USA v. David Rivera

Filing

FILED OPINION (STEPHEN R. REINHARDT, MARSHA S. BERZON and MATTHEW F. KENNELLY) VACATED; REMANDED.We accordingly direct that the case be reassigned to a different judge for re-sentencing. Judge: MSB Authoring, FILED AND ENTERED JUDGMENT. [8224489]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID RIVERA,
Defendant-Appellant.





No. 10-50426
D.C. No.
2:08-cr-01201ODW-50
OPINION

Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted
August 2, 2011—Pasadena, California
Filed June 22, 2012
Before: Stephen Reinhardt and Marsha S. Berzon,
Circuit Judges, and Matthew F. Kennelly, District Judge.*
Opinion by Judge Berzon

*The Honorable Matthew F. Kennelly, District Judge for the U.S. District Court for Northern Illinois, sitting by designation.

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UNITED STATES v. RIVERA

COUNSEL
David S. McLane, Kaye, McLane & Bednarski, LLP, Pasadena, California, for the appellant.
Andre Birotte, Jr., United States Attorney, Robert E. Dugdale,
Criminal Division Chief, Christopher Brunwin (argued),
Assistant United States Attorney, United States Department of
Justice, Los Angeles, California, for the appellee.

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OPINION
BERZON, Circuit Judge:
Defendant-Appellant David Rivera was convicted of possessing with intent to distribute 214.4 grams of actual
methamphetamine. Defense counsel indicated that Rivera
wanted his family members, including his wife and young
son, present at the sentencing hearing. The district court, however, expressing displeasure at what it perceived as the manipulative use of Rivera’s young son as a sentencing “prop,”
continued the sentencing hearing and ordered defense counsel
to show up three days later with “[j]ust the people involved.”
We hold that Rivera’s Sixth Amendment right to a public trial
was violated by the district court’s exclusion of his family
members from the sentencing proceedings. Accordingly, we
vacate Rivera’s sentence and remand for re-sentencing.
I
Rivera was named in an eighty-six count indictment against
seventy-nine members and associates of the Mongols motorcycle gang. The indictment charged racketeering, narcotics,
weapons, and money-laundering offenses. Count Fifty-Three
of the indictment charged Rivera and his brother, Ismael
Rivera, with possessing with intent to distribute 214.4 grams
of methamphetamine.
Pursuant to a written plea agreement, Rivera pleaded guilty
to the act of transporting 214.4 grams of methamphetamine.
The parties stipulated to a base offense level of thirty-four and
a three-level reduction for Rivera’s acceptance of responsibility. Both parties reserved the right to argue that the district
court should adjust or depart from this offense level. The plea
agreement contained a limited waiver of appeal, which stated
in pertinent part:
Defendant gives up the right to appeal any sentence
imposed by the Court, and the manner in which the

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sentence is determined, provided that (a) the sentence is within the statutory maximum specified
above and is constitutional, and (b) the Court
imposes a sentence within or below the range corresponding to a total offense level of 31, and the applicable criminal history category as determined by the
Court.
At the change of plea hearing, Rivera testified that he read,
signed, and understood the plea agreement.
On August 24, 2010, before conducting the initial sentencing hearing, the district judge announced that he intended to
comply with the parties’ requests to have their sentencing
position papers filed under seal and also intended to seal the
courtroom and the transcripts of the proceeding. Rivera,
through counsel, requested that his family members, including
his seven-year-old son, be present, but asked to discuss certain matters at sidebar. The district judge responded that he
himself thought the hearing ought to be closed, but that
Rivera could do as he wished.
The hearing went forward, and defense counsel presented
the reasons why, in his view, the level thirty-one Guidelines
sentence was too high. Rivera, his lawyer maintained, was
entitled to a minimal role reduction because he was substantially less culpable than his co-defendants; a lower sentence
was appropriate because Rivera had a low IQ and was thus
“subject to undue influence” by his older brother; and
leniency was appropriate in light of Rivera’s family ties and
post-arrest conduct. After concluding his litany of rationales
for a lowered sentence, defense counsel pleaded with the
court to “look at this individual and give him a chance for his
future . . . .”
The district judge responded:
A number of courts have taken a chance on him.
There has been repeated arrests and grants of proba-

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tion, and he is undeterred. He immediately goes out
and continues to engage in criminal activity. And
that is the part that is really troublesome. Continues
to engage in this lifestyle, get arrested, brought
before the Court, admit the guilt, is granted probation, goes back out and does it again because nothing
has ever happened. Nothing has ever happened to
Mr. Rivera to encourage him to change his life.
...
And I will have to tell you something, and this is
almost universal with all of the people involved in
this case, they spend all of their time, you know, out
in the streets engaged in an awful lot of unsocial
activity, some of it criminal, but, then, on this day,
on this sentencing day, then all the family comes
rolling in, family that they should have been spending time with as opposed to associating with these
unsavory characters, and I find it particularly distasteful when the young children are used.
This is not the place. This is not the time, and the
Court is not impressed. Matter of fact, I take a very,
very dim view of using children in this way.
...
And, you know, I have delivered this message before
with the hope that it would circulate and be communicated throughout the defense bar, but it persists.
One day eight children under the age of 6 were
paraded here in this case [apparently referring to a
different defendant’s sentencing proceeding]. That is
just shameful, but I’m sorry.
Defense counsel explained that he would not have brought
Rivera’s young child if he had known the court’s views on the

