Wilder v. United States , 806 F.3d 653 ( 2015 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 14-1815
    DARREN F. WILDER,
    Petitioner, Appellant,
    v.
    UNITED STATES OF AMERICA,
    Respondent, Appellee.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Denise J. Casper, U.S. District Judge]
    Before
    Torruella, Lynch, and Kayatta,
    Circuit Judges.
    Michael R. Schneider, with whom Jeffrey G. Harris and Good
    Schneider Cormier were on brief, for appellant.
    Kelly Begg Lawrence, Assistant United States Attorney, with
    whom Carmen M. Ortiz, United States Attorney, was on brief, for
    appellee.
    November 20, 2015
    LYNCH, Circuit Judge.          Darren Wilder was convicted in
    March 2006, after a jury trial, of transportation, receipt, and
    possession of child pornography in violation of 
    18 U.S.C. § 2252
    .
    We affirmed his conviction on direct appeal and noted that the
    evidence against him was very strong. See United States v. Wilder,
    
    526 F.3d 1
    , 7–12 (1st Cir. 2008), cert. denied, 
    555 U.S. 1050
    (2008).
    Wilder now appeals the district court's denial of his
    petition for a writ of habeas corpus under 
    28 U.S.C. § 2255
    , in
    which he claimed, for the first time, that the jury selection
    process for his trial violated his Fifth Amendment right to be
    present and his Sixth Amendment right to a public trial.               Because
    Wilder cannot overcome his procedural default from not pursuing
    either claim at trial or on appeal, we affirm the denial of habeas
    relief.
    I.
    The facts surrounding Wilder's underlying conviction are
    set forth in our prior opinion.             Wilder, 
    526 F.3d at
    3–5.          We
    summarize only the facts relevant to this appeal.
    On December 1, 2009, Wilder filed a motion under 
    28 U.S.C. § 2255
     seeking to vacate his conviction on numerous grounds.
    On   May   14,   2012,   Judge   O'Toole    denied   the    motion,   with   the
    exception of two constitutional claims regarding jury selection
    that he reserved for an evidentiary hearing.               The matter was then
    - 2 -
    reassigned to Judge Casper so that Judge O'Toole could serve as a
    fact witness concerning the conduct of voir dire.                       On July 22,
    2014,   after      an   evidentiary      hearing     involving        testimony   and
    affidavits from trial participants, including Judge O'Toole, the
    district court denied both remaining claims.
    The district court (Judge Casper) made the following
    findings of fact.           Trial began on March 13, 2006.               Wilder and
    Wilder's girlfriend, parents, stepmother, and mother's friend were
    present in the courtroom when the jury venire was brought into the
    courtroom.         In   open    court,   the     trial    judge   (Judge   O'Toole)
    explained the nature of the charges against Wilder and then asked
    the jury venire a series of questions as a group.                      After all of
    the potential jurors responded affirmatively to the question of
    whether he or she was a regular or frequent internet user, the
    trial judge indicated that "we're going to end up talking to all
    of you in the back."
    The    trial      judge   and   counsel     for   both    parties    then
    proceeded to meet with potential jurors one by one in the jury
    deliberation room behind the courtroom.                  That room is not open or
    visible to those in the courtroom. However, those in the courtroom
    could see potential jurors as they left from and returned to the
    courtroom.      It took the rest of the morning and most of the
    afternoon to go through the individual voir dire of each juror.
    In the back room, each individual potential juror was asked follow-
    - 3 -
    up questions to those asked in open court as well as a question
    about whether child pornography evidence would so emotionally
    disturb the potential juror as to make him or her incapable of
    remaining impartial.    Counsel exercised for-cause challenges as
    each juror left the room.   The reason for conducting this portion
    of voir dire in the jury deliberation room, the trial judge
    attested, was to "support[] the juror's interest in privacy and
    thus promote[] full and candid answers."        While he did not have
    any recollection specific to this case, this was his general
    practice in "a small number of cases," including child pornography
    cases.     There was no objection to this procedure from either
    counsel.
