exclude members of the public from the gallery during trial to standard of review i believe is a de novo review and i know this court carefully reads the record in these cases but i do want to point out a couple of facts that i think are really important in this case the trial in this case consisted of two witnesses one witness was a apparently a law enforcement officer i can't tell if officer taylor was actually a dea agent or if he was a local law enforcement working in a task force which is what it appears to me but the second witness was anthony nixon and anthony nixon was an informant a codefendant if you will before the government called nixon to the stand and the government expressed its concern that mr nixon might be influenced by the fact that three other co defendants in the case were in the gallery of the court room barbie helms and dawson were those three names so that we can keep the players straight the record is clear the government never said to mr nixon that barbie helms and dawson are in the courtroom there's no evidence that nixon even knew that they were there nixon never expressed any fear or any feelings of intimidation to anyone the only expression of that fear or or concern is that the government expresses to the court i'm afraid that that might occur and that's really the the essence of of what is said in response to that fear the judge the district court turns to the defense counsel and says what do you say defense counsel says we have a sixth amendment right to a public trial we want to public trial and the court then says in order to urge on the side of caution i'm going to exclude these three men from the courtroom what's also unclear from the record is whether there was anyone else in the  gallery there's no evidence in the record one way or another to indicate whether that means that the court literally cleared the courtroom of all spectators or if this were three out of one hundred spectators there's simply nothing in the record th us know the answer to that question well i mean the court's decision for lack of a better term by its terms was pacific to these three individuals that's correct so i mean kind of you know if we just take that decision on its terms that would seem to be just excluding those three people rather than clearing the entire court room he didn't say nobody is permitted and don't let anybody in the doors he just said remove those three people you're correct your honor that he said remove those three people however i'm sorry judge me cut you off but you know if we look at these factors let's say there are four and the first one we're looking for with a substantial reason for closure well and then the second must be no broader necessary protect that interest and then the reason why alternatives so i kind of where would you focus here mainly it seems to me that if there had been no threat and if that had been shown relative to these three you would not question the fact that the judge could consider that first of all that would be an overriding up substantial reason for understand the government's argument the other courts of appeals have diminished that in partial closure cases we respectfully disagree with that argument but i would agree i'm sorry ok i just and i appreciate your you're making  position but then so i'm just trying to so that the next closure must be no broad in this area protect that interest if they had really threw at him and they were really concerned about him you would have no concern that the judge would probably put them out of the courtroom the possible alternatives called them up and tell them don't act that way but if that happened you would not because it sounds like to me your main issues relate to whether there are bad is adequate to support the closure but am i right about that honor i would as always quibble slightly with that characterization but how we want to characterize it and i respectfully what i would say judge is that the district court in this case did not make any findings that would support either an overriding or a substantial concern and the reason that i say that is the district court made no inquir day in united states district courts when there's trials going on judges take a break they were dire a witness to determine if the witness should be entitled to a fifth amendment privilege or other concerns twenty minutes fifteen minutes five minutes to bring mr nixon out say to mr nixon these men want to observe your testimony does that present a fear on your part or are you afraid of them have they tried to intimidate you there is nothing in the record to show that the district court made any of those inquiries and in fact in fairness to the district court i think the district court genuinely believed that it was not required to do those things that it had the discretion to err on the side of caution and that it could in order to vindicate the government's right to present witnesses free of intimidation we will want to put  honor i think at a minimum the district district court had to make findings supported by facts in the record that there was an actual threat to this witness or an actual attempt to intimidate this witness that's that's the first thing that i would require secondly i would require under the context of this fact of this case i would require the district court to hold a hearing and inquire of the witness himself which would you require that in every case that the judge actually inquire of the witness i mean there are other ways you can get information perhaps it would be a good thing to acquire the witness in most cases but would you make that an absolute requirement in the context of this case i would say that it's a required but i but i would agree with you judge there are other ways that the court could be satisfied that there is sufficient evidence to make the factual finding that an attempt to intimidate this witness has been made or an attempt to influence this witness