceeding in volves a single evidentiary issue concerning Federal Rule of Eviden ce 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 const itutional 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 c ompound on the Navajo Reservation in New Mexico. Edward’s two young niec es, who we will refer to as Jane Doe A and Jane Doe B, also lived at the compou nd. 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 si ster found a note written by Jane Doe A stating “I don’t want to be here any mor e, 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 remove d 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 Hoffman1 Rule 803 provides certain exceptions to the hears ay 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 ortreatment. Statements made for purposes of medical diagnosis o r treatment and describing medical history, or past or present symp toms, pain, or sensations, or the inception or general character o f the cause or external source thereof insofar as reasonably perti nent to diagnosis or treatment.

-3- conducted the initial exam, including a medical his tory interview, and Dr. Gillian Mair performed a genital exam on each girl. Pursua nt 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 exami nations, testified Jane Doe A told him Edward touched her in her “private,” point ing toward her vagina, and her “bottom.” Dr. Hoffman went on to describe his enti re interview with Jane Doe A, which included her statements that Edward had force d her to engage in various sexual acts. In a separate interview, Jane Doe B t old Dr. Hoffman the same basic story, which Dr. Hoffman testified included an accu sation 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 testifi ed at trial, admitting he-4-

occasionally struck his nieces, but denying he eversexually 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 foll owing 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 summat ion 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 th e 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 di strict court denied the request for oral summation and overruled Edward’s objection s to Dr. Hoffman’s testimony. Contemporaneously with this order, the district court, issued its verdict in written form finding Edward guilty of al l five counts listed in the2The 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 fe males 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).

-5- indictment. 2 The district court subsequently held a dispositio nal hearing and sentenced Edward to probation until his twenty-firs t birthday. As special conditions of his probation, the district court ord ered 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 hims elf of this right, arguing the district court erred by (1) “admitting into evidenc e the alleged child victims’ statements to a doctor under Federal Rule of Eviden ce 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 w hen it denied his request for oral summation and delivered its verdict in writing.”-6- 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, Edw ard 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 ru le 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 discret ion, 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 i ts discretion in admitting the testimony of Dr. Hoffman under the me dical history hearsay exception of Fed. R. of Evid. 803(4) because the go vernment failed to “establish the children understood the medical importance of t elling the truth” to Dr. Hoffman during the examination. Edward argues with out such evidence the-7-

rationale behind the medical history exception is n o longer applicable. While he concedes we have previously rejected this same argu ment, Edward encourages us to adopt the reasoning of the Eighth Circuit and es tablish a presumption that Rule 803(4) does not apply to statements given by young children to their doctors identifying their abusers unless the physician firs t explains to the child such information is important for their treatment. We d ecline 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 v ictims’ statements to their doctors are admissible only when the prosecution is able to demonstrate that the victim’s motive in making the statement was con sistent with the purpose of promoting treatment – that is, “where th e physician makes clear to the victim that the inquiry into the ident ity of the abuser is important to diagnosis and treatment, and the victi m 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 spec ifically rejected this3 Because we decline to accept the Eighth Circuit’s presumptions, the

government had no burden here to show the girls und erstood 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 und erstand they were seeking medical treatment, or the importance of being truth ful when talking to a doctor. In fact, the evidence in the record is to the contr ary. 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 t heir 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 ex am. 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 C ircuit’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 s tatement he found both girls “very credible.” See Norman T. , 129 F.3d at 1106 n.3.

-8- presumption against admission of hearsay evidence u nder 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 Cou rt 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 afore mentioned events has come to fruition, we reject Edward’s argument and hold the testimony of Dr. Hoffman properly admitted. 34Rule 43 is entitled “Presence of the Defendant,” and states: (a) Presence Required. The defendant shall be pres ent at the arraignment, at the time of the plea, at every stag e 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 Crimi nal Procedure apply to juvenile delinquency proceedings unless they are in consistent with the Federal Juvenile Delinquency Act. See Fed. R. Crim. P. 54(b)(5).

-9- 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 th e Due Process Clause and Federal Rule of Criminal Procedure 43.” 4 In support of this argument, Edward cites cases establishing and applying the well-sett led constitutional right of a criminal defendant to be present during critical st ages of trial. We find Edward’s argument unpersuasive.

We begin with a discussion of the right to be prese nt generally afforded to criminal defendants and the unique character of juv enile proceedings in contrast thereto. In previously examining a criminal defend ant’s due process right to be present at trial, we quoted the Supreme Court in ho lding the right arises-10-

“whenever his presence has a relation, reasonably s ubstantial, to the fulness of his opportunity to defend against the ch arge.... [T]he presence of a defendant is a condition of due proce ss to the extent that a fair and just hearing would be thwarted by h is absence, and to that extent only.” ... [D]ue process does not req uire 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 crimin al defendant has a constitutional right to be present for summations d elivered 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 [Fed eral Juvenile Delinquency] Act results in a civil determination of status rather t han 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 ap proach, recognizing “[l]ittle, indeed, is to be gained by any attempt simplistical ly 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 Sixth5 Edward actually couches his argument in terms of a right to be present at

closing arguments.

