United States v. Armon Thompson

(1983). Examining L.Ed.2d 65 “all the America, UNITED STATES of person items removed from the arrestee’s Plaintiff-Appellee possession listing or inventorying entirely them is an reasonable administra- procedure.”

tive THOMPSON, Armon also known

At suppression hearing the Laden, as Bin Defendant- government entered into police evidence a Appellant. department policy governing inventory No. 12-1673.

searches. When asked whether there was “any way police] just [the would have left Appeals, States Court of they street,” the items as were out on the Eighth Circuit. an officer they answered that would not just subjects “have taken the two from the Submitted: Nov. 2012. vehicle and left property all the in the parking lot.” The officer explained that April Filed: 2013. since both Allen and Dean were arrested scene, at the luggage items on the cart

would have been taken to police station

for safekeeping and guard inventoried to

against loss or Lafayette, theft. 644-46, 103 S.Ct. 2605. There was also

evidence the officers were in pursuit active substantial, alternative line investi

gation because Lee had preparing been

application for a search warrant. See Con

ner, 127 F.3d at 668. The event that

stopped Lee from completing applica his

tion was a call from the desk clerk inform

ing the officers that Allen was planning to

check out of the See hotel. United States Hammons,

Cir.1998). Since the evidence showed that

all the items luggage on the cart would inevitably

have been discovered and that

the officers pursuing were an alternative Nix, investigation,

line of 467 U.S. at the district court did not

err in denying Allen’s suppress. motion to

III.

For these reasons we affirm the judg-

ment of the district court. SMITH, BEAM,

Before GRUENDER, Judges. Circuit BEAM, Judge. Circuit Thompson Armón appeals from the dis- trict court’s1 imposed following sentence Thompson’s guilty plea to one count of being felon in possession of a firearm. appeal, Thompson On claims district court violated his trial at sentencing hearing the court when closed the courtroom dur- ing testimony of one witness. Because we find no infirmity, constitutional we af- firm.

I. BACKGROUND Thompson pled guilty to one count of a felon in being possession of a firearm following his arrest on December 2010. date, On that officers conducting were investigation homicide in Joseph, St. Mis- souri, and were attempting to key locate a suspect. Thompson accompanied the sus- pect on that date and officers discovered both men in residence, the basement of a firearms, along which, with several some of following ballistic and testing, DNA were suspected to have in been used the homi- cide under investigation. Officers arrested both men on outstanding felony warrants and took them in for in questioning rela- tion to the homicide. Moss, Stephen C. Asst. Fed. Public De- Pending sentencing, Thompson was held fender, City, MO, Kansas argued (Ray- at the St. Claire County Osceola, Jail in Conrad, Jr.,

mond C. Fed. Public Defend- Missouri. At least for part Thompson’s er, brief), on the appellant. in jail, time he was housed with Justin Philip Koppe, M. Asst. Atty., Kan- Campbell. Thompson’s At MO, (David City, sas argued M. Ketch- hearing, Detective Scott Coates testified mark, Acting Atty., Otto, Jalilah Spec. that he Campbell interviewed after learn- Atty., brief), Asst. U.S. on the appellee. ing Campbell might have information Fenner, 1. The Gary Honorable A. of Missouri. Judge States District for the District Western Thomp- Campbell reiterated Detective Coates Coates. the homicide. regarding interview, he, Thompson, had Camp- Campbell son told during the testified drive-by shooting that while been involved Detective told Coates bell Thompson, conveyed Campbell details to about sur- housed with Campbell was he, Thompson, rounding supported by events that were him that Thompson told shooting in St. case. The dis- drive-by in a evidence the homicide involved Campbell friend who had court found credible and along with another trict Joseph, Campbell Campbell’s testimony its the murder. considered charged with been calculation, specifically its de- to Detective relayed information also suggested him en- shooting regarding as told to the terminations Coates about Thompson’s use existing arising from Thompson that corroborated hancements by or ammuni- possession any Detective Coates firearm in the case. evidence felony of- Campbell expressed in connection with another testified that tion further in court safety Thomp- should that resulted The for his own fense death. concern im- given Thompson had the to 120 months’ find out that sentenced Campbell son Thompson appeals, claiming prisonment. information. the court cleared the courtroom that when testimony, Following Detective Coates’ testimony, it violated prior Campbell’s to to the wit- calling Campbell to prior just to a Thompson’s stand, government requested the ness trial, a structural error that is not public given Campbell’s courtroom be cleared the review. amenable harmless error safety. Defense concern for his expressed the court that the pointed counsel out to II. DISCUSSION family all gallery in the were people question A is whether the threshold in the courtroom Thompson; that no one in criminal cases public else. The court anyone related to was extends to the Sixth Amendment under “somebody press” asked whether Amend- sentencing hearings. The Sixth there, and when court learned was provides: ment not, request granted was there the accused prosecutions, In all criminal courtroom, excluding specifically clear enjoy speedy to a shall who remained a member of the court staff trial, by jury of the public impartial parties gallery. point, At that in the crime and district wherein State defense counsel approached the bench and committed, which dis- shall have been matter, objecting to a record on the made previously ascer- trict shall have been nature of any public closure because of the law, by and to informed of the tained be everyone cleared hearing, noting that accusation; nature and cause Thompson and family members of were against witnesses confronted with “of there no evidence arguing that him; compulsory process for to have being posi- people being cleared] [the favor, and to obtaining witnesses in his Campbell.” Mr. tion to threaten or harm for his have the Assistance of Counsel responded, allegations are The court “[t]he defence. in- and was gang he was a member Const, shootings going I’m drive-by so volved amend. VI. your objection.” The court- overrule of the Sixth public The “ Campbell cleared and testified. room was ‘a viewed as long has been any attempt employ against testimony safeguard rel- portion Campbell’s The ” persecution.’ as instruments of our courts here corroborated that of Detective

