United States v. James Allen, II ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10060
Plaintiff-Appellee,
D.C. No.
v. 4:20-cr-00300-HSG-1
JAMES DAVID ALLEN II,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Argued and Submitted December 6, 2021
San Francisco, California
Filed May 16, 2022
Before: Carlos F. Lucero,* Sandra S. Ikuta, and
Lawrence VanDyke, Circuit Judges.
Opinion by Judge Ikuta
*
The Honorable Carlos F. Lucero, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
2 UNITED STATES V. ALLEN
SUMMARY**
Criminal Law
The panel vacated James Allen’s conviction and the
district court’s denial of his motion to suppress, and
remanded for a new suppression hearing and a new trial, in a
case in which the district court, at the height of the
coronavirus pandemic in 2020, prohibited members of the
public from attending Allen’s suppression hearing and trial
and rejected his request for video-streaming of the
proceedings.
The panel held that the district court’s COVID protocols
violated Allen’s Sixth Amendment right to a public trial.
The panel explained that the “public trial” guaranteed by
the Sixth Amendment is impaired by a rule that precludes the
public from observing a trial in person, regardless whether the
public has access to a transcript or audio stream. Although
the district court treated its decision to allow only audio
access to the trial as a partial closure, the panel concluded
that the court’s order effected a total closure because all
persons other than witnesses, court personnel, the parties and
their lawyers were excluded from attending the suppression
hearing or trial. In order to determine whether the court’s
order violated Allen’s public trial right, the panel therefore
needed to determine whether there was an overriding interest
that made the closure essential, and whether the court
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. ALLEN 3
considered reasonable alternatives to ensure that the closure
order was narrowly tailored.
Given the impact of the COVID pandemic on Northern
California at the time the court was attempting to schedule
Allen’s trial, the panel agreed that the goal of limiting the
transmission of COVID while holding a trial was an
overriding interest. The panel concluded that the district
court’s complete prohibition on the public’s visual access was
not, however, narrowly tailored. Noting that courts
throughout the country, facing the same need to balance
public health issues against a defendant’s public trial right,
consistently developed COVID protocols that allowed some
sort of visual access to trial proceedings, the panel wrote that
the district court cannot show that allowing a limited number
of members of the public to view the trial in the courtroom,
or via a live-streamed video in a different room, would
imperil public health.
The panel emphasized that an order prohibiting the
public’s visual access to a trial or suppression hearing will
not always violate the defendant’s public trial right, as certain
interests (such as national security) may be so compelling that
prohibiting the public’s observation of some or all of the
proceedings may be warranted.
The panel wrote that the only remedy appropriate to the
violation is a new suppression hearing and a new trial.
The panel addressed in a contemporaneously filed
memorandum disposition Allen’s challenge to the district
court’s denial of his motion to dismiss the indictment under
the Speedy Trial Act.
4 UNITED STATES V. ALLEN
COUNSEL
Lisa Ma (argued), Assistant Federal Public Defender;
Geoffrey A. Hansen, Acting Federal Public Defender; Office
of the Federal Public Defender, Oakland, California; for
Defendant-Appellant.
Noah Stern (argued), Assistant United States Attorney;
Matthew M. Yelovich, Chief, Appellate Section, Criminal
Division; Stephanie M. Hinds, Acting United States Attorney;
United States Attorney’s Office, Oakland, California; for
Plaintiff-Appellee.
OPINION
IKUTA, Circuit Judge:
At the height of the coronavirus pandemic in 2020, the
district court here prohibited members of the public from
attending the defendant’s suppression hearing and trial and
rejected the defendant’s request for video-streaming of the
proceedings. This appeal raises the question whether the
court’s order violated the defendant’s Sixth Amendment right
to a public trial. We conclude that the district court’s order
was not narrowly tailored, in part because courts throughout
the country, facing the same need to balance public health
issues against a defendant’s public trial right, consistently
developed COVID protocols that allowed some sort of visual
access to trial proceedings. Accordingly, we conclude that
the court’s COVID protocols in this case violated the
UNITED STATES V. ALLEN 5
defendant’s public trial right, and he is entitled to a new
suppression hearing and trial.1
I
In July 2020, police officers were dispatched to a
residential street in Pinole, California, where they found
James Allen sitting in a stolen vehicle. An inventory search
uncovered a loaded AR-15 style rifle. The officers arrested
Allen, who was subsequently indicted on one count of being
a felon in possession of a firearm and ammunition, in
violation of 18 U.S.C. § 922(g)(1).
