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United States v. Cazares

United States Court of Appeals, Ninth Circuit

May 14, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
FERNANDO CAZARES, AKA SNEAKY, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
GILBERT SALDANA, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
ALEJANDRO MARTINEZ, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
PORFIRIO AVILA, AKA Dreamer, Defendant-Appellant

Argued October 11, 2012.

Submitted, Pasadena, California May 14, 2015.

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Appeal from the United States District Court for the Central District of California. D.C. No. CR-04-00415-PA-04, D.C. No. CR-04-00415-PA-02, D.C. No. CR-04-00415-PA-01, D.C. No. CR-04-00415-PA-05. Percy Anderson, District Judge, Presiding.

SYLLABUS

SUMMARY[**]

Criminal Law

The panel affirmed the convictions of (1) Fernando Cazares, Gilbert Saldana, Alejandro Martinez, and Porfirio Avla, all members of the Avenues 43 Latino street gang, for violating 18 U.S.C. § 241 by conspiring to intimidate African-American citizens in the Highland Park neighborhood of Los Angeles and to deprive them of their constitutional right to " purchase, lease and hold real and personal property, and the right to occupy a dwelling, free from intimidation based on race" ; and (2) Cazares, Saldana, and Martinez for violating (a) 18 U.S.C. § § 245(b)(2)(B), and 2(a) by shooting Kenneth Kurry Wilson, an African-American man, because of his race and color and because he was enjoying facilities provided and administered by a subdivision of the State; and (b) 18 U.S.C. § § 924(c)(1)(A)(iii), (j)(1) and 2(a) by using firearms to kill Wilson while carrying out the charged conspiracy.

The panel held that the defendants' due process rights were not violated by their being shackled to their chairs during the trial.

The panel wrote that the reasons stated by the district court for holding most of the voir dire in private would not be sufficient to avoid a determination that the defendants' rights to a public trial were violated, but held that the defendants validly waived their right to be present at voir dire and their right to a public trial.

The panel held that admission of hearsay statements pursuant to the doctrine of forfeiture by wrongdoing was not reversible error.

The panel held that it was improper expert testimony and a violation of Fed.R.Evid. 703 for an officer to identify Avenues gang members and the officers assigned to the investigations of Avenues as his source for characterizing Martinez, Saldana, and Avila as the most violent members of the Avenues and the members with the most clout. The panel held that more general testimony regarding the Avenues gang members' attitudes towards black people is permissible, but that if there was error in allowing the officer to testify regarding those attitudes, it most likely did not have a substantial effect on the jury's verdict. The panel held that the defendants cannot on this record establish that admission of the officer's testimony constituted plain error under the Confrontation Clause.

The panel held that the district court did not err in denying Saldana's motion to suppress statements he made to the police without being given his Miranda rights, where Saldana was never in custody.

The panel rejected as waived, and on the ground of invited error, the defendants' claim that their rights under the Confrontation Clause were violated by testimony, in response to a question asked during cross-examination, regarding a non-testimonial conversation being gang members.

The panel rejected the defendants' contention that the district court denied the defendants their rights to effective cross-examination and confrontation by limiting and precluding cross-examination of four witnesses.

The panel held that any error in permitting the government's expert to testify that her firearm identification findings were made to a " scientific certainty" was harmless.

The panel held that § 245(b)(2)(B) is constitutional as applied to this case.

The panel concluded that the overall effect of any errors that were committed do not violate the defendants' due process rights to a fair trial.

Verna Wefald (argued), Law Offices of Verna Wefald, Pasadena, California, for Defendant-Appellant Fernando Cazares.

Wayne R. Young (argued), Law Office of Wayne R. Young, Santa Monica, California, for Defendant-Appellant Alejandro Martinez.

Jonathan Libby (argued), Deputy Federal Public Defender, Sean K. Kennedy, Federal Public Defender, Federal Public Defender's Office, Los Angeles, California, for Defendant-Appellant Gilbert Saldana.

