                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                             File Name: 15a0188p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


 UNITED STATES OF AMERICA,                                         ┐
                                          Plaintiff-Appellee,      │
                                                                   │
                                                                   │         No. 13-6273
            v.                                                     │
                                                                    >
                                                                   │
 JASON SIMMONS,                                                    │
                                      Defendant-Appellant.         │
                                                                   ┘
                             Appeal from the United States District Court
                          for the Western District of Tennessee at Memphis.
                     No. 2:12-cr-20081-11—S. Thomas Anderson, District Judge.
                                          Argued: January 14, 2015
                                    Decided and Filed: August 14, 2015

      Before: COLE, Chief Judge; KETHLEDGE, Circuit Judge; OLIVER, District Judge.

                                             _________________

                                                  COUNSEL

ARGUED: Richard A. Cline, CLINE, MANN & CO., LLC, Powell, Ohio, for Appellant.
Kevin G. Ritz, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee.
ON BRIEF: Richard A. Cline, CLINE, MANN & CO., LLC, Powell, Ohio, for Appellant.
Kevin G. Ritz, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee.
                                             _________________

                                                   OPINION
                                             _________________

        COLE, Chief Judge. During Jason Simmons’s criminal trial for drug conspiracy, the
government moved to exclude three of Simmons’s co-defendants from the courtroom during the

        
           The Honorable Solomon Oliver, Jr., Chief Judge, United States District Court for the Northern District of
Ohio, sitting by designation.




                                                         1
No. 13-6273                      United States v. Simmons                       Page 2

testimony of one of its witnesses. The government argued that, due to certain comments made
by Simmons and other individuals outside the courtroom, the presence of the three co-defendants
might make the witness feel uncomfortable and intimidated even though the government
conceded that none of the statements were threatening and that it did not know whether they
were made by any of the three co-defendants it sought to exclude. The district court, reasoning
that it had discretion to bar any individual from the courtroom if there were any possibility that
his or her presence might be intimidating, granted the motion.

       At issue is whether the district court violated Simmons’s Sixth Amendment right to a
public trial when it excluded the three co-defendants from the courtroom without making factual
findings that adequately support its decision. We hold that it did.

                                       I. BACKGROUND

       In 2012, Simmons was indicted for conspiracy to sell cocaine in violation of 21 U.S.C.
§§ 841(a)(1) and 846. Twenty other people were indicted as part of the conspiracy. During their
investigation, federal agents conducting a wiretap heard phone conversations about drugs
between Simmons and Anthony Nixon, a drug dealer who was one of those indicted. Simmons
and Nixon were “pretty close” and had known each other for more than ten years. Nixon later
told the government about Simmons’s involvement in the conspiracy and served as one of the
government’s witnesses during Simmons’s trial.

       Before Nixon’s direct examination, the prosecutor told the district court that three of
Simmons’s co-defendants—Markee Barbee, Keithian Helm, and Derrick Dawson—were in the
back of the courtroom. The prosecutor expressed concern that Nixon “might be intimidated on
that basis” and asked that they “at least” be excluded from the trial during Nixon’s testimony.
He noted that “disparaging things,” but “not threats,” had been said to Nixon, though the
prosecutor conceded that he did not know if those comments were made by the three co-
defendants. He further stated that “Mr. Simmons even has been to see Mr. Nixon, recently,
twice in the last week, and that wasn’t threatening either, it was more in the nature of, hey, man,
are you going to really testify against me,” which, though not “threatening,” “was disquieting
and uncomfortable” for Nixon. The prosecutor acknowledged that he had not spoken to, or
No. 13-6273                      United States v. Simmons                        Page 3

informed, Nixon about the three co-defendants’ presence in the courtroom or about the
prosecutor’s intention to argue for their exclusion during Nixon’s testimony.

       Simmons’s counsel objected, stating that “the courtrooms in the United States are open to
the public” and that the prosecutor was merely assuming that the three co-defendants would be
intimidating. The parties said nothing more, and neither Simmons’s counsel, the prosecutor, nor
the district court knew why the three co-defendants were in the courtroom.

