     07-3306-pr
     Gibbons v. Savage


 1                                      UNITED STATES COURT OF APPEALS
 2                                          FOR THE SECOND CIRCUIT


 3                                                       August Term, 2008

 4   (Argued: October 16, 2008                                                             Decided: January 28, 2009)


 5                                                                          Docket No. 07-3306-pr


 6   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

 7   ROBERT GIBBONS,

 8             Petitioner-Appellant,

 9   v.

10   RICHARD A. SAVAGE, Superintendent Gowanda Correctional Facility

11             Respondent-Appellee.
12
13   -------------------------------X
14
15
16

17   Before: McLAUGHLIN, LEVAL, POOLER, Circuit Judges.

18           Petitioner appeals from the judgment of the United States District Court for the Southern
19   District of New York (Brieant, J.), denying his petition for habeas corpus. The state trial court’s
20   decision to exclude the public from the jury selection process for one afternoon was not justified in
21   view of Waller v. Georgia, 467 U.S. 39 (1984). Nevertheless, the temporary closure of the
22   courtroom was too brief and trivial to justify overturning Petitioner’s conviction where the only
23   rulings of the court during the courtroom closure — the dismissal of certain jurors by reason of
24   inability to serve — were done with the consent of both parties, and the court’s introductory remarks
25   to jurors were without objection. While the harmless error standard is not applicable to denial of the

                                                                        1
 1   constitutional right of public trial, a violation which is brief and trivial does not necessarily require
 2   a mistrial. Affirmed.

 3                                                   ROBERT N. ISSEKS, Middletown, New York (Alex
 4                                                   Smith, on the brief), for Appellant.

 5                                                   ANDREW R. KASS, Assistant District Attorney,
 6                                                   Orange County, Goshen, New York, (Francis D.
 7                                                   Phillips, II, District Attorney of Orange County, on
 8                                                   the brief), for Appellee.



 9   LEVAL, Circuit Judge:

10           Petitioner-Appellant Robert Gibbons appeals from a judgement of the United States

11   District Court for the Southern District of New York (Brieant, J.) denying his petition for habeas

12   corpus pursuant to 28 U.S.C. § 2254, seeking to overturn his New York State conviction for rape,

13   incest, and endangering the welfare of a child. Gibbons claims that he is entitled to retrial

14   because (1) he was deprived of his right to a public trial guaranteed by the Sixth Amendment, (2)

15   he was denied a fair trial due to juror misconduct, (3) the receipt in evidence of tape-recorded

16   conversations between Gibbons and his daughter violated his due process rights, and (4) he was

17   denied effective assistance of counsel. The last-mentioned claims have no colorable merit; we

18   discuss them only briefly. On the other hand, his claim of denial of the right to a public trial

19   raises serious questions which call for some discussion. Although the trial court’s decision to

20   exclude the only spectator (the defendant’s mother) on the first afternoon of jury selection was

21   unjustified and the rule of harmless error is not applicable to denial of the right to a public trial,

22   we nonetheless conclude that the incident was too trivial to require overturning the conviction.




                                                        2
 1                                           BACKGROUND

 2          Petitioner Robert Gibbons was convicted after a jury trial of Rape in the Third Degree,

 3   Incest, and Endangering the Welfare of a Child. Each of these offenses was based on his having

 4   had sexual relations, including intercourse, with his fifteen-year-old daughter. He was sentenced

 5   on October 6, 2004 to 2 to 4 years imprisonment on the rape and incest convictions, to run

 6   concurrently with a 1-year sentence of imprisonment on the endangering charge.

 7          The trial evidence showed the following: After Gibbons and his wife divorced in 1992,

 8   Gibbons retained visitation rights to his son and daughter who continued to live with their

 9   mother. On October 2, 1999, Gibbons picked up his daughter from a school event, brought her

10   to his home, and had sexual relations with her, which included intercourse. Gibbons drove his

11   daughter home and implored her not to tell her mother.

