*2 jury adjourned bers of the court. McMILLIAN, Before MAGILL and day The next Farmer advised the court BEAM, Judges. Circuit that he would like to have the victim finish BEAM, Judge. testimony. her Because she did not arrive fashion, timely a another witness was called. Sr., Farmer, appeals James Fremont his аrrived, following When the victim ex- conviction and 180-month sentence for as- change place: took dangerous weapon, aggravated sault with a Honor, MR. SCHIEFFER: Your kidnapping sexual abuse and in violation of 2241(a) 113(c), 1153, United States would move at this §§ time 18 U.S.C. and 1201. during testimony of the victim that the primarily challenges He the district court’s1 except courtroom be cleared for her imme- trial a family treating diate psychologist. portion testimony. of the victim’s We affirm. Okay. THE may COURT: The defendant I. BACKGROUND on be heard the motion. that, Acсording object to the evidence at MR. sev- McCAHREN: We enteen-year-old drinking Your Honor. authority victim had been at There is no parties night long various that. This Court can’t and she could order that. And it very evening remember little about would violate the defendant’s to а fair Shield, question. twenty-six- trial and Sheila Good confrontation clause to the United year-old party, woman who was at States Constitution. the last being intervened when the victim was Okay. objection THE COURT: —the “pushed by persons gathering around” at the granted. motion spectators will be And all helped the victim walk to town. other than the members of [the victim’s] family will be excused from the courtroom Good testified that pulled Shield during the balance testimony. of her up in his car asked if help she needed taking the victim Honor, home. Good Shield and the MR. going McCAHREN: Your I’m victim entered the car. my objection When Farmer did to further to that. You’re go home, straight allowing to the victim’s Good the most critical witness’s car, frightened Shield became group you’re and exited the remain here and order- lеaving the victim with Farmer. ing the defendant’s to exit. And I Jones, 1. The Honorable John B. Chief United Dakota. Judge States District for the District of South partial, orders a as that “when a trial government authority the what know don’t total, proceed- closure of a court motiоn, authority opposed what for that has request party, of one ing at the ‘substantial other than grant that motion has to ‘overriding in- rather than Waller’s from the reason’ powers just inherent the Court’s *3 closure,” justify because a terest’ will the bench. “implicate not thе same partial closure does motion has been The THE COURT: secrecy that a total and fairness concerns go ahead and Marshall will The granted. (see at 76 cases cited closure does.” Id. category the other than persons ask —oth- therein). judge had Noting that the trial to category that I allowed the than er whether it was true she asked the witness from the court- please depart to remain testify to because she feared was reluctant room. an in- safety and that the had for her my long as rеcord As McCAHREN: MR. attorneys, the with the chambers conference clear, any problem. I have don’t is concluded the record was sufficient court Very well. THE COlÍRT: temporary closure of the support partial, II at 183-84. Transcript, Vol. Trial trial. Id. at 77-78. brought in and the then was Similarly, Galloway, v. in United States testimony. Farmer completed her victim acknowledged “par- that a the Tenth Circuit acquittal, court denied moved only supported by a closure need be tial guilty on Farmer jury found motion and the interest, ‘compel- rathеr than ‘substantial’ three counts. (10th Cir.1991). 542, 546 ling’ one.” 937 F.2d held that the trial The court nonetheless II. DISCUSSION findings to allow court must make sufficient Partial Closure A. reviewing to determine whether by protected the Sixth public A proper. Id. The court partial closure was rights of the accusеd Amendment factors to appropriate that determined press rights of the implicit First Amendment victim, age alleged of an weigh include the public to for itself public, allows the see alleged offense and the nature of an fairly not with the accused is dealt that Noting to the victim. Id. potential for harm judges, that unjustly and ensures condemned to make such the trial court had failed that carry out their prosecutors and witnesses record, findings the court declined on the respective with a keen sense duties cоnviction, in- but the defendant’s reverse v. functions. Woods importance of their findings. the case for further remanded stead Cir.1992) (2nd 74, Kuhlmann, F.2d 76 977 Id. at 546^47. 39, 46, 104 Georgia, 467 U.S. (citing Waller v. (1984)). 2215, In 2210, 31 81 L.Ed.2d S.Ct. however, Here, no we see need Waller, Supreme reaffirmed that though the district court even a remаnd hearing “must ad seeking to close a party circuit, findings. In this explicit made no likely to overriding interest that is vance an findings by the district court are specific no broad the closure must be prejudiced, be support glean necessary if we can sufficient intеrest, necessary than er from the temporary closure for a reasonable al court must consider the trial Lucas, v. 932 United States record. See proceeding, and it closing the ternatives (8th Cir.), 1210, cert. de 1216-17 F.2d findings adequate must make — 399, -, nied, 116 112 S.Ct. U.S. at 2216. at 104 S.Ct. closure.” 467 U.S. (1991). Luсas, we noted that In L.Ed.2d 348 public Woods, of the issue all mem- our review trial court ordered In Id. at trial is for abuse discretion. family from the defendant’s bers of the dealt with screen Although Lucas prosecutor informed the after the courtroom spectators, Fаrmer from shielded the witness terrified of retalia- judge that a witness was we legal issue. presents the same family. 977 F.2d the defendant’s tion from “ said, before the Ninth, [considering the record joined at 75. Second Court, of discretion we find no abuse Tenth, concluding District and Elevеnth Circuits 372 higher narrowly that a screen should be serve values and is tai- conclusion [the]
used....”
