ORDER RE: MOTION FOR RELEASE PENDING APPEAL
Defendant Sundeep Dharni previously filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. In a reasoned decision, Judge Garcia*fn1 denied defendant's § 2255 motion and defendant appealed. Defendant now seeks release on bail pending his appeal.
Federal Rule of Appellate Procedure 23 "governs the issue of the release or detention of a prisoner, state or federal, who is collaterally attacking his or her criminal conviction." United States v. Mett, 41 F.3d 1281, 1282 (9th Cir. 1994). Rule 23(b) provides, "[w]hile a decision not to release a prisoner is under review, the court or judge rendering the decision . . . may order that the prisoner be . . . released on personal recognizance, with or without surety." Fed. R. App. Proc. 23(b)(3). "In the habeas context, [the Ninth Circuit] has reserved bail for 'extraordinary cases involving special circumstances or a high probability of success.'" Mett, 41 F.3d at 1282 (quoting Land v. Deeds, 878 F.2d 318, 318 (9th Cir. 1989)).
Defendant contends he is entitled to release pending his appeal of the order denying his § 2255 motion because he has a high probability of prevailing on his claim that the closure of the courtroom during jury selection violated his Sixth Amendment right to a public trial and that his trial counsel's failure to object to the closure and his appellate counsel's failure to raise the alleged violation on direct appeal violated his Sixth Amendment right to effective assistance of counsel.
In Presley v. Georgia, 558 U.S. 209 (2010), the Supreme Court held that the Sixth Amendment right to a public trial extends to jury voir dire. Presley, 558 U.S. 209, 130 S.Ct. 721, 723-24. In denying defendant's § 2255 motion, Judge Garcia concluded that defendant could not rely on Presley because that case was decided three years after defendant's trial and the Court did not indicate that the decision should apply retroactively on collateral review. (See Mar. 31, 2011 Order at 3-4 (Docket No. 150).)
While other lower district courts have adopted a view similar to that expressed by Judge Garcia in his Order, (see id. at 4:4-9 (citing four district court decisions from outside the Ninth Circuit)), the Ninth Circuit has applied the holding from Presley to a trial that occurred over a decade before Presley. In United States v. Withers, 638 F.3d 1055 (9th Cir. 2011), the defendant brought a § 2255 motion based on the trial court's closure of the courtroom during voir dire for his 1998 trial. Citing Presley, the Ninth Circuit stated, "The Sixth Amendment guarantees a defendant the right to a public trial, which includes a right to have the public present during voir dire." Withers, 638 F.3d at 1063. It therefore seems unlikely that defendant's § 2255 motion will fail simply because Presley was decided three years after his trial.*fn2
Nonetheless, the exclusion of the public during voir dire violates the
Sixth Amendment only if the district court "totally closes the
courtroom to the public, for a non-trivial duration, without first
complying with the four requirements established by the Supreme
Court's Press--Enterprise and Waller decisions." Id.*fn3
"'To determine whether a closure was too trivial to implicate the Sixth Amendment guarantee, [the court] must
determine whether the closure involved the values that the right to a
public trial serves.'" United States v. Rivera, 682
F.3d 1223, 1229 (9th Cir. 2012) (quoting United States v. Ivester,
316 F.3d 955, 960 (9th Cir. 2003)). "Those values . . . include:
ensuring fair proceedings; reminding the prosecutor and judge of their
grave responsibilities; discouraging perjury; and encouraging
witnesses to come forward." Id. "The third and fourth values . . . are
not implicated by voir dire because no witnesses testified." Gibbons
v. Savage, 555 F.3d 112, 121 (2d Cir. 2009).
Judge Garcia relied on Gibbons in concluding that the closure of the courtroom during voir dire in this case was trivial. In Gibbons, jury selection lasted "several days" and the district judge closed the courtroom only for the first afternoon. Gibbons, 555 F.3d at 114. After that afternoon, the courtroom was reopened because the dismissal of potential jurors had provided for additional seating. Id. at 114-15. In concluding that the closure for a single afternoon of a several day voir dire was trivial, the Second Circuit explained that no prospective jurors were excused without the consent of both parties, no peremptory challenges or objections were made, and the defendant's mother would not have been able to watch "a significant portion of what occurred during that afternoon session" because the judge had conducted private interviews of some jurors. Id. at 121.
Most recently, in United States v. Santos, Nos. 09--10332, 09--10334, 09--10335, 09--10374, 2012 WL 6599339 (9th Cir. Dec. 18, 2012), the Ninth Circuit concluded that the defendants could not prevail in establishing a Sixth Amendment violation because they failed to make "the requisite showing of an affirmative courtroom closure for a non-trivial duration." Santos, 2012 WL 6599339, at *2. The court emphasized that the "closure occurred not because of an affirmative court order, but because the large pool of prospective jurors occupied every available seat in the small courtroom, at least during the first day of voir dire." Id. The court also found it significant that the closure was limited to jury selection, "which occurred over the afternoon of one day and the morning of the next." Id.
Based on the circumstances in Santos, the Ninth Circuit found that "nothing in the record suggest[ed] that closure led to any unfairness in the jury selection or deviation from established procedures, affected the public interest in the administration of justice, or somehow made the jurors less attuned to their sense of responsibility or the importance of their function." Id. at *1. The court concluded that the defendants had "not met their burden of demonstrating that the closure was non-trivial." Id. at *2. Judge Smith, however, disagreed with the majority, stating, "A courtroom closure that lasts for the entire jury selection process cannot be deemed trivial." Id. at *3 (Smith, J., concurring in part and dissenting in part).
Here, Judge Garcia had convened "a larger than usual" panel of prospective jurors for defendant's trial because the trial was scheduled to commence before and continue beyond the July 4 holiday. (Mar. 31, 2011 Order at 2:15-17.) In asking members of the public to exit the courtroom because the jury panel necessitated use of the available seating, Judge Garcia explained the reason for the closure and indicated that the public could re-enter once seats became available:
"As soon as the jury comes up, I'm going to ask all family members to go out in the hall. We need every seat in the audience section of the courtroom as we called in extra jurors because of the vacation problem. So that during jury selection, all of the family and friends of the defendant and any other spectators that are out there will wait out in the hall during jury selection until seats open up."
(Id. at 2:18-22 (quoting Reporters Transcript Vol. 1 at 18).) Jury selection was completed in less than one-and-a-half hours and neither party made any objections during the process, but both parties exercised peremptory challenges. (Id. at 5:1-11.) While the closure was initiated by the judge, it was limited to the duration of a relatively quick voir dire in which there were "no significant developments." (Id. at 5:10-11.)
In this matter, a highly respected and experienced trial judge concluded that "[j]ury selection in the instant case consisted of routine jury administrative matters that had no bearing on defendant's ultimate guilt or innocence" and was "too trivial to warrant relief." (Id. at 5:16-18, 6:2-4.) Although defendant's present attorney makes a forceful argument to the contrary, this court cannot find that defendant's argument has a "high probability of success" on appeal. See Mett, 41 F.3d at 1282. In the final analysis, whether defendant is entitled to the relief sought is a fact specific question to which neither Gibbons nor Santos provides a definitive answer. At best, defendant's attorney has demonstrated that reasonable minds can differ on the question.
Because this court cannot conclude that defendant has demonstrated a high probability of establishing a Sixth Amendment violation on appeal, IT IS HEREBY ORDERED that defendant's motion for release on bail pending appeal ...