12          Three years later, the daughter told her mother. The mother reported this incident to the

13   police who began an investigation. As part of the investigation, the police placed a recorder on

14   the daughter’s telephone and had her contact Gibbons. The tape recorder did not function on the

15   first call. The daughter called again, and this call was captured on the recorder, with the

16   exception of the beginning of the conversation.

17          Two days later, Gibbons agreed to answer questions about the incident at the police

18   barracks. After Miranda warnings, the officers asked Gibbons about the incident. Gibbons

19   responded by saying “yeah, I fucked my daughter.” (It was disputed at trial whether the response

20   was intended as an admission that he had done so or was spoken sarcastically to ridicule and

21   deny the charges). The officers continued to ask Gibbons questions and eventually arrested him



                                                       3
 1   for the rape of his daughter. Soon thereafter, he said, “It was mutual, I didn’t rape her. Did she

 2   say this was mutual. I didn’t rape her.” Gibbons was then indicted on the charges described

 3   above.

 4   I. Voir Dire and Public Trial

 5            Jury selection was conducted over several days, beginning in the afternoon of the first

 6   day. Before allowing prospective jurors to enter the courtroom, the trial judge closed the

 7   courtroom to all spectators, and expelled the only spectator, who was Gibbons’s mother. The

 8   judge said, “[A]lthough this is an open courtroom, I cannot have spectators during jury

 9   selection.” As explanation, the judge added that because of the small size of the courtroom, the

10   large number of prospective jurors, and the court’s desire not to have jurors in close proximity to

11   spectators, closure to spectators was required. Defense counsel objected, telling the court that the

12   lone spectator was Gibbons’s mother, and arguing that Gibbons was entitled to a public

13   proceeding. In response, the judge said that he was not “going to taint the entire jury pool,”

14   which would happen if he “put a relative right next to a potential juror.” Defense counsel

15   suggested that Gibbons’s mother could sit in the well of the courtroom directly behind counsel.

16   The judge rejected that solution, stating that “[n]o one goes in the well unless it’s their attorneys

17   or part of the defense team.” The judge expressed concern that such an arrangement would cause

18   a security problem and would make the jurors wonder who was sitting there. It was simply

19   “going to cause more problems.” The court adhered to its ruling, and refused to allow spectators

20   in the courtroom for that afternoon’s jury selection proceedings.




                                                       4
 1          During that afternoon session of the jury selection proceedings, the judge gave general

 2   instructions to the prospective jurors and asked if anyone had family emergencies that would

 3   prevent them from serving. Together with the prosecutor, defense counsel, Gibbons, and a court

 4   reporter, the judge went into an adjacent room to talk privately with each prospective juror who

 5   claimed inability to serve. Several jurors were excused with the consent of both parties. After

 6   the conclusion of those private hearings with individual jurors, the judge addressed all the

 7   prospective jurors in the courtroom, reading the indictment and explaining the duties of jurors.

 8   The judge also questioned individual jurors as to whether they could be impartial. Upon the

 9   conclusion of this questioning, several prospective jurors were excused, in each case with the

10   consent of both parties.

11          The next day, as the dismissal of some of the jurors on the first day had left some vacant

12   seats in the spectator section of the courtroom, the judge opened the courtroom to the public,

13   allowing Gibbons’s mother to attend the remainder of the proceedings, during which Gibbons

14   was tried and convicted.

15   II. Appeal and Collateral Attack

16          On direct appeal to the New York Supreme Court, Appellate Division after his

17   conviction, Gibbons asserted, among other claims, a violation of his Sixth Amendment right to a

18   public trial. The court affirmed his conviction, reasoning that there was insufficient seating for

19   all prospective jurors, and therefore the trial court’s decision to exclude the public temporarily

20   was not a violation of Gibbons’s right to public trial. People v. Gibbons, 795 N.Y.S.2d 700, 701

21   (App. Div. 2d Dep’t 2005). Leave to appeal was denied by the New York Court of Appeals.

