United States v. Gupta

09-4738-cr
United States v. Gupta
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_____________________
August Term, 2010
(Argued: March 7, 2011 Decided: June 17, 2011
Reheard: December 14, 2011* As Amended: November 8, 2012)
Docket No. 09-4738-cr
_____________________
UNITED STATES OF AMERICA,
Appellee,
-v.-
RAGHUBIR K. GUPTA,
Defendant-Appellant.
_______________________
Before:
WALKER, B.D. PARKER, HALL, Circuit Judges.
_______________________
Appeal from a judgment of the United States District Court for the Southern District of
New York (Batts, J.), convicting Defendant-Appellant Raghubir K. Gupta of one count of
*
This matter was reheard by this Court sitting in banc. After due consideration, and in
anticipation of our filing this amended panel opinion, the in banc court has voted to dissolve
itself. We therefore vacate our original opinion and summary order, see United States v. Gupta,
650 F.3d 863 (2d Cir. 2011); United States v. Gupta, 426 F. App’x 12 (2d Cir. 2011)
(unpublished summary order), which are superseded by the present amended opinion. In light of
our disposition, Gupta’s remaining challenges on appeal to his sentence and the district court’s
denial of his motion for a new trial based on newly discovered evidence are both moot.
1
immigration fraud and sentencing him principally to 51 months’ imprisonment. We hold that
under the particular circumstances of this case, the district court’s intentional exclusion of the
public from the courtroom during the entirety of voir dire, without prior consideration of the
factors identified in Waller v. Georgia, 467 U.S. 39, 48 (1984), violated Gupta’s Sixth
Amendment right to a public trial. We therefore vacate his conviction and remand for further
proceedings.
VACATED AND REMANDED.
_______________________
SUSAN C. WOLFE, Hoffman & Pollok LLP, New York, New York, for Defendant-
Appellant.
LEE RENZIN, Assistant United States Attorney (Jesse M. Furman and Katherine
Polk Failla, Assistant United States Attorneys, on the brief), for Preet Bharara,
United States Attorney for the Southern District of New York, for Appellee.
ANTHONY S. BARKOW (Courtney M. Oliva, on the brief), for Amicus Curiae The
Center on the Administration of Criminal Law at NYU School of Law, New
York, New York, in support of Defendant-Appellant.
MARC FERNICH, for Amici Curiae The National Association of Criminal Defense
Lawyers, White Plains, New York, and The New York State Association of
Criminal Defense Lawyers, New York, New York, in support of Defendant-
Appellant.
_______________________
Hall, Circuit Judge:
This appeal presents the narrow question of whether the district court’s intentional
closure of the courtroom during voir dire violated Defendant-Appellant Raghubir K. Gupta’s
right to a public trial. In Waller v. Georgia, 467 U.S. 39, 48 (1984), the Supreme Court held
that, consistent with the Sixth Amendment, a trial court may exclude the public from the
courtroom only upon satisfaction of a four-factor test, and in Presley v. Georgia, 558 U.S. 209,
2
130 S. Ct. 721, 724 (2010), the Supreme Court reiterated that this test applies to closures during
voir dire. Because the lower court here did not analyze the Waller factors prior to closing the
courtroom, the closure was unjustified. In prior decisions of this Court, we have suggested that
an unjustified closure, under certain and limited circumstances, may not require reversal of the
defendant’s conviction. See, e.g., Gibbons v. Savage, 555 F.3d 112, 120 (2d Cir. 2009) (“[I]t
does not follow that every temporary instance of unjustified exclusion of the public—no matter
how brief or trivial, and no matter how inconsequential the proceedings that occurred during an
unjustified closure—would require that a conviction be overturned.”); Peterson v. Williams, 85
F.3d 39, 42 (2d Cir. 1996) (applying the same rule). Whatever the outer boundaries of this
doctrine may be, however, they do not encompass the present case. Here, the district court’s
intentional, unjustified exclusion of the public for the entirety of voir dire was neither brief nor
trivial, and thus violated Gupta’s Sixth Amendment right to a public trial. We therefore
VACATE his conviction and REMAND for further proceedings not inconsistent with this
opinion.
