[00:00:07] Speaker 01:
Good morning.

[00:00:07] Speaker 01:
May it please the Court and Teleferral for the appellant in this case, Mr. Bruce Holder.

[00:00:13] Speaker 01:
Mr. Holder has raised a number of issues in this case, and I would like to focus, well, I would like to start with the denial of a public trial issue, then go to a portion of the constructive amendment issue that's relative to Counts 1 and 3, and then if there is time, hit briefly on the sufficient evidence of death issue as with regard to Count 2.

[00:00:37] Speaker 01:
First, we have argued that the district court's restrictions on public access to the trial violated the Sixth Amendment.

[00:00:45] Speaker 01:
We have 100% acknowledged that the courts and the world were navigating an unprecedented time during Mr. Holder's trial and right before.

[00:00:56] Speaker 01:
We also acknowledged that Mr. Holder's trial was a pilot trial and it was the first trial in this district.

[00:01:01] Speaker 01:
So everybody was trying to figure out what to do.

[00:01:04] Speaker 01:
protocols were being fashioned, protocols were being put into place.

[00:01:08] Speaker 01:
But nevertheless, the trial must still comport with due process and other fundamental constitutional rights that come with the trial still must be afforded.

[00:01:19] Speaker 01:
And certain constitutional rights still do not give way even in light of the pandemic.

[00:01:25] Speaker 01:
So one of the fundamental rights that we believe was not afforded that could have been

[00:01:31] Speaker 01:
absolutely afforded in this case, even in light of COVID, even in light of the restrictions and the protocols that have been put in place, was Mr. Holder's right to a public trial.

[00:01:43] Speaker 01:
And even if it was justified, even assuming that it was 100% justified not to allow the public to have absolute access or any access to the courtroom in and of itself, the ability existed

[00:01:58] Speaker 01:
to allow people, the public, to pop in via, we call it WebEx.

[00:02:04] Speaker 01:
I don't know if you guys use WebEx, but pop in during video.

[00:02:09] Speaker 01:
And it was 100% able, capable to allow the public to have a link to pop in and listen over audio.

[00:02:18] Speaker 02:
Did the district do that in other cases during the pandemic?

[00:02:23] Speaker 01:
Yes.

[00:02:25] Speaker 01:
Yes, and there's a case that I can't think of right now, but it's from, I believe it's the Ninth Circuit.

[00:02:33] Speaker 01:
And they looked at kind of the protocols being put in place around the country.

[00:02:41] Speaker 02:
And Judge Arguello was following a policy developed by the District of Colorado?

[00:02:49] Speaker 01:
Yes, yes.

[00:02:50] Speaker 02:
Well, we had that Venomo case recently, which had a similar issue, but how's that distinguishable or is it controlling here?

[00:03:00] Speaker 01:
Well, I mean, in Venomo, the issue was that I believe that they said that it wasn't proper.

[00:03:13] Speaker 01:
Well, the public trial wasn't afforded, and it could have been.

[00:03:18] Speaker 01:
I can't quite remember.

[00:03:21] Speaker 01:
what they did if they put an audio only or they put an audio and video.

[00:03:26] Speaker 02:
It had audio only.

[00:03:27] Speaker 01:
They had audio only.

[00:03:28] Speaker 02:
And this was audio only if people could call in.

[00:03:30] Speaker 01:
This was audio only.

[00:03:31] Speaker 01:
But the problem here is twofold.

[00:03:35] Speaker 01:
One, we're asserting that they also could have popped in video over video.

[00:03:41] Speaker 01:
But second, the audio link wasn't put out to the general public.

[00:03:45] Speaker 01:
It wasn't made available to the general public.

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It was only given to the parties, and then the parties could distribute it to whoever they wanted.

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But in this case, the general right to a public trial was in no way afforded, because the link wasn't available to the general public.

[00:04:04] Speaker 02:
It wasn't put on.

[00:04:06] Speaker 02:
Could a member of the public have asked the clerk for the call-in number?

[00:04:11] Speaker 01:
Well, I mean, I guess they could have, but it's not up to the public or

[00:04:18] Speaker 01:
the defendant or even the government to say to ensure that the right to a public trial is, the trial court had, if the trial court was going to not allow the public into the courtroom, it was the trial court's responsibility to ensure that there were reasonable means to afford that right.

[00:04:38] Speaker 01:
It was the trial court's responsibility to do that.

