Opposition — Powers v. United States

a a a ee ee

7 Supreme cout.

Stews

AUG1 1990

MICHAEL RODAK,

Iu the Supreme Court of the nied Site

OCTOBER TERM, 1979

No. 79-1960

MARK RICHARD POWERS, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

WADE H. McCreg, Jr.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

KATHLEEN A. FELTON

Attorney

Depariment of Justice

Washington, D.C. 20530

(202) 633-2217

In the Supreme Court of the Hnited States

OCTOBER TERM, 1979

No. 79-1960

MARK RICHARD POWERS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

QUESTION PRESENTED

Whether the district court’s denial of petitioner’s

pretrial motion to close his entire trial to the public

will deprive him of the right to a fair trial.

Il

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Abney v. United States, 431 U.S. 651 wc. 4

Cobbledick v. United States, 309 U.S.

UE Asnbevaeeandladidandicmtacdiscedivodasessadioedivininunvennsiande 4

Cohen v. Beneficial Industrial Loan Corp.,

FOE Ds GE wks tasesaiaahaietchexaicbscescscseiatetsicieeserie 4

DiBella v. United States, 369 U.S. 121 vce. 4

Gannett Co. v. De Pasquale, 443 U.S.

OP AedintinetSuncidestiahsdals a avisecuiee aaa 8

New Jersey v. Portash, 440 U.S. 450 wc... 5

Richmond Newspapers, Inc. v. Virginia,

No. 79-243 (July 2, 1980) .......0000.... 3, 4, 6, 8, 9

Singer v. United States, 380 U.S. 24 wiccccccccssseees 3

United States v. Bell, 464 F. 2d 667,

RE, A UE HUN. TPE bocnisdecacccccssascoscoocceees 9

United States ex rel. Lloyd v. Vincent,

520 F. 2d 1272, cert. denied, 423

MGs TH ~ bascdbudesacnsbnetacishdinitabbsilerivcynvinstecdsowésisventia 9

Ill

Page

Cases—Continued:

United States v. Lovasco, 431 U.S. 783 ..........00 7

United States v. MacDonald, 435 U.S.

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Statutes:

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OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-36) is

not yet reported. The opinion and order of the district

court (Pet. App. 40-45) are reported at 477 F. Supp. 497.

JURISDICTION

The judgment of the court of appeals was entered on

April 30, 1980. The petition for a writ of certiorari was

filed on May 28, 1980. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioner was indicted in January 1979 in the United

States District Court for the Southern District of lowa,

for conspiracy to counterfeit and possession of counterfeit

plates, in violation of 18 U.S.C. 371 and 474. Petitioner

pled not guilty. He then obtained, through discovery,

certain records concerning his past activities as an

informant for the FBI and the lowa Department of Crim-

inal Investigation (Pet. App. 1-2).

On July 25, 1979, petitioner moved to exclude the

public from each and every part of his trial. In support of

his motion, petitioner stated that he would offer as trial

evidence much of the information that he had obtained

through discovery, to establish his defense that he was

acting as an undercover agent during the relevant period

and therefore lacked the requisite criminal intent.

Petitioner asserted that a public trial would interfere with

the presentation of that defense because he feared for his

safety and that of his family if his evidence became public.

The government opposed petitioner’s motion (Pet. App.

2).

On August 29 and September 4, 1979, the district court

heard evidence on the motion, at which time petitioner

testified in camera. On September 7, 1979, the district

l

2

court denied the motion by written order (Pet. App. 40-

45). The court concluded that it had the power to close an

entire criminal trial in exceptional circumstances, but it

held that such action would be inappropriate unless the

defendant established the existence of such circumstances

by showing (Pet. App. 42):

(1) by clear and convincing evidence that there was

a clear and present danger of actual harm to the life

of the defendant or a member of his family;

(2) consent to the closure on the part of the

prosecution, * * * or a compelling reason for not

requiring the prosecution’s consent;

(3) by clear and convincing evidence that the

closure of defendant’s criminal trial would effectively

prevent the harm alleged and proven to exist; and

(4) by clear and convincing evidence that there are

no effective alternatives to the complete closure of

the criminal trial.

Based on the testimony presented, the court concluded

that petitioner had not established a compelling need for

closing the trial. The court stated (Pet. App. 42-43):

The Court concludes that [petitioner] 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 life of

the [petitioner] 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 [petitioner] 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 [petitioner]. [Petitioner], however, failed to prove

3

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 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 [petitioner] may

generally be known to have been an informant for

the Federal Bureau of Investigation and the lowa

Department of Criminal Investigation.

The court further noted that the use of a stipulation

summarizing petitioner’s in camera testimony might be an

effective alternative to closure (Pet. App. 43-44).

Petitioner immediately appealed the district court’s

order under 28 U.S.C. 1291. The court of appeals

affirmed, with one judge dissenting (Pet. App. 1-36).

