Petition — Powers v. United States
Supreme Court brief1980
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In The
Supreme Court of the United States
OCTOBER TERM, 1979
no. £9-1960
re’
Ww
MARK RICHARD POWERS,
Petitioner,
VS.
UNITED STATES OF AMERICA,
Respondent.
-—
4
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
,
fe
Joan P. Rorurickx
Roeurick, Lavorato, ScHustEr,
Suutens & Hassei
535 Insurance Exchange Building
Des Moines, Iowa 50309
Attorneys for Petitioner
COCKLE PRINTING CO., 2311 Douglas St., Omaha 68102
Opinion Below
Jurisdiction
Question Presented
Constitutional Provisions and Statutes
Statement of the Case
Reasons for Granting Certiorari
Conclusion
I. In this case, the Circuit Court of Appeals
has decided a federal question of substance which
has not yet been settled by this court and that is:
when a defendant requests the closure of a crim-
inal trial does the standard adopted by the United
States District Court of the Southern District of
Towa, the plurality opinion of Gannett Co. v. De
Pasquale, — U. S. —, 99 S. Ct. 2898, 63 L. Ed.
2d 608 (1979), or the dissent of Justice Blackmun
as adopted by the Circuit Court of Appeals for
the Eighth Cireuit govern.
Il. This case presents a serious question as
to whether the defendant should be allowed clos-
ure over the objection of the prosecution, and
thereby be insured of due process, when without
closure the defendant will not be able to fully and
adequately present a defense and thus will not be
able to fairly defend against the government ac-
cusations.
3] ow w mw WW bd
18
il
INDEX—Continued
Pages
Appendix A App. 1
Opinion and Judgment of the United States Court
of Appeals for the Kighth Circuit, Filed April
30, 1980
Appendix B : App. 37
Constitutional Provisions and Statutes
Appendix C App. 40
Ruling and Order in the United States District
Court for the Southern District of Iowa, Judge
William C. Stuart
Appendix D App. 46
Certificate of Service
Appendix E App. 47
Appearance
CASES CITED
Aaron v. Capps, 507 F. 2d 685 (5th Cir. 1975) WW. 12
Estes v. Texas, 381 U. S. 532, 85 S. Ct. 1628
(1965) 11, 12,14
Gannett Publishing Co. v. DePasquale, — U. 8S. —,
99 S. Ct. 2898 (1979) 7,8, 9,12
Geise v. U. S., 265 F. 2d 659 (9th Cir. 1959) ... 11,12
Harris v. Stephens, 361 F. 2d 888 (8th Cir. 1966) WW... 13
In Re Winship, 397 U. S. 358, 90 S. Ct. 1068, 25 L.
Ed. 2d 368 (1970) 7 8
ESE
ili
CASES CITED—Continued
Pages
Levine v. U. S., 362 U. S. 610, 80 S. Ct. 1038 (1960)..... 12
Singer v. U. S., 380 U. S. 24, 85 S. Ct. 783 (1965)......... 5)
Speiser v. Randall, 357 U. S. 525, 78 S. Ot. 1742... 9
U.S. ex rel. Bruno v. Herold, 408 F. 2d 125 (2nd
Cir. 1969) 13
U. S. ex rel. Latimore v. Sielaff, 561 F. 2d 691
(7th Cir, 1977) 12,13
U. S. ex rel. Laws v. Yeager, 448 F. 2d 74 (3rd
Cir. 1971) 13
U. S. ex rel. Lloyd v. Vincent, 520 F. 2d 1272
(2nd Cir. 1975) 13
U. S. ex rel. Smallwood v. Lavalle, 377 F. Supp.
1148 (EDNY 1974) 13, 15
U.S. v. Bell, 464 F. 2d 667 (2nd Cir. 1972) WW .. 13
U.S. v. Eisner, 533 F, 2d 987 (6th Cir. 1976) .u.. 13
U. S. v. Lopez, 328 F. Supp. 1077 (EDNY 1971) ....... =e
U.S. v. Palermo, 410 F. 2d 468 (7th Cir. 1967) .W. =13
U.S. v. Ruiz-Estrella, 481 F. 2d 723 (2nd Cir. 1973)... 14
U.S. v. Slocum, 464 F. 2d 1180 (3rd Cir. 1972) ww. 14
STATUTES
18 U.S. C. § 371 3
18 U.S. C. § 474 3
28 U.S. ©. §1254(1) 2
iv
ARTICLES
Pages
48 A.L.R. 2d 1436, Exclusion of Public During
Criminal Trial 14
49 A.L. R. 3d 1007, Right of Accused to have Press
or other Media Representative Excluded from
a 14
In The
Supreme Court of the United States
OCTOBER TERM, 1979
sy
dl
No.
sy...
—
MARK RICHARD POWERS,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
ni.
Vv
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
.
a
The Petitioner, Mark Richard Powers, respectfully
prays that a Writ of Certiorari issue to review the judg-
ment and opinion entered in this cause on April 30, 1980,
by the United States Court of Appeals for the Eighth
Circuit.
bo
OPINION BELOW
The opinion of the United States Court of Appeals
has not yet been published but was filed April 30, 1980,
and appears as Appendix A.
JURISDICTION
On April 30, 1980, the United States Court of Appeals
for the Eighth Circuit filed its opinion and judgment
(see Appendix A). The Petitioner has not filed any
motion for a rehearing of this matter by the Court nor
did he request a hearing en bance. Further, he has neither
required nor received an extension of time within which
to file a Petition for Certiorari. The jurisdiction of this
Court is invoked under Title 28 U.S. C., § 1254(1).
QUESTION PRESENTED
In this case, the United States Court of Appeals has
decided Federal questions of substance which have not
been, but should be, settled by this Court, to wit:
1, Whether the Defendant, in requesting closure of
his criminal trial has the burden of proof to demonstrate:
(a) a substantial probability of irreparable damage; (b)
a substantial probability that alternatives to closure do
not exist; and (c) that closure will be effective in pro-
tecting against the perceived harm.
3
2. Whether a Defendant is denied due process of
law under the Fifth Amendment, when he is prohibited
from a fair opportunity to defend against the govern-
ment’s accusations by being required to proceed in an
open public trial, even though the Defendant has waived
his right to a public trial under the Sixth Amendment.
fy.
Vv
CONSTITUTIONAL PROVISIONS AND STATUTES
Amendments V and VI of the Constitution of the
United States are set forth in Appendix B.
ray
oe
STATEMENT OF THE CASE
On January 25, 1979, an Indictment was returned by
the Grand Jury in the United States District Court for
the Southern District of Iowa charging the Petitioner
with violations of Title 18 U.S. C., §4 371, 474 (1976) for
Conspiracy to Counterfeit and Possession of Counterfeit
Plates (Appendix B). To these charges, the Petitioner,
on January 29, 1979, entered a plea of not guilty.
On April 3, 1979, the Petitioner filed a motion seek-
ing discovery as to his past involvement as an under-
cover agent and an informer [R. Motion for Discovery].
On June 8, 1979, the District Court ordered discovery
[R. Ruling on Motion for Discovery]. Following the
Government’s reports to the Court on July 10, 1979, and
again on July 23, 1979, the Petitioner filed another Mo-
tion for Discovery on July 25, 1979 [R. Motion for Fur-
ther Discovery]. In requesting the further information,
the motion specifically set forth the defenses upon which
the Petitioner would be relying. Essentially the allega-
tions as to the defenses were that if the Petitioner was
engaged in a conspiracy, it was as an informant for law
enforcement; and, when the Petitioner had been in pos-
session of the counterfeit plates, his conduct was con-
sistent with his past record as an informant for on sev-
eral past occasions the Defendant had been in possession
of contraband.
Concomitant with this motion, the Petitioner filed a
Waiver of Public Trial and a Motion to Exclude the
Public [R. Motion to Exclude Public]. The basis for this
motion was that to establish the aforesaid defenses he
would be required to divulge his past activities as an
informant essentially to show that his actions in the
instant case were no different than they had been in
the past.
Also it was alleged that, because of the fear for
the safety of himself and his family if he were to pub-
licly divulge specific past activities, the Petitioner would
be denied his right to present a defense if the trial were
to be public. To this motion the Government objected
[Plaintiff’s Resistance to Motion to Exclude Public].
On August 29, 1979, and again on September 4, 1979,
a hearing was held upon the Petitioner’s motion before
the Honorable Judge William C. Stuart in the United
States District Court for the Southern District of Iowa.
The hearing was bifurcated. Initially the legal issues
upon the requested closure were presented followed by
5
am in camera hearing, wherein the Petitioner testified and
presented evidence in support of his motion for closure
(Transcript, In Camera Hearing].
At the time the Government had responded to the
Petitioner’s request for discovery, in their reports to the
Court on July 10, 1979, and July 23, 1979, several instances
were set forth where the Petitioner had been an under-
cover agent and/or informant not only for the Iowa Bureau
of Criminal Investigation, but the Federal Bureau of In-
vestigation as well. Additionally, the responses showed
that on several occasions the Petitioner had been in the
possession of contraband and had been a ‘‘co-conspirator”
[R. Government’s Report to Court on July 10 and July
23, 1979].
The testimony at the time of the in camera hearing
reflected that the Petitioner had been an informant on no
less than eleven (11) occasions over a period of years.
Additionally on two (2) occasions the Federal Government
had dismissed charges against defendants rather than re-
veal the Petitioner’s identity as an informant [Tr. In Cam-
era Hearing, pp. 13, 41, 51-52]. Most of the information
supplied by the Petitioner resulted in convictions; and,
only in one case out of eleven (11) was the Defendant re-
quired to testify. Therefore, no one except the particular
defendant against whom the Petitioner had testified knew
of his activities as an informant nor was it known to what
extent the Petitioner had been an informant [Tr. In Cam-
era Hearing, pp. 55-59].
The Petitioner further testified as to the fear he felt
for the safety of himself and his family. This fear was
based on the statements of the individuals against whom
he had testified as well as their reputations. He testified
that there were certain individuals whom he believed were
dangerous and with whom he had concern as to their vio-
lent propensities [Tr. In Camera Hearing, pp. 9, 15-17, 19,
22, 34-35, 46-47, 49-51, 69-71].
The United States Assistant District Attorney thor-
oughly cross-examined the Petitioner and in so doing
brought out factors which might have reduced the danger
to the Petitioner; however, no affirmative evidence was
offered by the Government to rebut the Petitioner’s evi-
dence nor did the Government demonstrate in any manner
that the Petitioner’s fears were unreasonable or feigned.
The Petitioner rested and the government presented
no evidence. On September 7, 1979, Judge William C.
Stuart issued his ruling finding that the Petitioner had
failed to sustain his burden of proof. Judge Stuart, in
his ruling, held that the Petitioner had to establish 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 prosecu-
tion . . . or a compelling reason for not requiring the
prosecutor’s consent;
(3) by clear and convincing evidence that the closure
of the 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. (See Appendix C.)
7
Thereafter, on September 14, 1979, the Petitioner filed
his Notice of Appeal to the United States Court of Ap-
peals for the Eighth Circuit [R. Notice of Appeal]. The
cause was submitted on December 7, 1979, and on April
30, 1980, the Court of Appeals, in a two to one decision,
affirmed the decision of Judge William C. Stuart. It is
by reason of the denial of closure that the Petitioner here-
by requests the Supreme Court of the United States to
issue a Writ of Certiorari.
, o_o
ee
REASONS FOR GRANTING CERTIORARI
I. In this case, the Circuit Court-of Appeals has de-
cided a federal question of substance which has not yet
been settled by this Court and that is: when a defendant
requests the closure of a criminal trial does the standard
adopted by the United States District Court of the South-
ern District of Iowa, the plurality opinion of Gannett Co.
v. DePasquale, — U. §S. —, 99 S. Ct. 2898, 63 L. Ed. 2d 608
(1979), or the dissent of Justice Blackmun as adopted by
the Circuit Court of Appeals for the Eighth Circuit govern.