[00:04:40] Speaker 01:
And when they put these protocols in place, I believe that it was,

[00:04:44] Speaker 01:
represented to everybody that a link would be available.

[00:04:48] Speaker 01:
When they found out that a link wasn't available, Mr. Holder not only objected to the idea that a video link wasn't available, but Mr. Holder through his counsel also objected that the

[00:05:02] Speaker 01:
the link to the call-in was not afforded to the public.

[00:05:06] Speaker 02:
I understand that there were some members of the public at the trial, I guess, of either the prosecution.

[00:05:13] Speaker 02:
Did the defendant have any doubt?

[00:05:15] Speaker 01:
The defendant had nobody there.

[00:05:17] Speaker 01:
And the only members of the public, I believe, was a mother of one of the victims and her colleague.

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So they were aligned.

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And the court allowed them in the courtroom because

[00:05:31] Speaker 01:
victim's rights allow them to be in the courtroom.

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So even though they were in the courtroom, we have still argued that it was still a complete closure.

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But whether it's a total closure or a partial closure, it doesn't matter because the closure has to be no broader than reasonable.

[00:05:51] Speaker 02:
And again, because the- If it's a partial closure, then the standards a little

[00:05:57] Speaker 02:
more lenient, right?

[00:05:58] Speaker 01:
The standard's a little different in the sense of justifying the closure.

[00:06:04] Speaker 01:
But you still have to not, you know, it still cannot be more broad than necessary.

[00:06:14] Speaker 01:
You still have to find a reasonable way.

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And again, in light of the technology at this time, in fact,

[00:06:23] Speaker 01:
During this time, it was probably more possible.

[00:06:26] Speaker 01:
That's improper English.

[00:06:28] Speaker 01:
It was probably more capable to allow the general public to be in because of the technology that had been.

[00:06:36] Speaker 02:
And if there had been a video link with that, would you be here on this issue?

[00:06:41] Speaker 01:
If there had been a video link, no.

[00:06:45] Speaker 02:
So that's the fatal flaw.

[00:06:46] Speaker 01:
No, no, no.

[00:06:46] Speaker 01:
And quite frankly, if there had been a telephone link made available to

[00:06:53] Speaker 01:
the general public, we wouldn't be here.

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But the fact is that the public in general did not have a way of knowing about this trial, of popping in, unless they came to one of the parties and asked.

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It was not put on the website.

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It was not made available to the general population.

[00:07:13] Speaker 02:
In these circumstances, should we find that there's a structural error, or is this a case where we should look and see if there's any prejudice to the defendant?

[00:07:23] Speaker 02:
If it's a prejudice standard, is there any prejudice to Mr. Holder?

[00:07:26] Speaker 01:
I believe it is a structural error in this case because it was preserved, because they did object to it.

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And the courts have found that preserved issues, you do not have to show harm to a public trial.

[00:07:42] Speaker 01:
It is a structural error.

[00:07:44] Speaker 03:
Let me ask you.

[00:07:47] Speaker 03:
For somewhere in the briefs, I think I saw that there was a question that your client raised the issue that he wanted his speedy trial even against what was going on with as far as your argument about the public being there.

[00:08:04] Speaker 03:
Bring me up to date as to exactly that discussion that went on when

[00:08:10] Speaker 03:
He was insisting upon having the speedy trial and complying with that.

[00:08:14] Speaker 03:
And then you have the orders in regards to the COVID aspect of it.

[00:08:19] Speaker 03:
Help me out there.

[00:08:20] Speaker 01:
So I believe there was an initial trial that occurred in 2020 right at the beginning of COVID and they could not see it a jury.

[00:08:29] Speaker 01:
And so from there until 2021, when they finally had the trial, there were a lot of discussion.

[00:08:38] Speaker 01:
about how to do this.

[00:08:42] Speaker 01:
Mr. Holder repeatedly demanded his right to a speedy trial, repeatedly invoked that right.

[00:08:54] Speaker 01:
I believe it was a few weeks before, this April trial, April 21 trial was set, but it was just generally set because nobody still knew

[00:09:06] Speaker 01:
what was going to happen and what protocols were going to be in place.

[00:09:11] Speaker 01:
April 21 of what year?

[00:09:13] Speaker 01:
April 2021.

[00:09:14] Speaker 01:
And I believe the record shows it was a couple of weeks before that trial date.

[00:09:27] Speaker 01:
They were informed, I believe, through email that they were going to be the pilot trial.

[00:09:32] Speaker 01:
the judge started to put in these protocols.

