United States of America v. ART LNU,a/k/a WIZARD, a/k/a ARTIE, a/k/a ART RAMIREZ Arturo Ramirez

1
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 05-5042
_____________
UNITED STATES OF AMERICA
v.
ART LNU,a/k/a
WIZARD, a/k/a
ARTIE, a/k/a
ART RAMIREZ
Arturo Ramirez,
Appellant
___________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 03-cr-00008
District Judge: The Honorable Anita B. Brody
____________________
Argued on September 9, 2008

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Before: SCIRICA, Chief Judge, MCKEE, and SMITH,
Circuit Judges
(Filed: July 29, 2009)
Lawrence S. Krasner, Esq. (Argued)
Krasner Law Offices
251 South Camac St.
Philadelphia, PA 19107
Attorney for Appellant
Ewald Zittlau (Argued)
Assistant United States Attorney
615 Chestnut St.
Suite 1250
Philadelphia, A 19106
Attorney for Appellee
______________
OPINION
______________
SMITH, Circuit Judge.
Appellant Arturo Ramirez was convicted of various
charges stemming from his participation in a conspiracy to
distribute large quantities of cocaine. On appeal, Ramirez raises
two questions that this Court has not yet addressed: 1) whether
Title III of the Omnibus Crime Control and Safe Streets Act of

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Ramirez also argues that his sentence to the mandatory1
minimum term of imprisonment was unconstitutional, but
acknowledges that he cannot prevail on this claim if we follow
United States v. Walker, 473 F.3d 71 (3d Cir. 2007), and
Almendarez-Torres v. United States, 523 U.S. 224 (1998).
Because we are bound by these precedents, we will reject
Ramirez’s sentencing challenge without additional comment.
3
1968, 18 U.S.C. §§ 2510–2522, bars the in-trial use of testimony
and materials sourced from an unsealed set of wiretap
recordings, which are identical to a properly sealed set; and 2)
whether the failure to broadcast audiotape evidence through a
public courtroom speaker as it is being played through
headphones for the trial participants denies a defendant his Sixth
Amendment right to a public trial. We answer both inquiries in1
the negative, and will affirm the judgment of the District Court.
I.
In November and December of 2002, the Pennsylvania
Superior Court authorized two wiretaps on mobile telephones
used by Steven Carnivale. Pursuant to these wiretaps,
authorities simultaneously recorded Carnivale’s telephone
conversations on three separate tape recorders. This resulted in
three identical sets of tapes. One set was judicially sealed (the
“Sealed Set”) and stored. The other two sets were left unsealed
(the “Unsealed Sets”) and were used for investigative and trial
preparation purposes.

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4
The contents of the intercepted telephone conversations
implicated Ramirez in a conspiracy to distribute more than five
kilograms of cocaine. On January 7, 2003, a federal grand jury
indicted Ramirez on seven criminal counts related to his alleged
participation in this conspiracy: conspiring to distribute more
than five kilograms of cocaine, in violation of 21 U.S.C. § 846;
attempted distribution of more than 500 grams of cocaine, and
aiding and abetting, in violation of 21 U.S.C. §§ 841 and 846,
and 18 U.S.C. § 2; four counts of unlawful use of a
communication facility, in violation of 21 U.S.C. § 843(b); and
distribution of more than five kilograms of cocaine, and aiding
and abetting, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2.
Before trial, the Government notified Ramirez that it
intended to introduce audiotape copies of the wiretap recordings
as trial evidence and to provide jurors with transcripts of the
recorded conversations that they could use as an aid to their
understanding of those conversations as the tapes were played.
The Government used the Unsealed Set to create both the copies
and the transcripts. Ramirez filed a motion to suppress. In his
motion, Ramirez argued that since the copies and transcripts
were not derived from the Sealed Set, they did not meet Title
III’s sealing requirements and could not be used at trial. After
conducting an evidentiary hearing on the matter, the District
Court denied Ramirez’s motion.
On January 8, 2004, Ramirez was jointly tried with three
co-defendants. At trial, the District Court admitted the

