United States v. Hunt ( 2023 )

21-3020
United States v. Hunt
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2022
ARGUED: APRIL 21, 2023
DECIDED: SEPTEMBER 20, 2023
No. 21-3020
UNITED STATES OF AMERICA,
Appellee,
v.
BRENDAN HUNT, AKA X-RAY ULTRA,
Defendant-Appellant.
________
Appeal from the United States District Court
for the Eastern District of New York.
________
Before: WALKER, PARKER, AND BIANCO, Circuit Judges.
________
In the months following the 2020 presidential election,
Defendant-Appellant Brendan Hunt threatened prominent elected
officials in several posts on various social media platforms. In one of
those posts, a video published on the website BitChute, Hunt urged
viewers to “slaughter” members of the U.S. Congress and stated that
he would go to the Capitol himself to “take out these Senators and
No. 21-3020
then replace them with actual patriots.” App’x 1425. Based on this
video, a jury convicted Hunt of one count of threatening to assault
and murder members of Congress in violation of 18
U.S.C. § 115(a)(1)(B). The district court (Chen, J.) sentenced Hunt to a
prison term of nineteen months.
In this appeal, Hunt challenges the sufficiency of the evidence,
a jury instruction, the partial closure of the courtroom due to the
COVID-19 pandemic, and his sentence. For the reasons explained
below, we AFFIRM the judgment of conviction and the sentence.
________
YUANCHUNG LEE, Federal Defenders of New York,
Inc., New York, NY, for Defendant-Appellant
Brendan Hunt.
IAN C. RICHARDSON (Kevin Trowel, on the brief),
Assistant United States Attorneys, for Breon Peace,
United States Attorney for the Eastern District of
New York, Brooklyn, NY, for Appellee the United
States of America.
________
JOHN M. WALKER, JR., Circuit Judge:
In the months following the 2020 presidential election,
Defendant-Appellant Brendan Hunt threatened prominent elected
officials in several posts on various social media platforms. In one of
those posts, a video published on the website BitChute, Hunt urged
viewers to “slaughter” members of the U.S. Congress and stated that
he would go to the Capitol himself to “take out these Senators and
then replace them with actual patriots.” App’x 1425. Based on this
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No. 21-3020
video, a jury convicted Hunt of one count of threatening to assault
and murder members of Congress in violation of 18
U.S.C. § 115(a)(1)(B). The district court (Chen, J.) sentenced Hunt to a
prison term of nineteen months.
In this appeal, Hunt challenges the sufficiency of the evidence,
a jury instruction, the partial closure of the courtroom due to the
COVID-19 pandemic, and his sentence. For the reasons explained
below, we AFFIRM the judgment of conviction and the sentence.
BACKGROUND
Brendan Hunt was incensed by the outcome of the 2020
presidential election. He questioned the legitimacy of the vote count
and condemned “deceitful leftists” as “domestic terrorists and
enemies of our constitutional republic . . . [who] will be dealt with one
way or another.” App’x 267–68. Beginning in late November 2020,
Hunt made threats on various social media platforms against
prominent elected officials, including House Speaker Nancy Pelosi,
Senate Majority Leader Charles Schumer, and Congresswoman
Alexandria Ocasio-Cortez.
The threat for which Hunt was ultimately convicted was a
video he posted on BitChute, a video-sharing platform similar to
YouTube. In the video, titled “Kill Your Senators,” Hunt spoke into
the camera:
Hey guys, so we need to go back to the U.S. Capitol when
all of the Senators and a lot of the Representatives are
back there and this time we have to show up with our
guns and we need to slaughter these motherfuckers . . . .
If anybody has a gun, give me it. I will go there myself
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No. 21-3020
and shoot them and kill them. We have to take out these
Senators and then replace them with actual patriots.
App’x 1425. In reply to comments on the video and in subsequent
videos, Hunt doubled down. Referencing the inauguration of
President Biden scheduled for January 20, 2021, he urged: “lets go, jan
20, bring your guns,” App’x 1426; “everyone should come to
Washington, D.C. on January 20th wearing masks and camo,
concealed carry, body armor and just blast them all away while we
still have a chance,” App’x 1427; and “[t]here are really only a
hundred of these weakling Senators. . . . Every single one of them just
needs to go,” App’x 1145–46. The video was posted on January 8,
2021.
On January 19, 2021, FBI agents arrested Hunt. The
government charged him with one count of threatening to assault and
murder members of Congress in violation of 18 U.S.C. § 115(a)(1)(B)
for four statements, among them the BitChute video, made between
December 6, 2020 and January 8, 2021.
Hunt’s trial was among the first held in-person in the Eastern
District of New York following the onset of the COVID-19 pandemic.
Consistent with the Eastern District’s plan for the resumption of jury
trials during the pandemic, which was developed in consultation
with an epidemiologist, the district court adopted several precautions
to protect the health of all involved. These measures included
requiring masks, implementing social distancing (e.g., the jury was
spread throughout the gallery), and limiting the total number of
people allowed in the courtroom. To facilitate public access to the
trial, the district court set aside two adjacent courtrooms to which live
audio and video feeds broadcast the trial in real-time.
