Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING THE GOVERNMENT’S MOTION TO HAVE THE DEFENDANT WEAR SHACKLES AT TRIAL BENNETT, Chief Judge. TABLE OF CONTENTS I. INTRODUCTION.1013 A. Background .1013 1. The 1993 case.1013 2. The 1996 case.1013 3. Indictments in the present case.1014 B. The Motion To Shackle The Defendant.1018 1. Procedural background .1018 2. Factual background .1018 II. LEGAL ANALYSIS.1023 A. The Evidentiary Issue .1023 1. Arguments of the parties.1023 2. Analysis .1023 a. Rules 1101(d) and 46(b).1023 b. The pertinent record. 1024 B. The Motion To Shackle The Defendant.1026 1. Arguments of the parties.1026 2. Applicable standards. 1027 a. Supreme Court precedent.. 1027 b. Standards applied by the lower courts .1029 i. Analysis for the guilt phase.1029 ii. Analysis for the penalty phase ....1031 3. Application of the standards. 1031 a. Locking brace.1031 b. Additional security personnel.1032 c. Shackles.1032 d. Stun belt. 1035 e. Stun belt and shackles .1038 III. CONCLUSION.1039 In this death penalty case, involving the alleged murder of five witnesses to the defendant’s drug-trafficking or other alleged criminal conduct, the government has filed under seal a motion to have the defendant wear shackles and other restraints at trial. In resolving the motion, the court must balance, inter alia, the need for such extreme security measures against the defendant’s rights to a fair trial, the assistance of counsel, and the presumption of innocence. I. INTRODUCTION A. Background 1. The 1993 case As in the rulings on other pre-trial motions, the background to the present motion begins with a survey of the prior prosecutions of defendant Dustin Lee Honken in this judicial district. Honken was first prosecuted for drug-trafficking offenses in this district in 1993 in Case No. CR 93-3019 (“the 1993 case”). As the Eighth Circuit Court of Appeals explained, In April 1993, a grand jury in the Northern District of Iowa indicted ap-pellee for conspiracy to distribute methamphetamine. After the disappearance of one or more prospective prosecution witnesses, the government dismissed the indictment. United States, v. Honken, 184 F.3d 961, 963 (8th Cir.), cert. denied, 528 U.S. 1056, 120 S.Ct. 602, 145 L.Ed.2d 500 (1999). Thus, the first prosecution of Honken in this district did not lead to a conviction. 2. The 1996 case Honken was again indicted on drug-trafficking charges on April 11, 1996, this time with co-defendant Timothy Cutkomp, in Case No. CR 96-3004-MWB (“the 1996 case”). Count 1 of the Indictment in the 1996 case charged Honken and Cutkomp with conspiracy, between about 1993 and February 7, 1996, to distribute, manufacture, and attempt to manufacture 1000 grams or more of a mixture or substance containing a detectable amount of methamphetamine and 100 grams or more of pure methamphetamine. Indictment in Case No. CR 96-3004-MWB (N.D.Iowa). Count 2 of the original Indictment in the 1996 case charged Honken with possessing and aiding and abetting the possession of listed chemicals, in violation of 21 U.S.C. § 841(d) and 18 U.S.C. § 2, and Count 3 charged possession and aiding and abetting the possession of drug paraphernalia intending to use such paraphernalia to manufacture and attempt to manufacture methamphetamine and listed chemicals, in violation of 21 U.S.C. § 843(a)(6) and 18 U.S.C. § 2, respectively. Id., Counts 2 & 3. A superseding indictment filed later in the 1996 case restated the first three charges and added a fourth charge of attempting to manufacture methamphetamine. See Superseding Indictment in Case No. CR 96-3004-MWB (N.D.Iowa). Eventually, in 1997, Honken pleaded guilty to the conspiracy charge and the charge of attempting to manufacture methamphetamine, ie., Counts 1 and 4, and the government dismissed Counts 2 and 3. See, e.g., Honken, 184 F.3d at 963. The court held an episodic sentencing hearing on December 15 and 16, 1997, and February 17, 18, and 24, 1998. Honken testified under oath on February 18 and 24, 1998. After the government’s appeal of the sentence originally imposed by the undersigned, see id., Honken was resen-tenced on January 25, 2000. Honken then unsuccessfully appealed his sentence, see United States v. Honken, 2 Fed.Appx. 611, 2001 WL 66287 (8th Cir.2001). Honken is now serving his sentence on Counts 1 and 4 in the 1996 case. 3. Indictments in the present case The present prosecution began with the filing of a seventeen-count indictment against Honken on August 30, 2001, which brought a variety of charges arising from Honken’s alleged murder and solicitation of murder of witnesses to his alleged drug-trafficking and other criminal activity, which had, for example, allegedly brought the 1993 prosecution to its abrupt conclusion and had been intended to impede prosecution of the 1996 case. On August 23, 2002, a Superseding Indictment was handed down in this case, amending Counts 8 through 17. See Superseding Indictment (docket no. 46). The court will examine the charges in this case in more detail as a prelude to a discussion of the admissibility of certain evidence at trial of those charges. Counts 1 through 5 of the Superseding Indictment charge “witness tampering.” More specifically, each count alleges that Honken “did willfully, deliberately, maliciously, and with premeditation and malice aforethought, unlawfully kill” one of five witnesses: Gregory Nicholson, Lori Duncan (Nicholson’s girlfriend), Amber Duncan and Kandi Duncan (Lori Duncan’s daughters, ages 6 and 10), and Terry De-Geus. Count 1 alleges that Gregory Nicholson was murdered 1) with the intent to prevent Gregory Nicholson from attending or’ providing testimony at an official proceeding in the Northern District of Iowa, Case Nos. 93-20 M and CR 93-3019 [the 1993 case]; 2) with intent to prevent Gregory Nicholson from communicating to a law enforcement officer of the United States, information relating to the commission or possible commission of federal offenses, including: the distribution of methamphetamine, the manufacture of methamphetamine and conspiracy to distribute and manufacture methamphetamine, a Schedule II Controlled Substance, in violation of Title 21 United States Code, Sections 841 and 846; and 3) with intent to retaliate against Gregory Nicholson for providing information to law enforcement relating to the commission or possible commission of federal offenses, including: the distribution of methamphetamine, the manufacture of methamphetamine and conspiracy to distribute and manufacture methamphetamine, a Schedule II Controlled Substance, in violation of Title 21 United States Code, Sections 841 and 846[;] and 4) with intent to retaliate against Gregory Nicholson for testifying before the Federal Grand Jury -investigating the drug trafficking activities of DUSTIN LEE HONKEN and others, which killing is a first degree murder as defined by Title 18, United States Code, Section 1111. This is in violation of Title 18, United States- Code, Sections 1512(a)(1)(A) & (C); 1513(a)(1)(A) & (B) and 1111. Superseding Indictment; Count 1. Counts 2, 3, and 4 allege that Lori Duncan, Kandi Duncan, and Amber Duncan, respectively, were murdered with the intent to prevent [them] from communicating to a law enforcement officer of the