Professional Documents
Culture Documents
Before
Torruella, Lynch, and Kayatta,
Circuit Judges.
Because
We
May
14,
2012,
Judge
O'Toole
denied
the
motion,
with
the
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after
an
evidentiary
hearing
involving
On July 22,
testimony
and
Wilder and
In
open
court,
the
trial
judge
(Judge
O'Toole)
explained the nature of the charges against Wilder and then asked
the jury venire a series of questions as a group.
After all of
trial
judge
and
counsel
for
both
parties
then
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counsel.
Neither Wilder nor his family was present for that
portion of the individual voir dire that took place in the jury
deliberation
room.
Counsel
was
certainly
present.
Indeed,
Defense counsel
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challenges at sidebar.
instructions to the jury and excused the jury for the day.
In his petition, Wilder does not assert that the exercise
of peremptory challenges at sidebar violated his constitutional
rights.
defense
counsel
made
no
objection
to
any
He testified that
against
participating
in
individual
jury
selection
On the other
hand, Wilder testified that he had not been advised of such a right
and that if he had been advised, he would have invoked the right
even against his defense counsel's advice. The prosecutor attested
that defense counsel had in fact informed the trial court that
Wilder did not wish to be present.
recollection to the contrary.
credible and credited the testimony of his defense counsel and the
prosecutor.
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Accordingly,
the
claims
were
procedurally
defaulted
It
The
It distinguished this
case from the complete closure in Owens v. United States, 483 F.3d
- 6 -
48, 6166 (1st Cir. 2007), which was decided a year after the
trial.
of jury selection took place in open court and Wilder and his
family remained in the courtroom throughout the day.
In fact,
essentially
conference.
"the
functional
equivalent"
of
sidebar
habeas claims.
On
September
5,
2014,
the
district
court
granted
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A.
28 U.S.C. 2255(a).
2255
motion,
The burden
we
review
the
district
court's
legal
excuses
the
procedural
default
and
"actual
prejudice"
U.S. 614, 622 (1998); United States v. Frady, 456 U.S. 152, 167
68 (1982).
constitutionally
ineffective
assistance
of
501
U.S.
722,
75354
(1991).
To
counsel
under
See Coleman v.
meet
the
actual
that
the
outcome
of
- 8 -
the
trial
would
have
been
present at all stages of his trial for which his absence might
frustrate the fairness of the proceedings -- a category that
includes jury empanelment.
F.3d 1, 3940 (1st Cir. 2015); see also United States v. Gagnon,
470 U.S. 522, 526 (1985) (per curiam).
right was violated by his exclusion from the individual voir dire
in the jury room.
default.
Because Wilder did not raise a contemporaneous objection
and did not raise the issue on direct appeal, we do not reach the
merits unless he shows cause for the procedural default, as well
as actual prejudice.
- 9 -
were
not
clearly
ineffective
requirement.
erroneous,
assistance
of
prevent
counsel
that
Wilder
would
from
meet
showing
the
cause
The
As the Supreme
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challenges.
The necessity of truthful
answers by prospective jurors if this process
is to serve its purpose is obvious.
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554
(1984); see also Press-Enterprise Co. v. Superior Court of Cal.,
464 U.S. 501, 515 (1984) (Blackmun, J., concurring) (explaining
that "the defendant has an interest in protecting juror privacy in
order to encourage honest answers to the voir dire questions").
Defense counsel did not provide ineffective assistance by agreeing
to a procedure meant to obtain more truthful answers from potential
jurors.
(explaining
that
defense
counsel
engaged
in
"objectively
would have affected the outcome because he would have asked certain
jurors follow-up questions, requested more definite answers, or
made
additional
for-cause
challenges,
it
requires
too
much
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challenges
would
have
been
attempted
and
been
As we noted on direct
Presley v. Georgia,
558 U.S. 209, 21213 (2010) (per curiam) (citing Waller v. Georgia,
467 U.S. 39, 46 (1984); Press-Enterprise Co., 464 U.S. at 510).
Wilder argues that this right was violated by the exclusion of his
family and friends from the closed-door individual voir dire.
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that
ineffective
satisfies
assistance
the
of
cause
counsel
requirement.
inquiry
However,
is
concerned
the
with
See Bucci v. United States, 662 F.3d 18, 3132 & n.11 (1st
also
Harrington
("Strickland
v.
calls
Richter,
for
an
562
U.S.
inquiry
86,
into
110
the
(2011)
objective
See
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As
to
the
prejudice
requirement
for
overcoming
only
difference
between
these
procedures
and
sidebar
conference was that members of the public could not observe the
individual questioning from their seats in the spectator gallery
and attempt to discern facial expressions or body language, and
the district court did not err in finding no functional difference
between the two.
Wilder does not claim that holding portions of voir dire
at sidebar violates the Sixth Amendment.
Inc. v. Virginia, 448 U.S. 555, 598 n.23 (1980) (Brennan, J.,
concurring in the judgment) (suggesting that public trial right
does not extend to sidebar conferences); United States v. Vaghari,
500 F. App'x 139, 150 (3d Cir. 2012) (noting that conducting
portions
of
voir
dire
at
sidebar
is
"commonly
accepted
practice"); United States v. Bansal, 663 F.3d 634, 661 (3d Cir.
2011) (describing jury selection procedures like those at issue
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here and stating that "we are aware of no case holding that such
procedures
offend
the
Sixth
Amendment").
Indeed,
peremptory
As such, we find no
TORRUELLA,
For Wilder's
But to
open court, where all the public can observe (even if they cannot
hear) the proceedings, here, the most critical portion of voir
dire was held behind closed doors.2
This reasoning is a far cry from Owens v. United States,
483 F.3d 48 (1st Cir. 2007), where we discussed the central
importance of the public trial guarantee.
had been "closed to the public for an entire day" of jury selection
due to space constraints.
Id. at 64.
cannot
reliably
function."
Id.
(quoting
Sullivan
v.
As a result, a defendant
structural
error
analysis
to
complete
instead
of
whether
"a
partial
public
trial
Accordingly, he need
Id. at 66.
jurors'
responses
are
not
audible
to
the
public,
the
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In an affidavit
infringes
requires.
significant
Moreover,
interest
Judge
in
privacy"),
O'Toole's
as
post-hoc
findings
before
closing
the
courtroom"
(emphasis
in
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consider
(and
reject)
alternatives
to
closure
before
barring
public access.").
The
government
contends
that
the
closure
was
only
selection
prospective
process.
jurors
were
During
asked
about
the
private
their
questioning,
feelings
on
child
things.
These
queries
directly
concerned
the
jurors'
If the Sixth
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case").
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