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It is unclear whether any members of the public actually2
attended the trial that morning and were unable to listen to the
recordings. This factual dispute does not affect our analysis.
5
audiotape copies into evidence over Ramirez’s renewed
objections. The District Court also made the transcripts of those
audiotapes a part of the record so that they were available to the
public.
On the morning of January 14, 2004, the Government
played seven recorded conversations that implicated Ramirez in
the conspiracy, and elicited testimony from Carnivale about
those conversations. Presentation of this evidence took
approximately one hour. All the trial participants—the judge,
jury, attorneys for all parties, Carnivale, and Ramirez—used
headphones to listen to the recordings that the Government
played. The jurors also had transcripts of the recordings in their
possession. Without notifying the Court or Ramirez, however,
the Government turned off the public loudspeaker that would
have broadcasted the recordings into the courtroom. As a result,
any members of the public who attended the trial that morning
were unable to hear the recordings as they were being played for
the trial participants.2
During the Court’s lunch recess, Ramirez learned that the
recordings played in the morning were not simultaneously
broadcasted into the courtroom. Once the Court reconvened,
Ramirez’s counsel notified the Court of this fact and moved for

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6
a mistrial or, in the alternative, to strike the testimony elicited
based on the recordings. Ramirez argued that the failure to
broadcast the conversations over the public loudspeaker violated
his constitutional right to a public trial. In response, the
Government stated that it had intentionally chosen not to play
the tapes over the loudspeaker to ensure that inadmissible
portions of the tapes were not accidentally heard.
The District Court remarked that the Government’s
explanation seemed “[dis]ingenuous.” The Court pointed out
that the Government could have avoided any accidents by
simply stopping the tapes before reaching any inadmissible
portions. Nonetheless, the Court denied Ramirez’s motion for
a mistrial or to strike. The Court held that Ramirez had waived
the issue by failing to raise it earlier. It also concluded that
Ramirez had not been prejudiced by the Government’s actions.
The Court, however, ordered that the remainder of the recorded
conversations played for the jury should be broadcasted
simultaneously over the public loudspeaker.
After the Court’s ruling, the Government played thirty-
six additional wiretap recordings, twenty of which were
conversations between Ramirez and Carnivale. Each of the
thirty-six recordings were broadcasted over the public
loudspeaker as they were played for the jury.
At the conclusion of the two-week trial, the jury found
Ramirez guilty of all charges. Since Ramirez had one prior

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7
conviction for a felony drug offense, he was subjected to a
mandatory minimum term of imprisonment of twenty years
pursuant to 21 U.S.C. § 841(b)(1)(A). After conducting a
hearing, the Court sentenced Ramirez to twenty years of
imprisonment, ten years of supervised release, a $2,000 fine, and
a special assessment of $700. Ramirez filed a timely appeal.
II.
The District Court had jurisdiction under 18 U.S.C. §
3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a). Ramirez has raised purely legal issues
of statutory and constitutional interpretation, so our review is
plenary. United States v. Coleman, 451 F.3d 154, 156 (3d Cir.
2006).
III.
Ramirez’s first claim of error is that the District Court
improperly allowed the Government to present wiretap evidence
at trial, in violation of Title III of the Omnibus Crime Control
and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2522.
Ramirez argues that Title III prohibits the Government from 1)
introducing the audiotape copies of unsealed wiretap recordings
into evidence, 2) using transcripts of those recordings at trial,
and 3) eliciting trial testimony about the contents of those
recordings.

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8
The contents of intercepted wiretaps or any evidence
derived therefrom cannot be used at trial if the disclosure of
those contents would be in violation of Title III. See 18 U.S.C.
§ 2515; United States v. Chavez, 416 U.S. 562, 570 (1974)
(“Section 2515 provides that the contents of any intercepted
wire or oral communication, and any derivative evidence, may
not be used at a criminal trial, or in certain other proceedings, ‘if
the disclosure of that information would be in violation of this
chapter.’” (quoting 18 U.S.C. § 2515)). Section 2517(3)
authorizes the disclosure of the contents of wiretaps and any
derivative evidence at trial:
Any person who has received, by any means
authorized by this chapter, any information
concerning a wire, oral, or electronic
communication, or evidence derived therefrom
intercepted in accordance with the provisions of
this chapter may disclose the contents of that
communication or such derivative evidence while
giving testimony under oath or affirmation in any
proceeding held under the authority of the United
States or of any State or political subdivision
thereof. . . .
18 U.S.C. § 2517(3). Section 2518(8)(a) sets forth preservation
and sealing procedures for intercepted wire communications,
and makes judicial sealing a prerequisite for trial use and
disclosure pursuant to Section 2517(3):

