## Facts

- Lorenzo Garcia was charged with four counts of aggravated sexual abuse of a child occurring on a Navajo reservation, prosecuted under 18 U.S.C. §§ 2241(c) and 1153.
- The complainant was Garcia’s minor niece (Jane Doe); the allegations emerged after she told an aunt that “someone was already doing it to her” during a conversation about sex.
- Before trial, the government moved to have the child testify by two-way closed-circuit television under 18 U.S.C. § 3509(b)(1).
- The district court held multiple hearings and questioned the child outside the presence of the jury; it heard testimony that the child was shy and afraid to speak in Garcia’s presence, and it found she would be unable to testify effectively if required to face him in the courtroom.
- At trial, Jane Doe testified via two-way closed-circuit television; Garcia could see and hear her in real time and she could see him.
- The jury convicted Garcia on all four counts; the district court denied a new-trial motion and sentenced him to 96 months’ imprisonment and five years of supervised release.
- Garcia appealed, challenging the closed-circuit testimony procedure and the refusal to instruct on abusive sexual contact as a lesser-included offense.

## Issues

1. Whether permitting a child victim to testify by two-way closed-circuit television under 18 U.S.C. § 3509(b)(1) violated the defendant’s Sixth Amendment right to confrontation.
2. Whether the district court erred by refusing to instruct the jury on abusive sexual contact as a lesser-included offense of aggravated sexual abuse.

## Decision

- The Ninth Circuit affirmed the convictions and sentence.
- The court held the use of two-way closed-circuit television did not violate the Confrontation Clause because the district court made case-specific findings of necessity and the procedure preserved the essential attributes of confrontation.
- The court held the district court properly refused the lesser-included-offense instruction because the evidence did not provide a rational basis to acquit on aggravated sexual abuse while convicting on abusive sexual contact.

## Legal Principles

- The Confrontation Clause generally favors face-to-face confrontation, but that preference may yield when denial of face-to-face confrontation is necessary to further an important public interest and the reliability of testimony is otherwise assured.
- Under 18 U.S.C. § 3509(b)(1), closed-circuit testimony by a child witness is permissible when the trial court makes individualized findings that testifying in the defendant’s presence would cause the child serious emotional distress or render the child unable to communicate.
- Confrontation reliability concerns are addressed where the witness testifies under oath, is subject to contemporaneous cross-examination, and the judge and jury can observe the witness’s demeanor while the defendant can see and hear the testimony (and the witness can see the defendant) in real time.
- A lesser-included-offense instruction is required only when the evidence would permit a rational jury to convict on the lesser offense while acquitting on the greater; an “all-or-nothing” evidentiary record does not justify the instruction.

## Conclusion

The Ninth Circuit affirmed Garcia’s convictions, holding that the district court’s individualized necessity findings justified two-way closed-circuit testimony by the child victim without violating the Sixth Amendment, and that the trial evidence did not support giving a lesser-included instruction for abusive sexual contact.


United States v. Garcia, 7 F.3d 885 (9th Cir. 1993)