Wilder v. United States

          United States Court of Appeals
                     For the First Circuit


No. 14-1815

                       DARREN F. WILDER,

                     Petitioner, Appellant,

                               v.

                   UNITED STATES OF AMERICA,

                     Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Denise J. Casper, U.S. District Judge]


                             Before

                 Torruella, Lynch, and Kayatta,
                         Circuit Judges.


     Michael R. Schneider, with whom Jeffrey G. Harris and Good
Schneider Cormier were on brief, for appellant.
     Kelly Begg Lawrence, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.


                       November 20, 2015
            LYNCH, Circuit Judge.          Darren Wilder was convicted in

March 2006, after a jury trial, of transportation, receipt, and

possession of child pornography in violation of 

18 U.S.C. § 2252

.

We affirmed his conviction on direct appeal and noted that the

evidence against him was very strong. See United States v. Wilder,

526 F.3d 1

, 7–12 (1st Cir. 2008), cert. denied, 

555 U.S. 1050

(2008).

            Wilder now appeals the district court's denial of his

petition for a writ of habeas corpus under 

28 U.S.C. § 2255

, in

which he claimed, for the first time, that the jury selection

process for his trial violated his Fifth Amendment right to be

present and his Sixth Amendment right to a public trial.               Because

Wilder cannot overcome his procedural default from not pursuing

either claim at trial or on appeal, we affirm the denial of habeas

relief.

                                      I.

            The facts surrounding Wilder's underlying conviction are

set forth in our prior opinion.             Wilder, 526 F.3d at 3–5.          We

summarize only the facts relevant to this appeal.

            On December 1, 2009, Wilder filed a motion under 

28 U.S.C. § 2255

 seeking to vacate his conviction on numerous grounds.

On   May   14,   2012,   Judge   O'Toole    denied   the    motion,   with   the

exception of two constitutional claims regarding jury selection

that he reserved for an evidentiary hearing.               The matter was then


                                    - 2 -
reassigned to Judge Casper so that Judge O'Toole could serve as a

fact witness concerning the conduct of voir dire.                       On July 22,

2014,   after      an   evidentiary      hearing     involving        testimony   and

affidavits from trial participants, including Judge O'Toole, the

district court denied both remaining claims.

             The district court (Judge Casper) made the following

findings of fact.           Trial began on March 13, 2006.               Wilder and

Wilder's girlfriend, parents, stepmother, and mother's friend were

present in the courtroom when the jury venire was brought into the

courtroom.         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

the potential jurors responded affirmatively to the question of

whether he or she was a regular or frequent internet user, the

trial judge indicated that "we're going to end up talking to all

of you in the back."

             The    trial      judge   and   counsel     for   both    parties    then

proceeded to meet with potential jurors one by one in the jury

deliberation room behind the courtroom.                  That room is not open or

visible to those in the courtroom. However, those in the courtroom

could see potential jurors as they left from and returned to the

courtroom.      It took the rest of the morning and most of the

afternoon to go through the individual voir dire of each juror.

In the back room, each individual potential juror was asked follow-


                                         - 3 -
up questions to those asked in open court as well as a question

about whether child pornography evidence would so emotionally

disturb the potential juror as to make him or her incapable of

remaining impartial.    Counsel exercised for-cause challenges as

each juror left the room.   The reason for conducting this portion

of voir dire in the jury deliberation room, the trial judge

attested, was to "support[] the juror's interest in privacy and

thus promote[] full and candid answers."        While he did not have

any recollection specific to this case, this was his general

practice in "a small number of cases," including child pornography

cases.     There was no objection to this procedure from either

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,

Wilder's counsel instructed Wilder and his family to stay in the

courtroom in case Wilder was needed.      Neither Wilder nor any other

person ever made a request to enter and be present in the jury

deliberation room.

           After the individual questioning was completed, the jury

selection proceedings resumed in open court.           Defense counsel

conferred with Wilder before exercising peremptory challenges.

Both the prosecution and defense counsel then exercised peremptory




                                 - 4 -
challenges at sidebar.    The trial judge then gave some cautionary

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.   He challenges only those portions of the voir dire that

took place in the jury room.

          Wilder's    defense   counsel   made   no   objection   to   any

portion of this individual voir dire procedure.        He testified that

while he knew that Wilder had a Fifth Amendment right to be present

at jury selection, he generally advises his criminal defendant

clients   against    participating   in   individual    jury   selection

conferences to avoid making potential jurors feel "awkward" by

having to face the defendant in a small space.         While he did not

have a specific recollection of having advised Wilder as such, he

testified that it was his general practice to do so.        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.           Defense counsel had no

recollection to the contrary.    The district court found Wilder not

credible and credited the testimony of his defense counsel and the

prosecutor.




