U.S. v. Gupta

• Decision Date: 17 June 2011
• Docket Number: Docket No. 09–4738–cr.
• Parties: UNITED STATES of America, Appellee,v.Raghubir K. GUPTA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

650 F.3d 863

39 Media L. Rep. 1913

UNITED STATES of America, Appellee,

v.Raghubir K. GUPTA, Defendant–Appellant.

Docket No. 09–4738–cr.

United States Court of Appeals, Second Circuit.

Argued: March 7, 2011.Decided: June 17, 2011.

Jeffrey Hoffman (Susan C. Wolfe, on the brief), Hoffman & Pollok L.L.P., New York, New York, for Defendant–Appellant.Lee Renzin, Assistant United States Attorney (Jesse M. Furman, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, for Appellee.Before: JOHN M. WALKER, JR., B.D. PARKER, and HALL, Circuit Judges.Judge B.D. PARKER, dissents in a separate opinion.HALL, Circuit Judge:

This appeal requires us to revisit an issue last considered in Gibbons v. Savage, 555 F.3d 112 (2d Cir.2009)—under what circumstances does the exclusion of the public from a courtroom during voir dire violate a defendant's Sixth Amendment right to a public trial. In Gibbons and earlier cases, we identified an exception to this right applicable to situations where the exclusion of the public, though improper, was too trivial to implicate the Sixth Amendment's public trial guarantee, making vacatur of the defendant's conviction unnecessary. We conclude that this exception applies here. We further conclude that this exception is consistent with the Supreme Court's recent decision in Presley v. Georgia, ––– U.S. ––––, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010).

Accordingly, we reject Gupta's Sixth Amendment challenge and AFFIRM his conviction and sentence. We dispose of Gupta's other arguments on appeal in a separate summary order filed today.

BACKGROUND

Defendant Raghubir K. Gupta was charged with one count of immigration fraud under 18 U.S.C. § 1546(a). Trial began on March 24, 2008 at approximately 9:45 a.m. After the venire panel was seated, the district court gave preliminary remarks concerning the nature of the case, the general responsibilities of jurors, the anticipated length of the trial, and the format of voir dire. The court also identified Gupta as the defendant and summarized the indictment. The court then read various questions to the venire from a written questionnaire, which was distributed to the prospective jurors to review. Following a short recess, the court called prospective jurors up to a sidebar to discuss their answers to the questionnaire, and after a second recess for lunch, the court posed questions to individual jurors regarding their background and interests. During the course of these questions, eleven jurors were dismissed for cause with the consent of both parties. Thereafter, counsel for both parties went to the jury room to exercise their peremptory challenges outside the presence of the venire; neither party objected to any of the challenges. The parties then returned to the courtroom, and the courtroom deputy empaneled the jury. After trial, the jury returned a guilty verdict, and the district court sentenced Gupta to 51 months' imprisonment. Gupta appealed.

In April 2010, we granted Gupta's motion for remand for additional fact-finding based on his allegation that a friend and a member of his family had been excluded from the courtroom during voir dire. On remand, Gupta submitted affidavits from his brother and girlfriend, Sudhir Gupta and Maria Young, who affirmed that on the morning of the first day of trial a court officer had asked them to leave the courtroom during voir dire; both stated that when they reentered the room later in the day, the jury had already been empaneled. Gupta's counsel affirmed that he was unaware at the time of trial that Gupta's brother and girlfriend had been excluded from the courtroom. In lieu of an evidentiary hearing, the district court directed William Delaney, the courtroom deputy on duty on the first day of Gupta's trial, to submit an affidavit describing what had occurred. Delaney affirmed that after the venire panel was seated in the courtroom:

At the Court's direction, in order to accommodate the large number of jurors in the venire panel, and to protect the panel from hearing anything about the case from any member of the public present, I requested that individuals who were not venire panel members leave the courtroom during the jury selection. I conveyed to those individuals that once the jury selection was complete, and there was again space in the public area of the courtroom, they were more than welcome to attend the proceedings.

The district court adopted Delaney's affidavit as its factual findings, after which jurisdiction was restored to us pursuant to the procedures set forth in United States v. Jacobson, 15 F.3d 19, 22 (2d Cir.1994).

