142 F.3d 529 (2nd Cir. 1998), 426, Brown v. Kuhlmann

Docket Nº:426, Docket 97-2189.
Citation:142 F.3d 529
Party Name:Andre BROWN, Petitioner-Appellee, v. Robert KUHLMANN, Superintendent of Sullivan Correctional Facility, Respondent-Appellant.
Case Date:April 24, 1998
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 529

142 F.3d 529 (2nd Cir. 1998)

Andre BROWN, Petitioner-Appellee,


Robert KUHLMANN, Superintendent of Sullivan Correctional

Facility, Respondent-Appellant.

No. 426, Docket 97-2189.

United States Court of Appeals, Second Circuit

April 24, 1998

Argued Aug. 28, 1997.

As Amended June 1, 1998.

Page 530

Marc Frazier Scholl, Assistant District Attorney, New York County (Robert M. Morgenthau, District Attorney and Mark Dwyer, Assistant District Attorney, on the brief), for Respondent-Appellant.

Richard M. Greenberg, Office of the Appellate Defender, New York City (Rosemary Herbert, David Blair-Loy, on the brief), for Petitioner-Appellee.

Before: MESKILL and JACOBS, Circuit Judges, and KORMAN, District Judge. [*]

KORMAN, District Judge:

Andre Brown was convicted of participating in the kidnapping of Isidro Sanchez, a 21 year-old emigre from the Dominican Republic. Sanchez was held for twelve hours during which he was kept blindfolded and beaten. Before he was rescued by the Emergency Services Unit of the New York City Police Department, ransom telephone demands were made to his family by the kidnappers. Some of these demands were recorded by the police, who had been called by the Sanchez family. Brown was identified by Isidro Sanchez as the principal perpetrator, and Brown's voice on the recorded conversations was identified by Isidro Sanchez and his brother, Raimundo Sanchez. Andre Brown was not found in the apartment at the time Isidro Sanchez was rescued because he was on the way to meet Raimundo Sanchez to pick up ransom money. Nevertheless, the compelling evidence of Brown's complicity was corroborated by his stop for a traffic infraction while driving outside the apartment where Sanchez was held captive a little more than three hours before Sanchez was rescued.

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Brown offered no evidence on his own behalf--not even one of his friends or family members who were present at the trial--to testify that his was not the voice on the tape recorded telephone conversations with the Sanchez family. The evidence of guilt was thus "unanswered--and unanswerable." United States v. Hasting, 461 U.S. 499, 512, 103 S.Ct. 1974, 1982, 76 L.Ed.2d 96 (1983). Indeed, Brown's only argument on direct appeal was that his conviction should be reversed because the public was excluded from the courtroom during the testimony of a New York City Police Officer that occupies less than six pages of a transcript of over nine hundred pages and provides cumulative evidence with respect to a collateral issue in the case.

After this argument was rejected by the Appellate Division because it was "not preserved for appellate review," People v. Brown, 216 A.D.2d 100, 101, 627 N.Y.S.2d 925 (1st Dept.1995), and leave to appeal to the Court of Appeals was denied, People v. Brown, 86 N.Y.2d 872, 635 N.Y.S.2d 953, 659 N.E.2d 776 (1995), Brown filed a petition for a writ of habeas corpus seeking relief on the ground that he unsuccessfully argued on direct appeal. The petition was granted by the United States District Court for the Southern District of New York. Brown v. Kuhlmann, No. 96 CIV 7530(HB), 1997 WL 104956 (S.D.N.Y. Mar. 10, 1997) (Baer, J.). On this appeal by the State of New York (in the person of the Superintendent of the Sullivan County Correctional Facility), we hold that the brief courtroom closure did not violate the Public Trial Clause and, even if the closure was not justified, it does not warrant habeas corpus relief.


Isidro Sanchez, who was born in the Dominican Republic, arrived in New York with his family in 1984 and was a legal resident of the United States. When he was seventeen years old, Sanchez was involved in two fights and, as a result, was jailed in March of 1989. While in jail, Sanchez became friends with Andre Brown and another man, who was known to him only as "Dubo." Sanchez saw Brown every day in prison for about four months, and the two made plans to remain friends after their respective releases. During their prison conversations, Sanchez bragged to Brown that he could get drugs.

In March 1990, after his release from prison, Sanchez was arrested while in possession of a kilogram of cocaine. He was convicted of felony drug possession and sentenced to an indeterminate prison term of one to three years. In March 1991, Sanchez was released from jail. Over the next few months, he met with Brown several times at a bar at the corner of Broadway and 143rd Street in Manhattan. On the night of June 29, 1991, Brown contacted Sanchez and arranged a meeting. At about 11:00 p.m. that night, Sanchez met Brown at the corner of 143rd Street and Broadway and then walked with him along 143rd Street towards Riverside Drive. When the two stopped to talk, Dubo approached Sanchez from behind, held a pistol to his head, and forced him into a car. Sanchez was then handcuffed, blindfolded, warned not to scream or make any noise, and told to get down in the backseat so that no one could see him.