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The contents of any wire, oral, or electronic
communication intercepted by any means
authorized by this chapter shall, if possible, be
recorded on tape or wire or other comparable
device. The recording of the contents of any wire,
oral, or electronic communication under this
subsection shall be done in such a way as will
protect the recording from editing or other
alterations. Immediately upon the expiration of
the period of the order, or extensions thereof, such
recordings shall be made available to the judge
issuing such order and sealed under his directions.
Custody of the recordings shall be wherever the
judge orders. They shall not be destroyed except
upon an order of the issuing or denying judge and
in any event shall be kept for ten years. Duplicate
recordings may be made for use or disclosure
pursuant to the provisions of subsections (1) and
(2) of section 2517 of this chapter for
investigations. The presence of the seal provided
for by this subsection, or a satisfactory
explanation for the absence thereof, shall be a
prerequisite for the use or disclosure of the
contents of any wire, oral, or electronic
communication or evidence derived therefrom
under subsection (3) of section 2517.
18 U.S.C. § 2518(8)(a).
Here, the Government used the Unsealed Sets to produce

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Section 2517(1) and (2), Title 18 of the United States3
Code, provides the following:
(1) Any investigative or law enforcement officer
who, by any means authorized by this chapter, has
obtained knowledge of the contents of any wire,
oral, or electronic communication, or evidence
derived therefrom, may disclose such contents to
another investigative or law enforcement officer
to the extent that such disclosure is appropriate to
the proper performance of the official duties of
the officer making or receiving the disclosure.
(2) Any investigative or law enforcement officer
10
the wiretap evidence that it presented at trial: the audiotapes
played at trial and introduced into evidence were copies of the
Unsealed Sets; the transcripts given to the jury were produced
from the Unsealed Sets; and the testimony about the recorded
conversations was elicited after playing the audiotape copies of
the Unsealed Sets. The Sealed Sets were left undisturbed in
storage throughout the entirety of Ramirez’s trial.
Ramirez claims that the Government’s failure to use the
Sealed Set as the source of its wiretap evidence violated 18
U.S.C. § 2518(8)(a). Ramirez points out that Section 2518(8)(a)
makes no mention of judicial sealing for “[d]uplicate
recordings” that are used or disclosed “for investigations”
pursuant to Sections 2517(1) and (2). In contrast, Section3

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who, by any means authorized by this chapter, has
obtained knowledge of the contents of any wire,
oral, or electronic communication or evidence
derived therefrom may use such contents to the
extent such use is appropriate to the proper
performance of his official duties.
11
2518(8)(a) imposes a judicial sealing requirement for wiretap
recordings used and disclosed at trial: “[t]he presence of the seal
provided for by this subsection . . . shall be a prerequisite for
the use or disclosure of the contents of any wire, oral, or
electronic communication or evidence derived therefrom under
subsection (3) of section 2517.” (Emphasis added.) According
to Ramirez, this means that unsealed duplicates can only be
utilized for investigative purposes, and not to prepare evidence
and other trial materials. Therefore, he argues that since the
Government’s wiretap evidence was sourced from unsealed
duplicates, its presentation at trial was improper.
We reject Ramirez’s reading of Section 2518(8)(a)
because the plain language does not support it. First, Section
2518(8)(a) does not prohibit the Government from using
unsealed duplicates for purposes that go beyond investigation.
In fact, the Government may use unsealed duplicates at trial if
the contents of those duplicates exist in a properly-sealed set of
recordings. Section 2518(8)(a) makes a judicial seal a condition
for the in-trial use or disclosure of “the contents of any wire,
oral, or electronic communication or evidence derived therefrom

