[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 26, 2007
No. 07-10858 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00072-CR-J-25-HTS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDEL JORGE MASO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 26, 2007)
Before WILSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Edel Jorge Maso appeals his conviction for possession with intent to
distribute and aiding and abetting the distribution of cocaine, in violation of 21
U.S.C. § 841(a)(1) and (b)(1) and 18 U.S.C. § 2. Specifically, Maso argues that
the district court (1) violated his Sixth Amendment right to a public trial by
holding an in camera hearing to determine if a principal government witness could
testify using a pseudonym and ultimately allowing the witness to do so; and
(2) violated his Sixth Amendment right to confront witnesses by allowing the
principal government witness to testify using a pseudonym. For the reasons
discussed below, we affirm.
Before Maso’s trial, the government submitted a motion to allow the
confidential witness (“CW”) to testify using a pseudonym. The government
explained that the CW was a professional undercover informant for the Drug
Enforcement Agency (“DEA”) and had been threatened in the past in connection
with his work as a DEA informant. The government indicated that it had informed
Maso of the CW’s real name. The government argued that public disclosure,
however, of the CW’s real name would endanger the CW and his family and would
compromise ongoing DEA investigations. Maso objected to the government’s
motion, suggesting that the use of a pseudonym would violate his right to
confrontation and the public’s interest in an open trial. The district court indicated
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that it would hold an in camera hearing to determine if revealing the CW’s real
name in open court posed an unreasonable risk. Maso objected to holding the
hearing in camera. The district court overruled this objection and excluded
everyone from the courtroom save those involved in the trial.
At the in camera hearing, the CW testified as follows. He had worked as a
CW for the DEA for 6 years and in 30 investigations, some of which led to
prosecutions and some of which were ongoing. Approximately one month before
the hearing, someone approached the CW’s father and warned that the CW should
“watch [his] back” and that the CW’s family might “get hurt.” Also,
approximately three of four months before the hearing, someone approached the
CW’s father-in-law and other family members at a family reunion in Washington
state and offered money for a picture and/or the location of the CW. Furthermore,
a couple of years before the hearing, in another state, someone hired a hit man to
find and kill the CW. This threat on his life led the DEA to relocate the CW. The
CW also had been relocated one other time since then. On cross-examination, the
CW admitted that his father was in Mexico at the time that the threat was
communicated and that the threat did not stem from the instant case but from a
case out of Washington state. The district court granted the government’s motion,
instructed the parties to refer to the CW as “Jack Menendez,” and forbade any
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cross-examination into his true identity. Accordingly, the CW testified as “Jack
Menendez.”1
Specifically, the CW testified as follows. Under the supervision of the DEA,
he arranged to meet one of Maso’s codefendants in a Florida store parking lot to
purchase cocaine. After the CW arrived at the parking lot and showed the
codefendant that he had the requisite money, the codefendant called two of his
acquaintances to deliver the cocaine to the store parking lot. Maso was one of
these acquaintances. Maso drove the car in which the acquaintances arrived. Maso
also asked the CW if he had the requisite money and asked the codefendant if
Maso should count the money in his car before handing over the cocaine. The
other acquaintance carried the cocaine on his person. On cross-examination, the
CW admitted that he was paid for his work in the investigation of Maso. The CW
also admitted that he did not become a CW for the DEA until after he was arrested
for possessing half a pound of methamphetamine and that his charge from that
arrest was dismissed in exchange for his cooperation. The CW further admitted
that the portion of the conversation in which Maso asked if he should count the
CW’s money in Maso’s truck was not recorded because of an apparent malfunction
with his equipment.
1
Per Maso’s request, the district court did not inform the jury that the CW was testifying
using a pseudonym.
4
I. Right to a Public Trial
A violation of the right to a public trial constitutes structural error, or a
“defect affecting the framework within which the trial proceeds, rather than simply
an error in the trial process itself.” Judd v. Haley,
250 F.3d 1308, 1314-1315 (11th
Cir. 2001). Therefore, such a violation is not subject to a harmless error analysis.
Id. Rather, “once a petitioner demonstrates a violation of his Sixth Amendment
right to a public trial, he need not show that the violation prejudiced him in any
way. The mere demonstration that his right to a public trial was violated entitles a
petitioner to relief.”
Id.
