### UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A.Shumaker Clerk Chief Deputy Clerk February 10, 1997

TO: All recipients of the captioned opinion
RE: 96-1469 and 96-1475, U.S. v. McVeigh 96-1484, Kight v. Matsch February 4, 1997
Please be advised of the following corrections to the captioned decision: In footnote 3 on page 13, in the parenthetical for the Burks case, “witnesses’” should read “witness’s.” In the firstfull paragraph on page 21, “principal” should read “principle.” Please make the appropriate corrections. Very truly yours, Patrick Fisher, Clerk

Susie Tidwell Deputy ClerkPUBLISH
UNITED STATES COURT OF APPEALS Filed 2/4/97 TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. TIMOTHY JAMES MCVEIGH; TERRY LYNN NICHOLS,

Defendants-Appellees.

------------------------------------ NATIONAL VICTIMS CENTER; MOTHERS AGAINST DRUNK DRIVING; THE NATIONAL VICTIMS’ CONSTITUTIONAL AMENDMENT NETWORK; JUSTICE FOR SURVIVING VICTIMS, INC.; CONCERNS OF POLICE SURVIVORS, INC.; CITIZENS FOR LAW AND ORDER, INC; CRIMINAL JUSTICE LEGAL FOUNDATION,

Amici Curiae. No. 96-1469-2-

_______________________________ UNITED STATES OF AMERICA,

Plaintiff,

v. TIMOTHY JAMES MCVEIGH; TERRY LYNN NICHOLS,

Defendants-Appellees.

------------------------------------ MARSHA KIGHT; H. TOM KIGHT; JEAN BELL; EVA MAUREEN BLOOMER; MARVIN BUCKNER; MARTIN CASH; MARGIE CASH; JANNIE M. COVERDALE; CHRISTOPHER C. GREGAN; SAUNDRA K. CREGAN; DAWN DEARMON; JODY DEARMON; DORRIS DELMAN; ERNEST DELMAN; LESLIE DOWNEY; MIKE DOWNEY; CECIL ELLIOTT; SONIA DIANE LEONARD; CATHY MCCASKELL; C. NEIL MCCASKELL; AMY L. PETTY; ROY SELLS; TERRI SHAW; PARTRICIA SMILEY; ENETRICE SMILEY; TINA TOMLIN RICHARD TOMLIN; KIM TOMLIN; JUDY WALKER; NATIONAL ORGANIZATION FOR VICTIM ASSISTANCE; JULIE ANN ADAMS; JANET K. BECK; MARY SUZANNE BRITTEN; JOHN HENRY CARLILE; GLORIA CHIPMAN; SANDRA KAY COLE; JOHN COLE; No. 96-1475-3-

SHERRI A. COLEMAN; TERESA C. COOK; CATHY JEAN COULTER; KEITH T. COVERDALE; LAQUITA COWAN; HERBERT RANDY CREAGER; RITA CREWS; VIRGINIA DILLON; ELLA GAIL DRISKILL; YLITA R. EDD; CODY FARMER; VIRGINIA FREDMAN; JOHN J. GALE; HELENA ANNETTE GARRETT; JANE C. GRAHAM; TAMARA GREINER; JANET C. GWYNN; PATRICIA PATTI HALL; LADONNA J. HARRIS; GINA HERNANDEZ; PERLA BUHAY HOWARD; CHEYRE ROGENE HUGHES; GERMAINE A. JOHNSTON; DORIS JONES; VERLYN Z. LAWTON; FRANCES LEONARD; CALVIN MOSER; VIRGINIA G. MOSER; BARBARA ANN MURCHISON; MARIOIN A. RAGLAND; RITA H. RAINS; BEVERLY ANN RANKIN; DORA REYES; MICHAEL REYES; FLORENCE ROGERS; GUY GERARD RUBSAMEN; MICHAEL J. SCHUMAN; GLENN SEIDL; EDYE SMITH; PHILIP THOMPSON; SHELLY RENEE THOMPSON; GLORIA TITSWORTH; WILLIAM TITSWORTH; JACQUE LEA WALKER; JANET EHRLICH WALKER; DONNA WEAVER; WANDA R. WEBSTER; SUZANNE WELCH; E.E. “BUD” WELCH; RICHARD WILLIAMS,

Movants-Appellants.-4-

----------------------------------- NATIONAL VICTIMS CENTER; MOTHERS AGAINST DRUNK DRIVING; THE NATIONAL VICTIMS’ CONSTITUTIONAL AMENDMENT NETWORK; JUSTICE FOR SURVIVING VICTIMS, INC.; CONCERNS OF POLICE SURVIVORS, INC.; CITIZENS FOR LAW AND ORDER, INC.; CRIMINAL JUSTICE LEGAL FOUNDATION,

Amici Curiae.