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No. 21-3020
On the second day of the trial, Hunt’s father passed a note to
the district judge through Hunt’s counsel requesting permission to
observe proceedings from the trial courtroom. The district court
rejected the request, explaining that the courtroom was already over
capacity and that Hunt’s father could observe the trial from an
adjoining courtroom. The next day, the district court sua sponte
suggested that it instruct the jury that public health considerations
precluded Hunt’s family and friends from being present in the trial
courtroom and that it should not infer anything from the absence of
supporters. The defense agreed, and the jury was so instructed.
After a six-day trial, Hunt moved for a judgment of acquittal
under Federal Rule of Criminal Procedure 29. The district court
denied the motion upon finding that the evidence was sufficient for
the jury to conclude beyond a reasonable doubt that Hunt had made
a constitutionally unprotected true threat to murder members of
Congress. United States v. Hunt, 573 F. Supp. 3d 779, 797 (E.D.N.Y.
2021).
The district court then charged the jury. Relevant to this
appeal, the court explained, with respect to § 115(a)(1)(B)’s intent
element, that “[t]he Government must prove beyond a reasonable
doubt that Defendant acted with the intent to impede, intimidate, or
interfere with the officials while they were engaged in the
performance of their official duties . . . .” App’x 1412–13. In making
this determination, the district court continued, the jury could
“consider . . . whether there is evidence Defendant intended or did
not intend any of his statements to reach the officials in question. The
Government, however, does not need to prove that the alleged threats
actually reached those officials.” App’x 1413.
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The jury convicted Hunt. On a special verdict form, the jury
was asked whether it found Hunt guilty of violating 18 U.S.C.
§ 115(a)(1)(B), the sole count of the indictment, and, if so, which of the
four charged statements it found “constituted a true threat . . . to
murder,” thereby satisfying the offense elements. App’x 1418–20.
The jury answered that it found Hunt guilty based on the BitChute
video, which was a “true threat . . . to murder.” App’x 1418–19. The
jury found that the other three charged threats did not rise to the level
of true threats proscribed by § 115(a)(1)(B).
At sentencing, the district court calculated that Hunt’s
Guidelines offense level was 22 and, with no criminal history, his
Guidelines sentence range was 41–51 months. This included a two-
level enhancement pursuant to U.S.S.G. § 3C1.1 for obstructing or
impeding the administration of justice, which the district court
determined was warranted because Hunt “testified falsely at trial that
he did not intend to retaliate against or interfere with members of
Congress.” App’x 1495. The district court sentenced Hunt to a prison
term of nineteen months. This appeal followed.
DISCUSSION
Hunt makes four arguments on appeal. First, invoking the
constitutional fact doctrine, he contends that the evidence was
insufficient to prove beyond a reasonable doubt that his BitChute
video was a true threat unprotected by the First Amendment. Second,
Hunt claims that the district court erred by refusing to instruct the
jury that, to find him guilty, it had to conclude that he intended his
threats to reach the targeted officials. Third, he maintains that the
exclusion of his father from the trial courtroom violated his Sixth
Amendment right to a public trial. Last, Hunt argues that the district
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No. 21-3020
court erred at sentencing by misapplying the perjury enhancement
and impermissibly considering a rehabilitative purpose.
After carefully considering these arguments, we conclude that
each lacks merit. We therefore affirm Hunt’s conviction and sentence.
I. Sufficiency of the Evidence
Hunt’s statute of conviction, 18 U.S.C. § 115, provides that (1)
“[w]however . . . threatens to assault, kidnap, or murder, a United
States official” (2) “with intent to impede, intimidate, or interfere with
such official . . . while engaged in the performance of official duties,
or with intent to retaliate against such official . . . on account of the
performance of official duties, shall be [guilty].” 18 U.S.C.
§ 115(a)(1)(B). The first element of § 115 is satisfied if a threat
constitutes a “true threat,” meaning one that “an ordinary, reasonable
recipient who is familiar with the context of the [communication]
would interpret . . . as a threat of injury,” United States v. Turner, 720
F.3d 411, 420 (2d Cir. 2013) (first alteration in original) (internal
quotation marks omitted), and one that the defendant made at least
recklessly by consciously disregarding the “risk that his
communication[] would be viewed as threatening violence,”
Counterman v. Colorado, 143 S. Ct. 2106, 2111–12 (2023). The second
element is purely subjective, turning on the defendant’s intent in
making the threats. Turner, 720 F.3d at 420.
Where, as here, a defendant contends that the evidence did not
establish that his speech was “a true threat of violence”
“[un]protected by the First Amendment,” he challenges the
sufficiency of the evidence supporting his § 115 conviction. Id. at
418–19. Invoking the First Amendment, Hunt asks this court to apply
the constitutional fact doctrine, which would require us to review the
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No. 21-3020
trial record de novo, and conclude based on that review that the
BitChute video was not a true threat. We decline to do so. The
constitutional fact doctrine’s requirement that courts “determine for
themselves whether the fact-finder appropriately applied First
Amendment law to the facts,” United States v. Wheeler, 776 F.3d 736,
742 (10th Cir. 2015), is inapplicable where, as here, the First
Amendment is not implicated. Instead, applying the ordinary
deferential standard of review, we find that the evidence was
sufficient to support Hunt’s conviction.
