Circuit Says SDNY Jury Selection Is “Trivial”

United States v. Gupta, No. 09-4738-cr (2d Cir. June 17, 2011) (Walker, Parker, Hall, CJJ)

Anyone who has ever selected a jury in the Southern District knows that the typical voir dire there is a perfunctory affair indeed: a few questions about potential bias, a few about household composition, then you exercise your challenges and open after lunch. Perhaps that’s why the panel majority here held that the exclusion of the entire public for an entire SDNY voir dire was covered by the circuit’s “triviality exception” to the Sixth Amendment right to a public trial.

Before jury selection began at Gupta’s immigration fraud trial, the district court closed the courtroom to the public, preventing - at a minimum - Gupta’s girlfriend and brother from attending. The court acted without notice to the parties and, when later called upon to do so, gave two reasons for the closure: the need to “accommodate the large number of jurors in the venire” and to protect the members of the venire from having contact with any members of the public.

The majority had no trouble finding a Sixth Amendment violation - even the government agreed that the court’s reasons for the closure violated the four-factor test of Waller v. Georgia. But the majority also held that the Second Circuit’s so-called “triviality exception” covered this situation.

The court has been using this exception since 2005; as the court described it then, the exception does not look for prejudice or harm to the defendant. Rather, it looks to “whether the actions of the court and the effect that they had on the conduct of the trial deprived the defendant ... of the protections conferred by the Sixth Amendment.” In other words, the court asks whether a closure undermines the values that the Sixth Amendment was intended to protect.

A few years back, in a habeas case, the court used this exception to avoid finding structural error where the defendant’s mother was excluded from a portion, but not all of, the voir dire. See Structural Failure, posted February 6, 2009. The majority here found that there was no difference between a partial voir dire closure and the closure of the entire proceeding. Either way, “nothing of significance happened” in the absence of public scrutiny, and this was true whether the closure was for all of, or only part of, jury selection.

The majority also identified a “broader, institutional reason” for finding the closure “trivial”: here members of the public - the venire itself - were present. And, according to the majority, “members of the venire remain public wittneses during much of the voir dire proceedings.”

Finally, the majority rejected the argument that a 2010 Supreme Court decision, Presley v. Georgia, invalidated the triviality exception. In Presley, the Georgia Supreme Court had found no Sixth Amendment violation where the trial judge excluded the defendant’s mother from the voir dire, because the defendant did not present the trial court with alternatives to the closure. The Supreme Court reversed, holding that trial courts are not excused from Waller's requirement that they consider alternatives merely because the defendant did not suggest any.

As the majority here saw it, since all the Court did in Presley was conclude that the state misapplied Waller “from the onset,” it had “no occasion to consider a ‘trivilaity exception’ to the public trial guarantee.”

The majority’s opinion prompted a stinging rebuke from Judge Parker in dissent. To Judge Parker, there was nothing at all “trivial” about the closure here. He first noted the exception “was never meant to apply, and should not now be applied” to the “entirety of jury selection,” particularly where, as here, the closure was undisclosed to the parties. “A trial judge’s undisclosed exclusion of the public from jury selection, without the knowledge or assent of the accused or the lawyers, seriously undermines the basic fairness of a criminal trial and the appearance of fairness so essential to public confidence in the system.”

Judge Parker then surveyed all of the reported decisions holding that a closure during voir dire was too trivial to warrant reversing a conviction. He concluded that in all of them the closure was (1) for only part of the voir dire, (2) limited to certain spectators, or (3) inadvertent. “Never, until today, has any court held that a judge’s intentional, unjustified, and undisclosed exclusion of the public for the entirety of voir dire can be brushed aside as a merely ‘trivial' affront to the Sixth Amendment.”

Judge Parker also took issue both with the notion that “nothing of significance happened” - since what happened was “the entire process of selecting the jury" - and that the right to a public trial was protected because the prospective jurors were present. “This reason makes no sense” because the panel members had received summonses and were “required to be there and [be] part of the judicial process itself.”

