Sevencan v. Herbert
| Decision Date | 31 July 2001 |
| Docket Number | No. 00 CV 4001(ARR).,00 CV 4001(ARR). |
| Parties | Salih SEVENCAN, Petitioner, v. Victor HERBERT, Superintendent, Attica Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Georgia Hinde, New York City, for Petitioner.
Phyllis Mintz, Sholom Twersky, Suzanne Corhan, Office of the District Attorney, Brooklyn, NY, for Respondent.
Neil Checkman, New York City, for Jacinta Asillo Sevencan.
The petitioner, Salih Sevencan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.1 The petition and the respondent's opposition raise the two primary questions arising from the exclusion of the petitioner's wife from a portion of his state court trial. The first concerns whether a federal court conducting habeas review may consider evidence regarding the propriety of a family member's exclusion when the trial court failed to conduct an adequate inquiry into the matter. The second question is whether evidence of a family member's personal connections to a defendant's co-conspirators may justify exclusion when threats have been made on the life of a witness. Because both questions are answered in the affirmative, and for the other reasons set forth below, the petition is denied.
Between June 3 and September 23, 1993, Mr. Sevencan and four co-defendants, Huseyin Akaydin, Alihasan Alkan, Kerim Igun, and Djavid Shehu, were tried in the Supreme Court for Kings County before Judge Edward M. Rappaport on various charges stemming from their participation in a conspiracy to import heroin from Turkey and sell it in the United States. The charges included drug sale and possession counts as well as weapon possession and conspiracy to commit murder.
At trial, the state's witnesses included two undercover police officers. The first of these officers, Undercover Number 13564, provided brief, limited testimony about intercepted telephone calls, mostly relating to co-defendant Shehu. See Tr. 292-311. The second officer, Number 4126, provided far more significant testimony, serving as the state's primary witness against Mr. Sevencan and others. Officer 4126 testified that, posing as an individual named Vinny Parnisi, he purchased heroin from the petitioner and an individual named Turon Taspinar in September 1991. A month later, in an audiotaped conversation, Mr. Sevencan offered to give the officer two kilograms of heroin if he would shoot a man named Mahmut, who had apparently stolen ten to fifteen kilograms of heroin from the petitioner's organization. Over the following months, the officer conducted further heroin transactions with Mr. Sevencan and Mr. Taspinar, who at times participated by telephone from Turkey. During the state's direct case, Officer 4126 testified for twelve trial days between June 16 and July 7, 1993. See id. 1524-2792.
Before the first undercover officer testified, the state asked Judge Rappaport to close the courtroom to members of the public. The court then conducted a hearing at which Officer 13564 stated that, although he did not work undercover in the case at hand, he had since begun conducting undercover narcotics purchases in Queens and carrying out two long-term narcotics investigations. See id. 281-82. He further testified that about ten to fifteen subjects of his investigations had eluded arrest and that testifying in open court would threaten his safety and limit the effectiveness of his undercover work. See id. 283-84. After hearing the testimony, Judge Rappaport ordered the courtroom sealed. Immediately following his ruling, the attorneys for Mr. Alkan and Mr. Igun explicitly took exception. See id. 289. The judge then elaborated on his decision, stating that
I'm doing it to protect the identity of this undercover who's presently working and doing undercover work, both so that he can be an effective police officer and as to his safety to his life [sic]. It's very clear to me, I'm convinced clearly that the proper way to protect this officer as he now works on the streets of Queens or anyplace in the City of New York is to take the action I have taken.
Id. 289-90. Following this explanation, the judge addressed defense counsel, including Al Meyerson, the attorney for Mr. Sevencan: Id. 290. Mr. Meyerson then proceeded to clarify his understanding that one defendant's exception did not necessarily apply to all co-defendants, but he never disputed the court's recognition of an objection on this issue.
