Third Circuit: Unpreserved Public-Trial Violations from COVID-Era Closures and Spectator Exclusions May Not Merit Reversal Under Plain-Error Prong Four

Case: United States v. Kareem Harry (with United States v. Paul Girard), Nos. 24-2097 & 24-2148 (3d Cir. May 26, 2026)
Court: United States Court of Appeals for the Third Circuit
Author: Hardiman, Circuit Judge

I. Introduction

This precedential Third Circuit decision addresses the Sixth Amendment right to a public trial in the context of COVID-era courtroom practices. Appellants Paul Girard (leader of a violent drug-trafficking/racketeering enterprise in the U.S. Virgin Islands) and Kareem Harry (the enterprise’s armorer) were tried in March 2022 immediately after the District Court of the Virgin Islands resumed certain in-person proceedings following pandemic restrictions.

Two public-access problems framed the appeal: (1) the first day of trial was conducted with no in-court public access (spectators were required to watch from an overflow room with an audiovisual feed), and (2) even after the courtroom opened to spectators, federal marshals prevented the defendants’ mothers from entering for several days despite available seating. Neither defendant made a timely, specific Sixth Amendment objection at trial. After conviction, they sought a new trial based on alleged public-trial violations (and Harry raised additional Fifth and Sixth Amendment witness-related claims).

The Third Circuit held that public-trial errors occurred, but affirmed under plain-error review because the errors did not satisfy the demanding fourth prong—i.e., they did not “seriously affect[] the fairness, integrity or public reputation of judicial proceedings.”

II. Summary of the Opinion

  • Public-trial right: The court found two Sixth Amendment errors—an unjustified first-day closure requiring all spectators to use the overflow room, and later improper exclusion of the defendants’ mothers by marshals when seats were available.
  • Preservation and standard of review: Because the defendants did not make adequate contemporaneous objections, review was for plain error.
  • Disposition: The court affirmed despite the errors, concluding that reversal was not warranted under plain-error prong four given continued public/press access (via A/V feed and later in-person seating), lack of secrecy or impropriety, and the substantial costs of retrying a long, complex racketeering trial.
  • Harry’s witness claims: The Third Circuit rejected Harry’s compulsory-process and due-process arguments concerning witnesses who invoked the Fifth Amendment and other excluded testimony.

III. Analysis

A. Precedents Cited (and Their Role)

1. Standards of review, preservation, and plain error

  • United States v. Claxton, 766 F.3d 280 (3d Cir. 2014): cited for the bifurcated approach—clear-error review of factual findings and de novo review of whether those facts constitute a public-trial violation.
  • United States v. Williams, 974 F.3d 320 (3d Cir. 2020), quoting United States v. Olano, 507 U.S. 725 (1993): supplies the four-part plain-error framework and, critically, the Third Circuit’s methodology for prong four in public-trial cases—balancing the costs of leaving an error uncorrected against the costs of retrial, focusing on the error’s effect on the values protected by the public-trial right.
  • United States v. Johnson, 19 F.4th 248 (3d Cir. 2021); United States v. Abreu, 32 F.4th 271 (3d Cir. 2022); United States v. Grant, 9 F.4th 186 (3d Cir. 2021): used to hold that a party must present arguments “squarely” and with sufficient particularity. The phrase “to comply with the Constitution” was deemed too vague to preserve a Public Trial Clause objection.

2. The public-trial right: presumption, permissible closures, and required findings

  • Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980): invoked for the principle that trials are presumptively “open to all who care to observe,” grounding openness in deep historical tradition.
  • Presley v. Georgia, 558 U.S. 209 (2010) (per curiam): used for the defendant’s right to insist on openness and the trial court’s obligation to take “every reasonable measure” to accommodate attendance, including considering alternatives even if not proposed by the parties.
  • Waller v. Georgia, 467 U.S. 39 (1984): provides the governing test for closures: an “overriding interest,” closure no broader than necessary, consideration of reasonable alternatives, and findings adequate to support the closure.