    Neither Wilder nor his family was present for that
    portion of the individual voir dire that took place in the jury
    deliberation   room.   Counsel   was     certainly   present.   Indeed,
    Wilder's counsel instructed Wilder and his family to stay in the
    courtroom in case Wilder was needed.      Neither Wilder nor any other
    person ever made a request to enter and be present in the jury
    deliberation room.
    After the individual questioning was completed, the jury
    selection proceedings resumed in open court.           Defense counsel
    conferred with Wilder before exercising peremptory challenges.
    Both the prosecution and defense counsel then exercised peremptory
    - 4 -
    challenges at sidebar.    The trial judge then gave some cautionary
    instructions to the jury and excused the jury for the day.
    In his petition, Wilder does not assert that the exercise
    of peremptory challenges at sidebar violated his constitutional
    rights.   He challenges only those portions of the voir dire that
    took place in the jury room.
    Wilder's    defense   counsel   made   no   objection   to   any
    portion of this individual voir dire procedure.        He testified that
    while he knew that Wilder had a Fifth Amendment right to be present
    at jury selection, he generally advises his criminal defendant
    clients   against    participating   in   individual    jury   selection
    conferences to avoid making potential jurors feel "awkward" by
    having to face the defendant in a small space.         While he did not
    have a specific recollection of having advised Wilder as such, he
    testified that it was his general practice to do so.        On the other
    hand, Wilder testified that he had not been advised of such a right
    and that if he had been advised, he would have invoked the right
    even against his defense counsel's advice. The prosecutor attested
    that defense counsel had in fact informed the trial court that
    Wilder did not wish to be present.           Defense counsel had no
    recollection to the contrary.    The district court found Wilder not
    credible and credited the testimony of his defense counsel and the
    prosecutor.
    - 5 -
    Wilder's defense counsel did not advise Wilder about his
    Sixth Amendment right to have members of the public present at
    jury selection because he "did not know that such a right existed."
    Wilder testified that had he been advised, he would have invoked
    that right as well.
    Upon making these findings, the district court began its
    analysis by noting that Wilder did not raise either the Fifth
    Amendment or the Sixth Amendment claim at trial or on direct
    appeal.   Accordingly,   the   claims   were   procedurally   defaulted
    unless Wilder could show cause for having procedurally defaulted
    as well as actual prejudice resulting from the alleged errors.
    The district court dismissed the Fifth Amendment claim
    on the basis of Wilder's failure to excuse procedural default.      It
    found that Wilder's counsel had made a reasonable strategic choice
    to waive the right, and it did not credit Wilder's claim that he
    was never advised of the right.     As a result, Wilder could not
    show cause sufficient to excuse the procedural default.             The
    district court also concluded that Wilder could not establish
    actual prejudice because his presence would not have necessarily
    resulted in a different jury composition or verdict, particularly
    given the weight of the evidence against him.
    The district court also dismissed the Sixth Amendment
    claim on the basis of procedural default.       It distinguished this
    case from the complete closure in Owens v. United States, 483 F.3d
    - 6 -
    48, 61–66 (1st Cir. 2007), which was decided a year after the
    trial.    Unlike in Owens, the district court found, the first phase
    of jury selection took place in open court and Wilder and his
    family remained in the courtroom throughout the day.                 In fact,
    conducting the individual voir dire in the jury deliberation room
    was   essentially    "the    functional     equivalent"     of   a    sidebar
    conference.      The district court decided that defense counsel's
    failure to object to what was at most a partial closure did not
    justify an assumption of ineffective assistance of counsel that
    would excuse procedural default.            That was because competent
    defense counsel could have chosen not to object as a strategic
    matter.    The district court also declined to find a structural
    error that would justify a presumption of prejudice and found that
    no actual prejudice had been shown.
