Case Information
*1 UNITED STATES COURT OF APPEALS Tеnth Circuit Byron White United States Courthouse 1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A.Shumaker Clerk Chief Deputy Clerk
February 10, 1997 TO: All recipients of the captioned opinion
RE: 96-1469 and 96-1475, U.S. v. McVeigh
96-1484, Kight v. Matsch
February 4, 1997
Please be advised of the following corrections to the captioned decision: In footnote 3 on page 13, in the parenthetical for the Burks case, “witnesses’” should read “witness’s.” In the first full paragraph on page 21, “principal” should read “principle.”
Please make the appropriate corrections.
Very truly yours, Patrick Fisher, Clerk Susie Tidwell Deputy Clerk *2
PUBLISH UNITED STATES COURT OF APPEALS
Filed 2/4/97 TENTH CIRCUIT UNITED STATES OF AMERICA,
Plaintiff-Appellant, v. No. 96-1469 TIMOTHY JAMES MCVEIGH;
TERRY LYNN NICHOLS,
Defendants-Appellees.
------------------------------------
NATIONAL VICTIMS CENTER;
MOTHERS AGAINST DRUNK
DRIVING; THE NATIONAL
VICTIMS’ CONSTITUTIONAL
AMENDMENT NETWORK;
JUSTICE FOR SURVIVING
VICTIMS, INC.; CONCERNS OF
POLICE SURVIVORS, INC.;
CITIZENS FOR LAW AND ORDER,
INC; CRIMINAL JUSTICE LEGAL
FOUNDATION,
Amici Curiae.
_______________________________
UNITED STATES OF AMERICA,
Plaintiff, v. No. 96-1475 TIMOTHY JAMES MCVEIGH;
TERRY LYNN NICHOLS,
Defendants-Appellees.
------------------------------------
MARSHA KIGHT; H. TOM KIGHT;
JEAN BELL; EVA MAUREEN
BLOOMER; MARVIN BUCKNER;
MARTIN CASH; MARGIE CASH;
JANNIE M. COVERDALE;
CHRISTOPHER C. GREGAN;
SAUNDRA K. CREGAN; DAWN
DEARMON; JODY DEARMON;
DORRIS DELMAN; ERNEST
DELMAN; LESLIE DOWNEY; MIKE
DOWNEY; CECIL ELLIOTT; SONIA
DIANE LEONARD; CATHY
MCCASKELL; C. NEIL
MCCASKELL; AMY L. PETTY; ROY
SELLS; TERRI SHAW; PARTRICIA
SMILEY; ENETRICE SMILEY; TINA
TOMLIN RICHARD TOMLIN; KIM
TOMLIN; JUDY WALKER;
NATIONAL ORGANIZATION FOR
VICTIM ASSISTANCE; JULIE ANN
ADAMS; JANET K. BECK; MARY
SUZANNE BRITTEN; JOHN HENRY
CARLILE; GLORIA CHIPMAN;
SANDRA KAY COLE; JOHN COLE;
SHERRI A. COLEMAN; TERESA C.
COOK; CATHY JEAN COULTER;
KEITH T. COVERDALE; LAQUITA
COWAN; HERBERT RANDY
CREAGER; RITA CREWS;
VIRGINIA DILLON; ELLA GAIL
DRISKILL; YLITA R. EDD; CODY
FARMER; VIRGINIA FREDMAN;
JOHN J. GALE; HELENA ANNETTE
GARRETT; JANE C. GRAHAM;
TAMARA GREINER; JANET C.
GWYNN; PATRICIA PATTI HALL;
LADONNA J. HARRIS; GINA
HERNANDEZ; PERLA BUHAY
HOWARD; CHEYRE ROGENE
HUGHES; GERMAINE A.
JOHNSTON; DORIS JONES;
VERLYN Z. LAWTON; FRANCES
LEONARD; CALVIN MOSER;
VIRGINIA G. MOSER; BARBARA
ANN MURCHISON; MARIOIN A.
