U.S. v. Perry

• Decision Date: 16 March 2007
• Docket Number: No. 05-3119.,05-3119.
• Citation: 479 F.3d 885
• Parties: UNITED STATES of America, Appellee v. Antoine Michael PERRY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

479 F.3d 885

UNITED STATES of America, Appellee v. Antoine Michael PERRY, Appellant.

No. 05-3119.

United States Court of Appeals, District of Columbia Circuit.

Argued October 13, 2006.

Decided March 16, 2007.

Appeal from the United States District Court for the District of Columbia (No. 03cr00329-01).

Richard K. Gilbert, appointed by the court, argued the cause for the appellant.

John P. Gidez, Assistant United States Attorney, argued the cause for the appellee. Kenneth L. Wainstein, United States Attorney at the time the brief was filed, and Roy W. McLeese, III, Anthony M. Alexis, and David B. Goodhand, Assistant United States Attorneys were on brief.

Before: HENDERSON, RANDOLPH and GRIFFITH, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

The appellant, Antoine Perry, was convicted of unlawful accessing a computer resulting in damage in violation of 18 U.S.C. § 1030(a)(5)(A)(i).¹ He appeals, asserting that the district court committed three errors: (1) it ordered Perry's wife and eight-year-old son removed from the courtroom during Perry's trial; (2) it sua sponte instructed the jury to disregard Perry's wife's failure to testify; and (3) it failed to read the complete jury instructions to the jury. For the reasons set forth below, we reject Perry's claims and affirm his conviction.

I.

Lockheed-Martin (Lockheed) provides computer support services to the Office of Site Remediation Enforcement (OSRE), a division of the Environmental Protection Agency (EPA). OSRE links its computers through a local area network (LAN) that connects its employees to its file server. The LAN allows OSRE employees to create and edit their documents, access databases and send e-mails to co-workers.

In September 1999, Perry was a computer network systems administrator for Norell, a subcontractor of Lockheed. In that capacity, Perry helped to maintain the connection between the file server and the LAN and was given remote access to the network, allowing him to remotely control server operations. On September 10, 1999, Lockheed offered Perry a job as a network administrator. Because Perry failed Lockheed's mandatory employee drug test, however, Lockheed rescinded its offer on Friday, September 24, 1999, and also informed Perry that he could no longer work on the EPA contract. Lockheed's action was effective immediately and Lockheed security escorted him out of Lockheed's main office building. One witness described him as "angry." Tr. I, 2/3/04 at 103.

On the following Monday, September 27, 1999, OSRE employees arrived at work and discovered that they could not log on to the file server. After investigating, a LAN systems manager determined that someone using the fictitious username "Mburton" had disabled the server via remote access, changed passwords and deleted printers from the network system.² The systems manager concluded a security breach had occurred and he then shut down the server, replaced its hardrives and reloaded its software. As a result of the server problems and maintenance, OSRE employees could not access work-related documents and e-mails for more than one day.

A Lockheed network design engineer eventually traced the remote connection used to disable the server to Perry's Maryland home telephone number. On October 13, 1999, agents from the EPA Inspector General's Office and the FBI searched Perry's house and confiscated, inter alia, a desktop computer, a laptop computer, several hard drives and a modem. The FBI also seized a list of the printers and print services within the EPA's computer system. On July 30, 2003, Perry was charged in a one-count indictment with unauthorized access to a computer causing damage.

Perry's trial began on February 2, 2003, with jury selection. The next day, inclement weather resulted in school closings throughout the District and Perry's wife brought their eight-year-old son to court. Before opening arguments began and out of the jury's presence, the trial judge suggested that Perry's wife remove the child to prevent him from witnessing his father's trial. The judge stated, "Of course [Perry's son] and his mother have every right to be here . . . [but] I'm always concerned about the effect of these types of proceedings on children, especially children of tender years . . . I'm not ordering you to leave." Tr. I, 2/3/04 at 17-19. The judge then declared a recess to "give everyone a chance to relocate." Id. at 20. After the recess, however, the judge declared, "It was reported to me over the recess that Mr. Perry instructed his wife to keep the child in court. There's no doubt in this Court's mind that such an effort on his part is made solely to evoke sympathy on the part of the jurors." Id. The judge then ordered Perry's wife to remove the boy from the courtroom. Perry replied, "Your Honor, that's my wife. That's my support system," to which the judge responded, "Your support system can return without your son, sir." Id. at 21. After the judge repeated his belief that Perry sought to keep his son in court only to evoke juror sympathy, Perry stated, "That was not the reason, Your Honor." Id. Perry's wife then left the courtroom with the child.