Judge Parker concluded by characterizing the result here as “so self-evidently inconsistent with Supreme Court jurisprudence that I would hope that it becomes the subject of certiorari.”

Gender Contender

United States v. Paris, No. 08-5071-cr (2d Cir. September 17, 2010) (Jacobs, Wesley, Chin, CJJ)

This interesting Batson decision deals with gender-based peremptory challenges, a subject that the circuit has not previously discussed.

Background

For about five years, Dennis Paris ran a multi-state prostitution ring centered in the Hartford, Connecticut, area and recruited teenage girls to work for him. He was charged with criminal sex trafficking and conspiracy offenses, and took the case to trial.

Before jury selection, his attorney notified the district court that Paris would exercise peremptory challenges primarily against women, because he believed that male jurors would be “fairer to Mr. Paris than female jurors will be.” Sure enough, after the challenges for cause were resolved, Paris used his first four peremptory challenges against women. When the government registered a Batson objection, defense counsel conceded that gender was “absolutely” one of the reasons for the strikes.

The court held that gender-based strikes violated Batson, but when counsel provided gender-neutral reasons, the court allowed the strikes to stand. Defense counsel persisted, striking two more women, and asking the court to reconsider its ruling. When the court refused, counsel struck one woman and one man on the second-to-last round, and did the same on the last round. For each, however, he indicated that he would have only struck women if the court had permitted him to consider gender.

At the same time, the government used its first four peremptories to strike men, causing the defense to make its own Batson objection. The government offered to give gender-neutral reasons for its challenges, but the district court held that, particularly since the government had not announced any intention to strike men, the defense had not made out a prima facie case of discrimination.

A jury consisting of eight women and four men convicted Paris of all counts. After being sentenced to thirty years’ imprisonment, Paris appealed.

The Appeal

On appeal, Paris argued both that he should have been able to strike prospective jurors based on their gender and that the district court erred in finding that there was no prima facie Batson violation in the government’s using its first four peremptories against men. The circuit affirmed.

1. Defendant’s Gender-Based Strikes

Neither the Supreme Court nor the Second Circuit has decided a case in which a criminal defendant sought to make gender-based peremptory challenges. Here, Paris argued that gender is different from race, relying on language in an O’Connor concurrence that the only the government should be forbidden from gender-based peremptories. He also pointed out that courts scrutinize gender classifications less closely than racial classifications.

The court disagreed, holding that, under the Supreme Court’s Batson cases, “the Constitution bars a defendant in a criminal case from exercising peremptory challenges based on gender.” First, discriminatory jury selection harms both the parties to the case and the prospective jurors. It also affects the entire community by undermining public confidence in the justice system. These principles are true whether the case is civil or criminal and whether the discriminatory strike is exercised by the government or the defendant.

Moreover, the Supreme Court rejected any distinction between race and gender under Batson when it held that gender-based strikes are unconstitutional. As with race-based strikes, the rationale for gender-based strikes is grounded in the very stereotype that the that “the law condemns.”

Finally, the court noted that three other circuits - and the Supreme Court, albeit in dictum - are already in agreement on this point.

2. The Government’s Strikes

With respect to Paris’ claim that the district court erred in not finding a prima facie case of discrimination against the government - “step one” of a trial court’s Batson inquiry - the court first had to settle on a standard of review. There is a split on the question - The First and Ninth Circuits review the issue for clear error, while the Seventh Circuit treats it as a mixed question and reviews it de novo.

Here, the circuit went its own way, holding that “a district court’s determination whether a party has established a prima facie case under Batson” is a “mixed question of law and fact,” but should be reviewed for abuse of discretion. The trial court is “entitled to some deference, as there clearly is an element of fact-finding to the determination,” but it is “not entirely factual, as the question of whether an inference of discrimination can be drawn ... is often more a question of law than fact.” But the court rejected two-step review - clear error for the factual part and de novo for the legal - out of concern that the “inquiries often are not clearly delineated.” The “better course is to apply an abuse of discretion standard of review.”

