United States v. Biagon ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-10479
Plaintiff-Appellee,
v.  D.C. No.
CR-05-00238-JSW
AGOSTO AYSON BIAGON,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted
April 18, 2007—San Francisco, California
Filed December 17, 2007
Before: David R. Thompson, Andrew J. Kleinfeld, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Thomas;
Concurrence by Judge Kleinfeld
16437
UNITED STATES v. BIAGON 16439
COUNSEL
Claire M. Leary, San Francisco, California, for the appellant.
Jeffrey R. Finigan, Assistant United States Attorney, San
Francisco, California, for the appellee.
16440 UNITED STATES v. BIAGON
OPINION
THOMAS, Circuit Judge:
In this appeal, we consider whether the district court vio-
lated the defendant’s right of allocution when it denied a
motion to close the courtroom for sentencing. We conclude
that the defendant’s rights were not violated, and affirm the
judgment of the district court.
I
On May 4, 2005, an indictment was filed against Agosto
Ayson Biagon and a dozen or so other defendants, charging
them with conspiracy to steal valuable items, and theft of
valuable items, found in U.S. mail bound for military person-
nel stationed in Japan. The defendants, including Biagon,
worked at a company that provided temporary staffing for
Nippon Cargo Airlines at the San Francisco International Air-
port. Biagon pled guilty to mail theft under 18 U.S.C. § 1708,
Count Four of the indictment, on November 29, 2005. He
admitted to stealing a laptop from the mail. In addition to
pleading guilty, Biagon cooperated with the government,
offering “valuable information against his co-defendants and
about the conspiracy in general,” identifying the individuals
involved, corroborating the statements of another cooperator,
and agreeing to cooperate in the future against an at-large
defendant.
As a result of his cooperation and lack of criminal history,
the pre-sentence report recommended Biagon receive a sen-
tence of three months in prison followed by three years of
supervised release, along with $2,000 in restitution. The gov-
ernment recommended the same sentence but contended that
two years of supervised release was more appropriate. In his
sentencing memorandum, Biagon requested that he be sen-
tenced to live in a halfway house in lieu of three months in
prison, allowing him to pay the $2,000 restitution while serv-
UNITED STATES v. BIAGON 16441
ing his time. He noted that no prison sentence would be
required under the Sentencing Guidelines and suggested that
he could be given a sentence exceeding three months if he
could serve it in a halfway house.
The sentencing memoranda produced by both the govern-
ment and Biagon were filed under seal. The government
moved for an order sealing its sentencing memorandum
because “Mr. Biagon cooperated with the government in this
prosecution and revelation of these documents could jeopar-
dize him.”
At the beginning of the sentencing hearing, Biagon’s attor-
ney immediately asked the judge to clear the courtroom or
move the hearing to the end of the day so that Biagon’s coop-
eration with the government could be discussed freely, but the
district judge refused:
Ms. Leary: Your Honor, can the courtroom be
cleared, or can we be moved to a point where it’s
easier —
The Court: Well, I don’t think it’s necessary, in
the sense that the matters are well laid out in the —
both the presentence report and in your respective
sentencing memoranda; and so the issues that you
raise are. . . . I understand your position, I under-
stand the government’s position, and I don’t think
it’s necessary to bare them in court, and therefore, I
don’t believe — I’ve sealed the documents, but I
don’t need — I’m familiar with all of these cases.
There are many of them. So I have a great deal of
knowledge about what has happened in this case.
Ms. Leary: I see.
The Court: So if you want to refer to it in sort of
elliptical terms, you can do so, but I’m not inclined
to seal the courtroom.
16442 UNITED STATES v. BIAGON
The district court again addressed the cooperation issue
when it stated: “putting aside the point that we’re not going
to discuss, which is sort of the elephant in the room here, but
I’m familiar with the elephant as we all are . . . .” Later in the
hearing, the district court gave Biagon the chance to exercise
his right of allocution, asking if there was anything he wished
to say. Presumably through a translator, Biagon stated: “I am
asking for the forgiveness of this court, from the United States
government, for my involvement in this case, and the people
that I hurt, I asked for forgiveness. I am very sorry for what
I did. And that’s it.” Neither Biagon nor his attorney men-
tioned his cooperation or referred to it during the hearing.