Id. at
lored to serve that interest. The interest
along
findings
is to be articulated
with
record in this
have reviewed the
We
reviewing
specific enough that a
court can
and, likеwise, find no abuse of discretion
case
whether the closure order
determine
by
district court. There is evidence
properly entered.
showing that
had threat
the record
ened the victim and that she feared retalia
39, 45,
Georgia,
v.
467 U.S.
104
Waller
S.Ct.
family.
tion
Farmеr and his
Trial Tran
(1984) (Waller).
2210, 2214,
Lublin, (8th Cir.1992). 981 F.2d 370 ing court to determine whether or not a admitted, the fact that Farmer for Given justified closure was equally applicable is in sentencing purposes, physical assault on partial the casе of closure. See United steadfastly the victim but denied the sexual (10th Galloway, v. States 937 F.2d 546 attack, no clear we see error. See United Cir.1991) (district (Galloway) court must ar- (8th McQuay, States v. 7 F.3d Cir. specific findings support ticulate to its deci- 1993) (court gives great to defеrence district partially sion to close a trial testimo- reduction). grant court’s refusal to ny). III. CONCLUSION majority opinion present The the case district court did not abuse its discre- upholds partial the closure order based on partial, temporary tion in thе closure of the the victim’s of fear the defendant and his public clearly denying trial and did not err family, young age, the victim’s and brutal the a reduction in sentence under USSG alleged Op. nature of the offense. See at 371. § Accordingly, 3E1.1. we affirm. “Although undoubtedly the district court con in deciding partially sidered these factors
McMILLIAN,
Judge, dissenting.
courtroom,
close the
the court failed to make
findings
respectfully
majority opin-
I
on the record in
dissent. The
of its order
ignores
legal
ion
principles
required by
Supreme
the
that
as
have
the
Court.” Gallo
developed
enjoys
to ensure that a
way,
defendant
come sure interest based order based a theoretical and findings pre- potential on that closure is essential to abstract for harm to the victim. court in Lucas heard testimo- partial The district upholding the district court’s In any factual counsel, in the absence by specific order ny arguments made majority opinion cites United findings, the findings, rights and then balanced protec- which involved States public against protec- triаl defendant to a identity by officer’s of an undercover tion identity the witness in order to tion of the testify a screen such behind allowing her to closure of the determine whether jury could see parties, and judge, justified. constitutionally courtroom was by spectators. her, seen she could not be but Waller, the court in compliance with district court’s order of the district treatment Our specific findings, Lucas made identified why, present way explains Lucas in no closure, seeking party interests specif- case, majority opinion requires no I fail to lesser alternatives. see considered justify ousting of defen- findings to ic majority analogize Lu- opinion can how friends, pub- press, and family and dant’s public justify trial. it in the an otherwise cas to the result reaches spectators, lic from intimation Contrary majority opinion’s to the present case.1 in Lucas made no the district Accordingly, I would remand the case utilize a regarding the need to findings supple- district court with directions screen, hearing testi- after the district reasoning ment the recоrd with the facts on argument counsel mony and extensive *5 partial of the court- upon which the matter, found: specifically testimony was during the victim’s room was, at the officer] undercover that [the based. in narcot- involved unrelated time of identity if investigations and that her ics danger. her life would be was revealed people “engaged un- It found that also City area” activity in the Kansas lawful identify the trial to might attempt use (citations to tran- officer] undercover [the FASHIONS, INC., FARRIS very omitted), of a script who was one Petitioner/Cross- officers undercover [such] small number Respondent, City force. Conse- Kansas Police government that the quently, it concluded “overriding inter- two had established NATIONAL LABOR RELATIONS if under- likely prejudiced [the to be BOARD, Respondent/Cross- est[s]” identity concealed: officer’s] cover Petitioner. police to conduct effec- ability of the 93-3827, Nos. 93-4082. tively operations, law enforcement Appeals, the officers involved. physical welfare of United States disguise, of a It considered the use then Eighth Circuit. and full closure оf the use of a screen 13, 1994. Submitted June concealing her courtroom as means Aug. 1994. Decided that, in most identity. It concluded order undercover offi- effectively protect [the Rehearing Denying Nov. Order public trial right as well as cer] confrontation, a screen testimony used her should be way permit spectators to hear such a as to her, interfering with while not
but not see court, defendants, the or ability of the her when she testified. to see
Lucas, F.2d at 1217. tors, Op. legal Lucas, presents issue.” the same By closure in the contrast a witness' use of a screen given at 371. The identity present particularly odd that the case is identity disclosed, the same secretiveness already does not involve had been victim’s interests as censorship and fairness open concеrns already part in testified in the victim had spectators from a outright removal of and friends. defendant's before the Lucas, Furthermore, trial court allowed opinion presents courtroom. spectators majority the witness. but not see” "to hear analogy: “[ajlthough with Lucas dealt chimerical specta- 932 F.2d at the witness from a screen that shielded