Case 1:16-cr-02362-WJ Document 117 Filed 09/13/18 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Plaintiff,
vs.

Case No. 16-cr-2362-WJ
Case No. 16-cr-2363 WJ

LONNIE JACKSON, and
DIAMOND COLEMAN,
Defendants.

DEFENDANTS’ JOINT OBJECTION TO SEALING OF AUGUST 3, 2018
HEARING ON MOTION TO RECONSIDER
Lonnie Jackson, Defendant, by and through undersigned counsel of record, Assistant
Federal Public Defender John F. Robbenhaar, and Diamond Coleman, Defendant, by and
through undersigned counsel of record, Assistant Federal Public Defender Aric G. Elsenheimer,
pursuant to the public trial clause of the Sixth Amendment to the United States Constitution,
respectfully object to the sealing of the August 3, 2018 hearing on the government’s Motion to
Reconsider.
On August 3, 2018, this Court convened a hearing on the government’s Motion to
Reconsider Senior Judge Armijo’s Order Granting in Part Defendants’ Motions to Compel

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Discovery. The government filed this Motion to Reconsider at the direction of this Court, 1 after
these cases were reassigned to this Court 2 following Judge Armijo’s assumption of senior status.
On or about September 3, 2018, the Office of the Federal Public Defender requested a
transcript of the hearing on the Motion to Reconsider. On September 11, 2018, the Office of the
Federal Public Defender received the transcript, at which point it noticed that the transcript was
marked as sealed. The transcript contained notations designating that the hearing on the Motion
to Reconsider was a “Sealed Proceeding”, despite the fact that the defense had not requested, nor
did the Court announce, that the proceeding was sealed.
None of the representatives of the Federal Public Defender present at the hearing, that is,
AFPD Brian Pori, substituting for Mr. Robbenhaar on behalf of Defendant Lonnie Jackson;
AFPD Aric Elsenheimer on behalf of Defendant Diamond Coleman, with whom Mr. Jackson’s
case is joined for purposes of this litigation; or paralegal Stephanie Porter, recall any discussion
of sealing the hearing, either on or off the record. Nor does the transcript does not reflect any
discussion of sealing the proceeding. In fact, Mr. Jackson, Mr. Coleman, and their
representatives first learned that the hearing they had attended was sealed one month after the
fact, on September 11, 2018. 3

See Transcript of 4-9-18 Status Conference (Jackson, Doc. 91; Coleman, Doc. 91), p. 25, ln. 22 - p. 26, ln. 1 (“And
what I want, from the United States, is I want a Motion to Reconsider the order that was entered by Judge Armijo,
and I want the United States to specify in there the parts where you think she was legally erroneous.”).
2
Jackson, Doc. 75; Coleman, Doc. 74. Hereinafter, all reference to documents in these two proceedings will first
refer to the Jackson case, followed by the Coleman case.
3
In fact, it was learned after the August 3, 2018 hearing that the First Assistant Federal Public Defender attempted
to enter the courtroom to view the hearing in progress but was denied entry by a Court Security Officer. It is
unknown at this time whether any other members of the public were denied entry to the hearing on the basis of it
being sealed.
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At this time it is unclear whether the sealing of the August 3, 2018 hearing on the Motion
to Reconsider was performed ex parte or sua sponte. What is clear, however, is that neither Mr.
Jackson nor Mr. Coleman moved to seal the hearing. In fact, approximately two weeks prior to
the hearing on the Motion to Reconsider, on July 20, 2018, Mr. Jackson and Mr. Coleman had
filed a Motion to Unseal all previously-sealed documents in this matter, including the
government’s Motion to Reconsider, asserting their Sixth Amendment right to a public trial.
Doc. 102; Doc. 102. That motion is pending at the time of this filing.
The sealing of the hearing on the Motion to Reconsider without Mr. Jackson’s nor Mr.
Coleman’s knowledge effectively barred them from asserting a constitutional right. As the
Supreme Court made clear in Presley v. Georgia, 558 U.S. 209 (2010), “There [can] be no
explanation for barring the accused from raising a constitutional right that is unmistakably for his
or her benefit.” Id. at 213. The public trial clause of the Sixth Amendment is unmistakably for
the benefit of a defendant. “The Sixth Amendment directs, in relevant part, that ‘[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial.’ . . . The Sixth
Amendment right, as the quoted language makes explicit, is the right of the accused.” Id. at 212.
Indeed, the right of an accused to a public trial is so sacrosanct that the Presley Court
reversed Mr. Presley’s conviction due to one of his family members being removed from the
courtroom during the voir dire phase of his trial. The Court held that circumstances requiring
court closure are “rare” and set forth “standards for courts to apply before excluding the public
from any stage of a criminal trial.” Id. at 213. Finally, the Court held that the “particular interest
[requiring closure], and threat to that interest, must be articulated along with findings specific
enough that a reviewing court can determine whether the closure order was properly entered.”
Id. at 215 (quotations omitted).

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The Supreme Court has made clear that the Sixth Amendment’s guarantee to a public
trial extends to proceedings beyond the actual criminal trial, holding in Waller v. Georgia, 467
U.S. 39 (1984) that “[t]hese aims and interests are no less pressing in a hearing to suppress
wrongfully seized evidence. . . . [S]uppression hearings often are as important as the trial itself.”
Id. at 46. Mr. Jackson and Mr. Coleman submit that the litigation pending before this Court is as
important as the trial itself, and they assert here as they have done previously, see Docs. 102,
111, that the sealing of the proceedings in his case has resulted in a violation of their Sixth
Amendment right.
Mr. Jackson and Mr. Coleman reiterate the arguments set forth in Mr. Jackson’s Reply to
the government’s sealed Response to their Motion to Unseal. See Jackson, Doc. 111. “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 v. Georgia, 467 U.S. 39, 46, 104 S. Ct. 2210, 2215, 81 L. Ed. 2d 31 (1984)
(citations omitted) (internal quotation marks omitted).
By their prior motion to unseal, Mr. Jackson and Mr. Coleman had alerted the Court of
their Sixth Amendment objection to the sealing of court documents. Doc. 102; Doc. 102. Now
that Mr. Jackson and Mr. Coleman are aware that the August 3 hearing was sealed and that the
transcript remains so, they respectfully lodge this objection. As temporary relief for the
deprivation of their Sixth Amendment right to a public trial, Mr. Jackson and Mr. Coleman move
the Court to unseal the transcript of the August 3, 2018 motion hearing.
Wherefore, Mr. Jackson and Mr. Coleman object to the sealing of the motion hearing
held on August 3, 2018 and to the continued sealing of the transcript of that hearing. (Coleman,

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Doc. 111). Further, as temporary relief, Mr. Jackson and Mr. Coleman request that the Court
unseal the transcript of that hearing.

Respectfully Submitted,
FEDERAL PUBLIC DEFENDER
111 Lomas NW, Suite 501
Albuquerque, NM 87102
(505) 346-2489
Electronically filed September 13, 2018
/s/ John F. Robbenhaar
Assistant Federal Public Defender
/s/ Aric G. Elsenheimer
Assistant Federal Public Defender
CERTIFICATE OF SERVICE
I hereby certify that on September 13, 2018, I electronically filed the foregoing with the
Clerk of the Court using the CM/ECF system which will send notification to the following: David
Walsh and Norm Cairns, Assistant United States Attorneys.

Electronically filed September 13, 2018
/s/ John F. Robbenhaar
Assistant Federal Public Defender
/s/ Aric G. Elsenheimer
Assistant Federal Public Defender

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