Rodriguez v. Miller, Docket No. 04-6665-PR.

• Decision Date: 17 February 2006
• Docket Number: Docket No. 04-6665-PR.
• Citation: 439 F.3d 68
• Parties: Jose RODRIGUEZ, Petitioner-Appellant, v. David MILLER, Superintendent, Eastern Correctional Facility, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

439 F.3d 68

Jose RODRIGUEZ, Petitioner-Appellant, v. David MILLER, Superintendent, Eastern Correctional Facility, Respondent-Appellee.

Docket No. 04-6665-PR.

United States Court of Appeals, Second Circuit.

Argued: November 2, 2005.

Decided: February 17, 2006.

COPYRIGHT MATERIAL OMITTED

Katheryne M. Martone, Legal Aid Society, Criminal Appeals Bureau, New York, N.Y. (Mitchell J. Briskey, on the brief) for Petitioner-Appellant.

Victor Barall, Assistant District Attorney, for Charles J. Hynes, District Attorney, Kings County, Brooklyn, N.Y. (Leonard Joblove, on the brief) for Respondent-Appellee.

Before: CARDAMONE, McLAUGHLIN, and B.D. PARKER, Circuit Judges.

McLAUGHLIN, Circuit Judge.

Jose Rodriguez sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He claims that the state trial court's exclusion of his mother and brother during the testimony of an undercover officer, unless they consented to sitting behind a screen, violated his Sixth Amendment right to public trial. The United States District Court for the Eastern District of New York (Block, J.) denied Rodriguez's petition. See Rodriguez v. Miller, No. 00-cv-3832, 2001 WL 1301732 (E.D.N.Y. Oct.22, 2001).

Following an appeal by Rodriguez, this Court vacated and remanded for further consideration. See Rodriguez v. Miller, 82 Fed.Appx. 715 (2d Cir.2003). On remand, the district court again denied the petition. See Rodriguez v. Miller, No. 00-cv-3832, 2004 WL 3567978 (E.D.N.Y. Nov. 24, 2004). He now appeals that order.

BACKGROUND

In December 1995, Rodriguez stood trial in New York State Supreme Court, Kings County, on three counts of criminal sale of a controlled substance, two counts of criminal possession of a controlled substance in the second degree, and three counts of criminal possession of a controlled substance in the third degree.

At trial, the sole witness for the prosecution was Undercover Officer 1068 (the "Undercover"), to whom Rodriguez had sold cocaine. The prosecution moved to have the courtroom closed during the Undercover's testimony, thus prompting the court to conduct a hearing to determine the propriety and scope of a closure pursuant to People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265 (1972).

The Undercover, the lone witness at the hearing, testified as follows.

He had been an undercover officer for two-and-a-half years, and during that time he had been involved in "buy and bust operations and long term investigations" in the Bushwick area of Brooklyn. He intended to return to Bushwick "in the near future." The Undercover added that he had received numerous threats in cases arising from his work in the Bushwick area and had some "lost subjects," i.e., "buy and bust" subjects who had evaded arrest in Bushwick.

The Undercover further stated that, although he had appeared in many drug cases, he had never testified in open court. Nor had he revealed his name in appearances before the grand jury. The Undercover also claimed that he feared testifying in front of Rodriguez's relatives at trial, explaining that "if any of [Rodriguez's] family, relatives or friends see me, they'll be able to know I am a police officer and go back and spread the word around."

On cross-examination, the Undercover admitted that Rodriguez had never threatened him and he had never seen Rodriguez, or any of his associates, in possession of a gun. Additionally, the Undercover conceded that he did not know any of Rodriguez's relatives, and had no reason to believe that Rodriguez's mother was involved in drug dealing. Finally, the Undercover stated that he had never been directly threatened, but instead, had only learned of potential threats via conversations with informants.

Following this testimony, the prosecution renewed its request to have the courtroom closed during the Undercover's testimony. Specifically, the prosecution argued that the Undercover's fear that his identity would be revealed and that drug dealers in Bushwick could find out about his undercover status justified the closure. In response, Rodriguez's counsel reminded the court that it "[had] to make certain findings in order to close the courtroom." The court retorted that "what the witness said seems to fit the parameters . . . set forth in the cases. He's going back to the neighborhood, expects to go back to the neighborhood, he's still working in the neighborhood, lost subjects, fear for personal safety. It's well founded, it would seem."