At the hearing, Biagon’s counsel again asked for more than
three months in a halfway house instead of three months in
prison, in order to allow him to pay restitution, arguing that
he would not be able to pay after prison because he would
likely be deported upon release. The government continued to
recommend a prison sentence. The district court sentenced
Biagon to three months’ imprisonment followed by a three-
year term of supervised release. The court also ordered Bia-
gon to pay restitution of $2,000. This timely appeal of his sen-
tence followed.
II
[1] The sole question in this appeal is whether Biagon’s
right of allocution was violated. “In the context of criminal
law, the backbone of [our] democratic faith is the right of a
criminal defendant to defend himself against his accusers; and
it has long been recognized that allocution, the right of the
defendant to personally address the court, is an essential ele-
ment of a criminal defense.” Boardman v. Estelle, 957 F.2d
1523, 1526 (9th Cir. 1992) (footnote omitted). “The purpose
of the right of allocution is to allow a defendant to “bring mit-
igating circumstances to the attention of the court.” Sherman
v. United States, 383 F.2d 837, 839 (9th Cir. 1967). Due pro-
cess requires that a defendant who seeks to speak must be
UNITED STATES v. BIAGON 16443
given such an opportunity before a sentence is imposed.
Boardman, 957 F.2d at 1524. However, we have “never held
that a defendant has a right to unlimited allocution.” United
States v. Leasure, 122 F.3d 837, 840 (9th Cir. 1997)
[2] The Federal Rules of Criminal Procedure specify a
means of implementing this right. Before imposing a sen-
tence, a district court must provide the defendant’s attorney an
opportunity to speak, and also must “address the defendant
personally in order to permit the defendant to speak or present
any information to mitigate the sentence.” Fed. R. Crim. P.
32(i)(4)(A)(i) and (ii). The right to allocution “may be satis-
fied by allowing a defendant an opportunity to make a state-
ment before the end of sentencing but after the court has
indicated its tentative conclusions on sentencing.” United
States v. Leasure, 122 F.3d 837, 840 (9th Cir. 1997).
[3] In this case, the record clearly shows that the district
court asked Biagon whether there was anything he wished to
say before sentence was imposed, and Biagon made a brief
statement to the district court. Biagon actually exercised his
right of allocution. He was not deprived of any constitutional
right.
All of this is conceded by Biagon on appeal. However, he
contends that because the district court did not grant defense
counsel’s motion to close the proceedings at the onset of the
sentencing hearing, his right of allocution was infringed
because he could not allocute fully.
[4] First, the district court did not err in denying the motion
to close the courtroom. The Federal Rules of Criminal Proce-
dure provide for a method of hearing a defendant’s statement
in camera. Rule 32 provides in relevant part that “[u]pon a
party’s motion and for good cause, the court may hear in cam-
era any statement made under Rule 32(i)(4).” Fed. R. Crim.
P. 32(i)(4)(C).
16444 UNITED STATES v. BIAGON
[5] However, Biagon did not make a motion under Rule
32(i)(4)(C). Rather, defense counsel simply requested closure
of the courtroom at the onset of the hearing. The request was
general; it was not tethered to Biagon’s desire to allocute.
Defense counsel did not argue at that time, nor later when
Biagon exercised his right of allocution, that Biagon’s right to
allocute would be infringed if he were to allocute in open
court.
[6] Under these circumstances, the district court was quite
correct in denying the motion, particularly given that the
motion was made orally at the hearing without prior notice.
A notice to the public is required before a court may close
court proceedings to which a qualified right of access exists.
