Michael E. Valentine v. Khelleh Konteh, Warden

RONALD LEE GILMAN, Circuit Judge,

concurring in part and dissenting in part.

I concur in Parts I, II, and IV of the majority opinion insofar as the opinion reverses the district court as to Count 1 (the first rape count) and Count 21 (the first felonious-sexual-penetration count) by concluding that those two counts are nondupli-cative. My disagreement with the majority comes with respect to Part III of its opinion, which concludes that the district court was not in error when it granted Valentine’s petition for habeas corpus relief on Counts 2-20 and 22-35. Although the majority has properly acknowledged that this case is governed by the Antiter-rorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (AEDPA), which increased the deference that federal courts must give to state-court decisions, the Supreme Court has cautioned against simply “recit[ing] this standard [and then evaluating] respondent’s claim de novo rather than through the lens of § 2254(d) .... ” Price v. Vincent, 538 U.S. 634, 639 , 123 S.Ct. 1848 , 155 L.Ed.2d 877 (2003).

The majority first concludes on the merits that Valentine’s due process rights were violated because the indictment in question failed under Russell to appraise Valentine of what he must be prepared to meet. But the majority cites no authority for its conclusion that the use of multiple identical counts in instances of child abuse failed to sufficiently apprise Valentine of the charges he faced. The majority further claims that it “cannot find one court that has actually considered the issue and upheld the use of multiple identically-worded and factually-indistinguishable counts in this context or any other.” Op. at 638. Although I do not dispute the majority’s research, I find equally telling the fact that no Supreme Court case has ever found the use of identically worded and factually indistinguishable indictments unconstitutional.

To the contrary, many courts have found the use of indictments that are vague as to the time and place of multiple offenses to withstand constitutional attack. The defendant in Madden v. Tate, No. 85-3061, 1987 WL 44909, at *1 (6th Cir. Sept.30, 1987) (unpublished), for example, was convicted of sexually abusing his eight-year-old granddaughter and 11-year-old son. In rejecting Madden’s argument that the indictment failed to provide him with sufficient notice of the charges to enable him to prepare his defense, the court concluded that the

[fjailure to specify the precise dates upon which the alleged crimes occurred does not deprive the defendant of his constitutional right to due process where time is not of the essence of the offense and where the dates used are not picked arbitrarily .... Neither is this a case where the prosecution deliberately refused to provide dates; the young victims were not in fact able to provide dates, and the time frames provided were based upon their best recollections. There was no denial of due process.

Id. at *3. Cf. Fawcett v. Bablitch, 962 F.2d 617 (7th Cir.1992) (rejecting a defendant’s argument that his conviction on two counts of sexual misconduct over a six-month period provided him with insufficient information to mount a defense); State v. Mulkey, 316 Md. 475 , 560 A.2d 24, 30 (1989) (rejecting a defendant’s argument that his conviction on twelve counts of third-degree sexual offense — some of which were dupli *640 cates of each other — violated his right to present a defense, and noting that “[b]e-canse the charges involved multiple sexual offense violations, the child-victims were unable to specify the exact dates or times of the acts. [The defendant] was apprised of the continuing nature of the offenses such that his defense was not prejudiced.”).

I acknowledge that none of these cases has gone to the extent of finding constitutionally sound 20 or more factually indistinguishable counts. But I note that the linchpin of the majority’s analysis in this case is based upon the fact that “within each set of 20 counts, there are absolutely no distinctions made.” Op. at 632. Just two sentences earlier, however, the majority concedes that “[t]he problem in this case is not the fact that the prosecution did not provide the defendant with exact times and places.” Id. I frankly find these two statements contradictory. In effect, the only reason that there are no distinctions made within each set of 20 counts is because the defendant was not provided with the exact time and place specifications. Yet, based on the authorities cited above, I can discern no constitutional requirement that exact time and place specifications be provided within such an indictment. This holds true whether the number of identical counts be two or twenty.