RAGLAND; RITA H. RAINS;
BEVERLY ANN RANKIN; DORA
REYES; MICHAEL REYES;
FLORENCE ROGERS; GUY
GERARD RUBSAMEN; MICHAEL J.
SCHUMAN; GLENN SEIDL; EDYE
SMITH; PHILIP THOMPSON;
SHELLY RENEE THOMPSON;
GLORIA TITSWORTH; WILLIAM
TITSWORTH; JACQUE LEA
WALKER; JANET EHRLICH
WALKER; DONNA WEAVER;
WANDA R. WEBSTER; SUZANNE
WELCH; E.E. “BUD” WELCH;
RICHARD WILLIAMS,
Movants-Appellants.
-----------------------------------
NATIONAL VICTIMS CENTER;
MOTHERS AGAINST DRUNK
DRIVING; THE NATIONAL
VICTIMS’ CONSTITUTIONAL
AMENDMENT NETWORK;
JUSTICE FOR SURVIVING
VICTIMS, INC.; CONCERNS OF
POLICE SURVIVORS, INC.;
CITIZENS FOR LAW AND ORDER,
INC.; CRIMINAL JUSTICE LEGAL
FOUNDATION,
Amici Curiae.
-----------------------------------
MARSHA KIGHT; H. TOM KIGHT;
JEAN BELL; EVA MAUREEN
BLOOMER; MARVIN BUCKNER;
MARTIN CASH; MARGIE CASH;
JANNIE M. COVERDALE;
CHRISTOPHER C. CREGAN; No. 96-1484 SAUNDRA K. CREGAN; JODY
DEARMON; DORRIS DELMAN;
ERNEST DELMAN; LESLIE
DOWNEY; MIKE DOWNEY; CECIL
ELLIOT; SONIA DIANE LEONARD;
CATHY MCCASKELL; C. NEIL
MCCASKELL; AMY L. PETTY; ROY
SELLS; TERRI SHAW; PATRICIA
SMILEY; ENETRICE SMILEY;
RICHARD TOMLIN; KIM TOMLIN;
NATIONAL ORGANIZATION FOR
VICTIM ASSISTANCE; JULIE ANN
ADAMS; JANET K. BECK; MARY
SUZANNE BRITTEN; JOHN HENRY
CARLILE; GLORIA CHIPMAN;
SANDRA KAY COLE; JOHN COLE;
SHERRI A. COLEMAN; TERESA C.
COOK; CATHY JEAN COULTER;
KEITH T. COVERDALE; LAQUITA
COWAN; HERBERT RANDY
CREAGER; RITA CREWS;
VIRGINIA DILLON; ELLA GAIL
DRISKILL; YLITA R. EDD; CODY
FARMER; VIRGINIA FREDMAN;
JOHN J. GALE; HELENA ANNETTE
GARRETT; JANE C. GRAHAM;
TAMARA GREINER; JANET C.
GWYNN; PATRICIA “PATTI”
HALL; LADONNA J. HARRIS; GINA
HERNANDEZ; PERLA BUHAY
HOWARD; CHEYRE ROGENE
HUGHES; GERMAINE A.
JOHNSTON; DORIS JONES;
VERLYN Z. LAWTON; FRANCES
LEONARD; CALVIN MOSER;
VIRGINIA G. MOSER; BARBARA
ANN MURCHISON; MARION A.
RAGLAND; RITA H. RAINS;
BEVERLY ANN RANKIN; DORA
REYES; MICHAEL REYES;
FLORENCE ROGERS; GUY
GERARD RUBSAMEN; MICHAEL J.
SCHUMAN; GLENN SEIDL; EDYE
SMITH; PHILLIP THOMPSON;
SHELLY RENEE THOMPSON;
GLORIA TITSWORTH; WILLIAM
TITSWORTH; JACQUE LEA
WALKER; JANET EHRLICH
WALKER; DONNA WEAVER;
DAWN LEINEN DEARMON;
DONNA HAWTHORNE; WANDA R.