22   People v. Gibbons, 5 N.Y.3d 828 (2005) (Rosenblatt, J.).


                                                       5
 1          After his unsuccessful attempt to overturn his conviction in the New York trial court

 2   pursuant to C.P.L. 440.10 on the ground of ineffective assistance of counsel, Gibbons filed his

 3   petition for habeas corpus pursuant to 28 U.S.C. § 2254 in the district court. Judge Brieant

 4   denied the petition, but issued a Certificate of Appealability (COA), because, in his view,

 5   reasonable minds could disagree “with respect to the total effect of all these issues on the

 6   conviction.” Gibbons v. Savage, No. 7:07 Civ 03186 (S.D.N.Y. July 20, 2007).

 7                                             DISCUSSION

 8          This Court reviews a district court’s decision to grant a habeas petition de novo.

 9   Hemstreet v. Greiner, 491 F.3d 84, 89 (2d Cir. 2007). A federal court cannot grant habeas

10   corpus overturning a state conviction with respect to a claim adjudicated on the merits in a state

11   court unless that adjudication “resulted in a decision that was contrary to, or involved an

12   unreasonable application of, clearly established Federal law, as determined by the Supreme Court

13   of the United States.” 28 U.S.C. § 2254(d)(1). In addition, the writ may be granted in certain

14   limited circumstances not pertinent to this claim by reason of erroneous fact finding. Id. §

15   2254(d)(2).

16          On appeal, Gibbons contends that the rulings of the state trial and appeals courts on his

17   claim of denial of a public trial represent an unreasonable application of clearly established

18   federal law determined by the Supreme Court.

19   I. Public Trial Right

20          The right to a public trial is guaranteed by the Sixth Amendment and incorporated against

21   the States by the Fourteenth Amendment. See Waller v. Georgia, 467 U.S. 39 (1984). The

22   defendant has a right to an open, public trial, including during the jury selection. See Press-


                                                      6
 1   Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 509-10 (1984) (Press-Enterprise I)

 2   (holding that the press and public have a First Amendment right to attend voir dire); Waller, 467

 3   U.S. at 46 (explaining that the Sixth Amendment right to a public trial is at least as broad as the

 4   First Amendment right to a public trial recognized in Press-Enterprise I). As the Supreme Court

 5   recognized in Press-Enterprise I, the proceedings for the selection of the jury are an important

 6   part of the trial process. 464 U.S. at 505; see also United States v. Sayeedi, 903 F.2d 88, 91 (2d

 7   Cir. 1990) (“Jury selection is a ‘critical stage of the criminal proceeding’” (quoting Gomez v.

 8   United States, 490 U.S. 858, 873 (1989))).

 9          The defendant’s right to public trial is not absolute, but there is a “presumption of

10   openness.” Press-Enterprise I, 464 U.S. at 510. To overcome this presumption and justify

11   closing the courtroom to the public during a criminal proceeding, the Supreme Court has outlined

12   four elements that must be satisfied:

13          [(1)] the party seeking to close the [proceedings] must advance an overriding
14          interest that is likely to be prejudiced,
15          [(2)] the closure must be no broader than necessary to protect that interest,
16          [(3)] the trial court must consider reasonable alternatives to closing the
17          proceeding, and
18          [(4) the trial court] must make findings adequate to support the closure.

19   Waller, 467 U.S. at 48.

20          Gibbons argues that the People must satisfy even a higher burden than Waller imposes

21   because of the importance our Circuit and the Supreme Court have placed on having family

22   members and friends attend trial. It is true that, in dictum, the Supreme Court has noted a

23   “special concern for assuring the attendance of family members of the accused” at the trial

24   proceedings. Vidal v. Williams, 31 F.3d 67, 69 (2d Cir. 1994) (citing In re Oliver, 333 U.S. 257,

25   271-72 & n.29 (1948)). Previous opinions of this court have relied on this Supreme Court

                                                      7
 1   dictum to note that the exclusion of family members “is not a step to be taken lightly.” Guzman

 2   v. Scully, 80 F.3d 772, 776 (2d Cir. 1996); see also Carson v. Fischer, 421 F.3d 83, 91 (2d Cir.

 3   2005) (explaining that the “Court takes very seriously” the right to have family present at trial).