The Sixth Amendment provides that, “[i]n all criminal prosecutions, the
accused shall enjoy the right to a . . . public trial . . . .” U.S. Const. amend. VI.2
The Supreme Court has held, however, that “the right to an open trial may give
way in certain cases to other rights or interests, such as the defendant’s right to a
fair trial or the government’s interest in inhibiting disclosure of sensitive
information.” Waller v. Georgia,
467 U.S. 39, 45,
104 S. Ct. 2210, 2215,
81
L. Ed. 2d 31 (1984). The Supreme Court cautioned that “[s]uch circumstances will
2
The government has argued that the right to a public trial does not extend to the in
camera hearing in question or the use of a pseudonym. The government argues that the in
camera hearing was analogous to a bench conference, to which the right normally does not
extend, and merely covered a matter collateral to the ultimate issue of Maso’s guilt. The
government argues that the use of a pseudonym did not constitute a closure, as no one was
excluded from the courtroom. We do not need to resolve these issues for purposes of the instant
appeal.
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be rare, however, and the balance of interests must be struck with special care.”
Id.
Indeed, in Waller, the Supreme Court established the following test to govern
courtroom closures:
The party seeking to close the hearing must advance an overriding
interest that is likely to be prejudiced, the closure must be no broader
than necessary to protect that interest, the trial court must consider
reasonable alternatives to closing the proceeding, and it must make
findings adequate to support the closure.
Waller, 467 U.S. at 48, 104 S.Ct. at 2216.
The district court did not violate Maso’s right to a public trial by conducting
an in camera, rather than open, hearing or allowing the CW to testify using a
pseudonym. See U.S. Const. amend. VI. Regarding the in camera hearing, the
circumstances surrounding the closure satisfied the Waller test. See
Waller, 467
U.S. at 48, 104 S.Ct. at 2216. Specifically, the CW advanced an interest that was
more important than Maso’s interest in an open hearing, namely his and his
family’s safety and his role in ongoing DEA investigations. To this end, the CW
testified that, within the year before Maso’s trial, someone had communicated
threats on the CW and his family to the CW’s father and had offered to pay the
CW’s family money in exchange for information on his then-current identity and
whereabouts. Maso also testified that he was involved in ongoing DEA
investigations. The CW’s interest in protecting himself and his family and his role
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in ongoing DEA investigations would be prejudiced if the evidentiary hearing were
open, in that a public record would be made offering clues as to his real identity.
Also, closing the evidentiary hearing was the least restrictive method to protecting
the CW’s interests. Finally, the arguments and discussions both before and during
the closed hearing provided adequate information for appellate review, as they
provided sufficient information about the CW’s fears for his and his family’s
safety and interest in maintaining secrecy as a CW.
Regarding the use of a pseudonym, the circumstances surrounding the
closure also satisfied the Waller test. See
id. Specifically, the CW testified to an
overriding interest in not revealing his true name to the public, as discussed above.
The CW’s interest in protecting himself and his family and his role in ongoing
DEA investigations would be prejudiced if his name, evidence of his continuing
role as a CW for the DEA, and whereabouts were made a public record. Also,
allowing the CW to use a pseudonym was the least restrictive method to protecting
the CW’s interests. Finally, as discussed above, the record provided adequate
findings for appellate review. Accordingly, as both of the closures satisfied the
Waller test for justifying a courtroom closure, the district court did not violate
Maso’s right to a public trial in conducting an in camera hearing and allowing the
CW to testify using a pseudonym. Therefore, we affirm Maso’s conviction as to
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this issue.
II. Right to Confront Witnesses
We review a district court’s restriction of a defendant’s right to confront
witnesses for abuse of discretion. See Alford v. United States,
282 U.S. 687, 694,
51 S. Ct. 218, 220,
75 L. Ed. 624 (1931). We will not, however, review the
violation for harmless error. See Smith v. State of Illinois,
390 U.S. 129, 131,
88
S. Ct. 748, 750,
19 L. Ed. 2d 956 (1968). Rather, “(a) denial of cross-examination
without waiver . . . would be constitutional error of the first magnitude and no
amount of showing of want of prejudice would cure it.”
Id.
The Sixth Amendment Confrontation Clause provides that, “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI. It is axiomatic that the
Confrontation Clause affords a defendant the right to cross examine witnesses. See
Pointer v. Texas,
380 U.S. 400, 400-01,
85 S. Ct. 1065, 1066,
13 L. Ed. 2d 923
(1965). Moreover, the Supreme Court has held that the Confrontation Clause
protects a defendant from restrictions on the scope of his cross-examination,
specifically regarding the witness’s identity.