WEBSTER; SUZANNE WELCH;
PAUL HOWELL; SHARON
LITTLEJOHN; E.E. “BUD” WELCH;
RICHARD WILLIAMS; STEVE
SMITH; AMBER TINA TOMLIN;
JUDY WALKER,
Petitioners,
v.
HONORABLE RICHARD P.
MATSCH, District Judge,
Respondent.
-----------------------------------
UNITED STATES OF AMERICA;
TIMOTHY JAMES MCVEIGH;
TERRY LYNN NICHOLS;
Real Parties In Interest,
NATIONAL VICTIMS CENTER;
MOTHERS AGAINST DRUNK
DRIVING; THE NATIONAL
VICTIMS’ CONSTITUTIONAL
AMENDMENT NETWORK;
JUSTICE FOR SURVIVING
VICTIMS, INC.; CONCERNS OF
POLICE SURVIVORS, INC.;
CITIZENS FOR LAW AND ORDER,
INC.; CRIMINAL JUSTICE LEGAL
FOUNDATION,
Amici Curiae.
*8 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 96-CR-68-M) Submitted on the briefs:
Merrick Garland, Principal Associate Deputy Attorney General, Joseph H.
Hartzler, Special Attorney to the U.S. Attorney General, Sean Connelly, Special Attorney to the U.S. Attorney General, Vicki Zemp Behenna, Special Attorney to the U.S. Attorney General, Denver, Colorado, for Plaintiff-Appellant United States of America.
Professor Paul G. Cassell (Counsel of Record), Salt Lake City, Utah, Sean Kendall, (Local Counsel), Boulder, Colorado, Gary B. Born, Robert F. Hoyt, Arnon D. Siegel, Karan K. Bhatia of Wilmer, Cutler & Pickering, Washington, D.C., for Victims of the Oklahoma City Bombing and NOVA.
Michael E. Tigar, Ronald G. Woods, N. Reid Neureiter, Adam Thurschwell, and Jane B. Tigar, Denver, Colorado, for Defendant-Appellee Terry Lynn Nichols.
Stephen Jones, Robert Nigh, Jr. of Jones, Wyatt & Roberts, Enid, Oklahoma, Richard H. Burr, III, Houston, Texas, and Jeralyn E. Merritt, Denver, Colorado, for Defendant-Appellee Timothy James McVeigh.
Kent S. Scheidegger, Charles L. Hobson, Criminal Justice Legal Foundation, Sacramento, California, for Amicus Curiae Criminal Justice Legal Foundation. Arnold I. Burns, Peter J.W. Sherwin of Proskauer Rose Goetz & Mendelsohn LLP, New York, New York, for Amici Curiae.
Before PORFILIO, KELLY, and BRISCOE, Circuit Judges.
PER CURIAM.
*9 In these consolidated proceedings, we address an important question of criminal procedure involving significant interests of the defendants, prosecution, crime victims, and public, which has thus far received virtually no judicial attention: whether a pretrial order prohibiting victim-impact witnesses from attending the criminal prosecution in which they are slated to testify is subject to review at the urging of either the government or the nonparty witnesses themselves. Upon careful consideration of the various constitutiоnal and statutory ramifications, we conclude as a general matter, and hold in this particular case, that it is not, though we do not categorically rule out the possibility of mandamus relief for the government in the event of a patently unauthorized and pernicious use of the sequestration power.
In early pretrial hearings, the district court invoked, originally on its own initiative and, thereafter, at the insistence of defense counsel, the traditional rule authorizing the sequestration of witnesses. See Fed. R. Evid. 615 (“At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion.”).
Later, in response to an extensively briefed and formally argued request for reconsideration, the district court reaffirmed its adherence to Rule 615, prompting the current proceedings for review.
The government and the excluded witnesses filed separate appeals, Nos.
96-1469 and 96-1475, respectively, which defendants moved to dismiss on
procedural grounds. The excluded witnesses then filed a petition for a writ of
mandamus, No. 96-1484, and the government added an informal request for
mandamus consideration, both seeking to secure an alternative avenue of review
in the event their appeals were deemed defective. This court consolidated all of
the proceedings and granted expedited review. The briefs of the parties and
amici
[1]
have now been filed, putting the case at issue.