[00:09:37] Speaker 01:
And they objected to the protocols, I believe.

[00:09:41] Speaker 01:
Now who's they?

[00:09:42] Speaker 01:
Mr. Holder and his attorneys.

[00:09:48] Speaker 01:
Protocols such as masks, things like that.

[00:09:51] Speaker 01:
There was not a general objection to the public trial

[00:09:57] Speaker 01:
Issue because the court had represented or the court had indicated that a link was going to be made available to the public So I believe on the first day of trial They still made objections to the general things such as wearing masks such as Doing opening statements prior to even picking the jury certain protocols that were put in place No objection was necessarily made about the link at this point because they still believe that a link is

[00:10:27] Speaker 01:
was being put out to the trial.

[00:10:32] Speaker 01:
When they made that objection on the first day of trial to these protocols, I believe the judge said something to the effect of, and I'm paraphrasing, you had your choice of coming to trial under these protocols, or you could have put it off for a different time, and you demanded your speedy trial, so we're here.

[00:10:54] Speaker 01:
So you're going to deal with the protocols.

[00:10:57] Speaker 01:
I believe it was on day five of the trial.

[00:10:59] Speaker 01:
So there was, I believe, two days of jury, jury picking the jury.

[00:11:04] Speaker 01:
And then on day five of the trial, it was brought to their attention that the video link or the audio link was not available to the public.

[00:11:16] Speaker 01:
And so the attorneys, Mr. Holder's attorneys, made a record.

[00:11:24] Speaker 01:
This is at volume 3 around page 578.

[00:11:29] Speaker 01:
They get up and they say, Mr. Holder has been asking us to make an objection specifically that the public is not being allowed to pop in and see this trial.

[00:11:44] Speaker 01:
So they made that on behalf of Mr. Holder.

[00:11:47] Speaker 01:
They then also made the objection or brought it to the court's attention.

[00:11:53] Speaker 01:
that they did not believe that the audio link had been made available generally to the public.

[00:12:02] Speaker 01:
This was five days into the trial?

[00:12:03] Speaker 01:
This was in five days.

[00:12:05] Speaker 01:
They brought it to the court's attorney.

[00:12:06] Speaker 03:
I mean, it's within five days of the trial before this objection is made.

[00:12:10] Speaker 01:
Yes, yes.

[00:12:11] Speaker 01:
Because they still believed that a link had been put out for the general public.

[00:12:18] Speaker 01:
And it seems that Mr. Holder had been telling them to object to video.

[00:12:24] Speaker 01:
And I believe that the government may characterize it as he was being a difficult person.

[00:12:30] Speaker 01:
But he was definitely telling his attorneys to make this objection.

[00:12:34] Speaker 01:
On day five, they make this objection, at least to the video.

[00:12:38] Speaker 01:
They, on day five, say, we don't believe that the audio link is made, and the court basically

[00:12:47] Speaker 01:
just noted the objection and moved on.

[00:12:50] Speaker 01:
They confirmed that the audio link was not available to the general public and they moved on.

[00:12:56] Speaker 01:
So there was no, at least from day five on, this was an eight-day trial, at least if we're going to get into the, you know, what part of this was preserved or not, at least from day five on,

[00:13:11] Speaker 01:
The court knew that there was no general audio link, at least, available and did nothing about it.

[00:13:19] Speaker 01:
She noted the objection, didn't make any other findings or anything like that.

[00:13:24] Speaker 01:
So at least for that part, which was three days worth of testimony and closing arguments, at least for that part of the trial, which obviously is a critical part of the trial, there was no

[00:13:36] Speaker 01:
Absolutely no public access to the trial.

[00:13:39] Speaker 03:
Because you were asked the question about structural versus the prejudicial aspect of it.

[00:13:47] Speaker 03:
What is your best case saying that this is a structural error?

[00:13:57] Speaker 01:
United States Venomo does say, ask the merits of a preserved claim if this is a court

[00:14:03] Speaker 01:
It says that this court agrees there was error.

[00:14:06] Speaker 01:
It is structural and reversal is required.

[00:14:08] Speaker 01:
And that's Weaver versus Massachusetts, too.

[00:14:12] Speaker 01:
So it's in Venomo and it's in Weaver versus Massachusetts.

[00:14:21] Speaker 01:
If it was not objected to, then you probably would have to look for plain error or whatever, but at least from

[00:14:34] Speaker 01:
day five on, it's structural.