II. This case presents a serious question as to wheth-
er the defendant should be allowed closure over the ob-
jection of the prosecution, and thereby be insured of due
process, when without closure the defendant will not be
able to fully and adequately present a defense and thus will
not be able to fairly defend against the government ac-
cusations.
As the Circuit Court of Appeals aptly pointed out in
the majority opinion, the Supreme Court has not precisely
8
addressed the question of the extent to which a defendant
can compel closure when he claims his right to a fair trial
is jeopardized. United States v. Powers, infra, Appendix
A. However, the standard which was adopted by the Cir-
cuit Court of Appeals was that of Justice Blackmun’s dis-
sent in Gannett Publishing Co. v. DePasquale, — U. 8. —,
61 L: Ed. 2d at 660-61. Powers, supra, at page 9, Appendix
A.
Additionally, the Cireuit Court of Appeals held that
a defendant requesting closure had the burden to demon-
strate a strict and inescapable necessity for closure, in
addition to the adoption of the three-prong test espoused
by Justice Blackmun. However, the simple answer of the
adoption of such a standard belies the two-fold question
which has not yet been answered and that is: first, what
standard is to be applied; and secondly, who has the bur-
den—not onty the burden of proof, but the burden of
going forward.
As to the iatter question concerning burden of proof,
the Petitioner would submit that though the person who
requests closure has the burden of going forward with
the evidence to establish whatever standard is adopted,
it is the Government who has the burden of proof to prove
that closure is not necessary.
Essentially, it is the Petitioner’s contention that when
he, or any defendant, alleges a fear and a danger to his
own welfare and safety and thus requests closure and
thereafter introduces uncontroverted evidence to support
such, the Government should have the burden of proof.
As this Court stated in In Re Winship, 399 U. S. 358, 90
S. Ct. 1068, 25 L. Ed. 2d 368 (1970), in quoting from
Speiser v. Randall, 357 U. S. at 525-526, 78 S. Ct. at 1742:
4)
“There is always in litigation a margin of error,
representing error in fact finding, which both par-
ties must take into account. Where one has at siake
an interest of transcending value—as a criminal de-
fendant his liberty—this margin of error is reduced
as to him by the process of placing on the other
party iue burden of * * * persuading the factfinder.
. . . Due process commands that no man shall lose
his liberty unless the Government has borne the bur-
den of * * * convincihg the factfinder. ...”
In the instant case the Petitioner is faced with two
interests of transcending value. One is the personal
safety and welfare of the Petitioner as well as that of
his family. Secondly, and more importantly, at least in
the context of a fair trial, is that because of his fear he
will not be able to present his defense to the factfinder,
which is bottomed on his past actions as an informant
construed in light of his present actions and thus is
directed solely at an essential element of the offense
charged: namely, intent.
Therefore, because of these two transcending values
the burden of proof should lie on the party resisting the
requested remedy—that is, the Government, regardless
of the standard of proof adopted.
In this case, the question is one of the waiver of a
fundamental right—right to a public trial. Since the
right to a public trial is that of a defendant, Gannett
Publishing Co., supra, and the public has no right therein,
the Petitioner should be able to waive such. And, though
the waiver of this right does not compel the opposite
of this right, Singer v. U.S., 380 U.S. 24, 85 S.Ct. 783
10
(1965), ie., mandatory closure, closure should have been
allowed.
The Petitioner, upon waiver, should have the burden
to go forward with the evidence, i.e., to establish that
there is a necessity for closure. However, once this is
shown, then the burden of proof should lie with the Gov-
ernment.
If this is not the case, then as here, where the Peti-
tioner’s waiver was resisted and as the District Court
judge recognized, that the Government would “.. . never
consent to the closure because the issue before the Court
focuses on a possible defense to the prosecution charges
against the Defendant ... ” the mere resistance by the
Government defeats the Petitioner’s defense [R. Ruling
on Defendant’s Motion, Court of Appeals]. The Govern-
ment by merely resisting, without evidence and without
any burden, denies a Defendant his day in court and
“chills” his rights to due process. Thus, if the Petitioner
has not only the burden of going forward, but the burden
of establishing the three-prong test propounded by Jus-
tice Blackmun’s dissent as adopted by the Circuit Court
of Appeals, the Petitioner could never have closure.
Therefore, the Petitioner would submit that the burden
of proof should be on the Government.
Now, as to the standard to be applied. The Peti-
tioner would submit that the three-prong test adopted
by the Circuit Court of Appeals as well as the test pro-
mulgated by District Judge William C. Stuart is an im-
possible burden and that the test should be one of bal-
ancing the transcending values and interests affected by
the requested closure under the standards espoused by
11
the Petitioner in the District Court and the Circuit Court
of Appeals.
The standard by which closure should be considered
must be one which keeps in mind the Petitioner’s right to
a fair trial. Included within such right is the presentation
of the evidence before a jury with the right to effectively
cross-examine the Government’s witnesses; to present his
own witnesses, if any; and to testify in his own behalf,
if he desires. It is the Petitioner’s freedom, liberty and
innocence or guilt which is to be determined and with
which we must be concerned. It must be remembered
that the ‘*. . . court proceedings are held for the solemn
purpose of endeavoring to ascertain the truth which is
the sine qua non of a fair trial,” Estes v. Texas, 381 U.S.
532, 85 S. Ct. 1628 (1965). As stated by former Chief
Justice Warren in his concurring opinion, Estes, ibid., 95
S. Ct. at 1641:
‘*... The criminal trial under our constitution has a
clearly defined purpose, to provide a fair and reliable
determination of guilt, and no procedure or occurrence
which seriously threatens to divert it from that pur-
pose can be tolerated.”
Initially, the Petitioner would recognize that an open
trial is a right of constitutional magnitude. As stated by
the majority opinion in Estes v. T exas, op cit.:
“We start with the proposition that it is a ‘public
trial’ that the Sixth Amendment guarantees to the ac-
cused. The purpose of he requirement of a public
trial was to guarantee that the accused would be fairly
dealt with and not unjustly condemned.”
However, though this be a constitutional right, it is the
right of the accused and his alone, Geise v. U. §., 265 F. 2d
12
659 (9th Cir. 1959), Gannett Publishing Co. v. DePasquale,
op. cit. And though this right is not a limitless impera-
tive, Aaron v. Capps, 507 F. 2d 685 (5th Cir. 1975), it is,
in fact, one of the accused’s rights. Also, since none of
the accused’s rights in a criminal trial are to be formal-
istically applied, and particularly that of the Sixth
Amendment, it is necessary to look at all of the facts and
the totality of the case, for each right is dependent upon
those facts and circumstances of the individual case. Again
quoting former Chief Justice Warren in Estes, supra:
“ .. Neither the Sixth or Fourteenth Amendment is
to be read formalistically, for the clear intent of the
Amendments is that these specific rights be enjoyed
at a constitutional trial. In the words of Justice
Holmes, even though ‘every form [be] preserved, the
forms may amount to no more than empty shell’ when
considered in the context or setting in which they
were actually supplied.”
As such, what essentially results, when reduced to the
most common denominator, is that there must be a bal-
ancing of interests weighed by the Court in determining
constitutional rights, Levine v. U. S., 362 U. S. 610, 80
S. Ct. 1038 (1960); U. 8. ex rel. Latimore v. Sielaff, 561
F. 2d 691 (7th Cir. 1977).
The balance which must be struck is that of societal
interests in maintaining a free and open access to the
Courts; the societal interests in determining that Defend-
ants receive a fair trial; and societal interests in being
able to determine and observe that trial participants per-
form their duties. These societal interests must be bal-
anced against the Defendant’s right to a fair trial—that
13
is, an open and complete disclosure of the facts and evi-
dence, so that the Defendant may be judged by all of the
facts and not just those selected by either the Govern-
ment or the defense. It is this balance which we submit
must be arrived at and not the mere application of the
formalistic readings of the Sixth and Fifth Amendments.
There is ample precedent in the following cases which,
on a balancing factor, has allowed the closure of portions
of a trial, particularly in favor of the Government’s right
to present its case. These cases are: U. S. ex rel. Lloyd
v. Vincent, (2nd Cir. 1975), 520 F. 2d 1272 (closure
to protect the identity of two undercover narcotic officers) ;
U.S. ex rel. Smallwood v. Lavalle, (EDNY 1974), 377 F.
Supp. 1148 (exclusion of spectators on motion by the Gov-
ernment when witness testified because of fear of reprisal
against the witness) ; U. S. ex rel. Bruno v. Herold, 408 F.
2d 125 (2nd Cir. 1969) (closing of courtroom because of
the fear of the witness); U. S. ex rel. Laws v. Yeager,
448 I’. 2d 74 (3rd Cir. 1971) (removal of witness’ mother
felt to inhibit witness’ freer testimony); U. 9. v. Eisner,
533 F. 2d 987 (6th Cir. 1976) (witness embarrassed and
courtroom cleared); U. S. ex rel. Latimore v. Sielaff, su-
pra; and Harris v. Stephens, 361 F. 2d 888 (8th Cir. 1966)
(clearing of courtroom for complainant’s testimony in a
rape case). Additionally, where a witness, because of
fear of reprisal and harm, has refused to divulge his name
and address, though it denies the Defendant effective cross-
examination, this has been found to be permissible; U. 9.
v. Palermo, 410 F. 2d 468 (7th Cir. 1967); U.S. v. Bell,
464 F. 2d 667 (2nd Cir. 1972) (removal of the Defendant
from the courtroom while the witness is testifying, about
the anti-hijacking profiles). To the same effect, see
14
U. S. v. Lopez, 328 F. Supp. 1077 (EDNY 1971); U. 8S.
v. Slocum, 464 F. 2d 1180 (3rd Cir. 1972); U.S. v. Ruie-
Estrella, 481 F. 2d 723 (2nd Cir. 1973). The Petitioner
would, for further reference, also refer to the following
annotations: 48 A.L.R. 2d 1436, Exclusion of Public
During Criminal Trial; 49 A.L.R. 3d 1007, Right of Ac-
cused to have Press or other Media Representative Ex-
cluded from Criminal Trial.
As such, each of the foregoing cases from the vari-
ous circuits (Second, Third, Sixth, Seventh and Highth)
recognize that the right to an open, public trial is not
absolute. And, that even over the Defendant’s objections,
when a balancing concept is used, portions of the trial
may be closed. Because of this, when a Defendant’s right
to a fair trial may be in jeopardy, the Court should look
at all of the attendant facts and circumstances in deter-
mining whether access should be limited. Even the Na-
tional Association of Broadcasters recognized such in
Estes v. Texas, supra. Therein, the majority opinion
stated at p. 1631, 85 S. Ct.:
“While the State and Federal Courts have dif-
fered over what spectators may be excluded from a
criminal trial . . . , the amici curiae brief of the
National Association of Broadcasters and the Radio
Television News Directors Association says, as in-
deed it must, that ‘Neither of these two Amendments
(First and Sixth) speaks of an unlimited right of
access to the courtroom on the part of the broad-
casting media * * *’ AT 7. Moreover, they recog-
nize that the ‘primary concern of all must be the
proper administration of justice’; that ‘the life or
liberty of any individual in this land should not be
put in jeopardy because of actions of any news me-
dia’; and that ‘the due process requirements in both
15
the Fifth and Fourteenth Amendments and the pro-
visions of the Sixth Amendment require a procedure
that will assure a fair trial. * * *’ ”
Therefore, in looking at the attendant circumstances
and in using a balancing concept the Petitioner has con-
tended that in this case closure should have been allowed
since not only would it be inimical to his safety, U.S. v.