Karen L. Landau (argued), Law Office of Karen L. Landau, Oakland, California, for Defendant-Appellant Porfirio Avila.

Thomas E. Chandler (argued) and Jessica Dunsay Silver, Attorneys, Thomas E. Perez, Assistant Attorney General, Department of Justice, Civil Rights Division, Appellate Section, Washington, D.C., for Plaintiff-Appellee.

Before: Harry Pregerson and William A. Fletcher, Circuit Judges, and Lawrence L. Piersol,[*] Senior District Judge. PIERSOL, Senior District Judge.

OPINION

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Lawrence L. Piersol, Senior District Judge:

A jury found defendants Fernando Cazares, Gilbert Saldana, Alejandro Martinez, and Porfirio Avila guilty of violating 18 U.S.C. § 241 by conspiring to intimidate African-American citizens in the Highland Park neighborhood of Los Angeles and to deprive them of their constitutional right to " purchase, lease and hold real and personal property, and the right to occupy a dwelling, free from intimidation based on race." The jury found defendants Cazares, Saldana, and Martinez guilty of violating 18 U.S.C. § § 245(b)(2)(B), and 2(a) by shooting Kenneth Kurry Wilson, an African-American man, because of his race and color and because he was enjoying facilities provided and administered by a subdivision of the State, namely the public streets of Los Angeles. The jury also found defendants Cazares, Saldana, and Martinez guilty of violating 18 U.S.C. § § 924(c)(1)(A)(iii), (j)(1) and 2(a) by using firearms to kill Kenneth Kurry Wilson while carrying out the charged conspiracy.

The defendants are members of the Avenues 43, a Latino street gang in the Highland Park area, an area inhabited predominantly by Latinos. One of the tenets of the Avenues 43 was to harass and use violence to drive African-Americans out of the Highland Park area. The conspiracy charged in the Second Superseding Indictment alleges overt acts continuing from 1995 through 2001 and involving racial slurs, threats, assaults, harassment, and murder directed at African-American residents of the Highland Park area, with the intent of causing the African-American residents to leave the Highland Park area.

Several black residents and former residents of the Highland Park area testified as to the harassment and violence the black residents of the Highland Park area suffered at the hands of the Avenues 43 gang members. The government also relied heavily on the testimony of former Avenues gang members, Jesse Diaz and Jose De La Cruz, who were incarcerated on state convictions, for evidence specific to the defendants.

The district court sentenced Saldana, Cazares, and Martinez each to two consecutive sentences of life imprisonment and sentenced Avila to life imprisonment.

All of the defendants allege constitutional errors during trial based on their being shackled to their chairs, their not being present for most of the voir dire, the admission

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of hearsay, and the limiting of cross examination of several government witnesses. All of the defendants allege the district court abused its discretion by allowing improper gang expert testimony and by permitting another government's expert to testify that her firearm identifications were made to a scientific certainty. Defendants Saldana, Cazares, and Martinez argue that Count Two of the Superseding Indictment should have been dismissed because 18 U.S.C. § 245(b)(2)(B) is unconstitutional on its face and as applied to this case because its enactment and enforcement in the case of a murder committed on a public street exceeds Congress's limited powers. All of the defendants argue that the alleged cumulative errors at trial deprived them of their Fifth Amendment Due Process rights to a fair trial.

Defendant Gilbert Saldana submitted a supplemental opening brief contending that the district court erred in denying his motion to suppress statements made without Miranda warnings. The district court denied Saldana's suppression motion mid-trial without making findings or stating the basis of the ruling on the record. We issued an unpublished memorandum disposition reversing the denial of Saldana's motion to suppress and remanding to the district court for fact finding on whether Saldana was in custody when he made these statements to the police. We deferred submission of the rest of the appeal pending the district court's fact finding. See United States v. Cazares, 517 F.App'x 597 (9th Cir. 2013). The district court later issued and filed with this Court seven pages of findings of fact in support of the denial of Saldana's motion to suppress.

This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We affirm on all issues.

DISCUSSION

I.

