United States v. Mark Richard Powers , 622 F.2d 317 ( 1980 )

FLOYD R. GIBSON, Senior Judge.^*

Mark Powers appeals the pretrial order of the District Court¹, 477 F.Supp. 497, denying Powers’ motion to exclude the public during his criminal trial. We affirm.

On January 25,1979, a federal grand jury returned a two-count indictment against Powers charging violations of 18 U.S.C. §§ 371, 474 (1976) for conspiracy to counterfeit and possession of counterfeit plates. Powers entered a plea of not guilty on January 29, 1979. On April 3,1979, he filed a motion seeking further discovery concerning his past involvement as an undercover agent or informant for federal and state law enforcement officials for the purpose of establishing a defense. On June 8, 1979, the District Court ordered further discovery.

On July 25, 1979, Powers filed a motion to exclude the public during his trial, alleging that the right to a public trial is the personal right of the defendant and may be waived by him. The Government resisted the motion. The District Court held hearings on the motion on August 29, 1979, and September 4, 1979, at which time in camera testimony was given by Powers concerning his informant status. On September 7, 1979, the court entered an order denying Powers’ motion, but did find that Powers had served as an informant on a number of occasions for both the Federal Bureau of Investigation and the Iowa Department of Criminal Investigation. Powers appeals this interlocutory order under 28 U.S.C. § 1291 (1976).²

On appeal, Powers contends the District Court erred in requiring him to bear the burden of proof regarding the necessity of closure, and also in not granting his motion for closure.

In the District. Court, Powers argued that his entire criminal trial should be closed to the public so that he could adequately present his defense to the counterfeiting charges; otherwise he would be denied his right to a fair trial under the sixth and fifth amendments. The basis of Powers’s motion was that if he had been engaged in a conspiracy or in possession of counterfeit plates, it was as an informant for law enforcement officials, and therefore he lacked the requisite criminal intent. In order to establish a defense based upon lack of intent, Powers contends that he would be required to divulge his past activities as an informant in order to show that his activities in this case were no different from his actions during his previous informant activities, where in some instances he had possessed contraband unbeknownst to the law enforcement agency. Powers alleges that a public trial would deny his right to present a defense because fear for his welfare and safety, as well as that of his family, would preclude divulging his past activities in open court.

The District Court found that an order of closure would not be proper unless Powers established the following:

1) By clear and convincing evidence that there was a clear and present danger of actual harm to the life of the defendant or a member of his family;

2) consent to the closure on the part of the prosecution, * * * or a compelling reason for not requiring the prosecution’s consent;

3) by clear and convincing evidence that the closure of defendant’s criminal trial would effectively prevent the harm alleged and proven to exist; and

4) by clear and convincing evidence that there are no effective alternatives to the complete closure of the criminal trial.

United States v. Powers, 477 F.Supp. 497, 499 (S.D.Iowa 1979).

The District Court concluded that Powers had failed to prove by clear and convincing evidence that an open court presentation of his defense would result in a clear and present danger of actual harm to the life of the defendant or a member of his family. In addition, the court suggested an alternative to closure whereby Powers and the Government would stipulate to Powers’s informant status.

I.

Powers does not now contend that he has an absolute sixth amendment right to compel closure, though his motion for closure claimed that the right to public trial “is the right of the defendant and may be waived.” The Supreme Court, in Gannett Co. v. DePasquale, 443 U.S. 368, 382 & n. 11, 99 S.Ct. 2898, 2907 & n. 11, 61 L.Ed.2d 608, 623 & n. 11 (1979), clearly states that no absolute right to compel a private trial exists, citing Singer v. United States, 380 U.S. 24, 35, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965).

Forgoing any claim of absolute right to closure, Powers limits his claim to a sixth amendment right to waive his right to a public trial to those situations in which the right to a fair trial is denied. Essentially, Powers argues that his sixth amendment right to compel closure is coextensive with his fifth amendment due process right to a fair trial. The Court’s plurality decision in Gannett apparently does not preclude a right to compel closure whenever a defendant would otherwise be denied a fair trial, if Gannett’s pretrial ruling can be applied to the plenary criminal trial. Gannett, supra, 443 U.S. at 382 n. 11, 99 S.Ct. at 2907 n. 11, 61 L.Ed.2d at 623 n. 11; id. 443 U.S. at 440 & n. 16, 99 S.Ct. at 2936 & n. 16, at 659 & n. 16 (Blackmun, J., dissenting). See also id. at 443 U.S. 400, 99 S.Ct. at 2916, 61 L.Ed.2d at 634 (Powell, J., concurring). At issue in this appeal is the narrow question of whether Powers would be denied his due process right to a fair trial, and therefore whether the District Court erred in not allowing him to waive his sixth amendment right to a public trial and compel closure.³

II.