evant Thunder, sentencing, jurisprudence States discussing (8th Cir.2006) Oliver, (quoting In re First 257, 270, 333 U.S. 68 S.Ct. 92 L.Ed. analysis. informs the “ (1948)). scrutiny ‘Public of a crimi- course, Of our First Amendment nal quality trial enhances the and safe- here, directly access cases do not control guards integrity factfinding pro- this case concerns a criminal because cess, with benefits to both the defendant defendant’s Sixth Amendment ” Thunder, society and to as a whole.’ trial, extent to which “[t]he (quoting Newspaper Globe Co. First and Sixth Amendment v.Super. Cnty., Ct. 457 U.S. for Norfolk trial rights are an open coextensive is question.” Presley Georgia (1982)). L.Ed.2d 675 requirement trial is for curiam). (per As the accused; pub- the benefit of the that the Georgia, Court observed Waller v. may lic fairly see he is dealt with and 81 L.Ed.2d unjustly condemned, and that (1984), however, precedents 31 concern presence of may interested spectators ing public’s the reach of the First keep keenly his triers to a alive sense of right of may Amendment access inform responsibility impor- their and to the the scope of the Sixth defendant’s tance of their functions. right trial, a public Amendment be Georgia, 39, 46, Waller 467 104 U.S. cause can “there be little that doubt 2210, (1984) (quota- explicit right of the omitted); Texas, tions accord Estes v. accused is no protective public less aof 1628, 85 S.Ct. 14 L.Ed.2d trial implicit than the First Amendment (1965) (Harlan, (“Es- J., concurring) right 46, press public.” and at sentially, public-trial guarantee embod- added). (emphasis S.Ct. 2210 nature, ies view of human true as a Rivera, 1223, United States 682 F.3d general rule, judges, lawyers, wit- (9th Cir.2012) (holding that the Sixth nesses, jurors perform and will their re- right public Amendment to a trial attaches spective functions more responsibly an to sentencing proceedings, part, because open court than in secret proceedings.”). judge prosecutor and continue to bear public Whether the to a trial grave responsibilities, both to accused under the Sixth Amendment attaches at and to community). the broader sentencing is an issue that has not been The Presley Court found it unnecessary, specifically by addressed court or this the when speaking of the coexistence of the However, Court. clearly First and Sixth public Amendments’ trial established that public ex rights, speculate “to whether or in what beyond trial, Waller, proof tends actual protections circumstances the reach or 467 U.S. at can and be might greater other,” one be than the but by press invoked public and the under that doing require intimated so would Amendment, the First accused un legitimate give reason to one who asserts a Amendment, der the Sixth Presley v. First privilege greater Amendment Georgia, to insist on public proceedings than the curiam). 175 L.Ed.2d (per accused Emphasiz- has. S.Ct. at 724.

