2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-23-2012

USA v. Omari Patton

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3477

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2012

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2012 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Omari Patton" (2012). 2012 Decisions. Paper 249.

http://digitalcommons.law.villanova.edu/thirdcircuit_2012/249
1

NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 10-3477 and 11-3166

UNITED STATES OF AMERICA

v.

OMARI HOWARD PATTON, a/k/a "O"

Omari Howard Patton,

 Appellant No. 10-3477

v.

GARY LEE, a/k/a GENERAL

 

Gary Lee,

 Appellant No. 11-3166

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D. C. Nos. 2-02-cr-00093-001 and 2-02-cr-00093-007)

District Judge: Honorable Donetta W. Ambrose

Argued on April 26, 2012

Before: GREENAWAY, JR, ROTH and TASHIMA*, Circuit Judges

 

*Honorable A. Wallace Tashima, Senior United States Circuit Judge for the Ninth 

Circuit, sitting by designation.
2

(Opinion filed: October 23, 2012)

Lisa B. Freeland, Esquire

Federal Public Defender

Elisa A. Long, Esquire

Assistant Federal Public Defender

Peter R. Moyers, Esquire (Argued)

Staff Attorney

Office of the Federal Public Defender

1001 Liberty Avenue

1500 Liberty Center

Pittsburgh, PA 15222

Counsel for Appellant Gary Lee

Roger A. Cox, I, Esquire (Argued)

Cox & Cox

350 Greater Butler Mart

Butler, PA 16001-3284

Counsel for Appellant Omari Howard Patton

David J. Hickton, Esquire

United States Attorney

Donovan J. Cocas, Esquire (Argued)

Assistant United States Attorney

Rebecca R. Haywood, Esquire

Office of the United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee
3

O P I N I O N 

ROTH, Circuit Judge:

In this consolidated matter Omari Patton and Gary Lee appeal the District Court’s 

August 11, 2010, orders denying their 28 U.S.C. § 2255 petitions for relief. They 

specifically assert that the trial court infringed upon their Sixth Amendment right to a 

public trial when members of their families and the public were denied entry into the 

courtroom to observe voir dire. For the reasons that follow, we will affirm the District 

Court’s judgments.

I. Background

We write exclusively for the parties, who are familiar with the factual context and 

legal history of this case. Therefore, we will set forth only those facts necessary to our 

analysis.

From 1998 to 2002, Patton and Lee participated in a high-volume cocaine and 

heroin trafficking network. In March 2003, they were indicted on several charges, 

including conspiracy to distribute at least a kilogram of heroin and at least five kilograms 

of cocaine, in violation of 21 U.S.C. § 846. 

On November 8, 2004, at 10:45 a.m., the District Court commenced jury selection, 

and informed Patton’s and Lee’s attorneys that individual voir dire would occur in the 

jury room. Approximately five minutes later, the venire of sixty persons was brought
4

into the courtroom.1 The court seated some of the venire in the jury box and the rest in 

the spectator benches. The courtroom was crowded because the spectator benches 

accommodated only thirty-two people, with some room for additional people in the rear 

area. During the seventy-five minute morning session, the District Judge introduced 

herself, counsel and the defendants, gave general instructions, asked general questions, 

and distributed a questionnaire. Neither Patton’s nor Lee’s counsel objected to anything 

that transpired. 

After the lunch recess, the District Court reconvened outside the presence of the 

jury and reiterated that individual voir dire, including any for cause challenges, would be 

conducted in the jury room. No one objected. After the venire reentered the courtroom, 

the court asked several general questions and then the judge, counsel, Patton, and Lee 

retired to the jury room for individual voir dire. After the individual voir dire, the judge, 

the parties, and their counsel returned to the courtroom. The government utilized two 

peremptory challenges at sidebar, the first twelve individuals were seated as the jury and 

the following two as alternates. The court then swore the jury in and instructed them

before adjourning. 

After a two week trial, Patton and Lee were found guilty; we subsequently 

affirmed their convictions. See United States v. Patton, 292 F. App’x 159 (3d Cir. 2009). 

In January 2010, Patton and Lee filed 28 U.S.C. § 2255 petitions alleging, among other 

 

1

 Patton asserts that no members of the public were in the courtroom because the 

voir dire was composed of ninety-six members. His claim, however, is contradicted by 

the jury office records, which indicate that only sixty potential jurors were called into the 

courtroom for voir dire. 
5

claims, that the trial courtroom was closed to their families and the general public during 

jury selection on November 8, 2004. 