----------------------------------- MARSHA KIGHT; H. TOM KIGHT; JEAN BELL; EVA MAUREEN BLOOMER; MARVIN BUCKNER; MARTIN CASH; MARGIE CASH; JANNIE M. COVERDALE; CHRISTOPHER C. CREGAN; SAUNDRA K. CREGAN; JODY DEARMON; DORRIS DELMAN; ERNEST DELMAN; LESLIE DOWNEY; MIKE DOWNEY; CECIL ELLIOT; SONIA DIANE LEONARD; CATHY MCCASKELL; C. NEIL MCCASKELL; AMY L. PETTY; ROY SELLS; TERRI SHAW; PATRICIA SMILEY; ENETRICE SMILEY; RICHARD TOMLIN; KIM TOMLIN; NATIONAL ORGANIZATION FOR VICTIM ASSISTANCE; JULIE ANN ADAMS; JANET K. BECK; MARY SUZANNE BRITTEN; JOHN HENRY CARLILE; GLORIA CHIPMAN; No. 96-1484-5-

SANDRA KAY COLE; JOHN COLE; SHERRI A. COLEMAN; TERESA C. COOK; CATHY JEAN COULTER; KEITH T. COVERDALE; LAQUITA COWAN; HERBERT RANDY CREAGER; RITA CREWS; VIRGINIA DILLON; ELLA GAIL DRISKILL; YLITA R. EDD; CODY FARMER; VIRGINIA FREDMAN; JOHN J. GALE; HELENA ANNETTE GARRETT; JANE C. GRAHAM; TAMARA GREINER; JANET C. GWYNN; PATRICIA “PATTI” HALL; LADONNA J. HARRIS; GINA HERNANDEZ; PERLA BUHAY HOWARD; CHEYRE ROGENE HUGHES; GERMAINE A. JOHNSTON; DORIS JONES; VERLYN Z. LAWTON; FRANCES LEONARD; CALVIN MOSER; VIRGINIA G. MOSER; BARBARA ANN MURCHISON; MARION A. RAGLAND; RITA H. RAINS; BEVERLY ANN RANKIN; DORA REYES; MICHAEL REYES; FLORENCE ROGERS; GUY GERARD RUBSAMEN; MICHAEL J. SCHUMAN; GLENN SEIDL; EDYE SMITH; PHILLIP THOMPSON; SHELLY RENEE THOMPSON; GLORIA TITSWORTH; WILLIAM TITSWORTH; JACQUE LEA WALKER; JANET EHRLICH WALKER; DONNA WEAVER; DAWN LEINEN DEARMON; DONNA HAWTHORNE; WANDA R. WEBSTER; SUZANNE WELCH; PAUL HOWELL; SHARON LITTLEJOHN; E.E. “BUD” WELCH;-6-

RICHARD WILLIAMS; STEVE SMITH; AMBER TINA TOMLIN; JUDY WALKER,

Petitioners,

v. HONORABLE RICHARD P. MATSCH, District Judge,

Respondent.

----------------------------------- UNITED STATES OF AMERICA; TIMOTHY JAMES MCVEIGH; TERRY LYNN NICHOLS;

Real Parties In Interest, NATIONAL VICTIMS CENTER; MOTHERS AGAINST DRUNK DRIVING; THE NATIONAL VICTIMS’ CONSTITUTIONAL AMENDMENT NETWORK; JUSTICE FOR SURVIVING VICTIMS, INC.; CONCERNS OF POLICE SURVIVORS, INC.; CITIZENS FOR LAW AND ORDER, INC.; CRIMINAL JUSTICE LEGAL FOUNDATION,

Amici Curiae.-7- APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO (D.C. No. 96-CR-68-M)

Submitted on the briefs: Merrick Garland, Principal Associate Deputy Attorne y General, Joseph H. Hartzler, Special Attorney to the U.S. Attorney Gen eral, Sean Connelly, Special Attorney to the U.S. Attorney General, Vicki Zemp B ehenna, Special Attorney to the U.S. Attorney General, Denver, Colorado, for Pl aintiff-Appellant United States of America. Professor Paul G. Cassell (Counsel of Record), SaltLake City, Utah, Sean Kendall, (Local Counsel), Boulder, Colorado, Gary B . Born, Robert F. Hoyt, Arnon D. Siegel, Karan K. Bhatia of Wilmer, Cutler & Pickering, Washington, D.C., for Victims of the Oklahoma City Bombing and NOVA. Michael E. Tigar, Ronald G. Woods, N. Reid Neureite r, Adam Thurschwell, and Jane B. Tigar, Denver, Colorado, for Defendant-Appe llee Terry Lynn Nichols. Stephen Jones, Robert Nigh, Jr. of Jones, Wyatt & R oberts, Enid, Oklahoma, Richard H. Burr, III, Houston, Texas, and Jeralyn E . Merritt, Denver, Colorado, for Defendant-Appellee Timothy James McVeigh. Kent S. Scheidegger, Charles L. Hobson, Criminal Ju stice Legal Foundation, Sacramento, California, for Amicus Curiae Criminal Justice Legal Foundation. Arnold I. Burns, Peter J.W. Sherwin of Proskauer Ro se Goetz & Mendelsohn LLP, New York, New York, for Amici Curiae.

Before PORFILIO, KELLY, and BRISCOE, Circuit Judges

.