DISCUSSION

A defendant's right to a public trial is guaranteed by the Sixth Amendment, see Waller v. Georgia, 467 U.S. 39, 45–47, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), and this right extends to voir dire, Presley, 130 S.Ct. at 724 (“[T]he Sixth Amendment right to a public trial extends to the voir dire of prospective jurors.”) (citing Press–Enterprise Co. v. Superior Court of California, Riverside County, 464 U.S. 501, 509–10, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (the press and public have a First Amendment right to attend voir dire ), and Waller, 467 U.S. at 46, 104 S.Ct. 2210 (the Sixth Amendment right to a public trial is at least as broad as the First Amendment right to a public trial recognized in Press–Enterprise)); accord Gibbons, 555 F.3d at 115. Although the public trial guarantee creates a “presumption of openness,” Press–Enterprise, 464 U.S. at 510, 104 S.Ct. 819, this is not absolute. Four criteria must be satisfied to overcome this presumption and justify closure of a courtroom during a criminal proceeding: (1) “the party seeking to close the [proceeding] must advance an overriding interest that is likely to be prejudiced”; (2) “the closure must be no broader than necessary to protect that interest”; (3) “the trial court must consider reasonable alternatives to closing the [proceeding]”; and (4) the trial court “must make findings adequate to support the closure.” Waller, 467 U.S. at 48, 104 S.Ct. 2210 (quoted in Presley, 130 S.Ct. at 724; Gibbons, 555 F.3d at 116; Ayala v. Speckard, 131 F.3d 62, 69 (2d Cir.1997) ( en banc )).

Based on Delaney's affidavit, Gupta's brother and girlfriend were excluded from voir dire because of “the large number of jurors in the venire panel” and the need “to protect the panel from hearing anything about the case from any member of the public present.” Under Waller, these reasons are insufficient to justify a courtroom closure—a point the Government concedes. See Brief of Appellee at 25 (“[T]he District Court's exclusion of members of the public from the courtroom during voir dire violated the four-factor Waller test.”); see also Gibbons, 555 F.3d at 117 (holding that under Waller, insufficient space because of the size of the venire and the risk of tainting the jury pool are not “compelling reasons” for closure). Notwithstanding this fact, the Government argues that under our “triviality exception,” identified in Gibbons and earlier cases, the closure of the courtroom did not violate Gupta's Sixth Amendment public trial right. Gupta counters that Gibbons is distinguishable because there, the exclusion of the public was partial and temporary, and that our “triviality exception” is no longer valid post- Presley. We address each of these arguments in turn.

I. The “Triviality Exception ”

Because the parties agree that under Waller the district court's exclusion of Gupta's brother and girlfriend during voir dire was unjustified, we must determine whether that error violated Gupta's Sixth Amendment rights; under these circumstances, our starting point is the triviality exception.¹ See Smith v. Hollins, 448 F.3d 533, 540 (2d Cir.2006) (“[W]hen addressing whether an unjustified closure is a Sixth Amendment violation, a ‘triviality standard’ is the proper benchmark.”). We first identified a triviality exception to the public trial guarantee in Peterson:

A triviality standard, properly understood, does not dismiss a defendant's claim on the grounds that the defendant was guilty anyway or that he did not suffer “prejudice” or “specific injury.” It is, in other words, very different from a harmless error inquiry. It looks, rather, to whether the actions of the court and the effect that they had on the conduct of the trial deprived the defendant—whether otherwise innocent or guilty—of the protections conferred by the Sixth Amendment.85 F.3d at 42; see Carson v. Fischer, 421 F.3d 83, 94 (2d Cir.2005) (under a triviality analysis, the determination that the exclusion was trivial is tantamount to “conclud[ing] that the error was not significant enough to rise to the level of a constitutional violation”). We observed that the core values protected by the Sixth Amendment were: “1) to ensure a fair trial; 2) to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions; 3) to encourage witnesses to come forward; and 4) to discourage perjury.” Peterson, 85 F.3d at 43 (citing Waller, 467 U.S. at 46–47, 104 S.Ct. 2210). Since Peterson, we have used these values to determine whether an unjustified closure of a courtroom violates the public trial guarantee. See Carson, 421 F.3d at 92–93 (“[T]he question of whether a particular closure implicates the Sixth Amendment turns on whether it undermines the values the Amendment is aimed to protect.”). If a courtroom closure subverts these values, it violates the Sixth Amendment, but if the closure is consistent with these values, it is trivial and does not implicate a defendant's right to a public trial. See Morales v. United States, 635 F.3d 39, 43 n. 7 (2d Cir.2011) (“Triviality is ... gauged by the degree to which a particular closure undermines the values the Sixth Amendment was designed to protect.” (citing Gibbons, 555 F.3d at 120–21)).

We most recently considered the triviality...