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matter, and resumed his argument for a minor role adjustment. The district judge, however, remained upset and, noting
that the defense had indicated its willingness to continue sentencing if the court wanted more time to digest the sentencing
papers, ordered the hearing continued and the courtroom
cleared. Before the proceeding concluded, the district judge
stated his intention to reconvene the sentencing proceedings
a few days later, with “[j]ust the people involved.”
The sentencing hearing resumed on August 27, 2010. This
time, no family members were present. After defense counsel
stated his appearance for the record, indicated Rivera’s presence, and introduced his investigator, the district judge
remarked: “This is the way a courtroom ought to look. All
right. Let’s pick up from where we left off.” The court
decided that Rivera was not entitled to a minor role reduction,
and, after considering the relevant criteria, imposed a sentence
of 97 months’ imprisonment. Rivera appeals his sentence.
II
Rivera argues that the sentencing procedure in this case
violated the Fifth and Sixth Amendments to the United States
Constitution. Before turning to the merits of Rivera’s constitutional challenges, we briefly address whether Rivera waived
his right to appeal the district court’s alleged violation of his
constitutional rights.
A.

The Appeal Waiver

Whether a criminal defendant has waived his right to
appeal is reviewed de novo. United States v. Bibler, 495 F.3d
621, 623 (9th Cir. 2007). Unless certain exceptions apply, an
appeal waiver is enforceable if the defendant knowingly and
voluntarily waives his rights, and the language of the waiver
covers the grounds raised on appeal. Id. at 623-24.1
1

We have recognized an “illegal sentence” exception to the enforcement
of appeal waivers—i.e., we will not enforce an appeal waiver where the

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According to the terms of the appeal waiver in Rivera’s
plea agreement, Rivera waived “the right to appeal any sentence imposed by the [district court], and the manner in which
the sentence is determined, provided that (a) the sentence is
within the statutory maximum specified above and is constitutional . . . .” (Emphasis added). Both Rivera and the
government—the parties to the plea agreement—have
assumed, in their respective filings before this Court and at
oral argument, that Rivera’s appeal waiver did not preclude
him from raising constitutional challenges to the manner in
which his sentence was imposed.
Specifically, Rivera’s brief states that “the plea agreement
expressly allows for appealing an unconstitutional sentence,
so if the court imposed the sentence on Mr. Rivera in violation of the Constitution, Mr. Rivera can appeal that sentence.”
The government accepts this premise, arguing, with respect to
the public trial issue, only that Rivera’s “sentence is not
unconstitutional because there was no Sixth Amendment violation.” Similarly, the government contends, with respect to
Rivera’s due process challenge, only that “[t]he district court
did not violate [Rivera’s] right to due process.” By contrast,
the government does argue that the appeal waiver covered the
contention that the sentence was invalid because of a failure
properly to consider sentencing disparity, noting, inter alia,
that Rivera “has [not] claimed a constitutional violation with
respect to alleged sentencing disparity.” Although the government ultimately asks for the entire appeal to be dismissed pursuant to the appeal waiver, it does so, with respect to the
constitutional issues raised, on the ground that they lack
merit, not on the ground that they may not be considered.
sentence at issue “exceeds the permissible statutory penalty for the crime
or violates the Constitution.” Id. at 624. We have no occasion to consider
whether this exception applies here, because, as discussed below, the language of the agreement and the parties’ understanding of it, as well as the
government’s failure to argue that the appeal waiver applies to Rivera’s
constitutional challenges, suffice to resolve the issue before us.

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[1] The parties’ understanding that the appeal waiver does
not include constitutional challenges to the manner in which
Rivera’s sentence was imposed rests on a plausible reading of
the plea agreement. The affirmative coverage of the appeal
waiver includes “the manner in which the sentence is determined,” so it is sensible to understand the exception for a sentence that “is [not] constitutional” to mirror the affirmative
coverage of the waiver and so to include an unconstitutionally
imposed sentence, one imposed in violation of the Fifth and
Sixth Amendments. Because ambiguities in the plea agreement must be construed in the defendant’s favor, see, e.g.,
United States v. Charles, 581 F.3d 927, 931-32 (9th Cir.
2009), we agree with the parties’ interpretation of the appeal
waiver as not covering constitutional challenges to the manner
of imposing the sentence.2
B.