United States, information relating to the commission or possible commission of federal offenses, that is: the tampering with Gregory Nicholson, a federal witness, in violation of Title 18, United States Code, Section 1512; and DUSTIN LEE HONKEN’s unlawful contact with Gregory Nicholson, in contempt of court and in violation of DUSTIN LEE HONKEN’s conditions of federal pretrial release in Case Nos. 93-20 M and CR 93-3019 [the 1993 case], in violation of Title 18, United States Code, Sections 3148 and 401, which killing of [each witness] is a first degree murder, as defined by Title 18, United States Code, Section 1111. This is in violation of Title 18, United States Code, Sections 1512(a)(1)(C), 1512(a)(2)(A), and 1111. Superseding Indictment, Counts 2-4. Count 5 alleges that Terry DeGeus was murdered with intent to prevent Terry DeGeus from communicating to a law enforcement officer of the United States, information relating to the commission or possible commission of federal offenses, that is: the distribution of methamphetamine, manufacture of methamphetamine and conspiracy to distribute and manufacture methamphetamine, a Schedule II Controlled Substance, in violation of Title 21 United States Code, Sections 841 and 846, which killing of Terry DeGeus is a first degree murder, as defined by Title 18, United States Code, Section 1111. This is in violation of Title 18, United States Code, Sections 1512(a)(1)(C), 1512(a)(2)(A), and 1111. Superseding Indictment, Count 5. The Superseding Indictment includes, in support of Counts 1 through 5, allegations of “Findings under 18 U.S.C. § 3591 and 3592,” which the court finds it unnecessary to repeat here, because the government is not seeking the death penalty against Honken on the “witness tampering” charges. Count 6 charges Honken with soliciting the murder of witnesses, as follows: Between about June 10, 1996, and February 24, 1998, in the Northern District of Iowa and elsewhere, DUSTIN LEE HONKEN did solicit, command, induce, and endeavor to persuade Dean Donaldson and .Anthony Altimus to engage in conduct constituting a felony that has as an element, the use, attempted use, and threatened use of physical force against the person of another in violation of the laws of the United States, that is: 1) the murder of Timothy Cutkomp, with the intent to prevent Timothy Cutkomp’s attendance or testimony at a federal drug trial in the Northern District of Iowa, Case No. CR 96-3004 [the 1996 case], in violation, of Title 18, United States Code, Sections 1512 and 1111; and 2) the murder of Daniel Cobeen with the intent to prevent Daniel Cobeen from attending or testifying at a federal drug trial in the Northern District of Iowa, Case No. CR 96-3004 [the 1996 case], in violation of Title 18, United States Code, Section 1512 and 1111, with the intent that Dean Donaldson and Anthony Altimus engage in such conduct and under circumstances strongly corroborative of that intent. This is in violation of Title 18, United States Code, Section 373(a)(1). Superseding Indictment, Count 6. Count 7 charges Honken with conspiracy to tamper with witnesses and to solicit the murder of witnesses, as follows: Between about July 1, 1993, and continuing thereafter, until about 2000, in the Northern District of Iowa and elsewhere, DUSTIN LEE HONKEN did knowingly and willfully combine, conspire, confederate, and agree with other persons known and unknown to the grand jury, to commit the following offenses against the United States: 1. To kill or attempt to kill another person with the intent to prevent the attendance or testimony of that person at an official proceeding, in violation of Title 18, United States Code, Section 1512(a)(1)(A); 2. To kill or attempt to kill another person with the intent to prevent communication by a person to a law enforcement officer of information relating to the commission or possible commission of a federal offense or violations of conditions of release pending judicial proceedings, in violation of Title 18, United States Code, Section 1512(a)(1)(C); 3. To knowingly use intimidation, physical force, threats, or otherwise corruptly to persuade another person with the intent to influence, delay, or prevent testimony of a person at an official proceeding, in violation of Title 18, United States Code, Section 1512(b)(1); 4. To knowingly use intimidation, physical force, threats, or otherwise corruptly persuade another person with the intent to hinder, delay, or prevent communication to a law enforcement officer of information relating to the commission or possible commission of a federal offense or a violation of conditions of release pending judicial proceedings, in violation of Title 18, United States Code, Section 1512(b)(3); and 5. To solicit, command, induce, and endeavor to persuade a person to commit a felony that has as an element the use, attempted use or threatened use of physical force against the person or property of another, specifically violations of 18 U.S.C. § 1512(a)(1)(A) & (C) (murder and attempted murder of individuals with intent to prevent them from testifying or communicating information to law enforcement officials) and 1512(b)(1) & (3) (knowingly using, or attempting to use, intimidation, force, threats or corrupt persuasion of an individual with intent to prevent them from testifying or communicating information to law enforcement officials) with the intent that such person engage in such conduct and under circumstances strongly corroborative of that intent, in violation of Title 18, United States Code, Section 373. Superseding Indictment, Count 7. Count 7 includes fourteen numbered paragraphs of allegations of “Background to Overt Acts” and thirty numbered paragraphs , of allegations of “Overt Acts” in furtherance of the conspiracy, which the court will not quote here. Honken is also charged in Counts 8 through 12 of the Superseding Indictment in this case with five counts of murder while engaging in a drug-trafficking conspiracy (“conspiracy murder”), in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. As they presently stand, each of these Counts charges the “conspiracy murder” of one of five people — Gregory Nicholson, Lori Duncan, Amber Duncan, Kandi Duncan, and Terry DeGeus, respectively — as follows: On or about July 25, 1993 [November 5, 1993, as to DeGeus], in the Northern District of Iowa, DUSTIN LEE HONK-EN, while knowingly engaging in an offense punishable under Title 21, United States Code, Sections 846 and 841(b)(1)(A), that is between 1992 and 1998 DUSTIN LEE HONKEN did knowingly and unlawfully conspired [sic] to: 1) manufacture 100 grams or more of pure methamphetamine and 1000 grams or more of a mixture or substance containing a detectable amount of methamphetamine and 2) distribute 100 grams or more of pure methamphetamine and 1000 grams or more of a mixture or substance containing a detectable amount of methamphetamine, intentionally killed and counseled, commanded, induced, procured, and caused and aided and abetted the intentional killing of [the named individual], and such killing resulted. All in violation of Title 21, United States Code, Section 848(e)(1)(A) and Title 18, United States Code, Section 2. Superseding Indictment, Counts 8 through 12. Counts 