USA v. Melissa Cockerham

Filing

UNPUBLISHED OPINION FILED. [09-51144 Affirmed ] Judge: RHB , Judge: JLD , Judge: PRO Mandate pull date is 11/09/2010 for Appellant Melissa Cockerham [09-51144]

USA v. Melissa Cockerham

Doc. 0

Case: 09-51144

Document: 00511267861

Page: 1

Date Filed: 10/19/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-51144 S u m m a r y Calendar October 19, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. M E L I S S A COCKERHAM, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 5:07-CR-511-2

B e fo r e BARKSDALE, DENNIS, and OWEN, Circuit Judges. P E R CURIAM:* M e lis s a Cockerham appeals her guilty-plea conviction for conspiring to c o m m it money laundering. Cockerham contends: her appeal waiver does not b a r her appeal; and, her Sixth Amendment right to a public trial was violated b e c a u s e the courtroom was closed during her guilty-plea hearing. The Government does not invoke the appeal-waiver provision of C o c k e r h a m 's plea agreement because that agreement bars only the appeal of her

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Dockets.Justia.com

Case: 09-51144

Document: 00511267861 Page: 2 No. 09-51144

Date Filed: 10/19/2010

s e n te n c e . Therefore, this appeal is not barred. See United States v. Story, 439 F .3 d 226, 231 (5th Cir. 2006). "We review constitutional challenges de novo." United States v. Joseph, 3 3 3 F.3d 587, 589 (5th Cir. 2003) (quotation omitted); see also United States v. O s b o r n e , 68 F.3d 94, 98 (5th Cir. 1995). Arguably, because the closed-courtroom is s u e was not raised in district court, review would be only for plain error. Under either standard, the claim fails. The Sixth Amendment guarantees a public trial to all criminal defendants. Osborne, 68 F.3d at 98. A defendant may waive that right, however, by failing t o object to the closing of the courtroom. Peretz v. United States, 501 U.S. 923, 9 3 6 (1991) (citing Levine v. United States, 362 U.S. 610, 619 (1960)); United S ta te s v. Hitt, 473 F.3d 146, 155 (5th Cir. 2006). F o r the reasons that follow, Cockerham waived her right to public trial. At the guilty-plea hearing, her husband pleaded guilty first. After his plea, but b e fo r e Cockerham's, the court announced the courtroom had been closed for the h u s b a n d 's and Cockerham's pleas. Cockerham and her counsel were present in t h e courtroom at that time; there is no indication in the record either Cockerham o r her counsel objected to the closure of the courtroom before or during the plea h e a r in g , at any subsequent proceeding, or by way of a written motion. "Where a defendant, with knowledge of the closure of the courtroom, fails to object, that d e fe n d a n t waives [her] right to a public trial." Hitt, 473 F.3d at 155 (citing L e v in e , 362 U.S. at 618-19 (1960)). Moreover, "[a] defendant's attorney's waiver o f the right to a public trial is effective on the defendant". Hitt, 473 F.3d at 155 (c it in g United States v. Sorrentino, 175 F.2d 721, 723 (3d Cir. 1949)). AFFIRMED.

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