Rivera’s Sixth Amendment Right to a Public Trial

[2] Turning to the merits of Rivera’s Sixth Amendment
challenge, we must determine: (1) whether the Sixth Amendment right to a public trial attaches to sentencing proceedings;
if so, (2) whether the closure at issue was trivial, and therefore
exempt from Sixth Amendment analysis; if not, (3) whether
Rivera forfeited his public trial right; if not, (4) whether the
closure violated Rivera’s public trial right; and, if so, (5) what
remedies are available. We address each issue in turn.
2
Furthermore, because the government argues only the merits of the
Fifth and Sixth Amendment issues and does not maintain that the issues
may not be considered, it has, in any event, waived any reliance on the
appeal waiver with regard to those issues. See, e.g., United States v.
Garcia-Lopez, 309 F.3d 1121, 1123 (9th Cir. 2002); United States v. Doe,
53 F.3d 1081, 1082-83 (9th Cir. 1995); see also United States v. Jacobo
Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc) (holding that a valid
appeal waiver contained in a plea agreement does not divest this Court of
jurisdiction to hear the defendant’s appeal, and so is subject to waiver).
Thus, we would retain authority to reach the merits of Rivera’s appeal
even if the waiver’s express terms did cover the constitutional challenges
presented here.

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1.

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The right to a public sentencing.

“Although the Sixth Amendment refers to a ‘public trial,’
the right encompasses more than the trial itself,” extending
“to those hearings whose subject matter involve[s] the values
that the right to a public trial serves.” United States v. Waters,
627 F.3d 345, 360 (9th Cir. 2010) (alteration in original) (citation and internal quotation marks omitted). “Those values are:
(1) to ensure a fair trial, (2) to remind the prosecutor and
judge of their responsibility to the accused and the importance
of their functions, (3) to encourage witnesses to come forward, and (4) to discourage perjury.” Id. (quoting United
States v. Ivester, 316 F.3d 955, 960 (9th Cir. 2003)).
These values apply with as much force to sentencing proceedings as to the trial itself. First, the interest in fair proceedings indisputably extends to sentencing. See, e.g., United
States v. Jordan, 256 F.3d 922, 926 n.2 (9th Cir. 2001). Second, the judge and prosecutor continue to bear grave responsibilities, both to the accused and to the broader community,
during sentencing proceedings. See, e.g., Williams v. Oklahoma, 358 U.S. 576, 585 (1959); United States v. Saling, 205
F.3d 764, 767 (5th Cir. 2000). Finally, the values of encouraging witnesses to come forward and discouraging perjury
remain salient at sentencing, because the parties may present
witnesses at sentencing. See Fed. R. Crim. P. 32(i)(2).
The application of these values to sentencing is confirmed
by our cases regarding the First Amendment right to access
criminal proceedings. For example, in CBS, Inc. v. United
States District Court, 765 F.2d 823 (9th Cir. 1985), which
concerned a news organization’s motion to access sealed documents related to a criminal defendant’s Federal Rule of
Criminal Procedure 35 motion to reduce his sentence, we
found “no principled basis for affording greater confidentiality to post-trial documents and proceedings than is given to
pretrial matters.” Id. at 825. Rather, we held, “[t]he primary
justifications for access to criminal proceedings, first that

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criminal trials historically have been open to the press and to
the public, and, second, that access to criminal trials plays a
significant role in the functioning of the judicial process and
the governmental system, apply with as much force to postconviction proceedings as to the trial itself.” Id. (citation
omitted); see also United States v. Biagon, 510 F.3d 844, 848
(9th Cir. 2007); United States v. Lewis, 424 F.3d 239, 248 (2d
Cir. 2005).
Of course, our First Amendment right of access cases do
not directly control here, because this case concerns a criminal defendant’s Sixth Amendment right to a public trial, and
“[t]he extent to which the First and Sixth Amendment public
trial rights are coextensive is an open question.” Presley v.
Georgia, 130 S. Ct. 721, 724 (2010) (per curiam). As the
Supreme Court observed in Waller v. Georgia, 467 U.S. 39
(1984), however, precedents concerning the reach of the public’s First Amendment right of access may inform the scope
of the defendant’s Sixth Amendment right to a public trial,
because “there can be little doubt that the explicit Sixth
Amendment right of the accused is no less protective of a
public trial than the implicit First Amendment right of the
press and public.” Id. at 46 (emphasis added).
It is “not necessary here to speculate whether or in what
circumstances the reach or protections of one might be greater
than the other,” because “there is no legitimate reason,” in the
context of a sentencing hearing, “to give one who asserts a
First Amendment privilege greater rights to insist on public
proceedings than the accused has.” Cf. Presley, 130 S. Ct. at
724 (discussing juror selection proceedings). The public trial
guarantee was, after all, “created for the benefit of the defendant,” and “[t]here could be no explanation for barring the
accused from raising a constitutional right that is unmistakably for his or her benefit.” Id. (quoting Gannett Co. v.
DePasquale, 443 U.S. 368, 380 (1979)) (citation and internal
quotation marks omitted).

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[3] We have already held that the First Amendment right
of access applies to sentencing proceedings. See Biagon, 510
F.3d at 848; accord Lewis, 424 F.3d at 248. Because we see
no reason to give the public a greater right to insist on public
proceedings than the individual for whose benefit the public
trial right was created—the criminal defendant—we hold that
the Sixth Amendment right to a public trial attaches at sentencing proceedings.
2.