The district court’s effort to schedule Allen’s trial was
hampered by the impact of the global coronavirus (COVID)
pandemic. Beginning in March 2020 and continuing through
all periods relevant to this appeal, the COVID pandemic shut
down much of California: the governor declared a state of
emergency in March 2020, issued a stay-at-home order for
non-essential workers, and closed most non-essential
businesses. The stringency of these restrictions ebbed and
flowed during the relevant time period, depending on the
number of reported COVID cases and deaths, but most
restrictions remained in place throughout 2020.
1
We address Allen’s challenge to the district court’s denial of Allen’s
motion to dismiss the indictment under the Speedy Trial Act in a
memorandum disposition filed concurrently with this opinion. See ___
Fed. App’x __. Allen’s other claims on appeal are moot in light of our
holding here.
6 UNITED STATES V. ALLEN
These events significantly impacted state and federal trial
courts. The Chief Judge of the Northern District of California
(the district in which the court here was located) issued a
series of general orders prescribing COVID protocols. In
September 2020, at the time the district court here was
preparing for Allen’s trial, the relevant general order stated
that criminal jury trials “may proceed in accordance with the
logistical considerations necessitated by the Court’s safety
protocols.” United States District Court for the Northern
District Of California, General Order No. 72-6: In re:
Coronavirus Disease Public Health Emergency (September
16, 2020). According to the court’s website at the time,
“persons who have been authorized by a judge or the Clerk of
Court may enter courthouse property.”
Notwithstanding these general orders, the judge presiding
over Allen’s proceedings adopted additional COVID
restrictions. The court’s protocol for Allen’s pretrial hearings
and trial precluded members of the public from entering the
courtroom, and gave them access to the proceedings only by
streaming audio over the internet.
Allen objected to this protocol as violating his Sixth
Amendment right to a public trial. At a hearing to consider
this and other pretrial issues, Allen’s counsel argued that
while neither audio nor video streaming of the trial was
equivalent to an in-person trial, Allen would accept video as
“an adequate substitute” for public access because it “comes
closer to recapturing that in-person experience more so than
telephone.” According to counsel, “the ability to have the
courtroom open is not simply to hear the witnesses but to see
the witnesses, to see the jury, to see the defendant, to see the
attorneys, see the court,” as well as “to see the exhibits . . .
and have as close to a re-creation of that ability to walk into
UNITED STATES V. ALLEN 7
the courthouse.” By contrast, counsel asserted, telephone
access was not an adequate substitute because “you miss all
of that flavor.” Counsel argued that this factual difference
adds up to “a constitutional legal difference.”
After a hearing, the district court denied Allen’s
objection. The court assumed “that audio access constitutes
a partial closure” of the court. Nevertheless, the court held
there was “an abundantly clear substantial reason for the
closure” which was the “compelling objective of keeping
people safe and limiting the spread of the virus.” Therefore,
the court concluded, it was “clear as a matter of public health
that the number of people in the courthouse have to be
limited.”
The court also held that its protocols were narrowly
tailored to the interest in stemming the spread of COVID.
The court ruled that there was no basis “for concluding that
there’s a constitutional difference between audio and video.”
It then rejected the counsel’s proposed alternative of video-
streaming the trial. According to the court, it would be
improper to live-stream the proceedings over the internet
because the court would be unable to prevent viewers from
recording the trial.2 And the court concluded that live-
streaming the video to a different room in the courthouse
would not meet the objectives of closing the courthouse and
curbing the spread of COVID, because it would not limit the
2
The district court was apparently concerned that live streaming the
trial on the internet would make it difficult to prevent recording of the trial
in violation of Rule 53 of the Federal Rules of Criminal Procedure, which
provides: “Except as otherwise provided by a statute or these rules, the
court must not permit the taking of photographs in the courtroom during
judicial proceedings or the broadcasting of judicial proceedings from the
courtroom.”
8 UNITED STATES V. ALLEN
number of persons in the courthouse. Finally, the court stated
that not everyone in the public had the means to view a
streamed video, whereas telephone access was more widely
accessible. Because there was a substantial reason for
limiting access to the courthouse, and the audio access option
was narrowly tailored, the court concluded that its protocol
was constitutionally adequate “for Sixth Amendment
purposes.” The suppression hearing and the trial proceeded
according to this protocol.