[2]
On de novo consideration
of the fundamental threshold questions raised by defendants’ motions, see Wilson
v. Glenwood Intermountain Properties, Inc.,
*11 I
The government’s right to appeal in criminal cases is subject to unique limitations.
Recently, in United States v. Carrillo-Bernal,58 F.3d 1490 (10th Cir. 1995), we surveyed in detail the historical evolution of the government’s right to appeal in criminal cases. Id. at 1494-97. . . . Before the turn of this century, government appeаls in criminal cases were considered verboten. Since then, Congress has progressively loosened the government’s ability to receive appellate review of unfavorable district court decisions in criminal matters. Id. at 1494-95. However, two general rules have survived this historical evolution: the government may only initiate criminal appeals based on specific statutory authority; and there is a presumption against government criminal appeals. Id.
United States v. Roberts,
Manypenny,
A Since its last substantive amendment in 1984, § 3731 has expressly authorized government appeals:
[1] from a decision, judgment, or order . . . dismissing an indictment or information or granting a new trial after a verdict or judgment, as to any one or more counts, except . . . where the double jeopardy clause . . . prohibits further prosecution[;] [2] from a decision or order . . . suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purposes of delay and that the evidence is a substantial proof of a fact material in the proceeding[; and] [3] from a decision or order . . . granting the release of a person charged with or convicted of an offense, or denying a motion for revocation of, or modification of the conditions of, a decision or order granting release.
These conditions permitting appeal have been “carefully circumscribed by
Congress out of a desire (among other reasons) to safeguard individuals from the
special hazards inherent in prolonged litigation with the sovereign.”
Carrillo-Bernal,
Nothing in § 3731 rеmotely suggests that the government may appeal a
witness sequestration order. The circuit courts have repeatedly dismissed
government appeals taken from similar preliminary rulings which, neither
ordering nor practically effecting the dismissal of charges, exclusion of evidence,
or release of the defendant, fell outside the categories specified in § 3731.
[3]
See,
*14
e.g, Roberts,
1992)(order denying motion to disqualify defense counsel); United States v.
White,
B Perhaps anticipating this conclusion, the government has essentially ignored § 3731 and, instead, relied exclusively on a judicially recognized exception to the foregoing limitations on government appeals. In Carroll v.
United States,
*16 The government contends the sequestration order (1) “conclusively [determined] that victim-witnesses are not entitled to attend court proceedings,” (2) impacts an “important right” that “is ‘completely separate from the merits’ of whether defendants are guilty and how they should be punished,” and (3) “would be ‘effectively unreviewable’ after [trial],” and, therefore, that the “Cohen inquiry is easily satisfied here.” Brief of Plaintiff-Appellant, at 9-11; Reply Brief of Plaintiff-Appellant, at 3. The conclusion of this argument bespeaks its flaw.
Given the severe limitations on the government’s right of appeal from final
criminal judgments--including the complete prohibition thereon following a jury
acquittal--pretrial criminal rulings would as a routine matter arguably, if not
“easily,” satisfy the Cohen criteria. However, the pertinent case law does not
countenance the evisceration of § 3731 by any suсh wholesale departure from the
traditional presumption against government interlocutory appeals in criminal
cases. Indeed, the Supreme Court has specifically noted that the considerations
disfavoring such appeals are “made no less compelling . . . by the fact that the
Government has no later right to appeal.” Di Bella,
The basic problem with the government’s Cohen argument arises from the government’s consistent failure throughout this appeal to come to grips with the fundamental principle that for it to appeal in the criminal context, authorization under § 3731 is an independent requirement in addition to the finality demanded *17 by § 1291. Obviously, it is only the latter condition that traditionally has been excused by the civil Cohen collateral-order doctrine. Thus, when the government seeks review in a criminal case, concerns unaddressed by Cohen come into play. The Second Circuit has acknowledged this same crucial point in rejecting the government’s invocation of Carroll and Cohen in support of an appeal unauthorized by § 3731:
The same considerations that have led the courts to avoid
construing § 3731 broadly as authorizing appeals from new-trial
orders
[5]
lead us to eschew expansion of the traditional scope of
§ 1291 to allow the present appeal [under Carroll and Cohen]. . . .