In his habeas petition, Patton averred that upon entering the courthouse on the 

morning of jury selection, he noticed several members of his family in the hallway 

outside the courtroom. According to Patton, once proceedings commenced, but before 

the venire entered, the judge told the court reporter to turn off the recorder and instructed

the U.S. Marshals to close the courtroom doors until voir dire and jury empanelment were

completed.

2 When Patton asked his trial counsel why his family members were not 

present, he was informed that the judge closed the courtroom because it was too small to 

fit all the jurors and the public at the same time. At this time, Patton also noticed a U.S. 

Marshal standing in front of the Courtroom entrance door. Patton claimed that during the 

afternoon session the courtroom remained closed to the public, even when seats became 

available to accommodate potential observers. 

In support of his contention that the courtroom was inaccessible to the public, 

Patton supplied an affidavit from his brother stating that he was turned away from the 

courtroom when he attempted to enter at approximately 10:00 a.m. Patton’s brother did 

not indicate that he had attempted to enter the courtroom at any other time. 

Lee’s petition contains similar averments. After noticing his family near the 

entrance to the courtroom, Lee questioned his trial counsel about their absence. Lee’s 

counsel explained that there was not enough room for everyone but it did not matter 

because the court was only going to be conducting the jury selection and no testimony 

 

2

 The trial transcript reflected that the court held a discussion off the record. 
6

would be heard that day. Lee also supplied affidavits from family members claiming that 

they were denied entry into the courtroom by U.S. Marshals. No family member, 

however, identified the time that they were allegedly denied access or indicated whether 

they attempted to enter more than once. 

The government opposed both petitions. The judge denied the § 2255 petitions 

without conducting an evidentiary hearing. Lee and Patton appealed. Certificates of 

appealability were granted, and we consolidated the two appeals. 

II. Analysis 

The District Court had jurisdiction pursuant to 28 U.S.C. § 2255, and we have 

jurisdiction under 28 U.S.C. §§ 1291 and 2253. We apply a clearly erroneous standard to 

the District Court’s factual findings and exercise plenary review of its legal conclusions. 

United States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008). The court’s decision not to hold 

an evidentiary hearing is reviewed for an abuse of discretion. Id. 

Patton and Lee assert that the District Court abused its discretion when it failed to 

conduct an evidentiary hearing on their claims. Although a district court has discretion 

on whether to hold an evidentiary hearing, § 2255 dictates that a hearing shall occur 

“[u]nless the motion and the files and records of the case conclusively show that the 

prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see Gov’t of the Virgin Islands v. 

Forte, 865 F.2d 59, 62 (3d Cir. 1989). If the petitioner’s allegations raise an issue of 

material fact, a hearing must occur. United States v. Biberfeld, 957 F.2d 98, 102 (3d Cir. 

1992) (citations omitted). Consequently, a court abuses its discretion if it fails to conduct 

an evidentiary hearing when the record is inconclusive on whether the petitioner is 
7

entitled to relief. United States v. Booth, 432 F.3d 542, 546 (3d Cir. 2005) (citations 

omitted).

The Sixth Amendment guarantees the “accused . . . the right to a . . . public trial,” 

U.S. Const. amend. VI, and extends that guarantee to the voir dire of potential jurors. 

Presley v. Georgia, 130 S.Ct. 721, 724 (2010). This right, however, is not absolute. An 

unjustified courtroom closure only infringes a defendant’s Sixth Amendment rights if it 

undermines the values the Supreme Court identified in Waller v. Georgia, 467 U.S. 39 

(1984) as fundamental to the public trial guarantee. United States v. Gupta, 650 F.3d 

863, 867 (2d Cir. 2011), reh’g en banc granted Sept. 15, 2011 (quoting Peterson v. 