After trial, the jury returned a guilty verdict and the
district court sentenced Allen to six years in federal custody
followed by a three year term of supervised release. Allen
filed a timely notice of appeal.
We have jurisdiction under 28 U.S.C. § 1291. We review
public trial claims de novo. United States v. Waters, 627 F.3d
345, 359 (9th Cir. 2010).
II
From “the days before the Norman Conquest,” despite
“great changes in courts and procedures . . . one thing
remained constant: the public character of the trial at which
guilt or innocence was decided.” Richmond Newspapers, Inc.
v. Virginia, 448 U.S. 555, 565–66 (1980). The “presumptive
openness of the trial, which English courts were later to call
‘one of the essential qualities of a court of justice,’” was also
“an attribute of the judicial systems of colonial America.” Id.
at 567 (citation omitted). The principle that trials should be
open to the public was eventually incorporated into the Sixth
Amendment, which provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial . . . .” U.S. Const. amend. VI.
UNITED STATES V. ALLEN 9
A
The scope of the public trial right must be understood in
light of its purposes. The “public trial guarantee” is a right
“created for the benefit of the defendant.” Gannett Co., Inc.
v. DePasquale, 443 U.S. 368, 380 (1979).3 The open nature
of the proceedings protects the defendant by ensuring “that
the public may see he is fairly dealt with and not unjustly
condemned, and that the presence of interested spectators
may keep his triers keenly alive to a sense of their
responsibility and to the importance of their functions.” In re
Oliver, 333 U.S. 257, 270 n.25 (1948); see also Gannett Co.,
443 U.S. at 383 (“Openness in court proceedings may . . .
cause all trial participants to perform their duties more
conscientiously, and generally give the public an opportunity
to observe the judicial system.”). There is also a societal
interest in public observation of trial proceedings because,
among other things, such observation gives “assurance to
those not attending trials that others were able to observe the
proceedings and enhanced public confidence.” Press-
Enterprise Co. v. Superior Ct. of California, Riverside Cty.,
464 U.S. 501, 507 (1984).
The purposes of the public trial right are advanced most
by the public’s ability to observe the trial. This is confirmed
by “our English common law heritage,” in which the public
trial right “has its roots.” In re Oliver, 333 U.S. at 266. For
example, Sir William Blackstone explained in 1768 that this
“open examination of witnesses viva voce, in the presence of
3
The public does not have a Sixth Amendment right to a public trial,
though the Supreme Court has determined that “the right to attend
criminal trials is implicit in the guarantees of the First Amendment.”
Richmond, 448 U.S. at 580.
10 UNITED STATES V. ALLEN
all mankind, is much more conducive to the clearing up of
truth than the private and secret examination before an officer
or his clerk.” 3 W. Blackstone, Commentaries on the Laws
of England 373 (1768). And in 1820, Sir Matthew Hale noted
that, in English trials, “evidence is given ‘in the open court
and in the presence of the parties, counsel, and all by-
standers.’” Max Radin, The Right to a Public Trial, 6 Temp.
L.Q. 381, 382 (1932) (quoting M. Hale, History of the
Common Law of England, ch. XII, 343 (1820)).
Early state court cases echo this common-law emphasis
on public observation. In 1846, the Supreme Court of Ohio
explained that it is the defendant’s right to have the public
“witness the manner, tone, and temper of his prosecution,”
and that “all that can be said or preferred against him, and all
that can be said or urged in his favor, shall be in the hearing
and presence of the public.” Kirk v. State, 14 Ohio 511,
512–13 (Ohio 1846). Similarly, in 1884, Justice Holmes
(then of the Supreme Judicial Court of Massachusetts)
explained that “the trial of causes should take place under the
public eye . . . because it is of the highest moment that those
who administer justice should always act under the sense of
public responsibility, and that every citizen should be able to
satisfy himself with his own eyes as to the mode in which a
public duty is performed.” Cowley v. Pulsifer, 137 Mass.
392, 394 (Mass. 1884). Federal and state courts throughout
the late nineteenth-century and early twentieth-century
continued to underscore the significance of the public’s
ability to observe trials. See People v. Hartman, 103 Cal.