[00:14:38] Speaker 03:
You put your finger out on one object.

[00:14:40] Speaker 01:
Right.

[00:14:40] Speaker 03:
When was the objection made?

[00:14:43] Speaker 03:
Right.

[00:14:44] Speaker 01:
Well, and I also think, too, it's a little bit hard because they believed that that audio link was out to the general public.

[00:14:54] Speaker 01:
And when they found out that it had not been presented to the general public, that is when they objected.

[00:15:01] Speaker 01:
So in a sense, you also look at the fact that it's the trial court's responsibility to find a proper alternative means, and then they deny.

[00:15:11] Speaker 02:
You might have answered the question, but under the policy, could I have called the clerk's office and said, I want to attend this trial?

[00:15:23] Speaker 02:
And the clerk would have said, no, but you can listen in and here's a number.

[00:15:27] Speaker 02:
I mean, it takes some affirmative work

[00:15:31] Speaker 02:
By a member of the public, right.

[00:15:33] Speaker 02:
Could that have happened?

[00:15:35] Speaker 01:
I imagine that it could have, but that's not the purpose behind the right to a public trial.

[00:15:42] Speaker 02:
How's that different than somebody just wandering up to the courthouse, like today, and coming in this courtroom?

[00:15:49] Speaker 01:
Well, because the court wasn't open.

[00:15:52] Speaker 01:
And so I guess they could.

[00:15:53] Speaker 02:
No, I'm just saying it's the functional equivalent is calling the clerk and getting the phone number.

[00:15:57] Speaker 01:
Well, but the problem is that this person

[00:16:03] Speaker 01:
could not have wandered up to the courthouse and have been let in.

[00:16:07] Speaker 01:
That's why it was a closure.

[00:16:08] Speaker 01:
So the court was responsible for finding a reasonable alternative that was no broader than necessary so that that person who just wandered up to the courthouse could have had access.

[00:16:21] Speaker 02:
It needed to be on a website or on a piece of paper on the front door?

[00:16:24] Speaker 01:
He could have gone to the website and saw, oh, there's a trial here today, and popped in.

[00:16:32] Speaker 01:
But he could not have done that.

[00:16:34] Speaker 02:
And I know your time's over.

[00:16:35] Speaker 02:
But just quickly, could you give me your constructive amendment argument?

[00:16:41] Speaker 01:
Yes.

[00:16:43] Speaker 01:
So the constructive amendment argument is with regards to counts one and two.

[00:16:49] Speaker 01:
And it's based on the principles

[00:16:52] Speaker 01:
that the government chooses what they indict.

[00:16:54] Speaker 01:
They choose the language that they indict.

[00:16:56] Speaker 01:
And when the grand jury passes upon that language, you're bound by the plain language of the indictment.

[00:17:04] Speaker 01:
And the jury instructions thereafter and the evidence thereafter has to comport with the particulars of the indictment.

[00:17:11] Speaker 01:
With regard to count one, I'll go to count one.

[00:17:15] Speaker 01:
I want to focus on the specific object of the conspiracy because

[00:17:21] Speaker 01:
Through the argument and the jury instructions, well let me say this.

[00:17:26] Speaker 01:
So count one charges that these conspirators conspired to distribute and possess with intent to distribute 400 grams or more of a mixture of substance containing fentanyl.

[00:17:43] Speaker 01:
And this substance and such substance, excuse me, without authorization bore an identifying mark that falsely purported to be the product of Malancrop Inc.

[00:17:55] Speaker 01:
So it was not, they did not charge conspiracy to distribute fentanyl.

[00:18:01] Speaker 01:
They did not charge conspiracy to distribute counterfeit substance.

[00:18:07] Speaker 01:
They charged, the indictment charged,

[00:18:10] Speaker 01:
a conspiracy to distribute a counterfeit substance containing fentanyl.

[00:18:15] Speaker 01:
And it's different.

[00:18:17] Speaker 01:
So they charge a specific crime and instead the jury was instructed that they could either find, either or find a conspiracy to distribute fentanyl or a conspiracy to distribute a counterfeit substance

[00:18:35] Speaker 01:
That's not what the charge says.

[00:18:37] Speaker 01:
It was a conspiracy to distribute a counterfeit substance containing fentanyl.

[00:18:42] Speaker 02:
And you objected to the jury instructions?

[00:18:45] Speaker 02:
No, no.

[00:18:46] Speaker 01:
And that's why it has to go through plain error.

