UNITED STATES' UNOPPOSED MOTION FOR ORDER AUTHORIZING PREPARATION OF TRANSCRIPT; [PROPOSED] ORDER

WILLIAM ALSUP, District Judge.

TO: DEFENDANT MARCEL DARON KING

PLEASE TAKE NOTICE that on August 22, 2017, at Alsup, the United States will move this Court for an order authorizing the court reporter to prepare the transcript from the in camera proceedings conducted on September 13, 2016, in the captioned case. This motion is based upon the attached memorandum of points and authorities, and the supporting declaration of Philip Kopczynski. Unless the Court wishes to hear argument, the government asks the Court to decide this unopposed motion on the papers. 2:00 p.m., before the.

MEMORANDUM OF POINTS AND AUTHORITIES

The government asks the Court to authorize the court reporter to prepare the transcript from the in camera proceedings conducted in this matter on September 13, 2016. There is no rule or test, to the government's knowledge, that governs this request; instead, it is simply a matter left to the Court's discretion. See United States v. Schlette, 842 F.2d 1574, 1577 (9th Cir.), amended, 854 F.2d 359 (9th Cir. 1988). The government asks the Court to exercise its discretion in favor of release here because the transcript is relevant to the defendant's appeal.

On September 13, 2016, the Court questioned T.G., the minor victim in the then-pending supervised release matter, about whether she was able to testify in the defendant's presence. The Court decided to question T.G. in chambers at the government's suggestion and without objection from the defense. Tr. 9/13/16 at 8:11-19. The individuals present in chambers included the victim, her guardian, Your Honor, one of Your Honor's clerks, the lawyers, the probation officer, and the court reporter. Id. at 30:4-12. Upon returning to the courtroom, the Court remarked, "All right. . . . We're going to start [with T.G.'s testimony] in the normal way with the defendant present. But if the witness becomes uncomfortable, she's going to ask that the witness[1] be excluded, and I — or if I feel that in some way she's reached that point, I may myself make that conclusion. But she's willing to give it a try, so we will see how that goes." Id. at 31:5-12.

When the government's direct examination of T.G. reached the topic of the sexual assault, T.G. asked, "Can we do the second alternative?" Id. at 59:10. The "second alternative" referred to T.G. testifying with the defendant not present. The Court decided to permit T.G. to testify with the defendant participating by video and telephone from another courtroom. See id. at 67-68. She testified with that arrangement, and after further proceedings, the Court found that the defendant was guilty of the charged violation of his supervised release. Dkt. 281.

On appeal, the defendant claims the Court erred by excluding him from the courtroom during parts of T.G.'s testimony. He argues that the Court failed to make the factual findings required by 18 U.S.C. § 3509, and that his exclusion violated his constitutional rights. See Appellant's Opening Br. (Dkt. 9) 23-37, United States v. King, No. 17-10006 (9th Cir.). The government has not yet filed its answering brief.

The Court's questioning of T.G. in camera is relevant to the defendant's claim on appeal. The Court's questions, and T.G.'s answers, may help show the basis for the temporary exclusion of the defendant from the courtroom. The government is ordering the transcript, but the court reporter requires an order from this Court allowing her to prepare the transcript. See Declaration of Philip Kopczynski in Support of Motion for Miscellaneous Relief ("Kopczynski Decl.") ¶ 3. The government respectfully asks the Court to issue such an order. The transcript should be sealed, see 18 U.S.C. § 3509(d)(2), but released to the parties. If the government uses the transcript in its response to the defendant's appeal, it will redact identifying information of T.G. The defendant does not oppose this motion. Kopczynski Decl. ¶ 4.

[PROPOSED] ORDER

The government's motion is GRANTED. The court reporter is authorized to prepare the transcript from the in camera proceedings conducted in this matter on September 13, 2016. The transcript shall be filed under seal but released to the parties.

IT IS SO ORDERED.

DECLARATION OF PHILIP KOPCZYNSKI IN SUPPORT OF MOTION FOR MISCELLANEOUS RELIEF

I, Philip Kopczynski, being duly sworn, state:

1. I am an Assistant United States Attorney in the Northern District of California.

2. I am counsel of record for the United States of America in the above-captioned case.

3. The court reporter who reported the in camera proceedings conduced on September 13, 2016, informed one of my colleagues in the U.S. Attorney's Office today that she requires a court order authorizing her to prepare the transcript of those proceedings.

4. Counsel for the defendant informed me that he does not oppose this motion.

I declare under penalty of perjury that the foregoing is true and correct to the best of my information and belief.