63 F.

3d 121

UNITED STATES of America, Appellee,

v.
John DOE, Defendant-Appellant,
James Roe, Defendant.
No. 95-8010.

United States Court of Appeals,

Second Circuit.
Aug. 9, 1995.

Before: VAN GRAAFEILAND, WALKER, and CABRANES, Circuit

Judges.
WALKER, Circuit Judge:

Defendant John Doe ("Doe") appeals from a judgment of conviction following

a jury trial in the Southern District of New York. Doe was convicted on all
counts of the indictment and was sentenced to a lengthy prison term.

On appeal, Doe attacks both his conviction and sentence. First, he contends that
the district court erred in failing to determine, after an evidentiary hearing,
whether the government breached its cooperation agreement with him and
whether he was thereby entitled to dismissal of the indictment. Second, he
argues that the district court misapplied the law in denying his pretrial motions
for closure of preliminary proceedings and the trial. Doe sought closure out of
fear of retribution from his criminal associates for his work as a confidential
government informant. Doe contends that the district court's decision impaired
his constitutional right to defend against the charges since he could not raise his
public authority defense without jeopardizing his safety and that of his family.
Third, Doe argues that, if the conviction is upheld, the district court erred in not
adjusting his offense level downward for acceptance of responsibility.

BACKGROUND
3

A full opinion in this case was filed under seal. Because of the defendant's

interest in confidentiality, any references which would serve to identify the

defendant have been expunged from this published version of the opinion. Our
description of the facts is therefore necessarily terse.
4

Defendant John Doe was arrested after he participated in a controlled criminal

transaction under government surveillance. Before trial, Doe moved to close
pretrial hearings and seal motion papers, and subsequently moved to close the
trial. Doe, who had infiltrated an international criminal syndicate as a
government informant, alleged that he feared retaliation against himself and his
family if his informant activities were revealed. After the district court decided
to hold open pretrial hearings, Doe withdrew his motion to suppress statements
given to federal agents. At trial, Doe rested without presenting any evidence
and was convicted.

Doe detailed his activities as an informant in a sealed affidavit that he

submitted to support his pretrial motion to seal papers and close pretrial
hearings. According to the affidavit, Doe voluntarily contacted federal law
enforcement authorities about a year before his arrest. He spoke to Agent David
Smith and volunteered that he had information about an organization that
laundered millions of dollars per week in criminal proceeds. Doe, an illegal
alien, told Agent Smith that he was coming forward because he needed help
with immigration problems and also hoped to become a federal agent. Agent
Smith convinced him instead to become a confidential informant. They agreed
that Doe would take part in the money-laundering activities of the organization
and would be allowed to keep any money the organization paid him. Agent
Smith assured Doe that doing so would not be a crime since he would be
working for the government.

Over the next few months Doe contacted Agent Smith or another federal agent
every day or two with information on the syndicate. He provided the agents
with names, telephone and beeper numbers, and photographs of the members of
the organization. Doe and Agent Smith also taped conversations Doe had with
some of those persons. At some point during that period, Doe signed what he
understood, through his interpreter, to be a cooperation agreement with the
agents. In return, he received a stipend and a promise of payment of one to three
percent of any money seized from the laundering operation.

Later that year, Doe told Agent Smith that he had information about other
criminal activities of the organization. The agent urged him to collect whatever
information he could but warned him to avoid as much as possible participating
in the other criminal activities. According to the affidavit, Agent Smith
nonetheless agreed that Doe would have to "do some work" so that he could

gather good information.

8

Doe informed Agent Smith every time his "bosses" in the organization ordered
him to participate in a criminal transaction. Unable to decline their invitations
without arousing suspicion, Doe participated in one such transaction, but turned
the contraband over to Agent Smith. Doe fabricated a story about the fate of the
contraband, and was interrogated at length by his suspicious bosses. The bosses
came to believe that the persons they sent to retrieve the contraband had stolen
it. In all, more than ten persons were killed in retribution, and the bosses were
hunting for yet another man suspected of involvement in the caper. Doe told
Agent Smith about all of these killings.

Agent Smith then instructed Doe to, in Doe's words, "work only with money
and limit [his other] work to the collection of information." Doe requested that
his bosses assign him only money-laundering tasks, but his bosses told him that
he would have to do at least some more dangerous and less desirable
assignments.

10

At one point, Doe informed Agent Smith about a killing in another country.
Two law-enforcement agents from that country then came to New York and
questioned Doe about what he knew. On two other occasions, Doe alerted
Agent Smith to imminent criminal transactions.