13 through 17 of the Superseding Indictment in this case charge Honken with the murder of the same five individuals, respectively, while engaging in or working in furtherance of a continuing criminal enterprise (“CCE murder”), also in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. Those charges are as follows: On or about July 25, 1993 [November 5, 1993, as to DeGeus], in the Northern District of Iowa, DUSTIN LEE HONK-EN, while engaging in and working in furtherance of a continuing criminal enterprise in violation of Title 21, United States Code, Section 848(c), intentionally killed and counseled, commanded, induced, procured, and caused and aided and abetted the intentional killing of [the named individual], and such killing resulted. The continuing criminal enterprise DUSTIN LEE HONKEN engaged in and worked in furtherance of was undertaken by DUSTIN LEE HONKEN in concert with five or more other persons including, but not limited to, Timothy Cutkomp, Gregory Nicholson, Terry De-Geus, Angela Jane Johnson, and Jeffery Honken. In the organization, DUSTIN LEE HONKEN occupied a position of organizer, supervisor or other position of management. The criminal enterprise involved the commission of a continuing series of narcotics violations under Title 21, United States Code, Section 801 et [sic] seq. occurring between 1992 and 2000, specifically: [18 numbered paragraphs omitted]. From this continuing criminal enterprise, DUSTIN HONKEN and others derived substantial income and resources. All in violation of Title 21, United States Code, Section 848(e)(1)(A) and Title 18, United States Code, Section 2. Superseding Indictment, Counts 13 through 17. On June 10, 2003, the government filed its Notice Of Intent To Seek The Death Penalty Under 21 U.S.C. § 848 (docket no. 120), thereby giving notice of the government’s intent to seek the death penalty on the “conspiracy murder” and “CCE murder” offenses in Counts 8 through 17. On July 21, 2003, this court denied Honken’s motion to dismiss Counts 8 through 17 on the basis of “former jeopardy” in light of his prior conviction in the 1996 case. See United States v. Honken, 271 F.Supp.2d 1097 (N.D.Iowa 2003). Therefore, all of the charges in the Superseding Indictment are currently set for trial beginning on August 16, 2004. B. The Motion To Shackle The Defendant 1. Procedural background At issue in this ruling is the government’s June 2, 2004, Motion To Have Defendant Wear Shackles At Trial (docket no. 268). In its motion, the government seeks an order of the court requiring the defendant to wear leg shackles while in court and while being transported to and from the courtroom and cellblock for the duration of his trial and, further, that the shackles be secured to the floor while the defendant is in court. The defendant resisted the motion on June 18, 2004. The court originally set this and other motions for a hearing at which the defendant was expected to participate by teleconference. However, upon Honken’s request to be personally present for the hearing on this motion, the court reset this motion for a separate, closed hearing on July 15, 2004. At the hearing on July 15, 2004, the United States was represented by C.J. Williams, Assistant United States Attorney, from Cedar Rapids, Iowa, and Thomas Henry Miller, Assistant Iowa Attorney General, from Des Moines, Iowa. Defendant Dustin Lee Honken was personally present and was represented by Alfredo G. Parrish of Parrish, Kruidenier, Moss, Dunn, Montgomery, Boles & Gribble, L.L.P., in Des Moines, Iowa; Leon F. Spies of Mellon & Spies in Iowa City, Iowa; and Charles Rogers of Wyrsch, Hobbs & Mirakian, P.C., in Kansas City, Missouri. The government’s motion to have the defendant wear shackles at trial is now fully submitted. 2. Factual background At the, hearing, the government presented the testimony of two witnesses, John Graham, an agent with the Iowa Division of Narcotics Enforcement (DNE), and Roger Arechiga, the United States Marshal for the Northern District of Iowa. The government also offered, without objection, a copy of Mr. Arechiga’s Declaration in support of the government’s motion as Government’s Exhibit 1, and the court admitted that Declaration. The government offered thirteen other exhibits to which Honken did object. Exhibits 2 through 8 are copies of grand jury testimony of several witnesses in either 2000 or 2001. Exhibit 9 is a summary of information learned by Special Agent William Basler of the Iowa Division of Criminal Investigation during interviews conducted with inmates at the United States Penitentiary in Florence, Colorado (USP Florence), although the dates of those interviews are not indicated. Exhibit 10 is notes by a law enforcement officer on a telephone interview with a confidential informant at the United States Penitentiary in Marion, Illinois (USP Marion), where Honken has been most recently incarcerated on his prior convictions. Exhibits 11, 12, and 13 are handwritten original letters from that confidential informant to law enforcement officers with typewritten transcriptions. Finally, Exhibit 14 is notes by an FBI agent on another interview with the confidential informant. Exhibits 10 through 14 were added in the course of the hearing. Honken based his objections to all of the exhibits on his contention that the exhibits are hearsay. He objected to Exhibits 10 through 14 on the further ground that information had been elicited from him by the confidential informant in violation of his right to counsel. The court admitted Exhibits 2 through 14 subject to the defendant’s objection. The court will rule on the admissibility of these exhibits in its legal analysis, below. In its legal analysis, the court will also make essential findings of fact, once the court has established the appropriate legal standards for its determination of whether or not shackles or other restraints on the defendant are required during trial. For now, the court will survey the factual background to the pertinent issues from the evidence offered at the hearing on July 15, 2004, as well as other pertinent evidence presented in prior prosecutions of Honken, and prior proceedings in this case. Specifically, the court incorporates herein by reference its findings in its ruling on the government’s motion for an anonymous jury, and also takes note of the evidence presented at Honken’s sentencing on the charges in the 1996 indictment, which, inter alia, involved evidence of Honken’s intimidation of and violence towards witnesses and his attempt to escape from the Woodbury County Jail. Because Agent Graham’s testimony was offered primarily to lay a foundation for Exhibits 2 through 9, the focus of the present factual background is the testimony of Roger Arechiga, the Acting United States Marshal for the Northern District of Iowa. Much of Marshal Arechiga’s testimony was consistent with, and indeed, consisted of amplification of, his Declaration submitted with the government’s motion, in which Marshal Arechiga presented the reasons for his professional judgment that additional restraints on Honken are required during trial. More specifically, Marshal Arechiga testified that, in his opinion, heightened security measures are needed in this case for the following