THE USE OF SHACKLES

Defendants contend their rights to due process were violated by being shackled to their chairs during the trial. We review the decision to shackle defendants during trial under an abuse of discretion standard. Morgan v. Bunnell, 24 F.3d 49, 50 (9th Cir. 1994) (per curiam). We place restrictions, however, on that discretion in that: (1) " the court must be persuaded by compelling circumstances that some measure was needed to maintain the security of the courtroom" ; and (2) " the court must pursue less restrictive alternatives before imposing physical restraints." United States v. Fernandez, 388 F.3d 1199, 1245 (9th Cir. 2004) (quoting Jones v. Meyer, 899 F.2d 883, 885 (9th Cir. 1990)).

Factual Background Concerning Shackling

Before trial, counsel for Cazares submitted a declaration expressing his concern that the defendants would be handcuffed with shackles on their legs and chained to their seats at trial. Counsel based his concern on the fact that the trial was ordered to be held in the Roybal security courtroom and that at prior proceedings in that courtroom the marshals had handcuffed, shackled, and chained defendants to their seats. Counsel for Cazares declared under oath that at each court proceeding he attended the defendants had behaved as gentlemen and had not exhibited any behavior or demeanor that would indicate an intention to disrupt proceedings, escape, or assault anyone. In initially ruling on the issue the district court stated, " I wouldn't be over here in this courtroom if I was -- this courtroom, I guess, was built by taxpayers' expense for cases like this, and so, at least at this

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point, I'm going to deny that motion without prejudice, and we'll see."

At the beginning of the trial, after it was called to the court's attention that some of the prospective jurors had seen the defendants shackled on a video feed in a different courtroom, the potential jurors were questioned and the few that had possibly seen the shackles were excused. A three-and-a-half to four-foot barrier had been placed in the courtroom to prevent the jurors from seeing shackles or handcuffs when the defendants were seated. A journalist, however, saw that the defendants were shackled to their chairs and reported in the Los Angeles Times that the defendants were shackled but that when they were seated the shackling was not visible. The district court called the article to the attention of counsel and proposed cautioning the jury again about not reading anything about the case and inquiring whether any prospective juror had in fact read any articles about the case. Defense counsel restated their objection, moved for a mistrial, and moved to unshackle the defendants from the chairs so they could stand at appropriate times. The district court responded that he would talk to the marshals, but noted that two of the defendants were serving life terms for murder from state proceedings.

The district court took the shackles into his consideration from the outset of the trial. If the voir dire had been conducted at sidebar the jurors would likely have been able to see the defendants' shackles. The district court therefore decided against doing individual juror questioning at sidebar. At the beginning of the voir dire process, the district court said, " I think we will do this [i.e., voir dire] over in the jury room across the hall there because there is a chance that they could see something back here. Okay. So I will just tell them we are going to do this over there." In context, it is quite clear that when the judge said that " there is a chance they could see something back here" he was talking about prospective jurors seeing defendants' shackling from the angle at which the sidebar would take place.

During the course of voir dire, counsel for the defendants renewed their objection to the jury pool. The district court denied the motion at the time because he did not find that there had been any taint of the prospective jurors, but advised that he would take action if a level of taint was established. The district court continued to question potential jurors about whether they had seen the defendants on the monitor. One of the potential jurors responded that he had seen the defendants escorted in the courtroom and that '[i]t looked like they had handcuffs on behind their backs." This potential juror also stated, " I think we all just looked at it, and I don't think anybody really said anything."