The closure was not trivial.

The right to a public trial entitles a criminal defendant “at
the very least . . . to have his friends, relatives and counsel
present, no matter with what offense he may be charged.” In
re Oliver, 333 U.S. 257, 272 (1948); see Braun v. Powell, 227
F.3d 908, 917 (7th Cir. 2000); Vidal v. Williams, 31 F.3d 67,
69 (2d Cir. 1994). Nonetheless, in some circumstances, exclusion of members of the public from a judicial proceeding does
not implicate the constitutional guarantee. See United States
v. Perry, 479 F.3d 885, 890 (D.C. Cir. 2007) (collecting
cases). We have held, for example, that the exclusion of
“spectators during the brief mid-trial questioning of the jurors
to determine if they were concerned for their safety” is too
trivial a closure to violate the Sixth Amendment. Ivester, 316
F.3d at 959-60 (citing Peterson v. Williams, 85 F.3d 39, 43
(2d Cir. 1996)). “To determine whether a closure was too trivial to implicate the Sixth Amendment guarantee, we must
determine whether the closure involved the values that the
right to a public trial serves.” Id. at 960 Those values, as we
have explained, include: ensuring fair proceedings; reminding
the prosecutor and judge of their grave responsibilities; discouraging perjury; and encouraging witnesses to come forward. See id.
The government asserts that the district court excluded only
Rivera’s seven-year-old son from the proceedings. The gov-

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ernment contends that this exclusion was too trivial to implicate Rivera’s Sixth Amendment public trial right. We disagree.3
The presence of the public at sentencing reminds the participants, especially the judge, that the consequences of their
actions extend to the broader community. Friends and family
members, especially a defendant’s young children, are particularly effective in this regard, because they are the individuals
most likely to be affected by the defendant’s incarceration. Cf.
U.S.S.G. § 5H1.6 (stating that “family ties and responsibilities
are not ordinarily relevant” in deciding whether to depart
below a Guidelines sentence, but application notes authorize
departures when the defendant’s sentence “will cause a substantial, direct, and specific loss of essential caretaking”).
Moreover, a child’s ingenuousness may have an intensely
sobering effect on the responsible adults, including on the person being sentenced. Because the closure at issue in this case
concerned sentencing proceedings, the absence of Rivera’s
young child frustrated Sixth Amendment values—
particularly, the value of reminding the participants of the
importance of the occasion.
Furthermore, the district judge did not, in fact, exclude only
Rivera’s child from the proceedings; he excluded all of the
family members Rivera wished to have present. Here is the
exchange that occurred when the district judge indicated his
desire to continue the August 24 sentencing hearing:
District Court: You made, in your papers, I guess the
first page, you made the suggestion that if the Court
3

In pressing its argument, the government relies on Perry, in which the
D.C. Circuit held that an eight-year-old child could be excluded from his
father’s public trial because, considering the purposes of the Sixth
Amendment, his exclusion was trivial in the circumstance presented. 479
F.3d at 890-91. Here, we need only decide whether the exclusion of Rivera’s child from his father’s sentencing was trivial, and that is the only issue
we decide. Our silence on the views expressed by the D.C. Circuit should
not be taken as indicating any agreement with its decision or its rationale.

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wanted more time to digest your papers, then you
would be willing to continue this. I want to continue
this. I want to clear this courtroom. I am really upset
about this display. Okay.
Defense Counsel: Yes, your honor.
District Court: I am going to reconvene this sentencing just with the adults without this manipulation
because I don’t want to take it out on your client, this
charade.
Defense Counsel: Yes, your honor.
...
Defense Counsel: And no family, just my client.
District Court: Forget the manipulation. It doesn’t
work well with me.
Defense Counsel: Your Honor, if I knew this—
District Court: Listen to me. Just don’t. Okay. 1:30,
Friday.
Defense Counsel: Yes, your honor.
District Court: Just the people involved. Okay.
Defense Counsel: Yes your Honor. Thank you.
Although the district judge, at one point, indicated that he
intended to “reconvene this sentencing just with the adults,”
he had originally expressed a preference for a closed courtroom; said, without qualification, that he “want[ed] to clear
th[e] courtroom”;4 and subsequently stated—in response to
4

The phrase “clear the courtroom” is regularly used in reference to the
closure of proceedings. See, e.g., Biagon, 510 F.3d at 846. When a partial

