
USCA1 Opinion

	




[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]United States Court of AppealsFor the First Circuit                                 No. 98-1605                          UNITED STATES,                            Appellee,                                v.                         PAUL E. KEAVENY,                      Defendant, Appellant.           APPEAL FROM THE UNITED STATES DISTRICT COURT                FOR THE DISTRICT OF NEW HAMPSHIRE       [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]                              Before Stahl, Circuit Judge,Coffin, Senior Circuit Judge,and Lipez, Circuit Judge.     Mark L. Sisti and Twomey & Sisti Law Offices on brief for appellant.     Paul M. Gagnon, United States Attorney, and Peter E. Papps, First Assistant U.S. Attorney, on Motion for Summary Disposition.MARCH 4, 1999                                                                      Per Curiam.    Defendant was convicted by a jury and  sentenced to 96 months' imprisonment for a violation of the  federal firearms statute.  He alleges that the selection of the  jury in his case was closed to the public by a court security  officer in violation of his Sixth Amendment right to a public  trial.  See Press-Enterprise Co. v. Superior Court, 478 U.S. 1,  7 (1986) (holding that the guarantee of an open public trial   includes the voir dire examination of jurors).       Below, defendant's first objection to the alleged closure  of the voir dire came in a post-trial motion to set aside the  jury's verdict.  The motion was denied by the trial judge  without an evidentiary hearing on the ground that the objection  was untimely.  On appeal, defendant argues that the trial judge  erred in (1) failing to grant a defense request for an  evidentiary hearing on the alleged closure, and (2) failing to  grant a new trial.         In opposition, the government has twice moved for a  summary affirmance.  We denied the government's first motion  without prejudice to a renewal of the motion with "appropriate  and relevant record citations for each of the factual  assertions therein."  The renewed motion includes record  citations but the cited exhibits do not provide undisputed  support for the government's factual contentions that the  courtroom was never closed to the public during the jury selection process,  and that the defense allegation was  "concocted."   These are not the sort of matters of which this  court can possibly take judicial notice.       We also do not agree with the government's reading of the  trial judge's decision as incorporating "factual findings" on  the alleged courtroom closing.   The decision confirms that  there was no judicial order excluding the public, and reflects  the court's skepticism of the defendant's claim.  However, the  court did not determine whether members of the public were in  fact excluded nor whether the defendant's bypass of the  objection constituted a knowing waiver.  In the absence of a  knowing waiver, constitutional concerns may be raised even by  a court officer's unauthorized partial exclusion of the public.   See, e.g., United States v. DeLuca, 137 F.3d 24, 29-35 (1st   Cir.) (disapproving of the marshals' unauthorized initiation of  security measures which effected a partial closure, but  upholding a court order ratifying the measures on the second  day of the trial in light of a balancing of the interests),  cert. denied, 119 S. Ct. 174, 268 (1998); see also Martineau v.  Perrin, 601 F.2d 1196 (1st Cir. 1979) (finding that a knowing  and deliberate waiver of the right to a public trial was  sufficient to overcome the constitutional presumption of  prejudice arising from a bailiff's mistaken locking of the  courtroom doors for several days of the trial).              We do not reach defendant's second contention that the  availability of reasonable alternatives to a closure renders  constitutionally impermissible any retrospective ratification  hypothetically explained by space limitations or the like.  A  decision by us on that issue would be purely advisory without  a determination of the predicate facts.       We are reluctant to extend further the proceedings in this  case.  We can understand the skepticism that arises from the  delay in raising this issue.  But not only is a very  substantial period of imprisonment involved but also the basic  respect owed to the Sixth Amendment.  If we err, we prefer to  err in the direction of ascertaining with assuredness that  basic rights have either been waived or observed.  We therefore  vacate the order denying the motion for a new trial and remand  to enable the district court to conduct an evidentiary hearing  or otherwise determine the crucial facts.       The government's motions to dispense with oral argument  and to file a motion memorandum in lieu of a brief are granted.   The district court's order denying defendant's motion for a new  trial is vacated and the case is remanded for further  proceedings consistent with this decision.  See Loc. R. 27.1.