 4   However, the Supreme Court’s decision in Carey v. Musladin, 549 U.S. 70 (2006), interpreting §

 5   2254(d)(4)’s phrase “as determined by the Supreme Court,” bars reliance on Supreme Court

 6   dictum, much less on circuit court precedents that extend Supreme Court holdings, as a basis for

 7   overturning state convictions under § 2254. Rodriguez v. Miller, 537 F.3d 102, 109 (2d Cir.

 8   2008). In Rodriguez, we held that the precedent to apply in deciding whether a courtroom

 9   closure violated the defendant’s right to a public trial is the Supreme Court’s decision in Waller.

10   Id. As neither Waller nor any other Supreme Court holding acknowledged the appropriateness of

11   a different standard for the exclusion of family members than for the exclusion of the general

12   public, an inferior court may not justify a grant of habeas corpus relief under § 2254 by reference

13   to such a heightened standard. Id.

14          A. The Proceeding Was Closed Within the Meaning of the Sixth Amendment

15          The People argue that there was no “closure” within the meaning of the Sixth

16   Amendment because limiting access to a courtroom is within the trial court’s discretion. The

17   People cite to several cases, including United States v. Shryock, 342 F.3d 948 (9th Cir. 2003) and

18   People v. Colon, 71 N.Y.2d 410 (1988), arguing that they support the proposition that a “closure”

19   does not occur when the trial court places limitations on how many people can enter the

20   courtroom. The cases cited by the People stand for the limited proposition that no single member

21   of the public has a right to gain admittance to a courtroom if there is no available seat. That is,

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


                                                       8
 1   guarantee access to unlimited numbers; the fact that a particular individual is not admitted does

 2   not constitute a violation of the Constitution.

 3          The thrust of these cases is not applicable here. The public was categorically excluded.

 4   (The trial judge stated, “I cannot have spectators during jury selection.”) This is not a case where

 5   some members were allowed to attend, but there was not sufficient room for others. We

 6   conclude that, when the trial judge ordered the courtroom closed to all spectators, the courtroom

 7   was closed within the meaning of the Sixth Amendment. To evaluate whether the closure was

 8   justified, we use the Waller standard.

 9          B. Waller

10           Under Waller’s first prong, a closure is not justified absent an “overriding interest” that

11   supports it. 467 U.S. at 48. The principal justifications offered by the court were that all the

12   seats in the spectator section would be taken by members of the venire, and that there was a risk

13   of tainting the jury pool if a potential juror sat next to the defendant’s mother. These were not

14   compelling reasons. Even if the number of prospective jurors equaled or exceeded the number of

15   seats in the spectator section of the courtroom, that was not sufficient justification to eject the

16   only spectator from the courtroom. There were many ways of accommodating a single spectator,

17   which might have been explored, including allowing either the sole spectator or a prospective

18   juror to stand until seats became vacant when potential jurors were excused, or, as discussed

19   further below, temporarily placing the lone spectator in another part of the courtroom. Absent

20   some indication that the defendant’s mother might communicate improperly with members of the

21   venire, the mere fact that some might be in close proximity to her did not raise a meaningful risk

22   to “taint the entire jury pool,” as the judge suggested. See People v. Taylor, 612 N.E.2d 543,

                                                        9
 1   548-49 (Ill. App. Ct. 1993) (holding that where there is no evidence of a reasonable likelihood

 2   that a defendant’s family member would attempt to influence the jurors during voir dire, the trial

 3   judge’s statement that he wanted to prevent “contamination” of potential jurors did not satisfy

 4   Waller’s “overriding interest” test).

 5          Furthermore, even if maintaining distance between the defendant’s mother and the

 6   prospective jurors amounts to an overriding interest in preventing proximity, the People must

 7   satisfy Waller’s second prong – that the action must be no broader than necessary to protect the

 8   overriding interest. 467 U.S. at 48. The court’s ruling to ban all spectators was broader than

 9   necessary to preserve that separation, which could have been accomplished in an alternative

10   fashion. There were a number of ways the trial court could have kept the proceedings open

11   without the defendant’s mother sitting next to a prospective juror. Among them, the trial judge

12   could have:

13   •      Accepted defense counsel’s suggestion to have Gibbons’s mother sit behind counsel, or
14          in some other part of, the “well;”
15   •      Called fewer jurors at the start, leaving some room for spectators;
16   •      Required either a member of the venire or Gibbons’s mother to stand until a seat became
17          vacant; or
18   •      Moved the proceedings to a larger courtroom — an option the court considered on the
19          second day of voir dire.