This historic policy disfavоring government appeals in criminal
cases, which has repeatedly been reaffirmed by the Court
concurrently with its recognition of Congress’s increasing allowance
of interlocutory appeals, has a prudential basis, ‘over and above the
constitutional protection against double jeopardy,’ Di Bella [, 369
U.S. at 130.] The principal prudential bases are the avoidance of
undue delay, see Carroll[,
Rather than importing the collateral order doctrine lock, stock, and barrel into our criminal jurisprudence, we hold only that when, as now, the conditions of the collateral order doctrine are satisfied, and the prudentiаl concerns that traditionally militate against allowing the government to appeal in a criminal case favor, or are at least neutral in respect to, the availability of a government appeal, then section 1291 affords a vehicle through which the government may seek appellate review in a criminal case.
United States v. Horn,
We need not now decide upon any comprehensive, sagacious formulation
for resolving the validity of all attempts by the government to appeal from
interlocutory orders falling outside the compass of § 3731. The Supreme Court’s
initial heuristic prescription, specifying “orders . . . found to possess sufficient
independence from the main course of the prosecution to warrant treatment as
plenary orders,” Carroll,
While legislative expansion of § 3731 has superseded the particular holdings of
the seminal Supreme Court decisions establishing and implementing this
*19
prescription, see id. at 403-04 (dismissing appeal of suppression order and
discussing limited circumstances when order returning seized property might be
appealable); Di Bella,
The district court’s sequestration order clearly is not independent from the ongoing criminal prosecution out of which the government’s appeal arises.
Indeed, the stated purpose of the order, consistent with the recognized policy
underlying Rule 615 generally,
[6]
is to preserve the integrity of that very proceeding
by eliminating a potential source of impermissible influence on proposed
*20
testimonial evidence. The fact that the victim-impаct evidence involved here
would relate only to sentencing matters does not alter our analysis. Far from
being collateral to the main course of the prosecution, “[t]he sentencing process is
the inevitable culmination of a successful prosecution; it is an integral aspect of a
conviction.” Denson,
1988).
Accordingly, we hold that neither § 3731 nor the independent-proceeding exception thereto apply to the government’s appeal. We therefore dismiss the appeal for lack of the requisite jurisdictional authorization, and turn to the government’s alternative request for a writ of mandamus.
C
Ordinarily, the unavailability of appeal favors mandamus consideration.
But the lack of appellate jurisdiction here is not a mere procedural contingency
fortuitously precluding review; on the contrary, the government’s right of appeal
in this context has been “carefully circumscribed by Congress” to safeguard
important interests. Carrillo-Bernal,
While mandamus may not be used to circumvent the policies effectuated by
the restrictive provisions of § 3731, “[t]his is not to say that mandamus may never
be used to review procedural orders in criminal cases.” Will ,
Thus, as indiсated at the outset of this opinion, we do not categorically preclude
the use of mandamus to review any and all criminal rulings, however egregious,
unauthorized, and prejudicial, which might fall outside the scope of § 3731. Cf.
We acknowledge that our analysis has resulted in completely foreclosing review of the government’s challenge to the sequestration order. Though it may perhaps be seen as overly technical and unduly severe by those focussed only on this particular controversy, our judicial restraint is ultimately guided and informed by a very broad principle--the constitutional distribution of power between the legislative and judicial branches of our government. As the Supreme Court took pains to explain in Carroll:
Many interlocutory decisions of a trial court may be of grave importance to a litigant, yet are not amenable to appeal at the time entered, and some are never satisfactorily reviewable. In particular is this true of the Government in a criminal case . . . .