A. Standard of Review and Applicability of the
Constitutional Fact Doctrine
Ordinarily, we review challenges to the sufficiency of the
evidence deferentially, construing the evidence “in the light most
favorable to the government, crediting every inference that could
have been drawn in its favor,” United States v. Gordon, 987 F.2d 902,
906 (2d Cir. 1993), and affirming the conviction provided that “any
rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt,” Jackson v. Virginia, 443 U.S. 307,
319 (1979). Hunt argues, however, that the constitutional fact doctrine
displaces this standard. He would thus have us examine the entire
trial record and determine for ourselves whether the prosecution
proved beyond a reasonable doubt that he made a true threat in
violation of 18 U.S.C. § 115(a)(1)(B). The government argues that the
doctrine is inapplicable to this case and that we must defer to the
jury’s verdict so long as it is reasonable.
We have not definitively answered whether the constitutional
fact doctrine applies to true threat determinations under 18 U.S.C.
§ 115, see Turner, 720 F.3d at 419, and other circuits that have
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No. 21-3020
considered the issue have reached opposing conclusions. 1 We now
hold that the constitutional fact doctrine does not apply to § 115 true
threat determinations.
Under the constitutional fact doctrine, courts “conduct[] an
independent review of the record both to be sure that the speech in
question actually falls within the unprotected category and to confine
the perimeters of any unprotected category within acceptably narrow
limits . . . to ensure that protected expression will not be inhibited.”
Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 505 (1984).
Courts apply the doctrine and engage in this independent review “to
correct errors of law, including those that may infect a so-called mixed
finding of law and fact, or a finding of fact that is predicated on a
misunderstanding of the governing rule of law.” Id. at 501; see
Hernandez v. New York, 500 U.S. 352, 367 (1991) (whether doctrine
applies “turn[s] on the Court’s determination that” the question
“involve[s] legal, as well as factual, elements”). Thus, the Supreme
Court has applied the doctrine when reviewing whether a libelous
statement was made with “actual malice,” Bose, 466 U.S. at 514, and
whether a confession was voluntarily made, Miller v. Fenton, 474 U.S.
104, 115 (1985), and we have applied it in reviewing convictions for
breach of peace and contempt of court, see United States v. Cutler, 58
F.3d 825, 834 (2d Cir. 1995).
1 Compare Wheeler, 776 F.3d at 742 (declining to apply constitutional fact
doctrine to true threat determination), with United States v. Bly, 510 F.3d 453, 457–
59 (4th Cir. 2007) (applying doctrine), and United States v. Hanna, 293 F.3d 1080,
1088 (9th Cir. 2002) (same). See United States v. Jeffries, 692 F.3d 473, 481 (6th Cir.
2012) (deferring to jury, but not explicitly discussing constitutional fact doctrine);
United States v. Parr, 545 F.3d 491, 497 (7th Cir. 2008) (same); United States v.
Schiefen, 139 F.3d 638, 639 (8th Cir. 1998) (same).
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Distinguishing questions that implicate legal principles, to
which the constitutional fact doctrine applies, from ordinary
questions of fact, to which it does not, hinges on “the nature of the
substantive law at issue.” Bose, 466 U.S. at 501 n.17. In Bose, the
Supreme Court offered several reasons for finding that the “actual
malice” determination involved legal principles necessitating
application of the constitutional fact doctrine. Among these reasons
were: (1) “the common-law heritage of the [actual malice] rule,”
which “assigns an especially broad role to the judge in applying it to
specific factual situations”; (2) that “the content of the rule is not
revealed simply by its literal text, but rather is given meaning through
the evolutionary process of common-law adjudication”; (3) the First
Amendment “values protected by the rule[, which] make it
imperative that judges . . . make sure that it is correctly applied.” Id.
at 502.
The nature of the substantive law at issue in this case supports
letting the jury decide whether there was a true threat without any
judicial second-guessing. Section 115(a)(1)(B) criminalizes threats
that a reasonable person familiar with the context would view as
genuine. Unlike “actual malice” in Bose, which “is given meaning
through the evolutionary process of common-law adjudication,” 466
U.S. at 502, the true threat determination will usually hinge on the
objective assessment of a reasonable person, and thus requires only
“ordinary principles of logic and common experience” rather than
legal judgment. 2 Id. at 501 n.17.
2 To be sure, the defendant’s subjective mens rea is every bit as important as
the objectively ascertained aspect of the nature of the threat. But in most cases the
subjective element is obvious from the conduct in question.
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The substantive law at issue here does not implicate the
constitutional fact doctrine for two additional reasons. First, the true
threat question does not require a “case-by-case [judicial]
adjudication . . . [to] give content to . . . otherwise elusive
constitutional standards,” unlike those situations in which the
doctrine applies. Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S.