    Finding the issue of procedural default of the Sixth
    Amendment claim "a closer call," the district court then proceeded
    to also reject the claim on the merits.              Noting that a less
    stringent standard applied to partial closures than to complete
    closures, it found that the partial closure was justified by the
    "substantial interest" in eliciting candid answers from potential
    jurors.    The district court, based on these findings, denied the
    habeas claims.
    On   September   5,   2014,    the   district   court     granted
    Wilder's application for a certificate of appealability from the
    - 7 -
    dismissal of his petition, but only as to the two jury selection
    claims.       This appeal followed.
    II.
    A.       Standard of Review and § 2255 Framework
    A petitioner in federal custody may seek post-conviction
    relief if, inter alia, his sentence "was imposed in violation of
    the Constitution or laws of the United States" or "is otherwise
    subject to collateral attack."               
    28 U.S.C. § 2255
    (a).               The burden
    of proof is on the petitioner.               David v. United States, 
    134 F.3d 470
    , 474 (1st Cir. 1998).               In reviewing a district court's denial
    of   a    §   2255    motion,      we    review       the    district     court's      legal
    determinations de novo and any findings of fact from an evidentiary
    hearing for clear error.             Owens, 483 F.3d at 57.
    Because Wilder is raising his Fifth and Sixth Amendment
    claims for the first time on habeas, he must show both "cause"
    that     excuses      the    procedural      default         and    "actual     prejudice"
    resulting from the alleged error.                     Bousley v. United States, 
    523 U.S. 614
    , 622 (1998); United States v. Frady, 
    456 U.S. 152
    , 167–
    68 (1982).         One way to meet the cause requirement is to show
    constitutionally            ineffective      assistance            of    counsel       under
    Strickland v. Washington, 
    466 U.S. 668
     (1984).                           See Coleman v.
    Thompson,      
    501 U.S. 722
    ,      753–54    (1991).          To   meet    the   actual
    prejudice requirement, Wilder must show that "there is a reasonable
    probability"         that    the   outcome       of    the   trial      would   have   been
    - 8 -
    different but for the alleged error.      Strickler v. Greene, 
    527 U.S. 263
    , 289 (1999).      A structural error is considered per se
    prejudicial.   Owens, 483 F.3d at 64.     A structural error is one
    "affecting the framework within which the trial proceeds, rather
    than simply an error in the trial process itself." Neder v. United
    States, 
    527 U.S. 1
    , 8 (1999) (quoting Arizona v. Fulminante, 
    499 U.S. 279
    , 310 (1991)).      "Such errors 'infect the entire trial
    process,'" 
    id.
     (quoting Brecht v. Abrahamson, 
    507 U.S. 619
    , 630
    (1993)), and "necessarily render a trial fundamentally unfair,"
    
    id.
     (quoting Rose v. Clark, 
    478 U.S. 570
    , 577 (1986)).
    B.   Fifth Amendment Claim
    A criminal defendant has a due process right to be
    present at all stages of his trial for which his absence might
    frustrate the fairness of the proceedings -- a category that
    includes jury empanelment.     United States v. Ramírez-Rivera, 
    800 F.3d 1
    , 39–40 (1st Cir. 2015); see also United States v. Gagnon,
    
    470 U.S. 522
    , 526 (1985) (per curiam).      Wilder argues that this
    right was violated by his exclusion from the individual voir dire
    in the jury room.      However, his claim cannot survive procedural
    default.
    Because Wilder did not raise a contemporaneous objection
    and did not raise the issue on direct appeal, we do not reach the
    merits unless he shows cause for the procedural default, as well
    as actual prejudice.    The district court's factual findings, which
    - 9 -
    were   not    clearly   erroneous,    prevent      Wilder     from   showing
    ineffective    assistance   of   counsel   that   would     meet   the   cause
    requirement.    Defense counsel testified that even though he had no
    specific recollection of this case, it was his general practice to
    advise clients to waive this right because potential jurors may be
    more likely to be candid as to sensitive matters when they are not
    made to feel "awkward" by close proximity to the defendant.               The
    district court credited that testimony, as well as the testimony
    of the prosecutor that defense counsel had advised the trial judge
    that Wilder did not wish to be present.           Meanwhile, the district
    court refused to credit Wilder's testimony denying that defense
    counsel mentioned to him the reason for not attending individual
    voir dire (i.e., to get more candid answers from jurors).
