United States v. Keaveny ( 1999 )

    United States Court of Appeals
    For the First Circuit
                                   No. 98-1605
                            UNITED STATES,
                           PAUL E. KEAVENY,
                        Defendant, Appellant.
         [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
    Stahl, Circuit Judge,
    Coffin, Senior Circuit Judge,
    and Lipez, Circuit Judge.
       Mark L. Sisti and Twomey & Sisti Law Offices on brief for appellant.
       Paul M. Gagnon, United States Attorney, and Peter E. Papps, First Assistant U.S. Attorney, on Motion for Summary Disposition.
    MARCH 4, 1999
        Per Curiam.    Defendant was convicted by a jury and
    sentenced to 96 months' imprisonment for a violation of the
    federal firearms statute.  He alleges that the selection of the
    jury in his case was closed to the public by a court security
    officer in violation of his Sixth Amendment right to a public
    trial.  See Press-Enterprise Co. v. Superior Court, 
    478 U.S. 1
    7 (1986) (holding that the guarantee of an open public trial 
    includes the voir dire examination of jurors).
         Below, defendant's first objection to the alleged closure
    of the voir dire came in a post-trial motion to set aside the
    jury's verdict.  The motion was denied by the trial judge
    without an evidentiary hearing on the ground that the objection
    was untimely.  On appeal, defendant argues that the trial judge
    erred in (1) failing to grant a defense request for an
    evidentiary hearing on the alleged closure, and (2) failing to
    grant a new trial.  
         In opposition, the government has twice moved for a
    summary affirmance.  We denied the government's first motion
    without prejudice to a renewal of the motion with "appropriate
    and relevant record citations for each of the factual
    assertions therein."  The renewed motion includes record
    citations but the cited exhibits do not provide undisputed
    support for the government's factual contentions that the
    courtroom was never closed to the public during the jury
    selection process,  and that the defense allegation was 
    "concocted."   These are not the sort of matters of which this
    court can possibly take judicial notice.
         We also do not agree with the government's reading of the
    trial judge's decision as incorporating "factual findings" on
    the alleged courtroom closing.   The decision confirms that
    there was no judicial order excluding the public, and reflects
    the court's skepticism of the defendant's claim.  However, the
    court did not determine whether members of the public were in
    fact excluded nor whether the defendant's bypass of the
    objection constituted a knowing waiver.  In the absence of a
    knowing waiver, constitutional concerns may be raised even by
    a court officer's unauthorized partial exclusion of the public. 
    See, e.g., United States v. DeLuca, 
    137 F.3d 24
    , 29-35 (1st 
    Cir.) (disapproving of the marshals' unauthorized initiation of
    security measures which effected a partial closure, but
    upholding a court order ratifying the measures on the second
    day of the trial in light of a balancing of the interests),
    cert. denied, 
    119 S. Ct. 174
    , 268 (1998); see also Martineau v.
    601 F.2d 1196
     (1st Cir. 1979) (finding that a knowing
    and deliberate waiver of the right to a public trial was
    sufficient to overcome the constitutional presumption of
    prejudice arising from a bailiff's mistaken locking of the
    courtroom doors for several days of the trial).       
         We do not reach defendant's second contention that the
    availability of reasonable alternatives to a closure renders
    constitutionally impermissible any retrospective ratification
    hypothetically explained by space limitations or the like.  A
    decision by us on that issue would be purely advisory without
    a determination of the predicate facts.
         We are reluctant to extend further the proceedings in this
    case.  We can understand the skepticism that arises from the
    delay in raising this issue.  But not only is a very
    substantial period of imprisonment involved but also the basic
    respect owed to the Sixth Amendment.  If we err, we prefer to
    err in the direction of ascertaining with assuredness that
    basic rights have either been waived or observed.  We therefore
    vacate the order denying the motion for a new trial and remand
    to enable the district court to conduct an evidentiary hearing
    or otherwise determine the crucial facts.
         The government's motions to dispense with oral argument
    and to file a motion memorandum in lieu of a brief are granted. 
    The district court's order denying defendant's motion for a new
    trial is vacated and the case is remanded for further
    proceedings consistent with this decision.  See Loc. R. 27.1.