FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TIMOTHY YAZZIE,

Defendant-Appellant.

No. 12-10165

D.C. No.

3:11-cr-08086-

NVW-1

Appeal from the United States District Court

for the District of Arizona

Neil V. Wake, District Judge, Presiding

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SHONNIE SHIDALE GEORGE, AKA

Shonnie George,

Defendant-Appellant.

No. 12-10326

D.C.

No. 3:11-cr08082-GMS-1

OPINION

Appeal from the United States District Court

for the District of Arizona

G. Murray Snow, District Judge, Presiding
2 UNITED STATES V. YAZZIE

Argued and Submitted

November 5, 2013—San Francisco, California

Filed February 27, 2014

Before: Jerome Farris, Ferdinand F. Fernandez,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

SUMMARY*

Criminal Law

Affirming two defendants’ convictions for aggravated

sexual abuse of a minor, the panel held that the district court

did not violate the defendants’ Sixth Amendment rights to a

public trial when it closed the courtroom while the child

victims were testifying.

The panel also held that the closure of Yazzie’s trial did

not violate the requirements of 18 U.S.C. § 3509(e), which

permits a closed courtroom during the testimony of a child

witness.

The panel concluded that Yazzie’s multiple convictions

under 18 U.S.C. § 2241(c) for discrete sexual acts that

occurred during one sexual encounter with the victim do not

violate the Double Jeopardy Clause.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. YAZZIE 3

COUNSEL

Michael J. Bresnehan, Law Offices of Michael J. Bresnehan,

Tempe, Arizona, for Defendant-Appellant Timothy Yazzie,

12-10165.

Keith J. Hilzendeger (argued), Research and Writing

Specialist; Jon M. Sands, Federal Public Defender, Office of

the Federal Public Defender, Phoenix, Arizona, for

Defendant-Appellant Shonnie Shidale George, 12-10326.

Karla Hotis Delord (argued), Assistant United States

Attorney; John S. Leonardo, United States Attorney; Mark S.

Kokanovich, Deputy Appellate Chief, United States

Attorneys’ Office, Phoenix, Arizona, for Plaintiff-Appellee

United States of America, 12-10165.

Cassie BrayWoo (argued), Assistant United States Attorney;

John S. Leonardo, United States Attorney; Mark S.

Kokanovich, Deputy Appellate Chief, United States

Attorneys’ Office, Phoenix, Arizona, for Plaintiff-Appellee

United States of America, 12-10326.

OPINION

IKUTA, Circuit Judge:

In this consolidated opinion we consider claims by

Shonnie Shidale George and Timothy Yazzie, both of whom

were on trial for sexual abuse with children, that their Sixth

Amendment rights to a public trial were violated when the

district court closed the courtroom while the child victims

were testifying. We have jurisdiction pursuant to 28 U.S.C.
4 UNITED STATES V. YAZZIE

§ 1291 and affirm the district court. Applying the test set out

in Waller v. Georgia, 467 U.S. 39 (1984), we conclude the

closures did not violate the defendants’ constitutional rights. 

We also conclude that the closure at Yazzie’s trial did not

violate the statutory provision permitting a closed courtroom

during the testimony of a child witness, see 18 U.S.C.

§ 3509(e). Finally, we conclude that Yazzie’s multiple

convictions under 18 U.S.C. § 2241(c) for discrete sexual acts

that occurred during one sexual encounter with the victim do

not violate the Double Jeopardy Clause.1

I

A

George lived on the Navajo reservation in Arizona at the

home of his aunt, Mrs. Pauline Mann. Several of Mrs.

Mann’s grandchildren (George’s younger cousins) also lived

on the Mann property or within walking distance. George’s

alleged victims were his four younger cousins: John Doe S.A.

(age six), Jane Doe N.T. (age five), Jane Doe S.A. (age four),

and Jane Doe O.A. (age eight).

In June 2007, Mrs. Mann’s stepson Cody Thomas heard

a “scream, like a cry” coming from the outhouse on the

property. Thomas opened the door and saw George’s sixyear-old cousin, John Doe S.A., “bent over the toilet seat with

[George] behind him.” Both George and John Doe S.A. had

their pants pulled down. According to John Doe S.A.,

George penetrated him anally. John Doe S.A.’s mother called

the police and took her son for a medical examination, but

1

In a separately filed unpublished disposition we address Yazzie’s

remaining arguments.
UNITED STATES V. YAZZIE 5

apparently no additional investigation of the incident was

completed until three years later when George again molested

two of his younger relatives.

On December 3, 2010, George’s younger cousins Jane

Doe S.A. and Jane Doe N.T., then 4 and 5 years old, were

playing beside a parked car on Mrs. Mann’s property. 

George pulled down his and the children’s pants, had them

bend over, and penetrated each of them beside the car. 

Although George instructed the children not to tell anyone

what had happened, Jane Doe N.T. told her mother shortly

thereafter and received medical treatment for a urinary tract

infection. Because the medical examination revealed

evidence of sexual assault, Jane Doe N.T. also underwent a

forensic examination. Medical personnel contacted the

police. All four children were interviewed at the Flagstaff

Medical Center Child Safe Center in December 2010.2

The United States indicted George in the District of

Arizona on April 12, 2011 on five counts of sexual abuse,

pursuant to 18 U.S.C. § 2241(c), and two counts of abusive

sexual contact, pursuant to 18 U.S.C. § 2244(a). Five of the

counts contained in the indictment involved the 2007 incident

in the outhouse and the 2010 incident beside the parked car.

