United States v. Stacy Gallman

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-2294
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UNITED STATES OF AMERICA
v.
STACY GALLMAN,
Appellant
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On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. 2-20-cr-00298-001)
District Judge: Honorable Karen S. Marston
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Argued on November 16, 2022
Before: HARDIMAN, PORTER, and FISHER, Circuit
Judges.
(Filed: January 9, 2023)
Keith M. Donoghue [Argued]
Brett G. Sweitzer
Leigh M. Skipper
Andrew Moon
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for the Appellant
Jennifer Arbittier Williams
Robert A. Zauzmer
Ashley N. Martin [Argued]
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for the Appellee
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
Stacy Gallman appeals his judgment of conviction
following a jury trial. He claims the District Court erred when
it: (1) closed part of his trial to the public in violation of the
Sixth Amendment; and (2) admitted evidence of his prior
felony conviction. Neither argument is persuasive, so we will
affirm the judgment of the District Court.
2
I
This case arises from a traffic stop in Philadelphia,
Pennsylvania. Two police officers, Joshua Kling and Thomas
Nestel, stopped Gallman after they saw him run a stop sign.
When Nestel approached Gallman’s passenger, Nafese Kelly-
Sizer, he saw a firearm magazine sticking out of Kelly-Sizer’s
pants pocket. Nestel handcuffed Kelly-Sizer and recovered a
firearm from his waistband. After the firearm was recovered,
Kling removed Gallman from the driver’s seat and frisked him,
uncovering nothing. Before returning to search the vehicle,
Kling handed a handcuffed Gallman to Jesse Rosinski, an
officer who had joined the stop with his partner, Zachary Stout.
Rosinski brought Gallman to the patrol car and placed him in
the back seat. Meanwhile, Kling discovered a firearm at the
base of the driver’s seat, so he asked Rosinski to remove
Gallman from the patrol car to search him again. Upon doing
so, Rosinski noticed a firearm magazine in the backseat of the
patrol car that had not been there before. The officers later
recovered more ammunition from Gallman’s car.
Gallman, who had a prior conviction for first-degree
robbery, was charged with one count of possession of a firearm
by a felon in violation of 18 U.S.C. § 922(g)(1). Prior to trial,
Gallman unsuccessfully moved to suppress the evidence
recovered from the traffic stop. During the suppression
hearing, the Government informed the District Court that there
was an open Philadelphia Police Internal Affairs Division
(IAD) investigation about Rosinski’s failure to call a
supervisor to a traffic stop. Following the hearing, the Court
asked the Government to subpoena the IAD investigator so the
Court could question him outside the presence of the jury. The
Government agreed to do so. Separately, the Government
emailed the Court ex parte, attaching an IAD memorandum
3
regarding a racial profiling complaint against Rosinski and
Stout for the Court to review in camera. The Government
advised that the matter was closed prior to Gallman’s arrest and
that the allegation of racial profiling was unfounded. The
Government also argued that the information was not
discoverable under Brady v. Maryland, 373 U.S. 83 (1963) or
Giglio v. United States, 405 U.S. 150 (1972).
Gallman was tried in June 2021 according to a COVID-
19 protocol adopted by the United States District Court for the
Eastern District of Pennsylvania. The trial was conducted in
one courtroom and video streamed to another (courtroom 7B),
where members of the public and Gallman’s family were
seated. The Sixth Amendment issues on appeal arise from the
alleged lack of a public video stream during two proceedings
on the second day of trial.
A
The first challenged proceeding occurred after the jury
had been selected and sworn. Before the jury was brought in
for preliminary instructions and opening statements, the Court
asked Gallman whether he wanted to stipulate to the fact of his
prior felony conviction for first-degree robbery. The Court
explained that if Gallman stipulated that his prior conviction
was for a crime punishable by more than a year in prison,
“that’s the only thing the jury is going to hear.” App. 723. The
Court cautioned Gallman to think “very carefully” and consult
his attorney about whether he wanted the jury to know the
details of his prior conviction. App. 723. In response, Gallman
stated “I am 31 years old. And that happened when I was 16
years old. So that’s 15 years ago and I am not the same person.
So I am open to them questioning me about that.” App. 724.
4
The Court then advised Gallman that the Government
had disclosed ex parte potential Brady or Giglio material: a
formal complaint against Rosinski and Stout for racial
profiling. The Court explained that the complaint had not been
sustained; the IAD found only that the officers failed to
maintain their patrol log, and the investigation was closed two
months prior to Gallman’s arrest. The Court then ruled that,
based on its in camera review, the Government did not have to
turn over the IAD investigative file to Gallman.