657, 686 (1989). Second and relatedly, the common law does not
“assign[] an especially broad role to the judge” to answer the
operative question in this case. Bose, 466 U.S. at 502. To the contrary,
the true threat standard spelled out in our cases constrains the role of
judges and instead relies upon the sensibilities of ordinary people. In
sum, the court is no better equipped than the jury—and is arguably
less equipped—to answer whether a statement is a true threat.
We therefore conclude that the true threat determination
involves no legal principles warranting independent review of the
jury’s conclusion. This holding aligns with our well-established view
that “whether words used are a true threat” is “a question of fact” for
the jury to which we defer. United States v. Amor, 24 F.3d 432, 436 (2d
Cir. 1994) (internal quotation marks omitted); accord United States v.
Davila, 461 F.3d 298, 304 (2d Cir. 2006); United States v. Malik, 16 F.3d
45, 49 (2d Cir. 1994); United States v. Carrier, 672 F.2d 300, 306 (2d Cir.
1982).
B. Whether the Evidence Supported the Verdict
As the district court found, the government presented to the
jury “evidence[] capable of showing beyond a reasonable doubt that
an ordinary and reasonable recipient familiar with the context of the
[video] would interpret it as a threat.” Malik, 16 F.3d at 50.
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Hunt contends that the BitChute video cannot constitute a true
threat because it “is incitement protected under the First
Amendment . . . rather than a threat.” Appellant’s Br. 38 (citing
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)). We are unpersuaded
by this argument because it is predicated on the erroneous assertion
that “when confronted with a particular communication that may be
either incitement or a threat . . . a court must first determine the
category to which the statement belongs.” Appellant’s Br. 44. Such a
binary sorting is both unsupported by the case law and makes little
sense: the offense elements the government must prove are
determined by the crime actually charged. Indeed, Hunt’s argument
is foreclosed by our holding in Turner that “a threat . . . need not also
constitute incitement to imminent lawless action to be properly
proscribed.” 720 F.3d at 425; see id. at 424 (rejecting an appellant’s
argument that “his language . . . c[ould ]not be prohibited unless it
constitute[d] incitement within the meaning of Brandenburg”); see also
Wheeler, 776 F.3d at 745 (“Allowing defendants to seek refuge in the
First Amendment simply by phrasing threats as exhortations
would . . . leave the state powerless against the ingenuity of
threateners.” (internal quotation marks omitted)).
In this case, the trial evidence provided the jury with an ample
basis to find beyond a reasonable doubt that the video constituted a
true threat. Hunt emphatically stated his own violent intent. Using
the first person, he said: “we have to show up with our guns,” “we
need to slaughter these moutherfuckers,” and “I will go there myself
and shoot them and kill them.” App’x 1436 (emphasis added). He
also reiterated his seriousness in replies to comments posted to the
video and in two follow-up videos. Circumstances surrounding the
video are relevant as well. See Davila, 461 F.3d at 305 (events that
occur close in time may inform how a reasonable person understands
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No. 21-3020
a threat). Hunt posted the BitChute video two days after a mob
violently attacked the U.S. Capitol in an attempt to prevent
certification of the 2020 presidential election. See Trump v. Thompson,
20 F.4th 10, 15 (D.C. Cir. 2021), cert. denied, 142 S. Ct. 1350 (2022). In
this context, a reasonable person could conclude that Hunt was
serious when he said that “we need to go back to the U.S. Capitol.”
App’x 1436. We have no difficulty concluding that the jury
reasonably found that Hunt’s BitChute video constituted a true threat
to assault or murder.
Hunt suggests in his post-argument Rule 28(j) letter that the
evidence was insufficient also because the jury was not instructed
that, to convict, it was required to find that he acted with at least
recklessness as to the “risk that his [video] would be viewed as
threatening violence.” Counterman, 143 S. Ct. at
2111–12. It is true that the district court did not so instruct the jury,
doubtlessly because our pre-Counterman precedent did not recognize
this mens rea requirement and Counterman—the Supreme Court
decision adding the requirement—was not announced until well after
trial. Assuming that Hunt’s argument is properly before us despite
his failure to raise it on appeal, see United States v. Santillan, 902 F.3d
49, 58 n.4 (2d Cir. 2018) (“declin[ing] to consider . . . argument” raised
“for the first time in a [Rule 28(j)] letter”), we hold that any error in
instructing the jury as to the mens rea aspect of the true threat element
was harmless beyond a reasonable doubt, see Neder v. United States,
527 U.S. 1, 8 (1999) (erroneously omitted jury instruction subject to
harmless-error review). The trial evidence, much of which this
opinion has already recounted, includes overwhelming evidence that
Hunt acted with, at the very least, recklessness as to the risk that his
video would be viewed as threatening violence. Because “the
evidence in the record could [not] rationally lead to a finding favoring
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[Hunt] on the omitted element . . . the error was harmless.” United
States v. Jackson, 196 F.3d 383, 386 (2d Cir. 1999). For the same reason,
Hunt’s challenge to the sufficiency of the evidence on that element, in
light of Counterman, also fails.