The trial proceeded with the Government presenting evidence to establish that Perry disabled OSRE's file server under the username "Mburton" by informing the jury, inter alia, that Perry's wife's name is "Tonya Marie Burton Perry."³ After closing arguments, the judge asked counsel from both sides if they wanted him to instruct the jury to refrain from speculating regarding Perry's wife's failure to testify. The judge declared, "[Perry's wife's] name has been mentioned prominently in this case. The last thing in the world I want . . . is for there to be a verdict followed by a questioning session that reveals that . . . [the jury was] troubled because her name was used and she was here and she didn't testify." Tr. II, 2/4/04 at 81. Perry's counsel objected, arguing that "the mere mention of that instruction may actually put th[e] thought [that Perry's wife was involved in the crime] in [the jurors'] minds." Id. at 82. He further argued that he "[did not] see a need to raise a possible issue with respect to [Perry's wife]," id. at 85, because Perry's defense was "technical and forensic, as opposed to personal," id. at 90. Nevertheless, the judge instructed the jury, "You are instructed as a matter of law not to speculate as to any reason why Mr. Perry's wife did not testify in this case. That's not an issue in this case." Id. at 101.

Before charging the jury on the elements of the offense, the judge declared, "I'm just going to focus on the elements of the offense, Counsel. I'm going to send the entire instruction back. . . . There are definitions. Loss is defined, computer's defined. There's a statute defining the offense. I'm not going to read that to you. You can read it . . . I want to focus on the elements." Id. at 105. Neither party objected to his decision not to read aloud to the jury the definitions included in the written charge. The jury convicted Perry and the judge sentenced him to four months' incarceration and three years' supervised release. He also ordered Perry to pay restitution in the amount $5,000 and a special assessment of $100. Perry filed a timely notice of appeal on July 15, 2005.

II.

We address separately Perry's Sixth Amendment claim and his two challenges to the jury instructions.

A. Sixth Amendment Claim

Perry argues that the district court violated the Sixth Amendment to the United States Constitution when it removed his wife and child from the courtroom. Specifically, he contends that the reasons given by the court for its action—to protect the child's welfare and to prevent Perry from using the child to evoke juror sympathy—did not justify denying him his right to a public trial. In addition, Perry maintains that he objected at trial to the removal and thus is entitled to harmless error review. See United States v. Perkins, 161 F.3d 66, 72 (D.C.Cir.1998) (citing Fed.R.Crim.P. 52(a) ("Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.")). The Government responds that the district court did not err and that we should review his claim under the plain error standard because he failed to object at trial. See United States v. Spriggs, 102 F.3d 1245, 1260 (D.C.Cir.1996) (Per Curiam) (citing Fed.R.Crim.P. 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court's attention.")). We need not decide the correct standard of review, however, because the district court committed no error at all.

The Sixth Amendment provides in part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . ." U.S. Const. amend. VI. As the Supreme Court explained in Waller v. Georgia, the right to a public trial: (1) "ensure[s] that judge and prosecutor carry out their duties responsibly," (2) "encourages witnesses to come forward" and (3) "discourages perjury." 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). Indeed, "the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution." In re Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 92 L.Ed. 682 (1948).

Both Perry and the Government analyze the removal of Perry's child from the courtroom under the four-prong test developed in Waller. See Appellant's Br. at 32-36; Appellee's Br. at 17-23. In Waller, the trial court had "ordered [a] suppression hearing closed to all persons other than witnesses, court personnel, the parties, and the lawyers." 467 U.S. at 42, 104 S.Ct. 2210. In reversing that decision, the Supreme Court held that notwithstanding the fact that a defendant has a Sixth Amendment right to a public suppression hearing, the right "may give way in certain cases to other rights or...