                                 - 5 -
          Wilder's defense counsel did not advise Wilder about his

Sixth Amendment right to have members of the public present at

jury selection because he "did not know that such a right existed."

Wilder testified that had he been advised, he would have invoked

that right as well.

          Upon making these findings, the district court began its

analysis by noting that Wilder did not raise either the Fifth

Amendment or the Sixth Amendment claim at trial or on direct

appeal.   Accordingly,   the   claims   were   procedurally   defaulted

unless Wilder could show cause for having procedurally defaulted

as well as actual prejudice resulting from the alleged errors.

          The district court dismissed the Fifth Amendment claim

on the basis of Wilder's failure to excuse procedural default.      It

found that Wilder's counsel had made a reasonable strategic choice

to waive the right, and it did not credit Wilder's claim that he

was never advised of the right.     As a result, Wilder could not

show cause sufficient to excuse the procedural default.             The

district court also concluded that Wilder could not establish

actual prejudice because his presence would not have necessarily

resulted in a different jury composition or verdict, particularly

given the weight of the evidence against him.

          The district court also dismissed the Sixth Amendment

claim on the basis of procedural default.       It distinguished this

case from the complete closure in Owens v. United States, 483 F.3d


                                - 6 -
48, 61–66 (1st Cir. 2007), which was decided a year after the

trial.    Unlike in Owens, the district court found, the first phase

of jury selection took place in open court and Wilder and his

family remained in the courtroom throughout the day.                 In fact,

conducting the individual voir dire in the jury deliberation room

was   essentially    "the    functional     equivalent"     of   a    sidebar

conference.      The district court decided that defense counsel's

failure to object to what was at most a partial closure did not

justify an assumption of ineffective assistance of counsel that

would excuse procedural default.            That was because competent

defense counsel could have chosen not to object as a strategic

matter.    The district court also declined to find a structural

error that would justify a presumption of prejudice and found that

no actual prejudice had been shown.

            Finding the issue of procedural default of the Sixth

Amendment claim "a closer call," the district court then proceeded

to also reject the claim on the merits.              Noting that a less

stringent standard applied to partial closures than to complete

closures, it found that the partial closure was justified by the

"substantial interest" in eliciting candid answers from potential

jurors.    The district court, based on these findings, denied the

habeas claims.

            On   September   5,   2014,    the   district   court     granted

Wilder's application for a certificate of appealability from the


                                   - 7 -
dismissal of his petition, but only as to the two jury selection

claims.       This appeal followed.

                                            II.

A.       Standard of Review and § 2255 Framework

               A petitioner in federal custody may seek post-conviction

relief if, inter alia, his sentence "was imposed in violation of

the Constitution or laws of the United States" or "is otherwise

subject to collateral attack."               

28 U.S.C. § 2255

(a).               The burden

of proof is on the petitioner.               David v. United States, 

134 F.3d 470, 474

 (1st Cir. 1998).               In reviewing a district court's denial

of   a    §   2255    motion,      we    review       the    district     court's      legal

determinations de novo and any findings of fact from an evidentiary

hearing for clear error.             Owens, 483 F.3d at 57.

               Because Wilder is raising his Fifth and Sixth Amendment

claims for the first time on habeas, he must show both "cause"

that     excuses      the    procedural      default         and    "actual     prejudice"

resulting from the alleged error.                     Bousley v. United States, 

523 U.S. 614, 622

 (1998); United States v. Frady, 

456 U.S. 152

, 167–

68 (1982).         One way to meet the cause requirement is to show

constitutionally            ineffective      assistance            of    counsel       under

Strickland v. Washington, 

466 U.S. 668

 (1984).                           See Coleman v.

Thompson,      

501 U.S. 722

,      753–54    (1991).          To   meet    the   actual

prejudice requirement, Wilder must show that "there is a reasonable

probability"         that    the   outcome       of    the   trial      would   have   been


                                           - 8 -
different but for the alleged error.      Strickler v. Greene, 

527 U.S. 263, 289

 (1999).      A structural error is considered per se

prejudicial.   Owens, 483 F.3d at 64.     A structural error is one

"affecting the framework within which the trial proceeds, rather

than simply an error in the trial process itself." Neder v. United

States, 

527 U.S. 1, 8

 (1999) (quoting Arizona v. Fulminante, 

499 U.S. 279, 310

 (1991)).      "Such errors 'infect the entire trial

process,'" 

id.