To determine whether ing Sixth the accused’s Sixth Amendment public Amendment public trial attaches is not lightly, to be taken “ open pro- nation that need for an cases ‘[o]ur “[t]he reiterated the Court public-trial ceeding strong uniformly recognized may particularly have respect for the benefit of suppression hearings.” as one created Id. Sen- guarantee ” defendant,’ tencing historically could be hearings “[t]here have also barring accused explanation open public. no been to the States v. Cir.2005) Alcantara, (2d that is raising a constitutional her benefit.” Id. unmistakably his or (discussing openness the historical sen- DePasquale, Co. (quoting tencing Gannett hearings analyzing while the First 368, 380, 99 61 L.Ed.2d trial); public Amendment In re (1979)). Co., Wash. Post 807 F.2d Cir.1986) (same). “Numerous cases from Accordingly, look to the we Court’s a century ago over describe to determine whether Sixth guidance open held in Alcan- proceedings court.” attaches at tara, Too, sentencing at 197. so, by To as informed sentencing. do hearings are “trial like” in that witnesses ju First access Court’s testify, are sworn and factual determina- we determine whether risprudence, must made, argue tions their are counsel traditionally con hearings positions. encouraging values “[T]he fashion, open in an and whether ducted discourag- to come forward and witnesses prosecutori operates access to curb ing perjury sentencing, remain salient at judicial al or misconduct and furthers the may parties present because the witnesses understanding interest crimi Rivera, sentencing.” F.3d at 1228. 682 system. Press-Enter. justice nal Co. weigh favorably These factors our de- Cnty. Cal. the River Super. Ct. that termination Sixth Amendment side, 1, 2735, 8, 478 U.S. 106 S.Ct. public right sentencing. trial attaches at differently, Stated we L.Ed.2d analysis public turn our to whether access There are additional factors that inform significant sentencing hearing plays at a today ac regarding our determination functioning role its such that positive public right cused’s Amendment Sixth right attaches. the Sixth Amendment First, sentencing. having access at noted 2735; Waller, 8, also at 106 S.Ct. see addressing pub that the jurisprudence 46-47, (holding at that First lic trial in the context of the and the interests aims of Sixth Amend analysis; informs our the Sec Amendment suppression pressing ment were no less at ond, Fourth, Fifth, Seventh, and Ninth important which are as as hearings, often held that the First Amend Circuits have itself). the trial public right applies ment trial at sentenc 196-99; Court, Alcantara, re F.3d In ing. at Persuasive the Waller for ex- 388-89; Co., 807 at suppression hear- Wash. Post F.2d ample, was fact Newspapers, v. Hearst sentencing hearings, like often re- Cardenas-Guillen ings, (5th Cir.2011); L.L.C., 168, trials, bench where witnesses are 641 F.3d semble 1244, course, testify, Eppinger, 49 F.3d and and of counsel United States sworn CBS, (7th Cir.1995); And, Inc. just 1252-53 see also argue positions. their like sen- the Cent. hearings, v. United Dist. Ct. tencing sup- [of outcome States “[t]he Cal, Cir. hearings] depends on a Dist. pression frequently 1985) Waller, public press (holding matters.” resolution factual docu These have a of access to various at 2210. factors sentencing favorably ments in connection with weighed in the Court’s determi- filed itself, proceedings). juxtaposition they surely In with these are as much an earlier, holdings, Supreme as noted integral part prosecution of a criminal public Court has made clear preliminary probable-cause hear- guarantee special-protection right was a ings, suppression hearings, or bail hear- defendant, created for the benefit ings, all of which have been held to be Presley, see at 130 S.Ct. thus subject public’s to the First Amendment would that the seem axiomatic accused right of access.” very equal least has Sixth Amend- Alcantara, (quoting 196-97 In sentencing. ment access at Co., 389). re Wash. Post 807 F.2d at juror As is the in the context of case holdings While these are not determinative proceedings, legiti- selection “there is no in our analysis, they instant inform our sentencing mate reason the context of [in conclusion that the pub- hearings] give one who asserts a First lic at sentencing. attaches greater privilege Amendment to in- In light of the First public proceedings sist on than the accused trial access jurisprudence, emphasis by has.” at 724. Presley, 130 S.Ct. Court Second, highlighting importance specifically created for the benefit of the sentencing hearings generally, the Su accused, the Supreme Court’s reminder preme Court held that “sentencing has is a regarding the nature of sentencing critical critical stage of the criminal proceedings at themselves, and, hearings important- most which [a defendant] entitled to the effec ly, our conclusion that access at a tive counsel.” assistance of Gardner v. significant hearing plays posi- Florida, tive role in functioning its and furthers the (1977); 51 L.Ed.2d 393 see Mempa also sought benefits to be afforded the accused Rhay, Amendment, under the Sixth we hold that (recognizing the Sixth ac- “critical nature” of in criminal sentencing. cess attaches at Accordingly, proceedings such that the to counsel we move on to determine whether attaches). the courts, Some in the First court, instance, district in this violated that analysis, access right. that, fact, have further held is so integral process to that it is The to certainly by contemplated constitution is, however, access not absolute. al language. These courts deduce that the And, we review district ruling court’s Supreme Court’s determination that there to close the under an courtroom abuse of is a First Amendment of access at Farmer, discretion. States v. United