Lavalle, op. cit., but because of his inability to present
a defense.
The Petitioner alleged in his motion for discovery
that he was at the time of this offense acting as an in-
formant and had been an informant in the past [R. Mo-
tion for Discovery; Motion for Further Discovery]. By
reason of such an allegation or defense one of the essen-
tial elements which the Government will be required to
prove upon trial is that the Petitioner had an intent and
an intent of mens rea—the intent to voluntarily and know-
ingly participate in this offense and not as an informant.
In meeting this issue, it is the Petitioner’s contention
that he had no such intent either as to the possession
of the counterfeit plates or as to being a member of the
conspiracy. In essence, he was acting in this case as he
had in the past.
As found by the District Court, the Petitioner on six
(6) past occasions participated in a conspiracy as an
informant for the Federal Bureau of Investigation and
in so doing, possessed contraband four (4) times when
law enforcement personnel were aware of his possession
of contraband. Also, it was found that on two (2) occa-
sions when acting as an informant he had possession of
contraband for a time when law enforcement personnel
were not aware of his possession of it [R. Ruling and
16
Order, p. 4, filed September 7, 1979, Appendix C]. It
is these findings and these specific instances which the
Defendant would explain and introduce to the jury to
show that in the instant offense the Petitioner was acting
only as he had in the past. However, to establish this,
it will be and is necessary to show how and to whom
he acted in the past. Facts, interrogation, dates and
places will have to be divulged. This cannot be done
in the glaring light of publicity.
It is one thing to be publicly known as an informer,
but it is completely another thing to have it publicly
known against whom the Petitioner informed. The Pe-
titioner has a right to testify as to his past to establish
his defense or rebut the intent of the charge. However,
if he cannot do so, because of fear of disclosure; if he
cannot do so because of fear of consequences of disclos-
ure; if he cannot cross-examine witnesses as to past in-
volvement, then he has been afforded no trial, other than
to sit and have the Government freely present their evi-
dence without the opportunity to rebut, explain or deny.
This would be as an effective shackling of the Petitioner
as if he would be physically bound and gagged during
trial.
Yet, if we are to follow the ruling of the District
Court and the affirmance of the Circuit Court of Appeals,
then the Petitioner has one hand tied behind his back.
Full disclosure in order to properly defend will place him
in jeopardy. Partial disclosure may not be sufficient.
Thus, in effect, what the District Court has done was to
recognize the Petitioner’s defense, but shackle him in his
presentation.
17
Though it is clear from a review of the authorities
that the “public trial” provision of the Sixth Amendment
also allows the public a right, that right must be balanced
with the Defendant’s right to a fair trial, which we sub-
mit is of paramount importance.
Therefore, if the Court can close a proceeding for
fear of reprisal against a witness; because of disruption
by reason of lurid details of an act; for protection of
trade secrets; to prevent youthful witnesses from being
present as well as to protect pre-trial publicity, then if
the Defendant’s health and safety are in or could be
in danger, there is ample authority for closure.
In the in camera hearing there was definite evidence
of fear and violence on behalf of certain persons against
whom the Petitioner had informed as well as their friends
and associates. Because of this fear and the probability
of danger and by reason of the inability to present an
effective defense, these two transcending values should
have, in the balance, outweighed the norm of open trial.
The Petitioner showed a clear and present danger; and,
further proved by clear and convincing evidence the ne-
cessity for such closure—the inability to present a de-
fense. This was buttressed by the very fact that the
Government had on two (2) past occasions dismissed
cases rather than divulge the Petitioner’s identity. Obvi-
ously the danger existed. Yet the standard adopted did
not and will not allow a closure under any circumstances.
Therefore, by reason of the adoption by the Circuit
Court of Appeals of such a standard which places upon
the party requesting closure an impossible burden, when
coupled with the ample precedent and diversity of opin-
ion as to when and under what circumstances closure may
18
occur, this case presents a serious problem of fundamental
fairness in a criminal case where the Petitioner’s due
process will surely be violated if he is forced to elect as
to the open trial or no defense.
Such an election would not be necessary if the Court
would hold that the Fifth Amendment right of due
process is effected by the norm of public trial and place
a standard of balancing factors against the Sixth Amend-
ment with the Government having the burden of proof
upon this issue.
Therefore, the Petitioner respectfully requests, know-
ing this Court’s concern for the Fifth and Sixth Amend-
ment rights to due process and public trial, to issue a
Writ of Certiorari and determine the substantial ques-
tions presented by the Petitioner.
CONCLUSION
For the reasons expressed herein, the Petitioner re-
spectfully requests that a Writ of Certiorari should issue
to review the judgment and opinion of the Circuit Court
of Appeals for the Eighth Circuit.
Respectfully submitted,
Joun P. Rogeurick
RoewrRick, Lavorato, SCHUSTER,
Suuturs & Hassen
535 Insurance Exchange Building
Des Moines, Iowa 50309
Attorneys for Petitioner
App. 1
Appendix A
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
ray
Vv
No. 79-1791
ral
— ae
UNITED STATES OF AMERICA,
Appellee,
vs.
MARK RICHARD POWERS,
Appellant.
—_—
———
Appeal from the United States District Court
for the Southern District of Iowa
Submitted: December 7, 1979
Filed: April 30, 1980
Before GIBSON, Chief Judge,* LAY and McMILLIAN,
Circuit Judges.
GIBSON, Senior Judge*
Mark Powers appeals the pretrial order of the Dis-
trict Court! denying Powers’s motion to exclude the pub-
lic during his criminal trial. We affirm.
On January 25, 1979, a federal grand jury returned a
two-count indictment against Powers charging violations
*The Honorable Floyd R. Gibson was chief judge of the
Eighth Circuit at the time this case was submitted, but took
og status on December 31, 1979, before the opinion was
iled.
1The Honorable William C. Stuart, Chief Judge, United
States District Court, Southern District of lowa.
App. 2
of 18 U.S. C. §§ 371, 474 (1976) for conspiracy to counter-
feit 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 concern-
ing his past involvement as an undercover agent or in-
formant 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 Au-
gust 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’s 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).?
*Section 1291 grants the courts of appeals jurisdiction
to review “all final decisions of the district courts * * *.”
Adherence to the rule of finality should be “particularly
stringent in criminal prosecutions because ‘the delays and
disruptions attendant a intermediate appeal,’ which the
rule is designed to avoid, ‘are especially inimical to the ef-
fective and fair administration of the criminal law.’”” Abney
v. United States, 431 U. S. 651, 657 (1977). In Cohen v.
Beneficial Industrial Loan Corp., 337 U. S. 541, 546 (1949),
the Supreme Court limited appellate review of trial court
orders to those “which finally determine claims of right sep-
arable from, and collateral to, rights asserted in the action,
too important to be denied review and too independent of
the cause itself to require that hrm consideration be de-
ferred until the whole case is adjudicated.”
(Continued on next page)
App. 3
(Continued from previous page)
We have grave doubts concerning the An prea of
interlocutory orders regarding closure of criminal trials to the
a, See Gannett Co. v. DePasquale, — U. S. —, —, 61 L.
d. 2d 608, 633 (1979) (Powell, J., concurring and stating “it
would be entirely impractical to require criminal proceedings
to cease while appellate courts were afforded an opportunity
to review a trial court’s decision to close proceedings.’’). When
the accused in a criminal case seeks immediate appellate re-
view of an interlocutory order regarding trial closure, the or-
der of the trial court will ordinarily not be separable from the
issues to be resolved in the criminal trial itself. The order
may therefore affect the decision to be made on the merits in
the trial court. Abney v. United States, supra, 431 U. S. at
660; Cohen, supra, 337 U. S. at 546; see United States v. Bar-
ket, 530 F. 2d 181, 185 (8th Cir. 1975), cert. denied, 429 U. S.
917 (1976); cf. United States v. Fuimara, 605 F. 2d 116, 117-19
(3d Cir. 1979) (public closure at post-trial sentencing hearing
not appealable under Cohen since defendant has no consti-
tutional right to compel a secret trial). But cf. United States
v. Schiavo, 504 F. 2d 1, 4-5 (3d Cir.), cert. denied, 419 U. S.
1096 (1974) (order enjoining news media, a non-party, from
publishing information during trial appealable within collateral
order doctrine); United States v. Cianfrani, 573 F. 2d 835, 845
(Sf Cir. 1978) (order closing pretrial ong appealable by
news media, intervenors, within collateral order doctrine).
However, because of the fallout from the Gannett case
and the proliferation of cases coming on line dealing with the
issue of closure of open and public proceedings and since un-
der the particular facts of this case we find that the trial court's
non-closure order would not affect the accused’s right to a fair
trial, we have assumed jurisdiction in order to discuss the issue
of closure in criminal trials. See Gillespie v. U. S. Steel Corp.,
379 U. S. 148, 153 (1964).
The dissent suggests that “interlocutory review of a clos-
ure decision should be available only in extraordinary cases
by writ of mandamus.” Post at 19. Mandamus is an extraor-
dinary writ of limited dimensions and we feel its scope should
not be broadened to encompass this factual context. ‘The
peremptory writ of mandamus has traditionally been used in
the federal courts only ‘to confine an inferior court to a lawful
exercise of its prescribed jurisdiction or to compel it to exer-
cise its authority when it is its duty to do so’; and, “only ex-
(Continued on next page)
>»
App. 4
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 counterfeit-
ing 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 ac-
tivities 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
(Continued from previous page)
ceptional circumstances amounting to a judicial ‘usurpation of
— will justify the invoication of this extraordinary remedy.
e Beers Consol. Mines, Ltd. v. United States, 325 U. S. 212,
217 (1945).” Will v. United States, 389 U. S. 90, 95 (1967).
Here, osviously the District Court did not exceed its jurisdic-
tion, nor in any way usurp power. Kerr v. United States Dis-
trict Court, 426 U. S. 394, 402-03 (1976). Furthermore, man-
damus is particularly inappropriate when a criminal prosecu-
tion is involved, since it results in piecemeal appeals and de-
layed justice. The Supreme “Court has never approved the
use of the writ to review an interlocutory procedural order in
a criminal case which did not have the effect of a dismissal.”
Will, supra at 98. The writ of mandamus is an inappropriate
vehicle to review trial court decisions regarding closure of
criminal trials.
App. 5
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 fol-
lowing:
(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 prose-
cution, * * * or a compelling reason for not re-
quiring 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 de-
fendant 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 inform-
ant status.
App. 6
)
Powers does not now contend that he has an absolute
sixth amendment right to compel closure, though his mo-
tion 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, — U.S.
—, —, 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 (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 proc-
ess right to a fair trial. The Court’s plurality. decision
in Gannett apparently does not preclude a right to com-
pel closure whenever a defendant would otherwise be
denied a fair trial, if Ganneti’s pre-trial ruling can be
applied to the plenary criminal trial. Gannett, supra,
— U.S. at —, 61 L. Ed. 2d at 623 n. 11; id. at —, at 659
& n. 16 (Blackmun, J., dissenting). See also id. at —,
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.’
3In this case we express no opinion on the issue of wheth-
er members of the press or public have any constitutional right
(Continued on next page)
App. 7
Il.
The Court’s majority opinion in Gannett did not pre-
cisely address the question of the extent to which a de-
fendant 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 (1965),*
for the proposition that ‘‘although a defendant can under
some circumstances, waive his constitutional right to a
(Continued from previous page)
to access to criminal trials on the basis of the first and four-
teenth amendments, see Gannett, supra, — U. S. at —, 61 L.