[00:18:48] Speaker 01:
Okay.

[00:18:48] Speaker 01:
Thank you, counsel.

[00:18:49] Speaker 01:
Thank you very much.

[00:18:50] Speaker 02:
Let's hear from the government.

[00:19:12] Speaker 00:
Morning, Your Honor.

[00:19:12] Speaker 00:
May it please the court, Kyle Brenton for the United States.

[00:19:17] Speaker 00:
Facing unprecedented challenges due to a global pandemic, the district court nevertheless provided Bruce Holder with a fundamentally fair trial that reached a just result.

[00:19:27] Speaker 00:
None of his arguments for reversal have merit, and the judgment should be affirmed.

[00:19:31] Speaker 00:
I'm happy to talk about the COVID issue, which I think my opposing counsel has primarily talked about, and address constructive amendments, sufficiency, those other issues, as the court has questions.

[00:19:42] Speaker 00:
I'd like to go to Judge Baldoch's questions and Judge Timkovich's questions about the timeline, because I think the timeline of how this all unfolded as COVID is also unfolding is particularly important.

[00:19:58] Speaker 00:
So Holder's first trial was convened on March 13th, 2020, which is the same day the president declared a national emergency for COVID.

[00:20:08] Speaker 00:
On that day, not enough jurors showed up.

[00:20:10] Speaker 00:
for a panel, so a mistrial was declared.

[00:20:14] Speaker 00:
At that point, we have a series of attempts to reset the trial because, as Judge Baldock points out, Mr. Holder is insisting on his speedy trial rights throughout.

[00:20:28] Speaker 00:
And if you look in our brief, we have a series of citations on this point to all of his different oppositions to speedy trial continuances.

[00:20:39] Speaker 00:
Then you get to June of 2020.

[00:20:43] Speaker 00:
In June of 2020, the Chief Judge of the District of Colorado issued a set of jury trial protocols.

[00:20:50] Speaker 00:
Those are in the record in volume two, pages 309 to 312.

[00:20:54] Speaker 00:
And those protocols, which are issued again, June of 2020, almost a year before the trial here, they are still what governed the trial in terms of COVID precautions.

[00:21:05] Speaker 00:
Now, what those protocols said about public access is on page 312.

[00:21:11] Speaker 00:
And it says, because the gallery will be occupied by the jury, spectators will not be permitted in the courtroom.

[00:21:18] Speaker 00:
An audio link will be provided to allow members of the public to call in and listen to the proceedings.

[00:21:24] Speaker 00:
That's all the court said.

[00:21:26] Speaker 00:
Now, there's no dispute here that the courtroom deputy provided the parties to this case with that dial-in number.

[00:21:35] Speaker 00:
That's absolutely undisputed.

[00:21:37] Speaker 00:
And to Judge Timkovich's question about calling the clerk's office, if you look at Judge Arguello's order on the post-trial motions, she also talks about the chief judge's general orders.

[00:21:49] Speaker 00:
And if the court looks at general order number 2020-10, and that did not make it into the record in this case, but they are publicly filed on the district court's docket, and I can give you that case number if you like.

[00:22:01] Speaker 00:
But that 2020-10 says, essentially, for proceedings closed to the public, any member of the public or press who wants to view can call the clerk's office to obtain the dial-in number for that proceeding.

[00:22:15] Speaker 00:
So we have these protocols coming out in June of 2020.

[00:22:19] Speaker 00:
Was video eventually provided as a part of the protocol?

[00:22:25] Speaker 00:
You know, Your Honor, I'm not certain of that.

[00:22:27] Speaker 00:
I believe it eventually was, but I think, again, the timing is critical.

[00:22:31] Speaker 00:
So here the trial was in April of 2021.

[00:22:35] Speaker 00:
Ms.

[00:22:35] Speaker 00:
Talafiero mentioned that it was a pilot trial.

[00:22:39] Speaker 00:
I believe there were two trials happening the same week, one before Judge Arguello, one before Judge Jackson.

[00:22:45] Speaker 00:
Neither had a video link for the public.

[00:22:48] Speaker 00:
So they were both taking place under this audio dial-in for public access regime.

[00:22:55] Speaker 00:
To the extent video was later figured out by the district, that was not the case at the time of this trial.

[00:23:02] Speaker 00:
So we have the protocols in June of 2020.

[00:23:06] Speaker 00:
Shortly thereafter, Holder's counsel files written objections to those protocols, because again, we keep trying to reset the trial date over the course of this year.