has been made but can i just inject and two year your argument maybe you can respond against me and this made nixon feel uncomfortable and he was disquieted and then in the context of that the district court said something to the fact he doesn't just say i'm just going to exclude these three witnesses for the testimony he is concerned about the issue of intimidation and whether and witnesses testimony might be influenced because he says oh so you're i guess going back to my colleague's questions you just don't think that that he went far enough to clearly have the concern that there might be some intimidation or effort to influence mr nixon it's just money it seems that that was in context connected to these decision that has to be made in the context of the setting where it occurs i would point out to the court that mr simmons apparently had visited mr nixon at some point but the government expressly described that that meeting as one that did not include threats but that mr nixon was as the court properly quoted disquieted an uncomfortable  that's the way that the united states attorney described mr nixon's response to mr simmons visit these three men obviously were not part of that visit and there's no evidence on the record to show that  secondly the district court said i think the court does have the discretion if there is any possibility that it would be intimidating or possibly if it would influence a witness's testimony and there where i think the district court strayed from waller i think the district court's expression of that test was much broader than what wallace or i'm sorry waller permits i think what the the record before this district court was sufficient to justify the district court into making inquiry but the district court did not instead it simply acted and that's where i think the problem lies in this case we are balancing two very important rights the constitutional right of the defendant to a public trial against the government's right to present its witnesses free from intimidation and both of those rights need to be vindicated absolutely there's no question about that this record may present a question that may give rise to further inquiry the problem here is the district court never made that further inquiry it simply acted to exclude fifty percent it to exclude these three men from observing fifty percent of the trial we only had two witnesses and the only witness that actually put mr simmons in the in the soup so to speak was mr nixon and so the right to a public trial required more in this case it required at a minimum that the district judge make some further inquiry and i would suggest that waller requires that he be convinced that there was an overriding concern and that he make specific factual findings so that you could review the adequacy of his decision y like a mini trial or anything like that no your honor i think i've seen it done in five or six minutes of court time your honor i don't think it's that complex you bring the witness in you do of or die or do are you aware that these men want to observe or your testimony so that bother you if they threaten you are you afraid of them virus six questions ok well thank you thank you mr you'll have your rebuttal time please the court kevin ritz for the united states the district court here did nothing wrong when it asked three observers three co defendants to leave the courtroom during mr nixon's testimony the partial courtroom closure in this case the waller standard in the relaxed waller standard that we believe this court should apply and we asked this court to affirm first on this on the question of what standard should apply we've set that out in the brief that using the relaxed waller standard makes the most sense in a case where only a few observers are asked to leave their or diminished constitutional concerns when everyone else is welcome to attend there is a potential audience that remains other courts i should note since pressley have applied that relaxed standard what do you think about that if you judge judge oliver we do not disagree with first with the characterization of the facts or the shall we say spartan nature of this colloquy in the record here there is nothing in the record to tell us who else was in the courtroom however what we would submit is is in there is no dispute is that the ruling was limited to these three individuals and it's the court's ruling that's what's at issue here the ruling still allowed whether there was people in the courtroom or not for the opportunity for everyone else to be there press defendant's family whoever so i guess it's three it's not three out of three that we're really analyzing it's three out of infinity really so we obviously  concerns about potential witnesses and all that in a straightjacket as i said before but still we've got to have some measurable standard some something that's not us attorney says that we concerned this witness might be intimidated judge and the judge says well if you feel that way and i think that happened here i understand why you have that so if you feel that way i'll just exclude up let's start there i don't think you'd agree with that would you know your honor i i i would not agree that if the u s attorney came to me and says we we we just think we're worried about this witness the witnesses been shaky we've interviewed him two or three times he's back and forth on what he has to say he's nervous likely to testify would that be enough well the more the prosecutor says the more there could be a basis your honor and with that be enough with nothing more probably not your honor however the broader context a couple of things there the broader context of this case your honor at the time that this trial started there were sixteen defendants that had pled guilty of this twenty one person drug conspiracy this judge knew this case this judge knew that mr nixon was the ringleader of this drug conspiracy these three co defendants