Hoi Man Yung v. Walker, Docket No. 03-2023-PR.

• Decision Date: 31 October 2006
• Docket Number: Docket No. 03-2023-PR.
• Parties: HOI MAN YUNG, Petitioner-Appellee, v. Hans WALKER and Eliot L. Spitzer, Respondents-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

468 F.3d 169

HOI MAN YUNG, Petitioner-Appellee, v. Hans WALKER and Eliot L. Spitzer, Respondents-Appellants.

Docket No. 03-2023-PR.

United States Court of Appeals, Second Circuit.

Argued: December 18, 2003.

Decided: October 31, 2006.

Melanie L. Oxhorn Esq., Attorney General State of New York, New York, NY, for Respondents-Appellants.

Before POOLER and SOTOMAYOR, Circuit Judges, and KAPLAN, District Judge.^*

KAPLAN, District Judge.

Respondents Hans Walker and New York Attorney General Eliot L. Spitzer (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 writ of habeas corpus pursuant to 28 U.S.C. § 2254. The District Court concluded that (1) the state trial court's decision to close the courtroom to certain of Yung's relatives constituted an unreasonable application of Supreme Court precedent and (2) the State was not entitled to a Nieblas hearing. See Nieblas v. Smith, 204 F.3d 29, 32 (2d Cir.1999)

We agree with the District Court's conclusion that the state court did not make findings adequate to support the exclusion of each of Yung's three female relatives from the courtroom. We nonetheless part ways with the District Court in that we stop short of concluding that there was a constitutional violation. Instead, we hold that the District Court exceeded the permissible bounds of its discretion in granting the petition without affording the state courts an opportunity to make additional findings and to conduct an evidentiary hearing to permit the parties to present additional evidence concerning the justification for the closure. We vacate and remand the judgment below so that the state court can do so.¹

I The Hinton Hearing and the Trial

We assume familiarity with the prior opinions in this case.² We briefly summarize only those points salient to this appeal.

In 1994, a New York state jury convicted Yung 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. Yung is serving a fifty-year to life sentence for these crimes.

An undercover police officer who testified for almost two of the four days of the trial was a key witness in the prosecution's case. Before the officer testified, the prosecution requested that the courtroom be sealed during his testimony. The trial court held a hearing pursuant to People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265 (1972).

During the Hinton hearing, the officer testified that he would fear for his safety if the courtroom were not closed during his testimony. In his nine years as an undercover officer, he had testified approximately forty times. In recent years, he said, he always had testified in a closed courtroom.

The officer testified that he had two pending investigations in the neighborhood in which Yung had operated. He testified that he had been threatened by individuals who knew Yung and Yung's brother, David, who had been arrested on similar charges. On cross examination, the officer conceded that the individuals who threatened him were not related to Yung. In addition, he said that the last threat occurred nine months prior to trial, was not connected to Yung's trial, and was made by a person who was on trial in an unrelated matter. The officer never had been threatened by a member of Yung's family.

When asked by defense counsel whether he had any "reason to fear" any member of Yung's family other than Yung's brother David, the 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 the 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. Defense counsel argued that "courts . . . have said even if closure should be allowed it should be limited to what's necessary." Yung's three female relatives, defense counsel reasoned, should not be excluded because they "have nothing to do with this case or any investigation whatsoever."

The prosecution objected, arguing 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 prosecution emphasized that Yung and his brother had been affiliated with violent criminal organizations and that officers had found holsters and bullet proof vests in Yung's apartment.

The hearing court noted that the three women were connected at least to David Yung, who allegedly had participated in the same criminal activities as Yung and was not incarcerated. It then closed the courtroom to them as well as to the general public. 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 at his trial. He admitted his involvement in the sales of drugs and guns for which he was charged, but insisted that he was entrapped into doing so. Yung conceded, however, that he had lived a life of crime between 1986 and 1990. During that time, he intermittently was involved in dealing drugs and guns. He testified that he had been arrested in May 1990 in connection with those activities, convicted of a federal drug felony in 1991, and released in May 1991. He testified also that police raided the apartment he lived in numerous times in 1990, that during at least one such raid the police had found bullet proof vests and holsters, and that his brother David had kept guns in the apartment.

But, according to Yung, his life turned a corner following his release from prison. He testified that he worked legitimate jobs, first as a bus boy from September 1991 through June 1992, and then as a construction worker from June 1992 through July or August 1992. He stated that immediately following his release from prison he participated in a drug treatment program that included counseling, drug testing, and weekly meetings. He testified that he successfully completed the program in April 1992.

Following his release from prison in 1991, Yung lived with his parents and his brother David in the same apartment he had lived in prior to his arrest, and he continued to live there up until his arrest in this case. His girlfriend, Beverly Soto, and their child, born in March 1992, also lived in the apartment for at least part of that time, although the record does not indicate exactly when.

According to Yung, his crime-free life stopped in June 1992. He testified that he sold drugs and guns between June 1992 through August 1992, but insisted that he did so only because a police informant threatened to have his parole violated if he did not participate.

Yung testified that he gave approximately $3,000 of crime proceeds to his family. The record does not reflect which family members received the money or whether they knew that the funds were obtained illegally.

Although the record is not entirely clear on this point, it may be the case that Yung did not keep contraband in the apartment in 1992 because police had raided it in 1990. There is also some indication that Yung may have avoided using the phone in his apartment to conduct his illegal activities, as he knew the police had tapped it in 1990.

Subsequent History

Yung appealed his conviction to the Appellate Division, First Department, arguing mainly that the State's exclusion of his family from the courtroom violated his right to a public trial under the Sixth Amendment and under New York law. The Appellate Division nonetheless affirmed, finding that the state court properly had closed the courtroom "based on the officer's testimony . . . establishing particularized reasons for concern that defendant's relatives posed a threat to his safety by revealing his identity." People v. Yung, 240 A.D.2d 252, 253, 659 N.Y.S.2d 733, 733 (1st Dep't 1997). The New York Court of Appeals denied leave to appeal. See People v. Hoi Man Yung, 90 N.Y.2d 940, 664 N.Y.S.2d 758, 687 N.E.2d 655 (1997).

On February 18, 2000, after having exhausted his state remedies, Yung filed the petition that is the subject of this appeal. He claimed that the closure of the courtroom to his family members violated his Sixth Amendment right to a public trial.

The District Court examined the record of the Hinton hearing to determine if the closure complied with Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), which allows a court to close a courtroom only if:

"the party seeking to close the hearing . . . advance[s] an overriding interest that is likely to be prejudiced, the closure . . . [is] no broader than necessary to protect that interest, the trial court . . . consider[s] reasonable alternatives to closing the proceeding, and [i]t . . . make[s] findings adequate to support the closure."

Waller, 467 U.S. at 48, 104 S.Ct. 2210. The judge below determined that the closure did not satisfy the second prong of W...