Applying that standard here, the court found no abuse of discretion. The mere fact that the government’s first four challenges were against men, even though clearly a pattern, was not enough. At the start of jury selection, more than half of the prospective jurors were men, and Paris used seven of his first eight strikes against women. This “increased the percentage of men in the jury pool and the statistical likelihood that the Government would use its peremptory challenges against men.” Moreover, unlike Paris, the government did not announce in advance that it would strike men. Thus, given the district court’s “broad latitude to consider the totality of the circumstances when determining whether a party has raised an inference of discrimination,” there was no abuse of discretion.

Shipping Bricks

United States v. Bermudez, No. 06-5119-cr (2d Cir. June 17, 2008) (Walker, Calabresi, CJJ, Underhill, DJ)

Richie Bermudez was convicted, after a jury trial, of being a felon in possession of a firearm. On appeal, he challenged an evidentiary ruling, as well as the district court’s jury selection method.

The Evidentiary Ruling

Police officers were watching Bermudez on the street in a high-crime area of the Bronx. The officers were in an unmarked car, and three of them overheard him tell an associate that he had “fresh bricks back at his apartment.” Shortly thereafter, they saw him open the trunk of his car and give a gun to someone named Delgado, at which point both were arrested. Delgado pled guilty to gun possession, was sentenced to seventy months’ imprisonment, and did not appeal.

Bermudez went to trial, and his first jury hung. At the retrial, he introduced Delgado’s testimony from a suppression hearing, where Delgado indicated that Bermudez was not the source of the gun. Nevertheless, he was convicted, and received the same sentence, seventy months, as Delgado.

On appeal, he challenged the admission of the drug-related statements as only marginally probative, and highly prejudicial. A majority of the panel disagreed. Since the entire defense theory was that the police were lying, the majority concluded that it was “important” for the government to establish why the police had focused on Bermudez that night. “Without a reasonable explanation for singling out Bermudez, the officers’ testimony as to everything that followed could have been suspect.” In addition, the district court gave two “detailed limiting instructions” that the “jury could reasonably be expected to comply with.”

In an extremely nuanced and thoughtful opinion (of the sort not typically seen in this circuit when it comes to Rule 404(b)), Judge Underhill dissented. He viewed the drug statements as improper “bolstering evidence” and noted that the district court did not rely on credibility in admitting them. “Simply offering an alternative version of events (or here, merely anticipating that the defense will do so) does not amount to a defense attack on the credibility of government witnesses, and certainly does not justify the admission of bolstering evidence during the government’s direct examination.”

Bermudez’ drug dealing was not “relevant to any of the substantive issues in this felon-in-possession gun case.” Here, although the majority make this clear, the government had called Bermudez a drug dealer in its opening, and had all three officers to testify about the drug statement before their credibility had been attacked by the defense. To this judge at least, permitting the government to preemptively bolster its witnesses’ credibility before it had even been challenged was both improper and unprecedented.

Not only did Judge Underhill view the evidence as irrelevant, he found that its probative value was surpassed by its prejudicial potential. “In my view, the officers’ motivation for watching Bermudez was entirely irrelevant, unless and until Bermudez attacked their credibility on the ground that they were not motivated to watch him,” which he never did.

Jury Selection

Bermudez also challenged the so-called “blind strike” method of jury selection, under which the parties simultaneously exercise their peremptory challenges, and thus do not know which jurors the other has struck. Here, since during one round, he and the government struck the same juror, he argued that he was deprived of the full use of his allotted number of challenges.

The circuit disagreed. The Supreme Court approved of this method in 1894, and there has been no intervening change in the law.

Permanent Waive

United States v. Quinones, No. 04-5554 (2d Cir. December 28, 2007) (Winter, Cabranes, Raggi, CJJ)

This case has lengthy discussions of two important issues. It turns out that the one that has received the less press is actually the more interesting of the two, so we’ll begin with that.