[00:23:17] Speaker 00:
Those written objections, they're all about witnesses wearing masks, cross-examination, lawyers wearing masks, all of the kind of core COVID precaution issues.

[00:23:29] Speaker 00:
He never mentions a public trial objection.

[00:23:31] Speaker 00:
And again, I want to go back to that language of the protocols.

[00:23:36] Speaker 00:
An audio link will be provided.

[00:23:38] Speaker 00:
That's all the court said.

[00:23:39] Speaker 00:
Now, my opposing counsel says they believed or the court told them that this link would be somehow made available to the public.

[00:23:48] Speaker 00:
That's not what it says.

[00:23:50] Speaker 00:
It says will be provided.

[00:23:52] Speaker 00:
There's no more detail than that.

[00:23:54] Speaker 00:
But given the thoroughness with which Holder did object to the more substantive core trial issues here, I think it's not unreasonable to ask him, if he's assuming that something is going to happen with regard to this public access number, ask the question.

[00:24:09] Speaker 00:
So we have those written objections.

[00:24:11] Speaker 00:
Then we get to this trial.

[00:24:13] Speaker 00:
On day one of this trial, his counsel renews his objections to the COVID trial protocols that were made in that written objection almost a year prior.

[00:24:23] Speaker 00:
does not add anything with regard to a public trial.

[00:24:27] Speaker 00:
So then we have two days of jury selection and openings.

[00:24:30] Speaker 00:
We have two days of evidence.

[00:24:31] Speaker 00:
We get to day five.

[00:24:33] Speaker 00:
On day five, first thing in the morning, Holder's counsel makes the objection that my opposing counsel read to the court.

[00:24:41] Speaker 00:
It is certainly an objection.

[00:24:45] Speaker 00:
I think it is best described as a perfunctory objection.

[00:24:51] Speaker 00:
There's no discussion of what the standard is, of what the court needs to do.

[00:24:56] Speaker 00:
And again, we are five days in to an eight-day trial.

[00:25:00] Speaker 03:
Well, how was the objection made?

[00:25:02] Speaker 03:
I mean, you're saying there was no particular way out.

[00:25:05] Speaker 03:
Did he say object or what?

[00:25:07] Speaker 00:
Well, it's what my opposing counsel read to the court.

[00:25:11] Speaker 00:
It's from volume 8, page 578.

[00:25:13] Speaker 00:
The first paragraph is, counsel says, Mr. Holder has asked us to make an objection to the deficiencies of this being a public trial.

[00:25:22] Speaker 00:
He asks for video.

[00:25:24] Speaker 00:
And then he says, additionally, we have concerns about what may be the lack of access to the call-in number.

[00:25:31] Speaker 00:
I don't know for sure.

[00:25:32] Speaker 00:
I know the court distributed information to counsel concerning the phone and number.

[00:25:36] Speaker 00:
That has been available to us.

[00:25:38] Speaker 00:
Whether that number is on the website or otherwise available, I don't know the answer to that question.

[00:25:42] Speaker 00:
Thank you.

[00:25:43] Speaker 03:
No objection is made to specifically say that I object to the violation of the Speedy Trial?

[00:25:50] Speaker 00:
Well, he says the first paragraph, the first sentence of that is, Mr. Holder has asked us to make an objection to the deficiencies in the trial being a public trial.

[00:25:59] Speaker 00:
And everything else that he says comes after that on the fifth day.

[00:26:03] Speaker 03:
Is that a sufficient motion?

[00:26:07] Speaker 00:
I think that given the timing, given the course of proceedings that I've just laid out, given the salience of the COVID issues here, I think that's not sufficient.

[00:26:18] Speaker 00:
I mean, it's a very close question, Your Honor.

[00:26:21] Speaker 00:
I think it's significant because as the court has obviously homed in on, to the extent this was a properly preserved public trial objection, there is a structural error.

[00:26:33] Speaker 03:
To the extent there's not, he certainly would have to show prejudice under a plain error standard, which he cannot do and has not done.

[00:26:53] Speaker 00:
I don't know that there is a specific standard as to a public trial objection.

[00:26:58] Speaker 00:
I think the general standard of making the court aware of the error and asking the court to fix it is probably the standard.

[00:27:06] Speaker 00:
I think that this case is a little unique because of the timing, because that objection, to the extent it was sufficient, was not made until halfway through the trial.