If there is serious need for appeals by the Government from [sequestration] orders, or unfairness to the interests of effective criminal law enforcement in the distinctions we have referred to, it is the function of the Congress to decide whether to initiate a departure from the historical pattern of restricted appellate jurisdiction in criminal cases. We must decide the case on the statutes that exist today, in the light of what has been the development of the jurisdiction. It is only through legislative resolution, furthermore, that peripherаl questions regarding the conduct of government appeals in this situation can be regulated.
II
*23
Defendants have raised numerous challenges to the proceedings for review
brought by the sequestered victim-impact witnesses themselves. However, we
find it necessary to address only the issue of standing. As “an essential and
unchanging part of the case-or-controversy requirement of Article III,” Lujan v.
Defenders of Wildlife,
1995), cert. denied,
Brown,
*24 Article III imposes three fundamental requirements for standing in federal court:
First, the [complainant] must have suffered an injury in fact--an invasion of a legally protected interest which is concrete and particularized and actual or imminent. Second, a causal connection must exist between the injury and the conduct complained of; the injury must be fairly traceable to the challenged action. Third, it must be likely that the injury will be redressed by a fаvorable decision.
Committee to Save the Rio Hondo v. Lucero,
Legally protected interests derive from various sources, including
constitutional guarantees, see, e.g. , Journal Publ’g Co.,
A There are a number of problems with the excluded witnesses’ reliance on the Victims’ Rights Act. [8] The statute charily pledges only the “best efforts” of certain executive branch personnel to secure the rights listed. See § 10606(a) (“Officers and employees of . . . departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that victims of crime are accorded the rights described in subsection (b) of this section.”). The district court judge, a judicial officer not bound in any way by this pledge, could not violate the Act. Indeed, the Act’s prescriptions were satisfied once the government made its arguments against sequestration--before the district court even ruled.
Further, the specific right to attend criminal proceedings is expressly
subject to the following qualification: “unless the court determines that testimony
by the victim would be materially affected if the victim heard other testimony at
trial.” § 10606(b)(4). In essence, the statute acknowledges that the policies
behind Rule 615 inherently limit the victim’s right to attend criminal proceedings.
*27
Finally, and in any event, Congress explicitly instructed that the Act “does
not create a cause of action or defense in favor of any person arising out of the
failure to accord to a victim the rights enumerated in subsection (b).” § 10606(c).
The excluded witnesses argue this provision relates only to independent
enforcement actions and does not bar appeal or mandamus challenges within the
criminal proceeding itself, but this facially uncompelling contention is undercut
further by a decision of this court in an analogous standing context. In United
States v. Kelley,
B Our analysis of the excluded witnessеs’ constitutional basis for standing rests on a fundamental distinction regarding the character and locus of the public right of access to criminal proceedings derived from the First Amendment by the Supreme Court in Richmond Newspapers and Globe Newspaper Co. The witnesses do not assert, nor could they, that an order precluding (only) intended witnesses from attending a criminal proceeding generally open to the public and the press violates the public ’ s right of access. Rather, they posit a personal First Amendment right to attend the proceedings, violated despite the public’s undisputed access. In our view, recognition of such an entitlement, arguably affording a constitutional basis for disruptive interlocutory review in every criminal prosecution at the behest of any disappointed would-be trial attendee, would entail an unprecedented expansion/transformation of the public trial-access *29 right unwarranted by the policies cited by the Supreme Court as the rationale for gleaning the right from the First Amendment. [9]
A broad survey of public trial-access case law, and review of the particular authorities relied on by the excluded witnesses here, confirm that pertinent constitutional proscriptions are implicated only when, through orders closing proceedings, sealing documents, gagging participants and/or restricting press coverage, a trial court has deprived the public at large direct or indirect access to the trial process. The witness-sequestration order entered in this case has no such effect; members of the public will attend the trial and the press will report on the proceedings to the public generally. We are not aware of any case in which an analogous order was held to implicate the constitutional right recognized in Richmond Newspapers and Globe Newspaper Co.