Ed. 2d at 629, or on the closure standards to be applied when
both the Government and the defendant agree on closure.
Compare Gannett, supra, — U. S. at —, 61 L. Ed. 2d at 633-34
& n. 2 (Powell, J., concurring), with id at —, at 636-38 & n.2
(Rehnquist, J., concurring). Nor do we attempt to interpret the
extent to which the Gannett dies it opinion applies to situa-
tions beyond the closure of pretrial hearings. See id. — U. S.
at —, 61 L. Ed. 2d at 630-32 (Burger, C. J., concurring); id at
—, at 632 n.1 (Powell, J., concurring). The narrow issue in
Gannett “is whether the Constitution requires that a pretrial
proceeding such as this one be opened to the public, even
though the participants in the litigation agree that it should be
closed to protect the defendant’s right to a fair trial.” — U.
S. at —, 61 L. Ed. 2d at 625 (footnote omitted). See generally,
The Supreme Court, 1978 Term, 93 HARV. L. REV. 62, 62-66
(1979).
‘The Supreme Court, in Singer v. United States, 380 U. S.
24 (1965), held that a defendant cannot waive a jury trial with-
out the consent of the prosecutor and the judge because of the
— public interest in jury trials as the preferred mode of
act-finding in criminal cases. See Gannett, supra, — U. S. at
—, 61 L. Ed. 2d at 624. The Court, however, left open the
question of “whether there might be some circumstances
where a defendant's reasons for wanting to be tried by a judge
alone are so compelling that the Government’s insistence on
trial by jury would result in the denial to a defendant of an
impartial trial.” Singer, supra, 380 U. S. at 37 (emphasis add-
ed). In order to waive a jury trial, the defendant must there-
fore demonstrate, at a minimum, “compelling” reasons for
being tried by a judge.
App. 8
public trial, he has no absolute right to compel a private
trial.’’ Gannett, supra, — U.S. at —, 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 consid-
ering 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 evi-
dence that will not be presented to the jury.
*** [Where 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 admin-
istration of justice.
— U.S. at —, 61 L. Ed. 2d at 634 (emphasis added).5
In contrast, as pointed out by Justice Powell, — U. S. at
—, 61 L. Ed. 2d at 634, the dissenting opinion of Justice
Blackmun, joined by Justices Brennan, White, and Mar-
shall, would impose a severe burden upon defendants seek-
ing 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
SWhile Justice Powell is referring here to the specific sit-
uation of publicity resulting in prejudicial effects upon a jury,
his standard of “is likely to be jeopardized by publicity” ap-
parently also applies to those situations necessary “to preserve
the confidentiality of sensitive information and the identity of
informants.” — U. S. at —, 61 L. Ed. 2d at 633.
App. 9
fair trial guarantee.” — U. S. at —, 61 L. Ed. 2d at 660
(emphasis added).
Finally, Justice Rehnquist, in his concurring opinion,
also objects to Justice Powell’s standards when the par-
ticipants in a criminal litigation agree for any reason that
the trial shall be closed, — U. 8. at —, 61 L. Ed. 2d at 637-
38 & n. 2, a situation not presented here.‘
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 sup-
port a finding that there is a substantial probability
that irreparable damage to his fair trial right will
result from conducting the proceedings 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 effec-
tive in protecting against the perceived harm. |
— U.S. at —, 61 L. Ed. 2d at 660-61.
‘See note 3, supra. Justice Powell’s standard, however,
apparently extends to the case involved herein, at least after
the trial judge has granted closure and the prosecutor opposes
closure. See — U. S. at —, 61 L. Ed. 2d at 635.
App. 10
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 com-
pel closure, while Justice Blackmun would require only a
showing of “substantial probability.’”’ In addition, the
District Court would require “consent to 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 noncon-
sent of the prosecutor. — U. S. at —, 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 con-
sent of the prosecutor. Nothing in the majority opinion
in Gannett suggests otherwise.’ If anything, Justice Stew-
art’s majority opinion may imply a greater burden on the
defendant to compel closure when there is no consent on
the part of the prosecutor. See — U.S. at —, 61 L. Ed.
2d at 623 & n. 11.
The practice in Western civilization, and the common-
law rule, has been to require public trials. Gannett, —
U.S. at —, —, —, 61 L. Ed. 2d at 624, 630, 643. There
is a strong societal interest in public trials. ‘‘Openness
in court proceedings may improve the quality of testimony,
"The Court did suggest that a trial court “may surely take
protective measures even when they are not strictly and in-
escapably asigueasy in order to minimize the effects of pre-
trial publicity. — U. S. at —, 61 L. Ed. 2d at 620. Protective
measures are proper, and are provided for in the second hy
of this test, when the defendant seeking closure is unable to
meet the “strictly and inescapably necessary” standard in order
to compel complete closure.
App. 11
induce unknown witnesses to come forward with relevant
testimony, cause all trial participants to perform their
duties more conscientiously, and generally give the public
an opportunity to observe the judicial system. Estes v.
Texas [381 U. S. 532,] at 583 (Warren, C. J., concurring)
[1965].” Gannett, — U.S. at —, 61 L. Ed. 2d at 623. The
benefits of an open, public trial are substantial. Only in
the rare case will closure to the press be necessary in or-
der to protect a defendant’s right to a fair trial. Jd. at
636 n. 1 (Rehnquist, J., concurring) ; Nebraska Press Asso-
ciation v. Stuart, 427 U. 8. 539, 554 (1976); e.g., Shep-
pard v. Maxwell, 384 U. S. 333 (1966) ; Estes v. Texas, 381
U. S. 532 (1965). Even fewer are those cases where the
courts will need to go further and exclude the public for
limited periods of time. United States v. Cianfrani, 573
F. 2d 835, 854 (3d Cir. 1978); e. g., United States v. Bell,
464 I. 2d 667, 670-72 (2d Cir.), cert. denied, 409 U. S. 991
(1972). The norm and presumption of the sixth amend-
ment is that a trial should be a public proceeding. Gan-
nett, — U.S. at —, 61 L. Ed. 2d at 625. Only in the most
exceptional circumstances should closure even be consid-
ered, and in fewer instances compelled. A criminal de-
fendant is guaranteed a public trial, but there is no con-
stitutional guarantee of a closed trial at the defendant’s
request. It is certainly worth consideration that in the
entire history of our country, no one prior to the Gannett
decision has advanced the concept of secret trials as ap-
plied to a plenary criminal proceeding. As stated by Jus-
tice Blackmun in his dissent in Gannett, — U.S. at —,
61 L. Ed. 2d at 643:
The importance we as a Nation attach to the pub-
lic trial is reflected both in its deep roots in the Eng-
App. 12
lish common law and in its seemingly universal recog-
nition in this country since the earliest times. When
In re Oliver was decided in 1948, the Court was ‘‘un-
able to find a single instance of a criminal trial con-
ducted in camera in any federal, state, or municipal
court during the history of this country.” 333 U. S.,
at 266 (footnote omitted), with the exception of cases
in courts martial and the semiprivate conduct of juve-
; nile court proceedings. Jd., at 266 n. 12. Nor could it
> uncover any record “of even one such secret criminal
trial in England since abolition of the Court of Star
Chamber in 1641.”’ Ibid.
In order for the defendant to compel closure in a
trial wherein the prosecutor does not consent, we hold
that the defendant must carry “his burden to demonstrate
a strict and inescapable necessity for closure.” Id. at
661, (Blackmun, J., dissenting); see United States v.
Cianfrani, supra, 573 F. 2d at 854. We do not decide
the correct sixth amendment standard, if any,® or the
first amendment standard’ to be applied if the prose-
cutor consents to closure.
IV.
Powers argued in the District Court for the adoption
of a “clear and convincing” evidence standard rather than
one based on evidence sufficient to support a finding
that there is a “substantial probability” that irreparable
damage to his fair trial right will result from a public
trial. Since Powers set forth the former standard, he
does not appeal its application. Even though the Dis-
trict Court’s standard may have been greater than re-
8See note 3, supra.
9See note 6 and text, supra.
App. 13
quired, Powers was not prejudiced. Powers did not
meet the “substantial probability” standard, either. The
District Court found that the evidence produced by Pow-
ers “at most demonstrates a fear of harm based on the
allegedly violent nature of some of the persons involved.”
Furthermore, Powers “failed to prove that closure would
effectively prevent the alleged harm.” In addition, the
court found that “there is an alternative that * * * will
enable the defendant to present his defense without clos-
ing the trial to the public.” The court suggested that the
Government and Powers agree to a stipulation concern-
ing his informant activities.'° Powers failed all three
prongs of the closure test. The District Court’s denial
of Power’s motion to compel closure did not deny him
his due process right to a fair trial.
, Finally, Powers argues that the District Court erred
in placing the burden of proof to compel closure upon
him, instead of the Government. Powers contends that
he should be made only to bear the burden of going for-
ward with demonstrating a danger of harm to himself
or his family. After he has met this burden of going
10United States v. Powers, 477 F. Supp. at 499. Extrinsic
evidence of specific instances of the conduct of a witness gen-
erally may not be introduced for the purpose of attacking or
supporting the witness’s credibility, see FED. R. EVID. 608(b);
United States v. Poulack, 556 F. 2d 83, 89 (1st Cir.), cert. de-
nied, 434 U. S. 986 (1977); United States v. Scholle, 553 F. 2d
1109, 1122-23 (8th Cir.), cert. denied, 434 U. S. 940 (1977),
though testimony by the accused of specific instances of con-
duct is admissible when his character or a trait of his character
is an essential element of his defense. See FED. R. EVID.
405(b); United States v. Giese, 597 F. 2d 1170, 1190 (9th Cir.),
cert. denied, — U. S. —, 62 L. Ed. 2d 405 (1979). Here Pow-
ers has already given his testimony in camera on the inform-
ant issue.
App. 14
forward, the Government should be required to demon-
strate that closure is not necessary. We disagree.
The common-law tradition and our history from its
inception certainly compel the assumption that the sixth
amendment presumes open trials as the norm. Gannett,
— U.S. at —, 61 L. Ed. 2d at 625. The defendant there-
fore has the burden of proof of overcoming this presump-
tion and strong tradition for open proceedings. The de-
fendant argues that since the Government must prove
every essential element of the crime in a criminal trial, it
must also bear the burden on closure. The closure of crim-
inal proceedings vel non, however, is not an essential ele-
ment of the crime charged. The burden, and indeed a
heavy burden, rests on a defendant seeking a private or
secret trial. The defendant must demonstrate the neces-
sity of closure based upon all three prongs of the test.
Not only must the defendant demonstrate a substantial
probability of irreparable damage to his fair trial right,
he must also show a substantial probability that alterna-
tives to closure do not exist and that closure will be effec-
tive in protecting against the perceived harm. A mere
demonstration of potential harm to the defendant is
insufficient to shift the burden for opposing closure
to the Government. Only after the defendant has met all
three prongs of the closure test should the prosecutor be
required to demonstrate that less than complete closure
is necessary. See id. at —, at 662 (Blackmun, J., dissent-
ing); United States v. Cianfrani, supra, 573 F. 2d at 854.
Here Powers has not even met his burden of demonstrat-
ing a substantial probability that irreparable damage to
his fair trial right will result from conducting the proceed-
ing in public. Closure would be improper under these
circumstances.
App. 15
Affirmed.
MoMILLIAN, Circuit Judge, dissenting.
I dissent. In my view, because the refusal of the
court: below to close the trial is not a final decision, we
lack appellate jurisdiction over the case under 28 U.S.C.
§ 1291. However, the extraordinary nature of appellant’s
claim, which involves both an allegedly life and death situ-
ation for him and a dramatically unsettled area of law,
makes this one of those rare instances where we should
treat tne appeal as a petition for writ of mandamus. For
the following reasons, I would grant the petition for writ
of mandamus and order the trial court to close to the pub-
lic the testimony about appellant’s past activities as a po-
lice informant.