reasons: (1) Honken has previously attempted to escape from the Woodbury County Jail and has recently had training in martial arts and body contortion, which all suggest his desire and capacity to attempt to escape during trial; (2) Honken faces murder charges and the possibility of the death penalty, such that, in Marshal Arechiga’s opinion, Honken has “nothing to lose” by attempting to-escape ■ during trial or by engaging in other sorts of violent behavior while in or being transferred to or from the courtroom; (3) Honken has previously been involved with violent associates both in and out of prison who could be, and have been in the past, recruited to assist him with an escape attempt; (4) Honken has a record of infractions while incarcerated; (5) the trial will require management of several incarcerated witnesses and the management and protection of nine witnesses currently in witness protection;, and (6) the trial will involve heightened demands on the Marshals Service owing to the sheer number of trial participants. In his testimony, Marshal Arechiga explained that several of the persons identified on Honken’s witness list are among the most dangerous prisoners that he is aware of in federal custody, so that there must be adequate security measures to maintain control of incarcerated witnesses as well as the defendant. Upon cross-examination, however, Marshal Are-chiga conceded that Honken has been well-behaved in all of his prior court appearances and in all of his interactions with deputies, so far, during transportation to and from such proceedings. Marshal Arechiga testified in more detail than his Declaration provided about various means of restraining Honken during the trial and during his transfer to and from the courtroom. Marshal Arechiga initially stated his preference for “leg irons” (shackles) on the defendant bolted to the floor while the defendant is in the courtroom, because, in his professional opinion, that combination of restraints is the most effective means of providing security, concealing from the jury the fact that the defendant is restrained, and allowing the defendant to participate fully in the trial. According to Marshal Arechiga, leg shackles bolted to the floor would make it possible for a smaller number of deputies to be in court and to respond to other threats to security or “diversions” in the courthouse, because of the relative certainty that the defendant “was not going anywhere.” The primary drawbacks to using leg shackles bolted to the floor, Marshal Are-chiga testified, are that such restraints may make it difficult for the defendant to stand at appropriate times during the proceedings and may require some measures to conceal the restraints from jurors. As to the first difficulty, under questioning from the court, Marshal Arechiga acknowledged that, if so instructed by the court, the leg shackles and bolt could be configured with sufficient chain to allow the defendant to stand naturally when required to do so. As to the second difficulty, Marshal Arechiga suggested screening the leg shackles from the jurors’ view with “table skirts,” which would also be used on the prosecution table, and “taping” or “wrapping” the chains to prevent them from making noticeable noises when the defendant moves. The defense table was “skirted” in this fashion during the hearing on July 15, 2004, for demonstrative purposes. At the court’s request, Marshal Arechiga readily undertook to explore better means than taping or wrapping to ensure that the chains do not make noise, should leg shackles be ordered. Marshal Arechiga pointed out that, whatever measures are used to conceal use of leg shackles from the jurors, members of the public might still be aware that the defendant is chained and bolted to the floor, owing to the position of spectators behind the defendant, and that little could be done about that, without obscuring the view of monitoring marshals as well. He also conceded that members of the public might, and probably would, include some jurors’ family members, and that, human nature being what it is, such family members would not be able to refrain from telling jurors about the restraints on the defendant. He testified that it might be possible to avoid some potential prejudice by clearing the jurors and spectators from the courtroom, and indeed, from the floor of the courthouse on which the trial courtroom is located, prior to moving the defendant in leg shackles. He also noted that, if further measures had to be taken to subdue a defendant already in leg shackles during a courtroom attack or outburst, there was a substantial risk of physical injury to both the defendant and the deputy marshals attempting to subdue him. Although Marshal Arechiga expressed his own personal preference “for iron,” he acknowledged that younger deputies tended to prefer the “high tech” restraint of a “stun belt” or “stun vest.” Marshal Are-chiga explained that a stun belt can administer to an obstreperous defendant, by remote control, up to 50,000 volts of electric shock at approximately one-half ampere. One advantage of the stun belt, according to Marshal Arechiga, is that it permits the monitoring deputy to administer a milder “warning” shock several seconds before subjecting a defendant to the full shock, so that a situation can potentially be controlled in its incipiency. Moreover, he explained that such a device is worn by the defendant under his clothes, so that it is not apparent to jurors, or spectators for that matter, unless it is used. Because the stun belt is less obtrusive, Marshal Arechi-ga suggested that use of the stun belt could allow the trial to proceed rather more quickly, as less management of the jury and the public would be required before the defendant could be moved. Marshal Arechiga also testified that the stun belt allows a defendant full use of his hands and the opportunity to move naturally, as well as the opportunity to consult with counsel without impediment. Finally, Marshal Arechiga testified that it was his belief, based on trials of the stun belt on academy trainees, that there were very few men who could continue an attack or continue to resist officers while being stunned. Disadvantages of the stun belt, according to Marshal Arechiga, include the need for the monitoring deputy to maintain one-hundred per cent vigilance; the need to rely on technology with a possibility, however slight, of failure; and the possibility of accidental discharge of the stun. The last concern was minimal, he testified, because the Marshals Service has estimated that the rate of erroneous or accidental discharge of the stun belt during use in the field is only about 0.01 percent. Although Honken’s defense team asserted that use of the stun belt on a defendant would likely cause the defendant to defecate or urinate, Marshal Arechiga testified that he was not aware that such loss of control of bodily functions was at all common; rather, he testified that a “stunned” defendant would commonly make unpleasant noises and jerk or twitch around. Nevertheless, he conceded that seeing a defendant stunned would be disconcerting to jurors and members of the public. He recommended that a defendant be cuffed “while moving,” even while