    Defense counsel's waiver of the right on behalf of Wilder
    was part of a "sound trial strategy" and so was not ineffective
    assistance of counsel.      See Strickland, 
    466 U.S. at 689
     (quoting
    Michel v. Louisiana, 
    350 U.S. 91
    , 101 (1955)).              As the Supreme
    Court has recognized, defendants have an interest in eliciting
    candid statements by jurors on their potential biases:
    Voir dire examination serves to protect [the
    right to an impartial trier of fact] by
    exposing possible biases, both known and
    unknown, on the part of potential jurors.
    Demonstrated   bias  in   the  responses   to
    questions on voir dire may result in a juror
    being excused for cause; hints of bias not
    sufficient to warrant challenge for cause may
    assist parties in exercising their peremptory
    - 10 -
    challenges.      The necessity of truthful
    answers by prospective jurors if this process
    is to serve its purpose is obvious.
    McDonough Power Equip., Inc. v. Greenwood, 
    464 U.S. 548
    , 554
    (1984); see also Press-Enterprise Co. v. Superior Court of Cal.,
    
    464 U.S. 501
    , 515 (1984) (Blackmun, J., concurring) (explaining
    that "the defendant has an interest in protecting juror privacy in
    order to encourage honest answers to the voir dire questions").
    Defense counsel did not provide ineffective assistance by agreeing
    to a procedure meant to obtain more truthful answers from potential
    jurors.   See Horton v. Allen, 
    370 F.3d 75
    , 81 (1st Cir. 2004)
    (explaining   that     defense   counsel   engaged    in   "objectively
    reasonable strategy designed to elicit forthcoming responses from
    the jurors about racial bias" by agreeing to individual voir dire
    being conducted in private room).
    Beyond that, Wilder did not meet his burden to show
    actual prejudice.    The district court did not err in finding that
    there was not a reasonable probability that his presence during
    the individual voir dire would have resulted in a different jury
    composition or verdict.      While Wilder argues that his presence
    would have affected the outcome because he would have asked certain
    jurors follow-up questions, requested more definite answers, or
    made   additional    for-cause   challenges,   it   requires   too   much
    speculation to say that the outcome would have been different.
    See United States v. Rivera-Rodríguez, 
    617 F.3d 581
    , 603–04 (1st
    - 11 -
    Cir. 2010) (finding no prejudice from district court's individual,
    ex parte voir dire of fifteen prospective jurors, reasoning that
    finding prejudice would require "too many assumptions" about how
    the jurors would have answered any further questions, whether any
    for-cause    challenges   would    have    been    attempted   and   been
    successful, and whether any replacement jurors would have voted to
    acquit); United States v. Gonzalez-Melendez, 
    594 F.3d 28
    , 34 (1st
    Cir. 2010) (finding no prejudice from procedural error in exercise
    of peremptory challenges, on the basis that "[i]t is not evident
    that the composition of the jury would have differed . . . [and]
    there is no basis in the record for concluding that the alteration
    in jury composition had an injurious influence on the verdict").
    The claim that a different jury composition would have changed the
    outcome is especially speculative here.           As we noted on direct
    appeal, the evidence against Wilder was "more than sufficient."
    Wilder, 
    526 F.3d at 9
    . As a result, Wilder's Fifth Amendment claim
    is procedurally defaulted.