PER CURIAM.-8-

In these consolidated proceedings, we address an important question of criminal procedure involving significant interests of the defendants, prosecution, crime victims, and public, which has thus far recei ved virtually no judicial attention: whether a pretrial order prohibiting vi ctim-impact witnesses from attending the criminal prosecution in which they ar e slated to testify is subject to review at the urging of either the government or th e nonparty witnesses themselves. Upon careful consideration of the vari ous constitutional and statutory ramifications, we conclude as a general m atter, and hold in this particular case, that it is not, though we do not c ategorically rule out the possibility of mandamus relief for the government i n the event of a patently unauthorized and pernicious use of the sequestratio n power. In early pretrial hearings, the district court invo ked, originally on its own initiative and, thereafter, at the insistence of de fense counsel, the traditional rule authorizing the sequestration of witnesses. See Fed. R. Evid. 615 (“At the request of a party the court shall order witnesses excludedso that they cannot hear the testimony of other witnesses, and it may make the o rder of its own motion.”). Later, in response to an extensively briefed and fo rmally argued request for reconsideration, the district court reaffirmed its adherence to Rule 615, prompting the current proceedings for review.1 We grant motions filed by The Criminal Justice Lega l Foundation

and The National Victims Center, Mothers Against Drunk Driving, The National Victims’ Constitutional Amendment Network, Justice for Surviving Victims, Inc., Concerns of Police Survivors, Inc., and Citizens fo r Law and Order, Inc., to submit amicus curiae briefs in support of the appel lants.

2 After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would notmaterially assist the determination of these proceedings. See Fed. R. Ap p. P. 34(a); 10th Cir. R. 34.1.9. The cases are therefore ordered submitted on the briefs. -9- The government and the excluded witnesses filed sep arate appeals, Nos. 96-1469 and 96-1475, respectively, which defendants moved to dismiss on procedural grounds. The excluded witnesses then fi led a petition for a writ of mandamus, No. 96-1484, and the government added an informal request for mandamus consideration, both seeking to secure an a lternative avenue of review in the event their appeals were deemed defective. This court consolidated all of the proceedings and granted expedited review. The briefs of the parties and amici 1 have now been filed, putting the case at issue. 2 On de novo consideration of the fundamental threshold questions raised by de fendants’ motions, see Wilson v. Glenwood Intermountain Properties, Inc. , 98 F.3d 590, 593 (10th Cir. 1996) (standing); Comanche Indian Tribe v. Hovis , 53 F.3d 298, 302 (10th Cir.) (jurisdiction), cert. denied , 116 S. Ct. 306 (1995), we dismiss the government’ s appeal on jurisdictional grounds, deny as inappropr iate its request for mandamus review, and dismiss the excluded witnesses’ appeal and mandamus petition for lack of standing.-10- I The government’s right to appeal in criminal cases is subject to unique limitations. Recently, in United States v. Carrillo-Bernal , 58 F.3d 1490 (10th Cir. 1995), we surveyed in detail the historical evoluti on of the government’s right to appeal in criminal cases. Id

. at 1494-97. . . . Before the turn of this century, government appeals in criminal cases were considered verboten. Since then, Congress has progressively loosened the government’s ability to receive appell ate review of unfavorable district court decisions in criminal matters. Id. at 1494-95. However, two general rules have survived this historical evolution: the government may only initiate crimin al appeals based on specific statutory authority; and there is a pre sumption against government criminal appeals. Id. United States v. Roberts , 88 F.3d 872, 883 (10th Cir. 1996). Because the g eneral jurisdictional statute governing the federal appell ate courts, 28 U.S.C. § 1291, does not supply the requisite authorization for the government’s appeal, we look to the Criminal Appeals Act, 18 U.S.C. § 3731, to r esolve the jurisdictional question raised here. See Di Bella v. United States , 369 U.S. 121, 130 (1962);
see, e.g. , United States v. Sasser , 971 F.2d 470, 473 (10th Cir. 1992); United States v. Hines , 419 F.2d 173, 174 (10th Cir. 1969); United States v. Cote , 51 F.3d 178, 180 (9th Cir. 1995); United States v. Martinez , 763 F.2d 1297, 1307-08 (11th Cir. 1985). We approach this inquiry mindful of the Supreme Court’s “insist[ence] that Congress speak with a clear voic e when extending to the-11-

Executive a right to expand criminal proceedings [b y appeal].” Arizona v. Manypenny , 451 U.S. 232, 247 (1981).
A Since its last substantive amendment in 1984, § 373 1 has expressly authorized government appeals: [1] from a decision, judgment, or order . . . dismi ssing an indictment or information or granting a new trial after a verd ict or judgment, as to any one or more counts, except . . . where the d ouble jeopardy clause . . . prohibits further prosecution[;] [2] from a decision or order . . . suppressing or e xcluding evidence or requiring the return of seized property in a crimin al proceeding, not made after the defendant has been put in jeopardy a nd before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purposes of delay and that the evidence i s a substantial proof of a fact material in the proceeding[; and] [3] from a decision or order . . . granting the rel ease of a person charged with or convicted of an offense, or denying a motion for revocation of, or modification of the conditions of , a decision or order granting release. These conditions permitting appeal have been “caref ully circumscribed by Congress out of a desire (among other reasons) to s afeguard individuals from the special hazards inherent in prolonged litigation wi th the sovereign.” Carrillo-Bernal , 58 F.2d at 1497; see also United States v. Martinez , 681 F.2d 1248, 1251 (10th Cir. 1982)(“The right to appeal is strictly circumscribed by [§ 3731].”). Accordingly, “[t]he statute plainly l imits appeals by the United3 We say “nor practically effecting” because § 3731 c an apply to