Williams, 85 F.3d 39, 43 (2d Cir. 1996)). If the closure did not jeopardize or subvert

these values, which (1) ensure a fair trial, (2) remind the government and judge of their 

responsibility to the accused and importance of their functions, (3) encourage witnesses 

to come forward, and (4) discourage perjury, it did not offend the Sixth Amendment 

because the closure is considered trivial. Id. at 867; United States v. Perry, 479 F.3d 885,

890 (D.C. Cir. 2007) (“A courtroom closing is trivial if it does not implicate the values 

served by the Sixth Amendment as set forth in Waller.”) (internal quotationmarks and 

citations omitted); see United States v. Ivester, 316 F.3d 955, 960 (9th Cir. 2003); Braun 

v. Powell, 227 F.3d 908, 918-20 (7th Cir. 2000). 

In determining whether a closure was trivial, we examine the actions of the court

and their effect on the conduct of the trial. Gupta, 650 F.3d at 867 (citations omitted). 

Although triviality is not determined by a single factor, Morales v. United States, 635 

F.3d 39, 43 n.7 (2d Cir. 2011), a closure was trivial and did not implicate the values 
8

advanced by the public trial guarantee when the trial judge was unaware of the closure 

and it was limited in both scope and duration. See United States v. Al-Smadi, 15 F.3d 

153, 154 (10th Cir. 1994) (concluding that before a defendant can claim a violation of his 

Sixth Amendment rights, “some affirmative act by the trial court meant to exclude 

persons from the courtroom” must occur); Snyder v. Coiner, 510 F.2d 224, 230 (4th Cir. 

1975).

From the record here, we conclude that the alleged courtroom closure was trivial. 

Patton and Lee averred that members of their family and the general public were barred 

from entering the courtroom on November 8, 2004, at the commencement of jury 

selection when the courtroom was full. Other attempts to enter, if any there were, are 

unclear as to time and number. The government took the position that an evidentiary 

hearing was not necessary because the District Judge had determined that: 

[T]he transcript of the voir dire contains absolutely no suggestion 

that the courtroom was closed to the public . . . during the proceeding. The 

transcript is consistent with this Court’s regular practice, which does not 

involve the exclusion of the public. It is also consistent with my own 

recollections of the proceeding. 

Although a hearing is necessary if the appellants’ factual allegations raise an issue 

of material fact, the allegations here are amorphous. The appellants have not presented 

hard facts beyond a denial of admission at the commencement of the proceedings. The 

remaining averments are vague and do not describe times or additional attempts by 

family members to enter the courtroom.

To the extent that members of Patton’s and Lee’s families were denied entry into 

the courtroom because it was filled to capacity, no constitutional violation occurred. See 
9

Gibbons v. Savage, 555 F.3d 112, 116 (2d Cir. 2009) (“[N]o single member of the public 

has a right to gain admittance to a courtroom if there is no available seat. That is, so long 

as the public at-large is admitted to the proceedings, the Sixth Amendment does not 

guarantee access to unlimited numbers”). The appellants’ affidavits speak in definite 

terms of closure only at the outset when the courtroom was crowded. If appellants had 

wished to present further specific facts to the court, they should have been more precise 

in their statements. We conclude, therefore, that the closure was trivial, that appellants’ 

Sixth Amendment rights were not violated, and that the record conclusively shows that 

appellants are not entitled to relief.3 Thus, no hearing was required. 

III. Conclusion

For the foregoing reasons, we will affirm the judgment of the District Court.4

 

3

 In their briefs, Patton and Lee assert that Judge Ambrose was aware that the 

court was closed during the afternoon session because individual voir dire occurred 

behind closed doors in the jury room. This fact is constitutionally irrelevant. Applying 

plain error review, we previously concluded that the Sixth Amendment’s public trial 

guarantee was not violated when individual voir dire occurred in a closed jury room 

adjacent to the courtroom. See United States v. Bansal, 663 F.3d 634, 661 (3d Cir. 2011); 

see also Gibbons v. Savage, 555 F.3d 112, 121 (2d Cir. 2009) (noting in passing that no 

constitutional violation occurred when individual voir dire was conducted in a room 

adjacent to the courtroom); Commonwealth v. Harris, 703 A.2d 441, 446 (Pa. 1997).

4

Patton also asserts that the District Court erred when it denied his motion seeking 

discovery on whether the U.S. Marshals in the Western District of Pennsylvania have a 

“policy” of excluding the public from courtrooms during voir dire. This argument is 

meritless. Patton failed to provide any evidence beyond raw speculation that such a 

policy exists. See Williams v. Beard, 637 F.3d 195, 209 (3d Cir. 2011).