Gallman asked the Court whether he could cross-
examine Rosinski and Stout about the racial profiling
allegations. The Government opposed that request because the
complaint was unfounded. Gallman responded that it was up to
the jury to weigh the officers’ credibility. The Government
then pointed out that Rosinski and Stout were “backup
officers” for Gallman’s search and arrest. Though Gallman
disputed that characterization, the Court agreed with the
Government, noting that it “might be a different scenario if we
were dealing with the two officers that actually conducted the
stop.” App. 733–34. The Court also found it “important” that
the IAD complaint “was not founded at all.” App. 734. So the
Court did not allow Gallman to cross-examine Rosinski and
Stout about the racial profiling allegations.
The record does not expressly indicate whether the
video stream to courtroom 7B was on during the proceeding
just described. And although the transcript of the proceeding
was sealed, it is unclear whether that occurred at the behest of
one or both parties, or the Court.
5
B
The second closed proceeding occurred later that same
day, after the Court excused the jury for lunch. It too involved
an IAD investigation, but this one remained pending and
involved Rosinski alone. The Court called a lieutenant from the
IAD, Dennis Keenan, into the courtroom for questioning about
the investigation. After an inadvertent interruption by a juror at
the start of the questioning, the Court stated “we can lock that
door, right? I think 7B can be on. The only people that cannot
be in here is the jury.” App. 182. Gallman’s counsel responded:
“I didn’t know if there was anything that the Government
wanted to seal.” App. 182. In response, the Government moved
to seal Keenan’s testimony because it concerned “an open
investigation.” Id. The Court then stated “Okay. Let’s turn off
7B.” Id. Gallman’s counsel did not object.
Upon questioning by both parties and the Court, Keenan
testified that he investigated a complaint that Rosinski failed to
call a supervisor to a traffic stop. Keenan added that the
complaint was unfounded because Rosinski’s partner had
called a supervisor to the scene. But Keenan’s superiors had
not yet approved his report, so the matter remained open. After
the questioning, the Government withdrew its motion to seal
the transcript.
C
Gallman’s trial lasted four days. Before admitting
evidence regarding Gallman’s prior conviction, the Court gave
him another chance to stipulate. Gallman declined. The
Government then introduced certified copies of Gallman’s
fingerprint card from his prior conviction and of the conviction
itself. The Government also read into the record that Gallman
6
“was convicted of first degree felony robbery and was
sentenced to a term of not less than five years and not more
than ten years of incarceration.” App. 501. Before the prior-
conviction evidence was introduced, the Court instructed the
jury that it could not consider the evidence for any purpose
except to prove that Gallman had been convicted of a crime
punishable by imprisonment for a term exceeding one year.
The jury found Gallman guilty on one count of violating
§ 922(g)(1) and the Court sentenced him to 42 months’
imprisonment. Gallman timely appealed.
II
The District Court had subject matter jurisdiction under
18 U.S.C. § 3231. We have appellate jurisdiction under 28
U.S.C. § 1291. Because Gallman did not object to the closure
of the two proceedings by the District Court, plain-error review
applies to his argument that those closures violated his Sixth
Amendment right to a public trial. United States v. Williams,
974 F.3d 320, 340 (3d Cir. 2020). We review the District
Court’s decision to admit the evidence of Gallman’s prior
conviction for abuse of discretion. United States v. Starnes,
583 F.3d 196, 213–14 (3d Cir. 2009).
III
We first consider whether the District Court committed
plain error in violation of Gallman’s Sixth Amendment public-
trial right by closing two proceedings to the public. To succeed
on plain-error review, Gallman must show: (1) an “error” that
(2) is “plain” and (3) “affects substantial rights.” United States
v. Olano, 507 U.S. 725, 732 (1993) (alteration omitted)
(quoting Fed. R. Crim. P. 52(b)). If all three conditions are
satisfied, it is “within [our] sound discretion” to correct the
7
error—but only if it (4) “seriously affects the fairness, integrity
or public reputation of judicial proceedings.” Id. (alteration
omitted) (quoting United States v. Young, 470 U.S. 1, 15
(1985)).
A
Did the District Court err when it closed the two
proceedings?1 This is a close question on the facts of this case,
which involve a jury trial conducted during a pandemic.
The Sixth Amendment requires that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial.” U.S. CONT. amend. VI. In addition to the proof
offered at trial, the Supreme Court has held that the right
attaches to pre-trial suppression hearings, Waller v. Georgia,
467 U.S. 39, 47 (1984), and jury selection, Presley v. Georgia,
558 U.S. 209, 213 (2010) (per curiam). The public-trial right
likely does not extend to sidebars or chambers conferences,
however. Richmond Newspapers, Inc. v. Virginia, 448 U.S.