ARGUMENT

Petitioner contends that the district court’s failure to

exclude the public from his trial will interfere with his

defense and thereby deny him a fair trial. Petitioner

concedes, as he must, that he has no absolute right to a

private trial. Gannett Co. v. De Pasquale, 443 U.S. 368,

383 (1979); Singer v. United States, 380 U.S. 24, 35

(1965). Indeed, this Court has recently held that the public

and the press have a qualified constitutional right to

attend criminal trials, requiring that “{aJbsent an

overriding interest articulated in findings, the trial of a

criminal case must be open to the public.” Richmond

Newspapers, Inc. v. Virginia, No. 79-243 (July 2, 1980),

slip op. 24 (opinion of the Chief Justice) (footnote

omitted). Because the Richmond Newspaperstrial judge

had determined to close that trial without making any

findings in support of that action, this Court had no

4

occasion to consider any specific circumstances that might

outweigh the public’s right to attend. /d. at 23-24. The

narrow question presented here is whether the district

judge abused his discretion in holding that petitioner had

not established the existence of circumstances that would

justify the total exclusion of the public from all parts of

his criminal trial.

1. At the outset, we question the court of appeals’

exercise of appellate jurisdiction (Pet. App. 2-3 n.2) in

these circumstances. While the court expressed “grave

doubts” concerning the appealability of this interlocutory

order, it assumed jurisdiction “to discuss the issue of

closure in criminal trials” (ibid.).

28 U.S.C. 1291 grants jurisdiction to the courts of

appeals to review only “final decisions.” This Court has

repeatedly emphasized the special importance of this rule

of finality in the criminal context, where “the delays and

disruptions” of interlocutory appeals “are especially

inimical to the effective and fair administration of the

criminal law.” DiBella v. United States, 369 U.S. 121, 126

(1962); see also United States vy. MacDonald, 435 U.S.

850, 853-854 (1978); Abney v. United States, 431 U.S.

651, 656-663 (1977); Cobbledick v. United States, 309

U.S. 323, 324-326 (1940).

The pretrial order at issue here “obviously is not final in

the sense of terminating the criminal proceedings in the

trial court.” United States v. MacDonald, supra, 435 U.S.

at 857. Nor does it fall within the “collateral order”

doctrine established in Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541, 545-547 (1949), for those

extraordinary cases that warrant suspension of the rule

against piecemeal review. Petitioner claims that a public

trial will prejudice the conduct of his defense. It is clear,

therefore, that the district court’s order denying closure is

5

neither collateral to nor separable from the issues that will

be presented at trial. Petitioner’s claim may best be

resolved after that trial has been completed. Petitioner

will not forfeit his right to obtain appellate review by

refusing to give testimony in a public trial. See New

Jersey v. Portash, 440 U.S. 450 (1979). Moreover, he may

present his defense in the more limited fashion suggested

by the district court, or he may choose not to present the

defense that he has contemplated. If he is convicted, he

may raise his claim upon appeal, with the benefit of a

complete record demonstrating the actual, rather than

speculative, effects of the court’s ruling. See United States

v. MacDonald, supra, 435 U.S. at 858-861; see also

Gannett Co. v. DePasquale, supra, 443 U.S. at 398

(Powell, J., concurring) (“[fJor 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”).

To the extent that special circumstances may exist in a

particular case such that the denial of a closure motion

may truly threaten irreparable injury not effectively

reviewable on appeal from a final judgment, we agree

with the dissenting judge in the court of appeals (Pet.

App. 18-21) that mandamus would be more appropriate

than an appeal under 28 U.S.C. 1291. Unlike the

dissenter, however, we believe that the record in this case

is barren with respect to proof of any such special circum-

stances.

In sum, we submit that the court of appeals erroneously

assumed jurisdiction in this case. We do not believe that

there is any need for this Court to review the jurisdic-

tional issue in the present case, however, in light of the

absence of any conflict among the circuits, the desirability

of permitting further consideration and analysis of the

jurisdictional issue by the courts of appeals (should that

6

issue continue to arise), and the correctness of the ruling

denying petitioner’s closure request.

2. On the merits, petitioner first contends (Pet. 8-10)

that the court of appeals erred in declining to hold (Pet.

App. 13-14) that the government must bear the burden of

proving that closure is not required whenever a defendant

has offered any evidence to show that his rights might be

jeopardized by a public trial. The court of appeals

properly recognized, in light of both the unbroken Anglo-

American tradition of public trials and the sound

principles supporting that tradition, that any party

seeking to close a trial, even on constitutional grounds, is

the one who must shoulder the burden of showing that no

reasonable alternative short of closure will adequately

protect his rights. See Richmond Newspapers, Inc. v.

Virginia, supra, slip op. 23 (opinion of the Chief Justice);

slip op. 3 (Stewart, J., concurring in judgment); Gannett

Co. v. DePasquale, supra, 443 U.S. at 440-445

(Blackmun, J., concurring in part and dissenting in part).

That burden was properly imposed upon petitioner and,

as we discuss below, he failed to meet it.!