In support of its position, the majority cites Parks v. Hargett, No. 98-7068, 1999 WL 157431 (10th Cir. Mar.23, 1999) (unpublished), in which the petitioner was charged with three counts of molesting a six-year old girl. These counts, the petitioner claimed, were so vague that he was “unable to adequately prepare a defense.” Id. at *1 . The court ultimately rejected the petitioner’s arguments, but noted in dicta that “[w]here the statutory definition of an offense employs generic terms, it is not sufficient to charge the offense in the same terms employed by the statute; the indictment must ‘descend to particulars.’ ” Id. at *3 (quoting United States v. Sullivan, 919 F.2d 1403, 1411 (10th Cir.1990)). This discussion, however, applied not to the adequacy of the time and place specifics provided to the defendant (as is the case here), but with the specificity of the charge. Valentine has conceded that the indictment in question is specific enough to satisfy the Russell’s first requirement that “the indictment contain[] the elements of the offense intended to be charged.” Russell, 369 U.S. at 764, 82 S.Ct. 1038 . I therefore find the majority’s reliance on this discussion in Parks puzzling.

Less puzzling and more disturbing in my opinion is that prohibiting the use of multiple identical charges in a single indictment would severely hamper a state’s ability to prosecute crimes where a young child is both the victim and the sole witness. Young children often make difficult, forgetful, or uncooperative witnesses in abuse cases. Their limited understanding, combined with a subconscious desire to “forget” the abuse, often makes them vague and unretentive. See Pennsylvania v. Ritchie, 480 U.S. 39, 60 , 107 S.Ct. 989 , 94 L.Ed.2d 40 (1987) (“Child abuse is one of the most difficult crimes to detect and prosecute, in large part because there often are no witnesses except the victim. A child’s feelings of vulnerability and guilt and his or her unwillingness to come forward are particularly acute when the abuser is a parent.”); State v. Mundy, 99 Ohio App.3d 275 , 650 N.E.2d 502, 515 (1992) (“In many cases involving child sexual abuse, the victims are children of tender years who are simply unable to remember exact dates and times, particularly where the crimes involve a repeated course of conduct over an extended period of time.”).

Utilizing children as witnesses is widely understood by the courts and legal observers to be the only mechanism by which many sexual offenders may be brought to *641 justice. Because of the nature of the crime, the sexual abuse of children typically occurs in private, in the residence, and away from other adults. See generally Bureau of Justice Statistics, Sexual Assault of Young Children As Reported to Law Enforcement: Victim, Incident, and Offender Characteristics 5-7 (July 2000), available at http://www.ojp.us-doj.gov/bjs/pub/pdiysaycrle.pdf (noting that 77 percent of juvenile sexual assaults take place in a private residence, as opposed to 55 percent of adult assaults). Corroborating physical evidence might also be unavailable because the offender has verbally threatened the child, as opposed to using actual force. And, because a child often delays in reporting the abuse, visible injuries might not be documented. Under a rule restricting prosecutions to exceedingly narrow and precise charges, a sex-abuse charge would presumptively be limited to a single instance of abuse, despite clear evidence of multiple occasions, unless the child can remember the specific time and place details for each occurrence. Such an outcome is contrary to judicial precedent and is not constitutionally required.

I also believe that the majority’s holding unnecessarily substitutes a rigid rule for what should properly be the jury’s fact-finding powers. The majority notes that Valentine was “sentenced to forty consecutive life sentences based on a child’s round-number, guesstimate as to how many times she was assaulted.” Maj. Op. at 638. But to characterize the child’s testimony as simply a “guesstimate,” as opposed to reliable evidence of the multiple offenses, is a judgment call best left to the jury. In fact, the jury in the present case weighed and considered all of the available facts when it determined that Valentine was guilty of forty (not one, not two, not twenty) counts of rape or forcible penetration. If Valentine had sought to rebut any of the charges against him— with information,- for example, about his daily whereabouts or concerning his relationship with the little girl — he was free to present it to the jury. The jury would have then been 'able to consider the information as it weighed the evidence in determining the number of charges that it believed was established beyond a reasonable doubt. But creating a per se rule that .unduly narrows the number of identical charges that may be filed, as the majority has done, takes away the jury’s power to determine whether multiple crimes have occurred. The effect of failing to recall time and place details is a matter appropriately assessed by the jury, not by a per se rule.

Furthermore, the majority does not articulate why, in its opinion, the decision of the Ohio Court of Appeals was contrary to, or involvéd an unreasonable application of, clearly established federal law. In its discussion, the state appellate court applied existing Ohio law on the subject of child victims, much of which weighed the policy considerations involved in a Russell analysis. The Ohio Court of Appeals,' for example, observed that “[i]t is well-established that, particularly in cases involving sexual misconduct with a child, the precise times and dates of the alleged offense or offenses cannot be determined with specificity,” citing State v. Daniel, 97 Ohio App.3d 548 , 647 N.E.2d 174, 180 (1994). It also noted that, in the present case, the victim “is an eight-year old child who may not be able to remember exact dates and times, considering that the same conduct occurred during a ten-month period of time and continued until she reported it to her teacher.” Ultimately, the court’s decision turned on the fact that the victim was a young child. Because Russell dealt with individuals convicted of refusing to answer questions posed by a congressional subcommittee, not with the special public policy concerns involved where a young child is both the victim and the sole witness, I see nothing in the state-court opinion that is an unrea *642 sonable application of the Russell standard.