       The district court did not ask Nixon whether he felt uncomfortable or intimidated due to
the presence of the three co-defendants; it also did not inquire about the bases for the
prosecutor’s assertions or ask why statements that might have been made by other parties were
relevant to the three individuals asked to leave the courtroom. Nevertheless, the district court
said that it would “ask them to step out during [Nixon’s] testimony.” While it observed that the
three co-defendants “have a constitutional right also to appear during a trial” and that it “[did
not] know their purpose for being here,” the district court reasoned that it had the discretion to
exclude individuals from the courtroom “if there is any possibility that it would be intimidating
or possibly if it would influence a witness’s testimony.” It stated that it would rather be cautious
by “making sure that no one feels threatened or intimidated because of the presence of other
people in the courtroom,” so the district court asked the courtroom security officer “to quietly go
back and speak to them and ask them to step out until [Nixon] completes his testimony.” The
three co-defendants left without objecting, and the jury was not present when these events
occurred.

       Nixon testified that he and Simmons sold cocaine to one another. Audio recordings of
drug-related phone conversations between Nixon and Simmons were played for the jury, and
Nixon described the drug deals they were discussing on those calls.

       The jury rendered a guilty verdict. The district court later sentenced Simmons to the
mandatory minimum of sixty months. Simmons appeals, arguing that the exclusion of the three
co-defendants during Nixon’s testimony violated Simmons’s right to a public trial under the
Sixth Amendment. He asks that this court vacate his conviction and grant him a new trial.
No. 13-6273                       United States v. Simmons                         Page 4

                                           II. ANALYSIS

       A.      Standard of Review

       In determining whether a defendant’s Sixth Amendment rights have been violated, we
review questions of law de novo and questions of fact under the clearly-erroneous standard. See
United States v. Brown, 498 F.3d 523, 530 (6th Cir. 2007).             We assess a district court’s
compliance with the Sixth Amendment’s procedural requirements for abuse of discretion. See
United States v. Eisner, 533 F.2d 987, 994 (6th Cir. 1976).

       B.      Merits

               1.       Legal Framework

       The Sixth Amendment to the United States Constitution provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a . . . public trial.” U.S. Const. amend. VI. The
Supreme Court has explained that “[t]he central aim of a criminal proceeding must be to try the
accused fairly,” and the right to a public trial is “one created for the benefit of the defendant.”
Waller v. Georgia, 467 U.S. 39, 46 (1984) (quoting Gannett Co. v. DePasquale, 443 U.S. 368,
380 (1979)); see also Presley v. Georgia, 558 U.S. 209, 212 (2010) (explaining that the right to a
public trial “is the right of the accused”). Furthermore, “[i]n addition to ensuring that judge and
prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward
and discourages perjury.” Waller, 467 U.S. at 46. However, “the right to an open trial may give
way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the
government’s interest in inhibiting disclosure of sensitive information.”          Id. at 45.    Such
circumstances are “rare” and “the balance of interests must be struck with special care.” Id.

       In Waller v. Georgia, the Supreme Court established the test for determining whether a
courtroom closure violates a criminal defendant’s Sixth Amendment right to a public trial:

       The presumption of openness may be overcome only by an overriding interest
       based on findings that closure is essential to preserve higher values and is
       narrowly tailored to serve that interest. The interest is to be articulated along with
       findings specific enough that a reviewing court can determine whether the closure
       order was properly entered.
No. 13-6273                           United States v. Simmons                               Page 5

Id. (quoting Press-Enter. Co. v. Super. Ct. of Cal., Riverside Cnty., 464 U.S. 501, 510 (1984)).
In the same opinion, the Supreme Court articulated the test as a four-factor analysis:

        [(1)] the party seeking to close a public hearing must advance an overriding
        interest that is likely to be prejudiced, [(2)] the closure must be no broader than
        necessary to protect that interest, [(3)] the trial court must consider reasonable
        alternatives to closing the proceeding, and [(4)] it must make findings adequate to
        support the closure.

Id. at 48; see also Johnson v. Sherry, 586 F.3d 439, 443 (6th Cir. 2009). Courts frequently call
this the “Waller test.” As we have explained in applying that test, “[b]ecause of the great, though
intangible, societal loss that flows from closing courthouse doors, the denial of a right to a public
trial is considered a structural error for which prejudice is presumed.” Johnson, 586 F.3d at 443
(internal quotation marks omitted). “Structural errors require automatic reversal, despite the
effect of the error on the trial’s outcome.” United States v. Stewart, 306 F.3d 295, 321 (6th Cir.
2002); see also Eisner, 533 F.2d at 993.