[00:27:14] Speaker 03:
So you're saying in this case it was specific enough?

[00:27:17] Speaker 00:
I don't think it was specific enough, Your Honor.

[00:27:19] Speaker 00:
I want to be clear about that.

[00:27:21] Speaker 00:
We are not conceding that that objection

[00:27:23] Speaker 00:
was sufficient to preserve this argument.

[00:27:25] Speaker 00:
We are arguing waiver, as we discuss in our brief.

[00:27:29] Speaker 00:
I'm happy to move on to the standard here, because I think we get to the total partial question and the standard.

[00:27:37] Speaker 00:
I think those are very important questions.

[00:27:39] Speaker 02:
Yeah, we have the protocols.

[00:27:41] Speaker 02:
And they did something, but did they do enough?

[00:27:44] Speaker 00:
That's exactly the question, Your Honor.

[00:27:46] Speaker 00:
Our position is they did not do enough.

[00:27:47] Speaker 04:
Well, counsel, can I just jump in there before you move on?

[00:27:53] Speaker 04:
I guess you're making two objections.

[00:27:56] Speaker 04:
The sufficiency, as you phrase it, of the objection is insufficient.

[00:28:02] Speaker 04:
What should they have said?

[00:28:05] Speaker 00:
Well, I think, Your Honor, I think they should have said that

[00:28:11] Speaker 00:
In order to make this a public trial, the number needs to be publicly available.

[00:28:15] Speaker 04:
Well, didn't they say that?

[00:28:16] Speaker 00:
They say that.

[00:28:17] Speaker 00:
But then as the discussion goes on, on the next page, the court checks with the courtroom deputy.

[00:28:25] Speaker 00:
The courtroom deputy says, we gave the number to the parties.

[00:28:32] Speaker 00:
And the court essentially says, OK, moving on.

[00:28:34] Speaker 00:
I think at that point, it was incumbent on counsel

[00:28:39] Speaker 00:
to make a sufficient objection to make the record of what was and was not available and to ask the court directly to put that number on the website or on the calendar or something.

[00:28:50] Speaker 00:
And I don't think that happened.

[00:28:51] Speaker 00:
I think as soon as it was clear that the parties had the number, everybody just moved on.

[00:28:57] Speaker 00:
So to the point

[00:28:59] Speaker 00:
Where I think that that objection needed more.

[00:29:01] Speaker 00:
I think that's what it needed.

[00:29:03] Speaker 00:
I think also the timing issue.

[00:29:04] Speaker 00:
Right.

[00:29:05] Speaker 04:
So it's, it's both the sufficiency and the timing.

[00:29:09] Speaker 00:
It's the timing in light of the very long history of making COVID objections, but not this COVID objection until half the trial is gone.

[00:29:20] Speaker 00:
That that's the issue.

[00:29:21] Speaker 04:
Okay.

[00:29:21] Speaker 04:
Well, if we were to agree with you, where would that leave us?

[00:29:26] Speaker 00:
I mean, I think that that would leave the court in a somewhat challenging position, potentially, but only if there is an underlying violation of the Sixth Amendment here, which I don't think that there was.

[00:29:39] Speaker 00:
So I think that takes us naturally to the merits of the Sixth Amendment question.

[00:29:43] Speaker 00:
So in analyzing this closure, the first question the court has to answer is whether it was total or partial.

[00:29:50] Speaker 00:
And the answer here is partial.

[00:29:53] Speaker 00:
The Supreme Court told us what a total closure is.

[00:29:56] Speaker 00:
A total closure is excluding everyone other than the parties, witnesses, lawyers, and court personnel.

[00:30:04] Speaker 00:
If you look at the Nieto case from this court, that's exactly how the court analyzed the question.

[00:30:09] Speaker 00:
It basically said, all right, Waller says these four categories of people, was anybody else there?

[00:30:14] Speaker 00:
Yes, it was partial.

[00:30:16] Speaker 00:
And here, you had spectators, as Judge Timkovich noted.

[00:30:22] Speaker 00:
In this case, they were family members of victims, but they were spectators beyond the people in Waller.

[00:30:27] Speaker 00:
And you also had the ability for anyone to dial in.

[00:30:30] Speaker 00:
Well, I will also say there were spectators there.

[00:30:34] Speaker 00:
Holder had the opportunity to ask for anybody to come.

[00:30:36] Speaker 00:
He didn't.

[00:30:37] Speaker 00:
But we also had the audio dial-in number that would have allowed anyone to listen.