 (quoting Brecht v. Abrahamson, 

507 U.S. 619, 630

(1993)), and "necessarily render a trial fundamentally unfair,"

id.

 (quoting Rose v. Clark, 

478 U.S. 570, 577

 (1986)).

B.   Fifth Amendment Claim

           A criminal defendant has a due process right to be

present at all stages of his trial for which his absence might

frustrate the fairness of the proceedings -- a category that

includes jury empanelment.     United States v. Ramírez-Rivera, 

800 F.3d 1

, 39–40 (1st Cir. 2015); see also United States v. Gagnon,

470 U.S. 522, 526

 (1985) (per curiam).      Wilder argues that this

right was violated by his exclusion from the individual voir dire

in the jury room.      However, his claim cannot survive procedural

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.    The district court's factual findings, which


                                - 9 -
were   not    clearly   erroneous,    prevent      Wilder     from   showing

ineffective    assistance   of   counsel   that   would     meet   the   cause

requirement.    Defense counsel testified that even though he had no

specific recollection of this case, it was his general practice to

advise clients to waive this right because potential jurors may be

more likely to be candid as to sensitive matters when they are not

made to feel "awkward" by close proximity to the defendant.               The

district court credited that testimony, as well as the testimony

of the prosecutor that defense counsel had advised the trial judge

that Wilder did not wish to be present.           Meanwhile, the district

court refused to credit Wilder's testimony denying that defense

counsel mentioned to him the reason for not attending individual

voir dire (i.e., to get more candid answers from jurors).

             Defense counsel's waiver of the right on behalf of Wilder

was part of a "sound trial strategy" and so was not ineffective

assistance of counsel.      See Strickland, 

466 U.S. at 689

 (quoting

Michel v. Louisiana, 

350 U.S. 91, 101

 (1955)).              As the Supreme

Court has recognized, defendants have an interest in eliciting

candid statements by jurors on their potential biases:

             Voir dire examination serves to protect [the
             right to an impartial trier of fact] by
             exposing possible biases, both known and
             unknown, on the part of potential jurors.
             Demonstrated   bias  in   the  responses   to
             questions on voir dire may result in a juror
             being excused for cause; hints of bias not
             sufficient to warrant challenge for cause may
             assist parties in exercising their peremptory


                                  - 10 -
           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.   See Horton v. Allen, 

370 F.3d 75, 81

 (1st Cir. 2004)

(explaining   that     defense   counsel   engaged    in   "objectively

reasonable strategy designed to elicit forthcoming responses from

the jurors about racial bias" by agreeing to individual voir dire

being conducted in private room).

           Beyond that, Wilder did not meet his burden to show

actual prejudice.    The district court did not err in finding that

there was not a reasonable probability that his presence during

the individual voir dire would have resulted in a different jury

composition or verdict.      While Wilder argues that his presence

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

speculation to say that the outcome would have been different.

See United States v. Rivera-Rodríguez, 

617 F.3d 581

, 603–04 (1st


                                 - 11 -
Cir. 2010) (finding no prejudice from district court's individual,

ex parte voir dire of fifteen prospective jurors, reasoning that

finding prejudice would require "too many assumptions" about how

the jurors would have answered any further questions, whether any

for-cause    challenges   would    have    been    attempted   and   been

successful, and whether any replacement jurors would have voted to

acquit); United States v. Gonzalez-Melendez, 

594 F.3d 28, 34

 (1st

Cir. 2010) (finding no prejudice from procedural error in exercise

of peremptory challenges, on the basis that "[i]t is not evident

that the composition of the jury would have differed . . . [and]

there is no basis in the record for concluding that the alteration

in jury composition had an injurious influence on the verdict").

The claim that a different jury composition would have changed the

outcome is especially speculative here.           As we noted on direct

appeal, the evidence against Wilder was "more than sufficient."

Wilder, 

526 F.3d at 9

. As a result, Wilder's Fifth Amendment claim

is procedurally defaulted.

C.   Sixth Amendment Claim

            As part of the right to a public trial, the Sixth

Amendment guarantees public jury selection.         Presley v. Georgia,

558 U.S. 209

, 212–13 (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.


                                  - 12 -
Wilder, though, cannot overcome his failure to raise this claim at

trial or on direct appeal.

