341 F.3d 104 (2nd Cir. 2002), 01-2299, Yung v. Walker

Docket Nº:01-2299
Citation:341 F.3d 104
Party Name:Yung v. Walker
Case Date:June 27, 2002
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 104

341 F.3d 104 (2nd Cir. 2002)

Hoi Man YUNG, Petitioner-Appellee,


Hans WALKER, Superintendent, Auburn Correctional Facility, and Eliot L. Spitzer, New York State Attorney General, Respondents-Appellants,

No. 01-2299.

United States Court of Appeals, Second Circuit

June 27, 2002.

Argued: Feb. 6, 2002.

Amended: Aug. 1, 2003.

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Jeffrey I. Richman, The Legal Aid Society-Criminal Appeals Bureau, New York, NY (Andrew C. Fine, on the brief,) for Petitioner-Appellee.

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Melanie L. Oxhorn, Assistant Solicitor General (Eliot Spitzer, Attorney General of the State of New York, Preeta D. Bansal, Solicitor General, Robin Forshaw, Assistant Solicitor General, on the brief), New York, NY, for Respondents-Appellants.

Before: POOLER and SOTOMAYOR, Circuit Judges, KAPLAN, District Judge. [*]

POOLER, Circuit Judge.

New York State Attorney General Eliot L. Spitzer and Auburn Correctional Facility Superintendent Hans Walker (collectively, the "State") appeal from a judgment of the United States District Court for the Southern District of New York (Robert W. Sweet, Judge ) granting petitioner Hoi Man Yung a conditional writ of habeas corpus. Because Yung filed his petition, which contested the closure of his trial to relatives during the testimony of an undercover officer, after the effective date of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), the district court could grant the writ only if it concluded that the closure was contrary to or an unreasonable application of federal law clearly established by the Supreme Court. The district court conducted its reasonableness analysis using a line of Second Circuit authority interpreting Supreme Court cases. In an opinion filed on June 27, 2002, we vacated and remanded for analysis of the reasonableness of the closure under the relevant Supreme Court cases: In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948), and Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). The mandate issued on August 28, 2002. After issuance of the mandate, the district court granted the writ, directing respondent to release Yung unless it retried him within a reasonable period of time. See Yung v. Walker, 2002 WL 31778816 (S.D.N.Y.2002). Respondent has appealed the granting of the writ.

We issue this amended version with slightly changed language because of some disagreement within our circuit regarding the standard for analyzing under AEDPA, a Waller Sixth Amendment claim pertaining to the exclusion of relatives from the courtroom. Because the disposition has not changed, we do not recall the mandate. We note that an amended opinion will also issue in Sevencan v. Herbert, 316 F.3d 76 (2d Cir. 2002), originally filed on December 30, 2002, which too addresses courtroom closure and AEDPA standards. No mandate has been issued in that case.


Yung currently is serving a fifty-year to life sentence in New York's Auburn Correctional Facility. His sentence results from his conviction, after a jury trial, of two counts of criminal sale of a controlled substance in the first degree, nine counts of criminal sale of a firearm in the third degree, five counts of criminal possession of a weapon in the third degree, and three counts of criminal sale of a controlled substance in the third degree.

An undercover police officer who provided crucial evidence of Yung's guilt testified for almost two of the four days of trial. Before the undercover officer began his testimony, the People requested closure of the courtroom. New York State Supreme Court Justice Ronald Zweibel conducted a hearing pursuant to People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265 (1972), to determine the propriety and scope of closure.

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During the Hinton hearing, the undercover officer testified that in recent years he had testified only in closed courtrooms. He indicated that he feared for his safety if the courtroom were not closed during his testimony and that he had been threatened by individuals "associated with" Yung. The undercover officer used "associated with" as a synonym for "know[ing] each other." The last threat occurred approximately nine months prior to trial and was not related to Yung's trial. The individual who made the threat was on trial in an unrelated matter.

The officer had two pending undercover investigations involving subjects who had not been arrested on the lower east side of Manhattan. He intended to go back to the lower east side, where Yung also committed his crimes, to further his investigations.

Defense counsel asked the undercover officer if he was afraid of any member of Yung's family other than Yung's brother, David, who had been arrested in the same case but whose charges had been dismissed. The undercover officer responded that he could not answer the question but that he had fears concerning "[a]nyone who is involved in the current investigations, anyone who is affiliated with the individual who knows your client."

