Audio-Only Public Trial and Jury Composition During COVID-19: United States v. Holder

Introduction

United States v. Holder, 10th Cir. No. 23-1021 (Apr. 22, 2025), presents a multifaceted Sixth Amendment review arising from a federal drug prosecution in western Colorado. Bruce Holder, the appellant, was convicted of leading a fentanyl distribution conspiracy that resulted in overdoses—one fatal—and of distributing counterfeit controlled substances. On appeal, Holder challenged (1) the District of Colorado’s COVID-19 safety protocols as violative of his Sixth Amendment public-trial right; (2) the racial composition of the jury wheel under the Sixth Amendment and the Jury Selection and Service Act; (3) alleged constructive amendments to his indictment via jury instructions; and (4) the sufficiency of the evidence supporting the finding that his distribution led to a death. The Tenth Circuit, in an opinion by Judge Tymkovich, affirmed on all counts.

Summary of the Judgment

The panel held that:

The pandemic protocols (masking, social distancing, limited gallery admission, audio-only public access) imposed by the district court were a justified partial courtroom closure. They were no broader than necessary, driven by the compelling interest in public health, and did not transgress Holder’s public-trial right.
Holder failed to demonstrate that black and Hispanic individuals were unreasonably underrepresented in the jury pool. Absolute and comparative disparity measures fell well below the “marked” or “gross” thresholds recognized by circuit precedent, nor was there evidence of systematic exclusion.
There was no constructive amendment of the indictment. The jury instructions, even where they framed distribution in the disjunctive (“fentanyl or counterfeit substance”), tracked Tenth Circuit patterns and did not alter any essential element of the charged offenses. Special verdict forms confirmed the charged predicates.
Sufficient evidence supported a finding that Holder’s distributed fentanyl was the but-for cause of Jon Ellington’s death. Medical testimony, coroner reports, and chain-of-distribution evidence provided a rational basis for the verdict.

Accordingly, the convictions and sentencing enhancements were affirmed.

Analysis

Precedents Cited

Waller v. Georgia, 467 U.S. 39 (1984) – Established standards for total courtroom closures under the Sixth Amendment and the requirement to consider reasonable alternatives.
United States v. Veneno, 107 F.4th 1103 (10th Cir. 2024) – Upheld COVID-era courtroom closures with audio-only public access as justified by a compelling health interest and no broader than necessary.
Presley v. Georgia, 558 U.S. 209 (2010) – Characterized exclusion of a lone observer from voir dire as a total closure.
United States v. Allen, 34 F.4th 789 (9th Cir. 2022) – Emphasized that some form of visual access is normally required, but identified audio-only trials as rare yet permissible when no less-restrictive alternatives exist.
Duren v. Missouri, 439 U.S. 357 (1979) – Set forth the three-part test for fair-cross-section claims (distinctive group, underrepresentation, systematic exclusion).
United States v. Shinault, 147 F.3d 1266 (10th Cir. 1998) – Applied Duren and detailed absolute vs. comparative disparity calculations.
United States v. Silva, 889 F.3d 704 (10th Cir. 2018) – Confirmed that an indictment phrased in the conjunctive may be proved in the disjunctive when the statutory elements allow it.
United States v. Kalu, 791 F.3d 1194 (10th Cir. 2015) – Held that non-element language changes in jury instructions do not amount to constructive amendment if essential elements remain unaltered.
United States v. Burkholder, 816 F.3d 607 (10th Cir. 2016) – Clarified that § 841(b) sentencing factors do not alter the substantive elements required for conviction.

Legal Reasoning

1. Public Trial Right under the Sixth Amendment

• The court distinguished partial from total closures: a total closure excludes all observers except court personnel, counsel, parties, and witnesses (Waller). Here, limited in-person spectators (the victim’s family) combined with an audio dial-in line meant the closure was partial.

• Under partial-closure analysis, restrictions survive if supported by a substantial reason and no reasonable alternatives exist. The COVID-19 pandemic constituted an overriding public-health interest. Social-distancing and masking requirements were “no broader than necessary,” and alternatives (e.g., open seating) would have increased health risks.

• The court relied on Veneno and the Supreme Court’s per curiam Diocese of Brooklyn v. Cuomo (592 U.S. 14, 2020) to confirm that pandemic-driven restrictions could justify partial (and even total) court closures when precautions are reasonable and narrowly tailored.