wearing a stun belt, just as an added precaution. Marshal Arechiga also testified to his understanding of a “locking” knee or leg brace as an alternative to leg shackles or a stun belt, although he confessed to no personal familiarity with such a restraint, because it is not authorized for use by the Marshals Service. Because use of such a device is not authorized by the Marshals Service, he testified that he did not know of any Marshal or deputy with any training in its use. Nevertheless, he explained that such a restraint “locks” if the defendant engages in inappropriate or too extensive motion, such as leaping from his chair. Marshal Arechiga testified that he understood a locking brace would make it very difficult for a defendant to run. However, he also opined that an accidental activation, from inadvertent movement by the defendant exceeding the scope allowed by the brace, would require some delay to reset. Marshal Arechiga testified that, like leg shackles or a stun belt, a locking brace would generally allow a defendant to use his hands and legs and to consult with counsel, and except in the event of a lockup, would be unobtrusive. He testified, further, that, also like leg shackles, a locking brace would involve a higher risk of physical injury to deputies and the defendant if additional measures were required to subdue a defendant during an outburst or altercation. Under questioning from defense counsel, Marshal Arechiga testified that he could attempt to obtain a waiver of the Marshals Service’s ban on locking braces and could also attempt to find out how much training would be required before such braces could be used. Even if a locking brace could otherwise be a viable alternative, he pointed out that he would still have to train additional deputies in the use of a locking brace as various security teams “rotated” during the course of trial. The final alternative that Marshal Are-chiga described was the use of substantially more deputies in the courtroom to provide security and to monitor the defendant. Marshal Arechiga testified that even he had found such a measure “oppressive” to the courtroom atmosphere. Moreover, he explained that such a procedure would be a substantial financial and human resources problem for a relatively small district, like the Northern District of Iowa. To summarize his initial testimony, Marshal Arechiga expressed a preference for use of leg shackles all of the time, with the leg shackles bolted to the floor while the defendant was in court. He initially identified use of a stun belt alone as his second choice. He rejected use of a locking brace, because it was not authorized by the Marshals Service and he had no deputies trained in its use. When asked by the court to explain why he was treating a stun belt and leg shackles as alternatives, Marshal Arechiga testified that he had been advised by his legal counsel that the stun belt and leg shackles were mutually exclusive, so that he could recommend use of one or the other, but not both. The court then assured Marshal Arechiga that he could use the security measures that he was ordered to use by the court, regardless of whether the court’s order conformed to the advice of legal counsel for the Marshals Service. Therefore, after questioning by the parties and the court, Marshal Arechiga departed from the advice of his legal counsel to opine that his personal preference, and indeed, his specific request, would be that the defendant wear both a stun belt and leg shackles bolted to the floor while in court and a stun belt with handcuffs, but not leg shackles, while he was being moved within the courthouse. The government then orally amended its motion to reflect this request by Marshal Arechiga. Although Honken offered no evidence at the hearing, he initially stated his preferences to be the following: (1) use of a leg brace only; (2) use of a stun belt only; (3) use of a leg brace and stun belt together; and (4) use of leg shackles bolted to the floor, but without a stun belt. Because the government could not agree to a leg brace and preferred a higher level of restraint than Honken, the parties were unable to reach an agreement on their recommendation to the court for restraint of Honken during trial. On -the other hand, the parties were able to reach a stipulation that all incarcerated witnesses, called by either the government or the defendant, would appear in leg shackles, handcuffs, and. belly chains while testifying. II. LEGAL ANALYSIS (Including Essential Findings Of Fact) A. The Evidentiary Issue 1. Arguments of the parties The first issue that the court must resolve is whether it can consider all of the challenged exhibits, Exhibits 2 through 14, offered by the government at the July 15, 2004, hearing. The government conceded that these exhibits were hearsay and did not assert that they fall within any recognized hearsay exception. The government argued that these exhibits are nevertheless admissible pursuant to Rule 1101(d) of the Federal Rules of Evidence and Rule 46(b) of the Rules of Criminal Procedure. The government contended that, read together, these rules suggest that a hearing on trial security measures is a collateral proceeding to the determination of the defendant’s guilt, and as such, is not subject to the Rules of Evidence. Honken vehemently disagreed, pointing out that Rules 1101(d) and 46(b) apply to proceedings regarding conditions of release, but say nothing about trial security proceedings. Honken asserted that the Rules of Evidence should apply when the government is asking for measures that would be fundamentally at odds with the presumption of innocence. 2. Analysis a. Rules 1101(d) and 46(b) Rule 1101(d) of the Federal Rules of Evidence provides, in pertinent part, as follows: (d) Rules inapplicable. The rules [of evidence] (other than with respect to privileges) do not apply in the following situations: $ ‡ ‡ ‡ (3) Miscellaneous proceedings. Proceedings for extradition or rendition; preliminary examinations in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings with respect to release on bail or otherwise. Fed.R.Evid. 1101(d)(3) (emphasis added). The court finds nothing in this rule supporting the government’s contention that the Rules of Evidence are inapplicable. First, this is not one of the proceedings expressly identified in the rule .as a “miscellaneous proceeding” to which the Rules of Evidence are inapplicable. Second, from the structure of this portion of the rule, it is apparent that the “or otherwise” language does not create a “catchall” category of “miscellaneous proceedings” to which the Rules of Evidence do not apply. Rather, that language modifies only conditions of release, that is, the Rules of Evidence do not apply to proceedings with respect to release on hail or on other conditions. Indeed, the 1972 Advisory Committee Notes on the proposed rules strongly support such a reading by noting, in pertinent part, that “[proceedings with respect to release on bail or otherwise do not call for application of the rules of evidence.” Id., Advisory Committee Notes on 1972 Proposed Rules. From this statement, it is clear that the Advisory Committee intended the “or otherwise” language to relate to conditions of