20          Under Waller’s third prong, the trial court must consider reasonable alternatives to

21   closing the proceedings. Id. We assume that, for purposes of a defendant’s after-the-fact effort

22   to set aside his conviction on the basis of exclusion of the public, the defendant may not rely on

23   possible alternatives that no one suggested at the time. There is good reason not to allow the

24   defendant to sandbag the trial judge by refraining from suggesting an alternative to closure at the

25   time, but later relying on that alternative as one the trial court was compelled to consider. The

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 1   only alternative expressly suggested or expressly contemplated at the time was defense counsel’s

 2   suggestion to allow Gibbons’s mother to sit temporarily in the well, which is normally reserved

 3   for counsel and parties. Even with respect to this suggestion, we do not believe the trial judge

 4   satisfied the requirement of Waller.

 5          Recognizing that the precise words of Waller were that the court is obliged to “consider

 6   reasonable alternatives,” id., we do not think the obligation is discharged if the court considers a

 7   reasonable alternative but then unreasonably rejects it. The obligation to “consider reasonable

 8   alternatives” seems to us to imply an obligation to accept the alternative when it would be

 9   reasonable to do so and unreasonable to refuse to do so.

10          While the trial court did literally “consider” the alternative suggested by the defendant of

11   allowing the defendant’s mother to sit in the well until more space became available in the

12   spectator section, the court gave no respectable reason for refusing to adopt it. What the court

13   said in explanation of its rejection of the suggestion was that “no one goes in the well unless it’s

14   their attorneys or part of the defense team.” The judge added that it would cause a security

15   problem and would make jurors wonder who was sitting there.

16          These were not adequate reasons for rejecting a reasonable alternative to closure of the

17   courtroom. As for the proposition that “no one [except attorneys] goes in the well of the

18   courtroom,” nowhere is it written that this is an immutable rule. It is commonplace for trial

19   judges to use parts of the well temporarily to accommodate a venire that overflows the spectator

20   section or to accommodate spectators in exactly these circumstances. All that was needed was

21   the judge’s authorization.




                                                      11
 1          What security problem the trial court had in mind (that might arise from seating the

 2   defendant’s mother in the well) was not identified. While the defendant, without a doubt, was

 3   charged with a serious offense, this was not the trial of Osama bin Laden. There was no apparent

 4   reason for special concerns of safety or security. If the court’s unexplained concern was that the

 5   defendant’s mother might pass to her son some item of contraband, this could easily have been

 6   prevented in a variety of ways. The People did not claim at trial that any security interest would

 7   be compromised if the defendant’s mother were temporarily seated in the well. Nor have the

 8   People suggested in their brief to this court any legitimate security concern which necessitated

 9   excluding the defendant’s mother from the well.

10          As for the court’s second reason – that prospective jurors might wonder who she was –

11   we do not understand what difference it would make if the jurors wondered who was the lady

12   sitting in the courtroom, or indeed even if they speculated that it might be the defendant’s

13   mother. We see no reason to believe the prospects of a fair trial would have been jeopardized by

14   the jurors’ speculation or realization that the defendant’s mother was attending the trial. It was

15   foreseeable at the time of the jury selection, furthermore, that the defendant’s mother would

16   continue to attend trial sessions. Jurors would see her in the spectator section of the courtroom

17   day after day as the trial progressed and in all likelihood might ask themselves who she was. The

18   possibility that members of the venire might speculate on the same question a few days earlier

19   during jury selection was not a reasonable justification for excluding the only member of the

20   public who sought to be present.

