F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

T I M O T H Y Y A

Z Z I E , Defendant-Appellant

. N o. 12-10165

D.C. No. 3:11-cr-08086- NVW -1

A ppeal from the United States District Court for the District of Ariz o na N eil V. W a k e , District J udg e, Presiding

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

S H O N N I E S H I D A L E G E O R

G E , AKA Shonnie Georg e,

Defendant-Appellant

. N o. 12-10326

D.C.No. 3:11-cr08082-GMS-1

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na G. Murray Snow, District J u dg e, PresidingU N I T E D S T A T E S V

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Arg ued and Submitted November 5, 2013—San F rancisco, California

F iled F ebruary

27, 2014

B e fore: J erome F arris, F erdinand F . F ernandez
, and Sandra S. I kuta, Circuit J udg es.
Opinion by J udg e I k

uta

SUMMARY *

Crim inal Law

Affi r m i ng two defendants’ convictions for ag g ravated

sex ual abuse of a minor, the p anel held that the district court did n ot violate the defendants’ Six th Amendment rig hts to a public trial w hen it closed the courtroom while the ch i ld victims were testify

ing

.

The panel also held that the closure of Yaz z ie’s t r i a l did
not violate the requirements of 1 8 U.S.C. § 3509( e )
, which permits a closed courtroom during the testimony o f a child witness.

The panel concluded that Yaz zie’s multiple convictions

u n d er 18 U.S.C. § 2241(c) for discrete sex ual acts t h at occurred d

uring one sex ual encounter with the v ictim do not violate the Double J eopardy Clause.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

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COUNSEL

Michael J

. B resnehan, L aw Offices of Michael J

. B resnehan, Tempe, Ariz ona, for De fe ndant-Appellant Timothy Yaz z ie, 12-10165.

Keith J

. Hilz endeg er (arg ued), Research and W riting Specialist; J on M. Sands, F ederal Public Defender, O ffice o f the F ederal Public Defender, Phoenix
, Ariz o na, for Defendant-Appellant Shonnie Shidale Georg e , 12-10326.

Karla Hotis Delord (arg ued), Assistant United States Attorney ; J ohn S. L eonardo, United States Attorney ; Mark S. Kokanovich, Deputy Appellate Chief, United States Attorney s’ Office, Phoenix
, Ariz ona, for Plaintiff-App e l l ee United States of America, 12-10165.

Cassie B ray Woo (arg

ued), Assistant United States Attorney ; J ohn S

. L eonardo, U nited States A ttorney ; Mark S. Kokanovich, Deputy Appellate Chief, United States Attorney s’ Office, Phoenix
, Ariz ona, f o r Plaintiff-Appellee United States of America, 12-10326.

OP INION

I KUTA, Circuit J udg e:

I n this consolidated opinion we consider cla i ms b y Shonnie Shidale Georg e and Timothy Yaz z ie, both of whom

were on trial for sex ual abuse with c h ildren, that their Six th A m e n d ment rig hts to a p ublic trial were violated w h en the distric t c o urt closed the courtroom while the child v ictims

were testify ing

. W e have jurisdiction pursuant to 28 U .S.C.U N I T E D S T A T E S V

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Z Z I E 4

§ 1291 a nd affirm the district court. Apply ing the test set out in W a ller v. Georgia
, 4 6 7 U

. S. 39 ( 1984), w e conclude the closures did not v iolate the defendants’ constitutional rig hts. W e also conclude that the c l osure at Yaz z ie’s trial did not violate the statutory p rovision permitting a closed courtroom during the testimony of a child w itness, see 18 U .S.C. § 3509(e). F inally
, we conclude that Yaz z ie’s multiple convictions under 18 U.S.C. § 2 241(c) f or discrete sex ual acts that occurred during one sex ual encounter with the victim do not violate the Double J eopardy Clause. 1

I

A

Georg e lived on the N avajo r eservation in Ariz ona at the home of his aunt, Mrs. Pauline Mann. S e v e r al of Mrs. Mann’s g randchildren ( Georg e ’s y oung er cousins) also lived

on the Mann property o r within walking distance. Georg e’s alleg ed v ictims were h is four y oung e r cousins: J ohn Doe S.A. (ag e six ), J ane Doe N.T. ( ag e five), J ane Doe S.A. (ag e four), and J ane Doe O.A. (ag e eig ht).

I n J u ne 2007, Mrs. Mann’s stepson Cod y T h omas heard

a “scream, like a c r

y ” coming from t h e outhouse on the property

. Thomas open e d t he door a nd saw Georg e’s six

y ear-old cousin, J ohn Doe S.A., “bent o ver the toilet seat with [ Georg e] behind him.” B oth Georg e a nd J ohn Doe S.A. h ad their pants pulled down. According to J ohn Doe S.A., Georg e penetrated him anally

. J ohn Doe S.A.’s mother called the p olice and took her son for a medical ex amination, but

1 In a sep arat e l y f

i led u n p u b lish ed d isp o sitio n w e ad d ress Yazzie’ s

rem ain i n g arg u m en ts.U N I T E D S T A T E S V

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a p p arently no additional investig ation of the incident wa s completed until three y ears later when Georg e ag ain molested two of his y oung er relatives.

On December 3
, 2010, Georg e ’ s y oung er cousins J ane D o e S

. A. a

nd J ane Doe N.T., then 4 and 5 y e ars old, were play ing beside a parked car on Mrs. M a n n ’s property

. Georg e pulled down his and t h e children’s pants, had them bend over, and penetrated each o f t h e m beside the car. Althoug h Georg e instructed the children not to t e l l any o ne what had happen e d
, J an e Doe N .T. told her mother shortly thereafter and received medical treatment f o r a urinary tract i n fection. B ecause the medical e x amination revea l e d evidence of sex ual assault, J ane Doe N.T. al s o u nderwent a forensic ex aminatio n

. Medical personnel contacted the
po l ice. All four children were interviewed at the F lag staff Medical Center Child Safe Center in December 2010. 2

The United S t ates indicted Georg e in the District o f Ariz ona on A pril 12, 2011 on five count s o f sex u al abuse, pursuant to 18 U.S.C. § 2241(c), and two counts of abusive

sex ual contact, pursuant to 18 U.S.C. § 2244(a). F ive of the
counts contained in the indictment involved the 2007 incident in the o uthouse and the 2010 incident beside the parked car.