trial, logically applies to sentencing be (8th Cir.1994). wholly cause the latter contemplated by is “give way must in certain cases to other the former. interests, or such as the defendant’s ... “Sentencing may be viewed as with- to a fair or government’s in the scope of the criminal trial itself. interest in inhibiting disclosure of sensitive Sentencing can occur before the termi- Waller, information.” at nation and, of the trial proceeding, even circumstances, S.Ct. 2210. In rare when if it separate occurs in a hearing, complete contemplated, closure is clearly amounts to the culmination of the Moreover,

trial. even if ... sentencing presumption openness [t]he may be hearings are not considered a part of the only by overriding overcome an interest (2d Cir.1992) (ordering 75-6 977 F.2d that is essen- findings closure on based family from and is of the defendant’s higher values all members preserve tial to in- prosecutor that interest. after the tailored to serve the courtroom narrowly along judge that was terri- is to be articulated a witness The interest formed a re- enough family that a findings specific of retaliation from the was fied closure). can whether partial court determine viewing was entered. properly closure order justification low “The for this omitted). Id. (quotation er[, that a is ‘substantial standard reason’] a trial completely close In order to partial implicate does not the same closure similar proceeding, or a fairness total secrecy and concerns hearing to seeking close the party Petters, F.3d at 383 closure does.” overriding interest must advance omitted). (internal So, partial a quotations prejudiced, the closure likely to be rise of a Sixth does not to the level closure necessary to no broader than must (1) is a violation if: there interest, trial court protect likely prejudiced, interest to be substantial to alternatives reasonable must consider (2) is no than neces the closure broader must and it proceeding, closing interest, the trial sary protect findings adequate support make court considers reasonable alternatives closure. (4) the trial closing proceeding, 48,104 2210. Id. findings support adequate makes court However, Farmer, that where “we have held Ad the closure. 32 F.3d 371. clo only partial orders a the trial court though court must ditionally, even a trial a sure, showing of there need be a the re findings sufficient to allow make closure, partial reason’ for ‘substantial viewing court determine whether inter ‘overriding opposed circuit, Waller’s proper, closure was this partial v. Pet- States requirement.” est’ findings by court “specific the district Cir.2011) (as ters, if necessary glean we can sufficient analysis that the suming purposes partial temporary a closure support for prohibition of the use of district court’s from the record.” during proceed pretrial name witness’s — court, case, In district this denied, closure), ing partial cert. press representation the absence of noting -, 182 L.Ed.2d possible its proceeding, reviewed at the is total Whether closure fami Thompson’s and cleared alternatives according prece circuit’s partial, this Campbell’s during courtroom ly from the is dent, long not on a trial depends how testimony, partial From a closure. closed, during rather who excluded but is record, family Thunder, Thompson’s it clear that is in question. of time period gal in the only people were the members that the exclu (explaining at 868 F.3d And, not even lery who were court staff. of and the sion the members of make a did not testimony though is a the district court a child press during victim’s Farmer, courtroom); articulating the substan thorough record total closure its contemplated prior spectators all tial reason (ordering at 370-71 closure, is sufficient victim’s record partial the members of the other than court, Having do so. appeal, the bal this on during from the courtroom family review, no abuse of we find testimony partial made such of the victim’s was ance Kuhlmann, closure); by the district court. also discretion see Woods government’s protecting (collecting The interest in upheld cases that have closure witnesses). its witness and the witness’s concern for to protect testifying safety his justify partial closing own Presley,

this case. See 130 S.Ct. at 725 III. CONCLUSION safety (recognizing that concerns and reasons, For the forgoing as noted at certainly threats enough could concrete outset, we find no constitutional infir- trial); closing reasons to warrant see mity in the district court’s of Addison, also United States Thompson. Accordingly, we affirm. (10th Cir.2013) (focusing on one reason alone—witness intimidation —be- GRUENDER, Judge, Circuit by

