United States v. Melissa Cockerham

Case: 09-51144 Document: 00511267861 Page: 1 Date Filed: 10/19/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
October 19, 2010
No. 09-51144
Summary Calendar Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

MELISSA COCKERHAM,

Defendant - Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:07-CR-511-2

Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Melissa Cockerham appeals her guilty-plea conviction for conspiring to
commit money laundering. Cockerham contends: her appeal waiver does not
bar her appeal; and, her Sixth Amendment right to a public trial was violated
because the courtroom was closed during her guilty-plea hearing.
The Government does not invoke the appeal-waiver provision of
Cockerham’s plea agreement because that agreement bars only the appeal of her

*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
 Case: 09-51144 Document: 00511267861 Page: 2 Date Filed: 10/19/2010
No. 09-51144

sentence. Therefore, this appeal is not barred. See United States v. Story, 439
F.3d 226, 231 (5th Cir. 2006).
“We review constitutional challenges de novo.” United States v. Joseph,
333 F.3d 587, 589 (5th Cir. 2003) (quotation omitted); see also United States v.
Osborne, 68 F.3d 94, 98 (5th Cir. 1995). Arguably, because the closed-courtroom
issue was not raised in district court, review would be only for plain error.
Under either standard, the claim fails.
The Sixth Amendment guarantees a public trial to all criminal defendants.
Osborne, 68 F.3d at 98. A defendant may waive that right, however, by failing
to object to the closing of the courtroom. Peretz v. United States, 501 U.S. 923,
936 (1991) (citing Levine v. United States, 362 U.S. 610, 619 (1960)); United
States v. Hitt, 473 F.3d 146, 155 (5th Cir. 2006).
For the reasons that follow, Cockerham waived her right to public trial.
At the guilty-plea hearing, her husband pleaded guilty first. After his plea, but
before Cockerham’s, the court announced the courtroom had been closed for the
husband’s and Cockerham’s pleas. Cockerham and her counsel were present in
the courtroom at that time; there is no indication in the record either Cockerham
or her counsel objected to the closure of the courtroom before or during the plea
hearing, at any subsequent proceeding, or by way of a written motion. “Where
a defendant, with knowledge of the closure of the courtroom, fails to object, that
defendant waives [her] right to a public trial.” Hitt, 473 F.3d at 155 (citing
Levine, 362 U.S. at 618-19 (1960)). Moreover, “[a] defendant’s attorney’s waiver
of the right to a public trial is effective on the defendant”. Hitt, 473 F.3d at 155
(citing United States v. Sorrentino, 175 F.2d 721, 723 (3d Cir. 1949)).
AFFIRMED.

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