Prior to trial, the g over n m e n t moved to close the
courtroom during each child’s testimony
, pursua n t t o

2 B ecau se Geo rg e w as n o t co n v icted of th e ch arg es in v o l v in g J an e Do e O.A ., w e d o n o t d iscu ss th e alleg atio n s u n d erly in g th o se ch arg es.U N I T E D S T A T E S V

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18 U.S.C. § 3509(e). 3 The g overnme n t a r g ued that closure

was n ecessary to avoid intimidating the children, which mig ht

r esult in incomplete testimony or preclude their testim o n y altog ether. The g overnment noted that the childre n w e re y oung (one child was f

ive, another was six ) and the ten-y earo l d boy was mentally slow. The children would be called
upon to testify a b o u t difficult and traumatic events. F amily members for both the victims a nd d efendant mig ht a ttend the trial, which c o uld cause the victims to ex perience shy ness, shame, and e m b a r rassment. F urther, the victims mig ht be intimidated by the larg e courtroom, strang e faces on a jury
, a judg e who sits above them, and attorne y s asking them intimate questions. The g overnment arg ued that closure was the “least restrictive method of child witne s s p rotection” available, because alternatives such as a two-way closed circuit television or videotaped depositions requir e closer judicial scrutiny
, see 18 U.S.C. § 3509(b). The government submitted the videotaped forensic interviews of the children
at the F lag staff Medical Center Child S a f e Center for the court’s review.

3 Sectio n 3 5 0 9 (e) p ro v i d es:

Clo sing the co urtro o m
. —W h en a ch ild testif ies th e

co u rt m ay o rd er t

h e ex clu s io n f

ro m th e co u rtro o m o f all
p erso n s , in clu d i n g m em

b ers o f th e press, w

h o d o n o t h av e a d irect in terest in th e case. Su ch an o rd er m ay b e

m ad e if th e co u rt d e t e rm in es o n t h e reco rd th at req u i rin g th e ch i ld to testif y in o p en co u rt w o u ld cau s e

s u b s t an tial p sy ch o lo g ical h arm to th e ch ild o r w o u ld

r e su l t i n t h e c h i l d ’s i n ab ility to ef f ec t i ve l y

co m m u n icate. Su ch an o rd er sh all b e n arro w ly tailo red
to serv e t h e Go v ern m en t’ s sp ecif

ic co m p ellin g in terest.U N I T E D S T A T E S V

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Georg e opposed the motion a nd requested an evidentiary hearing

. I n his opposition, George stated that his primary

concern w as the closure’s “pote n t i al to unduly and unfairly
p r e j udice” him by sug g esting to the jury that the chil d r e n needed protection.

At the December 12, 2011 final pretrial conference, the parties reiterated their positions. At the r equest of the district court, the g o vernment confirmed that its closure motion was based on the concern that an open courtroom would prevent the children from c ommunicating effectively , and not on the

concern that it would cause the children psy cholog ical harm. Defense counsel reiterated the concern that a clo s e d
courtroom “w o u l d affect the presumption of innocence.” After hearing from the p a r t i es, the court ex plained the procedure it would follow b efore ruling on the closure motion. The court would first view the children’s videotaped i nterviews in advance of trial, and then interview each child

on the stand (out of the jury ’s view). B ased on this additional information, the court would determine whether closure was necessary

. The g overnment opposed this procedure based on its view that the children would b e m o r e intimidated b y the judg e’s questioning than by taking the stand. I n response, the district court a do p t e d a revised procedure. I t stated that it would view the children’s interviews and det e r m i ne if the videotapes provided a sufficient basis to close the courtroom for one or more witnesses. I f the court determined that the interviews did not establish a b asis for closure, the court would d en y t he closure motion without prejudice to the
g overnment movin g ag ain for closure during the course o f questioning at trial.

After rev i ewing the videotaped interviews, the court g ranted the g o vernment’s motion. The court noted that J aneU N I T E D S T A T E S V

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Doe N.T. and J ane Doe S.A. (w h o were then five a nd six
y ears old) w ere “very
, very y o ung ,” and J ohn Does S.A., w ho

was then ten y ears old
, h ad “some cog nitive impairments.” The oldest g irl, J ane D o e O

. A

. , who was then twelve y ears old, while “articulate and mat u r e fo r her ag e, is nonetheless

a fairly y oung person.” W hile all o f the children m en tioned “ex treme family tensions and divisions and ang e r,” J ane Doe O.A. “was the one who, it seems

. . . more t h a n others, seemed to be focused o n the family difficulties that this case has caused, a

nd the ang er.” Acc o r d i n gl y , the court ruled it would close the courtroom for all four children.

After making this rul i ng , the court stated that it would address the defendant’s concern about undue p r e j udice. At the court’s sug g estion, the g overnment ag re e d to call e ach victim n ear a time when the court w o u l d o rdinarily take a break and clear the courtroom, then bring the jury back in to hear the victims’ testimony without notify ing the jury that the

c o u rtroom had b een closed. This approach would “help alleviate any c oncern that the jury mig ht be informed that this is a closed setting .” I n response to this discussion, defense counsel stated, “That’s fine.”

O n J a nuary 5, 2012, on the first day of testimony befo r e the jury w as seated, the d istrict c o urt asked the g overnment to c o n f irm the p rocedure for closing the courtroom. The
g overnm e n t stated that after the f irst adult witness was finished testif

y ing
, it would “ ask to take a break” a nd “as

soon as we are on that break, we should have a n ote that the
courtroom is sealed at this time for this part of the testimony and have the courtroom locked.” L ater that day
, J o h n Doe S.A. testified about the day Georg e molested him in the

ou t house. J ane Doe N.T. then testified that Georg e h ad molested her a

nd J ane Doe S.A. by the parked c a r

. TheU N I T E D S T A T E S V

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following morning
, while the j ury was ex cused from the courtroom, the district c ourt orde red the courtroom closed. W h en the jury returned to their seats, J ane Doe S.A. provided similar testimony

. J ane D o e O .A. also testified that afternoon.

The jury convicte d G eorg e on four c ounts of ag g ravated

sex ual a buse, and acquitted him of the remaining charg es. The distr i ct c ourt subsequently sentenced Georg e to four
concurrent 30-y e ar terms o f i m p risonment as well as a lifetime of supervised release.

