U.S. v. Powers

• Decision Date: 30 April 1980
• Docket Number: No. 79-1791,79-1791
• Citation: 622 F.2d 317
• Parties: 6 Media L. Rep. 1161 UNITED STATES of America, Appellee, v. Mark Richard POWERS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 317

622 F.2d 317

6 Media L. Rep. 1161

UNITED STATES of America, Appellee, v. Mark Richard POWERS, Appellant.

No. 79-1791.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 7, 1979.

Decided April 30, 1980.

John P. Roehrick, Des Moines, Iowa, for appellant.

Don C. Nickerson, Asst. U. S. Atty., Des Moines, Iowa, argued, Roxanne Barton Conlin, U. S. Atty., Des Moines, Iowa, on brief, for appellee.

Before GIBSON, Chief Judge, ^* LAY and McMILLIAN, Circuit Judges.

FLOYD R. GIBSON, Senior Judge.*

Mark Powers appeals the pretrial order of the District Court ¹, 477 F.Supp. 497, denying Powers' motion to exclude the public during his criminal trial. We affirm.

On January 25, 1979, a federal grand jury returned a two-count indictment against Powers charging violations of 18 U.S.C. §§ 371, 474 (1976) for conspiracy to counterfeit and possession of counterfeit plates. Powers entered a plea of not guilty on January 29, 1979. On April 3, 1979, he filed a motion seeking further discovery concerning his past involvement as an undercover agent or informant for federal and state law enforcement officials for the purpose of establishing a defense. On June 8, 1979, the District Court ordered further discovery.

On July 25, 1979, Powers filed a motion to exclude the public during his trial, alleging that the right to a public trial is the personal right of the defendant and may be waived by him. The Government resisted the motion. The District Court held hearings on the motion on August 29, 1979, and September 4, 1979, at which time in camera testimony was given by Powers concerning his informant status. On September 7, 1979, the court entered an order denying Powers' motion, but did find that Powers had served as an informant on a number of occasions for both the Federal Bureau of Investigation and the Iowa Department of Criminal Investigation. Powers appeals this interlocutory order under 28 U.S.C. § 1291 (1976). ²

On appeal, Powers contends the District Court erred in requiring him to bear the burden of proof regarding the necessity of closure, and also in not granting his motion for closure.

In the District Court, Powers argued that his entire criminal trial should be closed to the public so that he could adequately present his defense to the counterfeiting charges; otherwise he would be denied his right to a fair trial under the sixth and fifth amendments. The basis of Powers's motion was that if he had been engaged in a conspiracy or in possession of counterfeit plates, it was as an informant for law enforcement officials, and therefore he lacked the requisite criminal intent. In order to establish a defense based upon lack of intent, Powers contends that he would be required to divulge his past activities as an informant in order to show that his activities in this case were no different from his actions during his previous informant activities, where in some instances he had possessed contraband unbeknownst to the law enforcement agency. Powers alleges that a public trial would deny his right to present a defense because fear for his welfare and safety, as well as that of his family, would preclude divulging his past activities in open court.

The District Court found that an order of closure would not be proper unless Powers established the following:

1) By clear and convincing evidence that there was a clear and present danger of actual harm to the life of the defendant or a member of his family;

2) consent to the closure on the part of the prosecution, * * * or a compelling reason for not requiring the prosecution's consent;

3) by clear and convincing evidence that the closure of defendant's criminal trial would effectively prevent the harm alleged and proven to exist; and

4) by clear and convincing evidence that there are no effective alternatives to the complete closure of the criminal trial.

United States v. Powers, 477 F.Supp. 497, 499 (S.D.Iowa 1979).

The District Court concluded that Powers had failed to prove by clear and convincing evidence that an open court presentation of his defense would result in a clear and present danger of actual harm to the life of the defendant or a member of his family. In addition, the court suggested an alternative to closure whereby Powers and the Government would stipulate to Powers's informant status.

I.

Powers does not now contend that he has an absolute sixth amendment right to compel closure, though his motion for closure claimed that the right to public trial "is the right of the defendant and may be waived." The Supreme Court, in Gannett Co. v. DePasquale, 443 U.S. 368, 382 & n. 11, 99 S.Ct. 2898, 2907 & n. 11, 61 L.Ed.2d 608, 623 & n. 11 (1979), clearly states that no absolute right to compel a private trial exists, citing Singer v. United States, 380 U.S. 24, 35, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965).