555, 598 n.23 (1980) (Brennan, J., concurring in the
judgment); United States v. Smith, 787 F.2d 111, 114 (3d Cir.
1
The parties dispute whether the first proceeding was in fact
closed to the public. Gallman claims the video stream to
courtroom 7B was inactive during the first alleged closure
because the transcript of the proceedings describes them as
under seal. The Government counters that there is no evidence
in the record that the first closure occurred because the trial
transcript says nothing about the video feed at that time. We
assume both proceedings were closed for purposes of this
appeal.
8
1986). Nor is the public-trial right absolute. The Supreme
Court has reiterated:
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.
Presley, 558 U.S. at 214 (alteration omitted) (quoting Waller,
467 U.S. at 48). The District Court made no findings before
closing either proceeding at issue here.
Gallman argues that the public-trial right attaches to the
first proceeding by analogizing it to suppression hearings
described in Waller. Some similarities do exist—here, counsel
at the first proceeding argued whether certain evidence should
be presented to the jury, and the court excluded that evidence
from trial, in part based on the resolution of a factual dispute
(whether Rosinksi and Stout were backup officers). See
Waller, 467 U.S. at 47. Further, the Waller Court noted that the
need for public suppression hearings is particularly important
because they “frequently attack[] the conduct of police and
prosecutor,” and the public “has a strong interest in exposing
substantial allegations of police misconduct to the salutary
effects of public scrutiny.” Id. The same strong public interest
is present in this case, where the District Court reviewed police
misconduct investigations to determine whether they
constituted Brady or Giglio material.
On the other hand, the determination of whether certain
information is subject to disclosure under Brady or Giglio is
9
routinely handled outside of public view, without any hearing
at all. See United States v. Wecht, 484 F.3d 194, 214 (3d Cir.
2007), as amended (July 2, 2007) (approving of in camera
review of potential Brady or Giglio material). Likewise, the
scope of cross-examination is typically adjudicated during
sidebars to which the public are not privy. See Smith, 787 F.2d
at 114 (noting that “the public and press may be justifiably
excluded from sidebar and chambers conferences even when
substantive rulings are made”); United States v. Norris, 780
F.2d 1207, 1209–11 (5th Cir. 1986) (holding that the right to a
public trial does not extend to non-public chambers and bench
conferences on evidentiary questions, technical legal issues,
and routine administrative matters).
The second closed proceeding in this case is even less
like suppression hearings and the “actual proof” presented at
trial. Waller, 467 U.S. at 44. Lieutenant Keenan was not a
witness for either party; the hearing was not conducted
pursuant to a motion by either party; the parties did not make
argument at the hearing; and the Court did not make an
evidentiary or other substantive ruling based on Keenan’s
testimony. It thus does not “resemble[] a bench trial” nor was
it “as important as the trial itself.” Id. at 46–47.
Whether the Sixth Amendment public-trial right
attaches to proceedings like these is a close question. If it does,
the District Court’s failure to explain why they were closed
was erroneous. See id. at 47–48. But for an error to be plain,
the correct resolution must be “‘clear’ or ‘obvious’” under
current law. United States v. Scott, 14 F.4th 190, 198 (3d Cir.
2021) (quoting Olano, 507 U.S. at 734). It is not here.
Neither the Supreme Court nor our Court has decided
whether the Sixth Amendment public-trial right attaches to
10
proceedings like those at issue in this case—brief,
investigatory hearings related to potential Brady or Giglio
material. And the cases Gallman cites do not demonstrate a
“consensus among the Circuits” necessary to make plain that
the Sixth Amendment covers these proceedings. Scott, 14 F.4th
at 199.
Gallman first points to U. S. ex rel. Bennett v. Rundle,
419 F.2d 599 (3d Cir. 1969) (en banc) and United States v.
Smith, 787 F.2d 111 (3d Cir. 1986) to establish that his Sixth
Amendment right attached to the closed proceedings. Bennett
addressed a suppression hearing regarding a defendant’s
confession, 419 F.2d at 603, and for reasons already explained,
the proceedings here differ from suppression hearings in
material respects (particularly because Brady and Giglio
determinations are routinely made out of public view). While
we did say in Bennett that “a hearing which … is held as part
of the trial and after the jury has been sequestered, falls within
the [public-trial] guarantee,” 419 F.2d at 606, we did not hold
that any proceeding occurring after the jury is empaneled is
“part of the trial.” Such an inference goes too far, particularly
since Bennett was decided before Waller and Presley.
