2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

10-23-2012 

# U S A v . O m a r i P a tt on

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 10-3477

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2012

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2012 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w . v i l l a no v a . e du

. R e c omme nde d C it a t ion

" U SA v . Om a r i P a tt on " (2012). 2012 D e cisio n s . P a pe r 249. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2012/2491 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT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 GENER AL

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

- 0 07) 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 t he 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 Pat ton 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 App ellee3 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 , order s 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 judgment s . 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 hig h

- 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 brought4

into the cour troom. 1 T he court seated some of the venire in the jury box and the rest in the spectator benches . T he 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

- f ive 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 n or 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 ree ntered the courtroom, the court asked several general questions and then the j udge, counsel, Patton, and Lee retired to the jury room for individual voir dire. After the individual voir dire, the j udge, the parties, and their counsel returned to the court room. T he government utilized two peremptory challenges at sidebar, the first twelve individuals were seated as the jury and the following two as alternates. The c ourt then swore the jury in and instruct ed t he m before adjourning

. After a two week trial, Patton and Lee were found guilty ; w e 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 assert s that no members of the public were in the courtroom because the voir dire was composed of ninety

- six members. H is claim , however, is contradicted by the jury office records, which in dicate that only sixty potential jurors were called into the courtroom for voir dire.5

claims, that the tr ial 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 o n the morning of jury selection , he noticed several members of his fami ly in the h allway outside the courtroom. According to Patton, once proceedings commenced, but before the venire entered, the j u dge told the court reporter to turn off the recorder and instruct ed the U.S. Marshals to close the courtroom doors until voir di re and jury empanelment w ere complete d

. 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 t his 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 observer s. 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 d id 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 w as 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 d enied access or indicated whether they attempted to enter more than once

. The government opposed both petitions. The j udge denied the § 2255 petitions without conducting an evidentiary hearing

. Lee and Patton appealed. Certificate s of appeal ability were granted, and we consolidate d the two appeals.
II. Analysis The District Court had jurisdict ion pursuant to 28 U.S. C. § 2255, and w e have jurisdiction under 28 U.S.C. §§ 1291 and 2253

. We apply a clearly erro neous standard to the District C ourt’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 n o relief.” 28 U.S.C. § 22 55(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)

. Cons equently , a court abuses its discretion if it fails to conduct an evidentiary hearing when the record is inconclusive on whether the petitioner is7

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. V I , and extends that guarantee to the voir dire of potential jurors

. Presley v. Georgia , 130 S.Ct. 7 2 1, 724 (2010). This right, however, is not absolute. A n

u njustified courtroom closure only infringe s a defendant’s Six th 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, 201 1 (quoting Peterson v. Williams , 85 F.3d 39, 43 (2 d Cir. 1996)). If the closure did not jeopardize or subvert these values , which (1) ensure a fair trial , (2) remind the government and judge o f 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. I d

. at 867 ; United States v. Per ry , 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 quotation mark s and citations omitted) ; see United States v. Ivester , 316 F.3d 955, 960 (9th Cir. 20 03 ) ; 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). Alt hough triviality is not determined by a single factor, Morales v. United States , 635 F.3d 39, 4 3 n. 7 (2 d Cir. 2011), a closure was trivial and did not implicate the values8

advanced by the public trial guarantee when the trial judge was unaware of the closu re 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 e xclude
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 publ ic 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 evide ntiary 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 wit h 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 he a ring 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 membe rs 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

. See9

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, the refore, 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 reason s, 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 c ourt 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 tria l guarantee was not violated when individual voir dire occurred in a closed jury room adjacent to the courtroom. See United States v. Bansal , 6 63 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 seek ing 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 suc h a policy exists. See Williams v. Beard , 637 F.3d 195, 209 (3d Cir. 2011).