U.S. v. Smith, Docket No. 03-1588.

• Decision Date: 17 October 2005
• Docket Number: Docket No. 03-1588.
• Citation: 426 F.3d 567
• Parties: UNITED STATES of America Appellee v. Wendell SMITH Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

426 F.3d 567

UNITED STATES of America Appellee v. Wendell SMITH Defendant-Appellant.

Docket No. 03-1588.

United States Court of Appeals, Second Circuit.

Argued: January 4, 2005.

Decided: October 17, 2005.

COPYRIGHT MATERIAL OMITTED

Lawrence L. Kasperek, Rochester, NY, for Defendant-Appellant.

Bradley E. Tyler, Assistant United States Attorney (for Michael A. Battle, United States Attorney for the Western District of New York), Rochester, NY, for Appellee.

Before: WINTER, SOTOMAYOR, B.D. PARKER, Circuit Judges.

B.D. PARKER, JR., Circuit Judge.

This appeal requires us to consider whether post-September 11th security measures implemented by the United States Marshals Service at the entrance to a federal building complex in Rochester, New York containing courtrooms and other non-judicial governmental facilities violated Defendant-Appellant Wendell Smith's First or Sixth Amendment rights. We hold that Smith's Sixth Amendment right to a public trial was not violated by the requirement that court visitors show photo identification because the security measures effected at most a partial closure of Smith's trial that satisfied the four-part test articulated in Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). We also reject Smith's First Amendment claim because to the extent his Sixth Amendment claim fails, his First Amendment claim also fails. Consequently, we affirm his conviction for unlawful possession of a weapon under 18 U.S.C. § 922(g)(1), and we remand for proceedings consistent with United States v. Crosby, 397 F.3d 103 (2d Cir.2005). We are, however, concerned by the Marshals Service's restriction of court access and wish to underscore the primary role of the courts in controlling access to premises containing courtrooms.

BACKGROUND

Wendell Smith was arrested in June 2002 and charged with one count of possession of a firearm and ammunition by a convicted felon. See 18 U.S.C. § 922(g)(1). A three-day jury trial in the United States District Court for the Western District of New York (Siragusa, J.) concluded with a guilty verdict and Smith was sentenced principally to 46 months' imprisonment and three years' supervised release.

Smith's trial was held in the United States District Court in Rochester, New York, which is part of the Kenneth B. Keating Federal Building complex. At the entrance to the building is a security station staffed by security personnel supervised by the Marshals Service. On February 7, 2003, pursuant to a directive from the Director of the Marshals Service, the Marshals Service, in conjunction with the Department of Homeland Security (DHS), began requiring all unknown building visitors to show photo identification before passing through magnetometers.

On the third day of trial, counsel for Defendant moved for a mistrial on the grounds that Defendant's First and Sixth Amendment rights to public trial were violated by the requirement that visitors to the federal building show photo identification. Smith's counsel submitted an affidavit which vaguely claimed "[u]pon information and belief" that members of Smith's family, members of counsel's investigative staff, and members of the general public had been prevented from attending his jury trial as a result of the photo identification policy. Counsel did not provide any additional specific information regarding those who were allegedly denied access due to the photo identification policy. After closing arguments, the district court excused the jury and called Marshal Peter Lawrence to the stand to explain the photo identification requirement.

Marshal Lawrence testified that the requirement of showing a photo identification was part of a new policy implemented after the events of September 11, 2001, to protect federal buildings and courthouses. Under the policy, there are five numerical security levels, which correspond with the five color levels established by DHS. When the national alert level is 3 (yellow) or 4 (orange), Marshals must perform a photo identification check of all individuals seeking access to federal buildings. Because the national alert level at the time of Smith's trial was 3, every person seeking access to the building who was unknown to security personnel was checked for photo identification and asked to sign-in. Individuals who could not produce a photo identification were denied entry. Marshal Lawrence testified that individuals were not asked for identification on the basis of race, national origin, or any other discriminatory ground.

Marshal Lawrence further testified that there was no "watch list" against which security personnel checked the names; therefore, any person who could produce a form of photo identification was permitted to enter the federal building containing courtrooms. Furthermore, it was left to the discretion of security personnel to determine whether an individual was sufficiently identified by the identification he or she tendered.