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. . . .” (Emphasis added.) It is silent, however, as to the manner
of such a disclosure; Section 2518(8)(a) does not, for example,
specify that the contents of a properly-sealed wiretap recording
must be disclosed through the use of the sealed set of tapes
instead of through unsealed duplicates, witness testimony,
transcripts, or any other manner of disclosure. See United States
v. Rivera, 153 F.3d 809, 812 (7th Cir. 1998) (“This provision
broadly states that the content of such recordings may be
disclosed in court proceedings, but places no restrictions on the
form of the disclosure.”). This means that Section 2518(8)(a)
imposes no restrictions on how the Government chooses to use
and disclose the contents of a properly-sealed wiretap
communication at trial. See id. (“[A]s long as the government
complies with Title III, it may, at trial, disclose the contents of
the recording in whatever fashion it chooses, including the use
of duplicate and compilation tapes.”); United States v. Denton,
556 F.2d 811, 816 (6th Cir. 1977) (“[W]e find no violation of
[Title III] in the preparation of the [composite tapes and
transcripts] and their admission in evidence.”); United States v.
DiMuro, 540 F.2d 503, 512 n.15 (1st Cir. 1976) (rejecting the
argument that Section 2518(8)(a) “bars the presentation at trial
of a composite tape,” and concluding that “[t]he statute does not
apply to the preparation of a trial tape of selected intercepted
conversations whose accuracy is not at issue”); see also United
States v. Scully, 546 F.2d 255, 270 (9th Cir. 1976) (“There was
also no error in allowing the government to produce a single
master tape of all the conversations it intended to use and to
introduce the master along with the originals into evidence.”),

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13
judgment vacated on other grounds sub nom. United States v.
Cabral, 430 U.S. 902 (1977).
Second, Section 2518(8)(a)’s sealing requirement does
not preclude unsealed duplicates from being a proper source of
the wiretap evidence that the Government uses and discloses at
trial. To satisfy the sealing requirement, Section 2518(8)(a)
demands that “the recording of the contents of any wire, oral, or
electronic communication . . . shall be made available to the
judge issuing such order and sealed under his directions.” Once
this is done, however, it is “the contents of any wire, oral, or
electronic communication or evidence derived therefrom,” not
the contents of the sealed recordings, that may be used or
disclosed. This is an important distinction. Section 2518(8)(a)
specifically distinguishes between “the contents of any wire,
oral, or electronic communication,” which “shall, if possible, be
recorded . . . ,” and “the recording of the contents of any wire,
oral, or electronic communication,” which “shall be . . . sealed
under [the judge’s] directions.” Since fulfilling the sealing
requirement allows the in-trial use and disclosure of “the
contents,” not the judicially sealed “recording of the contents,”
the source of the materials used and disclosed at trial need only
be “the contents,” and not the judicially sealed “recording of the
contents.” Therefore, Section 2518(8)(a) does not require the
Government to source its wiretap evidence from the judicially
sealed set of recordings rather than an unsealed set of duplicates,
provided that a properly judicially sealed set exists.

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14
In sum, as long as the Government has obtained and
preserved a set of wiretap recordings in accordance with Title
III, Section 2518(8)(a) neither restricts the manner in which the
Government chooses to use and disclose the contents of those
recordings at trial, nor requires the Government to source its
wiretap evidence from a judicially sealed set of recordings. In
other words, under Title III, the Government may use duplicate
tapes, compilation tapes, transcripts, trial testimony, or any other
manner of use or disclosure provided that the contents to be used
or disclosed exist in a properly obtained and sealed set of
wiretap recordings.
We recognize that Section 2518(8)(a) expressly provides
that “[d]uplicate recordings may be made for use or disclosure
pursuant to the provisions of subsections (1) and (2) of section
2517 of this chapter for investigations,” but contains no similar
express authorization for the use of duplicates at trial. Unlike
Ramirez, however, we do not interpret this language as
prohibiting the Government from using unsealed duplicates or
materials sourced from such duplicates at trial. Although the
well-established principle of statutory construction of expressio
unius est exclusio alterius instructs that when Congress
expresses one thing, it excludes the others, this principle “should
be taken with a grain of salt—or even better, with a grain of
common sense.” Abdullah v. Am. Airlines, Inc., 181 F.3d 363,
372 (3d Cir. 1999). Expressio unius “‘serves only as an aid in
discovering legislative intent when that is not otherwise
manifest’” and “‘can never override clear and contrary