The Court’s majority opinion in Gannett did not precisely address the question of the extent to which a defendant can compel closure when he claims his right to a fair trial is in jeopardy. In a footnote, Justice Stewart quoted Singer v. United States, 380 U.S. 24, 35, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965),⁴ for the proposition that “although a defendant can, under some circumstances, waive his constitutional right to a public trial, he has no absolute right to compel a private trial.” Gannett, supra, 443 U.S. at 382 n. 11, 99 S.Ct. at 2907 n. 11, 61 L.Ed.2d at 623 n. 11 (emphasis added).

Justice Powell, however, in his concurring opinion in Gannett, suggested a standard to be applied by trial courts in response to requests for closure by the defendant:

The question for the trial court, therefore, in considering a motion to close a pretrial suppression hearing is whether a fair trial for the defendant is likely to be jeopardized by publicity, if members of the press and public are present and free to report prejudicial evidence that will not be presented to the jury.

* * * [Wjhere a defendant requests the trial court to exclude the public, it should consider whether there are alternative means reasonably available by which the fairness of the trial might be preserved without interfering substantially with the public’s interest in prompt access to information concerning the administration of justice.

443 U.S. at 400, 99 S.Ct. at 2916, 61 L.Ed.2d at 634 (emphasis added).⁵

In contrast, as pointed out by Justice Powell, 443 U.S. at 399, 99 S.Ct. at 2915, 61 L.Ed.2d at 634, the dissenting opinion of Justice Blackmun, joined by Justices Brennan, White, and Marshall, would impose a severe burden upon defendants seeking closure. “It comports with the Sixth Amendment to require an accused who seeks closure to establish that it is strictly and inescapably necessary in order to protect the fair trial guarantee.” 443 U.S. at 440, 99 S.Ct. at 2936, 61 L.Ed.2d at 660 (emphasis added).

Finally, Justice Rehnquist, in his concurring opinion, also objects to Justice Powell’s standards when the participants in a criminal litigation agree for any reason that the trial shall be closed, 443 U.S. at 404-05 & n. 2, 99 S.Ct. at 2918-19 & n. 2, 61 L.Ed.2d at 637-38 & n. 2, a situation not presented here.⁶

The criteria for closure adopted in the District Court are substantially similar to those outlined in Justice Blackmun’s dissenting opinion. Under the “strictly and inescapably necessary” standard, Justice Blackmun would require a three-prong test:

The accused who seeks closure should establish . . . the following:

First, he should provide an adequate basis to support a finding that there is a substantial probability that irreparable damage to his fair trial right will result from conducting the proceeding in public. * * * # * *

Second, the accused should show a substantial probability that alternatives to closure will not protect adequately his right to a fair trial.

* * * * * *

Third, the accused should demonstrate that there is a substantial probability that closure will be effective in protecting against the perceived harm.

443 U.S. at 441-42, 99 S.Ct. at 2937, 61 L.Ed.2d at 660-61.

The main difference between Justice Blackmun’s test and that required by the District Court is that the latter requires “clear and convincing” evidence in order to compel closure, while Justice Blackmun would require only a showing of “substantial probability.” In addition, the District Court would require “consent to the closure on the part of the prosecution” or “a compelling reason for not requiring the prosecution’s consent.” Justice Blackmun would apply his test regardless of the consent or nonconsent of the prosecutor. 443 U.S. at 445, 99 S.Ct. at 2939, 61 L.Ed.2d at 663.

We believe that Justice Black-mun’s three-prong test correctly states the standard to be applied in the limited case where the defendant seeks closure without the consent of the prosecutor. Nothing in the majority opinion in Gannett suggests otherwise.⁷ If anything, Justice Stewart’s majority opinion may imply a greater burden on the defendant to compel closure when there is no consent on the part of the prosecutor. See 443 U.S. at 382 & n. 11, 99 S.Ct. at 2907 & n. 11, 61 L.Ed.2d at 623 & n. 11.