[00:30:42] Speaker 00:
So those things make this a partial rather than a total closure.

[00:30:47] Speaker 00:
So why does that matter?

[00:30:48] Speaker 00:
But you had to do some work to get the number, right?

[00:30:51] Speaker 00:
As Your Honor recognized, yes.

[00:30:53] Speaker 00:
I mean, the same kind of work you would have to do to walk into the court and go look at the calendar on the outside of the courtroom, you'd have to call the clerk's office and say, what trials are on?

[00:31:02] Speaker 00:
Can you give me the number?

[00:31:03] Speaker 00:
I think that's not really significantly more work than just go into the court to see what's on today.

[00:31:12] Speaker 00:
Now, so Holder insists that it doesn't matter whether it's total or partial because the standard is the same.

[00:31:18] Speaker 00:
And that's not the case.

[00:31:20] Speaker 00:
So if you look at Nieto, Galloway, Addison, and in particular Christie, this court has sort of repeated over and over in every partial closure case that we do not

[00:31:34] Speaker 00:
impose that requirement, that the closure be no broader than necessary, that the court consider every reasonable alternative, including alternatives not proposed by the parties.

[00:31:43] Speaker 00:
And I think I highlight Christie, because in that case, the defendant asked for that full Waller four-factor analysis, and the court said, no, no, no, we don't do that for partial closures.

[00:31:54] Speaker 00:
For partial closures, the question is, is the interest substantial, and has the court made a record sufficient for appellate review?

[00:32:02] Speaker 00:
Now I think that the courts, the interest here is protection of health and COVID.

[00:32:07] Speaker 00:
I think there's really no dispute that that was sufficient for either a partial or a total closure.

[00:32:12] Speaker 00:
On the findings, Judge Arguello found in her order on the post-trial motions that her closure was no broader than necessary because it complied with CDC guidelines and the protocols and general orders of the chief judge raising those guidelines.

[00:32:27] Speaker 00:
And there's been no challenge to the underlying facts there.

[00:32:31] Speaker 00:
So I think that this closure certainly passes muster as a partial closure, even if it was preserved, Your Honors.

[00:32:41] Speaker 00:
I'm happy to move on and discuss the constructive amendment issue as the court sees fit.

[00:32:45] Speaker 00:
I know my time is winding down.

[00:32:48] Speaker 00:
I think that there's a broad way to resolve all these constructive amendment questions, and then there are some narrow case specific ways.

[00:33:00] Speaker 00:
The broad way is just horn book law on indictments.

[00:33:05] Speaker 00:
The indictment sets the outer bounds of what a defendant may be convicted of.

[00:33:10] Speaker 00:
But that does not mean that the Petit jury has to find every single thing that is alleged in the indictment in order to convict.

[00:33:19] Speaker 00:
This goes right back to the Miller case from the Supreme Court from 1985.

[00:33:23] Speaker 00:
As long as what the defendant is convicted of states a violation of the statute and it is encompassed within the outer bounds of the indictment, there has been no constructive amendment.

[00:33:35] Speaker 00:
The particular point that my opposing counsel brought up here, the objects of the conspiracy, in that Miller case, the court made clear that you can be charged with two different means of committing a crime in an indictment, and the government only has to convict you on one or the other.

[00:33:54] Speaker 00:
And convicting on one but not the other is not a constructive amendment, even if it's charged in the conjunctive with an and.

[00:34:01] Speaker 00:
So here we have distribution of a counterfeit substance

[00:34:06] Speaker 00:
distribution of the substance containing fentanyl.

[00:34:08] Speaker 00:
Well, the jury found both of those things.

[00:34:10] Speaker 00:
They checked yes on both of those specific questions.

[00:34:13] Speaker 00:
And that's the narrow way to resolve this case.

[00:34:16] Speaker 00:
Even if that hadn't been the case, both of those means, both of those objectives of the conspiracy were alleged in the indictment.

[00:34:23] Speaker 00:
So either or both was fair game at trial without constructively amending the indictment.

[00:34:28] Speaker 00:
And I think that applies to all of the alleged constructive amendments here.

[00:34:33] Speaker 00:
If the court has no further questions, I'll ask that the judgment be affirmed.

[00:34:36] Speaker 00:
Thank you, counsel.

[00:34:36] Speaker 00:
Appreciate your argument.

[00:34:37] Speaker 00:
You're excused.

[00:34:38] Speaker 00:
Thank you.