11

Some time later Doe participated in the transaction that formed the basis of his
conviction. According to his affidavit, Doe paged Agent Smith, inserting the
code "911" to signal him to respond immediately since Doe was in the middle
of criminal activity. Shortly thereafter, the federal agents arrived and arrested
Doe. When he was alone with the agents, Doe advised them that he was an
informant. One agent asked him whether he was the person who worked with
Agent Smith. Doe replied that he would speak only to Agent Smith. When one
agent identified himself as Agent Smith's supervisor, Doe told him that he had
paged Agent Smith about the transaction before the agents arrived. The agents
contacted Agent Smith, who confirmed Doe's earlier communication.

12

Following his arrest and indictment, Doe, his attorneys, and his family abroad
received repeated requests from unidentified persons for copies of motion
papers, tapes, and discovery items received from the government. To avoid
disclosing his informant activities, Doe instructed his attorneys to draft
sanitized versions of the motions with all mention of his informant activities
expunged so that he could send them to his family for distribution.

13

In a sealed opinion and order the district court, while noting that Doe's
"perceived danger to his family causes concern," denied the motion to seal the
papers and close pretrial hearings. The district court apparently did not request a
response to Doe's affidavit from the government and did not hold a hearing on
any fact issues raised in the affidavit. In denying the motion, the district court
reasoned that Doe's past cooperation would "inevitably be made public at his
trial," which would itself be public given the government's refusal to consent to
a trial in camera and without a jury. In the district court's view, disclosure of
Doe's status as a confidential informant "sooner than if it [were] revealed for
the first time at trial" did "not constitute 'an overriding interest that is likely to
be prejudiced.' " While denying Doe's motion, the district court did order the
following safeguards:

14

(1) [Codefendant] and his lawyer are directed not to communicate with anyone
concerning the contents of the [Doe] motion papers without first informing the
Court of the proposed communication.

15

(2) The Government is directed immediately to inform the Bureau of Prisons

and the United States Marshal Service of the possible danger to [Doe], and that
[Doe] be kept safe and segregated from the general prison population while in
custody.

16

(3) [Doe], under Government monitoring and in the presence of his lawyer,
may call his family ..., at Government expense, to advise them of the possible
danger to themselves, so that they may take appropriate steps to safeguard
themselves.

17

At a scheduling conference held on the same day, Doe informed the district
court that, in light of its decision, he would withdraw his motion for severance
and forego his public authority defense rather than risk exposure of his
informant status. At a conference held five days later, Doe sought a stay of the
hearings so that he could file an interlocutory appeal of the district court's order
to minimize the possibility that he or his family would be "murdered" in
retribution for his informant activities.1 The district court rebuked Doe's
counsel for intimating on the record that specific death threats had been uttered
indicating a likelihood of murder. The district court noted that it had "directed
specifically that the government take extreme and very careful steps to insure
[Doe's] protection," and that the federal prison system was adept at keeping
cooperating witnesses secure. The district judge added, "I indicated in my
decision, which is sealed, that I to a degree shared your concern [about safety],"
and "I don't minimize ... [Doe's] welfare, and I certainly don't minimize his

family's welfare." Nonetheless, the district judge concluded, "I set forth the
only appropriate steps available to me in accord with a public trial that I was
aware of that could be taken."
18

After Doe's codefendant pled guilty, thereby removing the risk that the
codefendant would divulge Doe's testimony to the syndicate, Doe decided that
he could safely raise his public authority defense if the trial were closed. Doe
then moved that the trial be closed for the presentation of that defense and the
defense summation. The government objected that "[i]n effect, the entire trial
would have to be sealed," since several of its witnesses would need to testify
concerning that defense, and the government intended to address the public
authority defense, if put forth, both during its opening statement and
summation. The district court agreed, stating that it was "not aware of any
authority given the present posture of this case requiring that the courtroom be
closed or that the record be sealed." Moreover, it noted that secret trials are
contrary to the American tradition and injurious to the judicial process.
Accordingly, the district court denied the motion to close the trial and seal the
record. The trial proceeded the next day, and concluded in the government's
favor without the defense's presenting any evidence.

DISCUSSION
I. Dismissal of the Indictment
19

We can quickly dispose of Doe's claim that he was entitled to a pretrial hearing
as to whether the indictment should be dismissed on the grounds that the
government breached its cooperation agreement with him.

