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Docket Number

No. 93-2099.

Attorney(S)

Submitted on the Briefs: The parties have not requested oral argument. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause therefore is ordered submitted without oral argument. Stuart L. Stein, P.A., Santa Fe, NM, for defendant-appellant. Larry Gomez, Acting U.S. Atty., and Robert J. Gorence, Asst. U.S. Atty., Albuquerque, NM, for plaintiff-appellee.

Judges

Paul Joseph Kelly

Acts

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Smart Summary

Summary of Opinion: United States v. Zuhair I. Al-Smadi (No. 93-2099)

Factual and Procedural Background

The defendant, Zuhair I. Al-Smadi, was undergoing a five-day federal trial in the United States District Court for the District of New Mexico on a wire fraud charge (18 U.S.C. § 1343). On the second day of trial the federal courthouse in Santa Fe was closed to the public at 4:30 p.m., consistent with normal practice and federal regulations. Court security officers did not keep the front doors open despite the trial's continuation. As a result, defense counsel's wife and child were unable to gain access to the second-floor courtroom after 4:30 p.m. The trial adjourned at 4:50 p.m.

The district court denied Mr. Al-Smadi's motion for a mistrial alleging that the courthouse closure denied his Sixth Amendment right to a public trial. Mr. Al-Smadi appealed that denial. The panel (Judges Moore, Anderson, and Kelly) heard the case on the briefs without oral argument. Jurisdiction on appeal is under 28 U.S.C. § 1291. The Tenth Circuit affirmed the district court's denial of the mistrial motion.

Legal Issues Presented

Whether the courthouse closing after 4:30 p.m., which prevented certain members of the public (defense counsel's family) from entering the courtroom, violated the Sixth Amendment right to a public trial.
Whether the denial of a defendant's Sixth Amendment right to a public trial requires some affirmative act by the trial court meant to exclude persons from the courtroom.
Whether a brief and inadvertent closing of the courthouse, unnoticed by the trial participants, constitutes a denial of the right to a public trial absent a substantial reason for partial closure.

Arguments of the Parties

Appellant's Arguments

Mr. Al-Smadi argued that the courthouse closing denied his Sixth Amendment right to a public trial and that, absent a substantial reason to partially close the trial, the district court could not reject his claim merely by invoking the maxim de minimis non curat lex. He relied on authority requiring substantial reasons for partial closures (citing United States v. Galloway).
The appellant noted the trial judge's silence regarding steps taken by chambers to assure the building remains open for trials that extend beyond regular closing time.

This section contains the arguments of the appellant as presented in the opinion. The opinion does not provide a detailed account of the appellee's trial-level arguments in response.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Waller v. Georgia, 467 U.S. 39 (1984)	Cited generally in connection with the Sixth Amendment right to a public trial.	Referenced as authoritative background on the public-trial right in evaluating the appellant's claim.
Davis v. Reynolds, 890 F.2d 1105 (10th Cir. 1989)	Cited in the context of the Sixth Amendment public-trial discussion.	Referenced as circuit authority related to the public-trial inquiry.
Nieto v. Sullivan, 879 F.2d 743 (10th Cir. 1989), cert. denied, 493 U.S. 957	Standard of review: factual findings accepted unless clearly erroneous; legal questions reviewed de novo.	Applied to state that the district court's factual findings about the closure are accepted unless clearly erroneous and the Sixth Amendment question is reviewed de novo.
United States v. Galloway, 937 F.2d 542 (10th Cir. 1991)	Cited for the proposition that a substantial reason is required to partially close a trial.	Cited as the authority relied on by appellant; the opinion notes the appellant's invocation of Galloway in arguing the district court could not dismiss the claim as de minimis.
People v. Peterson, 81 N.Y.2d 284, 595 N.Y.S.2d 383, 611 N.E.2d 284 (1993)	Support for the proposition that denial of the public-trial right requires an affirmative act by the trial court to exclude persons.	Used to support the court's conclusion that a brief and inadvertent closing unnoticed by trial participants did not constitute a Sixth Amendment violation.
People v. Colon, 71 N.Y.2d 410, 526 N.Y.S.2d 932, 521 N.E.2d 1075 (1988)	Support for the requirement of an affirmative act by the trial court to deny the right to a public trial.	Cited alongside other authority to justify that the brief, inadvertent closing did not violate the Sixth Amendment.
State v. Clayton, 109 Ariz. 587, 514 P.2d 720 (1973)	Support for the proposition that brief, inadvertent closures do not automatically violate the right to a public trial.	Cited as additional authority supporting the court's conclusion that the brief, inadvertent closing did not constitute a Sixth Amendment violation.

