United States v. Abundiz

In United States v. Abundiz, —- F.4th —-, No. 22-50697 (5th Cir. Feb. 20, 2024), the Fifth Circuit affirmed the defendant’s conviction and life sentence for sexually abusing his six-year-old niece. The court rejected several arguments raised by Abundiz, including his contention that the district court had erred by allowing the niece to testify by video rather than in person. Here, we focus on that portion of the Fifth Circuit’s opinion.

Before trial, the Government moved to allow the niece to testify by video, outside the presence of Abundiz and the jury, under 18 U.S.C. § 3509. In support, it called a psychiatric expert who testified to the re-traumatization victims suffer when confronted by or forced to see their abusers. The expert further testified that he had spoken several times with the victim, who would, he said, be “so flooded with anxiety, that she wouldn’t be able to” testify. He said he reached that conclusion “to a reasonable degree of medical certainty.” Finally, he testified that the victim would face a higher risk of trauma if forced to testify in Abundiz’s presence rather than via video. The district court then granted the Government’s request, and at trial, the victim testified by video.

Under the Sixth Amendment and Crawford v. Washington, 541 U.S. 36, 54 (2004), a criminal defendant is guaranteed the right to confront witnesses who testify against them, but the Supreme Court has recognized several exceptions to that right. In Maryland v. Craig, 497 U.S. 836, 855 (1990), the Court found that video testimony can be permissible if the Government makes an adequate showing of necessity, because there is a sufficiently important Government interest in protecting child witnesses from the trauma of testifying face-to-face with the defendant in a child abuse case.

Ruling 1: Abundiz argued that Crawford conflicts with both Craig and § 3509(b), and “it’s just a matter of time before a clash between [them] makes its way to the Supreme Court.” Nevertheless, he admitted that Craig governed his case and that Crawford did not overturn Craig. The Fifth Circuit also noted that the Supreme Court and other circuit courts have upheld other similar exceptions to the Confrontation Clause.

Ruling 2: Abundiz also argued that the district court erred by failing to make the factual findings required under § 3509(b). That statute requires findings that “[t]he child is unable to testify because of fear” or that “[t]here is a substantial likelihood, established by expert testimony, that the child would suffer emotional trauma from testifying.” Here, the district court heard expert testimony on those points and concluded that due to the victim’s “tender age,” “[t]he combination of the time elapsed since the incident and the facts and circumstances leading to the incident,” and “what has transpired since the incident,” video testimony was permissible. Then, at the Government’s request, the court confirmed that it was finding “under Section 3509(b)(1)(B)(ii) that there is a substantial likelihood established by expert testimony that the child would suffer emotional trauma from testifying.” All those findings were permissible, supported by expert testimony, and stated on the record. As a result, the Fifth Circuit rejected Abundiz’s argument and affirmed his conviction.