        Waller did not distinguish between complete and partial closures of trials.1 Waller,
467 U.S. at 47. Nearly all federal courts of appeals, however, have distinguished between the
total closure of proceedings and situations in which a courtroom is only partially closed to
certain spectators. Garcia v. Bertsch, 470 F.3d 748, 752 (8th Cir. 2006) (“Many courts . . . have
distinguished the complete closure in Waller from partial closures.”). “Whether a closure is total
or partial . . . depends not on how long a trial is closed, but rather who is excluded during the
period of time in question.” United States v. Thompson, 713 F.3d 388, 395 (8th Cir. 2013). In
other words, a total closure involves excluding all persons from the courtroom for some period
while a partial closure involves excluding one or more, but not all, individuals for some period.
Judd v. Haley, 250 F.3d 1308, 1316 (11th Cir. 2001).

        “Both partial and total closures burden the defendant’s constitutional rights,” but “the
impact of [a partial] closure is not as great, and not as deserving of such a rigorous level of
constitutional scrutiny.” Id. at 1315; see also United States v. Yazzie, 743 F.3d 1278, 1288 n.4
(9th Cir. 2014) (“Partial closure of a courtroom has a reduced impact on a defendant’s rights.”);
        1
          This court previously addressed the issue of partial closures in Drummond v. Houk, 728 F.3d 520 (6th Cir.
2013), but that decision was subsequently vacated by the Supreme Court and remanded to this court for further
consideration in light of White v. Woodall, 134 S. Ct. 1697 (2014). See Robinson v. Drummond, 134 S. Ct. 1934
(2014) (mem. op.).
No. 13-6273                       United States v. Simmons                      Page 6

Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir. 1992) (stating that courts have “reasoned that a
less stringent standard was justified because a partial closure does not implicate the same secrecy
and fairness concerns that a total closure does”). Accordingly, lower courts have applied a more
lenient standard where only a partial closure is challenged.

       All federal courts of appeals that have distinguished between partial closures and total
closures modify the Waller test so that the “overriding interest” requirement is replaced by
requiring a showing of a “substantial reason” for a partial closure, but the other three factors
remain the same. See, e.g., Bucci v. United States, 662 F.3d 18, 23 (1st Cir. 2011) (explaining
that the First Circuit and other circuits only require a “substantial” interest rather than a
“compelling” one in partial closure cases); United States v. Osborne, 68 F.3d 94, 98–99 & n.12
(5th Cir. 1995) (adopting the “substantial reason” test for partial closures and noting that the
Second, Eighth, Ninth, Tenth, and Eleventh Circuits have done the same). Thus, under the
modified Waller test applied by those courts, (1) a party seeking a partial closure of the
courtroom during proceedings must show a “substantial reason” for doing so that is likely to be
prejudiced if no closure occurs; (2) the closure must be no broader than necessary or must be
“narrowly tailored”; (3) the trial court must consider reasonable alternatives to closing the
proceeding; and (4) the trial court must make findings adequate to support the closure.

       We agree with our sister circuits and adopt this modified Waller test to assess whether a
criminal defendant’s Sixth Amendment right to a public trial is violated when a district court
bars some, but not all, spectators from the courtroom during the proceedings.

               2.      Analysis

       The first question posed by the modified Waller test is whether there is a substantial
reason for partially closing the courtroom—one that is likely to be prejudiced if no closure
occurs. We have noted that other “courts have held that the need to protect a witness from
intimidation justifies closure of the courtroom.” Nolan v. Money, 534 F. App’x 373, 380 (6th
Cir. 2013) (complete closure); see also Eisner, 533 F.2d at 993–94 (concluding that a witness’s
fear of testifying is a proper basis for excluding all spectators except the press). In particular,
courts consistently hold that ensuring witness safety and preventing intimidation constitutes a
substantial reason to justify the partial closure of the courtroom. See, e.g., Thompson, 713 F.3d
No. 13-6273                       United States v. Simmons                         Page 7