release, not to create a separate category of “miscellaneous proceedings.” Obviously, the situation would be different if the “or otherwise” language had been preceded by a semicolon, as were all of the other categories of “miscellaneous proceedings” identified in the Rule, but that is not the situation. Because Rule 1101(d) does not, either expressly or by reasonable implication, make the Rules of Evidence inapplicable to determination of courtroom security measures during the trial of a capital case, that rule does not support the government’s argument that the Rules of Evidence are inapplicable to the present proceeding, and hence, does not support the admissibility of Exhibits 2 through 14. Similarly unavailing is the government’s assertion that Rule 46(b) of the Federal Rules of Criminal Procedure makes the Rules of Evidence inapplicable to proceedings on the present motion. Rule 46(b) provides as follows: (b) During Trial. A person released before trial continues on release during trial under the same' terms and’ conditions. But the court may order different terms and conditions or terminate the release if necessary to ensure that the person will be present during trial or that the person’s conduct will not obstruct the orderly and expeditious progress of the trial. Fed.R.CRIm.P. 46(b). Even though this rule authorizes the court to order conditions necessary to ensure that “a person’s conduct will not obstruct the orderly and expeditious progress of the trial,” this rule is not applicable here. The rule, "on its face, applies to “[a] person released before trial,” but Honken is a person incarcerated before trial. Thus, this rule likewise does not support the government’s contention that the Rules of Evidence are inapplicable to the proceedings on the present motion, and hence, does not support the admissibility of Exhibits 2 through 14. The court has found no decision in which a court held or even suggested that either Rule 1101(d) or Rule 46(b), read separately or together, would make the Rules of Evidence inapplicable to a proceeding such as the one now before the court. For these reasons, the court rejects the only basis for admission of Exhibits 2 through 14 asserted by the government. Therefore, Exhibits 2 through 14 are inadmissible hearsay pursuant to Rule 802 of the Federal Rules of Evidence. b. The pertinent record Notwithstanding the failure of the government’s arguments in support of the admission of Exhibits 2 through 14, the court must consider the broader question of whether the Rules of Evidence apply to this proceeding and what, precisely, the court may consider in making its determination of the restraints to which the defendant may be subjected during trial. The court finds it rather strange that the Rules of Evidence do not apply to “preliminary examinations in criminal cases,” “sentencing,” or “proceedings with respect to release on bail or otherwise,” see Fed.R.Evid. 1101(d), but would nevertheless appear to apply to proceedings to determine appropriate courtroom security measures during trial. Therefore, the court finds that some probing of the reasons that the Rules of Evidence do not apply to the listed categories of proceedings may be illuminating. At the time when Rule 1101(d) was drafted, the Advisory Committee noted that the Rules of Evidence did not apply to sentencing, even where a life sentence or death penalty was at stake, because “due process does not require confrontation or cross-examination in sentencing ... and that the judge has broad discretion as to the sources and types of information relied upon.” Fed.R.Evid. 1101, Advisory Committee Notes, 1972 Proposed Rules, Note to Subdivision (d) (citing Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949)). If the Rules of Evidence do not apply to a matter with such consequences for the defendant’s life and liberty, it seems counterintuitive that they would apply to a preliminary determination of security measures at trial. There may be some justification for the inapplicability of the Rules of Evidence at sentencing, because the presumption of innocence no longer applies, but that justification does not apply to the pre-trial proceedings to which Rule 1101(d) also expressly makes the Rules of Evidence inapplicable. Like sentencings, preliminary examinations and proceedings with respect to release on bail also affect the defendant’s liberty, but at a time when the defendant is entitled to the presumption of innocence. Nevertheless, such pre-trial “miscellaneous proceedings” are also exempt from the Rules of Evidence, because, for example, the Advisory Committee recognized that “hearsay testimony is ... customarily received at [preliminary] examinations,” and “references to the weight of the evidence against the accused” in the context of bail proceedings “clearly do not have in view evidence introduced at a hearing under the rules of evidence.” Id. The justification for the inapplicability of the Rules of Evidence in such proceedings must be that there is a pressing need for preliminary determinations on whether or not to detain the defendant, so that the decision must be made on the basis of the best information reasonably and realistically available. Requiring application of the Rules of Evidence in such proceedings would turn them into “mini-trials” on both the ultimate charges against the defendant and collateral matters that certainly go to the risk to society that the defendant might pose, but do not go to the defendant’s guilt or innocence on the charges then pending. In such preliminary proceedings, it would be absurd and irresponsible for the court to ignore credible but otherwise inadmissible evidence that the defendant poses a risk of flight or violence. Moreover, where trial will ultimately condemn or vindicate the defendant, based on application of not just the Rules of Evidence but the full panoply of due process protections, the trial itself is a “post-deprivation remedy” for the imposition of restraints pre-trial according to lesser standards. The present proceedings are similar to such pre-trial proceedings, and the same rationale for the inapplicability of the Rules of Evidence would, therefore, seem to apply to these proceedings. Just as importantly, a decision of the Eighth Circuit Court of Appeals on security measures at trial states that a trial court is not always required to hold a hearing or to make explicit findings before imposing specific restraints on the defendant during trial; rather, the court is “ ‘given sufficient discretion to meet the circumstances of each case.’ ” United States v. Stewart, 20 F.3d 911,' 915 n. 8 (8th Cir.1994) (quoting Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970)). Specifically, “the district court [i]s entitled to rely on the face of the indictment, ... the record that had been made during [the defendant’s] arraignment in the same case, and its observations of matters that are reflected in the trial transcript.” Id. The Rules of Evidence plainly do not apply to either the face of the indictment or the defendant’s arraignment, hut trial courts in this Circuit are nevertheless authorized to rely upon them in making a determination of security measures at trial. Thus, although the court-will not consider Exhibits 2 through 14 out of an abundance of caution, the court nevertheless concludes that it may consider other pertinent evidence presented in prior proceedings involving Honken, including his sentencing on the charges in the 1996 indictment and proceedings on the government’s motion for an anonymous jury, because evidence from those proceedings is at least as reliable as the- face of the indictment and evidence from the defendant’s arraignment. Cf. Stewart, 20 F.3d at 915 n. 8. Indeed, in both Honken’s pri- or sentencing and the proceedings on the motion for an anonymous jury, Honken had the opportunity for cross-examination, even if the Rules of Evidence did not expressly apply. The evidence from those proceedings shows, inter alia, that Honk-en intimidated and used violence against witnesses, attempted to escape from the Woodbury County Jail, and attempted to enlist the aid of associates inside and outside of the Jail for both purposes. In the alternative, the court finds that Marshal Arechiga indicated, at least by inference, that the information he relied upon to make his security recommendations is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” See Fed.R.Evid. 703. Thus, Marshal Arechiga’s “opinion or inference” that specific restraints on the defendant are required during trial is admissible, even if the “facts or data” upon which his “opinion or inference” is based are not. Id. The government did not rely on this ground for the admissibility of Marshal Arechiga’s opinions about the need for additional courtroom security in this case, perhaps because the government, quite surprisingly, was not equipped with a copy of the Federal Rules of Evidence at thé hearing on July 15, 2004. Pursuant to Rule 703, the court concludes that, even if it cannot properly consider evidence from prior proceedings involving Honken, the court can nevertheless consider Marshal Arechiga’s opinions that additional security measures are required in this case, because Plonken poses a danger to trial participants and a threat of escape. Therefore, out of an abundance of caution, the court will not rely upon Exhibits 2 through 14, but will rely on evidence from prior proceedings against Honken and the opinion of Marshal Arechiga that heightened security measures are required in this case, because Honken poses a danger to trial participants and a threat of escape. B. The Motion To Shackle The Defendant With the evidentiary issue resolved, the court turns to the merits of the government’s motion to shackle the defendant during trial, as that motion was orally amended during the hearing on July 15, 2004. Thus, the question presented is whether placing Honken in a stun belt and shackles bolted to the floor while in the courtroom and a stun belt and handcuffs and/or shackles while being moved to or from the courtroom, or some lesser level of restraint, is appropriate in this case. The court’s analysis of that question begins with the arguments of the parties. 1. Arguments of the parties In its written arguments in support of this motion, the government itself summarized the three prongs of its argument to be the following: (1) that the court has a compelling interest in maintaining courtroom safety and decorum; (2) that Honken poses a serious threat to this interest; and (3) that ordering Honken to wear leg shackles at all times while not in his cell and to have those leg shackles bolted to the floor is the most appropriate means to achieve the court’s compelling interest in increased courtroom security without prejudicing the jury towards the defendant. The government asserts that Honken’s threat to the compelling interest in courtroom safety arises from the following: (a) the severity of the crimes with which he is charged; (b) the threats of violence that he has made against witnesses and others; (c) the violent crimes to which he has pleaded guilty and his escape attempt while in police custody; and (d) the determination by Marshal Arechiga that Honken will attempt acts of violence or escape while in the courtroom. In his written arguments, Honken responded that, while he recognizes that the court is vested with broad discretion in assuring courtroom security, the government’s allegations are not and cannot be borne out by the evidence; the measures advocated by the government are unnecessary; and those measures would deprive him of his right to a fan-trial and the assistance of counsel. At the hearing on July 15, 2004, the government modified its requested security measures to match those ultimately proposed by Marshal Arechiga. Thus, the government requests that Honken wear a stun belt at all times while in court or while being moved to or from the courtroom, that he also wear handcuffs while in transit, and that he also wear leg shackles bolted to the floor while in the courtroom. During the hearing, the government also pointed out that some of the concerns about “prejudice” from the possibility that jurors or members of the public might see Honken in leg shackles is ameliorated by the fact that jurors and members of the public will learn that Honken is incarcerated. For that reason, the government argued that seeing Honken in shackles would come as no surprise to jurors, and indeed, might be regarded as simply routine. The government also asserted, based on Marshal Arechiga’s testimony, that leg shackles and bolting in addition to the stun belt while in court were reasonably justified to improve security in light of the number of available deputies, should there be a disturbance or “diversion.” At the hearing, Honken reiterated his contention that a stun belt, shackles, and being bolted to the floor while in court are simply not justified. While he concedes that shackles and a stun belt are probably justified while he is being moved within and to and from the courtroom, he contends that bolting him to the floor or making him wear a stun belt as well as shackles while in court is simply excessive. Apparently conceding that a locking brace is not a viable alternative, he also modified his personal preference to be a stun belt alone, contingent on good behavior, because he asserted that the stun belt was the only measure reasonably justified by the evidence. 