Prior to trial, the government moved to close the

courtroom during each child’s testimony, pursuant to

2 Because George was not convicted of the charges involving Jane Doe

O.A., we do not discuss the allegations underlying those charges.
6 UNITED STATES V. YAZZIE

18 U.S.C. § 3509(e).3 The government argued that closure

was necessaryto avoid intimidating the children, which might

result in incomplete testimony or preclude their testimony

altogether. The government noted that the children were

young (one child was five, another was six) and the ten-yearold boy was mentally slow. The children would be called

upon to testify about difficult and traumatic events. Family

members for both the victims and defendant might attend the

trial, which could cause the victims to experience shyness,

shame, and embarrassment. Further, the victims might be

intimidated by the large courtroom, strange faces on a jury, a

judge who sits above them, and attorneys asking them

intimate questions. The government argued that closure was

the “least restrictive method of child witness protection”

available, because alternatives such as a two-way closed

circuit television or videotaped depositions require closer

judicial scrutiny, see 18 U.S.C. § 3509(b). The government

submitted the videotaped forensic interviews of the children

at the Flagstaff Medical Center Child Safe Center for the

court’s review.

 

3

 Section 3509(e) provides:

Closing the courtroom.—When a child testifies the

court may order the exclusion from the courtroom of all

persons, including members of the press, who do not

have a direct interest in the case. Such an order may be

made if the court determines on the record that

requiring the child to testify in open court would cause

substantial psychological harm to the child or would

result in the child’s inability to effectively

communicate. Such an order shall be narrowly tailored

to serve the Government’sspecific compelling interest.
UNITED STATES V. YAZZIE 7

George opposed the motion and requested an evidentiary

hearing. In his opposition, George stated that his primary

concern was the closure’s “potential to unduly and unfairly

prejudice” him by suggesting to the jury that the children

needed protection.

At the December 12, 2011 final pretrial conference, the

parties reiterated their positions. At the request of the district

court, the government confirmed that its closure motion was

based on the concern that an open courtroom would prevent

the children from communicating effectively, and not on the

concern that it would cause the children psychological harm. 

Defense counsel reiterated the concern that a closed

courtroom “would affect the presumption of innocence.” 

After hearing from the parties, the court explained the

procedure it would follow before ruling on the closure

motion. The court would first view the children’s videotaped

interviews in advance of trial, and then interview each child

on the stand (out of the jury’s view). Based on this additional

information, the court would determine whether closure was

necessary. The government opposed this procedure based on

its view that the children would be more intimidated by the

judge’s questioning than by taking the stand. In response, the

district court adopted a revised procedure. It stated that it

would view the children’s interviews and determine if the

videotapes provided a sufficient basis to close the courtroom

for one or more witnesses. If the court determined that the

interviews did not establish a basis for closure, the court

would deny the closure motion without prejudice to the

government moving again for closure during the course of

questioning at trial.

After reviewing the videotaped interviews, the court

granted the government’s motion. The court noted that Jane
8 UNITED STATES V. YAZZIE

Doe N.T. and Jane Doe S.A. (who were then five and six

years old) were “very, very young,” and John Does S.A., who

was then ten years old, had “some cognitive impairments.” 

The oldest girl, Jane Doe O.A., who was then twelve years

old, while “articulate and mature for her age, is nonetheless

a fairly young person.” While all of the children mentioned

“extreme family tensions and divisions and anger,” Jane Doe

O.A. “was the one who, it seems . . . more than others,

seemed to be focused on the family difficulties that this case

has caused, and the anger.” Accordingly, the court ruled it

would close the courtroom for all four children.

After making this ruling, the court stated that it would

address the defendant’s concern about undue prejudice. At

the court’s suggestion, the government agreed to call each

victim near a time when the court would ordinarily take a

break and clear the courtroom, then bring the jury back in to

hear the victims’ testimony without notifying the jury that the

courtroom had been closed. This approach would “help

alleviate any concern that the jury might be informed that this

is a closed setting.” In response to this discussion, defense

counsel stated, “That’s fine.”

On January 5, 2012, on the first day of testimony before

the jury was seated, the district court asked the government

to confirm the procedure for closing the courtroom. The

government stated that after the first adult witness was

finished testifying, it would “ask to take a break” and “as

soon as we are on that break, we should have a note that the

courtroom is sealed at this time for this part of the testimony

and have the courtroom locked.” Later that day, John Doe

S.A. testified about the day George molested him in the

outhouse. Jane Doe N.T. then testified that George had

molested her and Jane Doe S.A. by the parked car. The
UNITED STATES V. YAZZIE 9

following morning, while the jury was excused from the

courtroom, the district court ordered the courtroom closed. 

When the jury returned to their seats, Jane Doe S.A. provided

similar testimony. Jane Doe O.A. also testified that

afternoon.

The jury convicted George on four counts of aggravated

sexual abuse, and acquitted him of the remaining charges. 

The district court subsequently sentenced George to four

concurrent 30-year terms of imprisonment as well as a

lifetime of supervised release.