20

A defendant is only entitled to raise in pretrial motions a "defense, objection, or

request which is capable of determination without the trial of the general
issue." Fed.R.Crim.P. 12(b). The general issue in a criminal trial is, of course,
whether the defendant is guilty of the offense charged. See United States v.
Yater, 756 F.2d 1058, 1062 (5th Cir.), cert. denied, 474 U.S. 901, 106 S.Ct.
225, 88 L.Ed.2d 226 (1985). The motion based upon the alleged breach of a
cooperation agreement was properly dismissed since it was, in essence, an
assertion that as a confidential informant Doe acted with public authority in
participating in criminal transactions. A claim of public authority is an
affirmative defense that is tried to the jury, United States v. Burrows, 36 F.3d
875, 881 (9th Cir.1994) (citing United States v. Baptista-Rodriguez, 17 F.3d
1354, 1368 n. 18 (11th Cir.1994)), provided the accused has met the procedural
requirements for raising that defense at trial. See Fed.R.Crim.P. 12.3. A
defendant is not entitled to raise in a pretrial motion the question whether the

government breached an agreement with him if the agreement provides a

defense to liability for the crimes charged in the indictment; resolution of that
question requires trial of the general issue and is not properly decided in a
pretrial motion. Cf. United States v. Knox, 396 U.S. 77, 83 & n. 7, 90 S.Ct.
363, 367 & n. 7, 24 L.Ed.2d 275 (1969) (noting that defense sounding in duress
requires trial of the general issue).
21

The cases cited by Doe, in which courts have considered whether the
government's alleged breach of a cooperation agreement warranted dismissal of
the indictment, are inapposite; they all involved breaches of plea bargains and
agreements granting the defendant immunity for past criminal conduct. See
United States v. Alessi, 536 F.2d 978, 979 (2d Cir.1976), overruled on other
grounds, United States v. Macchia, 41 F.3d 35, 39 (2d Cir.1994); see also
United States v. Johnson, 861 F.2d 510, 512-13 (8th Cir.1988); United States v.
Gianakakis, 671 F.Supp. 64, 69-72 (D.Me.1987); United States v. Paiva, 294
F.Supp. 742, 748 (D.D.C.1969). The issue of breach in those cases, unlike this
one, did not pertain to the defendant's guilt and could be determined without
trial of the general issue. Cf. Fed.R.Crim.P. 12, 1944 Advisory Committee Note
(discussing objections and defenses that may or must be raised pretrial).
Therefore, the district court correctly denied Doe's motion to dismiss the
indictment.

II. Closure of Pretrial Hearings and Trial

22

In reviewing the district court's denial of Doe's closure motions, we examine

the district court's findings of fact for clear error, its legal determinations de
novo, and its ultimate decision to deny or grant a motion for closure for abuse
of discretion, United States v. Lucas, 932 F.2d 1210, 1217 (8th Cir.1991), cert.
denied, 502 U.S. 869, 929, 949, 991, 1100, 112 S.Ct. 199, 349, 399, 609, 1186,
116 L.Ed.2d 159, 288, 348, 632, 117 L.Ed.2d 429 (1991-92). However,
because the district court's discretion is significantly circumscribed by
constitutional principles set forth by the Supreme Court, this court's review "is
more rigorous than would be the case in other situations in which abuse-ofdiscretion review is conducted." United States v. Local 1804-1, Int'l
Longshoremen's Ass'n, 44 F.3d 1091, 1096 (2d Cir.1995) (describing standard
for civil contempt proceedings); Morgan v. Foretich, 528 A.2d 425, 427 n. 3
(D.C.1987) (describing the standard for reviewing closure motions).
A. Legal Standard

23

The tradition of the public trial has roots deep in English history, originating in
the Anglo-Saxon moots, see Richmond Newspapers, Inc. v. Virginia, 448 U.S.

555, 565, 100 S.Ct. 2814, 2821, 65 L.Ed.2d 973 (1980) (plurality opinion);
Gannett Co. v. DePasquale, 443 U.S. 368, 419, 99 S.Ct. 2898, 2925, 61
L.Ed.2d 608 (1979) (Blackmun, J., concurring in part and dissenting in part),
and continuing unbroken in this nation from the colonial period to the present
day, see Richmond Newspapers, 448 U.S. at 567-69, 100 S.Ct. at 2822-23.
Celebrated by Hale, Blackstone, and Bentham, openness has come to be seen as
"an indispensable attribute of an Anglo-American trial," which assures the
accused a fair trial and "discourage[s] perjury, the misconduct of participants,
and decisions based on secret bias or partiality." Id. at 569, 100 S.Ct. at 2823.
24