who were in the courtroom had pled guilty one of them had actually even been sentenced and there is no indication in fact this record suggests that they did not cooperate mr nixon mr simmons obviously did not cooperate with the government he was on trial mr nixon obviously did cooperate with the government there's that's what this record shows us and if you have facts where the defendant mr simmons approaches mr nixon a couple of times in the week before trial says are you really going to do this you're really going to do this and then mr nixon it is on the record that he's actually very short person mr simmons large person there has been these disparaging remarks said to mr nixon in the past i hope it's not on the record actually say yes ok i don't have those the post there is a proper i'm not suppose you could rely on a proper what question is what kind of information is the prosecutor proffering to the court that the prosecutors offer in support of it of course your honor and i wish i had more to work with with what the prosecutor said i wish i had more to work with with the with what the court said we have w we have in this case the defendant knew each other i mean this was a rural county this large drug conspiracy led by mr nixon these were people well knew each other a lot of those cases yes of course your honor and  i'm saying is that that had been fleshed out before this judge who had had handled all of these defendants had seen all these defendants come before him several times had had police hearings for these defendants knew that mr nixon had sent barbie in d cocaine knew that they knew each other there in this particular transcript that is not all fleshed out you know i can't hide behind far the rule is you know at the prosecutor's request the district court can exclude evidence in the record to support both the proffer and what the court found in i do want to say we would disagree with opposing counsel that there is no requirement that we've seen in the wall that there has to have been an actual threat or an actual effort in the past by this particular person to intimidate this particular person the risk of intimidation the potential for witness intimidation is what needs to be established and there needs to be findings of course to deal with the potential other than whatever i mean that limits on that yes your honor but that had happened not in this case however the those three defendants pled guilty did not cooperate in the context of a twenty one member drug conspiracy where this ringleader has obviously decided to cooperate with the government and obviously looking for a benefit in his case and these other people have obviously decided not to go that route have been since one had  sentenced actually i think just two days before this trial started one had been since the other two had pled they want to know they want to know what's being said in that trial but i think i think that's right your honor and i don't think it's that much of an inference when you when you can combine all of these things to say they're there for the same reason that perhaps mr simmons went to go see mr are you really are you really going to do this i mean there is this i mean are you really going to you know cooperate people have other words for that against this other guy who we all know we all mr x i mean the concern i have read your position is not so much about the findings you know adequacy of findings that sort of concerns whether the district court made certain determinations it's really the basis for them i mean there's no inquiry here at all we're we're just speculating about whether some of these you know this sort of sprinkling of facts that we can glean from the record might have affected this witness i mean the findings are as good as the foundation for them and the district court asked not a single question here i mean isn't isn't this absence of a foundation for whatever findings he did make something that requires us to vindicate it you know a right that spelled out in black and white in the constitution not in this case your honor and if i could explain why the values behind the rights ensuring that the public has an opportunity to see what's going on ensuring that the players in this courtroom are being kept aware of their immense responsibilities the judge the prosecutors discouraging perjury encouraging witnesses to come forward there is a disconnect in or view if this court decides to reverse this conviction based on what in this colloquy and the exclusion of these three individuals and vindicating those rights behind the six of them in public trial right none of those rights and none of those values i'm sorry interests values behind that right were were harmed or jeopardized in this case at all and i mean you can't just kick people out of the courtroom and say you know the right to a public trial hasn't been harmed at all it's been harmed partially and so we have a partial closure and as you know you know we have to figure out what kind of standard in you want to have a substantial reason i understand that yes if you're that's a substantive issue you know how important has must this interest rate you know i guess what i'm questioning you about it more of a procedural one you know i mean what kind of process what kind of record must the court make before we're going to say you're substantive determination that's enough your honor i think the cases tell us the cases that we cite lots of cases out there tell us that in a case where you're excluding the defendant's family you've got to do more both the perhaps the government or whoever's requesting for the closure needs to do more in the court need sounds like substance you know well the i do believe that the  nature of the process is a function of the of the scope of the closure and here we have three people three individuals and i think the case is this is a de minimus foundation here pretty much and so it sounds like