B

Timothy Yazzie lived on the Navajo reservation in

Arizona where he cohabited with his girlfriend Sandra and

her children from prior relationships. After Sandra’s

fourteen-year-old daughter R.J. told a school official that

Yazzie had molested her, the school alerted the authorities,

and R.J. was examined by a nurse practitioner and

interviewed at the Flagstaff Medical Center Child Safe Center

on April 8, 2011. In a videotaped interview, R.J. stated that

Yazzie had forced her to engage in sexual intercourse on

numerous occasions since she was thirteen years old. R.J.

described in detail the first and last times Yazzie had sex with

her. R.J. also told the interviewer about other abusive acts:

she stated that Yazzie had hit and threatened to kill her

mother, yelled at R.J., and whipped her and her siblings with

a stick. Law enforcement agents subsequently searched

Yazzie’s residence and arrested him. In an interview with

FBI Agent James Kraus, Yazzie admitted to having regularly

engaged in sexual intercourse with R.J. over the course of

eight months.
10 UNITED STATES V. YAZZIE

A superseding indictment charged Yazzie with three

counts of aggravated sexual abuse of a minor in violation of

18 U.S.C. §§ 2241(c) and 2246. The first count alleged that

on or between January 1, 2010 and October 1, 2010, Yazzie

engaged in a sexual act with R.J., involving “contact between

the defendant’s penis and the victim’s vulva.” R.J. referred

to this incident as the “first time.” The second count alleged

that on or between March 1, 2011 and April 4, 2011, Yazzie

engaged in a sexual act with R.J., involving “contact between

the defendant’s penis and the victim’s vulva.” The third

count alleged that on or between March 1, 2011 and April 4,

2011, Yazzie engaged in a sexual act with R.J., involving

“intentional touching, not through the clothing, of the

victim’s genitalia with the defendant’s hand, with an intent to

abuse, humiliate, harass and degrade the victim and arouse

and gratify the sexual desire of the defendant.” The sexual

acts detailed in the second and third counts were both alleged

to have occurred during “the ‘last time’ as described by” R.J. 

Despite his earlier admission to the federal agent, Yazzie

pleaded not guilty to all charges.

The government filed a pretrial motion to close the

courtroom during R.J.’s testimony. The government stated

that R.J. was “reluctant to discuss the sexual abuse” during

her forensic interview, even though the only other person in

the room was the interviewer. During a subsequent interview

with two attorneys, an FBI Agent, and a victim witness

advocate, R.J. “cried for the majority of the interview.” 

Because R.J. “has difficultyeffectivelycommunicating about

her sexual abuse in small intimate settings,” the government

argued that she “would have even greater difficulty

communicating in a large courtroom filled with spectators.” 

Therefore, the government asserted that “[w]ithout the

protections afforded under Title 18 U.S.C. § 3509, the child
UNITED STATES V. YAZZIE 11

victim . . . will likely be intimidated by the process and the

environment, such that the result may be an incomplete

testimony or an outright failure to testify.” Yazzie opposed

the motion.

The court granted the government’s motion in a written

order. Having viewed R.J.’s April 2011 forensic interview

and “considering her age, maturity, and obvious discomfort

when answering questions about the alleged sexual abuse,”

the court concluded that requiring R.J. “to testify in an open

courtroom would likely cause [her] psychological harm and

would result in [her] inability to effectively communicate.” 

The court found that during R.J.’s interview she “was

visibl[y] uncomfortable during the questioning and often

retreated when asked difficult questions regarding the sexual

abuse.” Because she showed discomfort and difficulty

communicating with only one other person present, the court

concluded that “it is natural to presume that such discomfort

would only be exacerbated in [a] more public setting.” The

court stated that closing the courtroom during R.J.’s

testimony in this manner was a “less extreme alternative than

other options for protecting the child witness, such as having

the child witness’s testimony conducted by closed circuit

television.” The order nevertheless gave individuals who

wished to remain in the courtroom during the testimony the

opportunity to present an argument for doing so.

At trial, R.J. testified regarding the “first time” and the

“last time” that Yazzie forced her to engage in sexual

intercourse. She stated that Yazzie threatened to kill R.J.’s

mother if R.J. told her about his abuse. R.J. also stated that

Yazzie showed her pornography, but described it as people

having “S-E-X” because (she explained) it was difficult for

her to say the word “sex” in the courtroom. She also
12 UNITED STATES V. YAZZIE

mentioned that Yazzie had threatened R.J.’s siblings with a

sword, and hit her and her siblings with a stick.

At the end of the trial, the jury returned a guilty verdict on

all three counts in the superseding indictment. Thereafter, the

district court sentenced Yazzie to 420 months of

imprisonment for each count, to be served concurrently, as

well as a lifetime of supervised release.

II

George and Yazzie argue that closing the courtroom

during the children’s testimonies violated their Sixth

Amendment rights to a public trial. Yazzie also maintains

that the closure failed to comply with the requirements set out

in 18 U.S.C. § 3509(e).

The Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right to a speedy and

public trial . . . .” U.S. Const. amend. VI. “Essentially, the

public-trial guarantee embodies a view of human nature, true

as a general rule, that judges, lawyers, witnesses, and jurors

will perform their respective functions more responsibly in an

open court than in secret proceedings.” Waller v. Georgia,

467 U.S. 39, 46 n.4 (1984) (quoting Estes v. Texas, 381 U.S.

532, 588 (1965) (Harlan, J., concurring)).

