freely and exercise his right allocution counsel i have two questions about the case about your argument that one is when i actually read what happened at the sentencing it looks as though the judge gave him his right allocution allocated and then he said that's all i have to say so he got allocution and the second is as for the judge clearing and closing the courtroom a to exactly this point and exactly this need i don't believe it is your honor but i don't have the authority before me to argue that you have the right to allocute at sentencing is the absolute right it's also under rule would have to say that i think there are two things that the preceding take all ready been closed or at least the document that the government had moved to seal its sentencing the big difference i'm sorry it's a big difference have to show a compelling interest you have to show a probability that the compelling interest will be entrenched and you have to consider that and i say you are talking about the just record has to consider less intrusive alternative means those three things have to be considered the press has to be notified and this district court has to make findings that's what we said in the phoenix newspaper case you said it consistently so you make the motion i'd like to see al that the government had moved to seal that sentencing memorandum now that's different that's completely different from from access to open courtrooms and that's why i said there may be reasons for all documents when they're pretty liberal about seizing sealing documents but when used when you keep the public and press out of the courtroom you have to make some very specific findings that's what our case law requires he said it's error for the district court to proceed to close proceedings without going through  documents in the case and it had sealed the documents upon the government's request or its statement that the defendant had cooperated and that the having the document open in the file might jeopardize him given h understand your question your honor what just feeling the doctor because means one thing causes the other or one thing compels the other and you said that it was ever for the judge not to close the courtroom because the judge sealed the documents i didn't understand why stealing the documents compelled or should cause closing the courtroom i'm saying that as as we approach that thing that day we had the record stood with the sentencing documents filed under seal so at that point you could have said he would like to use to make the statement in a closed courtroom or i he wants to say more but he can't but that's point out of the district judge no that he wanted to say anything for us to set the district court got this wrong the district court and there are so plain that we need to reverse this the district court has to have the opportunity really to say all right i didn't understand that you wanted to talk about it that the i felt severely restrained talking in an open courtroom about a defendant's cooperation i have an obligation to represent him your honor to get him a sentence that's fair that's good that's that acknowledges what he's done before knowing that of course that the court is going to try to give him a sentence that acknowledges all the bad done i also though your honor i have to consider that the man is in danger talking in front of a lot of people i must proffer to your honor that in my twenty we closed the courtroom or can we go last when no one else is around i have never had the motion tonight casey says there is a court clerk because that's all it's not really convenient or the government has said can we go l and again that if i had asked her for saying that this would happen i would have phrased it differently and i would have preferred it and i would have explained it differently to judge white at the time but the fact is when judge white said you can refer to this told him you're the snitch you're the guy who got all of us here this is you should have done that i don't know how i could have closed that to the court i would go back to saying that when the court sealed the sentencing memorandum when it granted the government's motion and my motion that was the status quo i thought that things were under seal it appears to me from reading orgone encasing from reading the supreme court case that in those the press then comes forward roth thank you ron i just wanted to say that neither the abuse of discretion nor the playing error standards of review are what apply here the only standard of review that the circuit has looked at in this instance is whether the court my name is jeff and again representing the united states in this matter the district court did not air here for two reasons as you have already pointed out judge white fully complied with rule thirty two he is typically and personally addressed the defendant mr bygone asked him if he had anything to say anything which is very broad allowed him to say to speak on any topic that you want to use to bygone took that opportunity and concluded his statement with that had said he can speak freely he would like to allocute but cannot talk because of the considerations that we've discussed if then the district court said well even with those that i'm not going to comply with the restrictions go ahead alec you think that's reversible error if i comply with the restrictions you know was it well i'm not going to close the courtroom you can say whatever you want to but i'm not going to grant your motion and i do not think that would be findings on the record which justify closing in those facts must show that there is a substantial likelihood that a compelling interest would be hornless by the defendant allocute ing in an open courtroom about his cooperation and had a a witness that you felt if you wanted to talk about these matters you had to put it under seal of v l s i it's not a frivolous argument by any means and he didn't if in fact he wanted to talk about it to the judge and had communicated thing going to be discussed in open court and regards to that the requirements that your honor has set forth still need to be followed in order to close the corn which was not done here and as counsel has pointed out record doesn't have any evidence of any harm or any prejudice i'm not sure i understood that are you saying that the defendant already knew that the co defendants already knew that he was one of the e your position to the note and regard to the motion to close the courtroom what would have been your position whether or not the court could have been closed yes you are my position would have been to either object or t submit it to the court to make that decision i would not have concurred i couldn't concur based on that record so you are returning to the rule thirty two here and judge white judge white please follow will thirty three there were no facts set forth for judge white to close the courtroom in fact when judge white indicated he would not close the courtroom he used the words i don't think it's necessary and therefore i'm not going to do it saying that i don't think it's necessary obviously invites defense counsel if defense counsel feels otherwise or wants to speak further to do so judge white also said that you may refer to this to look the cli if you wish to do so the topic was left open to be referred to and discussed discussing sounds to matters a sense and i don't know that i can say thank you and use transcript yes i have had cases with cooperation where upon a request without a motion a courtroom has been sealed and that has happened i something which by supreme court already he's actually forbidden to do and that is closed the courtroom without specific findings placed on the record those findings were never set forth so based on this record judge white was actually obligated he was every case i've had where there's a cooperating defendant indeed the other there was another cooperating defendant in this case in this very indictment and the courtroom as i read it from the docket was closed and i gather i mean reading between the lines of case to appear to be surprised is that you were surprised when the court wasn't close to the right i was completely surprised as i said i will do things differently in the future i will make a motion and i will file it before hand going to i will ensure that the press has access to that if that's the way it should be done i have never seen anyone else do it i know of no criminal practitioner who's done it i certainly in the case is the published cases they are cases where that's why that's why you provide notice and i don't think the press was uncooperative on and sensitive to these matters but that's that's balancing the rights and that's just the right balance in the district courts have to do and i think that i see that but that's why i also tried to pose to judge white an alternative and that was to go at the end of the calendar which would have been sufficient i mean the transcript then we'll probably there isn't anyone else around the defendant is then not threatened by other presence other people in the courtroom in mag with the case cited by the government the court from the third circuit the court says that this is the opportunity for the defendant to have