3. Partial closures / exclusion of particular spectators

  • Sister-circuit authorities endorsing a lesser showing (“substantial reason”) for narrower exclusions: United States v. DeLuca, 137 F.3d 24 (1st Cir. 1998); Woods v. Kuhlmann, 977 F.2d 74 (2d Cir. 1992); United States v. Smith, 117 F.4th 584 (4th Cir. 2024), cert. denied sub nom. Alcorn v. United States, 145 S. Ct. 1340 (2025), and cert. denied, 146 S. Ct. 92 (2025); United States v. Osborne, 68 F.3d 94 (5th Cir. 1995); United States v. Simmons, 797 F.3d 409 (6th Cir. 2015); United States v. Thompson, 713 F.3d 388 (8th Cir. 2013); United States v. Sherlock, 962 F.2d 1349 (9th Cir. 1989); United States v. Galloway, 937 F.2d 542 (10th Cir. 1991); Judd v. Haley, 250 F.3d 1308 (11th Cir. 2001). The Third Circuit used these cases to support the proposition that excluding only some spectators imposes a smaller burden than total closure, though it still requires justification and record support.
  • Third Circuit’s own pre-Waller foundation: U.S. ex rel. Laws v. Yeager, 448 F.2d 74 (3d Cir. 1971) (quoting United States v. Kobli, 172 F.2d 919 (3d Cir. 1949)): used to articulate a limiting principle—exclusion must be justified by lack of space or reasons particularly applicable to those excluded (e.g., indecorous conduct, witness intimidation).
  • Drummond v. Houk, 797 F.3d 400 (6th Cir. 2015): cited to reinforce that Waller’s balancing requirement applies across “any type of courtroom closure,” supporting the Third Circuit’s insistence on alternatives and record findings even for narrower exclusions.

4. “Trivial closure,” remote viewing, and COVID-related interests

  • “Trivial closure” doctrine (raised by the Government): Zornes v. Bolin, 37 F.4th 1411 (8th Cir. 2022); Peterson v. Williams, 85 F.3d 39 (2d Cir. 1996). The Third Circuit assumed arguendo that trivial closures may exist but held the restrictions here were not trivial because they covered opening arguments and evidence, and because in-person presence serves solemnity more than remote viewing.
  • Remote viewing and confrontation values: Coy v. Iowa, 487 U.S. 1012 (1988): cited by analogy to emphasize the nontrivial value of physical presence (there, face-to-face confrontation) over substitutes.
  • “Routine matters” as trivial: United States v. Ivester, 316 F.3d 955 (9th Cir. 2003): used as a comparator to show that the closure here was not limited to non-substantive administrative moments.
  • COVID as an “overriding interest”: United States v. Hunt, 82 F.4th 129 (2d Cir. 2023); United States v. Veneno, 94 F.4th 1196 (10th Cir. 2024); United States v. Allen, 34 F.4th 789 (9th Cir. 2022); plus Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020). These cases supported the proposition that pandemic health measures can justify closure, but only if the trial court shows that less restrictive alternatives are inadequate.
  • Remote-only as “partial closure” label: United States v. Ansari, 48 F.4th 393 (5th Cir. 2022). The Third Circuit noted this usage but expressed skepticism about calling exclusion of all spectators “partial.”

5. Responsibility for exclusions by courtroom personnel

  • Walton v. Briley, 361 F.3d 431 (7th Cir. 2004); United States v. Smith, 426 F.3d 567 (2d Cir. 2005); United States v. Negron-Sostre, 790 F.3d 295 (1st Cir. 2015): cited to confirm that a public-trial problem can exist even if the judge did not contemporaneously know court staff were excluding spectators.
  • Weaver v. Massachusetts, 582 U.S. 286 (2017): used to support the prong-four analysis by noting that a closure effected by court officers rather than the judge can lessen the systemic/institutional harm to fairness and perceived integrity.

6. Plain-error prong four in Third Circuit public-trial cases

  • United States v. Gallman, 57 F.4th 122 (3d Cir. 2023), and United States v. Lnu, 575 F.3d 298 (3d Cir. 2009): reinforce that the presence of some public access (including alternative means) can preserve “contemporaneous review in the forum of public opinion,” reducing the prong-four imperative to reverse.
  • Rosales-Mireles v. United States, 585 U.S. 129 (2018): cited (via Williams) for the caution against ordering retrials under plain-error review, framing retrial as a significant systemic cost.

7. Harry’s due process and compulsory process claims

  • Webb v. Texas, 409 U.S. 95 (1972) (per curiam): invoked by Harry for the proposition that judicial intimidation can deter defense witnesses; rejected because the record showed no ex parte meetings or intimidation.
  • Diggs v. Owens, 833 F.2d 439 (3d Cir. 1987): relied on for the principle that compulsory process yields when a witness properly invokes the Fifth Amendment.
  • United States v. Morton, 993 F.3d 198 (3d Cir. 2021): cited for the preference for question-by-question privilege invocations, but held inapposite because there was no dispute that the witnesses were entitled to invoke the privilege.
  • Gov't of Virgin Islands v. Mills, 956 F.2d 443 (3d Cir. 1992): cited for the limitation that compulsory process covers only testimony “material and favorable” to the defense—used to reject Harry’s challenge to the exclusion of irrelevant witnesses.

B. Legal Reasoning

1. Preservation: “comply with the Constitution” is not enough

The court drew a sharp line between a generalized request and a preserved Sixth Amendment claim. Girard’s counsel asked for family seating to “comply with the Constitution,” but did not “squarely” articulate a Public Trial Clause objection to requiring all spectators to use the overflow room, nor did counsel object when marshals later blocked the mothers. Applying United States v. Johnson, United States v. Abreu, and United States v. Grant, the Third Circuit treated the arguments as forfeited and applied plain-error review.