Forgoing any claim of absolute right to closure, Powers limits his claim to a sixth amendment right to waive his right to a public trial to those situations in which the right to a fair trial is denied. Essentially, Powers argues that his sixth amendment right to compel closure is coextensive with his fifth amendment due process right to a fair trial. The Court's plurality decision in Gannett apparently does not preclude a right to compel closure whenever a defendant would otherwise be denied a fair trial, if Gannett's pretrial ruling can be applied to the plenary criminal trial. Gannett, supra, 443 U.S. at 382 n. 11, 99 S.Ct. at 2907 n. 11, 61 L.Ed.2d at 623 n. 11; id. 443 U.S. at 440 & n. 16, 99 S.Ct. at 2936 & n. 16, at 659 & n. 16 (Blackmun, J., dissenting). See also id. at 443 U.S. 400, 99 S.Ct. at 2916, 61 L.Ed.2d at 634 (Powell, J., concurring). At issue in this appeal is the narrow question of whether Powers would be denied his due process right to a fair trial, and therefore whether the District Court erred in not allowing him to waive his sixth amendment right to a public trial and compel closure. ³

II.

The Court's majority opinion in Gannett did not precisely address the question of the extent to which a defendant can compel closure when he claims his right to a fair trial is in jeopardy. In a footnote, Justice Stewart quoted Singer v. United States, 380 U.S. 24, 35, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965), ⁴ for the proposition that "although a defendant can, under some circumstances, waive his constitutional right to a public trial, he has no absolute right to compel a private trial." Gannett, supra, 443 U.S. at 382 n. 11, 99 S.Ct. at 2907 n. 11, 61 L.Ed.2d at 623 n. 11 (emphasis added).

Justice Powell, however, in his concurring opinion in Gannett, suggested a standard to be applied by trial courts in response to requests for closure by the defendant:

The question for the trial court, therefore, in considering a motion to close a pretrial suppression hearing is whether a fair trial for the defendant is likely to be jeopardized by publicity, if members of the press and public are present and free to report prejudicial evidence that will not be presented to the jury.

* * * (W)here a defendant requests the trial court to exclude the public, it should consider whether there are alternative means reasonably available by which the fairness of the trial might be preserved without interfering substantially with the public's interest in prompt access to information concerning the administration of justice.

443 U.S. at 400, 99 S.Ct. at 2916, 61 L.Ed.2d at 634 (emphasis added). ⁵

In contrast, as pointed out by Justice Powell, 443 U.S. at 399, 99 S.Ct. at 2915, 61 L.Ed.2d at 634, the dissenting opinion of Justice Blackmun, joined by Justices Brennan, White, and Marshall, would impose a severe burden upon defendants seeking closure. "It comports with the Sixth Amendment to require an accused who seeks closure to establish that it is strictly and inescapably necessary in order to protect the fair trial guarantee." 443 U.S. at 440, 99 S.Ct. at 2936, 61 L.Ed.2d at 660 (emphasis added).

Finally, Justice Rehnquist, in his concurring opinion, also objects to Justice Powell's standards when the participants in a criminal litigation agree for any reason that the trial shall be closed, 443 U.S. at 404-05 & n. 2, 99 S.Ct. at 2918-19 & n. 2, 61 L.Ed.2d at 637-38 & n. 2, a situation not presented here. ⁶

The criteria for closure adopted in the District Court are substantially similar to those outlined in Justice Blackmun's dissenting opinion. Under the "strictly and inescapably necessary" standard, Justice Blackmun would require a three-prong test:

The accused who seeks closure should establish . . . the following:

First, he should provide an adequate basis to support a finding that there is a substantial probability that irreparable damage to his fair trial right will result from conducting the proceeding in public.

Second, the accused should show a substantial probability that alternatives to closure will not protect adequately his right to a fair trial.

Third, the accused should demonstrate that there is a substantial probability that closure will be effective in protecting against the perceived harm.

443 U.S. at 441-42, 99 S.Ct. at 2937, 61 L.Ed.2d at 660-61.

The main difference between Justice Blackmun's test and that required by the District Court is that the latter requires "clear and convincing" evidence in order to compel closure, while Justice Blackmun would require only a showing of "substantial probability." In addition, the District Court would require "consent to the closure on the part of the prosecution" or "a compelling reason for not requiring the prosecution's consent." Justice Blackmun would apply his test regardless of the consent or nonconsent of the prosecutor. 443 U.S. at 445, 99 S.Ct. at 2939, 61 L.Ed.2d at 663.

We believe that Justice Blackmun's three-prong test correctly states the standard to be applied in the limited case where the defendant seeks closure without the consent of the prosecutor....