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defense counsel’s attempt at clarification (“And no family,
just my client”)—that counsel should “[f]orget the manipulation” and that the proceeding should include “[j]ust the people
involved.” When the proceedings resumed on August 27, the
only people present were the judge, the prosecutor, defense
counsel, defense counsel’s investigator, and Rivera himself.
Observing the cleared courtroom, the district judge remarked:
“This is the way a courtroom ought to look.” Taken together,
the district judge’s comments evince a definite intent fully to
“clear the courtroom,” thereby excluding all of Rivera’s family members from the proceedings.
The government alternatively contends that the closure was
trivial, because Rivera’s family members were excluded only
from the August 27 sentencing hearing, which was fairly brief
—it lasted about thirty-five minutes.5 That a closure is particularly brief in duration may support the conclusion that it does
not implicate the values served by the defendant’s right to a
public trial. See Ivester, 316 F.3d at 960; Peterson, 85 F.3d at
41 (holding that a closure lasting twenty minutes, during
which the defendant testified, was too insignificant to violate
the defendant’s Sixth Amendment rights). In both Ivester and
Peterson, however, other factors strongly supported the conclusion that the closure did not implicate Sixth Amendment
public trial concerns.
Peterson, for instance, noted that the closure at issue was
not only brief but inadvertent, and observed that “the public
closure is intended, the phrase is usually qualified to indicate which persons may remain. See, e.g., Garcia v. Bertsch, 470 F.3d 748, 750 (8th Cir.
2006) (“[T]he State’s attorney requested to clear the courtroom of media
and anyone other than the families of Garcia and the victim.”); United
States v. Kupau, 781 F.2d 740, 742 (9th Cir. 1986) (“The district judge
also announced that he would clear the courtroom of all but the jury and
Lui for the playing of the tapes, which he did.”).
5
The earlier August 24 sentencing hearing lasted approximately fifty
minutes.

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may not have missed much of importance as a result of the
accidental closure, since just about all of the defendant’s testimony that was relevant was repeated, soon after he testified,
as part of the defense counsel’s summation.” Id. at 43. The
Second Circuit explained that it was the combination of those
factors in the context of the case at hand, not any one of them
alone, that underlay the conclusion that Peterson’s Sixth
Amendment rights were not breached. See id. at 44. Similarly,
Ivester concluded that the closure at issue “was so trivial as
to not implicate [the defendant’s] Sixth Amendment rights” in
large part because the closure—which lasted only a few
moments, as the district judge questioned the jurors to determine whether they felt safe—was “an administrative jury
problem” that infected neither the witnesses’ testimony nor
counsel’s arguments to the jurors. See 316 F.3d at 960.
[4] In this case, although the hearing from which Rivera’s
family members were excluded was not particularly lengthy,
the government does not identify any factors other than brevity to support the triviality characterization. Indeed, several
considerations support the opposite conclusion that the closure at issue here was especially significant. For example,
Braun observed that, typically, habeas relief is granted or a
new trial required only for “substantial exclusions,” and identified two specific categories of substantial closure capable of
justifying such relief: Where “the courtroom was totally
closed to the general public at some critical juncture in the
proceedings; or, in other cases, [where] the court excluded a
friend or relative of the defendant.” 227 F.3d at 917 & n.6
(collecting cases). The closure at issue here falls under both
categories.
First, the district court excluded Rivera’s family members
from the August 27 hearing. Our sister circuits have interpreted the Supreme Court’s statement in Oliver—that the
defendant is entitled to have “at the very least . . . his friends,
relatives and counsel present” during criminal proceedings,
Oliver, 333 U.S. at 272 (emphasis added)—as expressing

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“special concern for assuring the attendance of family members of the accused.” Vidal, 31 F.3d at 69; see also Guzman
v. Scully, 80 F.3d 772, 776 (2d Cir. 1996) (“The exclusion of
courtroom observers, especially a defendant’s family members and friends, even from part of a criminal trial, is not a
step to be taken lightly.”) (emphasis added). The exclusion of
Rivera’s relatives thus implicates Sixth Amendment values
more directly than the exclusion of the general public.
Second, during the hearing, matters of vital importance
were discussed and decided: The court computed Rivera’s
Sentencing Guideline range, heard closing statements from
defense counsel and a personal statement from Rivera,
weighed the § 3553(a) factors, and imposed its sentence. The
Supreme Court has long recognized “the critical nature of
sentencing in a criminal case,” Mempa v. Rhay, 389 U.S. 128,
134 (1967), and the August 27 hearing in this case is no
exception. Given the vital importance of the material discussed at the hearing, and the deliberate exclusion of Rivera’s
family members from that proceeding, the closure at issue in
this case is nothing like those at issue in Ivester and Peterson.
[5] We conclude that the district court’s exclusion of Rivera’s family members from the August 27 hearing implicated
important values served by the Sixth Amendment. Most
saliently, the district judge imposed Rivera’s sentence free
from the watchful eyes of Rivera’s family members, and thus
without the most significant reminders of the importance of
the court’s sentencing function and the gravity of its actions.
The closure was therefore not trivial.
3.

Rivera did not forfeit his right to a public trial.