    C.   Sixth Amendment Claim
    As part of the right to a public trial, the Sixth
    Amendment guarantees public jury selection.         Presley v. Georgia,
    
    558 U.S. 209
    , 212–13 (2010) (per curiam) (citing Waller v. Georgia,
    
    467 U.S. 39
    , 46 (1984); Press-Enterprise Co., 
    464 U.S. at 510
    ).
    Wilder argues that this right was violated by the exclusion of his
    family and friends from the closed-door individual voir dire.
    - 12 -
    Wilder, though, cannot overcome his failure to raise this claim at
    trial or on direct appeal.
    The district court correctly decided that Wilder failed
    to meet the cause requirement for overcoming procedural default.
    Wilder argues that because his counsel's failure to object was due
    to ignorance of the law, he received ineffective assistance of
    counsel    that    satisfies     the    cause     requirement.         However,   the
    ineffective       assistance    of     counsel    inquiry   is     concerned      with
    objective reasonableness rather than what counsel did or did not
    know.    See Bucci v. United States, 
    662 F.3d 18
    , 31–32 & n.11 (1st
    Cir. 2011) (finding no ineffective assistance of counsel even when
    counsel did not recognize potential Sixth Amendment violation);
    see     also    Harrington     v.     Richter,    
    562 U.S. 86
    ,    110   (2011)
    ("Strickland      .   .   .   calls    for   an   inquiry   into    the   objective
    reasonableness of counsel's performance, not counsel's subjective
    state of mind.").         Objectively reasonable counsel could have made
    a strategic choice not to object to the selection procedure here,
    for the same reason that the district court found Wilder's counsel
    reasonably advised him to waive his Fifth Amendment right.                        See
    Horton, 
    370 F.3d at
    82–83.            Indeed, it is difficult to think that
    trial counsel, having advised Wilder against coming to the jury
    room under the Fifth Amendment, would have advised the contrary
    for him or his family under the Sixth Amendment.
    - 13 -
    As   to     the    prejudice       requirement      for      overcoming
    procedural default, Wilder cannot show actual prejudice for the
    same reasons that he cannot show actual prejudice on his Fifth
    Amendment claim.       Instead, Wilder relies on a characterization of
    the jury selection process as a complete closure of the courtroom
    and argues that because a complete closure is a structural error,
    he need not show actual prejudice.                 See Owens, 
    483 F.3d 65
    –66.
    The district court, however, correctly found that the procedures
    used were "the functional equivalent" of a sidebar conference.
    The   only   difference        between    these    procedures     and     a   sidebar
    conference was that members of the public could not observe the
    individual questioning from their seats in the spectator gallery
    and attempt to discern facial expressions or body language, and
    the district court did not err in finding no functional difference
    between the two.
    Wilder does not claim that holding portions of voir dire
    at sidebar violates the Sixth Amendment.                 See Richmond Newspapers,
    Inc. v. Virginia, 
    448 U.S. 555
    , 598 n.23 (1980) (Brennan, J.,
    concurring in the judgment) (suggesting that public trial right
    does not extend to sidebar conferences); United States v. Vaghari,
    
    500 F. App'x 139
    , 150 (3d Cir. 2012) (noting that conducting
    portions     of   voir   dire     at     sidebar    is    a   "commonly       accepted
    practice"); United States v. Bansal, 
    663 F.3d 634
    , 661 (3d Cir.
    2011) (describing jury selection procedures like those at issue
    - 14 -
    here and stating that "we are aware of no case holding that such
    procedures    offend   the   Sixth    Amendment").    Indeed,   peremptory
    challenges in this case were exercised at sidebar, and Wilder does
    not challenge that part of the procedure.            As such, we find no
    error in the district court's conclusion that there was no complete
    closure and thus no structural error and no per se prejudice from
    any alleged error.      Wilder cannot overcome procedural default on
    his Sixth Amendment claim.1
    III.
    For the reasons stated, we affirm.
    -Concurring Opinion Follows-
    1 There was also no error under Waller. The full procedures
    outlined in Waller, 
    467 U.S. at 48
    , do not apply where the trial
    court was conducting the functional equivalent of properly
    conducted sidebar portions of voir dire.