The Sixth Amendment requirement of a public trial “is for

the benefit the accused.” Id. at 46 (internal quotation marks

omitted). The interests of the defendant are protected because

the public will see that the defendant “is fairly dealt with and

not unjustly condemned” and the “presence of interested

spectators may keep his triers keenly alive to a sense of their

responsibility and to the importance of their functions.” Id.
UNITED STATES V. YAZZIE 13

(internal quotation marks omitted). Further, a public trial will

ensure that the “judge and prosecutor carry out their duties

responsibly,” and also “encourages witnesses to come

forward and discourages perjury.” Id.; see also United States

v. Rivera, 682 F.3d 1223, 1228 (9th Cir. 2012). In addition

to a defendant’s Sixth Amendment right, the press and public

have an implicit First Amendment right of access to criminal

trials, Waller, 467 U.S. at 46; Richmond Newspapers, Inc. v.

Virginia, 448 U.S. 555, 580 (1980), which allows citizens to

exercise their constitutionally protected right to discuss

governmental affairs in an informed manner. Globe

Newspaper Co. v. Superior Court, 457 U.S. 596, 604–05

(1982).

Although the right to a public trial is protected by the

First Amendment and Sixth Amendment, it is not absolute. 

Id. at 606. In the First Amendment context, the Court held

that “[t]he presumption of openness may be overcome only

by an overriding interest based on findings that closure is

essential to preserve higher values and is narrowly tailored to

serve that interest.” Press-Enterprise Co. v. Superior Court,

464 U.S. 501, 510 (1984). The court must articulate the

interest at stake “along with findings specific enough that a

reviewing court can determine whether the closure order was

properly entered.” Id.

In applying the Press-Enterprise test to a defendant’s

Sixth Amendment challenge to a courtroom closure, the

Court identified four separate factors. First, “the party

seeking to close the hearing must advance an overriding

interest that is likely to be prejudiced.” Waller, 467 U.S. at

48. The Supreme Court has recognized that “the physical and

psychological well-being of a minor” is a compelling higher

value that can justify a closure. Globe, 457 U.S. at 607–08;
14 UNITED STATES V. YAZZIE

see also Press-Enterprise Co. v. Superior Court, 478 U.S. 1,

9 n.2 (1986); Charboneau v. United States, 702 F.3d 1132,

1138 (8th Cir. 2013); Bell v. Jarvis, 236 F.3d 149, 168 (4th

Cir. 2000) (concluding that the “state demonstrated an

over-riding, compelling interest in protecting a child victim

from the embarrassment and trauma associated with relating

the details of multiple rapes and sexual molestation by a

family member”). We have held that ensuring a child

victim’s ability to effectively communicate is also a

compelling higher value that can justify a closure. See Geise

v. United States, 262 F.2d 151, 156–57 (9th Cir. 1958)

(holding that an Alaska state court did not abuse its discretion

in closing the courtroom during a rape victim’s testimony “in

view of the tender years of the prosecutrix . . . and the

difficulty of obtaining [her] testimony before a large

audience.”).

Second, Waller held that “the closure must be no broader

than necessary to protect that interest” of overriding

importance. 467 U.S. at 48. Waller held that the closure of

an entire seven-day suppression hearing to protect the privacy

of uncharged individuals whose voices had been intercepted

on a two-and-a-half hour wiretap was overbroad. Id. at

48–49. Although protecting the uncharged parties’ privacy

interest could justify closing portions of a suppression

hearing to the general public, the state had to explain the

extent to which closure was necessary to protect these

interests. Id. A closure that is more narrowly tailored to the

interest at stake may pass constitutional muster however. For

instance, a temporary closure of a courtroom during the

testimony of a rape victim is narrowly tailored where the

purpose is to protect the victim from harm. See Bell,

236 F.3d at 169.
UNITED STATES V. YAZZIE 15

Third, Waller held that “the trial court must consider

reasonable alternatives to closing the proceeding.” 467 U.S.

at 48. Waller faulted the trial court for failing to consider

whether it could close only those parts of a hearing that

jeopardized the privacy interests of the uncharged individuals

whose conversation had been intercepted by the wire taps. Id.

at 48–49. “[T]rial courts are required to consider alternatives

to closure even when they are not offered by the parties.” 

Presley v. Georgia, 558 U.S. 209, 214 (2010); see also United

States v. Sherlock, 962 F.2d 1349, 1359 (9th Cir. 1992).

Finally, the trial court “must make findings adequate to

support the closure.” Waller, 467 U.S. at 48. The court must

identify “the particular interest, and threat to that interest . . .

along with findings specific enough that a reviewing court

can determine whether the closure order was properly

entered.” Presley, 558 U.S. at 215 (internal quotation marks

omitted). Conclusory statements do not suffice. Id. at 216;

see also United States v. Waters, 627 F.3d 345, 361 (9th Cir.

2010) (deeming insufficient a district court’s statement that

the hearing would be closed “‘because that’s the type of

hearing it is’”). In order for the findings to be adequate, the

district court must generally hold a hearing on a closure

motion or otherwise give the defendant the opportunity to

contest the closure motion. Sherlock, 962 F.2d at 1358.

These four Waller factors must be considered on a caseby-case basis, because even a compelling interest such as

“safeguarding the physical and psychological well-being of

a minor” cannot “justify a mandatory closure rule.” Globe,

457 U.S. at 607–08 (emphasis omitted). Rather, a court must

consider the “circumstances of the particular case,” such as

“the minor victim’s age, psychological maturity and

understanding, the nature of the crime, the desires of the
16 UNITED STATES V. YAZZIE

victim, and the interests of parents and relatives,” because

these factors may affect the significance of the interest. Id.4

In addition to these constitutional requirements, Congress

has given a federal district court statutory authorization to

close a courtroom during the testimony of a minor witness “if

the court determines on the record that requiring the child to

testify in open court would cause substantial psychological

harm to the child or would result in the child’s inability to

effectively communicate.” See 18 U.S.C. § 3509(e). The

order must “be narrowly tailored to serve the Government’s

specific compelling interest.” Id.