After a forty-five minute ride the kidnappers led Sanchez into an apartment located in the Breukelen Housing Project at 716 East 108th Street, between Glenwood Road and Flatlands Avenue in Brooklyn. There they began making a series of telephone ransom calls to Sanchez's family demanding money and drugs. Isidro's brother, Raimundo Sanchez, his sister, Maria Magdelena Sanchez, and his mother, Dulce Sanchez, were all home that morning and received the first ransom call at about 2:00 a.m. The kidnappers told the family to deliver $15,000 and a kilogram of cocaine to a certain location or else Isidro would be killed. The kidnappers made several similar calls to Isidro's family. During one call, Brown identified himself to Raimundo Sanchez and threatened to kill both Isidro's girlfriend and Raimundo unless the ransom demands were met. Ultimately, the Sanchez family notified the police. At about 5:40 a.m., Detective Roman Rosario arrived at the Sanchez apartment in Manhattan with tape recording equipment. Subsequent ransom calls were recorded by Detective Rosario, who also

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spoke with the kidnappers himself, posing as the Sanchez's Uncle Marco.

Meanwhile, Isidro Sanchez remained handcuffed and blindfolded in the Brooklyn apartment to which he had been taken. After about two hours of captivity, his captors began beating him "[o]n the head, all over" with a metal object that he believed was a pistol. He was also burned with a cigarette lighter about his face and neck, on his torso, and on his legs. Raimundo Sanchez could hear his brother screaming during some of the telephone calls. At approximately 10:00 a.m. on June 30, 1991, an incoming call from the kidnappers to the Sanchez apartment was traced to 716 East 108th Street, Apartment 1D in the Breukelen Housing Project. At about 1:05 p.m., an Emergency Services unit entered that apartment and found Isidro, still handcuffed and blindfolded. The apartment's four occupants, including one Joshua Simon, were arrested. Brown was not in the apartment when the police entered because he had left to pick up ransom money from Raimundo Sanchez.

The evidence implicating Andre Brown in the kidnapping included Isidro Sanchez's testimony identifying him as one of the men who had abducted him and then restrained him in the Brooklyn apartment. Isidro Sanchez also identified Brown as one of the kidnappers who spoke to his family on the taped ransom calls. Raimundo Sanchez testified that one of the kidnappers with whom he spoke on the phone identified himself as "Andre." There was also evidence that a car driven by Brown was stopped by two police officers in the immediate vicinity of the Breukelen Housing Project on the morning of June 30, 1991, a little more than three hours before Isidro Sanchez was rescued. Specifically, at about 9:40 a.m., uniformed police officers, who were patrolling in a marked police car, observed a vehicle driven by Brown committing a traffic infraction. They ultimately caught up with the car and pulled it over in the parking lot of the Breukelen Housing Project where Isidro Sanchez was being held. One of the passengers in the car was Joshua Simon, who was later arrested at the apartment when Isidro Sanchez was rescued.

After Brown--who identified himself as Sharif Mason--was given a summons, he was allowed to drive away. The manner in which Brown was identified as the driver of the vehicle that was stopped in the parking lot of the Breukelen Housing Project gave rise to the incident involving the courtroom closure. While the identification of Joshua Simon as the passenger was established by an unusual scar on his left cheekbone that he told the officers had been inflicted by a gunshot, the identification of Andre Brown as the driver was somewhat more complicated because neither of the police officers who stopped the car could later identify him. Nevertheless, persuasive documentary evidence established that the name Sharif Mason, which Brown gave when he was stopped, was an alias derived from his middle name, "Sharif," and his mother's last name, "Mason."

Andre Brown's birth certificate states that his full name is Andre Sharif Brown, that he was born on July 29, 1970, and that his mother's name was Sandra Mason. Indeed, his mother was listed as the subscriber of two telephone numbers at 3405 Neptune Avenue in Brooklyn. This was similar to the address on the Social Security card with the name Sharif Mason that Brown produced as his only identification when his car was stopped. 2 Brown had also been arrested twice before, once by Police Officer Shea and once by Police Officer Richard Roe. On both of these occasions he gave information as part of the pedigree process attendant to arrest that also confirmed that he and Sharif Mason were the same person.

Their testimony, however, was censored to eliminate any reference to the fact that Brown had been arrested. Instead, Police Officer Shea identified...

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