I. Appellate Jurisdiction
Our jurisdiction to review the district court’s decision
depends on 28 U.S.C. § 1291, which provides for review
of “final decisions.’’ Appellate jurisdiction is not thereby
limited only to review of final judgments. “While a final
judgment always is a final decision, there are instances in
which a final decision is not a final judgment.” Stack v.
Boyle, 342 U. S. 1, 12 (1951) (opinion of Jackson, J.).
Where a “collateral order” disposes of some right not
bound up with the final judgment in the case, the order
may be a reviewable ‘“‘final decision” under $1291. See
generally Cohen v. Beneficial Industrial Loan Corp., 337
U.S. 541 (1949). Examples of such final decisions in crim-
inal cases include: denial of bail, Stack v. Boyle, supra,
342 U.S. 1; denial of a pretrial motion to dismiss on double
. Jeopardy grounds, Abney v. United States, 431 U. S. 651
App. 16
(1977); and denial of a motion to dismiss an indictment
because the allegedly criminal conduct was immunized by
the Speech and Debate Clause, Helstoski v. Meanor, 442
U. S. 500 (1979). The Supreme Court has, however, em-
phasized that appeals prior to final judgment are strongly
disfavored in criminal cases where swift and economical
dispensation of justice is especially critical. ‘The rule of
finality has particular force in criminal prosecution be-
cause ‘encouragement of delay is fatal to the vindication
of the criminal law.’ ”’ United States v. MacDonald, 435
U. S. 850, 853-54 (1978), citing Cobbledick v. United States,
309 U.S. 323, 325 (1940). See also Abney v. United States,
supra, 431 U.S. at 656; DiBella v. United States, 369 U. 8.
121 (1962); Parr v. United States, 351 U. S. 513 (1956) ;
Cogen v. United States, 278 U. 8. 221 (1929).
The requirements for an appealable collateral order
have been set forth by this court:
(1) [T]he order must be a final determination
of a claim of right “separable from, and collateral to,”
rights asserted in the action;
(2) it must be ‘‘too important to be denied re-
view,” in the sense that it ‘presents a serious and
unsettled question”; and
(3) its review cannot, in the nature of the ques-
tion that it presents, await final judgment because
“when that time comes, it will be too late effectively
to review the * * * order and rights conferred * * *
will have been lost, probably irreparably.”’
United States v. Barket, 530 F. 2d 181, 185 (8th Cir. 1975),
cert, denied, 429 U. S. 917 (1976), citing 9 J. MOORE,
MOORE’S FEDERAL PRACTICE § 110.10 (2d ed. 1970).
First, the right claimed by appellant is inextricably
bound up with the trial of his case. The essential ques-
App. 17
tion—whether appellant will receive a fair trial—involves
disposition on the merits. Here, appellant claims essen-
tially that, because of the dangers to himself and his fam-
ily, he cannot effectively present in open court a defense
based on his claim that he was an informant and therefore
did not act with the necessary criminal intent. In gen-
eral, such due process issues, like speedy trial issues, will
not be finally resolved until after the trial. “Before trial,
of course, an estimate of the degree to which delay has
impaired an adequate defense tends to be speculative.’’
United States v. MacDonald, supra, 435 U. 8. at 858.
Similarly, appellant’s claim in the present case is that
he will be denied a fair trial. The language and holding of
MacDonald therefore forecloses appellate jurisdiction. Ap-
pealable collateral orders in criminal cases have involved
only the denial of rights that do not depend on how the
trial itself is conducted. See Stack v. Boyle, supra, 342
U.S. 1 (denial of bail held appealable). By contrast, this
appeal hinges on the conduct of the trial. It is distinguish-
able from appeals of failure to dismiss an indictment that
runs afoul of the speech and debate clause or double jeop-
ardy clause, wherein a defendant “is contesting the very
authority of the Government to hale him into court to face
trial on the charges against him.’’ Helstoski v. Meanor,
supra, 442 U.S. at 507 (emphasis in original), citing Ab-
ney v. United States, supra, 431 U. S. at 659. In the pres-
ent case, appellant claims the refusal to close his trial
‘thas frustrated his ability to establish his innocence of
the crime charged. Normally, it is only after trial that
that claim may fairly be assessed.” United States v. Mac-
Donald, supra, 435 U. S. at 860. Thus, the third require-
ment of a collateral order is not met.
App. 18
The majority opinion recognizes that in general this
court lacks appellate jurisdiction until entry of the final
judgment (i. e., a conviction and sentence) over a decision
below not to close proceedings. See slip op. at 2-3 n. 2.
Nonetheless, the majority assumes jurisdiction “because
of the fallout from the Gannett case and the proliferation
of cases coming on line dealing with the issue of closure
of open and public proceedings. . . .”’ Id. In short, the
majority takes jurisdiction of this case because of its ‘‘ex-
traordinary nature.” However, the Supreme Court has
admonished that the facts of a particular case should not
be a basis for appellate jurisdiction:
The Court of Appeals’ .. . rationale—that it
was the ‘extraordinary nature” of [appellant’s] claim
that merited interlocutory appeal, even though not
all [such] claims would be so meritorious—is also un-
persuasive. “Appeal cannot depend on the facts of a
particular case.” Carroll v. United States, 354 U. 8.
394, 405 (1957). The factual circumstances that un-
derlie a [particular] claim, however “extraordinary,”
cannot establish its independent appealability prior
to trial.
United States v. MacDonald, supra, 435 U. S. at 857-58
n. 6. In my opinion, appellant’s claim is essentially an
interlocutory appeal over which we lack appellate jurisdic-
tion.
II. Mandamus Jurisdiction
However, I think the extraordinary nature of this
case does mandate treatment of the appeal as a petition
for writ of mandamus. E.g., Wilkins v. Erickson, 484 F.
2d 969 (8th Cir. 1973). See also Iowa Beef Processors,
Inc. v. Bagley, 601 F. 2d 949, 953 n. 3 (8th Cir. 1979);
App. 19
Hartland v. Alaska Airlines, 544 F. 2d 992, 1001 (9th Cir.
1976); td. at 1003-04 & n. 2 (Wallace, J., concurring )
(cases cited therein).
This case reaches us in an extraordinary posture
factually as well as legally. The facts indicate the grave
nature of appellant’s predicament. The prosecution does
not dispute appellant’s position that he was a secret po-
lice informer who provided key evidence in several ma-
jor criminal trials which resulted in convictions; the law
enforcement authorities have in the past kept his inform-
ant status secret on some occasions even at the expense
of dropping several prosecutions. Some of appellant’s
former associates have committed violent acts against
people. Legally, the issue of a defendant’s right to close
his trial in these circumstances is one of first impression
in this court. Moreover, the district court’s decision
failed to reconcile the refusal to close at least part of
appellant’s trial with an abundance of precedent allowing
closure to protect prosecution witnesses, including rape
victims and police informants, by closing their testimony
‘» the public. (These closure cases are more fully elabo-
rated below in the discussion of the merits.)
Mandamus is the appropriate vehicle for this court
to review a decision where “there are present extraordi-
nary and exceptional circumstances which require the
grant of the extraordinary remedy to prevent a grave
miscarriage of justice which might otherwise result... .”
Hartley Pen Co. v. United States District Court, 287 F.
2d 324, 327 (9th Cir. 1961). See also Iowa Beef Proces-
sors, Inc. v. Bagley, supra, 601 F. 2d at 953-54; Gialde v.
Time, Inc., 480 F. 2d 1295, 1302 (8th Cir. 1973) (Heaney,
App. 20
J., concurring and dissenting). “It is, of course, well set-
tled, that the writ [of mandamus] is not to be used as
a substitute for appeal. . . even though hardship may
result from delay and perhaps unnecessary trial. . .. The
writ is appropriately issued, however, when there is...
a clear abuse of discretion... .’’ Schlagenhauf v. Holder,
379 U.S. 104, 110 (1964) (emphasis added) (citations
omitted). See also Will v. United States, 389 U.S. 90,
107 (1967) (Black, J., concurring); La Buy v. Howes
Leather Co., 352 U.S. 249 (1957) ; 16 WRIGHT, MILLER,
COOPER & GRESSMAN, FEDERAL PRACTICE &
PROCEDURE, JURISDICTION §§ 3932-3936 (1977).
[A] number of courts, including this one, have found
mandamus to be an appropriate vehicle to review
orders compelling ... testimony claimed to be priv-
ileged or covered by other more general interests in
secrecy. See, e.g., Diversified Industries, Inc. v. Mer-
edith, 572 F. 2d 596 (8th Cir. 1978) (en bane) (at-
torney-client privilege); Usery v. Ritter, 547 F. 2d
528 (10th Cir. 1977) (disclosure of identity of in-
former in FLSA case); Breed v. United States Dist.
Ct., 542 F. 2d 1114 (9th Cir. 1976) (disclosure of per-
sonnel and inmate files of state youth authority) ;
Pfizer, Inc. v. Lord, 456 F. 2d 545 (8th Cir. 1972)
(attorney-client privilege); United States v. United
States Dist. Co., 444 F. 2d 651 (6th Cir. 1971), aff'd,
407 U.S. 297, 92 8S. Ct. 2125, 32 L. Ed. 2d 752 (1972)
(disclosure to conspiracy defendant of his monitored
conversations); Harper & Row Publishers, Inc. v.
Decker, 423 F. 2d 487 (7th Cir. 1970), aff'd by an
equally divided court, 400 U.S. 348, 91 S.Ct. 479,
27 L.Ed. 2d 433 (1971) (attorney-client privilege) ;
Hartley Pen Co. v. United States Dist. Ct., 287 F. 2d
324 (9th Cir. 1961) (disclosure of secret formula
acquired under license forbidding disclosure). .. .
Iowa Beef Processors, Inc. v. Bagley, supra, 601 F. 2d
at 953-54.
App. 21
While the difference between the mandamus approach
I suggest and the appellate jurisdiction asserted in J udge
Gibson’s opinion may seem purely formal at first glance,
I believe there are important reasons for making the
distinction. First, the majority opinion broadly holds,
“Closure would be improper under these circumstances.”
Slip op. at 13. I do not think we should pretermit due
process questions which may be more apparent after trial
than now. (I think due process, however, requires at
this point that the proceedings be closed in part. See
part LI infra.)
Secondly, we should give a more clear indication as
to how we will respond to this kind of matter in the
future. I agree with Judge Gibson that ordinarily the
question of closure is a matter of the trial court’s dis-
cretion and that it would ordinarily be inappropriate to
halt the trial court’s proceedings to review the decision.
Slip op. at 2-3 n. 2, citing Gannett Co. v. DePasquale, —
U.S. —, 99 S. Ct. at 2915 (1979) (Powell, J., concurring).
But the majority opinion then proceeds to make a spe-
cial exception in this case and grant review. This treat-
ment may suggest that we would decline to review all
such orders in the future. I think that interlocutory
review of a closure decision should be available only in
extraordinary cases by writ of mandamus. I would apply
this rule in this case instead of granting appellate re-
view, since we all seem to agree appellate review should
generally be foreclosed at this stage in the proceedings.
IiI. The Merits
I have reviewed the record, including the transcript
of the in camera hearing held below, to ascertain the
App. 22
basis for appellant’s closure motion. Appellant testified
concerning the dangers he perceived from specific persons
if his previous informing activities would be revealed.
Although the prosecution thoroughly cross-examined ap-
pellant, bringing out factors that might reduce the dan-
ger, it did not offer any affirmative evidence to refute
appellant’s testimony or demonstrate that appellant’s ap-
prehension was feigned or unreasonable.