    - 15 -
    TORRUELLA,   Circuit Judge, concurring.          For Wilder's
    Sixth Amendment claim, the majority explains that there was no
    error under Waller v. Georgia, 
    467 U.S. 39
     (1984), as these
    proceedings were tantamount to a sidebar.                In this way, the
    majority has effectively written closure out of this case.            But to
    characterize this event as anything other than a closure is to
    ignore the egregious facts at issue:           whereas a sidebar is held in
    open court, where all the public can observe (even if they cannot
    hear) the proceedings, here, the most critical portion of voir
    dire was held behind closed doors.2
    This reasoning is a far cry from Owens v. United States,
    
    483 F.3d 48
     (1st Cir. 2007), where we discussed the central
    importance of the public trial guarantee.            In Owens, the courtroom
    had been "closed to the public for an entire day" of jury selection
    due to space constraints.         
    Id. at 64
    .   We found that the denial of
    a public trial is a structural error, a "basic protection[] whose
    precise effects are unmeasurable, but without which a criminal
    trial       cannot   reliably   function."     
    Id.
       (quoting   Sullivan   v.
    Louisiana, 
    508 U.S. 275
    , 281 (1993)).            As a result, a defendant
    denied a public trial need not show prejudice for procedurally
    defaulting his claim. Id. at 66; see also United States v. Negrón-
    2
    I note that the jury deliberation rooms in the Moakley
    Courthouse are positioned to the rear of the courtrooms and are
    therefore only accessible by a key card.
    - 16 -
    Sostre, 
    790 F.3d 295
    , 305-06 (1st Cir. 2015).           We did not cabin
    the   structural   error   analysis    to   complete   closures,   instead
    speaking broadly of the importance of the Sixth Amendment right to
    a public trial.    Owens, 
    483 F.3d at 65-66
     ("[B]ecause denial of a
    public trial is structural error, it would be impossible for Owens
    to establish actual prejudice, and as such, it must be presumed.").
    Later, in Bucci v. United States, this Court did not reach the
    question     of      whether      "a        partial      public      trial
    violation . . . constitutes structural error."           
    662 F.3d 18
    , 29
    (1st Cir. 2011).    Now, by effectively finding that the procedure
    here did not qualify as a closure, the majority has further
    undercut the Sixth Amendment guarantee to a public trial and
    chipped away at the constitutional protections articulated in
    Owens.
    To be sure, the majority is correct that Wilder must
    show that his counsel's performance was objectively unreasonable
    under Strickland v. Washington, 
    466 U.S. 668
     (1984), to demonstrate
    cause for his procedural default. Owens, 
    483 F.3d at 64
    . Further,
    I agree that Wilder cannot make that showing here, and I therefore
    concur in judgment.3 But, even if this Court were to accept Bucci's
    3I make this determination based on Judge Casper's finding
    that defense counsel had informed Judge O'Toole that Wilder did
    not wish to be present in the jury room.    After an evidentiary
    hearing, Judge Casper credited the prosecutor's testimony that
    Wilder's counsel had done so, explaining that this testimony was
    not inconsistent with defense counsel's recollection that he
    - 17 -
    suggestion that a partial closure is not structural error, Wilder
    has demonstrated that this was a full closure for which there was
    no "overriding interest based on findings that closure is essential
    to preserve higher values and is narrowly tailored to serve that
    interest."   