III

We now apply this legal framework to George and

Yazzie’s claims. We review George and Yazzie’s Sixth

Amendment claims de novo. United States v. Ivester,

316 F.3d 955, 958 (9th Cir. 2003). We review the district

court’s factual findings for clear error. See United States v.

4

 Partial closure of a courtroom has a reduced impact on a defendant’s

rights. Therefore, a trial court ordering such a partial closure need provide

only a “substantial reason” for the closure as opposed to an “overriding

interest.” Sherlock, 962 F.2d at 1357. We deem a closure to be partial

when specified individuals are excluded, rather than the public as a whole. 

See id. (applying partial closure standard where family members of the

defendant were excluded); see also Judd v. Haley, 250 F.3d 1308, 1315

(11th Cir. 2001). The government asserts that this less onerous standard

applies to both George and Yazzie, because in both cases the court

allowed some individuals to remain in the courtroom during the victims’

testimonies. We need not decide this issue here, because we resolve

George and Yazzie’s argument that the district court erred in closing the

courtroom on different grounds. See Rivera, 682 F.3d at 1236 (declining

to decide whether closure was partial or total because it violated

defendant’s Sixth Amendment right under either standard).
UNITED STATES V. YAZZIE 17

Mendoza, 530 F.3d 758, 762 (9th Cir. 2008). We review the

district court’s interpretation of a statute de novo, see United

States v. Banks, 556 F.3d 967, 972 (9th Cir. 2009), and

review the court’s application of the statute to the facts for

abuse of discretion, Advanced Micro Devices, Inc. v. Intel

Corp., 292 F.3d 664, 666 (9th Cir. 2002), aff’d, 542 U.S. 241

(2004).

A

We begin by considering George’s claim that the closure

of the courtroom during the four children’s testimonies

violated his Sixth Amendment right to a public trial. We

disagree, because the district court adequately complied with

the four factors set out in Waller.

5

First, the district court properly determined that there was

“an overriding interest that is likely to be prejudiced.” 

Waller, 467 U.S. at 48. Specifically, it found that the

children’s abilities to effectively communicate their stories at

trial would be adversely affected absent closure of the

courtroom. See Geise, 262 F.2d at 156–57. In reaching this

conclusion, the court noted the children’s youth, the mental

difficulties of one of the children, and the family tensions

arising from George being a relative of the victims, all of

which had the potential to impact the children’s testimony.

Second, the closure was narrowly tailored to the asserted

interest because the district court closed the courtroom only

when the child victims took the stand. Unlike the situation in

Waller, where the trial court closed the courtroom for the

 

5 Because George does not allege that the closures violated § 3509(e),

we do not reach this issue in his case.
18 UNITED STATES V. YAZZIE

entire seven-day suppression hearing without considering the

specific need for privacy, here all portions of the trial other

than the minor witnesses’ testimonywere public. Further, the

district court orchestrated the closures around breaks in the

proceedings to address George’s specific concern that the

closures would prejudice him by affecting the presumption of

innocence in the eyes of the jury.

On appeal, George argues that because the clerk’s

minutes and trial transcripts do not indicate precisely when

the courtroom was opened and closed, the courtroom might

have remained closed after the children were through

testifying. Though we review for plain error because George

did not raise this objection at trial, see United States v.

Withers, 638 F.3d 1055, 1065 n.4 (9th Cir. 2010), this

argument fails under any standard of review. Even now,

George does not allege that the courtroom was closed after

the children had left the witness stand. In the absence of

evidence in the record, or even any allegation by defense

counsel, we presume that the district court followed the law,

see United States v. Segal, 549 F.2d 1293, 1296 (9th Cir.

1977), and implemented its own order to close the courtroom

only when the children were testifying.

Third, the district court considered reasonable alternatives

to closure. The district court held that it would have denied

the closure motion without prejudice to renewal at trial had

the videotaped interviews been insufficient to establish a

basis upon which to close the courtroom. The district court

also indicated that it would make a determination about the

need for closure individually as to each child witness, and

that its ruling “could be different with respect to each one.”
UNITED STATES V. YAZZIE 19

George now contends that the court should have also

considered alternatives to live in-court testimony, such as

testimony via a two-way closed circuit television or

videotaped depositions. We disagree. While a court must

“consider alternatives to closure even when they are not

offered by the parties,” Presley, 558 U.S. at 214, Waller

makes clear that trial courts need consider only “reasonable

alternatives” that are more narrowly tailored and more

protective of constitutional rights than the closure advocated

by the government. For instance, instead of closing an entire

hearing, a trial court should consider the reasonable

alternative of “closing only those parts of the hearing that

jeopardized the interests advanced,” Waller, 467 U.S. at 48. 