rulings which, though nominally outside the scope o f the statute, have the practical effect of orders clearly covered. See United States v. Zabawa , 39 F.3d 279, 283 (10th Cir. 1994); United States v. Drogoul , 1 F.3d 1546, 1551 (11th Cir. 1993); United States v. Kane , 646 F.2d 4, 7 (1st Cir. 1981) (collecting cases). Specifically, orders directing the government to ta ke action and specifically providing for the exclusion of related evidence in the event of noncompliance have been deemed “conditional suppression” orders and thereby brought within a liberal construction of the statute. See, e.g. , United States v. Horwitz , 622 F.2d 1101, 1104-05 (2d Cir. 1980) (order requiring government to immunize defense witness or lose testimony of immunized prosecution witnesses); United States v. Battisti , 486 F.2d 961, 965-67 (6th Cir. 1973) (discovery o rder stating noncompliance “will result in the exclusion of the testimony of the witness or witnesses to which [it] pertains”). That said, we agree with the thoughtful analysis of such cases in Kane , 646

(continued...) -12- States to [the three] specified categories of distr ict court orders.” United States v.
Patterson , 882 F.2d 595, 598 (1st Cir. 1989) (quotation omitted); see Di Bella , 369 U.S. at 130 (right of appeal under § 3731 “is c onfined to narrowly defined situations”); United States v. Mavrokordatos , 933 F.2d 843, 846 (10th Cir. 1991) (“The statute was intended to make appeals possible under the stated circumstances.”). Nothing in § 3731 remotely suggests that the govern ment may appeal a witness sequestration order. The circuit courts have repeatedly dismissed government appeals taken from similar preliminary rulings which, neither ordering nor practically effecting the dismissal of charges, exclusion of evidence, or release of the defendant, fell outside the categ ories specified in § 3731. 3 See,3 (...continued)

F.2d at 8, which dismissed an appeal from a discove ry order citing “a critical distinction” pertinent here as well: “The districtcourt has not stated that it will exclude evidence if the government fails to comply. Rather than being a conditional order of exclusion, . . . the order in question is an unconditional direction which may be enforced by any of a variety of sanctions, only one of which is exclusion of evidence.” The same is true of the sequestration order issued in this case. See United States v. Sepulveda , 15 F.3d 1161, 1177 (1st Cir. 1993) (upon breach of sequestration order, “the nee d for a sanction, and the nature of one, if imposable, are matters committed to the trial court’s sound discretion.”); see also Burks v. Oklahoma Publ’g Co. , 81 F.3d 975, 980 (10th Cir.) (“When a witness violates a sequestration ord er, it is within the district court’s discretion to admit or exclude the witness’ s testimony.”), cert. denied , 117 S. Ct. 302 (1996). Kane notes the additional point, also applicable here, “that the government has not signaled whether it intends to c omply with the district court’s order or not. . . . To show the court’s order has the ‘practical effect’ of excluding evidence, we think the government must go further and commit itself to a course of action which makes exclusion, practically speaki ng, inevitable.” 646 F.2d at 8. -13- e.g , Roberts , 88 F.3d at 882-84 (order deferring ruling on excl usion of evidence until proffer at trial); United States v. Dean , 989 F.2d 1205, 1210-11 (D.C. Cir. 1993)(same); United States v. Camisa , 969 F.2d 1428, 1429-30 (2d Cir. 1992)(order denying motion to disqualify defense co unsel); United States v. White , 743 F.2d 488, 493 (7th Cir. 1984)(same); United S tates v. Booth , 669 F.2d 1231, 1240 (9th Cir. 1981)(order granting admissionof evidence); United States v. Margiotta , 662 F.2d 131, 137-41 (2d Cir. 1981)(order approvi ng disputed jury instruction); Kane , 646 F.2d at 7-9 (order compelling discovery); Uni ted States v. Martin , 611 F.2d 260, 261 (9th Cir. 1979)(order permittin g withdrawal of guilty4 The collateral-order doctrine originates from Cohenv. Beneficial

Indus. Loan Corp , 337 U.S. 541 (1949). -14- plea). We likewise hold that § 3731 does not provi de the necessary authorization for the government’s appeal in this case.
B Perhaps anticipating this conclusion, the government has essentially ignored § 3731 and, instead, relied exclusively on a judicially recognized exception to the foregoing limitations on government appeals. In Carroll v. United States , 354 U.S. 394, 403 (1957), the Supreme Court ackno wledged in the criminal context an interlocutory-appeal rule analo gous to the Cohen collateral-order doctrine 4 familiar in civil cases: “[C]ertain orders relati ng to a criminal case may be found to possess sufficient in dependence from the main course of the prosecution to warrant treatment as p lenary orders, and thus be appealable on the authority of 28 U.S.C. § 1291 wit hout regard to the limitations of 18 U.S.C. § 3731.” The Court cautioned, however , that “[t]he instances in criminal cases are very few.” Id. ; see United States v. Denson , 588 F.2d 1112, 1126-27 (5th Cir. 1979) (Carroll “emphasized the rareness of such orders”). Notwithstanding that admonition, and despite the ab sence of any authority applying Carroll to a witness-sequestration order, the government m aintains the independent-proceeding exception supports its appea l here.-15-