Court's Reasoning and Analysis

The court first explained the applicable standard of review: it would accept the district court's factual findings about the courthouse closure unless they were clearly erroneous, but it would review de novo whether the closure violated the Sixth Amendment (citing Nieto v. Sullivan). The central legal analysis focused on whether the courthouse closing amounted to a denial of the Sixth Amendment right to a public trial.

The court observed that a denial of the Sixth Amendment right to a public trial generally requires some affirmative act by the trial court intended to exclude persons from the courtroom. Relying on the cited authorities (People v. Peterson; People v. Colon; State v. Clayton), the court concluded that the brief and inadvertent closing of the courthouse — which was unnoticed by any of the trial participants — did not constitute such an affirmative act and therefore did not violate the Sixth Amendment.

The opinion acknowledged the appellant's contention (citing United States v. Galloway) that partial closures require a substantial reason, and noted the appellant's criticism of the trial judge's silence about procedures to keep the courthouse open for trials extending beyond normal hours. Nevertheless, the court found nothing to indicate the closing was a recurring problem and expressed confidence that appropriate steps would be taken to avoid a recurrence. On that basis, the court affirmed the district court's denial of the mistrial motion.

Holding and Implications

AFFIRMED.

Holding: The Tenth Circuit affirmed the district court's denial of the defendant's motion for a mistrial. The court held that the brief and inadvertent closing of the courthouse, which was not the result of an affirmative act by the trial court and was unnoticed by trial participants, did not violate the Sixth Amendment right to a public trial.

Implications: The direct effect is that the district court's denial of the mistrial is upheld. The opinion does not announce broader changes to the law; it applies established principles (including the need for an affirmative act to deny the public-trial right and the standard for reviewing factual and legal determinations) to the specific facts of this inadvertent, brief closure. The court also noted no indication of recurrence and expected appropriate steps to avoid similar situations in the future.

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UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. ZUHAIR I. AL-SMADI A/K/A, SUDGI ASAD, DEFENDANT-APPELLANT.

PAUL KELLY, Jr., Circuit Judge.

After normal working hours, the federal courthouse in Santa Fe, New Mexico is closed to the public. See generally 41 C.F.R. § 101-20.302 (1993). Consistent with normal practice, this occurred at 4:30 p.m. during the second day of Mr. Al-Smadi's five-day trial for wire fraud, 18 U.S.C. § 1343. The court security officers failed to keep the front doors of the courthouse open past 4:30 p.m., given that a trial was in progress. Defense counsel's wife and child were unable to gain access to the second-floor courtroom when they attempted to enter the courthouse after 4:30 p.m. At 4:50 p.m., the trial adjourned. Mr. Al-Smadi appeals the district court's denial of his motion for a mistrial on the grounds that the closing of the courthouse denied him his Sixth Amendment right to a public trial. See generally Waller v. Georgia, 467 U.S. 39, 44-46, 1 S.Ct. 2210, 2214-15, 81 L.Ed.2d 31 (1984); Davis v. Reynolds, 890 F.2d 1105, 1109 (10th Cir. 1989). Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm.

The underlying facts concerning the closure as found by the district court will be accepted unless clearly erroneous; however, whether the closure violated the Sixth Amendment is a legal issue which we review de novo. See Nieto v. Sullivan, 879 F.2d 743, 749-54 (10th Cir.), cert. denied, 493 U.S. 957, 110 S.Ct. 373, 107 L.Ed.2d 359 (1989). Mr. Al-Smadi argues that, in the absence of a substantial reason to partially close his trial, see United States v. Galloway, 937 F.2d 542, 545-47 (10th Cir. 1991). the district court could not merely reject his Sixth Amendment claim with the maxim de minimis non curat lex. Aplt. App. at 20.

The denial of a defendant's Sixth Amendment right to a public trial requires some affirmative act by the trial court meant to exclude persons from the courtroom. See People v. Peterson, 81 N.Y.2d 284, 595 N.Y.S.2d 383, 611 N.E.2d 284, 285 (1993); People v. Colon, 71 N.Y.2d 410, 526 N.Y.S.2d 932, 521 N.E.2d 1075, 1078, cert. denied, 487 U.S. 1239, 108 S.Ct. 2911, 101 L.Ed.2d 943 (1988). The brief and inadvertent closing of the courthouse and hence the courtroom, unnoticed by any of the trial participants, did not violate the Sixth Amendment. Peterson, 595 N.Y.S.2d at 384, 611 N.E.2d at 285; State v. Clayton, 109 Ariz. 587, 514 P.2d 720, 727-28 (1973). Although Mr. Al-Smadi notes that "[t]he trial judge was silent as to what steps, if any, are taken by his chambers to assure that the building remains open when criminal trials go beyond . . . 4:30 p.m.," Aplt. Br. at 3, nothing indicates that the situation recurred and we are confident that appropriate steps will be taken to avoid it.

AFFIRMED.

U.S. v. AL-SMADI