Just as important, this assessment of the case law is entirely consistent with
the broad, structural interests prompting the Supreme Court to recognize the
public trial-access right dеspite the lack of explicit textual support in the
constitution. Such interests include: informing the public discussion of
government affairs, assuring the public perception of fairness, promoting the
community-therapeutic effect of criminal justice proceedings, providing a public
*30
check on corrupt practices, intimidating potential perjurers, and generally
enhancing the performance of all involved in the process. See Globe Newspaper
Co.,
1982) (summarizing “six societal interests” cited in Richmond Newspaper
plurality and concurring opinions). These interests necessitate--and are satisfied
by--a publicly open trial, regardless of the personal attendance of any particular
individual.
[10]
Indeed, “[t]he value of openness lies in the fact that people not
actually attending trials can have confidence that standards of fairness are being
observed.” Press-Enterprise Co. v. Superior Court,
Accordingly, we hold that the excluded witnesses lack Article III standing to seek review of the sequestration order entered by the district court. We therefore do not have jurisdiction to reach the merits of either their appeal or their mandamus petition.
*31 The government’s appeal, No. 96-1469, is DISMISSED, and its request for alternative mandamus consideration is DENIED. The victims’ appeal, No.
96-1475, and their mandamus petition, No. 96-1484, are DISMISSED.
Notes
[1] Wе grant motions filed by The Criminal Justice Legal Foundation and The National Victims Center, Mothers Against Drunk Driving, The National Victims’ Constitutional Amendment Network, Justice for Surviving Victims, Inc., Concerns of Police Survivors, Inc., and Citizens for Law and Order, Inc., to submit amicus curiae briefs in support of the appellants.
[2] After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of these proceedings. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cases are therefore ordered submitted on the briefs.
[3] We say “nor practically effecting” because § 3731 can apply to
rulings which, though nominally outside the scope of the statute, have the
practical effect of orders clearly covered. See United States v. Zabawa, 39 F.3d
279, 283 (10th Cir. 1994); United States v. Drogoul ,
[3] (...continued)
F.2d at 8, which dismissed an appeal from a discovery order citing “a critical
distinction” pertinent here as well: “The district court has not stated that it will
exclude evidence if the government fails to comply. Rather than being a
conditional order of exclusion, . . . the order in question is an unconditional
direction which may be enforced by any of a variety of sanctions, only one of
which is exclusion of evidence.” The same is true of the sequestration order
issued in this case. See United States v. Sepulveda,
[4] The collateral-order doctrine originates from Cohen v. Beneficial
Indus. Loan Corp,
[5] Congress subsequently amended § 3731 specifically to authorize appeal from orders “granting a new trial after verdict or judgment” when otherwise constitutionally permissible.
[6] Carroll cautions that “[a]ppeal rights cannot depend on the facts of a
particular case.”
[7] We do not hold that the lack of what is often called “appellate standing” necessarily precludes mandamus review. Standing encompasses “constitutional considerations related to the ‘case or controversy’ limitation of Article III and also prudential concerns ‘that, apart from Art. III’s minimum (continued...)
[7] (...continued)
requirements, serve to limit the role of the courts in resolving public disputes.’”
Kansas Health Care Ass’n v. Kansas Dep’t of Social & Rehabilitation Servs. , 958
F.2d 1018, 1021 (10th Cir. 1992) (quoting Warth v. Seldin,
[8] In conjunction with the Victims’ Rights Act, the excluded witnesses also refer generally to 42 U.S.C. § 10608, which provides for closed circuit televising of certain criminal proceedings. This statute does not materially impact our construction and application of § 10606, or our standing analysis generally.
[9] We need not and do not address entirely distinct questions regarding the propriety and redress of trial exclusions implicating other constitutional values, such as equal protection or traditional free speech guarantees.
[10] We note that considerations personal to particular individuals may be
quite relevant to the standing inquiry once a public deprivation has been shown .
Given such a showing, the critical remaining obstacle to standing, i.e., the
requirement that those challenging the deprivation suffered a cognizable
individualized harm, see United States v. Hays,