The district court dismissed all but six of the panel that had been in the courtroom with the video monitor. Those six were seated in the jury box and the district court concluded that they had not seen the defendants on the monitor. Other potential jurors denied seeing the defendants on the monitor before voir dire commenced. A few stated that they had seen the defendants on the monitor before voir dire commenced, but that the defendants were seated. Another prospective juror stated that he had seen on the monitor what he assumed to be, possibly incorrectly, a defendant walking in the courtroom. After voir dire was completed, the district court announced that all the potential jurors who had possibly seen the defendants in shackles had been excused and that the district court was satisfied that the panel was not tainted. The district court again pointed out the placement of the barrier that prevented the jurors from seeing any shackles

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or handcuffs when the defendants were seated. Counsel objected to the shackling, because it would prevent the defendants from getting up and down during the trial, and renewed the motion for mistrial. Counsel also moved the district court for an order to unshackle the defendants from their chairs, so that even though they were wearing leg shackles they could stand up and down throughout the trial. The district court responded to the renewed motion by stating that he would talk to the marshals and by again noting that at least two of the defendants were serving life sentences for murder. Based on the Los Angeles Times article referencing the shackles, the district court then asked the potential jurors if any had read a news report regarding the case, but none of the potential jurors responded.

Applicable Law on Shackling

" [G]iven their prejudicial effect, due process does not permit the use of visible restraints if the trial court has not taken account of the circumstances of the particular case." Deck v. Missouri, 544 U.S. 622, 632, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005). The rationale against shackling is that " [v]isible shackling undermines the presumption of innocence and the related fairness of the factfinding process." Id. at 630. " In the presence of the jury, [the defendant] is ordinarily entitled to be relieved of handcuffs, or other unusual restraints, so as not to mark him as an obviously bad man or to suggest that the fact of his guilt is a foregone conclusion." Stewart v. Corbin, 850 F.2d 492, 497 (9th Cir. 1988) (citation omitted). A trial court may order that a defendant be shackled during trial only after the trial court is " persuaded by compelling circumstances that some measure is needed to maintain security of the courtroom" and if the trial court pursues " less restrictive alternatives before imposing physical restraints." Duckett v. Godinez, 67 F.3d 734, 748 (9th Cir. 1995) (quotation marks and citation omitted).

In deciding whether less restrictive alternatives to shackling exist, a trial court must begin by assessing the disadvantages and limitations if shackles are applied to a defendant. Spain v. Rushen, 883 F.2d 712, 721 (9th Cir. 1989). Such disadvantages and limitations include (1) reversal of the presumption of innocence, (2) impairment of the defendant's mental ability, (3) impeding of communication between the defendant and his counsel, (4) detraction from the decorum of the trial, and (5) pain. Id. " After considering these factors, the trial judge 'must weigh the benefits and [these] burdens of shackling against other possible alternatives.'" Jones, 899 F.2d at 885 (9th Cir. 1990) (alteration in original) (quoting Spain, 883 F.2d at 721).

There are no explicit findings in the record regarding the existence of compelling circumstances or the possibility of less restrictive alternatives to shackling. " Yet we have never held, and we refuse to hold now, that a trial court must conduct a hearing and make findings before ordering that a defendant be shackled." Id. at 886.

The district court judge in this case was conducting a trial in which all four defendants were members of a violent gang, two of the defendants had already been sentenced to life sentences in state court, and all of the defendants were facing life sentences as a result of the federal charges. It is apparent from the record that the district court judge consulted with the marshals regarding the security considerations inherent in shackling. We have held that a trial judge has wide discretion to decide whether increased security measures are required when dealing with a defendant who has a propensity for violence. Morgan, 24 F.3d at 51. To reduce the risk of prejudice from the shackling, the district court judge carefully

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questioned the potential jurors during voir dire to preclude seating jurors who had seen any defendants in shackles on the monitor. In addition, the barrier that was placed in the courtroom to prevent the jurors from seeing the shackles minimized or eliminated the disadvantages of shackles regarding reversal of the presumption of innocence and detraction from the decorum of the trial. Visibility of the shackles is critical to the determination of the due process issue. United States v. Mejia, 559 F.3d 1113, 1117 (9th Cir. 2009); see also Williams v. Woodford, 384 F.3d 567, 592 (9th Cir. 2004) (" When the jury never saw the defendant's shackles in the courtroom, we have held that the shackles did not prejudice the defendant's right to a fair trial." ). Defendants have made no claims and presented no evidence regarding the shackles affecting their mental abilities or communications with counsel, or causing them pain. Even if the district court did not fully state on the record his reasons for shackling and his assessment of less restrictive alternatives before ordering shackling in this case, the defendants are not entitled to a reversal based on this record.