3. Petitioner further contends (Pet. 10-15) that the

district court employed an overly restrictive standard in

determining whether his motion should be granted. While

petitioner now asserts that the district court’s use of the

“clear and convincing evidence” test did not adequately

take into account his interest in obtaining a fair trial, the

fact is that petitioner himself proposed that standard (Pet.

App. 12; Appellant’s Br. 6). Moreover, petitioner did not

‘Contrary to petitioner’s suggestion, the government’s burden of

proving every essential element of the offense has no bearing on the

issue of closure (Pet. App. 14). Because petitioner seeks to abridge the

public’s constitutional right to witness the conduct of a criminal trial,

he must bear the burden of establishing that that abridgement is

necessary.

J

challenge that standard in the court of appeals, and he

Should not now be heard to complain that it was

inappropriate. United States v. Lovasco, 431 U.S. 783,

788-789 n.7 (1977).

Noting that petitioner had failed to demonstrate any

prejudice resulting from the standard that he had

proposed (Pet. App. 12-13), the court of appeals

Suggested (Pet. App. 10) that a more appropriate standard

would have been that advanced by Mr. Justice Blackmun

in Gannett. Mr. Justice Blackmun there suggested that a

defendant would have to establish “a substantial

probability” that a public trial would damage his right to

a fair trial, that alternatives to closure would not protect

that right, and that closure would be effective in

preventing the alleged harm. Gannett Co. v. De Pasquale,

supra, 443 U.S. at 441-442. The court of appeals observed

that the test employed by the district court, while similar

to Mr. Justice Blackmun’s, was somewhat stricter because

it required “clear and convincing” evidence. The court of

appeals concluded, however, that petitioner’s proof was

insufficient under either test (Pet. App. 12-13).

Moreover, the record supports both courts’ findings

that petitioner had failed to show any special cir-

cumstances to justify a closed trial. First, petitioner

asserted that the possibility of physical harm would deter

him from presenting evidence in his defense. He did not

establish that that fear was reasonable, however, nor did

he show that it would actually deter him from presenting

his defense. Petitioner appeared to base his fear of certain

individuals largely on allegations of their general

reputations (Tr. 15, 21, 22, 51, 66). He offered no concrete

evidence that his testimony was likely to result in any real

danger to him or to his family. While he claimed that one

individual had previously threatened him concerning

another case, he admitted that he and his wife had

8

nevertheless testified against that person, without any

resulting harm, only about a week after the threat (Tr.

47). Moreover, petitioner had previously stated his

willingness to testify if necessary in other cases in which

he was an informant (Tr. 51-52). He did not offer any

evidence to support his contention that other cases had

been dismissed because the government was concerned for

his safety rather than to preserve his usefulness as an

informant (Tr. 13-15). It was also shown that petitioner

was generally known as a government informant in any

event (Tr. 53, 72). Petitioner simply failed to show how

an open trial would further compromise his safety or that

of his family.

Furthermore, as the district court observed, petitioner

offered no evidence that closure of his trial—in which a

jury would determine his guilt or innocence—could

effectively prevent the eventual disclosure of the informa-

tion that he wished to present (Pet. App. 43). Finally,

petitioner advanced no alternative short of complete

closure of his entire trial, and he offered no reasons to

show why other measures would not be effective.

On its own motion, the district court nevertheless

considered whether any viable alternative existed. See

Richmond Newspapers, Inc. v. Virginia, supra, slip op.

23; Gannett Co. v. De Pasquale, supra, 443 U.S. at 441-

442 (Blackmun, J.). The court suggested, for instance,

that petitioner might present the substance of his evidence

by means of a stipulation or court-approved summary,

without the necessity of revealing the specific details that

he alleged would endanger him (Pet. App. 43-44). In that

manner, petitioner could adequately convey to the jury

the type of past activity in which he claims he was still

engaging at the time of the alleged offense.

The dissenting judge in the court of appeals agreed that

closing the entire trial was unwarranted in this case, but

9

he believed that the district court should have ordered the

closing of some portions of the trial (Pet. App. 21-36).

Petitioner, however, never sought that relief. He never

suggested how a partial closure could be structured or

what specific portions of the trial would have to be

closed. Morover, the district court properly found that

petitioner had not shown that his safety or that of his

family were in fact likely to be endangered by a public

trial. Although partial closings of trials are not un-

precedented (see, e.g., United States ex rel. Lloyd v.

Vincent, 520 F. 2d 1272 (2d Cir.), cert. denied, 423 U.S.

937 (1975), United States v. Bell, 464 F. 2d 667 (2d Cir.),

cert. denied, 409 U.S. 991 (1972); and cases cited at Pet.

App. 33-34), an adequate factual justification must be

established. Richmond Newspapers, supra, slip op. 23-

24. On the record presented here, the district court did not

abuse its discretion in finding that no such justification

had been shown. In the circumstances of this case,

petitioner simply failed—under any standard—to prove

that a private trial was necessary for the presentation of

his defense.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WADE H. McCreg, Jr.

Solicitor General

PHILIP B. HEYMANN

issistant Attorney General

KATHLEEN A. FELTON

Attorney

AuGusT 1980

DOJ. 1980.08