cause that reason itself supports affir- concurring. closure). mance partial of a district court’s clearly Detective Coates laid out Camp- I write separately although because I expressed bell’s concern and nervousness would affirm district court’s decision to safety about well-being his and should partial closure, recognize order I would Thompson find Campbell out that pro- had Thompson’s constitutional vided the information. That the district Amendment, Fifth under the court did not hear of Campbell’s fears rather than the Sixth. Campbell’s lips is no own of concern. guarantees Sixth The Too, The court had the information. prosecutions, all “[i]n criminal the accused courtroom was not cleared until Campbell, enjoy shall witness, speedy the last and testified. Because the Thompson trial.....” only people argues, asked to leave were and the Thomp- members, family today son’s Court given apparently agrees, evi- that sen- Campbell’s fear tencing dence is a testifying phase of “trial” as the word is presence, their the closure was no broader used in the Sixth Amendment. The Su- necessary than we can think of no preme only arguen- Court has “assumefd] other alternatives based on this record part do that sentence the trial for lead would us conclude that purposes of the Sixth Amendment.” Pol- district court its abused discretion in this States, lard v. United regard. L.Ed.2d (holding that assuming petitioner had a Sixth

Considering the record before the dis- to a speedy sentencing, court, trict which out Campbell’s laid ex- violated). pressed of testifying against fear Thomp- has, however, son, Court alleged pros- observed that “a gang member involved in a ecution drive-by shooting, terminates when implicated who was sentence is gang-related, imposed.” Bradley States, other violent activities by witnesses; other we find no abuse dis- 35 L.Ed.2d cretion in the Sentencing then, court’s conclusion that proceedings, Thompson’s family may comprise should phase be excluded the latter crim- “all from the during Campbell’s courtroom prosecutions,” tes- inal they part but are of a Addison, timony. See 708 F.3d at I they 1183 “trial”?2 conclude are not. Supreme 2. The recognized Court has explains, a Sixth As the Sixth Amendment "in all to effective prosecutions, assistance of criminal enjoy the accused shall during sentencing. supra p. counsel See ... the of for Assistance Counsel his defence.” Florida, 349, (quoting Gardner v. 430 U.S. "sentencing stage Therefore that ais critical 358, 1197, (1977)). 97 S.Ct. 51 L.Ed.2d proceedings” of triggering the criminal the 4, 466, n. Jersey, un 530 U.S. 120 S.Ct. to be was written “The Constitution (2000) (“‘[A]fter 2348, 147 voters; and L.Ed.2d 435 its by the words derstood past,’ trial and conviction are the defen in their normal and were used phrases ‘judgment’ the by dant is submitted to distinguished as from technical ordinary court, 4 stage approx Blackstone 368—the Sprague, States v. meaning____” United in modern the of imating imposition terms 220, 75 L.Ed. 51 S.Ct. 282 U.S. sentence.”). The Circuit cited Second also (1931). of Second Circuit Court courts, early decisions of American thorough recently provided a Appeals similarly which wrote of and sentenc sen relationship between analysis phases prose of a criminal ing as distinct of nation’s and at the time the tencing Id. at cution. 195-96. Ray, See States v. founding. (2d Cir.2009).3 184, 195 particular, In conception Nor is such of bifurcated court William Ray

