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 immigration fraud and sentencing him principally to 51 months' imprisonment.
The opinion of the court was delivered by: Hall, Circuit Judge:
Reheard: December 14, 2011*fn1 As Amended: November 8, 2012)
Before: WALKER, B.D. PARKER, HALL, Circuit Judges.
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.
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, 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.
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 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 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 ...