The government contends the sequestration order (1) “conclusively [determined] that victim-witnesses are not entitledto attend court proceedings,” (2) impacts an “important right” that “is ‘complete ly separate from the merits’ of whether defendants are guilty and how they should b e punished,” and (3) “would be ‘effectively unreviewable’ after [trial],” and, therefore, that the “Coheninquiry is easily satisfied here.” Brief of Plaintiff-Appe llant, at 9-11; Reply Brief of Plaintiff-Appellant, at 3. The conclusion of this argument bespeaks its flaw. Given the severe limitations on the government’s ri ght of appeal from final criminal judgments--including the complete prohibit ion thereon following a jury acquittal--pretrial criminal rulings would as a routine matter arguably, if not “easily,” satisfy the Cohencriteria. However, the pertinent case law does no t countenance the evisceration of § 3731 by any such wholesale departure from the traditional presumption against government interloc utory appeals in criminal cases. Indeed, the Supreme Court has specifically noted that the considerations disfavoring such appeals are “made no less compelli ng . . . by the fact that the Government has no later right to appeal.” Di Bella , 369 U.S. at 130. The basic problem with the government’s Cohenargument arises from the government’s consistent failure throughout this app eal to come to grips with the fundamental principle that for it to appeal in the criminal context, authorization under § 3731 is an independent requirement in addit ion to the finality demanded5 Congress subsequently amended § 3731 specifically t o authorize

appeal from orders “granting a new trial after verd ict or judgment” when otherwise constitutionally permissible. -16- by § 1291. Obviously, it is only the latter condit ion that traditionally has been excused by the civil Cohencollateral-order doctrine. Thus, when the governm ent seeks review in a criminal case, concerns unaddress ed by Cohencome into play. The Second Circuit has acknowledged this same cruci al point in rejecting the government’s invocation of Carroll and Cohenin support of an appeal unauthorized by § 3731:

The same considerations that have led the courts to avoid construing § 3731 broadly as authorizing appeals fr om new-trial orders [5] lead us to eschew expansion of the traditional sco pe of § 1291 to allow the present appeal [under Carroll and Cohen ]. . . . This historic policy disfavoring government appeals in criminal cases, which has repeatedly been reaffirmed by the Court concurrently with its recognition of Congress’s inc reasing allowance of interlocutory appeals, has a prudential basis, ‘ over and above the constitutional protection against double jeopardy,’ Di Bella [, 369 U.S. at 130.] The principal prudential bases are th e avoidance of undue delay, see Carroll [, 354 U.S. at 415] . . . , and the avoidance of harassment, see Arizona v. Manypenny , [451 U.S. at 246]. . . . Finding no express authority in § 1291 authorizing government appeals in criminal cases, and viewing the new tria l order as a nondispositive part of the main stream of the prose cution, we decline to construe § 1291, or the Cohen-Carroll exception, so broadly as to give us jurisdiction in the present case. United States v. Sam Goody, Inc. , 675 F.2d 17, 23-24 (2d Cir. 1982). Similarly, when the First Circuit recently relied on Carroll and Cohento hear a government appeal from a post-judgment order imposing monetarysanctions for prosecutorial-17-

misconduct, the court emphasized that its holding h ad to be “a narrow one” because of precisely the same point: Rather than importing the collateral order doctrine lock, stock, and barrel into our criminal jurisprudence, we hold onl y that when, as now, the conditions of the collateral order doctrin e are satisfied, and the prudential concerns that traditionally militate against allowing the government to appeal in a criminal case favor, or a re at least neutral in respect to, the availability of a government app eal, then section 1291 affords a vehicle through which the governmentmay seek appellate review in a criminal case. United States v. Horn , 29 F.3d 754, 769 (1st Cir. 1994) (footnote omitte d). Significantly, the Horncourt found the additional “prudential concerns” r egarding government criminal appeals satisfied for unique re asons completely inapposite here: “the determination of the defendants’ guilt has been made, sentence has been imposed, the attempted appeal is not interlocu tory in any sense, and no prospect of piecemeal litigation endures.” Id. at 768-69. We need not now decide upon any comprehensive, saga cious formulation for resolving the validity of all attempts by the g overnment to appeal from interlocutory orders falling outside the compass of § 3731. The Supreme Court’s initial heuristic prescription, specifying “orders . . . found to possess sufficient independence from the main course of the prosecutio n to warrant treatment as plenary orders,” Carroll , 354 U.S. at 403, fully suffices for present purpo ses. While legislative expansion of § 3731 has supersede d the particular holdings of the seminal Supreme Court decisions establishing an d implementing this6 Carroll cautions that “[a]ppeal rights cannot depend on th e facts of a