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15
evidences of Congressional intent.’” Id. at 373 (quoting United
States v. Barnes, 222 U.S. 513, 519 (1912) and Neuberger v.
Comm’r, 311 U.S. 83, 88 (1940)).
Here, Section 2518(8)(a)’s clear focus is on preserving
the accuracy and authenticity of the contents of the wiretap
recordings used and disclosed at trial. See 18 U.S.C. §
2518(8)(a) (“The recording of the contents of any wire, oral, or
electronic communication under this subsection shall be done in
such a way as will protect the recording from editing or other
alterations.” (emphasis added)); United States v. Ojeda Rios,
495 U.S. 257, 263 (1990) (“The primary thrust of § 2518(8)(a),
and a congressional purpose embodied in Title III in general, is
to ensure the reliability and integrity of evidence obtained by
means of electronic surveillance.” (internal citations omitted));
DiMuro, 540 F.2d at 512 n.15 (“The primary purpose of §
2518(8)(a) is to ensure accuracy of recordings at the time of
monitoring and to require sealing to deter alterations.”).
Allowing the use of unsealed duplicates and materials sourced
from such duplicates at trial furthers Section 2518(8)(a)’s aim:
an original recording remains sealed and undisturbed so that if
a defendant “had reason to question the authenticity of the
recording, or wished to assert that misleading editing has been
done, the original tapes would be available to serve as the
definitive record of what was recorded off of the [wiretap].”
Rivera, 153 F.3d at 812. In contrast, requiring the use of a
sealed set as either the wiretap evidence presented at trial or its
source risks compromising the accuracy and authenticity of the

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We acknowledge that this concern could be addressed if4
courts judicially sealed multiple sets of wiretap recordings. This
way, one set could remain sealed and undisturbed while the
Government unseals and uses the others as the source of its trial
evidence. While this may be an available practice, no language
in Section 2518(8)(a) expressly requires it. As with our reading
of Section 2518(8)(a), it is the presence of one sealed and
undisturbed set that preserves the accuracy and authenticity of
the contents of wiretap recordings.
The Federal Rules of Evidence are similarly accepting5
of the use of duplicates at trial. See Fed. R. Evid. 1003 (“A
duplicate is admissible to the same extent as an original unless
(1) a genuine question is raised as to the authenticity of the
original or (2) in the circumstances it would be unfair to admit
the duplicate in lieu of the original.”).
16
contents of those recordings: the sealed set would be subject to
additional post-sealing use and manipulation, which would
increase the possibility of damage, loss, or destruction.4
Therefore, Section 2518(8)(a) does not prevent the use of
unsealed duplicates or materials sourced from such duplicates at
trial as long as an original was recorded and judicially sealed in
accordance with Title III.5
We note that Section 2518(8)(a) does not completely bar
the use and disclosure of the contents of all unsealed wiretap
recordings; “a satisfactory explanation for the absence [of a
seal]” can be enough to permit in-trial use and disclosure. 18