1. Sentencing Error Waived

Facts: In this capital case, the defendants initially faced three counts that exposed them to the death penalty. Two related to murder in aid of racketeering under 18 U.S.C. § 1959; for these, a life sentence was mandatory if death was not imposed. The defendants were acquitted of these counts.

They were convicted only of murder in relation to a continuing drug enterprise (“CCE”) under 21 U.S.C. § 848(e). At the time, that section provided for a mandatory minimum sentence of 20 years’ imprisonment and a maximum of life if death was not imposed. Nevertheless, the defendants repeatedly asserted, both before the jury and to the district court, that life without parole was the only legal option if they were acquitted of death. While this was true under the then-mandatory Guidelines, it was not true under the statute. On appeal, they asserted that they should be resentenced due to the district court’s mistaken belief that a life sentence was mandatory.

Holding: The circuit disagreed. Although it recognized that the district court erroneously believed that life sentences were mandated, and not just by the Guidelines, the court concluded that the judge had not “misread or misunderstood” the statute. Rather, it found that “a more likely explanation” was that “the defendants agreed to life imprisonment as the only possible non-capital sentence to strengthen their argument to the jury, at the penalty phase of this case, that justice did not demand their deaths.”

The circuit noted that, even after the defendants were acquitted of the racketeering counts for which life truly was mandatory, they continued to “insist” that the jury be charged that the only two sentencing possibilities on the CCE count were life imprisonment or death, and asked the court to emphasize this in its instructions, which it did. Moreover, the defendants then repeatedly argued this to the jury. Characterizing this as a “tactical” decision, the court held that the appellate claim that the district court erred in believing that a life sentence was required was waived - “truly” waived, such that not even plain error review would apply - and not merely forfeited. “A finding of true waiver applies with even more force when, as in this case, defendants not only failed to object to what they now describe as error, but they actively solicited it, in order to procure a perceived sentencing benefit.”

The court concluded that it was “no doubt that it was a tactical decision” by the defense attorneys to agree that a life sentence was the only alternative to death, and not a mistake, citing numerous treatises that have observed that capital juries are less likely to impose the death penalty if they believe that the defendants will not be released from prison. The court also noted that this tactical decision was a “reasonable” one, likening it to accepting a Rule 11(c)(1)(C) plea.

Comment: This is a tough case, because it really does seem that both the district court and the defense attorneys misread the CCE statute. It is, after all, a confusing provision that does mandate a life sentence in some circumstances, although, oddly enough, not in murder cases. The circuit is clearly off the mark in finding that the district judge did not misread the statute, since the judge repeatedly said that the section mandates a life sentence, and never said that it reached this conclusion based on the defendants’ offer to accept a life sentence. Nevertheless, the court is on firmer ground in finding that the defendants waived their appellate claim by inviting the error in the district court, since they clearly did so.

By the way, it is no accident that the court goes to such lengths to characterize the actions of defense counsel as “tactical” and “reasonable.” These findings, unnecessary to the disposition of this appeal, are an obvious effort to preempt any future claim that the defense attorneys were ineffective. Although the court never mentions Strickland, it is clearly the subtext of this portion of the decision.

2. Jury Selection

This case also has an interesting discussion of jury selection issues in capital cases. At trial, the district court dismissed a few jurors for cause based solely on their responses on written questionnaires that indicated, in essence, that they would never impose the death penalty in any case. The appellate court strongly urged district courts, particularly in capital cases, to question prospective jurors before dismissing them for cause, but refused to characterize this as a constitutional mandate. It also noted that any error here was rendered harmless by the jury’s refusal to impose the death penalty. The court rejected, at least on these facts, the notion that this type of error could produce a jury that was more likely to convict at the guilt phase. Here, the jury acquitted the defendants of two of the three capital counts.