B

Timothy Yaz z ie lived on the N avajo reservation in Ariz ona where he cohabited with his gi r lfriend Sandra a nd her children from prior relations hips. After Sandra’s fourteen-y

ear-old daug hter R.J

. told a school official that Yaz z ie had molested her, the school alerted the authorities, and R.J

. was ex amined by a nurse practitioner a nd interviewed at the F lag staff Medical Center Child Safe Center on April 8, 2011. I n a videotaped interview, R.J

. stated that Yaz z ie had forced her to eng ag e in sex ual intercour s e on

numerous occasions since she w as t h i r t e en y e ars old. R.J

. described in detail the first a n d last times Yaz z ie had sex with h e r. R.J

. a lso told the interviewer about other abusive acts: she stated that Yaz z ie had hit and threatened t o k i l l her mother, y elled at R.J
., and w hipped her and her sibling s with

a stick. L a w e nforcement ag ents subsequently searched Yaz z ie’s residence and a rres t e d h i m. I n an interview with F B I Ag ent J ames Kraus, Yaz z ie a dmitted to having reg ularly
eng ag ed in sex ual intercou rse with R.J

. over the course o f eig ht months.U N I T E D S T A T E S V

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A superseding ind i c t m e nt charg e d Yaz z ie with three counts of a g g ravated sex u al abuse of a minor in violation of 18 U.S.C. §§ 2241(c) and 2246. The first count alleg ed that

on or between J anuary 1, 2 010 and October 1, 2010, Yaz z ie
eng ag ed in a sex ual act with R.J
., involving “contact b etween the defendant’s penis a n d the victim’s v ulva.” R.J

. referred
to this incident as the “first time.” The second count alleg ed that on o r between March 1, 2011 and April 4, 2011, Yaz z ie
eng ag ed in a sex ual act with R.J
., involving “contact b etween the defendant’s penis and the v i c tim’s vulva.” The third
count alleg ed that on or b etween March 1, 2011 and April 4, 2011, Yaz z ie eng ag ed in a sex u a l a c t with R.J
., involving “intentional t ouching
, not throug h the clothing
, of the victim’s g enitalia w ith the defendant’s hand, with an intent to abuse, humiliate, harass and deg rade the victim and arouse and g r atify the sex ual desire of the defendant.” The sex ual
acts detailed in the second and third c o u nts were both alleg ed
to have occurred during “ the ‘last time’ a s described by ” R.J

. Despite h is earlier admission to the fe d e r a l ag ent, Yaz z ie pleaded not g uilty

to all charg es.

The g overnm e n t f

i led a pretrial motion to close the
courtroom during R.J .’s testimony

. The g o v e r nment stated that R.J

. was “relucta n t t o d iscuss the sex ual abuse” during her forensic inte r v i ew, even thoug h the only other p erson in the room was the interviewer. During a subsequent interview with two attorney s, an F B I Ag ent, and a victim wi t n ess advocate, R.J

. “ cried for the majority of the i n t e rview.” B ecause R.J

. “ has d ifficulty effectively c ommunicating about her sex ual abuse in small intimate setting s,” the g overnment arg ued that she “would hav e even g reater d ifficulty

com m u n icating in a larg e courtroom filled with spectators.” Therefore, the g overnment a sserted th a t “[ w] ithout the protections a fforded u nder Title 18 U.S.C. § 3509, the childU N I T E D S T A T E S V

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victim

. . . w ill likely be intimidated b y t he process a nd the environment, such that the result may be an incomplete testimony or a

n outrig ht failure to testify

. ” Y a z z ie opposed the motion.

The court g ranted the g overnment’s motion in a written order. H aving viewed R.J

. ’ s April 2011 forensic interview and “considering her ag e, maturity
, and obvious discomfort when answering questions abo u t the a lleg ed sex u al abuse,” the court concluded that r equiring R.J

. “ to testify in an open
courtroom would likely cause [ h e r] psy cholog ical harm a nd would result in [her] i n a b i lity to effectively c ommunicate.” T h e court f

ound that during R.J .’s interview she “was visibl[ y ] uncomfortable d u ring the questioning and often retreated when asked difficult questions reg arding the sex ual abuse.” B ecause she showed d i scomfort and d ifficulty communicating with only one other p erson present, the court concluded that “it is natural to presume that such discomfort would only be ex acerbated in [a] more public setting .” The
court stated that closing the c ourtroom during R.J

. ’s testimony in this manner was a “less ex treme alternative than other options for protecting the child witness, such as h aving the child witness’s testimony conducted by c losed circuit television.” The order n evertheless g ave individuals w ho wished to remain in the courtroom d u r i n g the testimony the opportunity

to present an arg

ument for doing so.

At trial, R.J

. t estified reg arding the “first time” a nd the “last tim e” t h a t Yaz z ie forced h er to eng ag e in sex ual intercourse. Sh e s t ated that Yaz z ie threatened to kill R.J

. ’s mother if R.J

. told h er about his abuse. R.J

. also stated that Yaz z ie showed her pornog raphy
, but described it a s p e o ple h aving “S-E-X” because (she ex plained) it was difficult for her to say the word “sex ” in t h e courtroom. She alsoU N I T E D S T A T E S V

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mentioned that Yaz z ie had threatened R

. J

. ’s sibling s with a sword, and hit her and her sibling s with a stick.

At the end of the trial, the jury returned a g uilty v erdict on all three counts in the superseding indictment. Thereafter, the district court s e n tenced Yaz z ie to 420 months o f imprisonment for each count, to b e served concurren t ly
, a s well as a lifetime of supervised release.

I I

Georg e and Yaz z ie arg ue that clo s i n g the courtroom durin g the children’s testimonies violated their Six th Amendment rig hts to a p ublic trial. Y az z ie a l s o maintains that the closure failed to comply with the requirements set out in 18 U.S.C. § 3509(e).

T h e Six th Amendment provides that “[ i] n all criminal prosecutions, the accused shall enjoy the rig ht to a speedy a nd public tri al

. . . . ” U.S. Const. amend. V I

. “Essentially
, the public-trial g uarantee embodies a view of human nature, true

as a g eneral rule, that judg es, lawy e rs , witnesses, and jurors will perform their r espective functions more responsibly in an open court than in secret p r oceeding s.” W aller v

. Georgia
, 467 U.S. 39, 4 6 n.4 (1984) (quoting Estes v. Texas
, 381 U.S. 532, 588 (1965) (Harlan, J ., concurring )).