The practice in Western civilization, and the common-law rule, has been to require public trials. Gannett, 443 U.S. at 384, 394, 414, 99 S.Ct. at 2908, 2913, 2923, 61 L.Ed.2d at 624, 630, 643. There is a strong societal interest in public trials. “Openness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public an opportunity to observe the judicial system. Estes v. Texas, supra, 381 U.S. [532], at 583 [85 S.Ct. 1628 at 1653, 14 L.Ed.2d 543] (Warren, C. J., concurring) [1965].” Gannett, 443 U.S. at 383, 99 S.Ct. at 2907, 61 L.Ed.2d at 623. The benefits of an open, public trial are substantial. Only in the rare case will closure to the press be necessary in order to protect a defendant’s right to a fair trial. Id., 443 U.S. at 404 n. 1, 99 S.Ct. at 2918 n. 1, 61 L.Ed.2d at 636 n. 1 (Rehnquist, J., concurring); Nebraska Press Association v. Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791, 2800, 49 L.Ed.2d 683 (1976); e. g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). Even fewer are those cases where the courts will need to go further and exclude the public for limited periods of time. United States v. Cianfrani, 573 F.2d 835, 854 (3d Cir. 1978); e. g., United States v. Bell, 464 F.2d 667, 670-72 (2d Cir.), cert. denied, 409 U.S. 991, 93 S.Ct. 335, 34 L.Ed.2d 258 (1972). The norm and presumption of the sixth amendment is that a trial should be a public proceeding. Gannett, 443 U.S. at 385, 99 S.Ct. at 2908, 61 L.Ed.2d at 625. Only in the most exceptional circumstances should closure even be considered, and in fewer instances compelled. A criminal defendant is guaranteed a public trial, but there is no constitutional guarantee of a closed trial at the defendant’s request. It is certainly worth consideration that in the entire history of our country, no one prior to the Gannett decision has advanced the concept of secret trials as applied to a plenary criminal proceeding. As stated by Justice Blackmun in his dissent in Gannett, 443 U.S. at 414, 99 S.Ct. at 2923, 61 L.Ed.2d at 643:

The importance we as a Nation attach to the public trial is reflected both in its deep roots in the English common law and in its seemingly universal recognition in this country since the earliest times. When In re Oliver was decided in 1948, the Court was “unable to find a single instance of a criminal trial conducted in camera in any federal, state, or municipal court during the history of this country,” 333 U.S. [257] at 266 [68 S.Ct. 499, 504, 92 L.Ed. 682] (footnote omitted), with the exception of cases in courts martial and the semiprivate conduct of juvenile court proceedings. Id., at 266 n. 12 [68 S.Ct. at 504 n. 12]. Nor could it uncover any record “of even one such secret criminal trial in England since abolition of the Court of Star Chamber in 1641.” Ibid.

In order for the defendant to compel closure in a trial wherein the prosecutor does not consent, we hold that the defendant must carry “his burden to demonstrate a strict and inescapable necessity for closure.” Id. 443 U.S. at 443, 99 S.Ct. at 2938, 61 L.Ed.2d at 661 (Blackmun, J., dissenting); see United States v. Cianfrani, supra, 573 F.2d at 854. We do not decide the correct sixth amendment standard, if any,⁸ or the first amendment standard⁹ to be applied if the prosecutor consents to closure.

III.

Powers argued in the District Court for the adoption of a “clear and convincing” evidence standard rather than one based on evidence sufficient to support a finding that there is a “substantial probability” that irreparable damage to his fair trial right will result from a public trial. Since Powers set forth the former standard, he does not appeal its application. Even though the District Court’s standard may have been greater than required, Powers was not prejudiced. Powers did not meet the “substantial probability” standard, either. The District Court found that the evidence produced by Powers “at most demonstrates a fear of harm based on the allegedly violent nature of some of the persons involved.” Furthermore, Powers “failed to prove that closure would effectively prevent the alleged harm.” In addition, the court found that “there is an alternative that * * * will enable the defendant to present his defense without closing the trial to the public.” The court suggested that the Government and Powers agree to a stipulation concerning his informant activities.¹⁰ Powers failed all three prongs of the closure test. The District Court’s denial of Powers’s motion to compel closure did not deny him his due process right to a fair trial.

Finally, Powers argues that the District Court erred in placing the burden of proof to compel closure upon him, instead of the Government. Powers contends that he should be made only to bear the burden of going forward with demonstrating a danger of harm to himself or his family. After he has met this burden of going forward, the Government should be required to demonstrate that closure is not necessary. We disagree.