In Cox v. Ayers, we set forth four factors that a criminal defendant must satisfy to establish that his shackling at trial amounted to a due process violation. 613 F.3d 883, 890 (9th Cir. 2010). These four factors are (1) that the defendant was physically restrained in the presence of the jury; (2) that the shackling was seen by the jury; (3) that the physical restraint was not justified by state interests; and (4) that he suffered prejudice as result of the shackling. Id. (quoting Ghent v. Woodford, 279 F.3d 1121, 1132 (9th Cir. 2002)). These factors are not present in this case.

Defendants acknowledge that it is not clear whether any of the sitting jurors actually saw them in shackles. Defendants argue, however, that even if the jurors did not see the leg and waist shackles, they had to believe the defendants were dangerous based on the district court judge questioning and based on the defendants' immobility during a trial in a courtroom in which the marshals outnumbered the defendants.

This argument is not persuasive. The voir dire questioning did not suggest any characteristic of the defendants. In addition, as the district court judge explained in response to the request to unshackle the defendants, there is no expectation of mobility of defendants in the courtroom during a trial. The shackles were not visible and the defendants' due process rights were not violated by the shackling.[1]

II.

VOIR DIRE CONDUCTED OUTSIDE THE PRESENCE OF THE DEFENDANTS AND PUBLIC

Defendants contend their constitutional rights to a public trial and to be present at trial were violated when the district court conducted much of the voir dire in camera and outside their presence. Defendants concede that they did not object to voir dire being conducted in camera, so this Court reviews the issue for plain error. United States v. Mageno, 762 F.3d 933, 940 (9th Cir. 2014). " First, for us to reverse the jury verdict in this case, there must be error that is plain." Id. at 943 (emphasis omitted). Even then, we must find that the error seriously affected " the fairness, integrity, or public reputation

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of the judicial proceedings" before exercising discretion to correct the error. Id. at 940 (quoting Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009)).

Factual Background on Right to be Present and to Public Trial

Jury selection in this case took over five-and-one-half days. Most of the voir dire took place outside the presence of the defendants and the public in a jury room. Defense counsel, however, was present. Although appearances, instruction, admonitions, general voir dire, and exercise of peremptory challenges took place in open court, substantial questioning of prospective jurors regarding whether they had seen or heard the defendants on the video monitor, questioning regarding hardship and bias, and legal argument, took place in the jury room outside the presence of the defendants and the public. The trial transcript repeatedly references that voir dire was being held in the jury room outside the presence of the defendants.

The district court had a reason for not conducting voir dire at sidebar. As was indicated in the previous discussion concerning shackling, if the voir dire had been conducted at sidebar, the prospective jurors would likely have been able to see the defendants' shackles. As a result, the district court decided against hardship and other voir dire questioning at sidebar. At the beginning of voir dire, the district judge said, " I think we will do this [i.e., voir dire] over in the jury room across the hall there, because there is a chance that they could see something back here. Okay. So I will just tell them we are going to do this over there." In context, it is quite clear that when the judge said that " there is a chance they could see something back here" he was talking about prospective jurors seeing defendants' shackling from the angle at which the voir dire sidebar examination of prospective jurors would take place.

Neither defendants nor their counsel objected to the voir dire taking place in the jury room outside the presence of the defendants and the public. In fact, one of the defendant's counsel stated: " I think that the selection ought to be done the same way as it was done earlier because it would look a little odd if the new -- the jurors already seated, having gone through this rather extensive private interviews, now see that the new batch doesn't have that."

At one point the district court advised of his intent to question jurors about vacation time in another courtroom and stated, " I guess I need to probably get a waiver from your clients." One of the defendant's counsel responded, " Your Honor, I can't imagine my client would have an objection to us going over and doing that." Before the district court and counsel moved to the other courtroom the district court inquired of each defendant whether he objected to proceeding in this manner. Each defendant consented orally on the record to this plan. When jury selection was finished and defense counsel was asked if there was any legal cause why the jury panel should not be sworn, each defendant's counsel responded " no."