               The district court correctly decided that Wilder failed

to meet the cause requirement for overcoming procedural default.

Wilder argues that because his counsel's failure to object was due

to ignorance of the law, he received ineffective assistance of

counsel    that    satisfies     the    cause     requirement.         However,   the

ineffective       assistance    of     counsel    inquiry   is     concerned      with

objective reasonableness rather than what counsel did or did not

know.    See Bucci v. United States, 

662 F.3d 18

, 31–32 & n.11 (1st

Cir. 2011) (finding no ineffective assistance of counsel even when

counsel did not recognize potential Sixth Amendment violation);

see     also    Harrington     v.     Richter,    

562 U.S. 86, 110

   (2011)

("Strickland      .   .   .   calls    for   an   inquiry   into    the   objective

reasonableness of counsel's performance, not counsel's subjective

state of mind.").         Objectively reasonable counsel could have made

a strategic choice not to object to the selection procedure here,

for the same reason that the district court found Wilder's counsel

reasonably advised him to waive his Fifth Amendment right.                        See

Horton, 370 F.3d at 82–83.            Indeed, it is difficult to think that

trial counsel, having advised Wilder against coming to the jury

room under the Fifth Amendment, would have advised the contrary

for him or his family under the Sixth Amendment.




                                        - 13 -
             As   to     the    prejudice       requirement      for      overcoming

procedural default, Wilder cannot show actual prejudice for the

same reasons that he cannot show actual prejudice on his Fifth

Amendment claim.       Instead, Wilder relies on a characterization of

the jury selection process as a complete closure of the courtroom

and argues that because a complete closure is a structural error,

he need not show actual prejudice.                 See Owens, 483 F.3d 65–66.

The district court, however, correctly found that the procedures

used were "the functional equivalent" of a sidebar conference.

The   only   difference        between    these    procedures     and     a   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.                 See Richmond Newspapers,

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    a   "commonly       accepted

practice"); United States v. Bansal, 

663 F.3d 634, 661

 (3d Cir.

2011) (describing jury selection procedures like those at issue


                                       - 14 -
here and stating that "we are aware of no case holding that such

procedures    offend   the   Sixth    Amendment").    Indeed,   peremptory

challenges in this case were exercised at sidebar, and Wilder does

not challenge that part of the procedure.            As such, we find no

error in the district court's conclusion that there was no complete

closure and thus no structural error and no per se prejudice from

any alleged error.      Wilder cannot overcome procedural default on

his Sixth Amendment claim.1

                                      III.

             For the reasons stated, we affirm.




                       -Concurring Opinion Follows-




     1 There was also no error under Waller. The full procedures
outlined in Waller, 

467 U.S. at 48

, do not apply where the trial
court was conducting the functional equivalent of properly
conducted sidebar portions of voir dire.


                                     - 15 -
               TORRUELLA,   Circuit Judge, concurring.          For Wilder's

Sixth Amendment claim, the majority explains that there was no

error under Waller v. Georgia, 

467 U.S. 39

 (1984), as these

proceedings were tantamount to a sidebar.                In this way, the

majority has effectively written closure out of this case.            But to

characterize this event as anything other than a closure is to

ignore the egregious facts at issue:           whereas a sidebar is held in

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.            In Owens, the courtroom

had been "closed to the public for an entire day" of jury selection

due to space constraints.         

Id. at 64

.   We found that the denial of

a public trial is a structural error, a "basic protection[] whose

precise effects are unmeasurable, but without which a criminal

trial       cannot   reliably   function."     

Id.

   (quoting   Sullivan   v.

Louisiana, 

508 U.S. 275, 281

 (1993)).            As a result, a defendant

denied a public trial need not show prejudice for procedurally

defaulting his claim. Id. at 66; see also United States v. Negrón-




        2
       I note that the jury deliberation rooms in the Moakley
Courthouse are positioned to the rear of the courtrooms and are
therefore only accessible by a key card.


                                    - 16 -
Sostre, 

790 F.3d 295, 305-06

 (1st Cir. 2015).           We did not cabin

the   structural   error   analysis    to   complete   closures,   instead

speaking broadly of the importance of the Sixth Amendment right to

a public trial.    Owens, 

483 F.3d at 65-66

 ("[B]ecause denial of a

public trial is structural error, it would be impossible for Owens

to establish actual prejudice, and as such, it must be presumed.").

Later, in Bucci v. United States, this Court did not reach the

question     of      whether      "a        partial      public      trial

violation . . . constitutes structural error."           