    Id. at 61-62
     (quoting Press-Enter. Co. v. Superior
    Court of Cal., 
    464 U.S. 501
    , 510 (1984)).     Accordingly, he need
    not show prejudice.   Id. at 66.
    typically advised defendants that jurors would be more candid
    during voir dire if the defendant were not present. Such a factual
    finding is reviewed for clear error, Owens, 
    483 F.3d at 57
    , and
    Judge Casper's determination, made after reviewing affidavits and
    observing a comprehensive evidentiary hearing, is not clearly
    erroneous. Nevertheless, I am troubled that there is no indication
    of Wilder's waiver on the record.     See Brookhart v. Janis, 
    384 U.S. 1
    , 4 (1966) ("There is a presumption against the waiver of
    constitutional rights, and for a waiver to be effective it must be
    clearly established that there was 'an intentional relinquishment
    or abandonment of a known right or privilege.'" (internal citations
    omitted)).
    Further, I dispute the majority's suggestion that defense
    counsel's ignorance of the law is irrelevant to the ineffective
    counsel inquiry for purposes of the Sixth Amendment analysis. See
    Bullock v. Carver, 
    297 F.3d 1036
    , 1049 (10th Cir. 2002) ("An
    attorney's demonstrated ignorance of law directly relevant to a
    decision will eliminate Strickland's presumption that the decision
    was objectively reasonable because it might have been made for
    strategic purposes . . . ."). That said, defense counsel explained
    that he thought that jurors would give more candid responses in
    the defendant's absence and that "it was awkward for jurors to
    face the defendant at such a small, confined space."           This
    strategic decision is not objectively unreasonable and could have
    been made by an attorney fully informed of the law. See Horton v.
    Allen, 
    370 F.3d 75
    , 83-84 (1st Cir. 2004) ("Defense counsel's
    decision to agree to a closed individual voir dire was an
    objectively reasonable strategy designed to elicit forthcoming
    responses from the jurors . . . ."); Bullock, 
    297 F.3d at 1053-54
    (finding that a determination made when an attorney was ignorant
    of the applicable law could have been made by "a fully informed
    attorney" and, thus, "was not objectively unreasonable").
    - 18 -
    Judge O'Toole began jury selection by addressing the
    venire in open court and asking them a series of general yes or no
    questions.      Judge O'Toole stated that he would follow up later
    with private questions for those who answered affirmatively to his
    initial inquiries.     When all the jurors responded that they were
    regular users of the internet, Judge O'Toole explained that he
    would need to speak to everyone in private.        Judge O'Toole and the
    attorneys proceeded to the private jury deliberation room, and
    defense counsel advised Wilder to wait in the empty courtroom with
    his family.      Throughout the morning and for a portion of the
    afternoon session, Judge O'Toole questioned forty-eight jurors,
    one by one, in the private room.            Neither Wilder nor any other
    members of the public observed the private questioning; only Judge
    O'Toole, the lawyers, and the single prospective juror being
    questioned were present.
    The majority explains, "[t]he only difference between
    these procedures and a sidebar conference was that members of the
    public could not observe the individual questioning from their
    seats in the spectator gallery and attempt to discern facial
    expressions or body language."       Wilder v. United States, slip op.
    at 14 (1st Cir. November 20, 2015).         This explanation understates
    the importance of such observations: during a sidebar, even though
    the   jurors'    responses   are   not   audible   to   the   public,   the
    prospective jurors still respond to the judge's queries in an open
    - 19 -
    courtroom, and their physical reactions to any questions are
    visible to observers. The presumed openness of holding proceedings
    in the courtroom is absent when questioning instead takes place
    behind closed doors.   See Press-Enter. Co., 
    464 U.S. at 507-08
    (discussing the historical importance of the "open process" in the
    legal system, which gives "assurance to those not attending trials
    that others were able to observe the proceedings and enhanced
    public confidence"); Owens, 
    483 F.3d at 65
     ("Judges, lawyers,
    witnesses, and jurors will perform their respective functions more
    responsibly in an open court than in secret proceedings." (quoting
    Estes v. Texas, 
    381 U.S. 532
    , 588 (1965))).4
    The Supreme Court recognized that a complete closure may
    be justified where the following four requirements are satisfied:
    the party seeking to close the hearing must
    advance an overriding interest that is likely
    4 The majority does not reach the merits of Wilder's Fifth
    Amendment claim in light of his procedural default. While I agree
    that his Fifth Amendment claim was procedurally defaulted as well,
    I note that any similarities between a sidebar and the procedure
    here are further minimized with respect to Wilder's right to be
    present during trial. During a sidebar, the defendant typically
    is seated in the courtroom, only feet away from where the
    questioning is taking place.    As a result, defense counsel can
    consult his client with only minimal disruptions to the
    questioning. Conversely, should the defendant wish to ask about
    a particular juror based on observations of the juror’s facial
    expressions or gestures, he can easily flag his attorney. When
    questioning takes place in a separate room, the defendant and
    defense   counsel   can  no   longer   engage   in  these   simple
    communications; the questioning must be paused for several minutes
    at a time whenever defense counsel seeks to consult his client,
    and the defendant must ask to be admitted to the private room to
    ask his defense attorney even a simple question.
