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United States

United States District Court, M.D. Alabama, Northern Division

June 23, 2014



MYRON H. THOMPSON, District Judge.

Defendant Charles Dean Partin is charged with transporting a minor across state lines for purposes of committing aggravated statutory rape in violation of 18 U.S.C. § 2423(a) and transporting a stolen motor vehicle across state lines in violation of 18 U.S.C. § 2312. The court previously appointed a guardian ad litem to represent the interests of the minor who is the alleged victim of Partin's conduct.

This cause is now before the court on the guardian's motion for the minor to give testimony at Partin's trial from a place, other than the courtroom, through two-way closed-circuit television pursuant to 18 U.S.C. § 3509(b)(1). Both Partin and the government oppose the motion. Because, as explained below, the court has concluded that the minor is able to testify in Partin's presence with reasonable accommodations to mitigate her fear and emotional trauma, the motion will be denied.

I. Legal Standard

"In a proceeding involving an alleged offense against a child... a guardian ad litem... may apply for an order that the child's testimony be taken in a room outside the courtroom and be televised by 2-way closed circuit television." 18 U.S.C. § 3509(b)(1)(A). "The court may order that the testimony of the child be taken by closed-circuit television as provided in subparagraph (A) if the court finds that the child is unable to testify in open court in the presence of the defendant" for one of four reasons. 18 U.S.C. § 3509(b)(1)(B). Those reasons are: "(i) The child is unable to testify because of fear"; "(ii) There is a substantial likelihood, established by expert testimony, that the child would suffer emotional trauma from testifying"; "(iii) The child suffers a mental or other infirmity"; or "(iv) Conduct by defendant or defense counsel causes the child to be unable to continue testifying." Id.

"The district court must support its ruling with specific findings on the record". United States v. Fee, 425 F.Appx. 847, 848 (11th Cir. 2011) (citing 18 U.S.C. § 3509(b)(1)(C)). While there is no binding precedent establishing the burden of proof for such a motion, the court finds that the moving party must establish the statutory requirements by a preponderance of the evidence. See United States v. Carrier , 9 F.3d 867, 871 (10th Cir. 1993) (affirming district court decision which applied preponderance standard).

II. Procedural and Factual History

The guardian filed the instant motion in June 2013. She asks the court to allow the minor, who is referred to by her initials A.L., to testify by closed-circuit video from a location other than the courtroom. After some delay, in part due to concerns about Partin's competency, the court issued an order establishing the procedure for the hearing on the guardian's motion.[1] See United States v. Partin, ___ F.Supp.2d ___, 2013 WL 6477445 (M.D. Ala. 2013) (Thompson, J.). An evidentiary hearing was held on December 17, 2013. At the hearing, the guardian presented two witnesses: A.L. and her school counselor.

The court concluded that it needed additional expert testimony to resolve the guardian's motion and appointed Chris Newlin, Executive Director of the National Children's Advocacy Center, as a neutral expert. Newlin prepared two reports regarding A.L.'s ability to testify in Partin's presence. See Reports (Doc. Nos. 207, 226). A second evidentiary hearing was held on June 17, 2014. Newlin was the only witness at that hearing.

Based on the testimony of A.L., her school counselor, and Newlin, the court makes the following findings of fact by a preponderance of the evidence.[2] A.L. is 17 years old. Partin was her mother's common-law husband, and a father figure to her. They lived in Alabama. There were six children total in their house, of whom only A.L. and her brother were not Partin's biological children. A.L. was the oldest child, and, because her mother would leave Partin with the children for days and weeks at a time, A.L. was often in the position of co-parenting' the other children alongside Partin.

The sexual contact between A.L. and Partin began when she was 15. Partin withdrew A.L. from school and began home-schooling her. A.L. eventually became pregnant, and paternity testing has indicated that Partin is the father. A.L. has since given birth, and the child is approximately 18 months old.

On one occasion, when A.L. was 15, Partin's co-worker, Eric, raped A.L. while he was at their house. When A.L. told her mother and Partin about it, neither called the police. When Partin later found out A.L. was pregnant, he told her to say that she had snuck out of the house and become pregnant with Eric's child. She told others that story until the paternity test was performed. She did so because she was afraid for her siblings. She also did so because Partin had told her that, when she was 16, she and he would run away together and get married.

Eventually, A.L.'s mother signed over her parental rights to Partin, and Partin took A.L. to Tennessee. Her mother stayed with the other siblings. Law-enforcement officers encountered Partin and A.L. at a campsite in Tennessee. Under questioning, A.L. initially told the officers she was 18 years old as Partin had instructed. She later told them her true age. Although she and Partin were separated by the officers, Partin communicated with her by hand signals.

The officers arrested Partin, and A.L. was taken to a foster home. The next day, while she was at a social-services office and when no one else was nearby, Partin approached her. She had believed he was in jail. He threatened to take her siblings and her baby away.

Partin was able to get to A.L. again after she was placed in foster care in Alabama. Although they had not communicated since the encounter at the social-services office, Partin somehow found A.L. while she was attending a doctor's appointment at a hospital. Partin grabbed her and they ran downstairs to where her mother was waiting in a van. A.L. ran because he told her to do so. Partin and her mother made her keep her head down and switched to another van, which Partin said he had stolen.[3] They took back roads to a church where her mother's friends were waiting with her siblings and food, which they loaded into the van.

The family headed towards Mexico. They stopped in fields along the way, and A.L. slept with Partin on the ground while her mother slept with the others inside the van. The sexual contact between A.L. and Partin continued nearly every day during this period. They stole gas, and A.L. served as the lookout. Because they were pulled over by law-enforcement officers six times during the trip towards Mexico, they decided to head back to Kentucky or Ohio instead, where they had family and friends. They eventually arrived at Partin's ex-girlfriend's house in Ohio. That night, A.L. and Partin had sexual contact while her mother and siblings were in the room with them. The FBI arrived later that night and arrested Partin.

III. Discussion

A. Constitutional and Statutory ...

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