21          While a federal court reviewing a petition for habeas corpus which contests the actions of

22   a state trial judge in administering the courtroom should surely be deferential, we find that no

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 1   reasons of even arguable validity were given for refusing to adopt the reasonable alternative

 2   which defense counsel suggested to the trial judge. Unreasonable rejection of a reasonable

 3   alternative does not satisfy the prong of Waller which requires the trial judge to “consider

 4   reasonable alternatives.” 467 U.S. at 48.

 5           As to the fourth prong, which requires the trial court to make findings adequate to support

 6   the closure, for the reasons explained above, the judge’s findings did not justify the courtroom

 7   closure. We therefore conclude that in excluding the only member of the public who sought

 8   admission to the defendant’s trial, the trial judge failed to satisfy the requirements of Waller.1

 9           C. Do Trivial Exclusions Require Overturning a State Conviction

10           We recognize that the violation of a defendant’s right to a public trial is not justified by a

11   finding that the error was harmless. Waller, 467 U.S. at 49-50 & n.9; Guzman v. Scully, 80 F.3d

12   772, 776 (2d Cir. 1996). If it were, little or nothing would remain of the right because the

13   presence or absence of public spectators rarely, if ever, will affect the result of a trial, at least in a

14   manner that is perceptible.

15           The Supreme Court has divided court errors in criminal trials into two categories: trial

16   errors and structural errors. See Arizona v. Fulminante, 499 U.S. 279, 307-10 (1991). Trial

17   errors are those to which the harmless error analysis applies. Id. at 307-08. By contrast,

18   structural errors are those to which the harmless error analysis does not apply, as they are deemed



             1
             In affirming his conviction on appeal, the Appellate Division said nothing more than that
     the insufficiency of seating available in the courtroom justified exclusion of the public, including
     Gibbons’s mother. Gibbons, 795 N.Y.S.2d at 701. As we explained above, this finding was not
     an adequate reason justifying the trial court’s decision to expel the only spectator who sought
     admission.

                                                        13
 1   to render a criminal trial fundamentally unfair. See Washington v. Recuenco, 548 U.S. 212, 218-

 2   19 (2006); Neder v. United States, 527 U.S. 1, 8-9 (1999). The errors identified by the Supreme

 3   Court as falling in the “structural” category are denial of counsel, see Gideon v. Wainwright, 372

 4   U.S. 335 (1963), a biased trial judge, see Tumey v. Ohio, 273 U.S. 510 (1927), racial

 5   discrimination in the selection of the grand jury, see Vasquez v. Hillery, 474 U.S. 254 (1986), the

 6   denial of the right of self-representation, see McKaskle v. Wiggins, 465 U.S. 168, 177-178, n.8

 7   (1984), the denial of the right to trial by jury by giving a defective reasonable-doubt instruction,

 8   see Sullivan v. Louisiana, 508 U.S. 275 (1993), and the denial of a public trial, see Waller, 467

 9   U.S. at 49.

10          As the nomenclature devised in Fulminante implies, “structural” errors ordinarily relate

11   to fundamental rights involving the structure of the trial. When a criminal trial is conducted in a

12   manner that renders it fundamentally unfair by depriving the defendant of a fundamental

13   structural right, reversal of the conviction is ordinarily automatic. Recuenco, 548 U.S. at 218;

14   Neder, 527 U.S. at 8. It appears beyond doubt that a defendant required to stand the full trial, or

15   a substantial or important part of it, without the assistance of counsel would have his conviction

16   reversed without inquiry into whether the error was harmless, and that the same result might well

17   apply to one who, in spite of his demand to represent himself, was required to be represented by

18   counsel throughout the trial, or for a substantial or important part of it. See Gideon, 372 U.S. at

19   342-43; Faretta v. California, 422 U.S. 806, 821 (1975). It does not necessarily follow,

20   however, that every deprivation in a category considered to be “structural” constitutes a violation

21   of the Constitution or requires reversal of the conviction, no matter how brief the deprivation or

22   how trivial the proceedings that occurred during the period of deprivation.