BACKGROUND
I. Voir Dire
Jury selection for Gupta’s trial commenced at approximately 10:00 a.m. on March 24,
2008. The district court began by distributing a written two-part questionnaire to the venire.
Before addressing the questionnaire, the court briefly explained to the venire members the
importance of jury duty, the nature and expected length of the trial, and the jury selection
process. The court then read aloud the approximately 75 written questions in part one of the
questionnaire, instructing the venire members to “follow along” and “jot down or note” on the
3
questionnaire any question to which their answer was “yes.” Following the reading of the
questions, the court announced a short recess, after which the courtroom deputy filled the jury
box and the first few rows of the courtroom with 32 qualified prospective jurors. During this
process, the courtroom deputy announced the name of each prospective juror. If an individual
juror had answered “yes” to any of the questions in part one of the questionnaire, he or she was
questioned further by the court at sidebar; and, if the juror answered “no” to all of the questions,
he or she was directed to take a seat. The process took the remainder of the morning. In total,
the court questioned 43 prospective jurors at sidebar without objection from Gupta. Eleven were
dismissed for cause, all on consent of both parties.
After the 32 qualified prospective jurors were selected, the court excused most of the
remaining venire members, leaving a few as possible alternates. The court adjourned for lunch,
and when voir dire resumed at 2:15 p.m., the court asked each prospective juror, in open court, a
series of basic questions about his or her background and interests. These questions included
questions about, inter alia, the juror’s residence, employment, level of education, reading
interests, and favorite television shows. Neither party requested any additional questions, and
none of the prospective jurors was removed during this phase. With questioning complete, the
court dismissed the three remaining alternates, who had been present throughout this process.
Thereafter, counsel for both parties adjourned to the jury room to exercise their peremptory
challenges; neither party raised any objection to the other party’s challenges. Upon returning to
the courtroom, the deputy impaneled the jury and swore in its members, after which the
remaining venire members were dismissed. Although it is not clear from the record at what time
voir dire ended, there was sufficient time left in the afternoon for the court to give preliminary
4
instructions to the jury, for both parties to give their opening statements, and for the court and
counsel to have an extended colloquy after the jury had been dismissed. No party raised any
contemporaneous objections to anything that occurred during voir dire.
II. First Appeal and Remand
The jury returned a guilty verdict in April 2008. Gupta was sentenced by the district
court in October 2009, after which he appealed. In January 2010 (while his appeal was pending
before this Court), Gupta submitted a letter to this Court in which he alleged for the first time
that the district court had violated his Sixth Amendment right by closing the courtroom during
voir dire. Relying on the Supreme Court’s then-recent decision in Presley, Gupta later moved to
remand for supplemental fact-finding, and in April 2010, we granted his motion.
On remand, Gupta moved for a new trial, again asserting that the exclusion of the public
during voir dire violated his right to a public trial. In an affirmation attached to the motion,
Gupta’s trial counsel declared:
On January 20, 2010, [Gupta] alerted undersigned counsel to the existence of an
issue that had arisen in light of [Presley] . . . . After reading widely publicized
news reports of the Presley decision, the defendant advised undersigned counsel
that his brother, Sudhir (“Sam”) Gupta, and his companion, Maria Young, had
been instructed by the courtroom deputy to leave the courtroom at the time when
prospective jurors were being brought in for jury selection. Counsel, who was in
the well of the court with the defendant during jury selection, was not aware that
any members of the public had been asked to leave.
Joint Appendix on Rehearing En Banc (“J.A.”) at 228. Gupta attached to the affirmation
affidavits from Sudhir Gupta and Maria Young, both of whom affirmed that on the first day of
trial, they were asked to leave the courtroom prior to the start of voir dire and did not reenter the
room until after the jury had been selected. In lieu of an evidentiary hearing, the district court
adopted as its factual findings an affidavit submitted by William Delaney, a courtroom deputy,
5
who affirmed that on the day in question, “[s]eventy (70) jurors were ordered and sent to the
courtroom for jury selection,” and:
At the Court’s direction, in order to accommodate the large numbers 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.