242, 245 (Cal. 1894) (“The trial should be ‘public,’ in the
ordinary commonsense acceptation of the term. The doors of
the court room are expected to be kept open, [and] the public
are entitled to be admitted . . . .”); Davis v. United States,
247 F. 394, 395 (8th Cir. 1917) (“As the expression
UNITED STATES V. ALLEN 11
necessarily implies, a public trial is a trial at which the public
is free to attend.”); State v. Hensley, 79 N.E. 462, 463 (Ohio
1906) (“[A] public trial means one which is not limited or
restricted to any particular class of the community, but is
open to the free observation of all.”).
Because of the importance of public observation of court
proceedings, transcripts of a trial are not an adequate
substitute for access to the courtroom to observe the trial.
“[T]ranscripts of testimonial evidence which cannot capture
the sweaty brow, the shifty eye, the quavering voice never
fully reflect what was communicated by the testifying
witness.” In re Schoenfield, 608 F.2d 930, 935 (2d Cir.
1979); see also Skilling v. United States, 561 U.S. 358, 386
(2010) (noting the difficulty of “second-guessing” a trial
judge’s decisions in voir dire given that a judge is “influenced
by a host of factors impossible to capture fully in the
record—among them, the prospective juror’s inflection,
sincerity, demeanor, candor, body language, and
apprehension of duty”). The Supreme Court has implicitly
recognized that a transcript is not an adequate substitute for
an open trial. See In re Oliver, 333 U.S. at 259, 271 (stating,
in a case where a “stenographer was most likely” present at
the proceedings, that “recordation” of a trial would not
remedy the evils posed by secret trials, and ruling that a
closed trial violated the defendant’s public trial right); see
also Waller v. Georgia, 467 U.S. 39, 43–49 (1984) (holding,
in a case where a transcript of the proceeding had been
released to the public, that a closed proceeding violates the
Sixth Amendment public trial right).
12 UNITED STATES V. ALLEN
For purposes of the public trial right, an audio stream is
not substantially different than a public transcript. Although
a listener may be able to detect vocal inflections or emphases
that could not be discerned from a cold transcript, an audio
stream deprives the listener of information regarding the trial
participant’s demeanor and body language. Nor can a listener
observe the judge’s attitude or the reactions of the jury to a
witness’s testimony, or scan any visual exhibits. Like a
transcript, then, an audio stream cannot “fully reflect what
was communicated by the testifying witness.” In re
Schoenfield, 608 F.2d at 935. Indeed, the district court here
implicitly acknowledged the value of visual observation when
it required witnesses at the suppression hearing and trial to
wear clear masks. Further, any failure to make the judge,
counsel, defendant and jury subject to the public’s eye (as
well as its ear) undermines confidence in the proceedings.
See Press-Enterprise, 464 U.S. at 505. Therefore, the “public
trial” guaranteed by the Sixth Amendment is impaired by a
rule that precludes the public from observing a trial in person,
regardless whether the public has access to a transcript or
audio stream.
B
Because the public’s ability to observe the trial lies at the
core of the public trial right, the district court’s decision to
preclude the public from attending the trial and to allow only
audio access burdened Allen’s public trial right. The parties
do not dispute this.
UNITED STATES V. ALLEN 13
But like other constitutional rights, a defendant’s right to
a public trial is not absolute. United States v. Yazzie,
743 F.3d 1278, 1286 (9th Cir. 2014). The Supreme Court has
held that “the right to an open trial may give way in certain
cases to other rights or interests.” Waller, 467 U.S. at 45.
The test for determining whether a particular closure
order violates a defendant’s public trial right changes
depending on whether the courtroom closure is total or
partial. A total closure of the courtroom means that “all
persons other than witnesses, court personnel, the parties and
their lawyers are excluded for the duration of the hearing,”
United States v. Rivera, 682 F.3d 1223, 1236 (9th Cir. 2012)
(cleaned up). A partial closure means the court has excluded
only a limited number of persons from the courtroom, either
for the duration of the proceeding or for a limited period of
time (such as during one witness’s testimony). See United
States v. Sherlock, 962 F.2d 1349, 1357 (9th Cir. 1989).