The Six th Amendment r equirement 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 a nd

n ot unjustly condemned” and the “presence of interes t e d spectators may keep h is triers keenly a live to a sense of their responsibility and to the importance of their functi o n s

. ” Id.U N I T E D S T A T E S V

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

ensure that t h e “

j u dg e and prosecutor carry out their duties responsibly ,” and also “encourag es witnesse s t o come forward and discourag es perjury .” Id. ; see also United States

v

. R ivera
, 682 F .3d 1 223, 1228 (9th Cir. 2012). I n addit i o n to a defendant’s Six th Amendment rig ht, the press and public have an implicit F irst Amendment rig ht of a ccess to criminal trials, W aller
, 467 U.S. at 46; Richmond Newspapers, Inc. v

. Virginia
, 448 U.S. 555, 580 ( 1980), which allows c itiz ens to

ex e r cise their constitutionally protected rig ht t o discuss
g overnmental affa i r s in an informed manner. Globe Newspaper Co. v. Superior Court
, 457 U.S. 59 6
, 6 0 4 –05 (1982).

Althoug h the rig h t to a pub l i c trial is protected by the F irst Amendment and Six th Amen d m e n t , it is not absolute. Id. at 606. I n the F irst Amendment contex t, the C o u rt h eld that “[ t] he p resumption o f openness m a y be overcome only by an overriding interest based on findings t h a t closure is essential to preserve h ig her values and is narrowly tailored to

serve that interest.” Press-Enterprise Co. v. Superior Court
, 464 U.S. 501, 510 (1984). T he court must articu l at e t h e interest at stake “along with finding s specific enoug h that a reviewing court can determine whether the closure order was properly entered.” Id.

I n apply ing the Press-Enterprise test to a defend a n t ’s Six th Amendment challeng e to a courtroom closure, the Court identified four separat e factors. F irst, “ the party seeking to close the h earing must advance a n overriding inter e s t t h a t is likely to b e prejudiced.” W aller
, 467 U.S. at 48. The Supreme Court has recog niz ed that “the phy sical a nd
psy cholog ical well-being of a minor” is a compelling hig her value that can justify a closure. Globe
, 457 U.S. at 607–08;U N I T E D S T A T E S V

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see also P ress-Enterprise Co. v. Superior Court
, 478 U.S. 1, 9 n.2 (1986); Charbon eau v

. U nited States
, 702 F .3d 1132, 1138 (8 t h Cir. 2013); B ell v. Jarvis
, 236 F .3d 149, 168 (4th Cir. 2000) (concluding that the “state demonstrate d an over-riding
, compelling intere s t i n protecting a child victim from the embarrassment and trauma associated with relating the details of multiple ra p e s and sex ual molestation by a family member”). W e have held that ensuring a child victim’s ability t o effectively communicate is also a compelling hig her value that can justify a closure. S ee Geise

v. United States
, 262 F .2d 151, 156–57 (9th C i r. 1 958) (holding that an Alaska state c o urt did not abuse its discretion in c losing the courtroom during a r ape victim’s testimony “in view of the tender y ears of the p ro s e c u t r ix

. . . and the difficulty of obtai n i n g [ her] testimony before a larg e audience.”).

Second, W

aller held that “the closure must be no broader than necessary to protect that interest” of o ve r r i d i ng importance. 467 U.S. at 48. W aller h eld that t h e c losure o f

an entire seven-day suppression hearing to protect the privacy of uncharg ed individuals whose voices had been intercepted

on a tw o

- a nd-a-half hour w iretap was overbroad. Id. at 48–49. Althoug h protecting the un c h arg ed parties’ privacy i n t erest could justify closing portions of a suppression hearing to the g enera l public, the state had to ex plain the

e x tent to which closure was necessary to protect t h e s e interests. I

d. A c losure that is more n a r rowly tailored to the interest at stake may pass constitutional muster however. F o r instance, a temporary closure o f a courtroom during the testimony of a rape victim is narrowly tailored where the
purpose is to protect the vict i m f r om harm. See B ell
, 236 F .3d at 169.U N I T E D S T A T E S V

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Z Z I E 15

Third, W aller h eld that “the t rial c ourt must consider reasonable alternatives to closing the proceeding .” 467 U.S.
at 48. W aller faulte d the trial court for failing to consider whether it could close only those parts o f a hearing that jeopardiz e d the privacy interests of the uncharg ed individuals whose conversation had been intercepted by the wire taps. Id.
at 48–49. “[ T ] rial courts are required to c onsider alternatives
to closure even when they are not offered by the p arties.” Presley v. Georgia
, 558 U .S. 209, 214 (2010); see also United States v. Sherlock

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

F inally
, the trial c ourt “must make finding s adequate to support the closure.” W

aller
, 467 U .S. at 48. The court must identify “the particular interest, and threat to that interest

. . . along with finding s specific enoug h that a r eviewing court

can determine w hether the clos u r e o rder was properly entered.” Presley
, 558 U.S. at 215 (internal quotation marks

o m i tted). Conclusory statements do n ot suffice. Id. at 216;

see also United States v. W aters , 627 F .3d 345, 361 (9th Cir. 2010) (deeming insufficient a district court’s statement that the hearing would be closed “‘because that’s t h e t y p e o f hearing it is’”). I n order for the finding s to b e adequate, the district court must g enerally hold a heari n g o n a closure motion o r otherwise g ive the defendant the o p p o r t unity to contest the closure motion. Sherlock , 962 F

. 2d at 1358.

These f o ur W aller factors m u st be considered on a caseby -case basis, because even a compelling intere s t s u ch a s “safeg uarding the phy sical a

n d p sy c holog ical well-being o f

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 p articu l a r c a se,” such a s “the minor v ictim’s ag e, psy cholog ical maturity a nd understanding
, the nature of the crime, the desires o f theU N I T E D S T A T E S V

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Z Z I E 16

victim, and the i n t erests of parents and relatives,” because these factor s m ay a ffect the sig nificance of the interest. Id. 4

I n addition to these constitutional requirements, Cong ress has g iven a federal district c o urt statutory authoriz ation 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 c ourt would cause substantial psy cholog ical ha rm t o the child or would result in the child’s inability to effectively c o m m u n icate.” See 1 8 U.S.C. § 3509(e). The order must “be narrowly tailored to serve the G o v e r n ment’s specific compelling

interest.” Id.

I I I

W e now apply this leg al f ram e w o r k to Georg e a

nd Yaz z ie’s claims. W e review Georg e a n d Y az z ie’s Six th A mendment c laims de novo. United States v. Ivester
, 316 F .3d 955, 958 (9th Cir. 2003). W e review the district court’s factual finding s f

or clear error. See United S tates v

.