J.A. at 238-39. After the district court made its findings, 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,
467 U.S. at 45-47; see also Presley, 130 S. Ct. at 723 (noting that, while this right derives from
both the First and Sixth Amendments, it is the latter that supports a defendant’s public trial
right); cf. Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979) (“Our cases have uniformly
recognized the public trial guarantee as one created for the benefit of the defendant.”). “The
knowledge that every criminal trial is subject to contemporaneous review in the forum of public
opinion is an effective restraint on possible abuse of judicial power.” In re Oliver, 333 U.S. 257,
270 (1948); accord DePasquale, 443 U.S. at 412 (Blackmun, J., concurring in part and
dissenting in part) (“The public trial is rooted in the ‘principle that justice cannot survive behind
walls of silence[.]’” (quoting Sheppard v. Maxwell, 384 U.S. 333, 349 (1966))); Cox Broad.
Corp. v. Cohn, 420 U.S. 469, 492 (1975) (holding that publicity “serves to guarantee the fairness
of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of
justice”). The public trial right unquestionably extends to voir dire. See Presley, 130 S. Ct. at
6
724; accord Gibbons, 555 F.3d at 115 (“The defendant has a right to an open, public trial,
including during the jury selection.”).
The public trial guarantee is not absolute, however. “[It] may give way in certain cases
to other rights or interests, such as the defendant’s right to a fair trial or the government’s
interest in inhibiting disclosure of sensitive information. Such circumstances will be rare,
however, and the balance of interests must be struck with special care.” Waller, 467 U.S. at 45.
To overcome the guarantee’s “presumption of openness,” Press-Enter. Co. v. Super. Ct. of Cal.,
464 U.S. 501, 510 (1984) (internal quotation marks omitted), trial courts must—“before
excluding the public from any stage of a criminal trial,” Presley, 130 S. Ct. at 724 (emphasis
added)—satisfy themselves that the following four criteria have been met: (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; accord Gibbons, 555 F.3d at
116; Ayala v. Speckard, 131 F.3d 62, 69 (2d Cir. 1997) (in banc). In other words, if a court
intends to exclude the public from a criminal proceeding, it must first analyze the Waller factors
and make specific findings with regard to those factors. If a trial court fails to adhere to this
procedure, any intentional closure is unjustified and will, in all but the rarest of cases, require
reversal. E.g., Presley, 130 S. Ct. at 725.
Here, despite not making any Waller findings, the district court intentionally excluded the
public from the courtroom for the entirety of voir dire. On these facts alone, the closure was
unjustified. See Waller, 467 U.S. at 48 (the trial court “must make findings adequate to support
7
[a] closure”). Nevertheless, even if we accept Delaney’s affidavit as illustrative of the district
court’s Waller findings (and for the reasons already discussed, such an approach is untenable
because the court made no explicit findings before closing the courtroom), the reasons identified
therein are insufficient to justify the closure. Delaney affirmed that, at the court’s direction, he
excluded Gupta’s brother and girlfriend from the courtroom during 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.” See J.A. at 238-39. As we
have previously held, such justifications are inadequate—a point the Government has conceded.
See Original Appellee Br. at 25 & 25 n.* (“[T]he District Court’s exclusion of members of the
public from the courtroom during voir dire violated the four-factor Waller test.”); 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).
Because the closure here was unjustified, the presumptive result under Waller is vacatur
of the conviction. See, e.g., Presley, 130 S. Ct. at 725 (reversing and remanding because the trial
court failed to comply with Waller before closing the courtroom). The Government argues,
however, that under our so-called “triviality standard,” we should affirm Gupta’s conviction,
notwithstanding the unjustified closure, because the exclusion of the public in this case was
trivial and thus did not violate Gupta’s Sixth Amendment public trial right.