The decision of the court below left Powers with a
choice between omitting details of his informing activities
from his defense or disclosing publicly information that
might well tend to endanger himself and his family.
The district court held that
an order of closure would not be proper unless the
defendant established:
(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 prose-
cution, see Gannett v. DePasquale, supra, or a
compelling reason for not requiring the prose-
cution’s consent;
(3) by clear and convincing evidence that the closure
of the 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.
The Court concludes that the defendant failed
to prove by clear and convincing evidence that the
open court presentation of his defense would result
in a clear and present danger of actual harm to the
App. 23
life of the defendant or a member of his family.
The evidence at most demonstrates a fear of harm
based on the allegedly violent nature of some of the
persons involved. Admittedly, the defendant has
shown that the prosecution would never consent to
the closure because the issue before the Court focuses
on a possible defense to the prosecution’s charges
against the defendant. Powers, however, failed to
prove that closure would effectively prevent the al-
leged harm, and provided the Court with no insight
on how to prevent the jurors and witnesses from
discussing the case subsequent to the trial, or on how
to prevent the disclosure of information if the trial
court’s decision is appealed. In addition, it was
brought to the attention of the Court in the closed
portion of the hearing that the defendant may gen-
erally be known to have been an informant for the
Federal Bureau of Investigation and the Iowa De-
partment of Criminal Investigation.
Finally, there is an alternative that the Court
believes will enable the defendant to present his de-
fense without closing the trial to the public. Such
alternative procedure is [a generally-worded stipula-
tion that appellant had in the past been an inform-
ant]. Therefore, the defendant’s Motion to Exclude
the Public During Trial shall be denied because the
defendant has failed to establish the necessary cir-
cumstances set forth above.
United States v. Powers, 477 F. Supp. 497, 498-99 (S. D.
Towa 1979). In my view, both the standard and the re-
sult embody an unduly restrictive approach to the court’s
power to guarantee Powers a fair trial.
In my analysis, this case involves the most funda-
mental aspects of due process. “The right of an accused
in a criminal trial to due process is, in essence, the right
to a fair opportunity to defend against the State’s accu-
sations.” Chambers v. Mississippi, 410 U.S. 284, 294
App. 24
(1973). In the landmark case of United States v. Nixon,
418 U.S. 683 (1974), the court held that due process
rights of criminal defendants to obtain evidence needed
for their defense outweighs other constitutionally based
interests such as a presidential claim that certain com-
munications were privileged. “The need to develop all
relevant facts in the adversary system is both funda-
mental and comprehensive.” Jd. at 709. “The right to
the production of all evidence at a criminal trial .. . has
constitutional dimensions.” Jd. at 711. Although the
Nixon case directly involved the ability of criminal de-
fendants to obtain evidence for their defense, the ration-
ale applies equally strongly to the ability of defendants
to present evidence in their defense at trial. Thus, we
have said, “[t]he exclusion of critical evidence under state
evidentiary rules may deprive a defendant of a fair trial
and amount to a denial of due process,” Johnson v.
Brewer, 521 F. 2d 556, 562 n. 16 (8th Cir. 1975).
Powers claims that publications of his testimony
would endanger his life. Therefore, publicity would deter
him from putting on evidence of past informing activi-
ties much of which is obviously relevant to his defense
that he may have committed the acts charged as crimes
in the capacity of an informer and lacked criminal intent.
The trial court seems to have recognized that, indeed,
public proceedings would tend to inhibit appellant from
revealing his full activities as an informant, and sug-
gested that appellant rely on a general stipulation as
to his status as an informant without going into specifies.
Our tradition of public trials is supported by strong
social interests, as Judge Gibson points out. Slip op.
at 9-10, citing Estes v. Texas, 381 U.S. 532, 583 (1965)
App. 25
(Warren, C.J., coneurring). See also In re Oliver, 333
U.S. 257 (1948); Radin, The Right to a Public Trial, 6
TEMP. L.Q. 381 (1932); Note, 36 ORE. L. REV. 345
(1957); 6 J. WIGMORE, EVIDENCE §$§ 1834-36 (Chad-
bourn rev. ed. 1976). But in this case we measure that
tradition and the reasons for the tradition against the
constitutional guarantee of due process to the defendant.
To do so requires, I believe, a look at the considerations
which continue to breathe life into the requirement of
public trials. |
Commentators have pointed out three different kinds
of interests protected by keeping trials open. Primary
among these general factors supporting open trials is the
aid given to the search for truth by the public presence.
‘‘This open examination of witnesses viva voce, in the
presence of all mankind, is much more conducive to the
clearing up of truth, than the private and secret examina-
tion .. . where a witness may frequently depose that in
private, which he will be ashamed to testify in a public
and solemn tribunal.” 3 BLACKSTONE, COMMENTAR-
IES ON THE LAWS OF ENGLAND 373 (1768) (foot-
note omitted).
The publicity of a judicial proceeding is a requirement
of much broader bearing than its mere effect upon the
quality of testimony; it would be essentially desirable
and demandable on additional grounds. Nevertheless,
it plays an important part as a security for testi-
monial trustworthiness and would exist as an inde-
pendent requirement for that reason only, even were
other grounds wanting... .
... Its operation in tending to improve the qual-
ity of testimony is two-fold. Subjectively, it produces
in the witness’ mind a disinclination to falsify; first,
by stimulating the instinctive responsibility to public
App. 26
opinion, symbolized in the audience, and ready to scorn
a demonstrated liar; and next, by inducing the fear
of exposure of subsequent falsities through disclosure
by informed persons who may chance to be present
or to hear of the testimony from others present. Ob-
jectively, it secures the presence of those who by pos-
sibility may be able to furnish testimony in chief or
to contradict falsifiers and yet may not have been
known beforehand to the parties to possess any in-
formation.
6 J. WIGMORE, EVIDENCE § 1834 (Chadbourn rev. ed.
1976) (emphasis in original). See also In re Oliver, su-
pra, 333 U.S. at 270 n. 25.
In this case, the fact that a public trial would inhibit
truthful testimony undercuts the rationale that public
trials encourage truthful testimony. In this regard this
case stands on an entirely different footing than the pre-
trial publicity cases, such as Gannett Co. v. DePasquale,
supra, 99 8. Ct. 2898, where nothing suggests that pub-
licity would inhibit truthful testimony. In pretrial pub-
licity cases it is necessary to weigh bias resulting from
the publicity against the encouragement of truthful testi-
mony by open proceedings. See also Nebraska Press
Ass’n v. Stuart, 427 U. 8. 539 (1976). By contrast, Pow-
ers’s claim makes it necessary to evaluate whether the
rationale that public proceedings encourage truthful tes-
timony applies in this case at all.
Likewise, Powers’s claim places in a different light
the potential for members of the public to come forward
either in aid of the defendant’s case or with information
reflecting upon the testimony. The government concedes
that Powers has been an informant against some offenders
who may well have substantial propensity for violence.
App. 27
The potential for such witnesses to appear therefore may
have a deterrent effect on truthful testimony. In a pre-
trial publicity case no comparable deterrence would nor-
mally occur, no matter how prejudicial the publicity.
Pretrial publicity is indeed the norm. There is noth-
ing so inherently dangerous about pretrial publicity that
would support an inference of prejudice absent a showing
of likelihood the publicity would have a prejudicial effect.
But the disclosure of informing activities is not the norm.
The danger of such disclosure is evident and may be in-
ferred by the court from the fact of previous informing
activities, especially involving serious crimes that may in-
volve violence or subject participants to long prison sen-
tences. The classic example is the case of undercover nar-
cotics agent or informant. See, e. g., United States ex rel.
Lloyd v. Vincent, 520 F. 2d 1272 (2d Cir.), cert. denied,
423 U.S. 937 (1975).
On the basis of Powers’s in camera testimony, it seems
inescapable to me that the man would be deterred from
testifying about activities as an informant. The trial
court made no finding that satisfies me the danger is not
really great enough in this case to . ave a deterrent effect.
The court noted evidence that Powers may be generally
known as an informant. To me a general reputation as
an informant is one thing; definite public knowledge that
Powers informed on a particular person and contributed
to a particular punishment is quite another thing. Gen-
eral reputation seems to me much less likely than a report
of times and places of actual informing activities to induce
violence in revenge. Moreover, Powers’s general reputa-
tion for informing may well make disclosure more, not
less, dangerous to him, for this reputation would surely
App. 28
prompt Powers’s former associates to keep an eye on re-
ports of his trial. Cf. Pechter v. Lyons, 441 F. Supp. 115
(S. D. N. Y. 1977) (refusal to close deportation hearing of
alleged war criminal).
I think that Powers has shown that requiring him to
testify in public to his informing activities would inhibit
rather than further the search for truth in this case. That
basis for the open trial tradition therefore does not apply
to the testimony concerning his informing activities. The
court made no finding that would support a contrary con-
clusion, but instead concluded only that Powers had not
adequately shown danger of actual harm. In doing so, the
court applied a “clear and present danger”’ test and placed
the burden on Powers to demonstrate the danger by clear
and convincing evidence. (The trial court apparently
adopted the “clear and present danger” test upon Pow-
ers’s urging; however, he did not ask for the burden of
persuasion to be placed upon him.) The “clear and pres-
ent danger’’ test was developed to determine when speech
becomes so inseparably integrated with action it falls
within the government’s power to regulate; thus, that test
shows what speech is protected, and only indirectly what
government action is prohibited. See, e. g., Gitlow v. New
York, 268 U. S. 652, 672 (1925) (Holmes, J., dissenting).
I think a much more apt analogy for the infringement
of appellant’s due process rights is the chilling effect test
which determines when government action deters the ex-
ercise of fundamental rights. FE. g., National Ass’n for
the Advancement of Colored People v. Alabama, 357 U. S.
449 (1958). Undisputed testimony that a defendant has
been an informant and that some of his associates at the
time were prone to violence is enough to demonstrate to
App. 29
me that the defendant would reasonably be deterred from
putting on evidence about informing activities.
I do not suggest that the rationale for public trials
disappears any time a party claims that public proceed-
ings will inhibit testimony. As the majority points out,
a defendant does not have a right to waive a public trial
regardless of circumstances. See slip op. at 6 & n. 4, citing
Singer v. United States, 380 U.S. 24, 35 (1965). Thus, a
defendant must make an evidentiary showing of something
which has a reasonable tendency to inhibit truthful testi-
mony. There must also be special circumstances to sug-
gest that closure would not increase the likelihood of un-
truthful testimony; in this case the prosecution concedes
that Powers previously did act as an informant. More-
over, if the effort to close any part of a trial is opposed,
I think the testimony in question must be so critical to
the case of the party seeking closure that the inhibitive
effect of non-closure would result in denial of some funda-
mental right, in this case Powers’s due process rights in
presenting evidence critical to his defense.
The trial court may have considered the proposed
general stipulation of informing status adequate to give
Powers’s due process in this case, but I cannot agree. The
particular details of Powers’s previous activities undoubt-
edly would color the jury’s impression of the activities
for which he is now prosecuted. A stipulation lacks the
pungency of live testimony. Therefore the general rule
is that a party may refuse to stipulate and offer proof on
a point admitted. ‘‘The reason for the rule is to permit
a party ‘to present to the jury a picture of the events re-
lied upon. To substitute for such a picture a naked ad-
App. 30
mission might have the effect to rob the evidence of much
of its fair and legitimate weight.’’’ United States v. Pel-
tier, 585 F’. 2d 314, 324 (8th Cir. 1978), cert. denied, 440
U. S. 945 (1979), citing Parr v. United States, 255 F. 2d
86, 88 (5th Cir.), cert. denied, 358 U. S. 824 (1958). See
also United States v. Brickey, 426 F. 2d 680, 686 (8th Cir.),
cert. denied, 400 U. S. 828 (1970); 9 J. WIGMORE, EVI-
DENCE § 2591 & n. 2 (3d ed. 1940). Where the proposed
stipulation involves evidence critical to the defense of
a criminal accused, this rule takes on significant due proc-
ess implications.