Beyond enhancing the fairness of the trial itself, openness has broader value in
the general administration of justice. "[T]he sure knowledge that anyone is free
to attend gives assurance that established procedures are being followed and
that deviations will become known," Press-Enterprise Co. v. Superior Court,
464 U.S. 501, 508, 104 S.Ct. 819, 823, 78 L.Ed.2d 629 (1984) ("PressEnterprise I ") (emphasis omitted), thereby contributing to the public's
perception of fairness in the criminal justice system and "heightening public
respect for the judicial process." Globe Newspaper Co. v. Superior Court, 457
U.S. 596, 606, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982). Free access of the
press and public to criminal proceedings informs the populace of the workings
of government and fosters more robust democratic debate. Id. at 604-05, 102
S.Ct. at 2618-19. Finally, open trials serve a therapeutic function for the
community, providing an outlet for public outrage at crimes and "vindicat[ing]
the concerns of the victims and the community in knowing that offenders are
being brought to account for their criminal conduct by jurors fairly and openly
selected." Press-Enterprise I, 464 U.S. at 509, 104 S.Ct. at 823.

25

The open trial, however, has at times proven to be a two-edged sword for
defendants, many of whom have felt the cut of prejudicial publicity. The
conflict between public access to criminal proceedings and a defendant's right
to a fair trial is "as old as the Republic." Nebraska Press Ass'n v. Stuart, 427
U.S. 539, 547, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683 (1976) (discussing problem
of ensuring an unbiased jury). In Gannett, 443 U.S. at 379-81, 99 S.Ct. at 290506, the Supreme Court, striking the balance in favor of the criminal defendant,
determined that the Sixth Amendment guarantee of a public trial was personal
to the accused and did not grant the press and general public an independent
right of access, at least to pretrial suppression hearings.

26

In later cases, however, the Court reached the question reserved in Gannett, id.
at 392-93, 99 S.Ct. at 2911-12, whether the First Amendment (or, via
incorporation, the Fourteenth Amendment) is an independent source of a right
to access to criminal proceedings. The Court has clarified that the press and

public have a "qualified right of access" under the First and Fourteenth
Amendments to at least some criminal proceedings. Waller v. Georgia, 467
U.S. 39, 44-45, 104 S.Ct. 2210, 2214, 81 L.Ed.2d 31 (1984). That right was
first recognized with regard to the actual trial, see Richmond Newspapers, 448
U.S. at 580, 100 S.Ct. at 2829 (plurality opinion of Burger, C.J.), at 585, 100
S.Ct. at 2831 (Brennan, J., concurring in the judgment), at 599, 100 S.Ct. at
2839 (Stewart, J., concurring in the judgment), at 604, 100 S.Ct. at 2842
(Blackmun, J., concurring in the judgment); Globe Newspaper, 457 U.S. at 60304, 102 S.Ct. at 2618, including the selection of jurors, Press-Enterprise I, 464
U.S. at 508-510, 104 S.Ct. at 823-24, and later in regard to certain pretrial
proceedings, see Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-10, 106
S.Ct. 2735, 2740-41, 92 L.Ed.2d 1 (1986) "Press-Enterprise II") (In
determining whether a public right of access attaches to a proceeding, courts
consider whether the proceeding has historically been open and whether
"public access plays a significant positive role in the functioning of the
particular process in question.") (finding that the right attaches to preliminary
hearings under California law). See also United States v. Haller, 837 F.2d 84,
87 (2d Cir.1988) (right of access attaches to plea hearings and related
documents); In re New York Times Co., 828 F.2d 110, 116 (2d Cir.1987) ("In
re New York Times I ") (motion papers submitted for suppression hearing),
cert. denied, 485 U.S. 977, 108 S.Ct. 1272, 99 L.Ed.2d 483 (1988), opinion
after remand, 834 F.2d 1152 (2d Cir.1987) (per curiam) ("In re New York
Times II "), cert. denied, 485 U.S. 977, 108 S.Ct. 1272, 99 L.Ed.2d 483 (1988);
In re Herald Co., 734 F.2d 93, 99-101 (2d Cir.1984) (suppression hearing).
27