Smith, 390 U.S. at 130-33, 88 S.Ct. at
749-51.3
3
In Smith, the principal witness against the defendant testified using a
pseudonym. 390
U.S. at 130, 88 S.Ct. at 749. Although defense counsel previously had represented the witness,
8
The issue presented by the instant case, namely whether the Confrontation
Clause was violated when the government revealed the principal witness’s real
name to the defendant in advance of trial but the witness refused to divulge his
identity in open court, is a matter of first impression to this Court. We note,
however, that our predecessor has considered an analogous situation and that
certain of our sister circuits have considered the exact situation.
In United States v. Alston,
460 F.2d 48, 51-52 (5th Cir. 1972), our
predecessor considered a case in which the principal witness against the defendant
refused to divulge his home address, citing concerns for his and his family’s safety.
Our predecessor held that there was no “per se requirement that a witness’ address
be divulged upon demand.”
Id. Rather, our predecessor recognized an exception
for “instances in which the physical safety of the witness or his family might be
endangered by disclosure.”
Id. Our predecessor concluded that, because the
the Supreme Court noted that the record was devoid of any indication that defense counsel knew
the witness’s real name or residence.
Id. at 131 n.5, 88 S. Ct. at 749. In holding that this cross-
examining scenario deprived the defendant of his confrontation right, the Supreme Court
reasoned that
when the credibility of a witness is in issue, the very starting point in exposing
falsehood and bringing out the truth through cross-examination must necessarily
be to ask the witness who he is and where he lives. The witness’ name and
address open countless avenues of in-court examination and out-of-court
investigation. To forbid this most rudimentary inquiry at the threshold is
effectively to emasculate the right of cross-examination itself.
Id. at 131, 88 S.Ct. at 750 (quotations omitted).
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witness in question (1) had given enough information to “place [him] in his proper
setting” and to allow effective cross-examination and (2) had a reasonable fear for
his and his family’s safety, the district court did not abuse its discretion in
sustaining the government’s objection to examination of his home address.
Id. at
52.
In Siegfriedt v. Fair,
982 F.2d 14, 18-19 (1st Cir. 1992) (persuasive
authority), the First Circuit held that the district court had not violated the
defendant’s right to confrontation by allowing a witness to testify using a
pseudonym at a probable cause hearing because the witness already had been using
the pseudonym as an alias outside of the courtroom and because the defendant
knew the witness’ real name, performed an investigation, and presented
impeachment evidence. In Clark v. Ricketts,
958 F.2d 851, 855 (9th Cir. 1991)
(persuasive authority), the Ninth Circuit held that the district court had not violated
the Confrontation Clause by allowing a witness to testify without revealing his real
name, reasoning that “there is no absolute right of an accused to have a jury hear a
witness’s true name” and that the defendant knew the witness’ real name and
could, therefore, conduct an out-of-court investigation and in-court examination.
The district court did not violate Maso’s right to confront witnesses by
allowing the CW to testify using a pseudonym. See U.S. Const. amend. VI. Our
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predecessor has approved a restriction on revealing potentially sensitive
information when the witness demonstrated a reasonable fear for his and his
family’s safety. See
Alston, 460 F.2d at 51-52.4 Also, we are persuaded by our
sister circuits’ approvals of restrictions on revealing a witness’s real name when
the government previously had informed the defendant of the witness’s real name.
See
Siegfriedt, 982 F.2d at 18-19 (persuasive authority);
Clark, 958 F.2d at 855
(persuasive authority). Here, the CW demonstrated a reasonable fear for his and
his family’s safety, explaining that someone had communicated a threat on him
and his family to his father in Mexico, someone had approached his family in
Washington state for information on his then-current identity and whereabouts, and
someone had hired a hit man to kill him. See
Alston, 460 F.2d at 51-52. Also, the
government revealed the CW’s real name to Maso in advance of his trial, and Maso
effectively explored the CW’s past on cross-examination, asking questions about
his compensation for working as a DEA and his own prior drug activity. See
Siegfriedt, 982 F.2d at 18-19 (persuasive authority);
Clark, 958 F.2d at 855
(persuasive authority). Accordingly, as the CW established a reasonable fear for
his and his family’s safety and as the government disclosed the CW’s real name to
4
See Bonner v. Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting as
binding precedent in the Eleventh Circuit, all decisions of the former Fifth Circuit announced
prior to October 1, 1981).
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Maso in advance of trial, such that Maso’s ability to prepare his defense was not
hampered, the district court did not violate Maso’s right to confront witnesses by
allowing the CW to testify using a pseudonym. Therefore, we affirm Maso’s
conviction.
AFFIRMED.
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