Smith is even further afield—it considered the First
Amendment right of the public and the press to access
transcripts of sidebars and chambers conferences. 787 F.2d at
113. While the Supreme Court has said “the explicit Sixth
Amendment right of the accused is no less protective of a
public trial than the implicit First Amendment right of the press
and public,” Waller, 467 U.S. at 46, it has also said that “[t]he
extent to which the First and Sixth Amendment public trial
rights are coextensive is an open question,” Presley, 558 U.S.
at 213. And we recognized in Smith that there may be no
“constitutional . . . right of contemporaneous presence” with
11
respect to sidebar and chambers conferences, such that “the
public and press may be justifiably excluded” from those
proceedings. 787 F.2d at 114. Even if the Sixth Amendment
public-trial right also attaches to transcripts of sidebars and
chambers conferences (like the First Amendment right does),
Smith did not establish that the right attaches to public
observation of the somewhat analogous proceedings here—at
least not with sufficient clarity to make any error plain.
Gallman also cites three nonbinding cases which fail to
establish that any error here was plain: United States v. Waters,
627 F.3d 345 (9th Cir. 2010); Rovinsky v. McKaskle, 722 F.2d
197 (5th Cir. 1984); and State v. Morales, 932 N.W.2d 106(N.D. 2019). Rovinsky, 722 F.2d at 200, and Morales, 932
N.W.2d at 114–15, held that the Sixth Amendment public-trial
right attached to motion in limine hearings. But the hearings
here were not on motions in limine; they were not on motions
at all. And two years after Rovinsky, after Waller was decided,
the Fifth Circuit reaffirmed that the public-trial right does not
attach to closed proceedings that involve “technical legal
questions” and “evidentiary rulings.” Norris, 780 F.2d. at
1210. Other circuits too have questioned the implications of
Rovinsky’s holding. See, e.g., United States v. Vazquez-Botet,
532 F.3d 37, 52 n.10 (1st Cir. 2008). Further, the North Dakota
Supreme Court in Morales relied on its own caselaw and
Waller to reverse and remand following the closure of a motion
in limine hearing. 932 N.W.2d at 114–15, 120.
These authorities fall well short of the requisite
“consensus” among our sister circuits, particularly because the
hearings here are only somewhat like motion in limine
hearings. See Scott, 14 F.4th at 199; see also Smith v. Titus, 958
F.3d 687, 692–93 (8th Cir. 2020) (stating that it is an “open
question” whether the public-trial right encompasses motion in
12
limine proceedings), cert. denied, 141 S. Ct. 982 (2021). Nor
does Waters advance Gallman’s argument. There, the Ninth
Circuit held that the public-trial right attaches to a hearing on
a motion to dismiss an indictment for governmental
misconduct, 627 F.3d at 360—a substantively different
proceeding from those here, and one that was likely
dispositive. See Waller, 467 U.S. at 46–47.
In sum, any error in closing the video livestream to the
public did not constitute reversible plain error because it was
not “clear under current law” that the Sixth Amendment
public-trial right attached to the closed proceedings. Olano,
507 U.S. at 734.
B
Even assuming that any error was plain and that it
affected substantial rights, we would decline to exercise our
discretion to grant Gallman a new trial. Olano requires us to
“weigh[] the costs to the fairness, integrity, and public
reputation of judicial proceedings that would result from
allowing the error to stand with those that would alternatively
result from providing a remedy.” Williams, 974 F.3d. at 344.
We hold that Gallman cannot satisfy that high standard.
Several factors lead us to this conclusion.
First, the closures here were brief and resulted from the
challenges of conducting a trial during a pandemic rather than
any substantive decision by the District Court. The public had
access to almost all of Gallman’s trial, including jury selection
and the pre-trial suppression hearing. See id. at 346.
Second, some of the topics discussed at the closed
proceedings were discussed in open court—the misconduct
13
investigations were referenced generally at the suppression
hearing, and Rosinski testified at trial regarding the open IAD
investigation.
Third, the District Court was prompted to close the
second proceeding by counsel (first, for Gallman; then the
Government) after originally suggesting merely locking the
courtroom door to prevent jurors from re-entering. Cf.
Williams, 974 F.3d at 346 (noting that the district court issued
a closure order sua sponte, thereby stamping the closure with
the “imprimatur of the federal judiciary”).