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17
U.S.C. § 2518(8)(a). This confirms that there is nothing
talismanic about the presence of a judicial seal. See also Ojeda
Rios, 495 U.S. at 263 (“The presence or absence of a seal does
not in itself establish the integrity of electronic surveillance
tapes.”). As the Supreme Court has observed, “the seal is a
means of ensuring that subsequent to its placement on a tape, the
Government has no opportunity to tamper with, alter, or edit the
conversations that have been recorded.” Id. (emphasis added).
Here, the Sealed Set provided Ramirez with a means of
verifying the accuracy and authenticity of the contents of the
wiretap recordings that the Government sought to use and
disclose at trial. Section 2518(8)(a) requires nothing more.
Nothing in our holding today should be taken as
curtailing a defendant’s ability to challenge the Government’s
use and disclosure of the contents of wiretap recordings on other
grounds—for example, by claiming that duplicates,
compilations, transcripts, or trial testimony inaccurately
represent the original recordings or are otherwise inadmissible
under the Federal Rules of Evidence. But the mere fact that the
Government sourced its wiretap evidence from an unsealed
duplicate does not render its presentation of that evidence
improper. Here, Ramirez does not dispute that the Sealed Set
fully complied with Title III, nor does he contest that the
contents of the Sealed Set are any different from those of the
Unsealed Sets. Accordingly, the Government’s presentation of
its wiretap evidence at trial did not violate Title III.

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At the outset, we agree with Ramirez that the District6
Court erred in holding that he had waived his objection. The
Government does not dispute Ramirez’s assertion that he raised
his Sixth Amendment challenge as soon as he suspected a
violation. His failure to object earlier cannot be deemed a
waiver. See Brady v. United States, 397 U.S. 742, 748 (1970)
(“Waivers of constitutional rights not only must be voluntary but
must be knowing, intelligent acts done with sufficient awareness
of the relevant circumstances and likely consequences.”). We
will therefore address the merits of Ramirez’s claim and “[w]e
may affirm the rulings of the District Court for any proper
reason that appears on the record even where not relied on by
it.” United States v. Perez, 280 F.3d 318, 337 (3d Cir. 2002).
18
IV.
Ramirez’s second claim of error is that the Government’s
failure to broadcast over an audio speaker in the courtroom
seven recorded conversations as they were being played through
headphones for the trial participants violated his Sixth
Amendment right to a public trial. If such a constitutional
violation occurred, Ramirez would be entitled to a new trial.
Neder v. United States, 527 U.S. 1, 8 (1999) (characterizing the
denial of the Sixth Amendment right to a public trial as a
“structural” error (citing Waller v. Georgia, 467 U.S. 39
(1984))).6
The Sixth Amendment guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a . . . public

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Other criteria also must be met before a closure is7
constitutional. See Waller, 467 U.S. at 48 (“[T]he closure must
be no broader than necessary to protect that interest, the trial
19
trial . . . .” U.S. Const. amend. VI. This guarantee “‘has always
been recognized as a safeguard against any attempt to employ
our courts as instruments of persecution. The knowledge that
every criminal trial is subject to contemporaneous review in the
forum of public opinion is an effective restraint on possible
abuse of judicial power.’” Gannett Co., Inc. v. DePasquale, 443
U.S. 368, 380 (1979) (quoting In re Oliver, 333 U.S. 257, 270
(1948)). “‘The requirement of a public trial is for the benefit of
the accused; that the public may see he is fairly dealt with and
not unjustly condemned, and that the presence of interested
spectators may keep his triers keenly alive to a sense of their
responsibility and to the importance of their functions . . . .’”
Waller, 467 U.S. at 46 (quoting Gannett, 443 U.S. at 380).
Additionally, “a public trial encourages witnesses to come
forward and discourages perjury.” Id.
Nevertheless, the Sixth Amendment right to a public trial
is not absolute; it “may give way in certain cases to other rights
or interests, such as the defendant’s right to a fair trial or the
government’s interest in inhibiting disclosure of sensitive
information.” Id. at 45. But to justify a denial of the public trial
right, “the party seeking to close the hearing must advance an
overriding interest that is likely to be prejudiced . . . .” Id. at
48. Here, the Government has offered no such reason. At oral7