II. Jury Instruction
Hunt also contends that the district court erred by refusing to
instruct the jury that, to find Hunt guilty, it had to conclude that Hunt
“believed or expected . . . that his BitChute video would reach or be
communicated to members of Congress.” Appellant’s Br. 60. Instead,
the district court instructed that, in evaluating whether Hunt had the
requisite intent under § 115(a)(1)(B), the jury “may consider” whether
the evidence showed that he “intend[ed] any of his statements to
reach the officials in question.” App’x 1413. The government
counters that this issue was not preserved and that, in any event, the
district court’s instruction was correct. We review an unpreserved
objection to a jury instruction for plain error and a preserved
challenge de novo. United States v. Crowley, 318 F.3d 401, 413 (2d Cir.
2003); United States v. Alfisi, 308 F.3d 144, 148 (2d Cir. 2002). Here,
Hunt’s claimed error was unpreserved. We thus review for plain
error and find none.
A. Preservation
Federal Rule of Criminal Procedure 30 requires that “[a] party
who objects to any portion of [a jury] instruction[] or to a failure to
give a requested instruction must inform the court of the specific
objection and the grounds for the objection before the jury retires to
deliberate.” Fed. R. Crim. P. 30(d). Hunt argues that he raised the
issue on four occasions. After careful review of the record, we find
that on none of these occasions did Hunt satisfy Rule 30.
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The first occasion Hunt identifies is his “pretrial request to
charge.” Appellant’s Reply Br. 18. This argument is unavailing,
however, because “a party does not satisfy [his Rule 30] burden
merely by submitting its own proposed language as part of a
requested charge.” United States v. Giovanelli, 464 F.3d 346, 351 (2d
Cir. 2006) (per curiam). Two of the other occasions are insufficient
because they did not involve the jury instructions at all: one
addressed the government’s objection to Hunt’s opening statement
and the other arose following Hunt’s objection to a witness’s
testimony.
While the fourth occasion to which Hunt points at least
occurred during the charge conference and pertained to the jury
instructions, it too falls short because it was materially different from
the objection raised here. During the charge conference, the district
court acknowledged that Hunt had raised the issue of whether he
must “have to intend that [his statement] reach the intended target,”
Appellant’s Reply Br. 21 (alteration in original) (quoting App’x 925),
but this discussion pertained to the first element of § 115(a)(1)(B), true
threat, and not the second element, intent to interfere, impede, or
retaliate, which is the element that Hunt challenges here. The district
court, in rejecting Hunt’s objection, made it clear that his argument
only related to the true threat element. The district court responded
that a defendant’s threat “doesn’t actually have to reach the intended
victim to constitute a threat.” App’x 914 (emphasis added). Hunt’s
argument on appeal pertaining to the second element was not
preserved, and thus we review for plain error.
B. Instruction Not Plain Error
The district court’s intent instruction as to the second element
was not plain error. For an error in a jury instruction to be plain, “it
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No. 21-3020
must, at a minimum, be clear under current law.” United States v.
Weintraub, 273 F.3d 139, 152 (2d Cir. 2001) (internal quotation marks
omitted). “We typically will not find such error where the operative
legal question is unsettled, including where there is no binding
precedent from the Supreme Court or this Court.” United States v.
Whab, 355 F.3d 155, 158 (2d Cir. 2004) (internal quotation marks
omitted).
Hunt cites no binding precedent supporting his proposed jury
instruction, and we are aware of none. The only Second Circuit case
Hunt cites, United States v. Kelner, involved a different offense, 18
U.S.C. § 875(c), which prohibits the transmission of threats in
interstate commerce. 534 F.2d 1020, 1020 (2d Cir. 1976). In that case,
the defendant argued “that there was no ‘communication’ within the
meaning of 18 U.S.C. [§] 875(c) because there was no specific person
to whom the threat was addressed and to whom [he] intended to
cause emotional suffering.” Id. at 1023. We held that the jury was
required to find that “the appellant intended to communicate his
threat” to the threat’s target in order to satisfy the offense element that
the “appellant’s activity [be] properly within the scope of the term
‘communication’” as used in § 875(c). Id. (emphasis added). As that
offense element is not present in § 115(a)(1)(B), Kelner is inapposite to
this case. Because Hunt fails to identify “a prior decision from this
court or the Supreme Court mandating the jury instruction that [he],
for the first time on appeal, says should have been given, we [cannot]
find any such error to be plain, if error it was.” Weintraub, 273 F.3d at
152.
III. Public Trial
Hunt next contends that the district court violated his right to
a public trial by excluding his father from the courtroom during the
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trial. The Sixth Amendment guarantees defendants in a criminal
prosecution the right to a public trial. See U.S. Const. amend. VI. “But
while the Sixth Amendment creates a ‘presumption of openness,’
‘[t]he public trial guarantee is not absolute.’” United States v. Laurent,
33 F.4th 63, 95 (2d Cir. 2022) (quoting United States v. Gupta, 699 F.3d
682, 687 (2d Cir. 2012), cert. denied, 143 S. Ct. 394 (2022), and cert. denied
sub nom. Ashburn v. United States, 143 S. Ct. 462 (2022). The
Constitution permits “closure of a criminal trial courtroom . . . under
limited circumstances.” Ayala v. Speckard, 131 F.3d 62, 69 (2d Cir.