2. Two distinct Sixth Amendment errors

(a) Day-one remote-only viewing was a closure requiring justification. The Third Circuit treated the first-day rule—no in-court spectators, only overflow A/V—as a closure that triggered the Waller v. Georgia framework. Even if COVID can qualify as an overriding interest, the record must show why less restrictive alternatives were inadequate. Here, the court found the record lacking because the District Court allowed socially distanced spectators starting the next day, without explaining why that option was infeasible on day one.

(b) Excluding the defendants’ mothers despite available seating was unjustified. Once the courtroom was open, continued exclusion of Girard’s and Harry’s mothers was error where seats were available and no individualized justification appeared in the record. The court emphasized the special public-trial value of allowing close family to attend, citing the “triers keenly alive” rationale from Waller v. Georgia and the “special concern with the trial” language in U.S. ex rel. Laws v. Yeager (quoting United States v. Kobli).

3. Why the errors did not warrant reversal under plain-error prong four

The core move in the opinion is the application of the Third Circuit’s prong-four framework from United States v. Williams (and United States v. Gallman): even if an error occurred, the appellate court must decide whether correcting it (through retrial) would better “promote the ends of justice.” The court stressed three stabilizing features of the proceedings:

  • Publicity: the trial remained viewable by some public observers at all times (overflow A/V initially; in-person seating later), preserving public oversight.
  • Neutrality: the COVID-related restriction was a good-faith health measure, not a secrecy device; the judge was unaware of the marshals’ mistaken exclusions and acted once alerted.
  • Professionalism: there was no suggestion of prosecutorial or judicial misbehavior.

On the other side, the court emphasized the heavy systemic cost of a retrial: a three-week racketeering/conspiracy trial, nearly 50 witnesses, and the passage of four years. In that posture, reversal would yield a “windfall” inconsistent with plain-error principles.

C. Impact

  • Record-building requirement for COVID-era restrictions: The decision reinforces that even during public-health emergencies, trial courts must create a record explaining why less restrictive alternatives (e.g., limited, socially distanced seating) are insufficient before excluding all in-court spectators.
  • Operational accountability: Courts must ensure marshals and courtroom personnel implement access rules accurately; staff-level exclusions can create constitutional error even without judicial awareness.
  • Plain-error reality for public-trial violations: In the Third Circuit, unpreserved public-trial errors—even acknowledged constitutional violations—may not result in reversal where the proceeding retained meaningful public visibility and retrial costs are substantial. This extends the practical reach of United States v. Williams and United States v. Gallman to pandemic-driven access restrictions and mistaken spectator exclusions.
  • Guidance for defense counsel: The opinion is a cautionary signal that generalized “constitutional” references will not preserve a public-trial claim. Counsel must object clearly and contemporaneously and must alert the court promptly to access problems (including marshal actions) to avoid forfeiture.

IV. Complex Concepts Simplified

  • Public trial (Sixth Amendment): The default rule is open courtroom proceedings so the public can observe justice being done, which promotes fairness, discourages misconduct, and reinforces legitimacy.
  • Closure vs. exclusion of particular spectators: A “closure” generally means keeping the public out. Sometimes courts exclude only certain people (e.g., disruptive spectators). Those narrower exclusions may require a lesser justification than a total closure, but still require a reason, consideration of alternatives, and a record.
  • Waller findings: Before closing proceedings, a judge must identify a strong interest (often “overriding”), tailor the closure narrowly, consider alternatives, and make findings on the record.
  • Plain-error review: If a defendant did not object at trial, appellate courts usually require more than just proving a mistake. Even after showing “plain” error affecting substantial rights, the defendant must still show the error seriously harmed the judicial system’s fairness/integrity/reputation.
  • Compulsory process vs. Fifth Amendment privilege: Defendants have the right to call witnesses, but they cannot force a witness to give self-incriminating testimony when the witness validly invokes the Fifth Amendment.

V. Conclusion

The Third Circuit recognized that the defendants’ Sixth Amendment public-trial rights were compromised in two ways: an unjustified first-day move to remote-only public viewing, and the unjustified exclusion of the defendants’ mothers by marshals despite available seating. But because the defendants failed to preserve the issue, the court applied plain-error review and held that reversal would not serve the “ends of justice” given continued public visibility, the absence of secrecy or misconduct, and the extraordinary costs of retrial.

As a practical precedent, the decision pairs a clear warning to trial courts—make a record and police courtroom-access implementation—with an equally clear warning to litigants: public-trial rights must be asserted with specificity and timeliness, or even a constitutional violation may not yield a new trial on appeal.