662 F.3d 18, 29

(1st Cir. 2011).    Now, by effectively finding that the procedure

here did not qualify as a closure, the majority has further

undercut the Sixth Amendment guarantee to a public trial and

chipped away at the constitutional protections articulated in

Owens.

           To be sure, the majority is correct that Wilder must

show that his counsel's performance was objectively unreasonable

under Strickland v. Washington, 

466 U.S. 668

 (1984), to demonstrate

cause for his procedural default. Owens, 

483 F.3d at 64

. Further,

I agree that Wilder cannot make that showing here, and I therefore

concur in judgment.3 But, even if this Court were to accept Bucci's


      3I make this determination based on Judge Casper's finding
that defense counsel had informed Judge O'Toole that Wilder did
not wish to be present in the jury room.    After an evidentiary
hearing, Judge Casper credited the prosecutor's testimony that
Wilder's counsel had done so, explaining that this testimony was
not inconsistent with defense counsel's recollection that he


                                - 17 -
suggestion that a partial closure is not structural error, Wilder

has demonstrated that this was a full closure for which there was

no "overriding interest based on findings that closure is essential

to preserve higher values and is narrowly tailored to serve that

interest."   

Id.

 at 61-62 (quoting Press-Enter. Co. v. Superior

Court of Cal., 

464 U.S. 501, 510

 (1984)).     Accordingly, he need

not show prejudice.   Id. at 66.



typically advised defendants that jurors would be more candid
during voir dire if the defendant were not present. Such a factual
finding is reviewed for clear error, Owens, 

483 F.3d at 57

, and
Judge Casper's determination, made after reviewing affidavits and
observing a comprehensive evidentiary hearing, is not clearly
erroneous. Nevertheless, I am troubled that there is no indication
of Wilder's waiver on the record.     See Brookhart v. Janis, 

384 U.S. 1, 4

 (1966) ("There is a presumption against the waiver of
constitutional rights, and for a waiver to be effective it must be
clearly established that there was 'an intentional relinquishment
or abandonment of a known right or privilege.'" (internal citations
omitted)).
     Further, I dispute the majority's suggestion that defense
counsel's ignorance of the law is irrelevant to the ineffective
counsel inquiry for purposes of the Sixth Amendment analysis. See
Bullock v. Carver, 

297 F.3d 1036, 1049

 (10th Cir. 2002) ("An
attorney's demonstrated ignorance of law directly relevant to a
decision will eliminate Strickland's presumption that the decision
was objectively reasonable because it might have been made for
strategic purposes . . . ."). That said, defense counsel explained
that he thought that jurors would give more candid responses in
the defendant's absence and that "it was awkward for jurors to
face the defendant at such a small, confined space."           This
strategic decision is not objectively unreasonable and could have
been made by an attorney fully informed of the law. See Horton v.
Allen, 

370 F.3d 75, 83-84

 (1st Cir. 2004) ("Defense counsel's
decision to agree to a closed individual voir dire was an
objectively reasonable strategy designed to elicit forthcoming
responses from the jurors . . . ."); Bullock, 

297 F.3d at 1053-54

(finding that a determination made when an attorney was ignorant
of the applicable law could have been made by "a fully informed
attorney" and, thus, "was not objectively unreasonable").


                              - 18 -
             Judge O'Toole began jury selection by addressing the

venire in open court and asking them a series of general yes or no

questions.      Judge O'Toole stated that he would follow up later

with private questions for those who answered affirmatively to his

initial inquiries.     When all the jurors responded that they were

regular users of the internet, Judge O'Toole explained that he

would need to speak to everyone in private.        Judge O'Toole and the

attorneys proceeded to the private jury deliberation room, and

defense counsel advised Wilder to wait in the empty courtroom with

his family.      Throughout the morning and for a portion of the

afternoon session, Judge O'Toole questioned forty-eight jurors,

one by one, in the private room.            Neither Wilder nor any other

members of the public observed the private questioning; only Judge

O'Toole, the lawyers, and the single prospective juror being

questioned were present.