The state made a similar application to close the courtroom prior to the testimony of Officer 4126. Immediately after the prosecutor's request, the court asked defense counsel, "I assume that you're all objecting to that?," to which Mr. Meyerson responded, "Yes, your honor." Id. 1497. During the closure hearing, the officer testified that he had been working as an undercover officer throughout New York City, including in the Brooklyn South Major Narcotics Unit, for four-and-a-half years. His work included both narcotics purchases and long-term investigations. Approximately five to ten individuals targeted by his past investigations had not been arrested. See id. 1497-1501. In response to questions, the officer stated that testifying in an open courtroom would place his life in jeopardy and limit his ability to function as an undercover. See id. 1501-03. After the officer's testimony and an oral argument by the prosecutor, the judge asked counsel, "Who wants to argue for the defense?" Counsel for Mr. Igun then made an argument against the closure, beginning with the statement, "We oppose the closing of the courtroom." Id. 1513. At the end of the proceeding, Judge Rappaport ordered the courtroom sealed. He noted the importance of an open trial and then stated that
what is most compelling in assessing [the undercover's] safety is not what happened in the past but what is happening in the present and in the future, and if a person is still acting in an undercover capacity in ongoing cases, and particularly, as has been testified here, that that work brings him into this borough ... it is proper to close the courtroom.
Id. 1515. Following some additional discussion regarding whether law interns and other attorneys would be admitted, Judge Rappaport remarked that
a lawyer is a lawyer, and we'[re] sorry about spectators, family, I mean, another matter, something that [the prosecutor] can't exclude from the courtroom is the two defendants on bail, they're going to walk out, I mean, the family—there's always a certain amount of risk in everything we do and we try to do it.
On June 24, 1993, while the undercover was still testifying, Judge Rappaport informed the attorneys that, as late as that day, threats had been made against the life of Undercover 4126 and the lead prosecutor, Suzanne Corhan. See id. 2162. The judge noted that the threats were Id. 2163. In response to the threats, Judge Rappaport explained, security had been increased around the courtroom. See id. 2166.
Twelve calendar days and three trial days later, on July 6, Mr. Sevencan's wife, Jacinta Asillo Sevencan, appeared at the courtroom, and the following conversation occurred at sidebar:
Mr. Meyerson: Yes, it is. That's why I'm applying to you it be allowed— The Court: The reason we seal it is to protect the undercover. I don't think she falls within the exceptions I've created. What's the district attorney's position?
Ms. Corhan: I would object.
The Court: Your application is denied.
At the conclusion of the trial, the jury convicted Mr. Sevencan of three counts of criminal sale of a controlled substance in the first degree, two counts of criminal sale of a controlled substance in the third degree, one count of criminal possession of a weapon in the fourth degree, and one count of conspiracy in the second degree. The jury acquitted Mr. Sevencan of one count of second degree conspiracy relating to the murder plot. Judge Rappaport sentenced the petitioner to consecutive terms of twenty-five years to life on each of the two counts of first degree sale of a controlled substance, as well as concurrent terms of twenty-five years to life for the other first degree sale count, eight-and-one-third to twenty-five years for the third degree sale counts and the conspiracy count, and one year for the fourth degree weapon count.
Mr. Sevencan appealed his conviction to the Appellate Division of the Supreme Court. His brief raised a number of arguments, including claims that he was denied a public trial by the exclusion of his wife and by the general closure of the courtroom during the undercover officers' testimony, that he was denied a fair trial by the court's refusal to order the disclosure of a confidential informant's name, that the trial court erroneously admitted evidence of uncharged crimes as well as photocopied evidence, that the court improperly limited his attorney's summation, that he was denied a fair trial by the manner in which Judge Rappaport presided over the trial, and that ex parte communications between the prosecutor and the judge violated his due process rights.
In a decision issued on February 1, 1999, the Appellate Division affirmed Mr. Sevencan's conviction. The court addressed the closure claim first:
The defendant contends that he was denied his right to a public trial when the...
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Garcia v. Lee
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Sevencan v. Herbert, Docket No. 01-2491.
...BACKGROUND We assume familiarity with the background facts of this case as set forth in the District Court's opinion, Sevencan v. Herbert, 152 F.Supp.2d 252 (E.D.N.Y.2001). We briefly set forth here only those facts necessary to our Between June 3 and September 23, 1993, Sevencan and four c......
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Sevencan v. Herbert, Docket No. 01-2491.
...BACKGROUND We assume familiarity with the background facts of this case as set forth in the District Court's opinion, Sevencan v. Herbert, 152 F.Supp.2d 252 (E.D.N.Y.2001). We briefly set forth here only those facts necessary to our Between June and September 1993 Sevencan and four co-defen......