the observed Sir sentencing particularly trial and alien Blackstone, writings exerted consid whose understanding of facets our modern these Founders, the distin influence on erable proceedings. example, of criminal For the sentencing. and between trial guished Federal Rules of Criminal Procedure con- the discuss Blackstone’s Commentaries of separate sider “Trials” a series rules guilt inno adjudicating processes rules apart involving and the “Sen- and in a entitled “Of Trial chapter cence tencing Judgment.” Ray and As the court Conviction,” subsequent chapter, concluded, while a of structure the Rules “[t]he Judgment Consequences,” and Its understanding “Of that trials con- reflects stage of criminal “eonsider[s] the next with the announcement of a verdict clude are trial and conviction and guilty guilty, after or not prosecution, Black after trial.” Id. at 196. The (quoting place W. takes past.” stone, Eng on the Laws of Court has often described sen- Supreme Commentaries See, (1769)); post-trial phase.4 e.g., as a Apprendi tencing also v. New land 368 see 622, Missouri, 630, 125 S.Ct. Deck attachment 358, counsel, Gardner, 2007, (2005) ("The 430 U.S. at 97 S.Ct. 161 L.Ed.2d 953 consider- nothing against us of whether use of tells that militate routine ations "trial,” causing part guilt during phase is also shackles visible public proceeding attach. apply penalty like force criminal capital (emphasis add- proceedings in cases." Oklahoma, ed)) Ake v. and analysis in conducted its 3. The Second Circuit (1985). I do 84 L.Ed.2d context of an asserted Sixth Amendment interpret proof public, such references speedy, rather than sentenc- Nonetheless, necessarily phase sentencing is of a Sixth majority its ing. the vast appear These remarks applicable to case. Amendment "trial.” directly work is the instant cases, generally phrase "speedy capital which to be limited In the context of trial,” uniquely sentencing proce- reason I see no to define involve "elaborate adjective way Court] when [the "trial” in one ... because of constraints noun dures way "speedy” places and in on Eighth modifies it another ha[s] said Arizona, adjective "public” Ring modifies it. capital sentencing.” when 584, 606, 122 S.Ct. 153 L.Ed.2d constraints, sure, As of these a result Supreme Court has some- 4. To be aggravating times, Court has held guilt always, but not referred to imposi- predicates that serve as factors penalty "phases” capital murder trials. by Brown, must be penalty the death found tion of Compare California equiva- they "the functional jury, because 462-63, Smith, 454, greater Id. of a offense.” lent of element v. 451 U.S. and Estelle 1866, (1981) n. (quoting Apprendi, 530 U.S. at 494 609 L.Ed.2d 359 at 101 S.Ct. 68 398 U.S. -, and, they had largely S.Ct. issue because al- v. 132 Cooper,

Lafler (2012) 1376, ready a First 1385-86, recognized 182 L.Ed.2d 398 Amendment (“The requires sentencing proceedings, they effective access to Sixth of stages interpreted at of counsel critical Sixth Amendment to assistance protections are proceeding. encompassing criminal Its trial as sen- a also simply protect the tri designed not to tencing proceedings. See United States v. (9th Cir.2012). that precedents Rivera, 1223, al.... The also establish during a to sen there exists counsel generated by on focusing In the benefits a tencing capital in noncapital both public sentencing, a constitutional (internal omitted)); Ala cases.” citations adopted analysis the Rivera court a similar Smith, 794, 801-03, 109 bama v. employs today. I to the one Court (1989) 2201, 104 (holding L.Ed.2d 865 S.Ct. Ray approach per- find the more court’s a presumption that “there is no basis for of First, primary two suasive for reasons. im a vindictiveness where second sentence consistently has Supreme Court ex- after a first posed a is heavier than interpretation plained, constitutional plea”); a guilty sentence after imposed should be tethered to the common mean- York, 241, U.S. 246- Williams New ing of time the text of the nation’s 1079, 47, 69 S.Ct. 93 L.Ed. 1337 founding. Washington, See Crawford (discussing “the historical basis” 36, 42-50, 1354, 124 S.Ct. practical ev- “sound reasons” “different (2004); Sprague, L.Ed.2d 177 282 U.S. at identiary governing trial and sen rules 731-32, court, Ray by 51 S.Ct. 220. The Furthermore, tencing procedures”). focusing meaning on the use at already has con Supreme implicitly Court founding, the time of the nation’s is faithful is not sentencing part cluded a instruction; contrast, this the Rivera Although trial. the Sixth Amendment today largely rely court and the Court on by “right jury prosecu of trial in criminal consequences of their decision—name- Wilson, established, is well Callan v. tions” ly advantages that flow rec- U.S. 32 L.Ed. ognition of a Sixth Amendment (1888), “there no Sixth Amendment justify their inter- —to jury sentencing,” McMillan v. pretation. Weighing attendant benefits is Pennsylvania, 477 U.S. 106 S.Ct. analysis. not the touchstone of this I do 91 L.Ed.2d 67 If dispute although not benefits a within a were subsumed sentencing, just like the benefits “of “trial,” holdings these would irreconcil trialf,] frequently intangible, a able. chance, or prove, difficult a matter of colleagues plainly thought Our on the Ninth Circuit the Framers them none- of Appeals recently Court this theless Georgia, addressed real.” Waller 2348). Despite sentencing, the Court held has Sixth recognition sentencing during require jury, Court’s does rather capital proceeding many respects judge, impose penalty. “in resem- than a the death innocence,” 3154; 458-65, Ring, guilt trial on the issue of bles also see J., (Scalia, these do mean U.S. at similarities nonetheless "not S.Ct. 2428 con- ("What significant curring) says respects today's that it is like a trial in decision is that guarantee jury juiy the Sixth find existence Amendment's must fact Florida, Spaziano v. aggravating trial.” that an Those factor existed. 458-59, States that leave the ultimate de- life-or-death (1984). Accordingly, keeping judge may with the ab- cision to the to do continue so....”). jury sence of a Sixth Amendment