2. Impartial Jury and Fair Cross-Section Requirement

• Under Duren v. Missouri, Holder bore the burden of showing (1) that black and Hispanic residents are distinctive groups, (2) that their representation in juror pools is not fair and reasonable relative to their community proportion, and (3) that any underrepresentation stems from systematic exclusion.

• “Absolute disparity” (difference between population share and wheel share) for black voters was under 2.0%; for Hispanic voters under 3.0%. “Comparative disparity” percentages similarly fell below thresholds this circuit deemed actionable (e.g., 40–60%).

• No evidence of purposeful exclusion or bias in the process for refreshing the jury wheel (active voters, drivers, ID holders). Holder’s statistical proof—deviation measured in standard-deviation units—did not rise to the level of systematic exclusion absent “gross” disparity.

3. Constructive Amendment of the Indictment

• A constructive amendment occurs when trial presentations permit conviction on un-indicted elements or on factual predicates broader than the indictment (DeChristopher; Porter).

• Count 1 alleged a conspiracy to distribute 400+ grams of fentanyl and a counterfeit product bearing a false trademark. Jury Instruction 19 correctly paraphrased the count and then described the statutory crime in the disjunctive—permitted by Silva. A requested Instruction 21 expressly confined the jury to the single indicted conspiracy, eliminating any risk of convicting for a separate scheme.

• Count 3 charged distribution resulting in serious bodily injury, a sentencing-enhancement element under § 841(b)(1)(C), not a substantive element of conviction. The indictment and instructions both required proof of distribution; bodily harm was only relevant to sentencing. A negative special finding on bodily injury could properly result in a lower statutory penalty without invalidating the conviction.

4. Sufficiency of the Evidence for Distribution Resulting in Death

• The government must prove beyond a reasonable doubt that distribution of a controlled substance was the “but-for” cause of death (Burkholder). Proximate-cause analysis is not required for § 841(b)(1)(C).

• Witness testimony established a single local source for the distinctive blue “box M” fentanyl pills. Forensic toxicology, coroner opinions, and expert testimony overwhelmingly pointed to fentanyl as the fatal agent. The multi-step distribution chain (Holder → co-conspirator → user → victim) did not render causation too remote; Robinson actually affirmed causation in a one-intermediary scenario, and this circuit requires only a but-for nexus.

Impact

This decision will guide courts in striking the balance between public-health exigencies and constitutional access rights. Key impacts include:

Confirming that audio-only public access may satisfy the Sixth Amendment when physical space is restricted by health protocols.
Reinforcing that statistical underrepresentation of minority jurors must be substantial—well above single-digit absolute disparities—before triggering relief.
Clarifying that sentencing enhancements do not modify substantive elements and do not support constructive amendment claims.
Applying a “but-for” causation standard in drug-death cases, with tolerance for multi-link distribution chains.

Future pandemic or public-safety restrictions can be modeled on the district court’s careful, narrowly tailored approach, provided audio or other remote access is offered and any exclusion of spectators remains no broader than necessary.

Complex Concepts Simplified

Partial vs. Total Closure: A total closure bars everyone but parties, counsel, witnesses, and court staff. A partial closure still admits some public or family members but may limit total attendance.
Absolute vs. Comparative Disparity: Absolute disparity is the straight difference between a group’s population share and its juror-wheel share. Comparative disparity divides that difference by the population share, showing the percentage of the group “missing” from the wheel.
Constructive Amendment: An impermissible change to the crime charged, usually by expanding or altering essential elements through argument or jury instructions.
But-For Causation: A simple “but for” test—if the victim would not have died without the defendant’s distributed drug, causation is satisfied. No need to prove proximate causation or foreseeability under § 841(b).

Conclusion

United States v. Holder stands as a leading Tenth Circuit decision endorsing pandemic-era trial modifications that preserve the essence of the public-trial guarantee. It reaffirms that statistical juror disparities must be pronounced to merit relief and that indictment language framed in the conjunctive may lawfully be proved in the disjunctive when aligned with statutory elements. Finally, it cements the “but-for” causation standard for drug-death enhancements. Taken together, these holdings will shape the contours of criminal procedure—especially in public-health emergencies—and reinforce the judiciary’s role in balancing individual rights with collective safety.