1997) (en banc). As a general matter, courts may constitutionally close
a courtroom if: “(1) closing the [proceeding] would advance an
overriding interest . . . ; (2) the closure is no broader than necessary to
protect that interest; (3) the trial court considers reasonable
alternatives . . . ; and (4) the trial court makes findings adequate to
support the closure.” United States v. Smith, 426 F.3d 567, 571 (2d Cir.
2005) (citing Waller v. Georgia, 467 U.S. 39, 48 (1984)). Where, as here,
a defendant failed to object contemporaneously to a courtroom
closure, we review the claim for plain error. 3 Laurent, 33 F.4th at
95–96. “Under that standard, before an appellate court can correct an
error not raised at trial, there must be (1) error, (2) that is plain, and
(3) that affects substantial rights.” United States v. Gomez, 705 F.3d 68,
75 (2d Cir. 2013) (internal quotation and alteration marks omitted).
Applying the four-part test set forth in Smith, we find that the
district court did not plainly err by excluding Hunt’s father from the
trial courtroom.
3 The government correctly points out that Hunt did not object to the
exclusion of his father from the courtroom, and he appeared to acquiesce to it by
endorsing the district court’s proposed jury instruction regarding the absence of
Hunt’s supporters from the trial courtroom.
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First, excluding the public from the courtroom advanced an
overriding interest 4: protecting public health during the COVID-19
pandemic. At the time of Hunt’s trial, COVID-19 was understood to
pose a serious health hazard, and limiting the risk of transmission by
limiting the number of people in the trial courtroom was of
paramount concern. See United States v. Allen, 34 F.4th 789, 797 (9th
Cir. 2022) (“[L]imiting the transmission of COVID while holding a
trial was an overriding interest.”); cf. Roman Cath. Diocese of Brooklyn
v. Cuomo, 141 S. Ct. 63, 67 (2020) (“Stemming the spread of COVID–
19 is unquestionably a compelling interest . . . .”). Hunt does not
dispute this point.
Second, the closure was not clearly broader than was necessary.
“A courtroom closure is permissible under the second Waller prong
so long as there is a positive and proportional relationship between
4 The government contends, and Hunt seems to agree, that a lesser
standard applies because the closure of the courtroom was only partial. Where “a
trial judge orders a partial, as opposed to a total, closure of a court proceeding . . . ,
a ‘substantial reason’ rather than [an] ‘overriding interest’ will justify the closure.”
Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir. 1992). But it is not clear that the district
court’s decision in this case to bar all spectators from the trial courtroom effected
“a partial, as opposed to a total, closure.” Id. A courtroom closure is “partial”
when certain people are barred from the courtroom, not all would-be spectators.
See, e.g., id. The only two circuit courts to have considered the question—whether
there is a total closure if the public is excluded from the courtroom but a real-time
broadcast is available—reached opposite conclusions. Compare United States v.
Allen, 34 F.4th 789, 797 (9th Cir. 2022) (holding that district court’s exclusion of all
members of the public from courtroom constituted a total closure despite a
publicly available audio feed of proceedings), with United States v. Ansari, 48 F.4th
393, 403 (5th Cir. 2022) (“[R]equiring spectators to watch and listen on livestream
rather than in-person . . . [was a] partial closure.” (emphasis added)). Although
we recognize some merit in the government’s position that a live audio and video
feed renders a courtroom closure only partial, we need not, and do not, so hold.
Such a holding is unnecessary in this case because we are satisfied that the district
court’s decision to close the trial courtroom served an “overriding interest” and,
therefore, meets even the heightened standard required for total closure.
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(1) the extent of the closure, and (2) the ‘gravity’ of the interest that
assertedly justifies the closure . . . .” Carson v. Fischer, 421 F.3d 83, 89
(2d Cir. 2005) (internal quotation and alteration marks omitted). In
evaluating the breadth of a closure, we consider several factors,
including the closure’s duration, whether all or just some spectators
were excluded, and “whether the public can learn what transpired
while the trial was closed.” Smith, 426 F.3d at 571 (internal quotation
marks omitted). In this case, the closure was broad in as much as it
excluded all spectators for the entirety of the trial. On the other hand,
the simultaneous video and audio access available in nearby
courtrooms ensured public access to the proceeding, Allen, 34 F.4th at
798, thereby safeguarding “the values the [Sixth] Amendment is
aimed to protect,” Carson, 421 F.3d at 92–93. Here, the district court
sought to balance the urgent imperative to protect public health and
accommodating Hunt’s and the public’s interests in an open trial. See
Ansari, 48 F.4th at 402 (It was “eminently reasonable . . . to maintain
social distancing . . . by [using] an audio and video feed down to the
jury assembly area to allow for any spectators . . . to view th[e] trial.”