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 1          Suppose, for example, that in a lengthy, multi-defendant trial, three months into trial, for

 2   a few minutes after a luncheon recess, trial proceeded without the judge being aware that the

 3   attorney for one of the defendants had not yet returned to the courtroom. Assume that the

 4   evidence received during those few minutes had nothing to do with the temporarily

 5   unrepresented defendant’s complicity, and that upon counsel’s tardy return a few minutes later,

 6   counsel reviewed the evidence received in his absence and advised the court that, while he

 7   objected to the trial having been conducted in his absence, he had no objection to any of the

 8   evidence. Trial then continued for another several months. We very much doubt,

 9   notwithstanding the brief “structural” deprivation for an inconsequential portion of the trial, that

10   the Supreme Court would require that the conviction be vacated.

11          Similarly, in the context of a denial of the right of public trial, as defined in Waller, it

12   does not follow that every temporary instance of unjustified exclusion of the public – no matter

13   how brief or trivial, and no matter how inconsequential the proceedings that occurred during an

14   unjustified closure – would require that a conviction be overturned. Again, suppose that during

15   some colloquy, the court ill-advisedly decided to exclude the public from the courtroom, but after

16   a couple of minutes of hearing inconsequential discussion by counsel, recognized its mistake, and

17   re-opened the courtroom. The contention that such a brief and trivial mistake could require

18   voiding a criminal trial of many months duration seems to us unimaginable. Whether the

19   explanation would be that so trivial an exclusion did not constitute a violation of the Sixth

20   Amendment, or that there was a violation but too trivial to justify voiding the trial, we do not

21   know. But we believe that, regardless of which explanation would be given, the result would be

22   to allow the conviction to stand. We must speculate because the Supreme Court has never ruled

23   on such a question.

                                                       15
 1          In Peterson v. Williams, 85 F.3d 39 (2d Cir. 1996), our court declined to vacate a

 2   conviction in spite of an unjustifiable, temporary courtroom closure, notwithstanding that it

 3   occurred during an important part of the proceedings, where the closure occurred without the

 4   awareness of the judge as the result of an administrative malfunction. Id. at 42. At the start, for

 5   security reasons, the public had been justifiably excluded and the door locked during the

 6   testimony of an undercover narcotics agent. After the conclusion of the undercover agent’s

 7   testimony, however, as the result of an administrative oversight, the courtroom remained locked

 8   while the defendant testified. The mistake was brought to the attention of the trial judge only

 9   after the defendant completed his testimony. Id. at 41-42. Recognizing that the harmless error

10   standard did not apply, we nonetheless ruled that the closure was too trivial to require that the

11   conviction be vacated. Id. at 41-44.

12          In evaluating whether a closure is trivial, we look to the values the Supreme Court

13   explained were furthered by the public trial guarantee, focusing on (1) ensuring a fair trial, (2)

14   reminding the prosecutor and judge of their responsibility to the accused and the importance of

15   their functions, (3) encouraging witnesses to come forward, and (4) discouraging perjury.

16   Peterson, 85 F.3d at 43 (citing Waller, 467 U.S. at 46-47). Essentially, our analysis turns on

17   whether the conduct at issue “subverts the values the drafters of the Sixth Amendment sought to

18   protect.” Smith v. Hollins, 448 F.3d 533, 540 (2d Cir. 2006). In the odd circumstances of

19   Peterson, we concluded that they did not, notwithstanding that the inadvertently extended closure

20   occurred during one of the most important portions of the trial.

21          D. The Incident Was Too Trivial to Justify Overturning Gibbons’s Conviction

22          Reviewing the public trial values in relation to this case, we conclude that the closure was

23   too trivial to justify vacating Gibbons’s conviction. The third and fourth values derived from

                                                      16
 1   Waller and articulated in Peterson are not implicated by voir dire because no witnesses testified.