The Ohio Court of Appeals further observed that ‘Valentine has failed to demonstrate any material detriment to his ability to defend himself resulting from the lack of specificity of the dates listed in the indictment.” This conclusion is the key to the case. Under Ohio Supreme Court precedent, “where the inability to produce a specific time or date when the criminal conduct occurred is ... without material detriment to the preparation of a defense, the omission is without prejudice, and without constitutional consequence.” State v. Sellards, 17 Ohio St.3d 169 , 478 N.E.2d 781, 785 (1985). The majority, however, fails to explain why this conclusion of the Ohio Court of Appeals is contrary to, or involves an unreasonable application of, clearly established federal law. Requiring that an indictment utilizing multiple identical charges present a material detriment to the defendant in order to be constitutionally significant is hardly contrary to existing Supreme Court caselaw.

Russell’s last requirement that “the record show[] with accuracy to what extent [the defendant] may plead a former acquittal or conviction,” 369 U.S. at 764 , 82 S.Ct. 1038 (citations omitted), has been commonly interpreted to act as a restriction on indictments that might raise double jeopardy concerns. But contrary to the majority’s conclusion, this prong of Russell , read literally, does not suggest a restriction on identical charges within a single indictment. Instead, the language clearly protects the defendant in the future, so that the current record may demonstrate “with accuracy” a “former acquittal or conviction.” The Russell double jeopardy test thus serves to protect defendants from having a confusing record of charges used against them at a later time. It does not, as the majority suggests, serve to protect defendants from multiple identical counts contained within the same indictment.

Very few cases have expounded on Russell ’s last requirement, and the one relied on by the majority is distinguishable from the present case. This case is Isaac v. Grider, 211 F.3d 1269 , No. 98-6376, 2000 U.S.App. LEXIS 9629, at *1 (6th Cir. May 4, 2000) (unpublished), where the public policy concern highlighted by Russell is clearly paramount. In that case, as in this one, the defendant was charged with multiple “cookie cutter” counts of sexual abuse of minors. But, unlike Valentine, Isaac was acquitted on several counts through a directed verdict prior to his trial. Which of the charges remained for consideration by the jury was therefore unclear. In contrast, Valentine was not acquitted on any of the charges against him, so he was not at risk of being tried twice for the same offense. The dangers present in Isaac’s trial were therefore conspicuously absent in Valentine’s.

In addition, the state has stipulated that Valentine will not be charged in the future for any conduct taking place during the time period covered by the present case. This means that Valentine will never be at risk of being tried twice for the same incident, which I believe cures any double jeopardy problem. The majority argues that such a view suggests that “placing a defendant at risk of double jeopardy is acceptable so long as the prosecution wins and is pleased with the verdict and sentence.” Op. at 635. To the contrary, the risk of double jeopardy is nonexistent if the state is legally bound to never again prosecute. So any violation that may have occurred here is cured by the state’s stipulation, regardless of the motivations in *643 volved. See Fawcett, 962 F.2d at 618-19 (“The prosecutor took care of the [due process requirements] by stipulating that Fawcett would be immune from further prosecution for any sexual contact with [the victim] during the entire six-month period.”) The majority, moreover, cites no authority for its conclusion that the state’s stipulation fails to cure the potential for a double jeopardy problem.

In sum, I do not believe that Valentine was insufficiently appraised of the charges against him or that he faces a risk of double jeopardy. I also fail to see where the analysis by the Ohio Court of Appeals was contrary to, or involved an unreasonable application of, clearly established federal law. Decades of existing caselaw have established the precedent that, when it comes to child victims, indictments might of necessity be vague as to the details of time and place. This does not mean, however, that they are constitutionally deficient. To the extent that this is a case of first impression, there is no authority to support the finding that the Ohio Court of Appeals unreasonably applied existing Supreme Court precedent. I therefore believe that we should reverse the district court’s granting of an unconditional writ of habeas corpus and remand with instructions to dismiss Valentine’s habeas petition in its entirety.