your kind are going well you know it's a de minimus closures work ok we're not arguing that actually we thought about it for you and there are cases that talk about de minimus closures where you know somebody is basically just walked out of the courtroom for two seconds and something happens that's not your testimony that kind of thing that's that's not what happened we had here today steps baby steps crime years yes your honor and we had one witness and there was obviously for the testimony of this minimus closure in the sense that some of the other courts of let me give you my other concern here and so we have the foundational concern the other concern is the standard that the just record seems to apply here again the backdrop is this is a serious constitutional right and the court says well i want to avoid i think the words were any possibility that this witness might be nervous and so i'm going to err on the side of caution well you know the any possibility that the witness might be nervous and i'm not going to bother to ask the witness himself that's that's not something is that something you think we our court should approve no you shouldn't be writing that in the opinion in this way that's what he did but the question you're proving it right no your honor the question the question of what the district court said is obviously relevant to what this core does and how this court applies either the wall or test of the relaxed wall or test but the question is whether what the district court did meets that test in what he said in the way he articulated it isn't necessarily i guess what you know he said know he seems to apply is it fair to say that the rationale for his decision net is i want to avoid any possibility that this witness is going to be scared i think no your honor and i got a fair reading and i think that the fairer reading i don't think that's a fair reading and i'm i'm being i'm trying to be candid with the court i think are not you know absolute the fairest reading we would submit is that because of these defendants who i've had in front of me have pled guilty i know what they did i know their connection with mr nixon in this drug conspiracy there is a possibility that let me let me read to you what the district judge said but i think the court does have the discretion if there is any possibility that it would be intimidating or possibly if it would influence a witness's testimony then i think the court probably would rather side on being cautioned  basically kind of gets a little garbled from there is that that seems to be the distillation of his reasoning here i think it's in our it's in any possibility test is just not going to work i don't disagree your honor and i guess that's that's not the test wording this court to adopt and if that is how he or to kill it it in the broad sense the application of whatever test he was using is that he found that these three individuals could potentially put pose a risk of intimidating this particular witness and that was you know we talked about the bit the basis for that had and what it what there is in the record to support that so i guess in other words we we read that as a finding that there is this risk and it's a specific specific enough finding we would submit would you i mean the court seems to say that it wants to err on the side of caution  certainly ok now i mean but you can't err on the side of violating the constitution can you and so let's say i don't know the factors in front of the court are sort of an poise there seems to be a bit of a risk not a big risk sort of you know a moderate or minor risk that this witness might be intimidated by you know it's not a full closure to we just err if we're going to make a mistake here i don't want to make the mistake of having the witness be intimidated i'm going to make the mistake if there's going to be an error i'm violating a sixth amendment rights i mean is that is would be i'm going to i'm going to be cautious and i think that would probably be permissible but that's not what happened i don't think we would submit it's the same we would submit what happens here is good enough one of the tests that we've heard and as we that to the judge unless somebody finds that word and you need not worry about a mistake on that these that side on on the right side of being cash and if there are n offers catholic you're correct on page twenty two eighty one of the record the judge said then i think the court probably would rather side on being caution right yeah the word  clearly added that i guess in my mind but clearly that's the import of what the judge was saying in the wrong with doing that is there if the facts but the fact that been developed in the case is not always clear cut you don't want someone harm you also want to make you a person sesamoid is not unduly influence so if you make a good record it wouldn't would there would be no harm in saying right that you would stop in this case  side of being cautious i don't think that would i would agree with you judge and i think we all are actually teaches us that because waller says we are to balance these two interest the problem that i have is the district court appeared to completely disregard the sixth amendment interest and put all of the balance in the favor of the prosecution's right to have its witnesses testify free from fear or the risk of intimidation and i know that the government did not expressly argue harmless error but the essence as as i gathered it the essence of his argument was in this case it was no harm no foul well clearly arizona versus fulminant a says we can't do that when it's a sixth amendment violation it's not a harmless error analysis and finally i guess i would say one can imagine a record where it's perfectly appropriate to exclude these three witnesses we do not have that record in this case the facts were not develop sufficiently to support the district court's action and we ask that you reverse