Right to be Present at Voir Dire

Federal Rule of Criminal Procedure 43(a)(2) states that unless provided otherwise a defendant must be present at " every trial stage, including jury impanelment." In United States v. Gagnon, the Court explained the constitutional basis of the right of a defendant to be present at his court proceedings:

The constitutional right to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, e.g., Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), but

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we have recognized that this right is protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him. In Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), the Court explained that a defendant has a due process right to be present at a proceeding " whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge . . . . [T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Id. at 105--06, 108; see also Faretta v. California, 422 U.S. 806, 819 n.15, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The Court also cautioned in Snyder that the exclusion of a defendant from a trial proceeding should be considered in light of the whole record. 291 U.S. at 115.

470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (per curiam). Further, under the Due Process Clause, " a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987).

In Gomez v. United States, the Court discussed the significance of voir dire:

[I]n affirming voir dire as a critical stage of the criminal proceeding, during which the defendant has a constitutional right to be present, the Court wrote: " '[W]here the indictment is for a felony, the trial commences at least from the time when the work of empanelling the jury begins.'" Lewis v. United States, 146 U.S. 370, 374, 13 S.Ct. 136, 36 L.Ed. 1011 (1892) (quoting Hopt v. Utah, 110 U.S. 574, 578, 4 S.Ct. 202, 28 L.Ed. 262 (1884)). See Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) ( voir dire " a necessary part of trial by jury" ); see also Ricketts v. Adamson, 483 U.S. 1, 3, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987); United States v. Powell, 469 U.S. 57, 66, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). Jury selection is the primary means by which a court may enforce a defendant's right to be tried by a jury free from ethnic, racial, or political prejudice, Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981); Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973) ; Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734 (1950), or predisposition about the defendant's culpability, Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).

490 U.S. 858, 873, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989). The right of a defendant to be present during all critical stages of the court proceedings is subject to harmless error analysis, unless that deprivation, by its nature, cannot be considered harmless. Rushen v. Spain, 464 U.S. 114, 117-21, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (per curiam) (holding that an unrecorded ex parte communication between a trial judge and juror was harmless error).

Right to a Public Trial

The Sixth Amendment provides, in relevant part, that " [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." The Sixth Amendment right to a public trial extends beyond the actual proof presented at a trial. See, e.g., Waller v. Georgia, 467 U.S. 39, 44-47, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (pretrial suppression hearing must be open to the public). The Supreme Court has held that the right to a public trial extends beyond the accused and can

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be invoked under the First Amendment. Press-Enterprise Co. v. Superior Court of Cal., Riverside Cnty., 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984).

In Presley v. Georgia, the Court held that a defendant's Sixth Amendment right to a public trial was violated when the trial court excluded the public from the voir dire of prospective jurors. 558 U.S. 209, 213, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010) (per curiam). In Presley, the trial court advised a courtroom observer, the defendant's uncle, that he would not be allowed in the courtroom while the jury was selected but that he could come in after jury selection. When counsel for the defendant objected to the exclusion of the public from the courtroom, the trial court explained that there was not space for the public to sit in the audience and that there was " really no need for the uncle to be present during jury selection." Id. at 210. The Court concluded that the question of whether the Sixth Amendment right to a jury trial extends to jury voir dire was so well settled that it could proceed by summary disposition:

The point is well settled under Press-Enterprise I and Waller. The extent to which the First and Sixth Amendment public trial rights are coextensive is an open question, and it is not necessary here to speculate whether or in what circumstances the reach or protections of one might be greater than the other. Still, there is no legitimate reason, at least in the context of juror selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has. " Our cases have uniformly recognized the public-trial guarantee as one created for the benefit of the defendant." Gannett Co. v. DePasquale, 443 U.S. 368, 380, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). There could ...

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