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court must consider reasonable alternatives to closing the
proceeding, and it must make findings adequate to support the
closure.”)
In that respect, the present case differs from the8
multitude of public trial cases where some or all members of the
public were prevented from attending courtroom proceedings.
See, e.g., Waller, 467 U.S. at 40–41 (“These cases require us to
decide the extent to which a hearing on a motion to suppress
evidence may be closed to the public over the objection of the
defendant consistently with the Sixth and Fourteenth
20
argument, it candidly characterized as a “mistake” its unilateral
decision to turn off the audio speaker. “Mistake” though it may
have been, that does not lead us ineluctably to conclude that
Ramirez's Sixth Amendment rights were violated. One
significant question remains: when audiotape evidence is played
for the jury, judge, counsel, defendant, and testifying witness
through headphones, does a failure to simultaneously broadcast
that evidence in the courtroom amount to a closure of the
courtroom that violates a defendant’s Sixth Amendment right to
a public trial?
According to the Supreme Court, the Sixth Amendment’s
“requirement of a public trial is satisfied by the opportunity of
members of the public and the press to attend the trial and to
report what they have observed.” Nixon v. Warner Commc’ns,
Inc., 435 U.S. 589, 610 (1978). Here, any member of the public
desiring to attend Ramirez’s trial had the opportunity to do so.8

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Amendment right to a public trial.”); Gannett, 443 U.S. at 375
(addressing the propriety of the trial court’s decision to grant the
defendants’ “request[] that the public and the press be excluded
from the [pretrial] hearing”); Walton v. Briley, 361 F.3d 431,
432–33 (7th Cir. 2004) (holding that the prosecution’s
presentation of its case “in the late evening hours after the
courthouse had been closed and locked for the night,” which
“foreclose[d] the attendance of the public . . .” violated the Sixth
Amendment); Peterson v. Williams, 85 F.3d 39, 41 (2d Cir.
1996) (“[W]e are asked to determine whether a defendant was
deprived of his Sixth Amendment right to a public trial when a
trial judge inadvertently left a courtroom closed for twenty
minutes during which the defendant testified.”); United States
v. Sherlock, 962 F.2d 1349, 1356–59 (9th Cir. 1992) (holding
that the “temporary exclusion from the courtroom of defendants’
families during one witness’s testimony” did not violate the
Sixth Amendment); Nieto v. Sullivan, 879 F.2d 743, 753–54
(10th Cir. 1989) (deciding that the exclusion of the defendant’s
relatives from the courtroom during the victim’s testimony did
not violate the Sixth Amendment); Douglas v. Wainwright, 739
F.2d 531, 532–33 (11th Cir. 1984) (concluding that there was no
Sixth Amendment violation where “the press and family
members of the defendant, witness, and decedent were all
allowed to remain”).
21
Therefore, for a Sixth Amendment violation to have occurred,
the failure to simultaneously broadcast the recordings in the
courtroom must have denied the public an opportunity to “report

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Absent any suggestion that the press’ ability to attend the9
trial and report what they have observed differed from that of
the public, we need not analyze the press separately in this case.
22
what they have observed.” Id. We do not believe that it did.9
Certainly, the failure to broadcast the recordings in the
courtroom as they were being played for the trial participants
does, to a limited degree, inhibit the public’s ability to report
what it has observed. Without an opportunity to listen to the
recordings at the same time that the trial participants themselves
heard them, the public is denied some small amount of context
with which to inform its in-court observations. For example,
although the public was able to observe and hear live witness
testimony about the recordings, this testimony may have been
difficult to follow without having recently heard the referenced
recordings. Similarly, while the public could see how jurors
reacted to the recordings as they were being played, it could not
associate these responses with specific speakers, words, or
inflections contained in the tapes. It is true that the public could
attempt to piece together the context of its observations after
consulting the transcripts or listening to the tapes at a later time.
Yet it is also true that this picture would be incomplete because
the public had no opportunity to simultaneously listen to the
tapes. Without the ability to listen to the tapes as they were
being played for the trial participants, the public’s capacity to
understand its courtroom observations is necessarily limited,
thus affecting its ability to report what it has observed.

