Campbell v. Sabourin

6 F. App'x 83
CourtCourt of Appeals for the Second Circuit
DecidedApril 18, 2001
DocketNo. 99-2228
StatusPublished

This text of 6 F. App'x 83 (Campbell v. Sabourin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Campbell v. Sabourin, 6 F. App'x 83 (2d Cir. 2001).

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be and it hereby is REMANDED for further proceedings.

On February 27, 1992, petitioner-appellant Raymond Campbell was arrested in a “buy-and-bust” operation in Queens, New York. He was subsequently charged with selling four vials of crack cocaine to an undercover police officer and, at his trial, prosecutors moved to close the courtroom during the testimony of the undercover officer, Gail D. Hinds. At a hearing to determine whether closure was appropriate, Officer Hinds testified that, at the time of trial, she was “actively engaged in [84]*84undercover work in the County of Queens,” that she had “pending cases in court,” and that she had “a few” lost subjects.1 Officer Hinds also explained that she had testified in Queens Criminal Court once before and that she had cases pending before a Grand Jury.2

Hinds was asked: “would testifying in an open court compromise your ability to do your job as an undercover officer?” She replied “Yes,” and stated that “It would effect [sic] without a doubt my safety and the safety of the officers that might be around me, and also my cases that I have pending, the cases I have open, and my ability to do undercover work.” The court inquired of Hinds whether “it would effect [sic] [her] ability to purchase narcotics in an undercover capacity on the street if [her] status as an undercover officer became generally known.” Officer Hinds said that “without a doubt,” it would. The court asked whether her “safety would be compromised if those suspects against whom [she was] scheduled to testify and who are at liberty learned of [her] identity as an undercover officer.” She said that it would. After argument from counsel, the judge ordered that the courtroom be closed during Officer Hinds’s testimony. Petitioner was then tried before a jury and convicted.3

Campbell challenged his conviction in the Appellate Division, Second Department, arguing that the closure of the courtroom violated his Sixth Amendment right to a public trial. See Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). The Appellate Division affirmed. See People v. Campbell, 204 A.D.2d 474, 614 N.Y.S.2d 170 (2d Dept. 1994). Leave to appeal to the New York Court of Appeals was denied.

On April 10, 1997, Campbell filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York (Trager, J.) challenging the constitutionality of the courtroom closure. The district attorney’s office submitted to the district court an affidavit from Officer Hinds indicating that she “continued to work in Queens, both as an undercover officer and as a ‘ghost,’ for three years after she testified in this case.”4 The affidavit asserted that “[a]s part of that undercover activity, she returned to the same geographic area from which she had purchased drugs from petitioner.” Hinds also informed the court that, since Campbell’s trial, she had made over one hundred drug-related arrests in [85]*85Queens.5

On March 29, 1999, Judge Trager issued a Memorandum and Order denying Campbell’s petition for habeas relief. In referring to the affidavit from Officer Hinds, he stated that:

While this statement does not define the term ‘same geographic area,’ I take it to encompass at least the same location referred to at the courtroom closure hearing, an area later determined to encompass a two-mile stretch of Jamaica, Queens, an area with a large amount of drug trafficking, and an area that the New York Appellate Division for the Second Department concluded was ‘near the courthouse.’

Campbell v. Sabourin, 37 F.Supp.2d 601, 603 (E.D.N.Y.1999). Judge Trager concluded that under these circumstances it “was not unreasonable for the state court judge to find that the risk to the officer’s safety was a ‘serious’ one, and [that] there was, therefore, an overriding interest in the closure of the courtroom.” Id.

This appeal followed.

DISCUSSION

On the record before us, it is premature for us to determine whether the closure of the courtroom in this case was, ultimately, constitutionally sound. Officer Hinds’s statement that, since Campbell’s trial, she returned to the “same geographic area” is, on its own, too vague for this court to ascertain whether, on that basis, the state had an interest sufficiently strong to justify closure. See Waller, 467 U.S. at 48 (holding, inter alia that for closure to be justified, “the party seeking to close the hearing must [demonstrate] an overriding interest that is likely to be prejudiced” if the courtroom is not closed); Ayala v. Speckard, 131 F.3d 62, 70 (2d Cir.1997) (in banc ) (holding that, under Waller, the state must present “persuasive evidence of serious risk to an important interest” in order for closure to pass constitutional muster).

As this court acknowledged in Ayala, in assessing a claim that testimony in an open courtroom will be detrimental to an officer’s effectiveness, a court should focus on whether the undercover officer will be returning to the area of the defendant’s arrest. See Ayala, 131 F.3d at 72 (noting that the officers in question “were continuing their undercover work and would soon be returning in an undercover capacity to the same areas where the defendants had been arrested.”). We have also held that where closure is justified on the ground that an undercover officer could not work effectively in a particular area after testifying in open court, that area must be defined with geographic particularity. Compare id. at 65, 72 (holding that undercover officer’s statement that she was “active in the area of ‘West 42nd Street and Eighth Avenue’ in Manhattan” justified closure) with Brown v. Kuhlmann, 142 F.3d 529, 537 (2d Cir.1998) (holding that officer’s intention to return to “Brooklyn” for undercover work was inadequate, on its own, to justify closure).

Judge Trager’s conclusion that, when Officer Hinds stated that she had returned to the “same geographic area from which she had purchased drugs from petitioner,” she was referring to “a two-mile stretch of [86]*86Jamaica, Queens” may very well be correct. But it is not possible without further development of the record — by way of affidavits or a hearing or additional explanation by the district court of the basis for its conclusion — for this court to determine whether this is so, and, as a corollary, whether closure was appropriate on this ground.

Petitioner contends that the district court committed error by admitting the affidavits from Hinds and Assistant District Attorney Byrne. While Campbell concedes that “it was ...

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Related

Waller v. Georgia
467 U.S. 39 (Supreme Court, 1984)
United States v. Jacobson
15 F.3d 19 (Second Circuit, 1994)
People v. Martinez
624 N.E.2d 1027 (New York Court of Appeals, 1993)
Campbell v. Sabourin
37 F. Supp. 2d 601 (E.D. New York, 1999)
People v. Campbell
204 A.D.2d 474 (Appellate Division of the Supreme Court of New York, 1994)
Ayala v. Speckard
131 F.3d 62 (Second Circuit, 1997)

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Bluebook (online)
6 F. App'x 83, Counsel Stack Legal Research, https://law.counselstack.com/opinion/campbell-v-sabourin-ca2-2001.