Applying that standard in the past, we have reasoned that certain errors are “not
significant enough to rise to the level of a constitutional violation.” Carson v. Fischer, 421 F.3d
83, 94 (2d Cir. 2005); see Gibbons, 555 F.3d at 120 (“[Not] every temporary instance of
unjustified exclusion of the public—no matter how brief or trivial, and no matter how
8
inconsequential the proceedings that occurred during an unjustified closure—[] require[s] that a
conviction be overturned.”). As we explained in first articulating a “triviality standard,” it
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.
Peterson, 85 F.3d at 42. A number of our sister circuits have adopted this same reasoning. See,
e.g., United States v. Perry, 479 F.3d 885, 890 (D.C. Cir. 2007) (applying Peterson’s “triviality
standard”); United States v. Ivester, 316 F.3d 955, 959-60 (9th Cir. 2003) (applying the “widely-
accepted Peterson test”); Braun v. Powell, 227 F.3d 908, 918-19 (7th Cir. 2000) (adopting
Peterson’s “triviality standard”); see also United States v. Greene, 431 F. App’x 191, 195 (3d
Cir. 2011) (holding that Peterson’s “triviality analysis” remains valid after Presley).
We have repeatedly emphasized, however, the doctrine’s narrow application. See
Carson, 421 F.3d at 94 (applying the triviality standard to an unjustified courtroom closure in
light of the “rare circumstances” presented in that case). For example, we have invoked the
“triviality standard” where a trial court closed the courtroom to the public during a few hours of
a multi-day voir dire proceeding, see Gibbons, 555 F.3d at 114-15, 121; where a trial court
excluded the defendant’s former mother-in-law from the courtroom during the testimony of a
state informant, which was later summarized during the prosecution’s closing arguments, but
allowed other family members to remain, see Carson, 421 F.3d at 86-87, 92-94; and where
courtroom officers inadvertently kept a courtroom closed following the testimony of an
undercover officer, thereby preventing members of the public from directly observing the
defendant’s brief testimony, which was later summarized in open court during closing
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arguments, see Peterson, 85 F.3d at 41-44.1 Conversely, we have declined to apply the standard
where a trial court excluded the defendant’s siblings from the courtroom during the testimony of
an undercover agent who provided the bulk of the evidence upon which the defendant was
convicted. See Smith v. Hollins, 448 F.3d 533, 535-37, 540-41 (2d Cir. 2006).
The Government urges that, in light of these decisions, the courtroom closure here falls
within the category of “trivial” closures that we have previously identified. We disagree.
Whatever the outer boundaries of our “triviality standard” may be (and we see no reason to
define these boundaries in the present context), a trial court’s intentional, unjustified closure of a
courtroom during the entirety of voir dire cannot be deemed “trivial.”
Much of the Government’s argument rests on its observation that the voir dire
proceedings here failed to produce any contentious issues. We do not necessarily disagree.
Most voir dire proceedings are uncontroversial. But the public trial right is not implicated solely
in discordant situations. Rather, “the value of openness” that a public trial guarantees “lies in the
fact that people not actually attending trials can have confidence that standards of fairness are
being observed; the sure knowledge that anyone is free to attend gives assurance that established
procedures are being followed and that deviations will become known.” Press-Enter., 464 U.S.
at 508. Thus, the regularity of the proceedings is an important impression with which the courts
should leave observers. While a public presence will more likely bring to light any errors that do
occur, it is the openness of the proceeding itself, regardless of what actually transpires, that
1
In both Peterson and Carson, the testimony given during the closure was later
summarized during closing argument. The “incorporation of the . . . testimony cannot by itself
resolve the Sixth Amendment question. But it does bear on how seriously the values served by
the Sixth Amendment were undermined.” Peterson, 85 F.3d at 43.
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imparts “the appearance of fairness so essential to public confidence in the system” as a whole.