Before ordering a total closure, the court must determine
that there is “an overriding interest based on findings that
closure is essential to preserve higher values.” Id. at 1356(quoting Waller, 467 U.S. at 45). If there was only a partial
closure, there must be a substantial interest, rather than an
overriding interest, for the closure. See Rivera, 682 F.3d
at 1236. In addition, any closure must be “narrowly tailored
to serve” the overriding or substantial interest at issue, and
the court must consider reasonable alternatives to closing the
courtroom. Id. at 1235. Courts must sua sponte consider
possible alternatives to a closure “even when they are not
offered by the parties.” Presley v. Georgia, 558 U.S. 209,
214 (2010).
14 UNITED STATES V. ALLEN
Although the district court here treated its decision to
allow only audio access to the trial as a partial closure, we
conclude that the court’s order effected a total closure
because “all persons other than witnesses, court personnel,
the parties and their lawyers [were] excluded” from attending
the suppression hearing or trial. Rivera, 682 F.3d at 1236
(internal quotation marks omitted). Therefore, in order to
determine whether the court’s order violated Allen’s public
trial right, we must determine whether there was an
overriding interest that made the closure essential, and
whether the court considered reasonable alternatives to ensure
that the closure order was narrowly tailored.
C
The district court characterized its overriding interest as
“keeping people safe and limiting the spread of the virus.”
As the Supreme Court has acknowledged, “[s]temming the
spread of COVID-19 is unquestionably a compelling
interest.” Roman Cath. Diocese of Brooklyn v. Cuomo, 141
S. Ct. 63, 67 (2020). Given the impact of the COVID
pandemic on Northern California at the time the court was
attempting to schedule Allen’s trial, we agree that the goal of
limiting the transmission of COVID while holding a trial was
an overriding interest. See id. The parties here do not dispute
this. Rather, they focus on the question whether the court’s
COVID protocols were narrowly tailored.
A courtroom closure is narrowly tailored to a substantial
or overriding interest if it is “no broader than necessary to
protect that interest.” Waller, 467 U.S. at 48. In considering
whether a burden imposed on a constitutional right is
narrowly tailored, the Supreme Court considers, among other
things, “different methods that other jurisdictions have found
UNITED STATES V. ALLEN 15
effective” in addressing the problem “with less intrusive
tools.” McCullen v. Coakley, 573 U.S. 464, 494 (2014).
Thus, in determining whether a corrections department had
established that it adopted the “least restrictive means of
furthering a compelling government interest,” in burdening
the religious rights of inmates, the Court noted that, “[w]hile
not necessarily controlling, the policies followed at other
well-run institutions would be relevant to a determination of
the need for a particular type of restriction.” Holt v. Hobbs,
574 U.S. 352, 368 (2015). The Court has also applied this
standard in the context of the COVID pandemic. See Diocese
of Brooklyn, 141 S. Ct. at 67. In Diocese of Brooklyn, the
Court considered a governor’s executive order imposing
severe restrictions on attendance at religious services for the
purpose of stemming the spread of COVID. The Court
determined that the restrictions could not be regarded as
narrowly tailored, in part because they were “much tighter
than those adopted by many other jurisdictions hard-hit by the
pandemic.” Id.
The existence of reasonable alternatives also sheds light
on whether closure restrictions are narrowly tailored. “For
instance, instead of closing an entire hearing, a trial court
should consider the reasonable alternative of ‘closing only
those parts of the hearing that jeopardized the interests
advanced.’” Yazzie, 743 F.3d at 1289 (quoting Waller,
467 U.S. at 48). Similarly, “instead of excluding the public
from a voir dire of prospective jurors, the trial court should
have adopted the reasonable alternative of finding additional
space in the courtroom to accommodate members of the
public who wished to attend.” Id. at 1290 (citing Presley,
558 U.S. at 215).
16 UNITED STATES V. ALLEN
In determining whether the district court erred in not
adopting less restrictive alternatives here, we begin by
considering the policies adopted by other jurisdictions to
address COVID issues. See McCullen, 573 U.S. at 494. In
this context, we consider video streaming to be a less
restrictive alternative to audio streaming, because the core of
the defendant’s Sixth Amendment right is to have his trial
open for public attendance and observation. See supra
Section II.A.4
Our review of other jurisdictions reveals that the district
court’s order was “truly exceptional.” McCullen, 573 U.S. at
490. During the pandemic, federal trial courts throughout the
country addressed the same issue as the district court here.