particular case.” 354 U.S. at 405. Thus, we must consider the appealability of sequestration orders as a class, not the distinctiv e circumstances of this case. See Van Cauwenberghe v. Biard , 486 U.S. 517, 529 (1988). -18- prescription, see id. at 403-04 (dismissing appeal of suppression order and discussing limited circumstances when order returni ng seized property might be appealable); Di Bella , 369 U.S. at 130-32 (same), the analysis informing those decisions still holds counsel for us today. Thus, we draw a keen sense of the strict “independence” required for application of t he independent-proceeding rule from Di Bella ’s pronouncement that even such a collateral crimin al matter as a proceeding “solely for return of property” can be r egarded as independent only if it “is in no way tied to a criminal prosecution in esse .” Id. at 131-32; see also Hines , 419 F.2d at 175 (noting “narrow ground” for appea l carved out by Carroll and Di Bella , and paraphrasing Supreme Court’s “unequivocal lan guage” therein as requiring a matter “totally segregated from” and “[not] even remotely connected [to]” a “pending criminal prosecution”). The district court’s sequestration order clearly is not independent from the ongoing criminal prosecution out of which the government’s appeal arises. Indeed, the stated purpose of the order, consistentwith the recognized policy underlying Rule 615 generally, 6 is to preserve the integrity of that very proceedi ng by eliminating a potential source of impermissible influence on proposed-19-

testimonial evidence. The fact that the victim-imp act evidence involved here would relate only to sentencing matters does not al ter our analysis. Far from being collateral to the main course of the prosecut ion, “[t]he sentencing process is the inevitable culmination of a successful prosecut ion; it is an integral aspect of a conviction.” Denson , 588 F.2d at 1126; see United States v. Patterson , 882 F.2d 595, 599 (1st Cir. 1989); United States v. Hundley , 858 F.2d 58, 65 (2d Cir. 1988). Accordingly, we hold that neither § 3731 nor the in dependent-proceeding exception thereto apply to the government’s appeal. We therefore dismiss the appeal for lack of the requisite jurisdictional aut horization, and turn to the government’s alternative request for a writ of mand amus. C Ordinarily, the unavailability of appeal favors man damus consideration. But the lack of appellate jurisdiction here is not a mere procedural contingency fortuitously precluding review; on the contrary, th e government’s right of appeal in this context has been “carefully circumscribed b y Congress” to safeguard important interests. Carrillo-Bernal , 58 F.3d at 1497. The federal courts of appeal “are courts of limited jurisdiction . . . empowered to hear only those cases . . . entrusted to them . . . by Congress[,]. . . [ which] possesses plenary power to confer or withhold appellate jurisdiction.” Henry v. Office of Thrift Supervision ,-20-

43 F.3d 507, 511 (10th Cir. 1994). “Were we to acc ede to the government’s request [for mandamus relief], we would be expandin g the government’s right to bring interlocutory criminal appeals beyond the terms of [§ 3731]. We do not believe mandamus provides the appropriate avenue fo r such expansion.” Roberts , 88 F.3d at 884; see Will v. United States , 389 U.S. 90, 97 (1967) (“Mandamus . . . may never be employed as a substitute for appeal in derogation of the[] clear policies [embodied by the limitations in § 3731].”) ; Margiotta , 662 F.2d at 134 n.8 (“Mandamus is not to be employed to circumvent the limitations of the Criminal Appeals Act.”). While mandamus may not be used to circumvent the po licies effectuated by the restrictive provisions of § 3731, “[t]his is no t to say that mandamus may never be used to review procedural orders in criminal cas es.” Will , 389 U.S. at 97. Thus, as indicated at the outset of this opinion, w e do not categorically preclude the use of mandamus to review any and all criminal rulings, however egregious, unauthorized, and prejudicial, which might fall out side the scope of § 3731. Cf. 389 U.S. at 97-98 (citing as proper use of mandamus instance in which district court had “overreached its judicial power” in denyi ng government “rightful fruits of a valid conviction”); United States v. Dooling , 406 F.2d 192, 198-99 (2d Cir. 1969) (finding “compelling need for the issuance of mandamus” in order to prevent “gross disruption in the administration of criminal justice” caused by-21-

“highly improper and undesirable” action by distric t court). However, “[w]e are unpersuaded this case presents the appropriate vehi cle to [permit such review].” Roberts , 88 F.3d at 883; cf. Margiotta , 662 F.2d at 134 n.8. We acknowledge that our analysis has resulted in co mpletely foreclosing review of the government’s challenge to the sequestration order. Though it may perhaps be seen as overly technical and unduly seve re by those focussed only on this particular controversy, our judicial restraintis ultimately guided and informed by a very broad principle--the constitutional distr ibution of power between the legislative and judicial branches of our government . As the Supreme Court took pains to explain in Carroll : Many interlocutory decisions of a trial court may b e of grave importance to a litigant, yet are not amenable to appeal at the time entered, and some are never satisfactorily reviewab le. In particular is this true of the Government in a criminal case .

. . . If there is serious need for appeals by the Governm ent from [sequestration] orders, or unfairness to the intere sts of effective criminal law enforcement in the distinctions we hav e referred to, it is the function of the Congress to decide whether to i nitiate a departure from the historical pattern of restricted appellate jurisdiction in criminal cases. We must decide the case on the statutes that exist today, in the light of what has been the developmen t of the jurisdiction. It is only through legislative resol ution, furthermore, that peripheral questions regarding the conduct of government appeals in this situation can be regulated. 354 U.S. at 406-08 (footnotes omitted).
II7 We do nothold that the lack of what is often called “appell ate