Phoenix Newspapers, Inc. v. District Court, 156 F.3d 940,
946 (9th Cir. 1998); Oregonian Pub. Co. v. District Court,
920 F.2d 1462, 1465 (9th Cir. 1990). Under the proper proce-
dure, notice to the public would have been accomplished by
the filing of a motion under Fed. R. Crim. P. 32(i)(4)(C). If
that had been done, and if the district court had made proper
findings, see Phoenix Newspapers, 156 F.3d at 949, Orego-
nian, 920 F.2d at 1466, then the defendant could have con-
ducted his allocution in camera. Failure to follow the proper
procedures as a predicate to closure of the courtroom would
have been error. Press-Enterprise Co. v. Superior Court, 478
U.S. 1, 8-9 (1986). As we noted in Oregonian:
The Supreme Court has made clear that criminal
proceedings and documents may be closed to the
public without violating the first amendment only if
three substantive requirements are satisfied: (1) clo-
sure serves a compelling interest; (2) there is a sub-
stantial probability that, in the absence of closure,
this compelling interest would be harmed; and (3)
there are no alternatives to closure that would ade-
quately protect the compelling interest. Press Enter-
prise, 478 U.S. at 13-14 (test applied to accused’s
right to a fair trial). The court must not base its deci-
UNITED STATES v. BIAGON 16445
sion on conclusory assertions alone, but must make
specific factual findings. Id. at 13-15.
920 F.2d at 1466.
[7] Given these considerations, without prior notice of the
motion, much less an opportunity to follow the process
required by the Supreme Court in Press-Enterprise for closure
of a public criminal proceeding, the district court was entirely
correct in denying the contemporaneous oral motion to close
the hearing.
Second, the record clearly shows that the district court was
fully aware of the extent of Biagon’s cooperation with the
government. Therefore, there is no merit to Biagon’s sugges-
tion that the district court did not consider his cooperation, or
that his sentence would have been different if he had
described the extent of his cooperation during his allocution.
[8] Finally, although the right to allocution is an important
one, we have “never held that a defendant has a right to
unlimited allocution.” Leasure, 122 F.3d at 840. Here, the
court did not restrict the defendant’s statement in any respect.
The defendant’s apparent desire to say more was not commu-
nicated to the court, nor was the request for closure of the
courtroom made specifically for the purpose of allowing in
camera allocution. A sentencing court does not deny a defen-
dant’s constitutional right of allocution by declining a general
request to close a courtroom for a sentencing hearing, particu-
larly when the defendant fails to move for in camera allocu-
tion pursuant to Rule 32(i)(4)(C), is afforded the opportunity
to allocute, and actually exercises the right to allocute. Not
only was there no constitutional error, but the district court
acted entirely properly under the circumstances in conducting
the sentencing hearing.
AFFIRMED.
16446 UNITED STATES v. BIAGON
KLEINFELD, Circuit Judge, concurring:
I concur in the result the majority reaches, and in most of
the reasoning. I respectfully disagree as to the matters dis-
cussed below.
The majority correctly points out that Biagon (1) had a con-
stitutional right to allocution, (2) he exercised it, (3) he did
not say that he had more that he wanted to say if he could
speak in a closed courtroom, and (4) the judge did not abuse
his discretion under Federal Rule of Criminal Procedure 32 in
denying his lawyer’s request at the commencement of the sen-
tencing hearing to close the courtroom to the public or move
the hearing to when everyone else (probably lawyers and
defendants in other cases) would be gone. That is all that Bia-
gon’s brief puts before us.
Defense counsel did not want the public proceeding to
reveal Biagon’s cooperation with the government. His cooper-
ation was the reason urged for lenience in sentencing. The
judge said he was familiar with this “elephant in the room”
and would consider it, so closing the courtroom in order to
bring the “elephant” to his attention was unnecessary. The
court’s decision was within its discretion under Federal Rule
of Criminal Procedure 32(i)(4)(C), because the “good cause”
shown for in camera proceedings did not outweigh the inter-
est in an open courtroom.1
That is all we needed to say to decide the case. The major-
ity has said it.
I do not agree with the majority’s holding that “Biagon did
not make a motion.” There is no requirement in the rule that
a written motion be filed. Counsel’s request was clear. Coun-
1
Fed R. Crim. P. 32(i)(4)(C) (“In Camera Proceedings. Upon a party’s
motion and for good cause, the court may hear in camera any statement
made under Rule 32(i)(4).”).
UNITED STATES v. BIAGON 16447
sel often phrase oral motions as “requests.” A “motion” is
nothing more than a word lawyers use to refer to requests
made of the court. There is no support for requiring more than
what counsel did to invoke the court’s discretion under Rule
32(i)(4)(C) to seal the courtroom.