4 P artial clo su

re o f a co u rtro o m

h as a red u ced im

p act o n a d ef

en d an t’ s rig h ts. T h eref

o re, a trial co u rt o rd erin g su ch a p artial clo su re n eed p ro v id e

o n ly a “ su

bstan tial reaso n ” f

o r t h e clo su re as o p p o s e d t o an “ ov errid in g i n t e r e st.” S

h erlo ck
, 9 6 2 F .2 d at 1 3 5 7

. We d eem a clo su re to b e p artial

w h en sp ecif

ied in d iv id u als are ex clu ded
, rath er th an th e p u b lic as a w

h o le. S ee i d

. (ap p ly in g p artial clo su

re s tan d ard w

h ere f am ily m em

b ers of th e d ef en d an t w ere ex clu d ed ); see also Ju d d v. Ha ley
, 2 50 F.3 d 1 3 08
, 1 3 1 5 (1 1 th Cir. 2 0 0 1 ). T h e g o v ern m en t asserts t h at th is less o n ero u s stan d ard
ap p lies to b o th Geo rg e a nd Yazzie, b ecau se in b o th cases th e co u rt allo w ed so m e in d iv id u als to rem ain in th e co u rtro o m d u rin g th e v ictim s ’ testim o n i e s

. W e n eed n o t d ecid e t h is issu e h ere, b ecau se w e reso lv e Geo rg e an d Yazzie’ s arg u m en t th at th e d istrict co u rt erred in clo sin g th e

co u rtro o m o n d if

f eren t g ro u n d s. S

ee Rivera
, 6 8 2 F.3 d at 1 2 3 6 (d eclin in g to d ecid e w

h eth er clo su

re w as p artial o r t o tal b ecau se it v io l ated d ef en d an t ’ s Six t

h A m en dm en t rig h t u n d er eith er stan d ard ).U N I T E D S T A T E S V

. Y A

Z Z I E 17

Mendoza
, 5 30 F .3d 7 5 8, 762 (9th Cir. 2008). W e review the district court’s interpretation of a statute de novo, see United States v. Banks
, 5 56 F

. 3d 967, 972 (9th Cir. 2009), a nd review the c o u r t ’ s application of the statute to the facts for abuse of discretion, Adv a nced Micro Devices, Inc. v

. Intel Corp.
, 292 F .3d 6 64, 666 (9th Cir. 2002), aff’d
, 542 U.S. 241 (2004).

A

W e beg in by considering Georg e’s claim that the closure of the c o u r troom during the four children’s testimonies violated his Six th Amendment r igh t t o a public trial. W e disag ree, because the district court adequately c omplied with the four factors set out in W a ller

. 5

F irst, the d istrict court properly d e termined that there was “an overriding interest that is likel y to be prejudiced.” W aller
, 467 U.S. at 4 8. Specifically
, it found that the children’s abilities to effectively c o mmunicate their stories at trial w ould b e adversely affected a bsent closure o f the
courtroom. See Geise , 262 F .2d at 156–57. I n reaching this conclusion, the court noted t h e children’s y outh, the mental difficulties of one of t h e children, a n d the family tensions arising from Georg e bein g a r elative of the victims, a ll o f 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 th e courtroom only when the child victims took the stand. Unlike the situation in W aller
, where the trial cou rt closed the courtroom for the

5 B ecau s e Geo rg e d o es n ot alleg e t h at th e clo su

res v i o lated § 3 5 0 9 (e),

w e d o n o t reach th is issu e in h is case.U N I T E D S T A T E S V

. Y A

Z Z I E 18

entire seven-day suppression hearing without considering the specific n e e d for privacy
, here all portions o f the trial other than the minor witnesses’ testimony w ere public. F urther, the district court orchestrated the closu r e s around b reaks in the proceeding s to address Georg e’s specific concern that the closures would prejudice him by affecting the presumption o f innocence in the ey

es of the jury

.

On appeal, Georg e arg ues that because the c lerk’s minutes and trial transcripts do n o t indicate precisely when the courtroom was opened and closed, the courtroom mig ht have remained closed after the childre n w ere throug h testify ing

. T houg h we review for plain error because Georg e d i d not raise this objection at trial, see United States v. W ithers
, 638 F .3d 1 055, 1065 n.4 (9th Cir. 2010), this
arg ument fails under any st a n d a rd of review. Even now, Georg e does not alleg e that the courtroom was closed a fter the children h ad left the witness stand. I n t h e a b s ence o f evidence in the record, or even a ny al leg ation by defense counsel, we presume that the district court followed the law,

see United States v. Segal
, 549 F .2d 129 3
, 1 2 9 6 (9th Cir. 1977), and implemented its own o rder to close the courtroom only when the children were testify ing

.
Third, the distri c t c o u

r t c o nsidered reasonable alternatives
t o closure. The d istrict court held that it would have denied the clo s u r e m o tion without p rejudice to renewal at trial h ad the videotaped interviews been insufficient to establish a basis upon w hich to close the courtroom. The district co u rt also indi c a t e d that it would make a determination about the need f or closure individually as to each child witness, a nd that its ruling “could be different with respect to each one.”U N I T E D S T A T E S V

. Y A

Z Z I E 19

Georg e now contends that the court should ha v e also considered alternatives to live in -court testimony
, such a s testimony via a two-way c losed circuit tele v i sion o r videotaped depositions. W e disag ree. W hile a court must “consider alternatives to c losure even when they are n ot offered by the parties,” P r esley
, 558 U .S. at 214, W aller makes clear that trial courts need consider onl y “reasonable alternatives” that are m o r e n arrowly tailored a nd more protective of constitutional rig hts than the closure advocated by the g overnment. F or instance, instead of closing an entire hearing
, a trial court should c o nsi d e r the reasonable alternative of “closin g o n l y those p arts of the hearing that jeopardiz e d the i n t e r ests advanced,” W a ller
, 467 U.S. a t 48. Similarly
, instead of ex cluding the public from a voir dire o f prospective jurors, the trial court should have adopte d t h e reasonable alternative of finding a d d i tional space in the
courtro o m to accommodate members of the public w ho

w ished to attend. Presley
, 558 U.S. at 215. B ut a d i s t r i ct court need not sua sponte c onsider alte r n at i v es that would potentially h ave a sig nificant impact on t h e d e fendant’s constitutional rig ht to a fair trial and substantially alter t h e nature of the proceeding s. See A y a l a v. Speckard
, 131 F .3d 62, 72 (2d Cir. 1997) (“Ev e n i f W a l ler requires a trial judg e to consider a l t e r n atives to complete closure, w e do not believe that the Supreme Court wanted trial judg es selecting the a lternative of limited closure to cons i d e r f urther

a l t e rnatives that themselves pose substantial risks to a fa i r trial for the d ef

endant.”). Here, a two-way closed circuit television or v i d e o taped depositions, such as Georg e n ow recommends, would materially chang e the nature o f t h e proceeding s. These alternatives prohibit face-to-face confrontation during cross-ex amination and raise substantial Confronta t ion Clause issues. S ee M aryland v. Craig
, 497 U.S. 836, 856–57 (1990); U n i t e d States v. M

iguel
,U N I T E D S T A T E S V

. Y A

Z Z I E 20

111 F .3d 666, 671 (9 t h C i r

. 1 9 9 7). I n the absence of any request by Georg e, the distric t co u r t ’s failure to address sua sponte alternati v e s t h a t r ai s e s i gn ificant additional constitutional concerns did not v iolate Georg e’s Six th Amendment rig hts. 6