A second general consideration supporting public
trials is the effect on trial conduct. Public serutiny tends
to discourage arbitrariness and improprieties of court
proceedings and to impress upon the judge, jury and other
officers of the court the importance and seriousness of
their task. ‘‘The right of a public trial is not only to
protect the accused but to protect as much the public’s
right to know what goes on when men’s lives and liberty
are at stake, for a secret trial can result in favor to as
well as unjust prosecution of a defendant.” Lewis v. Pey-
ton, 352 F’. 2d 791, 792 (4th Cir. 1965). While the potential
disclosure of Powers’s informant activities would tend to
discourage truthful testimony by him about informing,
disclosure would not tend to undermine this second ration-
ale for open trials.
But this general consideration does not negate the
due process concerns that favor giving Powers every fair
opportunity to present testimony about informing activi-
ties in his defense, and it is evident that the two consid-
erations can be accommodated. The closure of only those
parts of the trial where Powers’s testimony is taken re-
App. 31
lieves him of whatever danger would tend to discourage
him from testifying. The remainder of the trial—voir
dire, witnesses not testifying on the informant issue, and
other proceedings that would not directly endanger Powers
because of his testimony—should remain fully open to the
public. Although Powers may be concerned that, for ex-
ample, jurors or others necessarily witnessing the proceed-
ings might after trial reveal the specifics of his informing
activities, the trial court could minimize the danger by
admonishing them to secrecy on this matter. Cf. United
States v. Sherman, 581 F. 2d 1358 (9th Cir. 1978). The
trial court’s converse concern that secrecy could not be
preserved in an appeal presents no real problem, as the
portions of the record relating to Powers’s informant ac-
tivities could be treated exactly the way his in camera
testimony has been treated on this appeal. Therefore,
while the need for public scrutiny of court proceedings
forecloses any attempt to close the entire trial in this case,
closure of only the testimony concerning Powers’s inform-
ing activities allows public scrutiny while accommodating
the due process considerations in allowing Powers a full
opportunity to put on his defense. See United States ex
rel. Latimore v. Sielaff, 561 F. 2d 691 (7th Cir. 1977), cert.
denied, 434 U. S. 1076 (1978); Doe v. Risher, 2 MEDIA L.
REP. (BNA) 1300 (D.C. Sup. Ct. 1976).
Finally, the public has an interest not only in fair
procedures but in knowing the substance of legal contro-
versies, Persons who think themselves affected by the
outcome or proceedings in a case have an interest in at-
tending or reading reports of the trial. Criminal pro-
ceedings may have a deterrent effect on those contemplat-
ing crime or on abuses by police or other official powers.
App. 32
The public needs to know how its laws work or democracy
might easily be reduced to a formality. All of these in-
terests support keeping trials open generally. See Cox
Broadcasting Corp. v. Cohn, 420 U. S. 469, 491-93 (1975).
In this case there even may be a particularly strong
public interest in observing the proceedings. (Indeed, at
least one newspaper opposed any closure below, although
it does not pursue its interest in this court.) The fact
that the defendant has been an informer for law enforce-
ment agencies suggests to me that the public might have
especial concern in the degree of police cooperation with
criminal elements. On this record there does not appear
to be any impropriety, but closed trials of informants
might generally suggest to the public or press a potential
for a whitewash of some unsavory dealings or conversely
for a vendetta by the authorities to dispose of some shady
involvement on the fringe or outside of the law. The
public certainly has an interest in knowing more about
the whole business.
I do not minimize the public’s right to pursue such
matters which I think have constitutional dimensions
under the First Amendment guarantee of freedom of the
press. See generally Smith v. Daily Mail Publishing Co.,
— U.S. —, 99 S. Ct. 2667 (1979); Landmark Communica-
tions, Inc. v. Virginia, 435 U.S. 829 (1978). But Powers
is entitled to a fair trial, and the press must find its
sources elsewhere if its presence at the trial would deny
the defendant due process. Gannett Co. v. DePasquale,
supra, 99 S.Ct. at 2904; id. at 2915 (Powell, J., concur-
ring); id. at 2936 (Blackmun, J., dissenting); Sheppard
v. Maxwell, supra, 384 U.S. 333; Estes v. Texas, supra,
381 U.S. 532.
App. 33
The result I would reach, that particular testimony
by Powers or others concerning the specifies of his past
informing activities may be closed to the public, is not
at all unprecedented. Limited closure by trial courts of
specific proceedings has been upheld where appropriate
not only to protect the defendant’s due process rights but
also on the motion of the prosecution over the defend-
ant’s objection, where the court has found compelling
reason to do so. In particular there is a line of cases
in which trials have been closed to protect the identities
of police informants while they testify at trial. £.g.,
United States ex rel. Lloyd v. Vincent, supra, 520 F. 2d
1272; People v. Hinton, 31 N.Y. 2d 71, 334 N.Y.S. 2d
885, 286 N.E. 2d 265 (1972), cert. denied, 410 U.S. 911
(1973). I do not say that these cases satisfy me that a
trial can be closed over the defendant’s objection with-
out violating the Sixth Amendment’s clear language af-
fording the defendant a right to a public trial. But the
cases closing informant’s testimony on the prosecution’s
motion certainly indicate that the interests of a party
or a witness in this kind of case may require closure in
the absence of a specific statutory or constitutional pro-
vision prohibiting closure.
Notably, in at least one of the informant cases, the
court closed the testimony on the mere showing that the
witness had been an informant. United States ex rel.
Lloyd v. Vincent, supra, 520 F. 2d at 1275. Other cases
of closure over the defendant’s objection include: Stami-
carbon, N.V. v. American Cyanamid Co., 506 F. 2d 532
(2d Cir. 1974) (closure of criminal contempt hearing to
protect trade secrets); United States v. Bell, 464 F. 2d
667 (2d Cir.), cert. denied, 409 U.S. 991 (1972) (court
App. 34
cleared during pretrial proceedings to protect the secrecy
of the government’s “skyjacker” profile which was the
subject of testimony); United States ex rel. Bruno v.
Herold, 408 F. 2d 125 (2d Cir. (1969), cert. denied, 397
U.S. 957 (1970) (court cleared for one day of all spec-
tators to protect prosecution witness from intimidation) ;
Harris v. Stephens, 361 F. 2d 888 (8th Cir. 1966), cert.
denied, 386 U.S. 964 (1967) (closure to protect rape vic-
tim from public scrutiny during her testimony concerning
the crime); Reagan v. United States, 202 F. 488 (9th Cir.
1913) (stmil) ; United States ex rel. Smallwood v. LaValle,
377 F. Supp. 1148, aff'd, 508 F. 2d 837 (2d Cir. 1974),
cert. denied, 421 U.S. 920 (1975) (closure during testi-
mony of prosecution witness to avoid intimidation) ; Ho-
gan v. State, 191 Ark. 437, 86 S. W. 2d 931 (Ark. 1935)
(closure during testimony of rape victim) ; Lowe v. State,
141 Ga. App. 433, 233 S.E. 2d 807 (1977) (closure dur-
ing testimony of rape victim); People v. Hagan, 24 N. Y.
2d 395, 300 N. Y.S. 2d 835, 248 N. E. 2d 588, cert. denied,
396 U.S. 886 (1969) (closure to prevent intimidation of
witness to assassination of Malcolm X). Although enu-
merating cases does not of course demonstrate their cor-
rectness, the above cases indicate that at least partial
closure of a trial has been considered within the discretion
of trial courts.
Tu at least two cases comparable to this one some
closure has been permitted on the defendant’s motion.
In Kirstowsky v. Superior Court, 143 Cal. App. 2d 745,
300 P. 2d 163 (1956), the defendant, accused of murder-
ing her husband, sought to defend by presenting evidence
that her husband had forced her to commit repugnant
sexual acts. The trial court found that she was phy-
chically unable to testify in public about the sexual acts
App. 35
and ordered the trial closed. In State v. Poindexter, 231
La. 630, 92 So. 2d 390 (1956), the Louisiana Supreme
Court held it reversible error for the trial court to refuse
to exclude spectators whose presence would intimidate a
defense witness. Cf. United States v. Rios Ruiz, 579 F.
2d 670, 674-75 (1st Cir. 1978). See also Commonwealth
v. Principatti, 260 Pa. 587, 104 A. 53, 57-58 (1918). But
see State v. Velasquez, 76 N.M. 49, 412 P. 2d 4, cert.
denied, 385 U.S. 867 (1966).
I do not mean to indicate that courts have been undi-
vided on the difficult issues touched on by this case:
under what circumstances and to what extent a trial
may be closed in derrogation of our tradition of public
trials. On the contrary, a considerable diversity of opin-
ion exists. See, e.g., United States v. Cianfrani, 573 F.
2d 835 (3d Cir. 1978); United States ex rel. Laws v.
Yeager, 448 F. 2d 74 (3d Cir. 1971), cert. denied, 405
U.S. 976 (1972); United States v. Kobli, 172 F. 2d 919
(3d Cir. 1949); Tanksley v. United States, 145 F. 2d 58
(9th Cir. 1944); Davis v. United States, 247 F. 394 (8th
Cir. 1917); Commercial Printing Co. v. Lee, 262 Ark. 87,
553 S. W. 2d 270 (1977); State v. Schmit, 273 Minn. 78,
139 N. W. 2d 800 (1966); People v. Jelke, 308 N.Y. 56,
123 N. E. 2d 769 (1954); E. W. Scripps Co. v. Fulton, 100
Ohio App. 157, 125 N. E. 2d 896, dismissed, 164 Ohio St.
261, 130 N.E. 2d 701 (1955). See generally Annot., 39
A.L.R. 3d 852 (1971); Annot., 4 L. Ed. 2d 2128 (1960) ;
Annot., 48 A.L.R. 2d 1436 (1956); Annot., 156 A. L. R.
265 (1945); J. COOK, CONSTITUTIONAL RIGHTS OF
THE ACCUSED, TRIAL RIGHTS §§ 100-103 (1974);
Note, 91 HARV. L. REV. 1899 (1978) ; Note, 1966 WASH.
U. L.Q. 458; Comment, 52 MICH. L. REV. 128 (1953).
App. 36
In this case, we are presented with, in my opinion,
a relatively narrow issue of the need to close a trial to
allow a defendant to put on the kind of informant de-
fense which Powers seeks to present to the jury. In my
view, this case presents a very different issue than would
a case of closure to prevent pretrial publicity. In my
opinion, different questions would be presented if the
government had evidence to controvert Powers’s asser-
tion that he was an informant, or if Powers’s claim were
that he was afraid to testify that someone else had com-
mitted the crime with which he was charged. Such claims
may well exemplify the kind of proceeding in which pub-
licity serves an essential function of encouraging truth-
ful testimony. In this case, however, the trial court ex-
pressly found that “the prosecution would never consent
to the closure because the issue before the Court focuses
on a possible defense to the prosecution’s charges against
the defendant.” As discussed above, I think that Powers
has made sufficient showing that closure of certain testi-
mony is required if his trial is to be a “search for truth.”
The stipulation proposed by the trial court is clearly in-
adequate to present his case effectively to the jury. There-
fore, I conclude that Powers’s right to due process com-
pels closure of testimony by Powers or by others about
Powers’s informing activities. I would not, however, close
proceedings other than testimony on these informing ac-
tivities.