at 396 (“The government’s interest in protecting its witness and the witness’s concern for his
own safety justify the partial closing in this case.”); United States v. Addison, 708 F.3d 1181,
1187 (10th Cir. 2013) (“witness intimidation . . . alone is substantial”); Woods, 977 F.2d at 77
(concluding that protecting a witness from perceived threats constitutes a “substantial reason”);
see also Presley, 558 U.S. at 215 (holding that “safety concerns” may warrant closing a
courtroom during voir dire). Unsurprisingly, courts have also recognized that the need to protect
the safety of witnesses and to prevent intimidation satisfies the higher “overriding interest”
requirement in the standard Waller test. See, e.g., English v. Artuz, 164 F.3d 105, 108–09 (2d
Cir. 1998).

       Here, the government expressed concern to the district court that Nixon could be
intimidated by the presence of the three co-defendants in the courtroom, and the district court
agreed that Nixon could feel “threatened or intimidated.” The district court therefore identified a
substantial reason to grant a partial closure of the courtroom, but never concluded that the
interest being protected was “likely to be prejudiced[.]” See Waller, 467 U.S. at 48. Instead, the
district court mistakenly stated that it had discretion to exclude persons from the courtroom “if
there is any possibility that [their presence] would be intimidating or possibly if it would
influence a witness’s testimony.” (Emphasis added.) The district court therefore did not reach
the conclusion necessary to satisfy the first prong of the modified Waller test.

       We also observe that the closure failed the fourth prong—which requires a district court
to make findings that are “adequate to support the closure” and “specific enough that a reviewing
court can determine whether the closure order was properly entered.” Id. at 45, 48 (quoting
Press-Enter., 464 U.S. at 510). The district court made no findings whatsoever. Of course, as
the Fourth Circuit recognized, Waller “prescribed no particular format to which a trial judge
must adhere to satisfy the findings requirement.” Bell v. Jarvis, 236 F.3d 149, 172 (4th Cir.
2000). But here, the district court made no attempt to ask Nixon any questions at all (in camera,
if necessary) given the paucity of information offered by the government. Nor did the district
court question the government or other witnesses about relevant facts, such as by asking the
government to articulate the supposedly “disparaging” comments about Nixon or confirming
whether the government’s claims were true. Questions along those lines might have led to
No. 13-6273                       United States v. Simmons                       Page 8

information that could have justified a partial closure. But the district court asked no questions
at all.

          As a result, the record was not “adequate to support the closure” because it remains
unclear how the “disparaging,” but still non-threatening, comments would likely intimidate
Nixon. Furthermore, the record does not indicate the basis for excluding the three co-defendants
from the courtroom since the government had not established that they made or prompted any of
those statements. We do not doubt that subtle or indirect forms of witness intimidation occur,
but a vague assertion that “disparaging things” were said by unidentified individuals cannot
suffice to close a courtroom to members of the public during a criminal trial. Indeed, the
prosecutor’s comments during the colloquy—“I haven’t talked to [Nixon] about it. I haven’t told
him about it[.]”—strongly suggest that Nixon himself never indicated that he felt threatened or
intimidated by the three co-defendants; rather, as it conceded, the prosecutor was merely
“concerned” that Nixon “might be” threatened or intimidated. That is insufficient to avoid
reversal under Waller.

          This is not a case in which “specific findings by the district court are not necessary
[because] we can glean sufficient support for a partial temporary closure from the record.”
United States v. Farmer, 32 F.3d 369, 371 (8th Cir. 1994). Rather, the closure order was not
“properly entered” since the district court did not articulate any facts supporting its decision and
simply relied on the government’s assertions—assertions that would have been insufficient to
support a partial closure even if true—and its erroneous understanding of its discretion to
exclude the public from the courtroom. In doing so, the district court abused its discretion and
violated Simmons’s Sixth Amendment right to a public trial.

                                        III. CONCLUSION

          Because the district court did not conclude that Nixon’s three co-defendants were likely
to intimidate him or make factual findings that adequately supported its decision to exclude those
three co-defendants from the courtroom during Nixon’s testimony, it violated Simmons’s Sixth
Amendment right to a public trial. And because such a violation constitutes a structural error, we
vacate the judgment of conviction and remand this case for a new trial.