F inally
, the district court made adequate finding s t o support the closure. B efore r uling o n the g overnment’s order, the district court c onfirmed that the basis of the g overnment’s motion wa s i t s concern that an open courtroom would preclude the children from communicating e ffect ively

. The

cour t’s subsequent finding s, after reviewing the videotaped interviews, were relevant to this specific issue. A lthoug h the district court di d n o t ex pressly state that closure was necessary to facilitate the children’ s t e stimony
, its finding s

are clear in c ontex t. See Sherlock
, 962 F .2d at 1359 (noting the court’s finding s were sufficient to allow th e r eviewing
court to “conclude there was a substantial reason to close the proceeding s”); see also United States v

. Farmer
, 32 F .3d 369, 371 (8th Cir. 1994) (holding that “specific finding s by the district court are n ot n ecessary if w e c a n g lean sufficient support for a partial temporary c l o s u re from the record.”). The court afforded Georg e an o p p o r t unity to be heard a t the final pretri a l c o n ference, and h e did not challeng e the
g overnment’s a

rticulation o f its overriding concern. Therefore, the distri ct court’s on-the-record finding s were sufficient.

B e cause the court’s r

uling s complied with the factors set forth in W

aller
, we conclude the court closure during the

6 Mo reo v er, th e g o v ern m en t’ s rep ly brief in s u p p o rt o f its § 3 50 9 (e)

m o tio n m en tio n ed th ese altern ativ es, an d th u s th e d istrict co u rt im p licitly rej ected th em

in o rd erin g a tem

p o rary clo su re o f th e co u rtro o m

.U N I T E D S T A T E S V

. Y A

Z Z I E 21

children’s testimonies did not violate Georg e’s Six t h Amendment rig ht to a public trial.

B

W e nex t consider Yaz z ie’s claim that the district court’s order to close the courtroom during R.J .’s testimony v iolated his Six th Amendment rig ht to a public trial. This claim likewise fails, because the district c ourt’s order carefully addressed each of the W

aller factors.

F irst, the district c ourt identified overriding interests that

w o u ld be prejudiced absent a temporary closure of the
courtroom and concluded that requiring R.J

. to testify in open court “would likely c ause [ her] psy cholog ical harm a nd

wo u l d r esult in [her] inability to effectively c ommunicate.” See G lobe , 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 o f the media, public, or f

amily or friends of the defendant or the child witness, “the opportunity to a r ticulate a sufficient interest in remai n ing in the courtroom during the child witness’s testimony ,” and would individual l y determine whether to allow such spectator to remain in the courtroom.

The court also considered reasonable alternatives, stating that its limited closure o r d er was “a less ex treme a lternative than other o ptions for protecting the child wit n es s , such a s having the child witne ss’s testimony conducted by closed circuit television.”U N I T E D S T A T E S V

. Y A

Z Z I E 22

F inally
, the cour t m a de f inding s that sufficiently identified the particular interest at stake and the threat to that interest. After g iving Yaz z ie the opportunity to be heard, the
court noted the g overn m ent’s testimony reg arding R.J

. ’s

anx iety and its concern that the presence of defendan t ’s family members w ould have a chilling effect o n her testimony

. F urther, the court stated that it had independently reviewed the v ideotape of an interview with R.J
., and reached

a similar conclusion. T hese finding s p rovide ample support for the court’s determination that closing the courtroom was justified to p rotect R.J .’s psy c h o log ical well being and ability to communicate effectively

.

Yaz z ie claim s t he district c ourt’s methodolog y for determining the streng th of the asserted in t er e sts was not sufficiently rig orous. According to Yaz z ie, the district court erred in relying on the prosecutor’s statements and its r eview of a seven-month-old video. I nstead, Ya z z i e c ontends that the court should have had the child evaluated by a b ehavioral scientist, a

ppointed a g uardian a d litem, o r observed the child in person, prior to making its deter m ination. W e disag ree. The court made reasonable de t e r minations based on its review of the videotape, the g overnment’s assertions, and its

commonsense understanding that child victims m a y have difficulty testif

y ing about sex ual abuse in a public setting where the d efendant’s friends a nd family are present. W hile

a court may consider ex pert testimony on a child’s
psy cholog ical well-being or a bility to testify
, i t i s not constitution a l ly required to do so. Moreover, althoug h the
court g ave Yaz z ie an opportunity to be heard, h e d id not raise this i s sue to the district court or ex plain his reasons for believing that such addi t ional investig ation was justified in
t h i s p a rticular case. According ly
, the d istrict court did no t commit error, let a lone p l a in e rror, in not r equiring thisU N I T E D S T A T E S V

. Y A

Z Z I E 23

additional information. See Globe
, 4 5 7 U

. S. at 608 (noting that the trial court must determine on a “ case-by-case basis” whether c losure is n ecessary a nd listing several factors for the court’s consideration (emphasis added)). 7 F or these reasons,

we conclude that the cour t closure did not violate Yaz z ie’s Six th Amendment rig ht to a public trial.

C

Y az z ie also maintains that the district court’s clos u r e order violated the requirem e nts set out in 18 U .S.C. § 3509(e). Y az z ie first conten d s t h a t the court v iolated § 3509(e) by failing to follow the procedures set f orth in § 3509(g ) an d ( h ) o r by f

ailing to hold a hearing to ex amine the child witness. Ag ain, we disag ree.