Similarly, instead of excluding the public from a voir dire of

prospective jurors, the trial court should have adopted the

reasonable alternative of finding additional space in the

courtroom to accommodate members of the public who

wished to attend. Presley, 558 U.S. at 215. But a district

court need not sua sponte consider alternatives that would

potentially have a significant impact on the defendant’s

constitutional right to a fair trial and substantially alter the

nature of the proceedings. See Ayala v. Speckard, 131 F.3d

62, 72 (2d Cir. 1997) (“Even if Waller requires a trial judge

to consider alternatives to complete closure, we do not

believe that the Supreme Court wanted trial judges selecting

the alternative of limited closure to consider further

alternatives that themselves pose substantial risks to a fair

trial for the defendant.”). Here, a two-way closed circuit

television or videotaped depositions, such as George now

recommends, would materially change the nature of the

proceedings. These alternatives prohibit face-to-face

confrontation during cross-examination and raise substantial

Confrontation Clause issues. See Maryland v. Craig,

497 U.S. 836, 856–57 (1990); United States v. Miguel,
20 UNITED STATES V. YAZZIE

111 F.3d 666, 671 (9th Cir. 1997). In the absence of any

request by George, the district court’s failure to address sua

sponte alternatives that raise significant additional

constitutional concerns did not violate George’s Sixth

Amendment rights.6

Finally, the district court made adequate findings to

support the closure. Before ruling on the government’s order,

the district court confirmed that the basis of the government’s

motion was its concern that an open courtroom would

preclude the children from communicating effectively. The

court’s subsequent findings, after reviewing the videotaped

interviews, were relevant to this specific issue. Although the

district court did not expressly state that closure was

necessary to facilitate the children’s testimony, its findings

are clear in context. See Sherlock, 962 F.2d at 1359 (noting

the court’s findings were sufficient to allow the reviewing

court to “conclude there was a substantial reason to close the

proceedings”); see also United States v. Farmer, 32 F.3d 369,

371 (8th Cir. 1994) (holding that “specific findings by the

district court are not necessary if we can glean sufficient

support for a partial temporary closure from the record.”). 

The court afforded George an opportunity to be heard at the

final pretrial conference, and he did not challenge the

government’s articulation of its overriding concern. 

Therefore, the district court’s on-the-record findings were

sufficient.

Because the court’s rulings complied with the factors set

forth in Waller, we conclude the court closure during the

6 Moreover, the government’s reply brief in support of its § 3509(e)

motion mentioned these alternatives, and thus the district court implicitly

rejected them in ordering a temporary closure of the courtroom.
UNITED STATES V. YAZZIE 21

children’s testimonies did not violate George’s Sixth

Amendment right to a public trial.

B

We next consider Yazzie’s claim that the district court’s

order to close the courtroom during R.J.’s testimony violated

his Sixth Amendment right to a public trial. This claim

likewise fails, because the district court’s order carefully

addressed each of the Waller factors.

First, the district court identified overriding interests that

would be prejudiced absent a temporary closure of the

courtroom and concluded that requiringR.J. to testify in open

court “would likely cause [her] psychological harm and

would result in [her] inability to effectively communicate.” 

See Globe, 457 U.S. at 607–08; Geise, 262 F.2d at 156–57.

Second, the court’s closure order was narrowly tailored to

address those interests. The court ordered that the courtroom

be closed only during R.J.’s testimony. Moreover, the court

stated that it would allow any spectator, whether a member of

the media, public, or family or friends of the defendant or the

child witness, “the opportunity to articulate a sufficient

interest in remaining in the courtroom during the child

witness’s testimony,” and would individually determine

whether to allow such spectator to remain in the courtroom.

The court also considered reasonable alternatives, stating

that its limited closure order was “a less extreme alternative

than other options for protecting the child witness, such as

having the child witness’s testimony conducted by closed

circuit television.”
22 UNITED STATES V. YAZZIE

Finally, the court made findings that sufficiently

identified the particular interest at stake and the threat to that

interest. After giving Yazzie the opportunity to be heard, the

court noted the government’s testimony regarding R.J.’s

anxiety and its concern that the presence of defendant’s

family members would have a chilling effect on her

testimony. Further, the court stated that it had independently

reviewed the videotape of an interview with R.J., and reached

a similar conclusion. These findings provide ample support

for the court’s determination that closing the courtroom was

justified to protect R.J.’s psychological well being and ability

to communicate effectively.

Yazzie claims the district court’s methodology for

determining the strength of the asserted interests was not

sufficiently rigorous. According to Yazzie, the district court

erred in relying on the prosecutor’s statements and its review

of a seven-month-old video. Instead, Yazzie contends that

the court should have had the child evaluated by a behavioral

scientist, appointed a guardian ad litem, or observed the child

in person, prior to making its determination. We disagree. 

The court made reasonable determinations based on its

review of the videotape, the government’s assertions, and its

commonsense understanding that child victims may have

difficulty testifying about sexual abuse in a public setting

where the defendant’s friends and family are present. While

a court may consider expert testimony on a child’s

psychological well-being or ability to testify, it is not

constitutionally required to do so. Moreover, although the

court gave Yazzie an opportunity to be heard, he did not raise

this issue to the district court or explain his reasons for

believing that such additional investigation was justified in

this particular case. Accordingly, the district court did not

commit error, let alone plain error, in not requiring this
UNITED STATES V. YAZZIE 23

additional information. See Globe, 457 U.S. at 608 (noting

that the trial court must determine on a “case-by-case basis”

whether closure is necessaryand listing several factors for the

court’s consideration (emphasis added)).7 For these reasons,

we conclude that the court closure did not violate Yazzie’s

Sixth Amendment right to a public trial.

C

Yazzie also maintains that the district court’s closure

order violated the requirements set out in 18 U.S.C.

§ 3509(e). Yazzie first contends that the court violated

§ 3509(e) by failing to follow the procedures set forth in

§ 3509(g) and (h) or by failing to hold a hearing to examine

the child witness. Again, we disagree.