2. Applicable standards a. Supreme Court precedent The Supreme Court has identified the issues that must be balanced in the court’s determination of courtroom security measures. In Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), the Supreme Court held that a trial judge had not abused his discretion by removing the defendant from his own trial. Allen, 397 U.S. at 347, 90 S.Ct. 1057. Before so holding, the Court identified the interests at issue, the range of permissible ways for a court to respond to an obstreperous defendant, and the effect of one of those ways, binding and gagging, on the pertinent interests: It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly. Trying a defendant for a crime while he sits bound and gagged before the judge and jury would to an extent comply with that part of the Sixth Amendment’s purposes that accords the defendant an opportunity to confront the witnesses at the trial. But even to contemplate such a technique, much less see it, arouses a feeling that no person should be tried while shackled and gagged except as a last resort. Not only is it possible that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold. Moreover, one of the defendant’s primary advantages of being present at the trial, his ability to communicate with his counsel, is greatly reduced when the defendant is in a condition of total physical restraint. It is in part because of these inherent disadvantages and limitations in this method of dealing with disorderly defendants that we decline to hold with the Court of Appeals that a defendant cannot under any possible circumstances be deprived of his right to be present at trial. However, in some situations which we need not attempt to foresee, binding and gagging might possibly be the fairest and most reasonable way to handle a defendant who acts as Allen did here. Allen, 397 U.S. at 343-44, 90 S.Ct. 1057. Subsequently, in Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), the Supreme Court identified more clearly the constitutional concerns involved, then surveyed the extent to which it had previously determined that certain security measures impinge upon those rights: Central to the right to a fair trial, guaranteed by the Sixth and Fourteenth Amendments, is the principle that “one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.” Taylor v. Kentucky, 436 U.S. 478, 485, 98 S.Ct. 1930, 1934, 56 L.Edüd 468 (1978). This does not mean, however, that every practice tending to single out the accused from everyone else in the courtroom must be struck down. Recognizing that jurors are quite aware that the defendant appearing before them did not arrive there by choice or happenstance, we have never tried, and could never hope, to eliminate from trial procedures every reminder that the State has chosen to marshal its resources against a defendant to punish him for allegedly criminal conduct. To guarantee a defendant’s due process rights under ordinary circumstances, our legal system has instead placed primary reliance on the adversary system and the presumption of innocence. When defense counsel vigorously represents his client’s interests and the trial judge assiduously works to impress jurors with the need to presume the defendant’s innocence, we have trusted that a fair result can be obtained. Our faith in the adversary system and in jurors’ capacity to adhere to the trial judge’s instructions has never been absolute, however. We have recognized that certain practices pose such a threat to the “fairness of the factfinding process” that they must be subjected to “close judicial scrutiny.” Estelle v. Williams, 425 U.S. 501, 503-504, 96 S.Ct. 1691, 1692-1693, 48 L.Ed.2d 126 (1976). Thus, in Estelle v. Williams, we noted that where a defendant is forced to wear prison clothes when appearing before the jury, “the constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment.” Id., at 504-505, 96 S.Ct. at 1693. Since no “essential state policy” is served by compelling a defendant to dress in this manner, id., at 505, 96 S.Ct. at 1693, this Court went no further and concluded that the practice is unconstitutional. This close scrutiny of inherently prejudicial practices has not always been fatal, however. In Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), the Court emphasized that a defendant may be prejudiced if he appears before the jury bound and gagged. “Not only is it possible that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.” Id., at 344, 90 S.Ct. at 1061. Yet the Court nonetheless observed that in certain extreme situations, “binding and gagging might possibly be the fairest and most reasonable way to handle” a particularly obstreperous and disruptive defendant. Ibid. Holbrook, 475 U.S. at 567-68, 106 S.Ct. 1340. In Holbrook, the Supreme Court concluded that the practice in question, the conspicuous presence of guards in the courtroom, was not inherently prejudicial and that the defendant had failed to establish actual prejudice. Id. at 572, 106 S.Ct. 1340. It is upon these discussions of the pertinent interests that the lower courts have subsequently premised their discussions of the standards that courts must use to determine the appropriate level of restraint, if any, to be placed on a criminal defendant during trial. b. Standards applied by the lower courts i. Analysis for the yuilt phase. The Eighth Circuit Court of Appeals has concluded from Supreme Court precedent that, where “inherently prejudicial” measures are at issue, “close judicial scrutiny” is required to ensure that the inherently prejudicial measures are “necessary to further an ‘essential state interest.’ ” Helium v. Warden, U.S. Penitentiary-Leavenworth, 28 F.3d 903, 907 (8th Cir.1994). Measures that are not “inherently prejudicial,” on the other hand, are permissible unless they pose “ ‘unacceptable risk of prejudice.’ ” Id. (quoting Holbrook, 475 U.S. at 571, 106 S.Ct. 1340). Generally, whether a measure is “inherently prejudicial” depends upon the extent of the threat it poses to the “ ‘fairness of the factfinding process.’ ” United States v. Stewart, 20 F.3d 911, 915 (8th Cir.1994) (quoting Hol-brook, 475 U.S. at 568,106 S.Ct. 1340). As to the interests required to justify security measures, “[cjlearly, the safety of a state’s courtrooms is an essential state interest justifying the use of restraints.” Gilmore v. Armontrout, 861 F.2d 1061, 1071 (8th Cir.1988), cert, denied, 490 U.S. 1114, 109 S.Ct. 3176, 104 L.Ed.2d 1037 (1989). The same must surely be said for the safety of federal courtrooms. The Eighth Circuit Court of Appeals has distilled the applicable analysis into two steps: First, the court must consider, in its discretion, whether restraints are necessary to prevent the defendant from escaping and to protect others in the courtroom; second, the court must consider whether placing the defendant in restraints prejudices the defendant. See Zeitvogel v. Delo, 84 F.3d 276, 283 (8th Cir.), cert, denied, 479 U.S. 871,107 S.Ct. 243, 93 L.Ed.2d 168 (1986); Helium, 28 F.3d at 907 (“The question before us is whether the grounds for additional security which existed at the time the security measures were taken justify any prejudice which they created.”); Stewart, 20 F.3d at 915 (courts “must balance the possibility of prejudice against the need to maintain order in the courtroom and custody over incarcerated persons”) (citing Holbrook, 475 U.S. at 571-72, 106 S.Ct. 1340). Other Circuit Courts of Appeals have also expressly added a third step to the analysis, requiring consideration of whether less restrictive alternatives are available, see, e.g., Gonzalez v. Pliler, 341 F.3d 897, 902 (9th Cir.2003); Packer v. Hill, 291 F.3d 569, 583 (9th Cir.2002), rev’d on other grounds sub nom. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (reversing appellate court’s determination that charge to deadlocked jury was coercive); United States v. Durham, 287 F.3d 1297, 1304 (11th Cir.2002), although this court believes that consideration of less restrictive alternatives should necessarily be part of a determination of the “need” for a particular security measure. Not only must the court exercise its discretion to determine the “need” for security measures, the court must also exercise its discretion to det