             The majority explains, "[t]he only difference between

these procedures and a 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."       Wilder v. United States, slip op.

at 14 (1st Cir. November 20, 2015).         This explanation understates

the importance of such observations: during a sidebar, even though

the   jurors'    responses   are   not   audible   to   the   public,   the

prospective jurors still respond to the judge's queries in an open


                                   - 19 -
courtroom, and their physical reactions to any questions are

visible to observers. The presumed openness of holding proceedings

in the courtroom is absent when questioning instead takes place

behind closed doors.   See Press-Enter. Co., 464 U.S. at 507-08

(discussing the historical importance of the "open process" in the

legal system, which gives "assurance to those not attending trials

that others were able to observe the proceedings and enhanced

public confidence"); Owens, 

483 F.3d at 65

 ("Judges, lawyers,

witnesses, and jurors will perform their respective functions more

responsibly in an open court than in secret proceedings." (quoting

Estes v. Texas, 

381 U.S. 532, 588

 (1965))).4

          The Supreme Court recognized that a complete closure may

be justified where the following four requirements are satisfied:

          the party seeking to close the hearing must
          advance an overriding interest that is likely

     4 The majority does not reach the merits of Wilder's Fifth
Amendment claim in light of his procedural default. While I agree
that his Fifth Amendment claim was procedurally defaulted as well,
I note that any similarities between a sidebar and the procedure
here are further minimized with respect to Wilder's right to be
present during trial. During a sidebar, the defendant typically
is seated in the courtroom, only feet away from where the
questioning is taking place.    As a result, defense counsel can
consult his client with only minimal disruptions to the
questioning. Conversely, should the defendant wish to ask about
a particular juror based on observations of the juror’s facial
expressions or gestures, he can easily flag his attorney. When
questioning takes place in a separate room, the defendant and
defense   counsel   can  no   longer   engage   in  these   simple
communications; the questioning must be paused for several minutes
at a time whenever defense counsel seeks to consult his client,
and the defendant must ask to be admitted to the private room to
ask his defense attorney even a simple question.

                             - 20 -
             to be prejudiced, the closure must be no
             broader than necessary to protect that
             interest, the trial court must consider
             reasonable   alternatives   to   closing   the
             proceeding, and it must make findings adequate
             to support the closure.

Waller v. Georgia, 

467 U.S. 39, 48

 (1984).                In an affidavit

submitted for the § 2255 hearing, Judge O'Toole explained that he

preferred to conduct questioning of personal matters such as child

or sexual abuse in a private room.          I do not foreclose that such

concerns may justify a full closure, see Press-Enter. Co., 464

U.S. at 511-12 (noting that questioning regarding "deeply personal

matters" may justify complete closure), but the record does not

demonstrate that Judge O'Toole considered reasonable alternatives,

see, e.g., id. at 512 (recommending that trial judges "requir[e]

the prospective juror to make an affirmative request . . . [where]

disclosure    infringes   a   significant    interest   in     privacy"),   as

Waller     requires.          Moreover,     Judge     O'Toole's     post-hoc

justifications should not excuse the closure; such findings must

be made during jury selection.       Presley v. Georgia, 

558 U.S. 209, 213

 (2010) ("Waller provided standards for courts to apply before

excluding the public from any stage of a criminal trial . . . .");

United States v. Gupta, 

699 F.3d 682, 687

 (2d Cir. 2011) (refusing

to consider a later-filed affidavit "because the court made no

explicit   findings    before   closing     the   courtroom"   (emphasis    in

original)); see also Owens, 

483 F.3d at 62

 ("[A] court must



                                   - 21 -
consider   (and     reject)   alternatives    to       closure   before   barring

public access.").

           The    government     contends    that      the   closure    was    only

partial, noting that the initial general questions to prospective

jurors and subsequent peremptory challenges were open to the

public; that the courtroom remained open throughout the jury

selection process; and that Wilder and the public could observe

the venire as they proceeded from the courtroom to the jury room

and, again, upon their return. But this argument misses the point:

the public was excluded from the most critical components of the

jury    selection     process.      During       the     private   questioning,

prospective   jurors     were    asked   about    their      feelings   on    child

pornography and how they would respond to graphic images, among

other   things.      These    queries    directly      concerned   the    jurors'

abilities to set aside their biases and return a fair verdict,

inquiries central to the fairness of Wilder's trial.               If the Sixth

Amendment right to a public trial protects anything, it must

protect access to the most substantive components of the trial.

Cf. Waller, 

467 U.S. at 46

 (explaining that the Sixth Amendment

right to a public trial extended to a suppression hearing, noting

that such "hearings often are as important as the trial itself");

Owens, 

483 F.3d at 63

 (finding that courtroom closure was not

trivial as "[j]ury selection is . . . a crucial part of any criminal




                                    - 22 -
case").   To hold otherwise is to reduce the Constitution's fair

trial guarantees to mere formalities.




                             - 23 -