Section 3509 makes available a rang e of procedures to protect the rig hts of c hild victims and witnesses. I n addition
to authoriz ing closure of the c ourtroom, i d

. § 3 5 09(e), the
statute authoriz es courts to protect children from testify ing in
open court under certain circumstance s b y allowing them to testify via two-way c losed circui t t e l evision or videotaped depositions, id. § 3509(b)

. S e c t i on 3 509 also authoriz es a court to work with a “multidisciplinary chi l d abuse team” established by state and local g overnments to assist child victims and witnesses

. Id

. § 3509(g ). These teams provide

ex p ert services to a child, including medical e v a l uations

7 Yazzie p o in t s to R.J .’ s testim on y o n th e s tan d th at s h e w as “ f eelin g h ap p y ” th e d ay o f trial an d d ef en se co u n sel’ s o b s erv atio n t h at R.J

.

“ s eem ed fa r m o r e co m

p o sed [at trial] th an o n e w o u ld h av e p red icted b y listen in g to t

h e p ro secu to r’ s p retrial a s sessm en t o f R.J .” B u t w e m u st

ev alu ate th e reaso n ab len ess o f th e co u rt’ s co n clu sio n at th e tim e it o rd ered th e clo su re, an d c a nn o t rely o n h i n d s ig h t b ased o n ev en ts th at o ccu rred d u rin g th e trial.U N I T E D S T A T E S V

. Y A

Z Z I E 24

related to abuse or neg lect and psy cholog ical and psy chiatric diag noses. Id. The court is also authoriz ed to appoint a g uardian ad litem “to p r o t e c t the best interests of the child” and “ make recommendations to the court concerning the welfare of the child.” Id. § 3509(h).

B y its terms, § 3 509(e) does not require the court to hear testimony from the child, a g uardian ad litem, or ex pert, prior
to deciding a closure motion. W h i l e § 3509(g ) and (h) authoriz e the court to use ex per t s and g uardians ad litem to further the interests of the child, neither of these provisions limit or c ondition the court’s a u t hority under § 3509(e). I ndeed, Cong ress required ex pert testimony in only o ne limited circumstance. W hen a cou r t orders that a child’s testimo ny be taken by two-way c losed c ircuit television, the order must be supported by the court’s findingthat the child is unable to testify in open court i n t h e presence of the defendant for any o ne of four reasons. Id. § 3 509(b ) ( 1 ) (B ). Only o ne o f these four reasons requires a n ex pert: the court’s finding that “[ t] here is a substantial likelihood, established by

e xpert testimony
, that the child would suffer emotio n al
trauma from testify ing .” I d. § 3 5 0 9 ( b ) (1)(B )(ii) (emphasis added). B ecause Congr e ss knew how to impose a requirement t hat the court o btain ex p ert testimony
, a nd enacted such a requirement in one limited circumstance, the absence of any similar lang uag e in § 3509(e) underscores our determination that it imposes no similar requirement.

F inally
, Yaz z i e arg ues that the court erred b y ex cluding family members o f the defendant under § 3509(e), which allows a district court to e x clude only those persons “who do
not have a direct interest in the c ase.” Yaz z ie claims that his family members have a direct interest in his case, a nd therefore should not have be en ex cluded. W e reject thisU N I T E D S T A T E S V

. Y A

Z Z I E 25

arg ument. W hile family members of the victim or defendant
may have a more intense personal interest in a case than members of the g eneral public, they do not have a d irect interest in a criminal c a s e as d o the defendant and the
g overnment, a

nd their attorney s at trial. The statute does not require a court to evaluate the level of concern a m e m b e r o f
t h e p u b l ic (whether a member of the media or a famil y member) may have r eg arding the outcome of a particular trial. I ndee d
, Y a z z ie’s a r g ument that a defendant’s family members cannot be e x cluded from a trial is contr a r y t o the protective g oals o f § 3 509, because c h i l d victims a nd witness e s a re often most intimidated by the defendant’s family members among the spectators. See, e. g

. , Sherlock
, 962 F .2d at 1359 (affirming ex clusion during r a p e victim’s testimony of defendant ’s family members who “peered a nd
g ig g led” at the witnesses); United States v. Osborne
, 68 F .3d 94, 97 (5th Cir. 1995); cf. W oods v. Kuhlmann , 977 F .2d 74, 77 (2d Cir. 1 992); Nieto v. Sullivan
, 8 7 9 F. 2 d 7 43, 753–54 (10th Cir. 1989).

According ly
, w e conclude that Yaz z ie’s statutory arg ument is also without merit a n d that the district court’s closure order did not violate § 3509(e).

I V

F inally
, we turn to Yaz zie’s arg ument that h is convictions

on the sec o n d and third counts alleg ed in the indictment

v i o l ate the Double J eopardy Clause. Y az z ie asserts that t h e conduct a l leg ed in the second count, a sex ual act with R.J

. involving “contact b etween the defendant’s penis and the victim’s vulva,” and the c onduct alleg ed in the third count, a

sex ual a ct with R.J

. involving “intentional touching
, not throug h the clothing
, of the v ictim’s g enitalia with theU N I T E D S T A T E S V

. Y A

Z Z I E 26

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

. termed t h e “ last time,” and therefore impose multiple criminal punishments for the same offense.

B e cause Yaz z ie failed to r a i s e this claim to the district court, we review for p lain error. United States v. S y kes
, 658 F

. 3d 1140, 1149 (9th Cir. 2011). “Under the plain error standard, we w ill affirm

. . . unless: (1) there has been an

error in the proceeding s below; (2) that e rror was p lain; (3) it affected substantial r ig hts; a nd (4) it seriously affected the fairness, integ rity
, o r public repu t ation of judicial proceeding s.” United States v

. Davenport
, 519 F .3d 940, 943 (9th Cir. 2008). 8

The Double J eopardy Clause of the Fi ft h A mendment
states: “[ N] or shall a

n y person be subject for the same offense
to b e twice put in jeopardy of life or limb

. . . .” U.S. Const., amend. V. “[ S] ince Cong ress has full a u t h ority to define distinct o f

fenses a nd to prescribe puni s h ments for those

o f f e n s e s , ‘ t h e q ue s t i o n o f w h at p u n i s h m e n t s a r e constitutionally permissible is not different from the question of what p unishments the L eg islative B ranc h intended to be imposed.’” United States v. W olfsw inkel
, 44 F

. 3d 782, 784 (9th Cir. 1995) (quoting Albernaz v. United States , 450 U.S. 333, 344 (19 8 1 ) )

. “I f Cong ress enacts statutes that indicate

an intent to impose separate punishments, those statutes define separate offenses, and the punishments do not violate the Constitution.” Id. O nce Cong ress has defined an offense in a stat u t e, we must determine the “allowable unit o f