Because the right of access to criminal proceedings is not absolute, it "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." Waller, 467 U.S. at 45, 104 S.Ct. at 2215. Given the presumption
of openness, Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. at 824, "proceedings
cannot be closed unless specific, on the record findings are made demonstrating
that 'closure is essential to preserve higher values and is narrowly tailored to
serve that interest.' " Press-Enterprise II, 478 U.S. at 13-14, 106 S.Ct. at 274243 (quoting id.). Addressing a defendant's claim that his right to a fair trial
would be compromised if a preliminary hearing were opened to the public, the
Supreme Court in Press-Enterprise II formulated the following balancing test
for determining whether closure is appropriate:

28the interest asserted is the right of the accused to a fair trial, the preliminary
If
hearing shall be closed only if specific findings are made demonstrating that, first,
there is a substantial probability that the defendant's right to a fair trial will be
prejudiced by publicity that closure would prevent and, second, reasonable

alternatives to closure cannot adequately protect the defendant's fair trial rights.
29

478 U.S. at 14, 106 S.Ct. at 2743.

30

In In re Herald, a case decided prior to Press-Enterprise II, we announced a

substantially similar test, although its application extended to cases in which
more than a fair trial was at stake. We recognized that a person's physical
safety, among other things, could in certain instances justify a closure order.2 In
re Herald, 734 F.2d at 100. We held that closure

31
should
be invoked only upon a showing of a significant risk of prejudice to the
defendant's right to a fair trial or of danger to persons, property, or the integrity of
significant activities entitled to confidentiality, such as ongoing undercover
investigations or detection devices. Though we do not believe that closure must be
found to be the least restrictive means possible to avoid the perceived risk, the trial
judge must consider alternatives and reach a reasoned conclusion that closure is a
preferable course to follow to safeguard the interests at issue.
32

Id. (citations omitted).

33

It is worthwhile for us to restate the broader test of In re Herald, which is

applicable here, in the language used by the Supreme Court in Press-Enterprise
II. Moreover, the test should account for the recognition by the Supreme Court
and this court that, in addition to the interests noted in In re Herald, the privacy
interests of individuals may also warrant closure orders in certain
circumstances. See Globe Newspaper, 457 U.S. at 607-608, 102 S.Ct. at 262021 (physical and psychological welfare of minor victims of sex crimes); Haller,
837 F.2d at 88 (privacy interests of labor organization officers and employees
investigated but not indicted by grand jury); In re New York Times II, 834 F.2d
at 1154 (privacy interests of third parties whose conversations are intercepted
by electronic surveillance).

34

There are four steps that a district court must follow in deciding a motion for
closure. First, the district court must determine, in specific findings made on the
record, if there is a substantial probability of prejudice to a compelling interest3
of the defendant, government, or third party, see Press-Enterprise II, 478 U.S. at
9 n. 2, 13-14, 106 S.Ct. at 2741 n. 2, 2742-43, which closure would prevent, id.
at 14, 106 S.Ct. at 2743. Compelling interests may include the defendant's right
to a fair trial, In re Herald, 734 F.2d at 100; privacy interests of the defendant,
victims or other persons, Globe Newspaper, 457 U.S. at 607, 102 S.Ct. at 2620;
Haller, 837 F.2d at 88; In re New York Times II, 834 F.2d at 1154; "the

integrity of significant [government] activities entitled to confidentiality, such

as ongoing undercover investigations or detection devices," In re Herald, 734
F.2d at 100; and danger to persons or property, id.; see also United States v.
Raffoul, 826 F.2d 218, 226 (3d Cir.1987). Second, if a substantial probability of
prejudice is found, the district court must consider whether "reasonable
alternatives to closure cannot adequately protect" the compelling interest that
would be prejudiced by public access. Press-Enterprise II, 478 U.S. at 14, 106
S.Ct. at 2743. Third, if such alternatives are found wanting, the district court
should determine whether, under the circumstances of the case, the prejudice to
the compelling interest "override[s] the qualified First Amendment right of
access," id. at 9, 106 S.Ct. at 2741. Fourth, if the court finds that closure is
warranted, it should devise a closure order that, while not necessarily the least
restrictive means available to protect the endangered interest, In re Herald, 734
F.2d at 100, is narrowly tailored to that purpose, Press-Enterprise I, 464 U.S. at
510, 104 S.Ct. at 824; Globe Newspaper, 457 U.S. at 606-07, 102 S.Ct. at
2619-20.
35

Doe claims that the district court applied the wrong legal standard in
adjudicating his closure motions. In deciding Doe's pretrial closure motions, the
district court quoted the Supreme Court's holding in Waller v. Georgia, supra,
that a defendant seeking closure must " 'advance an overriding interest that is
likely to be prejudiced' " if closure is denied, and must show that the closure is
" 'no broader than necessary to protect that interest.' " See Waller, 467 U.S. at
48, 104 S.Ct. at 2216. Doe faults the district court for applying a test that the
Supreme Court invoked for determining when a closure order imposed over the
defendant's objection violates the defendant's Sixth Amendment right to a
public trial, see 467 U.S. at 40-41, 104 S.Ct. at 2212, rather than the test
applicable when the defendant waives that right and requests a closed trial.