The majority goes on to say, in error, that “[a] notice to the
public is required before a court may close court proceedings
to which a qualified right of access exists.” That proposition
is mistaken. The precedents the majority cites are Oregonian
Publishing Company v. United States District Court2 and
Phoenix Newspapers Inc. v. United States District Court.3
Neither is on point. Both cases are petitions for mandamus by
newspapers for access to documents. In Oregonian Publish-
ing, the newspaper wanted access to the plea agreement and
related documents filed under seal.4 In Phoenix Newspapers,
we carefully restricted the reach of our opinion by saying that
“[t]he issue to which our attention is directed is post-trial tran-
script access.”5 Neither case involves a defendant’s request to
conduct proceedings in camera, and neither case involves the
right of the press or the public to be physically present in the
courtroom during a sentencing hearing or any other kind of
hearing.
I do not see a good reason to turn this easy case affirming
denial of a defendant’s motion to seal the courtroom into a
case about an entirely different subject not raised by appel-
lant’s brief, a new press right to be present during sentencing
hearings.
2
Oregonian Publishing Company v. United States District Court, 920
F.2d 1462 (9th Cir. 1990).
3
Phoenix Newspapers Inc. v. United States District Court, 156 F.3d 940(9th Cir. 1998).
4
Oregonian Publishing, 920 F.2d at 1464.
5
Phoenix Newspapers, 156 F.3d at 947.
16448 UNITED STATES v. BIAGON
Generally courtrooms ought to be open and ordinarily sen-
tencing hearings ought to be open, as this one quite properly
was. In criminal prosecutions, the right to a “public trial” is
protected by the Sixth Amendment. The public and whatever
press have any interest, including newspapers, freelance writ-
ers, bloggers and anyone else, ought generally to be able to
see what is going on in courtrooms, including sentencing
hearings. But occasionally there is a good reason to hold sen-
tencing proceedings, at least partially, in camera.
The most common reason for in camera proceedings during
sentencing arises when a defendant has cooperated with the
government. The purpose is to protect him or her from being
murdered by individuals sharing the defendant’s interest, or
fellow prisoners who find out that he was a “snitch.” Many
criminals have strong feelings about people they call “snitch-
es,” even where their own cases were not affected. It is one
thing to send a defendant to jail or prison and quite another
to set him up to be hurt or killed there.
Another commonly arising reason for in camera proceed-
ings is where details of sexual matters will be exposed, such
as where children and others testify about the consequences
of being molested. Sometimes embarrassing medical informa-
tion has to be brought before the court. Sometimes the victim
of a financial crime does not want the public to know just how
precarious his or her business or charity is on account of the
defendant’s fraud or embezzlement, because exposure will
complete the destruction the defendant started. Sometimes the
government has to bring out matters of national security.
These are only some of the many legitimate “good cause”
considerations that the court should weigh when it exercises
its discretion under Rule 32(i)(4)(C).
An oral request without prior notice has been consistent
with the law, at least until this case. Rule 32(i)(4)(C), Phoenix
Newspapers, and Oregonian Publishing say nothing to the
contrary. Where last minute oral notice unduly risks the pub-
UNITED STATES v. BIAGON 16449
lic interest in access, the court has discretion to require that
a written motion be filed, and may continue the proceeding so
that the press or other public interests in openness can be
heard and considered. There is no basis in the rule or the cases
the majority relies on for denying the court this discretion.
Sometimes the court will require a written motion or issue a
continuance on a party’s motion or on its own motion. Judges
read newspapers, look at blogs, and notice crowds in the spec-
tator seats, so they have some sense of what cases have
attracted public interest. Sometimes the court may reasonably
proceed immediately on an oral motion with an in camera
proceeding, where, for example, a public proceeding might
get someone killed or cause needless embarrassment in a mat-
ter of no apparent public concern, or a reluctant victim or wit-
ness has just agreed to testify.
We ought not use this case as a vehicle to develop a new
rule unnecessary to a decision that may sacrifice other impor-
tant public interests to the interest in press access.