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Indeed, certain documentary evidence, such as a signed10
confession or a photograph of the defendant committing the
crime, can be at least as probative of the defendant’s guilt as the
tapes used in this case were of Ramirez’s participation in the
drug distribution conspiracy.
Rule 612 provides that “an adverse party is entitled to11
have the writing [used to refresh memory for the purpose of
testifying] produced at the hearing, to inspect it, to
cross-examine the witness thereon, and to introduce in evidence
those portions which relate to the testimony of the witness.”
23
Nonetheless, these limitations do not rise to the level of
a Sixth Amendment violation. Similar contextual deprivations
routinely occur in courtroom proceedings without running afoul
of the Constitution, and without constitutional challenge. For
instance, witnesses often testify about documents whose
contents are not simultaneously displayed to the public. We
have found no authority suggesting that such a practice is
unconstitutional. Additionally, unless the adverse party10
requests their production, see Fed. R. Evid. 612, the contents11
of documents used solely to refresh a witness’ recollection
might never be shown in open court because the law does not
permit the jury to see them, see United States v. Booz, 451 F.2d
719, 725 (3d Cir. 1971) (“The rule in cases of refreshed
recollection is that the writing may not be admitted into
evidence or its contents even seen by the jury.”). Likewise,
“‘the trial judge is not required to allow public or press intrusion
upon the huddle’ of a bench interchange, nor are judges

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24
restricted in their ability to conduct conferences in chambers
distinct from trial proceedings.” United States v. Smith, 787
F.2d 111, 114 (3d Cir. 1986) (quoting Richmond Newspapers,
Inc. v. Virginia, 448 U.S. 555, 598 n.23 (1980) (Brennan, J.,
concurring in the judgment)).
The contextual deprivation that occurred here was not of
constitutional import. It did not infringe on the Sixth
Amendment any more than the accepted practices of denying the
public simultaneous access to documentary evidence, bench
interchanges, or conferences in chambers. The Government
routinely elicits testimony about a photograph without also
simultaneously displaying the photograph on a courtroom
projector for the public to see. That the present case involved
audiotapes instead of photographs or other documentary
evidence does not alter the constitutionality of the proceedings.
See D’Aquino v. United States, 192 F.2d 338, 365 (9th Cir.
1951) (“Essentially the record[ings] were exhibits and we think
that [the defendant] might as logically argue that she was denied
a public trial because certain exhibits such as photographs,
samples of handwriting, etc., although examined by the parties
and by the jury were not passed around to the spectators in the
courtroom.”). Accordingly, any deprivation of the public’s
opportunity to “report what they have observed” was not of
constitutional proportion. The failure to simultaneously
broadcast the seven recorded conversations over the courtroom’s
public loudspeaker did not violate Ramirez’s Sixth Amendment
right to a public trial. See Warner Commc’ns, 435 U.S. at 610.

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We do not mean to suggest that such a potential12
violation necessarily would be of constitutional dimensions.
25
We emphasize the limited nature of our holding. The
public was not completely denied access to audiotapes or their
contents. Prior to the presentation of the seven recorded
conversations that implicated Ramirez, the District Court had
admitted all the audiotapes into evidence and made the
transcripts a part of the record. Once this was done, the
recordings and their contents were available for public
inspection, and Ramirez’s trial was “subject to contemporaneous
review in the forum of public opinion . . . ,” Gannett, 443 U.S.
at 380 (internal quotations and citation omitted), even though
the Government did not play the recordings over an audio
speaker in the courtroom. Had the recordings or their contents
been unjustifiably withheld from the public for a significant
period of time, that might well have constituted a violation of
law.. See United States v. Martin, 746 F.2d 964, 968 (3d Cir.
1984) (“The common law right of access is not limited to
evidence, but rather encompasses all judicial records and
documents. It includes transcripts, evidence, pleadings, and
other materials submitted by litigants.” (internal quotations and
citations omitted)). That, however, is not our case. The12
present case only concerns whether the Sixth Amendment
requires that the public have the opportunity to listen to
audiotape evidence at the same time it is being played for the

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26
trial participants. We hold that it does not.
V.
The wiretap evidence that the Government used against
Ramirez was in full compliance with Title III. The
Government’s presentation of that evidence, although marred by
an unfortunate “mistake,” also did not violate Ramirez’s Sixth
Amendment right to a public trial. Accordingly, we will affirm
the judgment of the District Court.

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