399 9, 2210, Newspapers, tices” in Richmond Inc. v. 39, n. S.Ct. 49 104 555, 2814, Virginia, 100 65 “trial” S.Ct. Yet distinction between (1980), “clearly implied that there is no L.Ed.2d 973 “sentencing” indicates and of to right [First Amendment access right public sen- Amendment Sixth as salutary applies to civil cases well as courts] creation of bene- tencing, and the ones”). appellate a have byproduct of consti- criminal courts recognizing as a fits amplified the First Amend persistently sanction a right should not tutional beyond right ment of access well reading of the word “trial.” strained See, proceedings. sphere e.g., of criminal Second, to the extent the Ninth Circuit N.Y. Liberties Transit Civil Union NYC today utilized the modern- and the decision (2d Auth., Cir.2011); 286, F.3d 298 First day scope Amendment Ashcroft, Detroit Press F.3d Free a lens proceedings to court access (6th Indus., 681, Cir.2002); Publicker interpret scope of the through which to (3d Cohen, 1059, Inc. v. 733 F.2d public provision, trial Amendment’s Sixth Cir.1984). For this court has example, 392-94, I find pp. do not their supra see protection of the “conclude[d] The First be conclusive. reliance proceedings First Amendment extends among many surely offers one Amendment In Iowa contempt,” re Freedom of clues the contours of Sixth useful Council, Cir. Info. Presley Georgia, Amendment. See 1983), though even Court has 721, 724, 175 L.Ed.2d held that the Sixth Amendment does not (2010). But it is not a decisive factor guarantee public contempt proceedings, because, as this and other circuits have States, Levine v. concluded, not, are rights two sets of these (“Pro (1960) 1038, 4 L.Ed.2d fact, coterminous. The first four words safeguards contempts cedural criminal its ap- constrain of the Sixth Amendment not do derive the Sixth Amendment. proceedings. to criminal See plication contempt proceedings Criminal are DePasquale, 443 U.S. Co. v. Gannett which prosecutions’ within ‘all criminal 386-87, 99 L.Ed.2d 608 applies.”). Amendment (“In conspicuous contrast some early provid- Although Presley pondered Court constitutions state extent to which First public right open civil and over “[t]he ed for Amendment trials, con- Sixth Amendment criminal the Sixth coextensive,” only upon a the Court fers the which likely mulling over the extent to a criminal case.” defendant and omitted)). (footnote they partially rather than envi- Although overlap, the Su- First and Sixth yet recognize sioning truly a First coterminous preme Court has Enforcing rights. Amendment such proceed- to attend civil great tension with symmetry the Justices have im- would be ings, majority of Corsones, recognizing judiciary’s trend toward as much. See Huminski v. plied (2d Cir.2004) (de- access broad n. 30 First Amendment proceedings.5 The Pres- sitting applicable to civil scribing eight how “six of Jus- press plicit of the Circuit in Rivera and the First 5. Both Ninth above, public.” Supra p. today quote proposition 392. As discussed Court Waller for the rigeur almost to view the First explic- "there little that the has become de can be doubt as reach- accused Amendment’s access it Sixth Amendment is no ing beyond limitation protective than the the Sixth Amendment’s less im- 400 ” Florida, view