The government asserts that Rivera forfeited his right to a
public trial by failing to object to the district court’s closure
order. Although the right to a public trial provides benefits to
society as a whole, see Oliver, 333 U.S. at 270 n.24, a defendant may nevertheless forfeit the right, either by affirmatively

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waiving it or by failing to assert it in a timely fashion. See
Levine v. United States, 362 U.S. 610, 619 (1960); see also
Peretz v. United States, 501 U.S. 923, 936 (1991) (citing
Levine); Freytag v. Comm’r, 501 U.S. 868, 895-96 & n.2
(1991) (Scalia, J., concurring in part and concurring in the
judgment) (citing Levine).
In Levine, a grand jury proceeding gave rise to a criminal
contempt proceeding when Levine, a witness before a federal
grand jury, persisted in refusing to answer the questions put
to him. 362 U.S. at 611-12. After Levine refused to answer
the questions, government counsel, Levine, and Levine’s
counsel went to the district court judge for his assistance in
determining how to proceed. Id. at 612. The district judge
directed Levine to appear again before the grand jury and
answer the questions put to him. Id. When Levine persisted in
his refusal to answer the grand jury’s questions, the judge
cleared the courtroom of everyone except the grand jury, government counsel, Levine, and Levine’s counsel, and proceeded to question Levine himself. Id. at 612-13. When
Levine still refused to answer the questions, the district judge
asked why Levine should not be found in contempt “committed in the physical presence of the Judge.” Id. (internal quotation marks omitted). After Levine’s counsel gave various
answers, none of which referenced the exclusion of the public
from the criminal contempt proceedings, Levine was
adjudged in contempt and sentenced to one year’s imprisonment. Id. at 613-14.
The Supreme Court held that Levine “had no right to have
the general public present while the grand jury’s questions
were being read,” but that the traditional need for secrecy in
grand jury proceedings evaporated when Levine was questioned by the district judge. Id. at 618. At that point, the Court
noted, Levine could have asked that “the courtroom be
opened so that the act of contempt, that is, his definitive
refusal to comply with the court’s direction to answer the previously propounded questions, and the consequent adjudica-

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tion and sentence might occur in public.” Id. Because neither
Levine nor his counsel made a contemporaneous request to
open the proceedings, however, the Court concluded that any
public trial challenge was forfeited. See id. at 619-20. In other
words, the Court held, “the continuing exclusion of the public” in that case was “not to be deemed contrary” to the right
of public trial “without a request having been made to the trial
judge to open the courtroom at the final stage of the proceeding, thereby giving notice of the claim” and affording the district judge an opportunity to address it. Id. at 619.6
The government argues that Rivera similarly forfeited his
public trial right by not objecting when the district court
expressed its intention to reconvene the proceeding three days
later without family members present. But defense counsel
had already done precisely what Levine requires. At the
beginning of the August 24 hearing, when the district judge
first expressed his intention to seal the proceedings, defense
counsel informed the court that Rivera wished to have his
family present.
The exchange proceeded as follows:
District Court: First, both the government and
defense have requested that their position papers be
filed under seal, and indeed they will be. This transcript will also be sealed and as will the courtroom.
Defense Counsel: Well, these are family members so
we are asking that they be present, but if I could just
talk to the government for one second, your Honor.
6

The Sixth Amendment protects “all criminal prosecutions,” but not
contempt proceedings. See id. at 616 (citing Ex parte Terry, 128 U.S. 289,
306-10 (1888)). Thus, technically speaking, Levine’s claim derived from
the Fifth Amendment’s Due Process Clause. The Court’s due process
analysis, however, expressly relied on the Sixth Amendment’s public trial
principles, see id., and the Court has subsequently cited Levine in reference to the public trial right, see, e.g., Peretz, 501 U.S. at 936.

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District Court: Sure.
(Counsel confer)
Defense Counsel: Your honor, there may be particular matters that we may ask to approach sidebar on.
District Court: That you don’t even want the family
to hear?
Defense Counsel: No, your honor.
District Court: I think it should be closed, but do
what you wish.
Defense Counsel: No. I understand what the Court is
saying, but I think Mr. Rivera—I talked about this a
lot with Mr. Rivera whether the courtroom should be
completely closed or have his family present. And he
wants his family here in the courtroom for support,
but he did indicate to me and there are certain matters that we want to discuss at sidebar.
District Court: Right.
Defense Counsel: If that is okay with the Court.
District Court: It is. Let’s try to avoid it anyway.
(Emphasis added).
[6] Although defense counsel did not reiterate these concerns when the district court subsequently announced its decision to exclude Rivera’s family members, he was not required
to do so. Under Rule 51 of the Federal Rules of Criminal Procedure,7 we have held that a defendant who has already made a
7

Rule 51 of the Federal Rules of Criminal Procedure covers the means
by which a party may preserve a claim of error for appellate review.

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request to the district court, and argued in favor of it, does not
need to take an exception to the court’s decision after it has
been rendered. United States v. Mancinas-Flores, 588 F.3d
677, 686 (9th Cir. 2009); see also United States v. Bartlett,
567 F.3d 901, 910 (7th Cir. 2009) (“[W]hen an issue is argued
before the judicial ruling, counsel need not take exception
once the court’s decision has been announced.”).8 That logic
applies here: Having already expressed Rivera’s desire for his
family to be present and explained the reasons for that
request, defense counsel did not have to ask the court to
reconsider its subsequent decision to close the proceedings,
nor was defense counsel required to point out possible errors
in the decision after it had already been made. See MancinasFlores, 588 F.3d at 680, 686.
The government alternatively contends that defense counsel
affirmatively waived Rivera’s public trial right when he stated
that he would not have had Rivera’s child present at the proceedings “[i]f [he] had known the Court’s feelings and views
on this matter.”9 Defense counsel’s statements, however, must
be considered in light of the context in which they were made.
[7] District courts have wide discretion to determine an
appropriate sentence, and their decisions enjoy considerable
deference on appeal. See, e.g., United States v. Fitch, 659
F.3d 788, 796 (9th Cir. 2011); United States v. Carty, 520
F.3d 984, 990-94 (9th Cir. 2008) (en banc). Indeed, where the
defendant has executed an appeal waiver as part of his plea
8