These courts (including courts that held trials in late 2020,
when the district court held Allen’s trial) consistently allowed
some form of visual access to the trial, either by allowing the
public to view a live video feed of the trial in a separate room
in the courthouse, or by allowing a limited number of
4
Therefore, we disagree with the court’s determination that the
difference between audio and video streaming has no constitutional
significance. The court’s reasoning that telephone access is preferable to
video streaming because it is more widely accessible to the public does
not take into account that audio streaming fails to satisfy the defendant’s
basic right to have the public observe the trial.
UNITED STATES V. ALLEN 17
spectators to be present in the courtroom.5 Many state courts
adopted similar measures.6
Courts also adopted a range of measures to minimize
health risks. Some courts asked for lists of attendees who
wanted to observe the trial, see Barrow, 2021 WL 3602859,
at *5, or allowed only a small number of public attendees
(rather than all interested spectators) to observe the
proceedings, see Lappin, 171 N.E.3d at 707; Holder, 2021
WL 4427254, at *9. The government argues that Allen asked
5
See United States v. Babichenko, 508 F. Supp. 3d 774, 778 (D. Idaho
2020) (permitting a separate room in courthouse with live video feed);
United States v. Sapalasan, 2021 WL 2080011, at *2 (D. Alaska May 24,
2021) (same); United States v. Barrow, 2021 WL 3602859, at *5 (D.D.C.
Aug. 13, 2021) (same); United States v. Huling, 2021 WL 2291836, at *2
(D.R.I. June 4, 2021) (same); United States v. Akhavan, 2021 WL
1216909, at *4 (S.D.N.Y. Apr. 1, 2021) (same); United States v. Gordon,
2021 WL 1820690, at *2 (W.D. Tex. May 6, 2021) (same); United States
v. Trimarco, 2020 WL 5211051, at *2 (E.D.N.Y. Sept. 1, 2020)
(permitting a limited number of spectators in courtroom and a separate
room in courthouse with live video feed); United States v. Johnson, 2021
WL 3011933, at *1 (N.D. Ohio July 16, 2021) (same); United States v.
Abdelaziz, 2021 WL 4295840, at *1 (D. Mass. Sept. 20, 2021) (same);
United States v. Richards, 2020 WL 5219537, at *1 (M.D. Ala. Sept. 1,
2020) (permitting courtroom access for the defendant’s family and
separate room in courthouse with live video feed); United States v.
Bledson, 2021 WL 1152431, at *3 (M.D. Ala. Mar. 25, 2021) (same);
United States v. Fortson, 2020 WL 4589710, at *2 (M.D. Ala. Aug. 10,
2020) (same); United States v. Holder, 2021 WL 4427254, at *9 (D. Colo.
Sept. 27, 2021) (permitting limited spectators in courtroom).
6
See Strommen v. Larson, 401 Mont. 554 (2020) (denying public trial
claim where court allowed live video streaming at a remote location);
Lappin v. State, 171 N.E.3d 702, 707 (Ind. Ct. App. 2021) (affirming
conviction over public trial objection where the trial court gave the public
access to voir dire proceedings only via audio streaming and allowed a
limited number of spectators in the courtroom for trial).
18 UNITED STATES V. ALLEN
only for video-streaming, and did not request that specified
individuals, such as family members or journalists, be
allowed to attend the trial. But the district court had an
obligation to sua sponte consider alternatives “even when
they are not offered by the parties.” Presley, 558 U.S. at 214.
Other courts required members of the public attending a
proceeding to pass temperature checks, wear a mask, and
answer a health questionnaire. See Trimarco, 2020 WL
5211051, at *3.
Each of the alternatives adopted by other courts was
“more narrowly tailored and more protective of constitutional
rights” than a total closure of the courtroom. Yazzie, 743 F.3d
at 1289. That other jurisdictions could address the pandemic
using more targeted means suggests that the district court
here had “too readily forgone options that could serve its
interests just as well, without substantially burdening”
Allen’s public trial right. McCullen, 573 U.S. at 490.
In light of the availability of these alternatives, the district
court could justify its more restrictive order only if it had
some unique reason it could not use video-streaming or other
alternatives, despite other courts being able to do so. Cf.