The common-law tradition and our history from its inception certainly compel the assumption that the sixth amendment presumes open trials as the norm. Gannett, 443 U.S. at 385, 99 S.Ct. at 2908, 61 L.Ed.2d at 625. The defendant therefore has the burden of proof of overcoming this presumption and strong tradition for open proceedings. The defendant argues that since the Government must prove every essential element of the crime in a criminal trial, it must also bear the burden on closure. The closure of criminal proceedings vel non, however, is not an essential element of the crime charged. The burden, and indeed a heavy burden, rests on a defendant seeking a private or secret trial. The defendant must demonstrate the necessity of closure based upon all three prongs of the test. Not only must the defendant demonstrate a substantial probability of irreparable damage to his fair trial right, he must also show a substantial probability that alternatives to closure do not exist and that closure will be effective in protecting against the perceived harm. A mere demonstration of potential harm to the defendant is insufficient to shift the burden for opposing closure to the Government. Only after the defendant has met all three prongs of the closure test should the prosecutor be required to demonstrate that less than complete closure is necessary. See id. 443 U.S. at 444, 99 S.Ct. at 2938-39, 61 L.Ed.2d at 662 (Blackmun, J., dissenting); United States v. Cianfrani, supra, 573 F.2d at 854. Here Powers has not even met his burden of demonstrating a substantial probability that irreparable damage to his fair trial right will result from conducting the proceeding in public. Closure would be improper under these circumstances.

Affirmed.

1 . The Honorable William C. Stuart, Chief Judge, United States District Court, Southern District of Iowa.

2 . Section 1291 grants the courts of appeals jurisdiction to review “all final decisions of the district courts * * Adherence to the rule of finality should be “particularly stringent in criminal prosecutions because ‘the delays and disruptions attendant upon intermediate appeal,’ which the rule is designed to avoid, ‘are especially inimical to the effective and fair administration of the criminal law.’ ” Abney v. United States, 431 U.S. 651, 657, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977). In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-1226, 93 L.Ed. 1528 (1949), the Supreme Court limited appellate review of trial court orders to those “which finally determine claims of right separarable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.”

We have grave doubts concerning the appeal-ability of interlocutory orders regarding closure of criminal trials to the public. See Gannett Co. v. DePasquale, 443 U.S. 368, 398, 99 S.Ct. 2898, 2915, 61 L.Ed.2d 608, 633 (1979) (Powell, J., concurring and stating “it would be entirely impractical to require criminal proceedings to cease while appellate courts were afforded an opportunity to review a trial court’s decision to close proceedings.”). When the accused in a criminal case seeks immediate appellate review of an interlocutory order regarding trial closure, the order of the trial court will ordinarily not be separable from the issues to be resolved in the criminal trial itself. The order may therefore affect the decision to be made on the merits in the trial court. Abney v. United States, supra, 431 U.S. at 660, 97 S.Ct. at 2040; Cohen, supra, 337 U.S. at 546, 69 S.Ct. at 1225; see United States v. Barket, 530 F.2d 181, 185 (8th Cir. 1975), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 282 (1976); cf. United States v. Fiumara, 605 F.2d 116, 117-19 (3d Cir. 1979) (public closure at post-trial sentencing hearing not appealable under Cohen since defendant has no constitutional right to compel a secret trial). But cf. United States v. Schiavo, 504 F.2d 1, 4-5 (3d Cir.), cert. denied, Ditter v. Philadelphia Newspapers, Inc., 419 U.S. 1096, 95 S.Ct. 690, 42 L.Ed.2d 688 (1974) (order enjoining news media, a non-party, from publishing information during trial appealable within collateral order doctrine); United States v. Cianfrani, 573 F.2d 835, 845 (3d Cir. 1978) (order closing pretrial hearing appealable by news media, intervenors, within collateral order doctrine).

However, because of the fallout from the Gannett case and the proliferation of cases coming on line dealing with the issue of closure of open and public proceedings and since under the particular facts of this case we find that the trial court’s non-closure order would not affect the accused’s right to a fair trial, we have assumed jurisdiction in order to discuss the issue of closure in criminal trials. See Gillespie v. U. S. Steel Corp., 379 U.S. 148, 153, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964).

The dissent suggests that “interlocutory review of a closure decision should be available only in extraordinary cases by writ of mandamus.” Post at 328. Mandamus is an extraordinary writ of limited dimensions and we feel its scope should not be broadened to encompass this factual context. “The peremptory writ of mandamus has traditionally been used in the federal courts only ‘to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so’ ”; and, “only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy. De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 217 [, 65 S.Ct. 1130, 1132, 89 L.Ed. 1566] (1945).” Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967). Here, obviously the District Court did not exceed its jurisdiction, nor in any way usurp power. Kerr v. United States District Court, 426 U.S. 394, 402-03, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976). Furthermore, mandamus is particularly inappropriate when a criminal prosecution is involved, since it results in piecemeal appeals and delayed justice. The Supreme “Court has never approved the use of the writ to review an interlocutory procedural order in a criminal case which did not have the effect of a dismissal.” Will, supra, 389 U.S. at 98, 88 S.Ct. at 275. The writ of mandamus is an inappropriate vehicle to review trial court decisions regarding closure of criminal trials.