Section 3509 makes available a range of procedures to

protect the rights of child victims and witnesses. In addition

to authorizing closure of the courtroom, id. § 3509(e), the

statute authorizes courts to protect children from testifying in

open court under certain circumstances by allowing them to

testify via two-way closed circuit television or videotaped

depositions, id. § 3509(b). Section 3509 also authorizes a

court to work with a “multidisciplinary child abuse team”

established by state and local governments to assist child

victims and witnesses. Id. § 3509(g). These teams provide

expert services to a child, including medical evaluations

7 Yazzie points to R.J.’s testimony on the stand that she was “feeling

happy” the day of trial and defense counsel’s observation that R.J.

“seemed far more composed [at trial] than one would have predicted by

listening to the prosecutor’s pretrial assessment of R.J.” But we must

evaluate the reasonableness ofthe court’s conclusion at the time it ordered

the closure, and cannot rely on hindsight based on events that occurred

during the trial.
24 UNITED STATES V. YAZZIE

related to abuse or neglect and psychological and psychiatric

diagnoses. Id. The court is also authorized to appoint a

guardian ad litem “to protect the best interests of the child”

and “make recommendations to the court concerning the

welfare of the child.” Id. § 3509(h).

By its terms, § 3509(e) does not require the court to hear

testimony from the child, a guardian ad litem, or expert, prior

to deciding a closure motion. While § 3509(g) and (h)

authorize the court to use experts and guardians ad litem to

further the interests of the child, neither of these provisions

limit or condition the court’s authority under § 3509(e). 

Indeed, Congress required expert testimony in only one

limited circumstance. When a court orders that a child’s

testimony be taken by two-way closed circuit television, the

order must be supported by the court’s finding that the child

is unable to testify in open court in the presence of the

defendant for any one of four reasons. Id. § 3509(b)(1)(B). 

Only one of these four reasons requires an expert: the court’s

finding that “[t]here is a substantial likelihood, established by

expert testimony, that the child would suffer emotional

trauma from testifying.” Id. § 3509(b)(1)(B)(ii) (emphasis

added). Because Congress knew how to impose a

requirement that the court obtain expert testimony, and

enacted such a requirement in one limited circumstance, the

absence of any similar language in § 3509(e) underscores our

determination that it imposes no similar requirement.

Finally, Yazzie argues that the court erred by excluding

family members of the defendant under § 3509(e), which

allows a district court to exclude only those persons “who do

not have a direct interest in the case.” Yazzie claims that his

family members have a direct interest in his case, and

therefore should not have been excluded. We reject this
UNITED STATES V. YAZZIE 25

argument. While family members of the victim or defendant

may have a more intense personal interest in a case than

members of the general public, they do not have a direct

interest in a criminal case as do the defendant and the

government, and their attorneys at trial. The statute does not

require a court to evaluate the level of concern a member of

the public (whether a member of the media or a family

member) may have regarding the outcome of a particular

trial. Indeed, Yazzie’s argument that a defendant’s family

members cannot be excluded from a trial is contrary to the

protective goals of § 3509, because child victims and

witnesses are often most intimidated by the defendant’s

family members among the spectators. See, e.g., Sherlock,

962 F.2d at 1359 (affirming exclusion during rape victim’s

testimony of defendant’s family members who “peered and

giggled” at the witnesses); United States v. Osborne, 68 F.3d

94, 97 (5th Cir. 1995); cf. Woods v. Kuhlmann, 977 F.2d 74,

77 (2d Cir. 1992); Nieto v. Sullivan, 879 F.2d 743, 753–54

(10th Cir. 1989).

Accordingly, we conclude that Yazzie’s statutory

argument is also without merit and that the district court’s

closure order did not violate § 3509(e).

IV

Finally, we turn to Yazzie’s argument that his convictions

on the second and third counts alleged in the indictment

violate the Double Jeopardy Clause. Yazzie asserts that the

conduct alleged in the second count, a sexual act with R.J.

involving “contact between the defendant’s penis and the

victim’s vulva,” and the conduct alleged in the third count, a

sexual act with R.J. involving “intentional touching, not

through the clothing, of the victim’s genitalia with the
26 UNITED STATES V. YAZZIE

defendant’s hand” both occurred during the incident that R.J.

termed the “last time,” and therefore impose multiple

criminal punishments for the same offense.

Because Yazzie failed to raise this claim to the district

court, we review for plain error. United States v. Sykes,

658 F.3d 1140, 1149 (9th Cir. 2011). “Under the plain error

standard, we will affirm . . . unless: (1) there has been an

error in the proceedings below; (2) that error was plain; (3) it

affected substantial rights; and (4) it seriously affected the

fairness, integrity, or public reputation of judicial

proceedings.” United States v. Davenport, 519 F.3d 940, 943

(9th Cir. 2008).8

The Double Jeopardy Clause of the Fifth Amendment

states: “[N]or shall any person be subject for the same offense

to be twice put in jeopardy of life or limb . . . .” U.S. Const.,

amend. V. “[S]ince Congress has full authority to define

distinct offenses and to prescribe punishments for those

offenses, ‘the question of what punishments are

constitutionally permissible is not different from the question

of what punishments the Legislative Branch intended to be

imposed.’” United States v. Wolfswinkel, 44 F.3d 782, 784

(9th Cir. 1995) (quoting Albernaz v. United States, 450 U.S.