(internal quotation marks omitted)). As the district court explained,
there was no adequate space for Hunt’s father in the trial courtroom
because the courtroom was already “at a slightly higher
number . . . than the epidemiologist . . . had approved.” App’x 265;
see App’x 410.
Third, the district court considered alternatives to closing the
courtroom. Indeed, it “considered and used an alternative to
complete[ly]” excluding Hunt’s father by providing a real-time
broadcast of the trial. Carson, 421 F.3d at 87 (quoting People v. Carson,
740 N.Y.S.2d 346, 347 (2002)). It also specifically considered excepting
Hunt’s father from its prohibition on spectators but determined that
doing so was ill-advised. This decision was consistent with the
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No. 21-3020
Eastern District’s court-wide plan for resumption of jury trials, which
called for admitting “family members of the defendant” only if there
was “available space.” App’x 37.
Fourth, the district court made findings on the record to
support the courtroom closure and enable appellate review. In Smith,
we held that the district court was not required to make particularized
findings justifying security measures that worked a partial closure
where those measures were taken “to address a generalized threat.”
426 F.3d at 574. Here, too, the closure was made in response to the
generalized threat of the COVID-19 pandemic. In any case, the
district court explained its rationale for closing the trial courtroom,
thereby facilitating our review. See Press-Enter. Co. v. Superior Ct. of
California, Riverside Cnty., 464 U.S. 501, 510 (1984).
We also note that had Hunt objected, the district court may
have made a different decision, and, at the least, it “would have been
alerted to” the need to make more specific findings, including as to
potential alternatives that may have allowed the defendant’s father to
be present in the courtroom. Gomez, 705 F.3d at 75 (holding no plain
error where defendant’s counsel “fully acquiesced in the exclusion of
[his] family” from the courtroom during jury selection due to space
constraints). In short, given the lack of an objection, the district court
cannot be faulted for failing to provide more detailed reasoning for
its decision. See id. at 76 (“[T]he fairness and public reputation of the
proceeding would be called into serious question if a defendant were
allowed to gain a new trial on the basis of the very procedure he had
invited.”).
Finally, the district court mitigated any negative inference the
jury might draw as to Hunt’s lack of visible support by informing it
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No. 21-3020
that due to the COVID-19 pandemic Hunt’s family and friends were
excluded from the courtroom.
“Accordingly, even if the exclusion of [Hunt’s father] . . . was
error, it cannot be viewed as one that affected the fairness, integrity,
or public reputation of judicial proceedings.” Gomez, 705 F.3d at 76.
Because the district court did not plainly err in closing the courtroom
to the public, we reject Hunt’s unpreserved argument that the district
court improperly excluded his father.
IV. Sentencing
Finally, Hunt contends that the district court erred in two
respects during sentencing. First, he argues that it erroneously
applied a two-level enhancement for obstruction of justice. Second,
he claims that it impermissibly considered a rehabilitative purpose in
deciding upon his sentence. We reject both contentions and affirm
Hunt’s sentence.
This court reviews criminal sentences “for procedural and
substantive reasonableness under a deferential abuse-of-discretion
standard.” United States v. Singh, 877 F.3d 107, 115 (2d Cir. 2017)
(internal quotation marks omitted). “A sentence is procedurally
unreasonable if the district court . . . improperly calculates[] the
Sentencing Guidelines range . . . [or] selects a sentence based on
clearly erroneous facts, or fails adequately to explain the chosen
sentence.” Id. (internal quotation marks omitted). If a defendant
failed to raise a claimed sentencing error below, however, we review
for plain error. United States v. Villafuerte, 502 F.3d 204, 207 (2d Cir.
2007).
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No. 21-3020
A. Obstruction Enhancement
A U.S.S.G. § 3C1.1 obstruction enhancement based upon a
defendant’s perjured testimony is appropriate if the “sentencing
court . . . find[s] that the defendant 1) willfully 2) and materially 3)
committed perjury, which is (a) the intentional (b) giving of false
testimony (c) as to a material matter.” 5 United States v. Zagari, 111 F.3d
307, 329 (2d Cir. 1997). While “it is preferable for a district court to
address each element of the alleged perjury in a separate and clear
finding,” United States v. Dunnigan, 507 U.S. 87, 95 (1993), at a
minimum, it must “identify the statements on which the perjury
finding was grounded,” find that they are material, and “make
explicit findings that defendant’s testimony was intentionally false,”
United States v. Rosario, 988 F.3d 630, 634 (2d Cir. 2021) (per curiam)
(internal quotation and alteration marks omitted). See also Dunnigan,
507 U.S. at 95.
Hunt argues that “the district court’s findings are insufficient
to sustain the obstruction enhancement” because “it made no finding
whatsoever other than that defendant testified and that the jury
rejected this testimony” and “did not consider the possibility that”
Hunt unintentionally gave inaccurate testimony. Appellant’s Br.
76–77. The government counters that Hunt failed to object to the
enhancement below, rendering his claimed error amenable only to
plain error review, and that, in any case, the district court’s findings
were sufficient.
