United States v. Dharni

• Decision Date: 02 July 2014
• Docket Number: No. 11–16438.,11–16438.
• Citation: 757 F.3d 1002
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Sundeep DHARNI, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

757 F.3d 1002

UNITED STATES of America, Plaintiff–Appellee,

v.Sundeep DHARNI, Defendant–Appellant.

No. 11–16438.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Sept. 10, 2013.

Filed July 2, 2014.

R. Steven Lapham, Assistant U.S., USSAC—Office of the U.S. Attorney, Sacramento, CA, for Plaintiff–Appellee.

Sundeep Dharni, Forrest City, AR, pro se.

Appeal from the United States District Court for the Eastern District of California, Edward J. Garcia, District Judge, Presiding. D.C. Nos. 2:10–CV–02934–EJG, 2:05–CR–00306–EJG.

Before: J. CLIFFORD WALLACE, RAYMOND C. FISHER, and MARSHA S. BERZON, Circuit Judges.

ORDER

Appellant Sundeep Dharni's petition for panel rehearing is GRANTED. The previous opinion, United States v. Dharni, 738 F.3d 1186 (9th Cir.2014), is VACATED. The petition for rehearing en banc is DENIED AS MOOT.

I.

Our resolution of this case was premised on the conclusion that “the district court judge specifically authorized family members and spectators to reenter when seats were available.” Dharni, 738 F.3d at 1189. It was on that understanding that we held that “the insufficient seating for spectators and family members for a limited period of time of uncertain duration did not violate Dharni's rights.” Id. In his petition, Dharni explains that the government's position before the district court was actually that the closure was for the entire voir dire period, not only until seats opened up, and that the district court's decision rested on the same understanding. See Appellant's Pet. for Reh'g and for Reh'g En Banc, at 4–5, Feb. 14, 2014, ECF No. 48. The government does not contest those observations. See Appellee's Br. in Opp'n to Appellant's Pet. for Reh'g and for Reh'g En Banc, at 10 n. 1, Mar. 19, 2014, ECF No. 53. Because the government never asserted the premise on which we decided this case until the filing of its Answering Brief on appeal, Dharni did not rebut it by making a record before the district court regarding the scope of the courtroom closure. See28 U.S.C. § 2255(b). Our opinion relied on the absence of such a record. See Dharni, 738 F.3d at 1189.

Dharni did not bring the government's switch of positions and its possible prejudice to Dharni to our attention until he filed this petition, because the misleading language of our previous order granting his motion for bail pending appeal under Federal Rule of Appellate Procedure 23(b) reasonably led him to believe that we had commanded him not to file a reply brief. See Order, Mar. 7, 2013, ECF No. 24. We therefore did not decide this case with a full understanding of its procedural posture. SeeFed. R.App. P. 40(a)(2). Since Dharni suffered possible prejudice from the combination of the government's change in position and the misleading language of our previous order, we grant his petition for panel rehearing.

Given the contested nature of the facts in this case and the paucity of the record, we REMAND the matter to the district court. See, e.g.,Howard v. Clark, 608 F.3d 563, 565 (9th Cir.2010). The scope of that remand shall be limited to: 1) allowing the parties to supplement the record with evidence concerning the scope of the courtroom closure and 2) permitting the district court to make findings of fact on whether spectators had an opportunity to reenter the courtroom during voir dire, including whether seats in fact opened up and, if so, whether spectators would have been aware of the vacancies, and whether the district court and court officials would have allowed the spectators to enter during voir dire.

II.

Although one might not realize it from reading the extensive dissent, we are deciding nothing more at this juncture than that a factual premise important to our original holding may not be accurate, and that we should find out whether it is. Assessing the potential triviality of a closure that spanned the entirety of voir dire would be a far different, and considerably more difficult, inquiry than the one we undertook in our now-vacated opinion, where we assumed a temporary closure. “Where ‘the courtroom was totally closed to the general public at some critical juncture in the proceedings,’ ” we deem the closure “substantial,” not trivial. United States v. Rivera, 682 F.3d 1223, 1231 (9th Cir.2012) (quoting Braun v. Powell, 227 F.3d 908, 917 (7th Cir.2000)). Because “[t]he process of juror selection is itself a matter of importance,” Press–Enter. Co. v. Superior Court of Calif., Riverside Cnty., 464 U.S. 501, 505, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), it is far from self-evident that the Sixth Amendment would tolerate closure of the entirety of voir dire.

