United States v. Keaveny ( 1999 )

USCA1 Opinion

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals

For the First Circuit

                                 No. 98-1605



                          UNITED STATES,



                            Appellee,



                                v.



                         PAUL E. KEAVENY,



                      Defendant, Appellant.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF NEW HAMPSHIRE



       [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]







                              Before



 Stahl, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lipez, Circuit Judge.









     Mark L. Sisti and Twomey & Sisti Law Offices on brief for appellant.

     Paul M. Gagnon, United States Attorney, and Peter E. Papps, First Assistant U.S. Attorney, on Motion for Summary Disposition.









MARCH 4, 1999















      Per Curiam.    Defendant was convicted by a jury and

  sentenced to 96 months' imprisonment for a violation of the

  federal firearms statute.  He alleges that the selection of the

  jury in his case was closed to the public by a court security

  officer in violation of his Sixth Amendment right to a public

  trial.  See Press-Enterprise Co. v. Superior Court, 478 U.S. 1,

  7 (1986) (holding that the guarantee of an open public trial

  includes the voir dire examination of jurors).

       Below, defendant's first objection to the alleged closure

  of the voir dire came in a post-trial motion to set aside the

  jury's verdict.  The motion was denied by the trial judge

  without an evidentiary hearing on the ground that the objection

  was untimely.  On appeal, defendant argues that the trial judge

  erred in (1) failing to grant a defense request for an

  evidentiary hearing on the alleged closure, and (2) failing to

  grant a new trial.

       In opposition, the government has twice moved for a

  summary affirmance.  We denied the government's first motion

  without prejudice to a renewal of the motion with "appropriate

  and relevant record citations for each of the factual

  assertions therein."  The renewed motion includes record

  citations but the cited exhibits do not provide undisputed

  support for the government's factual contentions that the

  courtroom was never closed to the public during the jury

 selection process,  and that the defense allegation was

 "concocted."   These are not the sort of matters of which this

  court can possibly take judicial notice.

       We also do not agree with the government's reading of the

  trial judge's decision as incorporating "factual findings" on

  the alleged courtroom closing.   The decision confirms that

  there was no judicial order excluding the public, and reflects

  the court's skepticism of the defendant's claim.  However, the

  court did not determine whether members of the public were in

  fact excluded nor whether the defendant's bypass of the

  objection constituted a knowing waiver.  In the absence of a

  knowing waiver, constitutional concerns may be raised even by

  a court officer's unauthorized partial exclusion of the public.

  See, e.g., United States v. DeLuca, 137 F.3d 24, 29-35 (1st

  Cir.) (disapproving of the marshals' unauthorized initiation of

  security measures which effected a partial closure, but

  upholding a court order ratifying the measures on the second

  day of the trial in light of a balancing of the interests),

  cert. denied, 119 S. Ct. 174, 268 (1998); see also Martineau v.

  Perrin, 601 F.2d 1196 (1st Cir. 1979) (finding that a knowing

  and deliberate waiver of the right to a public trial was

  sufficient to overcome the constitutional presumption of

  prejudice arising from a bailiff's mistaken locking of the

  courtroom doors for several days of the trial).

       We do not reach defendant's second contention that the

  availability of reasonable alternatives to a closure renders

  constitutionally impermissible any retrospective ratification

  hypothetically explained by space limitations or the like.  A

  decision by us on that issue would be purely advisory without

  a determination of the predicate facts.

       We are reluctant to extend further the proceedings in this

  case.  We can understand the skepticism that arises from the

  delay in raising this issue.  But not only is a very

  substantial period of imprisonment involved but also the basic

  respect owed to the Sixth Amendment.  If we err, we prefer to

  err in the direction of ascertaining with assuredness that

  basic rights have either been waived or observed.  We therefore

  vacate the order denying the motion for a new trial and remand

  to enable the district court to conduct an evidentiary hearing

  or otherwise determine the crucial facts.

       The government's motions to dispense with oral argument

  and to file a motion memorandum in lieu of a brief are granted.

  The district court's order denying defendant's motion for a new

  trial is vacated and the case is remanded for further

  proceedings consistent with this decision.  See Loc. R. 27.1.