“[A] party does not ‘object’ to a court’s ruling; rather, when a party
tries to inform the court that a ruling it has already made is erroneous, it
is taking an ‘exception’ to the ruling.” Mancinas-Flores, 588 F.3d at 686
(citing Bartlett, 567 F.3d at 910).
9
Several of our sister circuits have held that defense counsel can forfeit
the public trial right on the defendant’s behalf. See, e.g., United States v.
Hitt, 473 F.3d 146, 155 (5th Cir. 2006); Martineau v. Perrin, 601 F.2d
1196, 1200 (1st Cir. 1979). We need not reach this issue, however. Even
if defense counsel could forfeit Rivera’s right to a public trial, he did not
do so here.

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agreement, as Rivera had, the district court’s sentencing decisions are often absolutely final. It is therefore to be expected
that defense counsel pleading for a lenient sentence will be
compliant with the district court’s directives, whether they be
direct or implicit, for, at sentencing, the district judge alone
holds the defendant’s fate in the balance.
In this case, the district judge pointedly criticized, at length,
the presence of Rivera’s family members, and especially
Rivera’s seven-year-old son, as “shameful” and manipulative,
and stated that he had earlier communicated to the relevant
bar his policy precluding the attendance of young children at
sentencing. Defense counsel responded: “Well, your Honor, I
appreciate what the Court is saying. If I had known the
Court’s feelings and view on the matter, we wouldn’t have
had the young child here. I didn’t know that, your Honor.”
Defense counsel thus explained only that he would not have
deliberately disobeyed the district court’s previously
announced policy had he known of it. He did not in any way
indicate that he affirmatively consented to the exclusion of
Rivera’s child.10
Finally, the government maintains that Rivera forfeited his
right to a public trial because “he never sought a public sentencing,” given that he filed his sentencing papers under seal,
sought to exclude the general public, and asked to bring certain matters up at sidebar. This third forfeiture argument is no
more persuasive than the first two.
To begin, nothing in the record supports the government’s
contention that Rivera affirmatively “sought to exclude the
public.” At the beginning of the August 24 hearing, the dis10

Moreover, even if defense counsel had consented to the child’s exclusion, the district court, as previously discussed, excluded all of Rivera’s
relatives, not just his child. Neither Rivera nor his attorney gave any indication that they affirmatively consented to the district court’s exclusion of
Rivera’s entire family from the sentencing proceedings.

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trict judge indicated that “both the government and defense
have requested that their position papers be filed under seal.”
The district judge then stated that the sentencing transcript
“will also be sealed and as [sic] will the courtroom.”
Although Rivera did file his sentencing papers under seal and
ask to bring certain matters up at sidebar during the sentencing hearing, he did not, as far as the record shows, affirmatively seek to exclude the public from the proceedings.
[8] Second, a defendant’s consent to, or pursuit of, a partially closed proceeding does not automatically forfeit in its
entirety the right to a public trial. As discussed above, the
Sixth Amendment public-trial guarantee was “created for the
benefit of the defendant.” Presley, 130 S. Ct. at 724 (quoting
Gannett Co., 443 U.S. at 380) (internal quotation marks omitted). Because the defendant is the intended beneficiary of the
right, he is not precluded from exercising the right selectively,
as by consenting to, or even seeking, the exclusion of the general public from proceedings while reserving the right to have
certain individuals (e.g., friends, family, and counsel) present.
Moreover, the purposes served by the forfeiture doctrine—
notifying the trial court of the defendant’s Sixth Amendment
public trial claim and providing the court an opportunity to
address it, see Levine, 362 U.S. at 619—would not be
advanced by forcing the defendant into an all-or-nothing
choice between a totally public or totally private proceeding.
In light of these considerations, we conclude that Rivera did
not forfeit his Sixth Amendment right to a public trial.
4.

The closure violated Rivera’s right to a public trial.