Holt, 574 U.S. at 368–69 (holding that a security measure
burdening prisoners’ First Amendment rights was not
narrowly tailored when the state failed to show why it could
not offer a religious accommodation, even though the vast
majority of states and the federal government were able to
offer such accommodations). But the court here did not
articulate such unique reasons. The district court stated only
that live-streaming the video to a different room in the
courthouse would not meet the objectives of curbing the
spread of COVID, because it would not limit the number of
persons in the courthouse. This reasoning fails because the
UNITED STATES V. ALLEN 19
court had to strike a balance between protecting a defendant’s
public trial right and the goal of stemming the spread of
COVID; “to meet the requirement of narrow tailoring,” the
court must show that reasonable alternative measures “would
fail to achieve the government’s interests, not simply that the
chosen route is easier.” McCullen, 573 U.S. at 495. Here the
district court cannot show that allowing a limited number of
members of the public to view the trial in the courtroom, or
via a live-streamed video in a different room, would imperil
public health. See Diocese of Brooklyn, 141 S. Ct. at 67.
Rather, the Supreme Court has indicated that limiting
maximum attendance is a reasonable means of minimizing
health risks from COVID. See id.
When courts order a total closure of the courtroom, “the
balance of interests must be struck with special care.”
Waller, 467 U.S. at 45. Because the district court could have
“address[ed] its legitimate concerns with rules short of a total
ban” on the public’s access to the suppression hearing and
trial, the district court here failed to strike the appropriate
balance. S. Bay United Pentecostal Church v. Newsom,
141 S. Ct. 716, 718 (2021) (Gorsuch, J., statement).
Therefore, we conclude that in the circumstances presented
here, the district court’s complete prohibition on the public’s
visual access to the trial and suppression hearing was not
narrowly tailored and, accordingly, violated Allen’s Sixth
Amendment right to a public trial.
Nevertheless, we emphasize that an order prohibiting the
public’s visual access to a trial or suppression hearing will
not always violate the defendant’s public trial right. Certain
interests (such as national security) may be so compelling that
prohibiting the public’s observation of some or all of the
proceedings may be warranted. See Waller, 467 U.S. at 45
20 UNITED STATES V. ALLEN
(noting one interest weighing against public trials may be
“the government’s interest in inhibiting disclosure of
sensitive information”). And where a prohibition on the
public’s presence at a trial or hearing is no broader than
necessary to achieve a compelling interest, see Yazzie,
743 F.3d at 1287, a transcript or audio recording may be
sufficient to satisfy the public trial right, see Press-
Enterprise, 464 U.S. at 512; see also United States v.
Hendricks, 950 F.3d 348, 356 (6th Cir. 2020) (holding partial
closure was narrowly tailored to substantial interest in
protecting FBI counterterrorism agent’s safety where trial
court excluded public from courtroom during agent’s
testimony and live-streamed audio of the testimony in a
separate room).
D
Having determined that Allen’s Sixth Amendment public
trial right was violated, we now must determine the
appropriate relief. It is well established that a defendant is
not required to prove prejudice to obtain relief for a violation
of his public trial right. Waller, 467 U.S. at 49–50. As the
Supreme Court has explained, “a requirement that prejudice
be shown ‘would in most cases deprive the defendant of the
public-trial guarantee, for it would be difficult to envisage a
case in which he would have evidence available of specific
injury.’” Id. at 49 n.9 (cleaned up). Because “the remedy
should be appropriate to the violation,” id. at 50, a defendant
whose right to a public trial was violated is entitled to a new,
public proceeding in place of the one that was erroneously
closed, see id. at 49 (holding that a defendant whose
suppression hearing was erroneously closed was entitled to a
new suppression hearing, and also a new trial if the
subsequent public suppression hearing resulted in the
UNITED STATES V. ALLEN 21
suppression of evidence not suppressed at the first trial);
Rivera, 682 F.3d at 1237 (holding that a defendant whose
sentencing hearing was erroneously closed was entitled to
new sentencing proceedings).
Here, the public could not observe or attend either the
suppression hearing or the trial. Accordingly, the only
remedy “appropriate to the violation,” Waller, 467 U.S. at 50,
is a new suppression hearing and a new trial. We therefore
vacate Allen’s conviction and the district court’s denial of the
motion to suppress, and remand for these proceedings.
VACATED AND REMANDED.