8 A l th o u g h Yazzie is co n cu rren tly s e r v i n g th e sen ten ces im p o sed f or t h e s e co n v ictio n s , th e issu e is n o t m o o t b ecau se th e p o ten tial co llateral

co n seq u en ces o f an a d d i tio n al co n v ictio n af f ect su b stan tial rig h ts. S

ee Da ven p o rt , 5 19 F.3 d at 9 4 7

.U N I T E D S T A T E S V

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Z Z I E 27

prosecution” defined by Cong ress. United States v. Universal C.I.T. Credi t C o rp. , 3 44 U.S. 218, 2 21 ( 1952). The issue is therefo r e o ne of statutory construction. See Bell v. United States
, 3 49 U .S. 81, 81, 83– 8 4 ( 1955); see also Sanabria v

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

According ly
, we b eg in with the tex t of 18 U .S.C. § 2241(c), the statute of conviction, which provides:

W h oever

. . . kn o w i n gl y eng ag es in a sexual
act w ith a nother person w ho h a s not attained the ag e of 1 2 y e ars, or knowing ly eng ag es in

a sex ual act under the circumstances describe d in subsections ( a ) and (b) w ith another person who h a s a t tained the ag e of 12 y ears but has
not attained the ag e of 1 6 y ears (and is at least 4 y ears y oung er than the person so eng ag ing ), or attempts to do so, shall be fined under this title and imprisoned for not less than 30 y ears or for life.

18 U.S.C. § 2241(c) (emphasis added). The term “sex ual act” is defined in a separate provision as:

(A) contact between the penis and the vulva o r the pe n i s a n d the anus, and for purposes o f this subparag raph c ontact involving the penis occurs upon penetration, however, slig ht;

(B ) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the
anus;U N I T E D S T A T E S V

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Z Z I E 28

(C) the penetration, however slig ht, of the anal or g enital opening of another by a h a nd

or fing er or by any object, w ith an i n t e n t to abuse, h umiliate, h arass, deg rade, or arouse o r g ratify the sex ual desire of any

person; or

(D) the intention a l touching
, n ot throug h the clothing
, of the g e nitalia of another person who has not attained the ag e of 16 y ears with

an intent to abuse, humiliate, h a r ass, deg r ade,

or arouse or g r atify the sex u al desire of any person[ .]

18 U.S.C. § 2246(2).

B e cause § 2241(c) makes it unlawful to enga ge i n a “sex ual act,” a

nd § 2246(2) defines “sex ual act” as any one o f four specific actions, we conclude that the “allowable u nit o f prosecution” intended by Cong ress is e a ch individual sex ual

a c t l i s ted in § 2246(2). Althoug h Cong ress could have defined “sex u al act” to mean a sing le sex ual encounter involving one or more of the actions list ed in § 2246(2), Cong r ess chose n ot to do so, and in s t e a d m ade each ty pe o f conduct listed in § 2 246(2) a separat e “sex ual act” criminaliz ed by

§ 2241(c). B ecause Cong ress’s intent is the touchstone for determ i n i n g the scope of protection afforded by the D ouble J eopardy Clause, we conclude that e ach sex ual
act listed in § 2 2 4 6 ( 2 ) constitutes a separate violation o f § 2241(c)

. T h er efore, a defendant can be convicted o f multiple violati ons of § 2 241(c) for p erforming multiple listed sex ual acts without violating the Double J eopardy Clause’s protection aga i nst multiple punishments for the

same offense, even if the d e f e n dant performed those sex ual
acts in th e c ourse of a sing le sex ual encounter. I n reachingU N I T E D S T A T E S V

. Y A

Z Z I E 29

this co n c l u s i on, we join the only other circuit to have considered this issue. See U nited States v

. Two Elk
, 526 F .3d 890, 8 9 8–99 (8th Cir. 2008) (holding that § 2241(c) punishes separate acts, not a sing le course of conduct).

I n lig h t o f this analy sis
, Y a z z ie’s convictions under the second and third counts in the superseding indictment do not raise d o uble jeopardy c oncerns. Althoug h the conduct described in those counts both occurred during “the last time”

as described by R.J
., each count alleg es a separate sex ual act that is listed in § 2 246(2). W e conclude the re w as no error—much less pl ain error—in allowing both convictions on Count I I and Count I I I to stand.

W h ile Yaz z ie concedes that § 2 2 41(c), when r e ad in conjunction with § 2246(2), a llows separate p unishments for

e a c h act set forth in § 2246(2), he a rg ues that Cong ress d i d
not intend that a defendant be p unished for two sex u al acts in circumstances where the first is “merely i n c i d e ntal” to the second. This arg ument is meritless, because in d etermining whether a c onviction imposes multiple criminal punishments for the same offense, w e look onl y t o C ong ressional intent,
not to whether one o ffense w as incidental to another. 9 As the Supreme Cour t has ex plained, “[ i] n determining the permissibility o f the imposition of cumulative punishment for the crime of r ape and the crime of unintentional killing in the

course of rape,” the “dispositive question was wh e t her Cong r ess intended to authoriz e separate punishments for the
two crimes.” Albernaz
, 450 U.S. at 344 (internal quotation

9 Fo r th e s am e reaso n w e rej ect Yazz i e ’s c o n ten tio n t h at “ R.J .’ s t estim o n y lef

t en tirely o p en th e qu estio n o f w h eth er th e act describ ed in

co u n t th ree w as a n ecessary o r f u n ctio n al p art o f th e act d escrib ed in co u n t tw o .”U N I T E D S T A T E S V

. Y A

Z Z I E 30

marks omitted); cf. Rhoden v. Rowland
, 10 F .3d 1457, 1461 (9th Cir. 1993) (“[ I ] t is well settled that a sing le t r a n s a c tion

c a n g ive r ise to distinct offenses under separate statu t e s without violating the Double J eopardy Clause.” (in t e r nal quotation marks omitted)). W e rejected a similar argu m e n t raised by a habeas petitioner convicted of both the sex u al act of dig ital p enetrat i o n a n d the act of intercourse. Rhoden
, 10 F .3 d at 1461–62. Althoug h the p etitioner arg ued that be ca u s e “the d ig ital penetration was incidental to the act o f intercourse” it could not “const i t u t ionally be punished as a separate crime, ” we concluded that the two offenses were separate under California law, a nd therefore the conviction on both o f f e n s es did not g ive r ise to any Double J eopardy

concern. Id.

AF F IRMED.