Rodriguez's counsel conceded that some form of closure was necessary but argued that relevant state precedent precluded the court from excluding the Petitioner's family. The court inquired as to what family members would attend the trial on the day of the Undercover's testimony. Rodriguez's counsel replied that Rodriguez's mother "might possibly" attend. The prosecution objected to the mother's attendance, reasoning that "[i]f [the mother] tells somebody [that] this undercover will be testifying back and forth [for] several days in this building and be in the area, she can point him out to somebody." Rather than rule on whether the mother could attend, the court adjourned, stating "we'll concern ourselves with [this issue] if and when there is a desire on the part of the defendant's mother to attend."

The next day, Rodriguez's mother and brother sought entry into the courtroom prior to the Undercover's testimony. The court ruled that closure was necessary, but it would permit Rodriguez's mother and brother to attend the proceedings provided a screen was set up "so that the jury is in a position to observe the witness, but not the people in the spectator's section." The court made no particular findings as to why the exclusion of Rodriguez's mother and brother was necessary.

Rodriguez's attorney objected to the use of the screen, and stated that he would direct Rodriguez's mother and brother to wait outside the courtroom. He chose this approach out of fear that the "screen creates a substantial amount of prejudice . . . because the only thing that the jury can conclude is that the screen is being set up so that spectators can't see the witness and that means the witness is in danger." The court offered to give any reasonable curative instructions to allay this concern. Rodriguez's attorney rejected the offer.

Rodriguez was eventually convicted. He appealed his conviction to the Appellate Division, Second Department, arguing that the closure order deprived him of his right to a public trial. The Appellate Division affirmed, stating that "[t]he court properly exercised its discretion when it closed the courtroom during the [Undercover's testimony]. The officer testified that he would be returning to the area where the arrest took place — an area where he had been threatened — and that if his identity was revealed that information could be disseminated in that area, resulting in his safety being jeopardized." People v. Rodriguez, 258 A.D.2d 483, 685 N.Y.S.2d 252 (2d Dep't 1999). Leave to appeal to the New York Court of Appeals was denied. People v. Rodriguez, 93 N.Y.2d 978, 695 N.Y.S.2d 64, 716 N.E.2d 1109 (1999).

In June 2000, Rodriguez filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York. He claimed that the trial court violated his Sixth Amendment right to a public trial when it conditioned the attendance of his mother and brother at the Undercover's testimony upon their sitting behind a screen. The district court denied the petition, finding that "[e]ven if incorrect, it certainly cannot be concluded that the [state court's] decision was unreasonable." Rodriguez v. Miller, No. 00-cv-3832, 2001 WL 1301732, at *5 (E.D.N.Y. Oct. 22, 2001).

In November 2003, following an appeal by Rodriguez, this Court vacated the judgment of the district court and remanded for reconsideration in light of Yung v. Walker, 341 F.3d 104, 111 (2d Cir.2003) (holding that, in order to exclude a relative, the court must be convinced that the "exclusion of that particular relative is necessary to protect the overriding interest at stake"). See Rodriguez v. Miller, 82 Fed. Appx. 715, 716 (2d Cir.2003). This Court also instructed the district court to examine:

(1) whether it was necessary to exclude Rodriguez's family members in order to ensure the safety and efficacy of the [Undercover]; (2) whether the use of a screen is properly characterized as a partial closure or as an alternative to closure within a Waller analysis; (3) whether assuming the use of the screen was an alternative to closure, it is a reasonable alternative within the meaning Waller given its potential prejudicial effect; and [(4)] whether assuming the use of the screen is a partial closure, the state court reasonably applied Waller by mandating the use of the screen.

Id.

On remand, the district court again denied Rodriguez's petition. See Rodriguez v. Miller, No. 00-cv-3832, 2004 WL 3567978 (E.D.N.Y. Nov.24, 2004). The district court judge methodically addressed our instructions.

First, he concluded that it was necessary to exclude Rodriguez's mother and brother because they "lived in close proximity to the area in which the [Undercover] was returning to resume his undercover duties . . . creating a likelihood that either of them would encounter the officer in the course of their daily activities." Id. at *6. In so holding, the court considered new evidence — a Criminal Justice Agency Interview Report — indicating that Rodriguez's mother lived in the Bushwick area and that his brother lived nearby in Ridgewood, Queens. Rodriguez objected to this "new evidence."

Second, the district court characterized the use of the screen as an alternative to closure, not a partial closure, because "the use of a screen permits spectators to remain in the courtroom and listen contemporaneously to the witness's testimony." Id. at *8.

Third, in deciding whether the use of the screen is a reasonable alternative to closure, ...