ley Court did seem to as axiomatic sentence.... Gardner v. that, “at least in proposition the the con- U.S. S.Ct. L.Ed.2d juror text proceedings,” (plurality Thus, of courts opinion).6 selection I grant not should “one who asserts a First it is pro conclude that the of due dictates privilege .greater rights Amendment, Amendment to in- cess under the Fifth and not Amendment, sist on than the public proceedings accused the Sixth upon that bestow a I interpret has.” Id. these federal right comments as criminal defendant the to in observing that if a of public upon Levine, member the sist public a sentencing. Cf. right First has a Amendment to attend at (holding U.S. too, so, that, proceedings, then should the although ac- the Sixth Amendment does right public have a pres- apply contempt cused to have proceedings to because not, however, they ent. The Court did com- prosecutions,” are not “criminal “due right mand that this derived from process appropriate regard demands Sixth Amendment. requirements public proceeding in cases of criminal contempt”); see also public’s The notion that First Deck, (hold 632, 125 at right Amendment of is more expan- access ing process prohibits due the routine sive than the accused’s Sixth Amendment practice visibly shackling of defendants public right proceedings is less trou- the presence juries during of may bling initially than seem because Ake, proceedings); 83-84, relegate Constitution does not the ac- (holding 5.Ct. 1087 that when the State relying solely cused to on the Sixth presents aggravating psychiatric evidence to bring rights Amendment their into during a capital sentencing proceeding, the alignment with the rights general defendant has a process right due to the public. “[I]t is now clear that the sentenc- psychiatrist). a assistance of ing process, itself, as well as the must satisfy requirements of the Due Pro- Just as the Sixth Amendment cess public Clause.... The defendant has a legit- absolute, trial is not so too would imate interest in the pro- character of the the district court have discretion to deter- cedure which imposition leads to the of mine whether Fifth accused’s Amend- prosecutions. Accordingly, (as criminal public "trial” the word is used Amendment) Waller Court's remark overlap, cannot mean what the in the Sixth do without today implies; namely, Court pub- providing commentary that if on the extent to which they may enjoy lic has a First symmetry. of access to broader But har- particular proceeding, nessing then the the Waller words Court’s observation about the Sixth Amendment must be stretched criminal accused’s so as trial as proof analogous right. to accommodate an of a Sixth There sentencing begs question ways two exactly of what this contention to be , true, a "trial” options and both constitutes under the Sixth repudiating involve Amend- First, precedent. ment. binding apply we could context, thereby in the civil contradicting Supreme Court decisions such 6. The Gardner Court further observed that as Levine that limit the Sixth Amendment simply process applies because "due [to sen- proceedings. not, Alternatively, course, criminal tencing] we implicate does previous could contradict our ruling own entire panoply procedural of criminal

In- re Iowa Freedom rights.” Council 358 n. 97 S.Ct. 1197. This Infonnation restrict the First Amendment procedural between the pro- distinction due proceedings. access to criminal required during In lieu of cess and trial re- choice, interpret I sug- either the comment as my inforces conclusion that two should gesting that the First and Sixth Amendment not be conflated. sentencing must ment CARMODY, individually, James and on state legitimate interests.

yield Cf. similarly Farmer, behalf of a class of others 371- United States situated; Davis, individually, Cir.1994) Marcus (upholding under and on a class of behalf of others standard review abuse of discretion similarly situated; Vivona, Robert in- partially decision to close district court’s dividually, age, “the victim’s and on behalf class of the courtroom because situated, similarly and the others the brutal nature of offense Plaintiffs- Appellants fear of [the defen- victim’s well-reasoned family enough was more than and his dant] decision”). A district court justify OF KANSAS CITY BOARD POLICE full may partial closure of order COMMISSIONERS; Mark Daniel but if during court Defendants-Appellees. Heimer, particular factors court finds that Levine, justify such closure. Cf. 12-3051. No. (“Inasmuch 362 U.S. at Appeals, States Court petitioner’s claim thus derives from Eighth Circuit. and not from one the Due Process Clause procedural of the defined safe- explicitly Submitted: Feb. 2013. ... guards Constitution exis- [the of the April 2013. Filed: process violation] must turn tence a due of the particular on circumstances En Rehearing Banc Rehearing whether, question case.... narrow 26, 2013. Denied June light grand jury, facts that petitioner present and his counsel were

throughout process ... he was denied due public remained ex- general

because the courtroom.”).

cluded In deter-

mining process a defendant’s due whether violated, the district court were the factors courts have

should consider

traditionally upon gauging relied closure, namely the Waller

necessity of Deck,

factors. 544 U.S. at Cf. agree I conclusion

S.Ct. 2007. justified par- intimidation this witness during courtroom

tial closure of the

Thompson’s sentencing. Accordingly, be- process rights due Thompson’s

cause were violated, I would affirm the sentence court.

imposed by the district

Case Details

Case Name: United States v. Armon Thompson

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Apr 23, 2013

Citation: 713 F.3d 388

Docket Number: 12-1673

Court Abbreviation: 8th Cir.