36

The district court did not apply the wrong standard. The same test applies
whether a closure motion is made by the government over the defendant's Sixth
Amendment objection or made by the defendant over the First Amendment
objection of the government or press. Waller, 467 U.S. at 47, 104 S.Ct. at 2216
("In sum, we hold that under the Sixth Amendment any closure of a
suppression hearing over the objections of the accused must meet the tests set
out in Press-Enterprise [I] and its predecessors."). The "substantial probability"
of prejudice language in Press-Enterprise II represents a refinement of, not a
departure from, the Waller and Press-Enterprise I standards. If a defendant
objects to closure under the Sixth Amendment, that may affect the interests that
the district court must balance. Cf. Waller, 467 U.S. at 47 n. 6, 104 S.Ct. at
2216 n. 6 ("One of the reasons often advanced for closing a trial--avoiding
tainting of the jury by pretrial publicity--is largely absent when a defendant

makes an informed decision to object to the closing of the proceeding."

(citation omitted)). Nevertheless, the same standard applies whether the
defendant is seeking or objecting to closure. The district court essentially
applied the standard that we have clarified from precedent above.
37

In denying Doe's subsequent motion to close part of the trial--namely, his

testimony, the defense summation, and the jury charge--the district court did
not state what standard it applied. There is nothing in the record to indicate that
it did not apply the same standard it used in denying the pretrial motions.
Therefore, we assume that the district court applied the Waller standard in
deciding not to close the trial. The use of that standard was not erroneous,
despite our holding in Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir.1992), that
a party seeking partial closure of a proceeding need only advance a "substantial
reason" rather than an "overriding interest."

38

The closure involved in Woods was minimal. In that case, to allay a

government witness's fear of retaliation, the trial court excluded only members
of defendant's family from the courtroom and only for the duration of the
witness's testimony. Id. In reviewing that closure order, we adopted the
"substantial reason" test out of concern that the "overriding interest" standard
required under Waller to justify total closure of a proceeding was too stringent
when only partial closure of the proceeding was at issue. Id.

39

We do not read Woods to require the same showing of prejudice whenever a

party seeks an order short of total closure. The burden on the movant to show
prejudice increases the more extensive the closure sought. When limited
closure comparable to that in Woods is at issue, the prejudice asserted need
only supply a "substantial reason" for closure. When the closure sought is total
or nearly so, the district court must find the prejudice to be "overriding." The
partial closure sought by Doe was far more extensive than that in Woods. The
district court found that closure would have to extend to at least the opening
statements, the testimony of certain government witnesses and the defendant,
the summations, and the jury charge--effectively the whole of the trial. Under
these circumstances, the defendant must make a higher showing of prejudice to
justify closure than was necessary in Woods; the defendant must show that
prejudice to the compelling interest overrides the qualified First Amendment
right of access, as required under Waller and the third prong of the general
closure standard set forth above.

40

Accordingly, we hold that the district court did not apply an erroneous standard
in deciding the motions for closure of both the pretrial hearings and the trial.
We turn now to the district court's application of the law in denying Doe's

closure motions.
B. Denial of the Closure Motions
41

As stated above, we reject Doe's contention that the district court should have
applied to his closure motions a standard more lenient than the stringent one set
forth in Press-Enterprise II and Waller v. Georgia. The district court brought
the proper standard to bear on Doe's requests for closure; the question is
whether the court abused its discretion in applying these standards en route to
its denial of Doe's motions.

42

The district court did not explicitly address the question of substantial
probability of danger to Doe. Nonetheless, the record shows that the court did
advert to the possibility that Doe and his family might face retribution from the
criminal syndicate. In its written order, in response to Doe's request for closure
of pretrial hearings, the district court ordered that certain safeguards be taken to
protect Doe and his family. Further, the district judge stated to Doe that "[he] to
a degree shared [Doe's] concern" about safety, and that he did not want to
"minimize [Doe's] welfare ... [or] minimize his family's welfare." At the same
time, however, the district court noted in several places that Doe had not
alleged any direct threat, and appeared to give some weight to the absence of
any such threat.