During argument at the close of the hearing, defense counsel asked the court to exempt Yung's mother, Ha Chung Yuk; the mother of Yung's child, Beverly Soto; and Yung's sister-in-law, Theresa Soto, from any closure order. The prosecution objected, reminding the court that Yung and his brother had been affiliated with violent criminal organizations and that when Yung's apartment was searched incident to a prior arrest, officers found holsters and bullet proof vests. The prosecutor argued that "[i]t is speculation to suggest that the defendant's family members will come in here and not report to the defendant's brother David Yung or to any of the other people with whom this defendant is associated who the undercover is, describe him and things of that nature." The court noted that the three women were connected at least to David Yung, who had participated in the same criminal activities as Yung, and who was not incarcerated. It then closed the courtroom to everyone including family members except defense counsel's associates and partners. The court found:

I am closing the courtroom because this is an undercover police officer who is currently working in an undercover capacity. He is working in the same general area in his undercover capacity, namely the Lower East Side. He has open and pending cases with unapprehended suspects. He has been threatened in the past, I find that, by people connected with the defendant. To allow family members into the courtroom can jeopardize the safety, the life safety and security of this officer by making it easier for those who the defendant is associated with on the outside to identify him, thereby placing him in great risk for his life.

Yung later testified that he, Beverly Soto, and their child lived in an apartment with Yung's parents and his brother. Yung admitted that he gave approximately $3000 from his criminal activities to his family.

Yung appealed his subsequent conviction and sentence to the New York State Appellate Division, First Department, arguing principally that closing the courtroom to his family violated his Sixth Amendment and New York law right to a public trial. The Appellate Division affirmed, finding with regard to the courtroom closure that

[t]he court properly closed the courtroom to defendant's family during the

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testimony of an undercover officer, based on the officer's testimony at a Hinton hearing establishing particularized reasons for concern that defendant's relatives posed a threat to his safety by revealing his identity (see, People v. Nieves, 232 A.D.2d 305, 648 N.Y.S.2d 583, lv granted 89 N.Y.2d 987, 656 N.Y.S.2d 746, 678 N.E.2d 1362; People v. Abdul-Aziz, 216 A.D.2d 77, 628 N.Y.S.2d 272, lv denied 86 N.Y.2d 788, 632 N.Y.S.2d 502, 656 N.E.2d 601).

People v. Hoi Man Yung, 240 A.D.2d 252, 659 N.Y.S.2d 733, 733 (1st Dep't 1997) ("Yung I "). On September 24, 1997, Judge Titone of the New York Court of Appeals denied Yung leave to appeal. People v. Hoi Man Yung, 90 N.Y.2d 940, 664 N.Y.S.2d 758, 687 N.E.2d 655 (1997). Judge Titone also denied Yung's subsequent request for reconsideration. 90 N.Y.2d 1012, 666 N.Y.S.2d 107, 688 N.E.2d 1390 (1997).

In addition to his direct appeal, Yung filed a pro se motion to vacate the judgment pursuant to New York's Criminal Procedure Law § 440.10. Justice Zweibel denied this motion on May 19, 1999.

On February 18, 2000, Yung filed the petition that is the basis of this appeal. In support of his petition, Yung claimed that the closure of the courtroom to his family members denied him the right to a public trial.

After briefing and argument, Judge Sweet granted the petition. The judge held that he must presume the correctness of the state court's factual findings and that he could not grant relief unless the state court decision (1) contradicted federal law that had been clearly established by the Supreme Court, (2) constituted an unreasonable application of Supreme Court precedent, or (3) rested on factual findings that were unreasonable in light of the evidence the state court heard. Yung v. Walker, 143 F.Supp.2d 262, 268 (S.D.N.Y.2001) (citing 28 U.S.C. § 2254(d)(1),(2), (e)(1)) ("Yung II ").

Judge Sweet found that all criminal defendants have a fundamental right to a public trial, but that this right "is not absolute, and may be qualified by a showing of sufficiently important countervailing interests." Id. at 269 (citing Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984)). He also noted, citing In re Oliver, 333 U.S. 257, 271-72, 68 S.Ct. 499, 92 L.Ed. 682 (1948), that a defendant has a more substantial right to his family's presence at trial than to the presence of the general public. Id.

The district court next set forth three general principles drawn from this circuit's application of the Waller balancing test. First, "the more extensive the closure requested, the greater must be the gravity of...

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