The dissent's citations, see Dissent 1010–11, certainly do not compel the conclusion that the Sixth Amendment tolerates closure of the entirety of voir dire. United States v. Withers did not assume that a judge had closed the entirety of voir dire upon ordering spectators to leave at the beginning of jury selection; it remanded for further factual development of the claim, as we do today. 638 F.3d 1055, 1064, 1068–69 (9th Cir.2010). And the dissent's remaining citations are neither binding nor persuasive. United States v. Santos, 501 Fed.Appx. 630 (9th Cir.2012), is an unpublished memorandum disposition, and so not precedential. See9th Cir. R. 36–3(a). Gibbons v. Savage, 555 F.3d 112 (2d Cir.2009), emanates from another circuit. And the closure there was not for the entirety of voir dire, as the dissent contends, but only for an afternoon, which was largely occupied by “private interviews of individual jurors as to their reasons for inability to serve....” Id. at 121; see also id. at 114. “The next morning, when voir dire resumed, Gibbons's mother was allowed to watch the proceedings.” Id. at 121 (emphasis added).

Moreover, although the dissent suggests otherwise, defendant's lack of opportunity to file a reply brief in this court was a matter brought to our attention only on rehearing. It is not at all unusual for appellants to fail to file reply briefs, which are optional, seeFed. R.App. P. 28(c), and so there was no reason to inquire into why that happened. And again, even if one member of the panel did realize that—which would have required reading with great care the briefing schedule contained in a collateral order, the order granting bail—the other two, understandably, did not.

Although Dharni does bear the burden of proof, see Varghese v. Uribe, 736 F.3d 817, 823 (9th Cir.2013) (28 U.S.C. § 2254 petition), we cannot hold against him his failure to develop a record as to whether the closure was for the entire voir dire. Dharni so asserted throughout the district court § 2255 proceedings, without any objection from the government. The government thus acceded to Dharni's version of events before the district court, and directed its arguments accordingly. The dissent maintains that Dharni squandered his “opportunity to present precisely the type of evidence [we] say [ ] could vindicate his claim.” Dissent 16. But, as a practical matter, Dharni had no reason to retread common ground by proving a factual point the government itself accepted.¹

Beyond those points, we have no reason to engage with the dissent at this juncture. We may find out after the limited remand that our original factual premise was true, in which case we could simply reinstate our previous opinion and, as we did in that opinion, decline to address as unnecessary to our result the various questions concerning the impact on habeas corpus of structural errors.

By declining unnecessarily to address questions not presently before us, we do not, of course, mean to signal any agreement with the dissent's analysis. We caution that the analysis should be regarded for precedential purposes as exactly what it is—a dissent, to which only one judge on a three judge panel ascribes.

III.

We VACATE submission of this case, and retain jurisdiction over this appeal pending the district court's disposition of this limited remand. The parties shall notify the court within seven days of entry of the district court's order. We shall determine at that time whether the case requires supplemental briefing or can be resubmitted on the existing briefs and arguments. See, e.g., Espinosa v. United Student Aid Funds, Inc., 530 F.3d 895, 899 (9th Cir.2008) (per curiam); Eyak Native Village v. Daley, 375 F.3d 1218, 1219 (9th Cir.2004) (en banc) (order).

Petition for panel rehearing GRANTED; previous opinion VACATED; petition for rehearing en banc DENIED AS MOOT; SUBMISSION VACATED; REMANDED FOR A LIMITED PURPOSE.

WALLACE, Circuit Judge, dissenting:

I dissent from the majority's order granting the petition for panel rehearing, vacating our panel decision, vacating submission, and remanding to the district court. Our original panel decision was correct, and did not prejudice Dharni in any way. The majority's erroneous order needlessly delays resolution of Dharni's habeas petition, seven years after Dharni's criminal trial and conviction.

I conclude that the majority's order is incorrect for two reasons. First, even though the government did not specifically argue before the district court in its opposition to Dharni's habeas petition about the extent of the courtroom closure during voir dire, Dharni had the opportunity to make a record regarding the scope of the closure. Indeed, he did argue before the district court that the closure was for the entirety of voir dire, although he provided no record evidence to support that contention. Second, the government did not switch its legal position, but consistently argued the only legally relevant point: that the courtroom closure was trivial.

Additionally, although the issue may not yet be properly before this court, any remand should be unnecessary. Even if the courtroom closure was not trivial and violated Dharni's Sixth Amendment rights, we should deny Dharni's petition because he has not claimed, much less established, that he was actually prejudiced by...