-11- Amendment,” it is not “devoid of criminal aspects m erely because it usually has been given the civil label.” McKeiver v. Pennsylvania , 403 U.S. 528, 541 (1971) (quotation marks omitted). Precisely because of th e unique nature of the juvenile court proceeding, the Supreme Court has specificall y refused to hold “all rights constitutionally assured to an adult accused of cri me also are to be enforced or made available to the juvenile in his delinquency p roceeding.” 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 argume nt.

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 a nd attempts to tie them together. Edward first cites Larson for the proposition stated above: a criminal defen dant has a right to be present for summations in a jury trial in order to provide assistance to counsel and exert psychological influ ence on the jury. See Larson , 911 F.2d at 396. He then cites Herring v. New York, 422 U.S. 853 (1975), where-12-

the Supreme Court held a criminal defendant cannot be completely denied the right to present a closing summation in the contextof a bench trial. Id . at 863, 865. Finally, Edward points to a case from the Sec ond 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 summati on at trial.

Edward’s reasoning is unavailing for several reason s. First, we do not accept the Second Circuit’s reasoning in Canadyas applied to juvenile proceedings. While the presence of the defendant d uring 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, Herringis distinguishable. The HerringCourt 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 Herringwhich requires the summations be presented orally to the6The Court did say, in limiting its holding to the facts presented,

“[n]othing said in this opinion is to be understoodas 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.

7Edward 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 acc omplish these goals in the bench trial setting. Edward was present for the on e-day trial and was fully aware of the government’s arguments and theories. In add ition, Edward’s counsel received a copy of the prosecutor’s written summati on, 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 argu ment on appeal. Finally, the danger a trial court might be unfairly swayed by an improper argument is negligible. Judges understand closing arguments ar e not evidence, and are able to sort the wheat from the chaff as far as what is pro per argument.

-13- 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 mig ht 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 applicat ion 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 eviden ce presented at trial. We would perform a disservice to the interests of fair ness and justice if we completely precluded the use of written summations at the close of a criminal bench trial, and instead insisted on oral summation s. 7Third, even if we required oral summations in criminal bench trials, we would need to determine if such a8In his request for oral summation, Edward’s couns el stated he would

submit a final written summation – a promise that w ent 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 dir ected verdict at the close of the government’s case. In addition, Edward did fil e a written Motion for Judgment of Acquittal contemporaneously with his re quest for oral summation.

-14- requirement was necessary in a juvenile trial proce eding. 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 argu ment and actually suggested the argument be in written form: “May we also file wri tten closing arguments, Your Honor, ... I don’t mind if you set a page limit, bu t I would like an opportunity to – ... either orally or written[], do a summation to t he Court.” Two weeks later, when the deadline for the written summations and po st-trial motions arrived, Edward’s counsel filed a request for oral summationinstead. 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 c ourt the same day Edward filed his request. The trial court was ready to review t he summations and make its rulings. “The invited error doctrine prevents a pa rty from inducing action by a court and later seeking reversal on the ground thatthe requested action was
error.” United States v. Johnson , 183 F.3d 1175, 1178 n.2 (10th Cir. 1999). We-15-

hold the district court was under no obligation to rearrange its schedule to accommodate Edward’s belated motion, having alreadygranted his original request for written argument.

2. Written Verdict Whether Edward was entitled to be present at the tr ial court’s rendering of the verdict is a more difficult question. Edward a gain cites Larson and Canadyas 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 requ ire physical presence of a criminal defendant for the rendering of a verdict f ollowing 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. W e decline to do so.

In addition to our earlier-stated reluctance to ado pt the Second Circuit’s reasoning as applied to juvenile proceedings, we have a further reason for not extending Canady . The Second Circuit in Canadyrelied in part on the criminal defendant’s right to an open “public trial” in hold ing the district court erred by-16-

issuing its verdict in written form. Id . at 362-63. As support for its position, the panel stated “[t]here is a distinctly useful purpos e 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 fun ctions.’” 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 t rial.” 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 ju venile 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 incomp atible 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 matterof right, it would bring with it into that system the traditional delay, the formali ty, 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 meticu lously guarded the privacy of the proceedings, presumably to protect Edward’s int erests. When deciding-17-

whether due process requires application of certainconstitutional rights to juvenile proceedings, the Supreme Court has focusedon “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 stan dard 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 accurat e fact-finding”). Given our view of Canadyand 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 presen ce of juvenile defendants for the rendering of the verdict at the close of a bench tr ial.

Again, however, we point out we would affirm the di strict 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 erro rs” 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-represent ation at trial, denial of public trial, and a defective reasonable doubt instruction

. See id. at 8. These errors-18-

affect “the framework within which the trial procee ds, rather than simply ... the trial process itself.” Id. (quotation marks and citation omitted). Failing t o 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 ve hicle for determining guilt or innocence.” Id . at 9. In addition, we have previously applied ha rmless 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 d oubt 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, th e district court explicitly concluded “oral summation would not assist” him in his decision. Second, the district court carefully reviewed the testimony, ma de supportable credibility determinations, and found Edward guilty. The court ’s own conclusion and thorough analysis convinces us the verdict would no t have changed with a theoretical change in method of delivery. Therefor e, we find any perceived error9Rule 43 is also subject to harmless error analysi s. 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 fo r the same reasons detailed above.

-19- harmless. 9

Having reviewed the issues raised on appeal, we dou bt 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 additio n, we hold the district court did not error by admitting the testimony of Dr. Hoffman under Fed. R. Evid. 803(4). Accordingly, we AFFIRM

.