3 . In this case we express no opinion on the issue of whether members of the press or public have any constitutional right to access to criminal trials on the basis of the first and fourteenth amendments, see Gannett, supra, 443 U.S. at 392, 99 S.Ct. at 2912, 61 L.Ed.2d at 629, or on the closure standards to be applied when both the Government and the defendant agree on closure. Compare Gannett, supra, 443 U.S. at 398 & n. 2, 400, 99 S.Ct. at 2915 & n. 2, 2916, 61 L.Ed.2d at 633 & n. 2, 634 (Powell, J., concurring), with id. 443 U.S. at 404-05 & n. 2, 99 S.Ct. at 2918-19 & n. 2, 61 L.Ed.2d at 636-38 & n. 2 (Rehnquist, J., concurring). Nor do we attempt to interpret the extent to which the Gannett majority opinion applies to situations beyond the closure of pretrial hearings. See id. 443 U.S. at 392-396, 99 S.Ct. at 2913-14, 61 L.Ed.2d at 630-32 (Burger, C. J., concurring); id. 443 U.S. at 397 n. 1, 99 S.Ct. at 2914 n. 1, 61 L.Ed.2d at 632 n. 1 (Powell, J., concurring). The narrow issue in Gannett “is whether the Constitution requires that a pretrial proceeding such as this one be opened to the public, even though the participants in the litigation agree that it should be closed to protect the defendant’s right to a fair trial.” 443 U.S. at 385, 99 S.Ct. at 2908, 61 L.Ed.2d at 625 (footnote omitted). See generally, The Supreme Court, 1978 Term, 93 Harv.L.Rev. 62, 62-66 (1979).

4 . The Supreme Court, in Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965), held that a defendant cannot waive a jury trial without the consent of the prosecutor and the judge because of the great public interest in jury trials as the preferred mode of fact-finding in criminal cases. See Gannett, supra, 443 U.S. at 384, 99 S.Ct. at 2908, 61 L.Ed.2d at 624. The Court, however, left open the question of “whether there might be some circumstances where a defendant’s reasons for wanting- to be tried by a judge alone are so compelling that the Government’s insistence on trial by jury would result in the denial to a defendant of an impartial trial.” Singer, supra, 380 U.S. at 37, 85 S.Ct. at 791 (emphasis added). In order to waive a jury trial, the defendant must therefore demonstrate, at a minimum, “compelling” reasons for being tried by a judge.

5 . While Justice Powell is referring here to the specific situation of publicity resulting in prejudicial effects upon a jury, his standard of “is likely to be jeopardized by publicity” apparently also applies to those situations necessary “to preserve the confidentiality of sensitive information and the identity of informants.” 443 U.S. at 398, 99 S.Ct. at 2915, 61 L.Ed.2d at 633.

6 . See note 3, supra. Justice Powell’s standard, however, apparently extends to the case involved herein, at least after the trial judge has granted closure and the prosecutor opposes closure. See 443 U.S. at 401, 99 S.Ct. at 2916, 61 L.Ed.2d at 635.

7 . The Court did suggest that a trial court “may surely take protective measures even when they are not strictly and inescapably necessary” in order to minimize the effects of pretrial publicity. 443 U.S. at 378, 99 S.Ct. at 2904, 61 L.Ed.2d at 620. Protective measures are proper, and are provided for in the second prong of this test, when the defendant seeking closure is unable to meet the “strictly and inescapably necessary” standard in order to compel complete closure.

8 . See note 3, supra.

9 . See note 6 and text, supra.

10 . United States v. Powers, 477 F.Supp. at 499. Extrinsic evidence of specific instances of the conduct of a witness generally may not be introduced for the purpose of attacking or supporting the witness’s credibility, see Fed.R. Evid. 608(b); United States v. Poulack, 556 F.2d 83, 89 (1st Cir.), cert. denied, 434 U.S. 986, 98 S.Ct. 613, 54 L.Ed.2d 480 (1977); United States v. Scholle, 553 F.2d 1109, 1122-23 (8th Cir.), cert. denied, 434 U.S. 940, 98 S.Ct. 432, 54 L.Ed.2d 300 (1977), though testimony by the accused of specific instances of conduct is admissible when his character or a trait of his character is an essential element of his defense. See Fed.R.Evid. 405(b); United States v. Giese, 597 F.2d 1170, 1190 (9th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979). Here Powers has already given his testimony in camera on the informant issue.