Id.Given the exceptional importance of the right to a public trial, excluding the public for all
of voir dire without justification grounded in the record, see Presley, 130 S. Ct. at 724; Waller,
467 U.S. at 48, is not trivial. Indeed, to conclude otherwise would eviscerate the right entirely.
Absent the triviality exception, reversal is required here because the district court failed to make
Waller findings before excluding the public from the courtroom.
* * *
As a final matter, the Government maintains, notwithstanding the above, that we should
deem Gupta’s Sixth Amendment challenge forfeited because Gupta did not object
contemporaneously to the exclusion of the public during voir dire.
The Government bases its argument on the theory that Gupta learned of the district
court’s exclusion of his brother and girlfriend prior to the close of voir dire, and, for this reason,
Gupta had an obligation either to object to the exclusion himself or to inform his counsel of this
fact. Although the record is at best undeveloped on this point, the parties do agree that Gupta’s
trial counsel was unaware of the closure at the time it occurred. The Government would have us
conclude that, because Gupta has not affirmatively demonstrated that he did not know of the
closure, we should assume that he had such knowledge and therefore hold him accountable. We
decline this invitation. Nothing apart from the Government’s speculation supports the
conclusion that Gupta was aware of the closure when it happened and thus had the ability to
raise a contemporaneous objection. Even if we assume that Gupta had such knowledge, however
(and there is no record evidence supporting this assumption), we are loath to impute to a
11
defendant—at least in the circumstances here—an obligation to raise a legal objection as to
which his own defense counsel is ignorant during the throes of trial. Cf. United States v.
Tramunti, 500 F.2d 1334, 1341 n.3 (2d Cir. 1974) (“Defense counsel cannot fairly be penalized
for failure to raise at trial an issue of which he was, without his own fault, ignorant.”). We
therefore reject the Government’s argument that Gupta has forfeited his Sixth Amendment
claim.2
2
Judge Parker would hold that the record is sufficiently developed to find that the
Government forfeited its forfeiture argument on the following basis:
(1) This Court ordered a Jacobson remand on April 29, 2010. On June 8, 2010, while the
case was before the district court, Gupta filed a motion for a new trial and for bail pending
appeal, arguing that his Sixth Amendment right to a public trial had been violated. On July 14,
2010, the Government responded. The Government addressed the merits of Gupta’s argument,
insisting that any improper closure that may have occurred during the trial was subject to the
triviality exception and that therefore a new trial was not warranted. Despite this clear
opportunity to do so, the Government did not argue that Gupta had forfeited his Sixth
Amendment claim by failing to raise it earlier.
(2) Prior to the remand, the Government could have raised the forfeiture issue, but did
not. In response to Gupta’s Motion for Remand in this Court, the Government submitted an
affirmation agreeing to that relief. At that point, the Government could have argued that Gupta’s
claim was forfeited, or could have argued for the development of facts necessary to raise
forfeiture on appeal, but it did not.
Accordingly, it is clear to Judge Parker that the Government forfeited its forfeiture
argument. See, e.g., United States v. Braunig, 553 F.2d 777, 780 (2d Cir. 1977) (“[W]here a
party has shifted his position on appeal and advances arguments available but not pressed below,
and where that party has had ample opportunity to make the point in the trial court in a timely
manner, waiver will bar raising the issue on appeal.” (citations omitted)).
Judges Walker and Hall, based on the analysis already articulated in the opinion, are of
the view that it is unnecessary to resolve whether the Government’s argument has been forfeited,
and thus refrain from doing so.
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CONCLUSION
As should be clear from the above, the importance of the public trial right dictates that,
before closing a courtroom to the public, a trial court must inform the parties of its intentions and
make explicit Waller findings. Failure to comply with this procedure will, in nearly all cases,
invite reversal. While we do not rule out the possibility that in the rare circumstance an
unjustified closure may, under our “triviality standard,” not require reversal of the defendant’s
conviction, this is not the present case. Here, the district court’s intentional, unjustified closure
of the courtroom for the entirety of voir dire violated the defendant’s Sixth Amendment right to
a public trial. We therefore VACATE his conviction and REMAND for further proceedings not
inconsistent with this opinion.
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