I would therefore treat this appeal as a petition for
writ of mandamus and grant the petition.
A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS,
EIGHTH CIRCUIT.
App. 37
Appendix B
Constitution of the United States, Amendment V:
“No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a _present-
ment or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public dan-
ger; nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, lib-
erty, or property, without due process of law; nor
shall private property be taken for public use, with-
out just compensation.”
Constitution of the United States, Amendment VI:
“In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the
crime shall have been committed, which district shall
have been previously ascertained by law, and to be
informed of the nature and cause of the accusation
to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in
his favor, and to have the Assistance of Counsel for
his defense.”’
UNITED STATES CODE SERVICE, TITLE 18
§371. Conspiracy to commit offense or to defraud
United States
If two or more persons conspire either to commit any
offense against the United States, or to defraud the
United States, or any agency thereof in any manner
or for any purpose, and one or more of such persons
do any act to effect the object of the conspiracy, each
shall be fined not more than $10,000 or imprisoned
not more than five years, or both.
App. 38
If, however, the offense, the commission of which is
the object of the conspiracy, is a misdemeanor only,
the punishment for such conspiracy shali not exceed
the maximum punishment provided for such misde-
meanor.
(June 25, 1948, ch 645, § 1, 62 Stat. 701.)
UNITED STATES CODE SERVICE, TITLE 18
§ 474. Plates or stones for counterfeiting obligations
or securities
Whoever, having control, custody, or possession of
any plate, stone, or other thing, or any part thereof,
from which has been printed, or which may be pre-
pared by direction of the Secretary of the Treasury
for the purpose of printing, any obligation or other
security of the United States, uses such plate, stone,
or other thing, or any part thereof, or knowingly
suffers the same to be used for the purpose of print-
ing any such or similar obligation or other security,
or any part thereof, except as may be printed for
the use of the United States by order of the proper
officer thereof; or
Whoever makes or executes any plate, stone, or other
thing in the likeness of any plate designated for the
printing of such obligation or other security; or
Whoever sells any such plate, stone, or other thing,
or brings into the United States any such plate, stone,
or other thing, except under the direction of the Sec-
retary of the Treasury or other proper officer, or
with
any other intent, in either case, than that such plate,
stone, or other thing be used for the printing of the
obligations or other securities of the United States;
or
Whoever has in his control, custody, or possession
any plate, stone, or other thing in any manner made
App. 39
after or in the similitude of any plate, stone, or other
thing, from which any such obligation or other se-
curity has been printed, with intent to use such plate,
stone, or other thing, or to suffer the same to be used
in forging or counterfeiting any such obligation or
other security, or any part thereof; or
Whoever has in his possession or custody, except un-
der authority from the Secretary of the Treasury or
other proper officer, any obligation or other security
made or executed, in whole or in part, after the simili-
tude of any obligation or other security issued under
the authority of the United States, with intent to sell
or otherwise use the same; or
Whoever prints, photographs, or in any other manner
bakes or executes any engraving, photograph, print,
or impression in the likeness of any such obligation
or other security, or any part thereof, or sells any
such engraving, photograph, print, or impression, ex-
cept to the United States, or brings into the United
States, any such engraving, photograph, print, or im-
pression, except by direction of some proper officer
of the United States; or
Whoever has or retains in his control or possession,
after a distinctive paper has been adopted by the
Secretary of the Treasury for the obligations and
other securities of the United States, any similar
paper adapted to the making of any such obligation
or other security, except under the authority of the
Secretary of the Treasury or some other proper of-
ficer of the United States—
Shall be fined not more than $5,000 or imprisoned
not more than fifteen years, or both.
(June 25, 1948, ch 645, $1, 62 Stat. 706.)
App. 40
Appendix C
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF IOWA
Criminal No. 79-26
ra’
Ww
UNITED STATES OF AMERICA,
Plaintiff,
Vs.
MARK RICHARD POWERS,
Defendant.
RULING AND ORDER
(Filed September 7, 1979)
7,
Vv
The Court has before it the defendant’s Motion to
Exclude the Public During Trial filed July 25, 1979. The
United States responded in a resistance filed August 6,
1979, and pursuant to the Order of this Court, the Des
Moines Register and Tribune Company filed an amicus
curiae brief on August 17, 1979. A hearing on the de-
fendant’s motion was held on August 29, 1979 and con-
tinued to September 4, 1979. In open court, the defendant,
the plaintiff’ and the amicus curiae presented argument on
the issue of whether the Court as a matter of law has the
power to order complete closure of the criminal trial upon
the defendant’s request. Following these presentations,
the Court closed the remainder of the hearing to the
public, including the Des Moines Register and Tribune
Company, and heard argument from the parties concern-
App. 41
ing the factual basis of the defendant’s allegations that the
presentation of his defense in open court would endanger
his and his family members’ lives.
The defendant contends that if the entire trial is not
closed as requested he will not be able to adequately
present his defense to the United States’ charges because
of the dangers mentioned above, and thereby will be
denied his constitutional right to a fair trial. The United
States resists this contention by arguing that the Court
must consider three factors in evaluating the defendant’s
evidence in support of closure. Those factors are a dem-
onstrated necessity for closure, a lack of viable alterna-
tives to closure, and the effectiveness of closure in pre-
venting the alleged harm. The Des Moines Register and
Tribune Company challenged the defendant’s contention
by arguing that closure of a criminal trial is not a right
vested in a criminal defendant, and that closure violates
the First Amendment guarantee of the freedom of the
press. In addition, the amicus curiae contended that the
public has a strong interest in open criminal trials that is
supported by a traditional distrust of secret trials in this
country. The matter before the Court, therefore, focuses
on the interface of the defendant’s constitutional right to
a fair rial and the public’s demand for an open trial,
whether guaranteed by the Constitution or by the time-
honored traditions of the American Judiciary.
Counsel for both parties, as well as the amicus curiae,
failed to present any instance where a secret criminal trial
was held in an American court of law. However, the
Court is not willing to say it has no power to order closure
of a criminal trial. Situations might arise where the de-
fendant by clear and convincing evidence could establish
App. 42
exceptional facts and circumstances that effectively pre-
vent the defendant from presenting his defenses and there-
by deny him a fair trial. See Gannett Publishing Co. v.
DePasquale, — U.S. —, 99 S. Ct. 2898, 2915 (July 2, 1979)
(Powell, J., concurring).!_ The Court, after closely scruti-
nizing the evidence presented in the closed hearing and
carefully weighing the fundamental interests of the
parties as well as the public, concludes that the defendant
has failed to sustain that burden of proof.
In the Court’s opinion, an order of closure would not
be proper unless the defendant established:
(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 prosecu-
tion, See Gannett v. DePasquale, supra, or a
compelling reason for not requiring the prosecnu-
tion’s consent;
(3) by clear and convincing evidence that the closure
of the 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.
The Court concludes that the defendant failed to
prove by clear and convincing evidence that the open
1In Gannett, the Supreme Court upheld a trial judge’s or-
der requiring closure of a pretrial hearing in a case where the
participants in the litigation agreed that closure was necessary
to protect the defendant's right to a fair trial. The Court be-
lieves that Gannett is not directly applicable here because the
facts of the present case show that the prosecution did not
consent to the defendant’s closure request, and that the de-
fendant is requesting closure of his complete criminal trial,
not just a pretrial hearing as in Gannett.
2"
App. 43
court presentation of his defense would result in a clear
and present danger of actual harm to the life of the de-
fendant or a member of his family. The evidence at most
demostrates a fear of harm based on the allegedly violent
nature of some of the persons involved. Admittedly, the
defendant has shown that the prosecution would never
consent to the closure because the issue before the Court
focuses on a possible defense to the prosecution’s charges
against the defendant. Powers, however, failed to prove
that closure would effectively prevent the alleged harm,
and provided the Court with no insight on how to prevent
the jurors and witnesses from discussing the case sub-
sequent to the trial, or on how to prevent the disclosure
of information if the trial court’s decision is appealed.
In addition, it was brought to the attention of the Cour
in the closed portion of the hearing that the defendant
may generally be known to have been an informant for
the Federal Bureau of Investigation and the Iowa De-
partment of Criminal Investigation.
Finally, there is an alternative that the Court believes
will enable the defendant to present his defense without
closing the trial to the public. Such alternative procedure
is hereinafter set forth. Therefore, the defendant’s Mo-
tion to Exclude the Public During Trial shall be denied
because the defendant has failed to establish the necessary
circumstances set forth above.
In the closed hearing, the defendant testified as to
several specific instances in which he had supplied infor-
mation to the government. His testimony in this regard
was not disputed by the government and can be sum-
marized as follows:
App. 44
(1) the defendant on six (6) occasions participated
in a conspiracy pursuant to his duties as an in-
formant for the Federal Bureau of Investigation
and the Iowa Department of Criminal Investiga-
tion, and in so doing, the defendant possessed
contraband for a period of time when law enforee-
ment personnel were aware of the defendant’s
possession of the contraband;
(2) the defendant on two (2) occasions participated
in a conspiracy pursuant to his duties as an in-
formant for the Federal Bureau of Investigation
and the Iowa Department of Criminal Investiga-
tion, and in so doing, the defendant possessed
contraband for a period of time when law en-
forcement personnel were not aware of the de-
fendant’s possession of the contraband;
(3) the defendant on three (3) occasions participated
in a conspiracy pursuant to his duties as an in-
formant for the Federal Bureau of Investigation
and the Iowa Department of Criminal Investiga-
tion, and in so doing, the defendant at no time
possessed contraband.
If the government and defendant can stipulate on
this or similar language, the Court will permit it to be
introduced into evidence. If the parties cannot so stipu-
late, the Court will permit the defendant to read such
summary to the jury as the Court’s finding of facts in the
closed hearing. If this alternative is not satisfactory to
the defendant, he may testify about the specific instances
in open court and be subject to cross-examination or re-
frain from raising this matter as a defense.
IT IS THEREFORE ORDERED that the defend-
ant’s Motion to Exclude the Public During Trial shall be
denied.
App. 45
IT IS FURTHER ORDERED that the defendant
shall be allowed to testify fully in open court as to his
defense, and if the defendant chooses not to do SO, as an
alternative, the defendant shall be allowed to present as
evidence of his defense the summary set forth in this
Order.
Signed this 7 day of September, 1979.
/s/ W. C. Stuart, Chief Judge
Southern District of Iowa
a
App. 46
Appendix D
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1979
| net ae
MARK RICHARD POWERS,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
CERTIFICATE OF SERVICE
I, John P. Roehrick, Attorney for the Petitioner,
hereby certify that on this 27 dav of May, 1980, three
(3) copies of the Petition for a Writ of Certiorari were
mailed, correct postage prepaid, to:
ROXANNE CONLIN
U.S. District Attorney
Southern District of Iowa
Federal Courthouse
East lst & Walnut
Des Moines, Iowa 50309
I further certify that all other parties required to
be served have been served.
Joun P. Roerrick
Roenrick, Lavorato, Scuuster,
Suiits & Hasse.
535 Insurance Exchange Building
Des Moines, Iowa 50309
Attorneys for Petitioner
App. 47
Appendix E
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1979
No. ... a
MARK RICHARD POWERS,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
APPEARANCE
COMES NOW John P. Roehrick, Roehrick, Lavorato,
Schuster, Sullins & Hassel, 535 Insurance Exchange Build-
ing, Des Moines, Iowa, 50309, and hereby enters his ap-
pearance on behalf of Mark Richard Powers, Petitioner,
in the above cause.
Respectfully submitted,
Joun P. Rozrnrick
Rogenrick, Lavorato, ScHusTEr,
Suiuws & Hasser
535 Insurance Exchange Building
Des Moines, Iowa 50309
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.