 2   These values, therefore, do not weigh either in favor or against a triviality finding. As to the first

 3   and second values, in the particular circumstances of this case, limiting presence at the voir dire

 4   proceedings to only the attorneys, judge, defendant, and prospective jurors for one afternoon did

 5   not subvert these values. Even if the trial judge had not excluded Gibbons’s mother from the

 6   courtroom, she would not have been able to watch a significant portion of what occurred during

 7   that afternoon session because the private interviews of individual jurors as to their reasons for

 8   inability to serve were justifiably conducted in an adjacent room out of the hearing and sight of

 9   the other jurors. Further, nothing of significance happened during the part of the session that

10   took place in the courtroom. The judge read the indictment, asked questions of a few jurors, and

11   provided administrative details on what the jurors should expect if chosen. No prospective jurors

12   were excused except with the consent of both parties. No peremptory challenges were made, and

13   no objections were asserted by either party to anything that occurred. The next morning, when

14   voir dire resumed, Gibbons’s mother was allowed to watch the proceedings.

15           Although the closure was not justified, we conclude upon examination of all the details of

16   what occurred, that event was too trivial to warrant the remedy of nullifying an otherwise

17   properly conducted state court criminal trial. We need not rule on the metaphysical question

18   whether, in view of the triviality of the incident, it was not a deprivation of a constitutional right,

19   or in contrast, it was a violation of a constitutional right, but, in spite of the inapplicability of the

20   harmless error rule, too trivial to justify vacating the state court’s judgment.

21   II.     Gibbons’s Other Claims

22           Gibbons raises three additional claims, none of which have merit.

23           First, he argues that his Sixth Amendment rights to confrontation and a fair trial were

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 1   violated by “misconduct” of a juror who influenced other jurors by giving his expert opinion on

 2   the authenticity of a tape recording. The county court held a hearing pursuant to Gibbons’s

 3   motion to set aside the verdict, heard the testimony of jurors, and denied Gibbons’s motion,

 4   finding in part that testimony of the juror who reported the impropriety was “completely

 5   incredible” and that Gibbons had failed to show by a preponderance of the evidence the facts

 6   necessary to support his claim. This conclusion does not constitute an unreasonable

 7   determination of the facts.

 8          Second, Gibbons argues that his right to a fair trial was violated by the trial court’s refusal

 9   to suppress a tape-recorded conversation between Gibbons and his daughter in spite of a gap in

10   the recording. The New York courts held that there was no error because the People laid a

11   proper foundation for the admission of the tape, further stating that the existence of a minor gap

12   in the tape went to the weight of the evidence, not admissibility. We see no problem in the New

13   York courts’ determination. See People v. Torres, 523 N.Y.S.2d 893, 895 (App. Div. 2d Dep’t

14   1988); see also People v. Ely, 68 N.Y.2d 520, 527 (1986). Gibbons’s daughter and a police

15   officer who was a contemporaneous witness to the recorded conversation testified to the fact that

16   the tape recording accurately reflected the conversation. Gibbons lacked no opportunity to cross-

17   examine or otherwise challenge the evidentiary foundation for the tape. In any event, Gibbons

18   did not raise a federal constitutional challenge to the admission of the tape recording before the

19   New York Appellate Division, and therefore did not preserve the argument for habeas review.

20   See Castille v. Peoples, 489 U.S. 346, 351 (1989).

21          Finally, Gibbons argues that he was denied his right to effective assistance of counsel

22   based on the failure of counsel to: (1) effectively impeach Gibbons’s daughter’s credibility; (2)

23   obtain her psychiatric and therapeutic history; and (3) put Gibbons on the witness stand during

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1    trial. The New York courts disagreed. To prove ineffective assistance of counsel, a defendant

2    must show both that his counsel’s performance was deficient and that the deficient performance

3    prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). Actions and/or omissions

4    taken by counsel for strategic purposes generally do not constitute ineffective assistance of

5    counsel. Id. at 690-91. Gibbons has not shown that his counsel’s decisions were anything other

6    than strategic. Nor has he shown that different choices would have had any likelihood of altering

7    the outcome of the trial, especially in view of the powerful evidence of his guilt. Therefore the

8    state court’s decision was neither contrary to, nor an unreasonable application of, federal law.

9                                             CONCLUSION

10          We affirm the judgment of the district court.




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