43

The government contends that Doe's showing of risk to the safety of his family
or himself was necessarily insufficient because he did not allege that he or his
family had received direct threats and did not provide any corroborating
evidence, such as newspaper articles, that the syndicate had committed the
slayings he said had occurred. The district court, however, did not so hold, nor
do we. To be sure, where closure motions are at issue, the record must support
an inference of a substantial probability of danger, see Vidal v. Williams, 31
F.3d 67, 69 (2d Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 778, 130 L.Ed.2d
672 (1995), and the stringent "substantial probability" test must be met, see
Press-Enterprise II, 478 U.S. at 14, 106 S.Ct. at 2743 (comparing test to a less
rigorous "reasonable likelihood of substantial prejudice" standard applied under
California state law). This does not mean, however, that the production of
evidence constituting a direct threat or corroborating an affiant's allegations is a
strict condition precedent to a district court's granting of a closure motion. Cf.
Lucas, 932 F.2d at 1217 (holding that an absence of threats against an
undercover detective was relevant but not dispositive in determining whether
the detective could testify behind a screen to protect her identity).

44

Indeed, in some circumstances it might be within a district court's discretion to

44

Indeed, in some circumstances it might be within a district court's discretion to

grant closure without evidence of a direct threat or other evidence corroborating
a defendant's subjective fears. The problem of retaliatory acts against those
producing adverse testimony is especially acute in the context of criminal
organizations, such as the one in which Doe allegedly participated. Hence, a
district court in such a case might attribute the lack of a direct threat to the very
confidentiality that the defendant or witness seeks to preserve. See United
States v. De Los Santos, 810 F.2d 1326, 1334 (5th Cir.), cert. denied, 484 U.S.
978, 108 S.Ct. 490, 98 L.Ed.2d 488 (1987); United States v. Scarpelli, 713
F.Supp. 1144, 1145-46 n. 2 (N.D.Ill.1989) (closing a pretrial suppression
hearing to protect the defendant from "Godfather-style retribution"). The
district judge also might recognize that a direct threat may not always be
forthcoming. In any event, the lack of a specific evidentiary configuration need
not constrain the district court's discretion.

45

In circumstances where a conclusory or wholly implausible allegation of danger

is presented, a district court may be justified in denying a closure motion
without making any explicit findings of fact. Moreover, even when the affidavit
is not implausible on its face, a district court has broad discretion as to how it
determines whether the movant has shown a substantial probability of danger.
A district court might decide the issue solely on the adequacy and credibility of
the affidavit; alternatively, it might choose to hold a hearing so as to take
contrary evidence from the government or any other party opposing the motion
and to assess the credibility of the defendant with the aid of cross-examination.
However the district court chooses to proceed, the burden of establishing a
substantial probability of danger rests squarely on the shoulders of the movant.
See United States v. Powers, 622 F.2d 317, 324-25 (8th Cir.), cert. denied, 449
U.S. 837, 101 S.Ct. 112, 66 L.Ed.2d 44 (1980).

46

Here, as noted above, the district court did not, in response to Doe's motion to
close the trial, make any explicit factual findings within the framework of
Press-Enterprise II. (In response to his motion to close pretrial hearings, the
district court did not make a factual finding as to the extent of danger Doe
faced, but did find that the alternative measures ordered adequately protected
him until his informant status was disclosed at trial.) The basis for the district
court's denial of appellant's motion to close the trial is not clear from the record.
It is not even clear to us that the district court was aware of its discretion to
close the trial in order to protect Doe. See Pretrial Conference, Tr. at 8 ("I am
not aware of any authority that exists given the present posture of this case
requiring that the courtroom be closed or that the record be sealed.").
Alternatively, the district court might have believed that the alternative
measures it instituted in response to Doe's motion to close the pretrial hearing
also sufficed to protect Doe and his family from whatever danger they faced

during trial and in the event of an acquittal.

47

In any event, we think that Doe's affidavit is, on its face, not so incredible as to
be the basis for summary denial of Doe's closure motion. Indeed, if the
affidavit were credited by the district court and not rebutted by the government,
the district court may deem it substantial enough to justify a determination that
Doe faced a "substantial probability" of danger. On the limited record before
us, however, we are reluctant to displace the district court as finder of fact by
deciding whether Doe has established a substantial probability of danger.
Accordingly, we must remand to the district court for a determination of this
factual issue.