standing” necessarily precludes mandamus review. Standing encompasses “constitutional considerations related to the ‘case or controversy’ limitation of Article III and also prudential concerns ‘that, apart from Art. III’s minimum (continued...) -22- Defendants have raised numerous challenges to the p roceedings for review brought by the sequestered victim-impact witnesses themselves. However, we find it necessary to address only the issue of stan ding. As “an essential and unchanging part of the case-or-controversy requirem ent of Article III,” Lujan v. Defenders of Wildlife , 504 U.S. 555, 560 (1992), constitutional standing “is a threshold issue in every case before a federal court, determining the power of the court to entertain the suit.” Boyle v. Anderson , 68 F.3d 1093, 1100 (8th Cir. 1995), cert. denied , 116 S. Ct. 1266 (1996); see Board of Natural Resources v.
Brown , 992 F.2d 937, 945 (9th Cir. 1993). Further, Arti cle III standing is a jurisdictional requisite “at every stage of the pro ceeding.” Citizens Concerned for Separation of Church & State v. City & County of De nver , 628 F.2d 1289, 1301 (10th Cir. 1980); see Board of County Comm’rs v. W.H.I., Inc. , 992 F.2d 1061, 1063 (10th Cir. 1993); see also Skrzypczak v. Kauger , 92 F.3d 1050, 1052 (10th Cir. 1996), petition for cert. filed , 65 U.S.L.W. 3444 (Dec. 13, 1996)(No. 96- 953). Accordingly, the excluded witnesses’ failure to satisfy constitutional standing requirements would preclude our considerat ion of both their appeal and their petition for mandamus relief. 77 (...continued)

requirements, serve to limit the role of the courts in resolving public disputes.’” Kansas Health Care Ass’n v. Kansas Dep’t of Social & Rehabilitation Servs. , 958 F.2d 1018, 1021 (10th Cir. 1992) (quoting Warth v. Seldin , 422 U.S. 490, 498-500 (1975)). Article III authority is a prereq uisite to judicial review, however sought. In contrast, a prudential concern, such as nonparty status, counseling uniquely or primarily against the propri ety of appeal, need not bar a petition for mandamus review. See, e.g. , Journal Publ’g Co. v. Mechem , 801 F.2d 1233, 1235-36 (10th Cir. 1986) (news organization h ad Article III standing to seek mandamus review of order barring press access, although, as nonparty, it could not challenge order by appeal); United States v. Schlette , 842 F.2d 1574, 1576 (9th Cir. 1988) (same); In re Washington Post Co. , 807 F.2d 383, 388 & n.4 (4th Cir. 1986) (same). We emphasize that our stan ding analysis turns on constitutional considerations, not the excluded witnesses’ nonparty status. Consequently, we need not treat separately the dist rict court’s denial of their motion to intervene. -23- Article III imposes three fundamental requirements for standing in federal

court: First, the [complainant] must have suffered an inju ry in fact--an invasion of a legally protected interest which is c oncrete and particularized and actual or imminent. Second, a c ausal connection must exist between the injury and the conduct compl ained of; the injury must be fairly traceable to the challenged a ction. Third, it must be likely that the injury will be redressed bya favorable decision. Committee to Save the Rio Hondo v. Lucero , 102 F.2d 445, 1996 WL 700138, at *2 (10th Cir. Dec. 6, 1996) (quotations and citatio ns omitted). Our disposition turns on the first. Legally protected interests derive from various sou rces, including constitutional guarantees, see, e.g. , Journal Publ’g Co. , 801 F.2d at 1235,-24-

statutory provisions, see, e.g. , Wilson , 98 F.3d at 595, and common law rights,
see, e.g. , W.H.I., Inc. , 992 F.2d at 1064 (enjoyment of property rights). See also,
e.g. , San Diego County Gun Rights Comm. v. Reno , 98 F.3d 1121, 1126-30 (9th Cir. 1996) (discussing constitutional, statutory, and common law economic interests supporting standing). The victim-impact witnesses rely on two of these sources for their asserted interest in attending th e criminal trial from which they have been excluded by the sequestration order. Fir st, they cite the Victims’ Rights and Restitution Act (Victims’ Rights Act) fo r the particularized right of crime victims “to be present at all public court pr oceedings related to the offense.” 42 U.S.C. § 10606(b)(4). Second, they argue more generally that the right of public access to criminal proceedings, rec ognized in Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555 (1980) (plurality), and Globe Newspaper Co. v. Superior Court , 457 U.S. 596 (1982), provides a constitutional basis for their claim of injury.8 In conjunction with the Victims’ Rights Act, the ex cluded witnesses

also refer generally to 42 U.S.C. § 10608, which pr ovides for closed circuit televising of certain criminal proceedings. This s tatute does not materially impact our construction and application of § 10606, or ourstanding analysis generally. -25- A There are a number of problems with the excluded wi tnesses’ reliance on the Victims’ Rights Act. 8 The statute charily pledges only the “best effort s” of certain executive branch personnel to secure the ri ghts listed. See § 10606(a) (“Officers and employees of . . . departments and a gencies of the United States engaged in the detection, investigation, or prosecu tion of crime shall make their best efforts to see that victims of crime are accor ded the rights described in subsection (b) of this section.”). The district co urt judge, a judicial officer not bound in any way by this pledge, could not violate the Act. Indeed, the Act’s prescriptions were satisfied once the government ma de its arguments against sequestration--before the district court even ruled