At the conclusion of the hearing, the district court made the following findings: (1) after September 11, 2001, the Marshals Service, in conjunction with DHS, adopted heightened security measures; (2) alert levels 3 and 4 require all unknown individuals to show photo identification in order to receive access to federal buildings; (3) such a policy "on a common sense basis" makes "perfect sense" because "[s]omeone who is forced to identify themselves is less likely to pose a threat than someone who is allowed to walk into the building without any at all;" (4) the policy was enforced without regard to race, ethnicity, or other improper classifications; and (5) where the district court did not itself restrict trial access, the Defendant's Sixth Amendment right to a public trial was not implicated. The district court did not permit Smith to put on testimony showing that anyone had actually been excluded by the security measures, and the district court ultimately declined to order a mistrial. On appeal Smith contests this ruling.

DISCUSSION

We review the district court's legal conclusions de novo, see United States v. Doe, 63 F.3d 121, 125 (2d Cir.1995), and its denial of a mistrial for abuse of discretion. See United States v. Carson, 52 F.3d 1173, 1188 (2d Cir.1995). "However, because the district court's discretion is significantly circumscribed by constitutional principles set forth by the Supreme Court, this court's review is more rigorous than would be the case in other situations in which abuse-of-discretion review is conducted." Doe, 63 F.3d at 125 (internal quotations omitted).

I. Sixth Amendment

The Sixth Amendment provides, inter alia, that "the accused shall enjoy the right to a ... public trial." U.S. Const. amend. VI. Nevertheless, a criminal defendant's right to a public trial "may give way in certain cases to other rights or interests." Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). In Waller, the Supreme Court established a four-prong test for determining when an abridgement of a defendant's Sixth Amendment public trial right is justified. See id. at 48, 104 S.Ct. 2210. Under Waller, a courtroom closure does not rise to the level of a Sixth Amendment violation if: (1) closing the hearing would advance an overriding interest that is likely to be prejudiced; (2) the closure is no broader than necessary to protect that interest; (3) the trial court considers reasonable alternatives to closing the proceeding; and (4) the trial court makes findings adequate to support the closure. Id.; see Ayala v. Speckard, 131 F.3d 62, 69 (2d Cir.1997) (en banc).

Although Waller concerned the complete closure of a courtroom to the public for the duration of a hearing, this Circuit and others have held that where a narrow, "partial closure" occurs, the first Waller factor is less rigorous. In such cases, there must only be a "substantial reason," rather than an "overriding interest" justifying the closure. Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir.1992); see also United States v. Sherlock, 962 F.2d 1349, 1357 (9th Cir.1992) (as amended); Nieto v. Sullivan, 879 F.2d 743, 753 (10th Cir.1989); Douglas v. Wainwright, 739 F.2d 531, 533 (11th Cir.1984). We have considered a variety of factors in determining whether a closure is broad or narrow, including "its duration, whether the public can learn what transpired while the trial was closed (e.g. through transcripts), whether the evidence was essential, and whether selected members of the public were barred from the courtroom, or whether all spectators were excluded." Carson v. Fischer, 421 F.3d 83, 89-90 (2d Cir.2005) (citing Bowden v. Keane, 237 F.3d 125, 129-30 (2d Cir.2001)).

Here, however, the district court never reached the question of whether even a narrow closure occurred; instead, it concluded that Smith's Sixth Amendment rights were not implicated because the district court itself had not denied anyone courtroom access. We believe the district court erred in assuming that a defendant's Sixth Amendment rights cannot be violated unless a court itself restricts courtroom access. First, although cases involving the right to a public trial commonly arise in the context of courts entering formal closure orders, we believe that measures that limit the public's access to federal buildings with courtrooms where public trials may be occurring implicate Sixth Amendment concerns. At least one other circuit has concluded that the Marshals Service's sua sponte act of requiring spectators to produce photo identification before entering a trial triggered a Sixth Amendment inquiry. See United States v. DeLuca, 137 F.3d 24, 32-35 (1st Cir.1998). Second, even if the district court did not itself initially enact the screening procedures, as discussed below, the district court, not the Marshals Service, controlled access to the courtrooms and ultimately ratified the screening proceeding by concluding that they were constitutionally permissible. See id. at 35. We see no...