48

If a district court finds that there is a substantial probability of prejudice to a

compelling interest of a defendant seeking closure, prior to ordering closure of
the trial the court is required to consider reasonable alternatives to closure.
Press-Enterprise II, 478 U.S. at 14, 106 S.Ct. at 2743. Since, as noted, we are
unable definitively to ascertain the district court's views on the substantial
probability question, we do not know whether the court thought that it had to
address the issue of reasonable alternatives with respect to the trial. We cannot
say for sure whether the district court contemplated that the protective
measures it ordered in response to appellant's motion to close the pretrial
hearing--the order to keep Doe safe and segregated in prison, and the
permission to Doe to make one telephone call to his family abroad at
government expense to alert them to any potential dangers--would also be
sufficient for trial.

49

Should the district court reach the issue of reasonable alternatives to closure, it
may well find that the risks faced by Doe in the trial context would be far
greater than the risks corresponding to the pretrial hearing. For example, while
the district court's order that Doe be kept safe and segregated while in prison
might fully have protected Doe during the pretrial hearings, it would not protect
Doe in the event he is acquitted following trial. Thus, if the district court does
address reasonable alternatives, it will have an opportunity to consider the full
spectrum of risks Doe might face--including possible post-acquittal risks. With
those risks in mind, the district court can decide whether measures short of
complete closure are adequate or, in balancing the remaining prejudice to Doe
against the First Amendment right of access, whether nothing short of total
closure will suffice.

50

Because of the sparseness of the record, we remand the case to the district court
without relinquishing jurisdiction in order for the district court to make factual
findings in light of this opinion. See United States v. Tarricone, 996 F.2d 1414,

1420 (2d Cir.1993). The district court should make its findings within ninety
days of the issuance of this opinion and order. On remand, the district court has
the full panoply of options available to it. It may simply amplify the reasons for
its prior orders; it may in its discretion hold an evidentiary hearing on the
substantial-probability-of-prejudice or reasonable-alternatives issues; or it may
determine that its earlier orders denying closure were unwarranted. Should the
district court decide upon the last of these options, this opinion and order shall
operate as an automatic vacatur of Doe's conviction and the case shall be
remanded for retrial, without prejudice to any future challenge that may be
raised to any closure order on retrial or any appeal therefrom. Otherwise, we
will decide the merits of this appeal on the basis of the district court's findings
of fact.
51

Accordingly, the case is remanded and the mandate shall issue forthwith
subject to the condition that the case will be returned to the panel in ninety days
or upon the entry of findings by the district court, a copy of which will be filed
with the clerk of this court, whichever occurs first. In the event that the district
court orders a new trial the judgment is automatically vacated and the case
remanded for all purposes.

We denied a motion to stay the district court's proceedings pending resolution

of the appeal. The interlocutory appeal was later withdrawn by consent without
prejudice so that this appeal might be filed

Prior to In re Herald, we had found at least partial closure to be necessary to

prevent exposure of testimony that might provoke retaliation against witnesses
or defendants. In United States v. Arroyo-Angulo, 580 F.2d 1137, 1141-42 (2d
Cir.1978), cert. denied, 439 U.S. 913, 1005, 1131, 99 S.Ct. 285, 618, 1502, 58
L.Ed.2d 260, 681, 93 (1978-79), for example, we held that in camera
proceedings did not violate defendants' Sixth Amendment right to a public trial.
We found that closure was necessary to protect the safety of codefendants by
keeping their cooperation agreement with the government secret. See also
United States ex rel. Lloyd v. Vincent, 520 F.2d 1272, 1274-75 (2d Cir.)
(upholding closure of trial during testimony of undercover narcotics agent to
"preserve his future usefulness[ ] and safeguard[ ] his life"), cert. denied, 423
U.S. 937, 96 S.Ct. 296, 46 L.Ed.2d 269 (1975); United States ex. rel. Bruno v.
Herold, 408 F.2d 125, 127-29 (2d Cir.1969) (upholding closure of trial for part
of one day to prevent witness intimidation), cert. denied, 397 U.S. 957, 90 S.Ct.
947, 25 L.Ed.2d 141 (1970)

The Supreme Court has used an array of terms to describe the type of interest

that a party must advance in order to justify closure of a criminal proceeding.

The Court has at different times held that the interest advanced must be
"compelling," Globe Newspaper, 457 U.S. at 607, 102 S.Ct. at 2620,
"overriding," Waller, 467 U.S. at 48, 104 S.Ct. at 2216, or a "higher value[ ],"
Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. at 824, without apparently
intending substantive distinctions among the terms. We will use the term
"compelling interest" throughout this opinion for the sake of consistency