Most significantly, Gallman’s trial “possessed the
publicity, neutrality, and professionalism that are essential
components of upholding an accused’s right to a fair and public
trial.” Id. at 347. There is no “suggestion of misbehavior by the
prosecutor, judge, or any other party.” Id. (quoting Weaver v.
Massachusetts, 137 S. Ct. 1899, 1913 (2017)). And the costs
of retrial would greatly outweigh any benefit given the brevity
and collateral nature of the closed proceedings. See Williams,
974 F.3d at 347 (retrial demands “‘a high degree of caution’”
even absent “heavy burdens”) (quoting Rosales-Mireles v.
United States, 138 S. Ct. 1897, 1909 (2018)).
So even assuming plain error here, it would not be
appropriate for us to exercise our discretion at prong four of
Olano to remand for a new trial.
IV
We next consider Gallman’s argument that the District
Court abused its discretion under Old Chief v. United States,
519 U.S. 172 (1997), and Rule 403 of the Federal Rules of
Evidence by admitting evidence that he had pleaded guilty to
14
robbery and had been sentenced to five to ten years’
imprisonment.
In Old Chief, the Supreme Court held that, in a §
922(g)(1) prosecution, it is an abuse of discretion under
Federal Rule of Evidence 403 for a trial court to reject a
defendant’s offer to stipulate or admit to a prior conviction and
instead admit the full record of conviction. 519 U.S. at 174.
The Court explained that, where such evidence is relevant only
to prove the fact of the prior felony conviction, the prejudicial
effect of the conviction record substantially outweighs any
probative value. Id. at 191.
Gallman claims the District Court erred when it did not
exclude all the evidence regarding his prior conviction beyond
the fact of his prior felony conviction. Emphasizing that he
admitted (to the Court, not the jury) that he knew he was a felon
and had no objection to questioning about that prior conviction,
he claims entitlement to the protections of Old Chief. We
disagree.
Old Chief is a shield, not a sword. Before the Supreme
Court’s decision in Rehaif v. United States, 139 S. Ct. 2191(2019), defendants charged with violating § 922(g)(1)
routinely sought the protections of Old Chief by stipulating to
the fact that they had been previously convicted of a crime
punishable by more than a year in prison. Rehaif brought a sea
change to these cases, however, by requiring the prosecution
to prove not only the fact of the prior conviction, but also the
defendant’s knowledge of it. 139 S. Ct. at 2200. So in this case,
the Government had to prove, beyond a reasonable doubt, that
Gallman knew he was a felon prohibited from carrying a
firearm.
15
Instead of stipulating to both status and knowledge,
Gallman stated merely that he was “open to [the Government]
. . . questioning [him] about [his prior conviction].” App. 724.
In fact, Gallman declined to stipulate to the fact of his prior
conviction on multiple occasions. His words are a far cry from
the “conclusive evidence” that a stipulation or admission
affords the prosecution in a § 922(g)(1) case, particularly after
Rehaif. Old Chief, 519 U.S. at 186. In sum, Gallman did not
concede his status as a “prohibited person” under § 922(g)(1),
as was his right. But he had no right to impair the
Government’s ability to prove its case.
Nor did the District Court abuse its discretion in
admitting the prior-conviction evidence. Rule 403 authorizes
exclusion of relevant evidence when its “probative value is
substantially outweighed by a danger of . . . unfair prejudice.”
Fed. R. Evid. 403.
Here, the District Court admitted a certified copy of
Gallman’s fingerprint card from his prior conviction and
portions of a certified copy of his criminal conviction. Those
documents showed that Gallman pleaded guilty to robbery and
was sentenced to five to ten years’ imprisonment. The Court
explained on the record why the prior-conviction evidence was
probative—it demonstrated Gallman’s felon status and made it
more likely that Gallman was aware of it.
The Court ensured that the probative value of the
evidence was not substantially outweighed by the danger of
unfair prejudice. It excluded certain evidence related to the
prior conviction, including a police report and statements
identifying the statutory maximums on all the charges Gallman
faced. And, when the prior-conviction evidence was admitted,
the Court instructed the jury to consider it only for the purpose
16
of proving that Gallman had been convicted of a crime
punishable by imprisonment for more than a year. The Court
reiterated this limited purpose in its final instructions to the
jury.
For these reasons, the Court’s decisions under Rule 403
were well within its broad discretion.
* * *
The closure of two proceedings during Gallman’s trial
was not plainly erroneous and did not affect the fairness,
integrity, or public reputation of judicial proceedings. Nor did
the District Court abuse its discretion in admitting evidence of
Gallman’s prior conviction. We will affirm.
17