[9] Waller laid out the framework for determining whether
a closure of proceedings violates a defendant’s Sixth Amendment public trial right: “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

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court can determine whether the closure order was properly
entered.” Waller, 467 U.S. at 45 (quoting Press-Enterprise
Co. v. Superior Court, 464 U.S. 501, 510 (1984)) (internal
quotation marks omitted).
In Sherlock, we held that the Waller framework applies
only to total closures—i.e., where “all persons other than witnesses, court personnel, the parties and their lawyers [a]re
excluded for the duration of the hearing,” Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir. 1996). Sherlock, 962 F.2d at
1357. A less rigorous standard applies where a partial closure
is at issue: A partial closure is justified where “the trial judge
had a substantial reason for the closure,” and where “the closure was narrowly tailored to exclude spectators only to the
extent necessary to satisfy the purpose for which it was
ordered.” Id. Additionally, there are three procedural requirements that must be satisfied before a trial court may order a
partial closure: (1) the court must hold a hearing on the closure motion;11 (2) the court must make factual findings to support the closure; and (3) the court must consider reasonable
alternatives to closing the courtroom. Id. at 1358-59.
We need not decide whether the closure at issue here was
total or partial, because, substantively, it violated Rivera’s
public trial right under either standard. A number of important
interests have been recognized as justifying closure: e.g., protecting a witnesses’s dignity in a rape trial; protecting witnesses from fear of testifying; and preventing the courtroom
from descending into chaos. See id. at 1356 (collecting cases).
[10] A district judge’s displeasure over the “manipulative”
presence of family members at sentencing does not rise to the
level of a substantial interest. The district court here did not
suggest that the family members present, including the child
11

Where “First Amendment concerns are not raised, the hearing requirement is met when the court gives the defendant the right to be heard.” Id.

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or children, were in any way disruptive. Instead, the only
interest identified for closing the courtroom was eliminating
“manipulation.” That asserted interest is directly at odds with
one of the purposes of the public trial protection—namely, to
“remind the prosecutor and judge of their responsibility to the
accused and the importance of their functions,” Waters, 627
F.3d at 360.
As previously discussed, the presence of family at sentencing is a way of bringing home to the participants at the hearing, including the judge, that the impact of the sentence will
be not only on the defendant but also on members of his family. Also, that family members were willing to come helps to
confirm the defendant’s community connections and support,
which could have an impact on the district court’s determination of his likely success in avoiding criminal behavior in the
future. That the district court characterized these implicit messages as “manipulative” was a way of saying that it preferred
to dispense with the important reminder of judicial responsibility to the community in the exercise of its functions, a
reminder at the core of the public trial right.
[11] As the “manipulation” interest asserted is inconsistent
with the values underlying the Sixth Amendment public trial
right, it cannot justify either a total or partial closure. We
therefore conclude that the district court’s closure of the sentencing proceedings violated Rivera’s Sixth Amendment right
to a public trial.
5. Rivera is entitled to a new sentencing proceeding,
which his family members should be allowed to attend.
[12] Because a criminal defendant need not “prove specific
prejudice in order to obtain relief for a violation of the publictrial guarantee,” Waller, 467 U.S. at 49, we turn directly to the
remedial question. The remedy for a Sixth Amendment violation “should be appropriate to the violation.” Id. at 50. In this
case, the appropriate remedy is clear: On remand, the district

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court should protect Rivera’s Sixth Amendment rights by
allowing his family members to attend the new sentencing
proceedings. See id. at 50 (remanding for “a new, public suppression hearing”).
“Although we generally remand for resentencing to the
original district judge, we remand to a different judge if there
are unusual circumstances.” United States v. Quach, 302 F.3d
1096, 1103 (9th Cir. 2002) (citation and internal quotation
marks omitted). To determine whether reassignment is appropriate, we consider:
(1) whether the original judge would reasonably be
expected upon remand to have substantial difficulty
in putting out of his or her mind previously
expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2)
whether reassignment is advisable to preserve the
appearance of justice, and (3) whether reassignment
would entail waste and duplication out of proportion
to any gain in preserving appearance of fairness.
Id. (citation omitted). “The first two of these factors are of
equal importance, and a finding of one of them would support
a remand to a different judge.” Id. (citation and internal quotation marks omitted).
[13] We have no reason to question the district judge’s
ability to proceed impartially. Nonetheless, we conclude that
reassignment is advisable to preserve the appearance of justice. The district judge in this case expressed strong views
about Rivera’s alleged “manipulative” use of his family members during proceedings. Indeed, the judge continued the
August 24 proceedings precisely because he was concerned
that he might take his frustrations out on Rivera. In view of
the district judge’s comments, the interest in preserving the
appearance of justice outweighs any duplication of effort. See
United States v. Reyes, 313 F.3d 1152, 1160 (9th Cir. 2002).

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We accordingly direct that the case be reassigned to a different judge for re-sentencing.12
III
For the foregoing reasons, we VACATE Rivera’s sentence
and REMAND for new sentencing proceedings in accordance
with this opinion.

12

Rivera also contends that the district court sentenced him on the basis
of materially false facts, in violation of the Fifth Amendment’s Due Process Clause. To succeed on a due process claim involving a sentencing
court’s consideration of certain evidence, a defendant “must establish the
challenged information is (1) false or unreliable, and (2) demonstrably
made the basis for the sentence.” United States v. Vanderwerfhorst, 576
F.3d 929, 935-36 (9th Cir. 2009) (citation and internal quotation marks
omitted). Because Rivera has not established that his sentence was demonstrably based on any false or unreliable information, his due process challenge fails.