5 U.S.S.G. § 3C1.1 states: “If (1) the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the administration of justice with
respect to the investigation, prosecution, or sentencing of the instant offense of
conviction, and (2) the obstructive conduct related to (A) the defendant’s offense
of conviction and any relevant conduct; or (B) a closely related offense, increase
the offense level by 2 levels.”
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No. 21-3020
Upon full review of the record, we find that Hunt preserved
this issue. In his written objections to the presentence report, Hunt
contested the § 3C1.1 obstruction enhancement: “That the jury did
not credit [his] testimony does not automatically show [that he] lied
or obstructed justice.” Resp. to Presentence Investigation Report at
13, United States v. Hunt, 21-CR-86, No. 121 (E.D.N.Y. Sept. 24, 2021).
He went on, “[t]here is nothing in the record that suggests how [his]
testimony was deliberately untruthful or purposefully calculated to
obstruct justice. The jury simply did not find it sufficient to show a
lack of intent.” Id. at 14 (citation omitted). Although the
government’s argument that this objection differed from the claimed
error on appeal is plausible, Hunt’s objection at the sentencing
hearing resolves any ambiguity in Hunt’s favor. At the hearing, Hunt
argued that “someone could give truthful testimony about a lack of
intent and still have that testimony rejected by a jury who didn’t find
that that testimony was sufficient to overcome other evidence
of . . . intent.” App’x 1514–15. This argument closely mirrors the
objection raised on appeal. Accordingly, we find that Hunt preserved
the issue; we thus review it for abuse of discretion rather than plain
error.
The district court did not abuse its discretion in applying the
obstruction enhancement. Contrary to Hunt’s contentions, it made
the necessary findings required by U.S.S.G. § 3C1.1. The district court
identified Hunt’s perjurious statements: his “testimony that he lacked
the requisite intent” in making the video. App’x 1495. Although not
specifically referenced by the district court, the record reflects that
Hunt testified that he “wasn’t sending this message out to anybody”
but that he “wanted . . . to get people talking about when does it cross
the line into a necessity to pushback against Government in a way.”
App’x 1003-06. The district court found that Hunt’s statements were
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No. 21-3020
intentionally false, concluding that the purpose of the testimony “was
to prevent him from getting convicted.” App’x 1495-96. The district
court then found that the statement was “plainly . . . material”
because Hunt’s intent “was an element of the offense” and that the
defendant’s intent to obstruct justice was proven “by a
preponderance.” App’x 1495–96. As the district court made the
required findings and did not rely on plainly erroneous facts in
concluding that the perjury had been established by a preponderance
of the evidence, we see no abuse of discretion and hold that it did not
err by applying the enhancement.
B. Consideration of Rehabilitative Purpose
Hunt also challenges the district court’s sentence on the ground
that it improperly considered a rehabilitative purpose in sentencing
him to prison. Because Hunt did not raise this issue before the district
court, our review is for plain error. See United States v. Gilliard, 671
F.3d 255, 258 (2d Cir. 2012).
The Sentencing Reform Act of 1984 “precludes sentencing
courts from imposing or lengthening a prison term to promote an
offender’s rehabilitation.” Tapia v. United States, 564 U.S. 319, 332
(2011) (citing 18 U.S.C. § 3582(a)). “A court commits no error,”
however, “by discussing the opportunities for rehabilitation within
prison or the benefits of specific treatment or training programs,” and
“a court properly may address a [defendant] . . . about these
important matters.” Id. at 334.
In sentencing Hunt, the district court did not impermissibly
consider rehabilitation. Rather, it considered the factors prescribed
by 18 U.S.C. § 3553(a), including the seriousness of the offense,
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No. 21-3020
promoting respect for the law, the need for deterrence, and protecting
the public. App’x 1558–60.
Hunt points to two instances in which, he argues, the district
court impermissibly considered rehabilitation. Neither is
problematic. The first was the district court’s statement that “prison
‘will enable’ Hunt ‘to grow up and reflect on [his] actions’” and serve
as “‘a form of rehabilitation.’” Appellant’s Br. 78 (modification in
original) (quoting App’x 1567). This expression of hope does not
indicate that the district court had a rehabilitative motive in
determining the proper sentence, and it was plainly permitted by
Tapia. See Gilliard, 671 F.3d at 259 (noting that “discussion of
rehabilitation” is permissible under Tapia if “the sentence length [is]
based on permissible considerations”). Second, Hunt points to the
district court’s statement that incarceration was “necessary for Mr.
Hunt to fully come to grips with how he got here and how he needs
to change” as proof of a rehabilitative purpose. Appellant’s Br. 79
(quoting App’x 1563). Again, we disagree. As the government points
out, the district court made the excerpted statement in the context of
“the need for specific deterrence,” a sentencing factor prescribed by
§ 3553(a). App’x 1562. We therefore conclude that the district court
did not impermissibly consider rehabilitation in determining Hunt’s
sentence.
CONCLUSION
For the forgoing reasons, we AFFIRM the judgment of
conviction and the sentence.
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