333, 344 (1981)). “If Congress enacts statutes that indicate

an intent to impose separate punishments, those statutes

define separate offenses, and the punishments do not violate

the Constitution.” Id. Once Congress has defined an offense

in a statute, we must determine the “allowable unit of

8 Although Yazzie is concurrently serving the sentences imposed for

these convictions, the issue is not moot because the potential collateral

consequences of an additional conviction affect substantial rights. See

Davenport, 519 F.3d at 947.
UNITED STATES V. YAZZIE 27

prosecution” defined byCongress. United States v. Universal

C.I.T. Credit Corp., 344 U.S. 218, 221 (1952). The issue is

therefore one of statutory construction. See Bell v. United

States, 349 U.S. 81, 81, 83–84 (1955); see also Sanabria v.

United States, 437 U.S. 54, 69–70 (1978).

Accordingly, we begin with the text of 18 U.S.C.

§ 2241(c), the statute of conviction, which provides:

Whoever . . . knowingly engages in a sexual

act with another person who has not attained

the age of 12 years, or knowingly engages in

a sexual act under the circumstances described

in subsections (a) and (b) with another person

who has attained the age of 12 years but has

not attained the age of 16 years (and is at least

4 years younger than the person so engaging),

or attempts to do so, shall be fined under this

title and imprisoned for not less than 30 years

or for life.

18 U.S.C. § 2241(c) (emphasis added). The term “sexual act”

is defined in a separate provision as:

(A) contact between the penis and the vulva or

the penis and the anus, and for purposes of

this subparagraph contact involving the penis

occurs upon penetration, however, slight;

(B) contact between the mouth and the penis,

the mouth and the vulva, or the mouth and the

anus;
28 UNITED STATES V. YAZZIE

(C) the penetration, however slight, of the

anal or genital opening of another by a hand

or finger or by any object, with an intent to

abuse, humiliate, harass, degrade, or arouse or

gratify the sexual desire of any person; or

(D) the intentional touching, not through the

clothing, of the genitalia of another person

who has not attained the age of 16 years with

an intent to abuse, humiliate, harass, degrade,

or arouse or gratify the sexual desire of any

person[.]

18 U.S.C. § 2246(2).

Because § 2241(c) makes it unlawful to engage in a

“sexual act,” and § 2246(2) defines “sexual act” as any one of

four specific actions, we conclude that the “allowable unit of

prosecution” intended by Congress is each individual sexual

act listed in § 2246(2). Although Congress could have

defined “sexual act” to mean a single sexual encounter

involving one or more of the actions listed in § 2246(2),

Congress chose not to do so, and instead made each type of

conduct listed in § 2246(2) a separate “sexual act”

criminalized by § 2241(c). Because Congress’s intent is the

touchstone for determining the scope of protection afforded

by the Double JeopardyClause, we conclude that each sexual

act listed in § 2246(2) constitutes a separate violation of

§ 2241(c). Therefore, a defendant can be convicted of

multiple violations of § 2241(c) for performing multiple

listed sexual acts without violating the Double Jeopardy

Clause’s protection against multiple punishments for the

same offense, even if the defendant performed those sexual

acts in the course of a single sexual encounter. In reaching
UNITED STATES V. YAZZIE 29

this conclusion, we join the only other circuit to have

considered this issue. See United States v. Two Elk, 526 F.3d

890, 898–99 (8th Cir. 2008) (holding that § 2241(c) punishes

separate acts, not a single course of conduct).

In light of this analysis, Yazzie’s convictions under the

second and third counts in the superseding indictment do not

raise double jeopardy concerns. Although the conduct

described in those counts both occurred during “the last time”

as described by R.J., each count alleges a separate sexual act

that is listed in § 2246(2). We conclude there was no

error—much less plain error—in allowing both convictions

on Count II and Count III to stand.

While Yazzie concedes that § 2241(c), when read in

conjunction with § 2246(2), allows separate punishments for

each act set forth in § 2246(2), he argues that Congress did

not intend that a defendant be punished for two sexual acts in

circumstances where the first is “merely incidental” to the

second. This argument is meritless, because in determining

whether a conviction imposes multiple criminal punishments

for the same offense, we look only to Congressional intent,

not to whether one offense was incidental to another.9 As the

Supreme Court has explained, “[i]n determining the

permissibility of the imposition of cumulative punishment for

the crime of rape and the crime of unintentional killing in the

course of rape,” the “dispositive question was whether

Congress intended to authorize separate punishments for the

two crimes.” Albernaz, 450 U.S. at 344 (internal quotation

9 For the same reason we reject Yazzie’s contention that “R.J.’s

testimony left entirely open the question of whether the act described in

count three was a necessary or functional part of the act described in count

two.”
30 UNITED STATES V. YAZZIE

marks omitted); cf. Rhoden v. Rowland, 10 F.3d 1457, 1461

(9th Cir. 1993) (“[I]t is well settled that a single transaction

can give rise to distinct offenses under separate statutes

without violating the Double Jeopardy Clause.” (internal

quotation marks omitted)). We rejected a similar argument

raised by a habeas petitioner convicted of both the sexual act

of digital penetration and the act of intercourse. Rhoden,

10 F.3d at 1461–62. Although the petitioner argued that

because “the digital penetration was incidental to the act of

intercourse” it could not “constitutionally be punished as a

separate crime,” we concluded that the two offenses were

separate under California law, and therefore the conviction on

both offenses did not give rise to any Double Jeopardy

concern. Id.

AFFIRMED.