. Further, the specific right to attend criminal proc eedings is expressly subject to the following qualification: “unless th e court determines that testimony by the victim would be materially affected if the v ictim heard other testimony at trial.” § 10606(b)(4). In essence, the statute ac knowledges that the policies behind Rule 615 inherently limit the victim’s rightto attend criminal proceedings.-26-

Finally, and in any event, Congress explicitly inst ructed that the Act “does not create a cause of action or defense in favor of any person arising out of the failure to accord to a victim the rights enumerated in subsection (b).” § 10606(c). The excluded witnesses argue this provision relates only to independent enforcement actions and does not bar appeal or mand amus challenges within the criminal proceeding itself, but this facially uncompelling contention is undercut further by a decision of this court in an analogous standing context. In United States v. Kelley , 997 F.2d 806, 807-08 (10th Cir. 1993), we joined a line of authority holding that crime victims do not have st anding under the Victim and Witness Protection Act (VWPA), 18 U.S.C. § 3663, to appeal unfavorable restitution orders. Significantly, this case law r ejects victims’ arguments for standing under the VWPA because the history and pla in language of the VWPA “do not indicate that Congress, either explicitly o r implicitly, intended to provide a private cause of action to victims.” Kelley , 997 F.2d at 808 (quoting United States v. Johnson , 983 F.2d 216, 221 (11th Cir. 1993)). A fortiori, the Victims’ Rights Act, which explicitly denies any private cau se of action, does not grant standing to seek review of orders relating to matte rs covered by the Act. See also-27-

Hernandez-Avalos v. INS , 50 F.3d 842, 844, 848 (10th Cir.) (holding party lacked standing to invoke mandamus to enforce statutory di rective in light of express prohibition on private right of action in statute), cert. denied , 116 S. Ct. 92 (1995).
B Our analysis of the excluded witnesses’ constitutio nal basis for standing rests on a fundamental distinction regarding the ch aracter and locus of the public right of access to criminal proceedings derived fro m the First Amendment by the Supreme Court in Richmond Newspapers and Globe Newspaper Co. The witnesses do not assert, nor could they, that an or der precluding (only) intended witnesses from attending a criminal proceeding gene rally open to the public and the press violates the public ’ s right of access. Rather, they posit a personalFirst Amendment right to attend the proceedings, violateddespite the public’s undisputed access. In our view, recognition of suc h an entitlement, arguably affording a constitutional basis for disruptive int erlocutory review in every criminal prosecution at the behest of any disappointed would-be trial attendee, would entail an unprecedented expansion/transformat ion of the public trial-access9 We need not and do not address entirely distinct qu estions regarding

the propriety and redress of trial exclusions impli cating other constitutional values, such as equal protection or traditional fre e speech guarantees. -28- right unwarranted by the policies cited by the Supr eme Court as the rationale for gleaning the right from the First Amendment. 9 A broad survey of public trial-access case law, andreview of the particular authorities relied on by the excluded witnesses her e, confirm that pertinent constitutional proscriptions are implicated only wh en, through orders closing proceedings, sealing documents, gagging participant s and/or restricting press coverage, a trial court has deprived the public at large direct or indirect access to the trial process. The witness-sequestration orderentered in this case has no such effect; members of the public will attend the trial and the press will report on the proceedings to the public generally. We are not aw are of any case in which an analogous order was held to implicate the constitut ional right recognized in Richmond Newspapers and Globe Newspaper Co

. Just as important, this assessment of the case law is entirely consistent with the broad, structural interests prompting the Supre me Court to recognize the public trial-access right despite the lack of expli cit textual support in the constitution. Such interests include: informing the public discussion of government affairs, assuring the public perception of fairness, promoting the community-therapeutic effect of criminal justice pr oceedings, providing a public10 We note that considerations personal to particular individuals may be

quite relevant to the standing inquiry once a public deprivation has been shown

. Given such a showing, the critical remaining obstac le to standing, i.e., the requirement that those challenging the deprivation suffered a cognizable individualized harm, see United States v. Hays , 115 S. Ct. 2431, 2435-36 (1995), and therefore are the “proper proponents” of the ge neral public’s rights, Singleton v. Wulff , 428 U.S. 106, 112 (1976), would appear to be easi ly satisfied by victims seeking to attend the criminal prosecution of those charged with causing their injury. -29- check on corrupt practices, intimidating potential perjurers, and generally enhancing the performance of all involved in the pr ocess. See Globe Newspaper
Co. , 457 U.S. at 604-05; United States v. Criden , 675 F.2d 550, 556 (3d Cir. 1982) (summarizing “six societal interests” cited i n Richmond Newspaper plurality and concurring opinions). These interest s necessitate--and are satisfied by--a publicly open trial, regardless of the person al attendance of any particular individual. 10 Indeed, “[t]he value of openness lies in the factthat people not actually attending trials can have confidence that standards of fairness are being observed.” Press-Enterprise Co. v. Superior Court , 464 U.S. 501, 508 (1984). Accordingly, we hold that the excluded witnesses la ck Article III standing to seek review of the sequestration order entered b y the district court. We therefore do not have jurisdiction to reach the mer its of either their appeal or their mandamus petition.-30-

The government’s appeal, No. 96-1469, is DISMISSED, and its request for alternative mandamus consideration is DENIED. The victims’ appeal, No. 96-1475, and their mandamus petition, No. 96-1484, are DISMISSED.