    - 20 -
    to be prejudiced, the closure must be no
    broader than necessary to protect that
    interest, the trial court must consider
    reasonable   alternatives   to   closing   the
    proceeding, and it must make findings adequate
    to support the closure.
    Waller v. Georgia, 
    467 U.S. 39
    , 48 (1984).                In an affidavit
    submitted for the § 2255 hearing, Judge O'Toole explained that he
    preferred to conduct questioning of personal matters such as child
    or sexual abuse in a private room.          I do not foreclose that such
    concerns may justify a full closure, see Press-Enter. Co., 
    464 U.S. at 511-12
     (noting that questioning regarding "deeply personal
    matters" may justify complete closure), but the record does not
    demonstrate that Judge O'Toole considered reasonable alternatives,
    see, e.g., 
    id. at 512
     (recommending that trial judges "requir[e]
    the prospective juror to make an affirmative request . . . [where]
    disclosure    infringes   a   significant    interest   in     privacy"),   as
    Waller     requires.          Moreover,     Judge     O'Toole's     post-hoc
    justifications should not excuse the closure; such findings must
    be made during jury selection.       Presley v. Georgia, 
    558 U.S. 209
    ,
    213 (2010) ("Waller provided standards for courts to apply before
    excluding the public from any stage of a criminal trial . . . .");
    United States v. Gupta, 
    699 F.3d 682
    , 687 (2d Cir. 2011) (refusing
    to consider a later-filed affidavit "because the court made no
    explicit   findings    before   closing     the   courtroom"   (emphasis    in
    original)); see also Owens, 
    483 F.3d at 62
     ("[A] court must
    - 21 -
    consider   (and     reject)   alternatives    to       closure   before   barring
    public access.").
    The    government     contends    that      the   closure    was    only
    partial, noting that the initial general questions to prospective
    jurors and subsequent peremptory challenges were open to the
    public; that the courtroom remained open throughout the jury
    selection process; and that Wilder and the public could observe
    the venire as they proceeded from the courtroom to the jury room
    and, again, upon their return. But this argument misses the point:
    the public was excluded from the most critical components of the
    jury    selection     process.      During       the     private   questioning,
    prospective   jurors     were    asked   about    their      feelings   on    child
    pornography and how they would respond to graphic images, among
    other   things.      These    queries    directly      concerned   the    jurors'
    abilities to set aside their biases and return a fair verdict,
    inquiries central to the fairness of Wilder's trial.               If the Sixth
    Amendment right to a public trial protects anything, it must
    protect access to the most substantive components of the trial.
    Cf. Waller, 
    467 U.S. at 46
     (explaining that the Sixth Amendment
    right to a public trial extended to a suppression hearing, noting
    that such "hearings often are as important as the trial itself");
    Owens, 
    483 F.3d at 63
     (finding that courtroom closure was not
    trivial as "[j]ury selection is . . . a crucial part of any criminal
    - 22 -
    case").   To hold otherwise is to reduce the Constitution's fair
    trial guarantees to mere formalities.
    - 23 -