United States v. Urena

8 F. Supp. 3d 568, 2014 WL 1274084, 2014 U.S. Dist. LEXIS 44017
CourtDistrict Court, S.D. New York
DecidedMarch 31, 2014
DocketNo. S5 11 CR 1032 PAE
StatusPublished
Cited by1 cases

This text of 8 F. Supp. 3d 568 (United States v. Urena) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Urena, 8 F. Supp. 3d 568, 2014 WL 1274084, 2014 U.S. Dist. LEXIS 44017 (S.D.N.Y. 2014).

Opinion

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

Trial in this case, which involves allegations of racketeering, murder, and narcotics trafficking associated with an alleged enterprise known as the Trinitarios Gang, began on March 10, 2014. On March 11, 2014, the Government filed a motion asking that the Court: (1) close the courtroom to all spectators — save for the defendants’ immediate families — during the upcoming testimony of an undercover detective (“UC-188”) who purchased drugs and firearms from members of the gang; and (2) permit UC-188 to testify under an alias. Dkt. 1037. To minimize prejudice to the defendants’ or the public’s right to an open trial, the Government proposes to set up a live audio feed of UC-188’s testimony to a separate room and work with the court reporters to ensure that a daily transcript of UC-188’s testimony is made available to the public within 24 hours. Id. On March 24, 2014, defendant Carlos Urena submitted a letter opposing the Government’s motion, Dkt. 1059, in which defendant Limet Vasquez joins.

I. Facts

The facts relevant to the pending motion have not been disputed. The Court therefore makes, and premises its decision on, the following findings of fact:

1) UC-188 is a member of the Gang Squad of the Organized Crime Control Bureau of the New York Police Department (“NYPD”).

2) There are currently only eight active members of the Gang Squad.

3) As part of a long-term undercover operation run by the Gang Squad, UC-188 purchased drugs and firearms from members of the Trinitarios Gang on blocks allegedly controlled by the Trinitarios Gang.

4) UC-188 continues to participate in undercover operations into large-scale drug trafficking organizations — including by making undercover drug purchases — in the Bronx and other parts of the New York region.

5) Members of the Trinitarios Gang have been convicted of committing numerous acts of violence.

6) If UC-188’s identity became known to members of the Trinitarios Gang, his safety during such operations could be jeopardized.

7) Because members of the Gang Squad often conduct joint operations with other undercover agents from the same squad, revealing UC-188’s identity could also endanger other members of the Gang Squad.

[570]*5708) Revealing the identity of UC-188 would also potentially undermine ongoing Gang Squad investigations.

II. Courtroom Closure

The Sixth Amendment directs, in relevant part, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trialf.]” The Supreme Court has “uniformly recognized the public-trial guarantee as one created for the benefit of the defendant.” See Presley v. Georgia, 558 U.S. 209, 213, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010) (citing Gannett Co. v. DePasquale, 443 U.S. 368, 380, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979)). However, the Court has taught, “the right to an open trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information.” Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). “Such circumstances will be rare, however, and the balance of interests must be struck with special care.” Id.

The Supreme Court has established a four-factor test for determining whether an aspect of a trial may be closed to the public.

1) The party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced;
2) The closure must be no broader than necessary to protect that interest;
3) The trial court must consider reasonable alternatives to closing the proceeding; and
4) The trial court must make findings adequate to support the closure.

Presley, 558 U.S. at 213-214, 130 S.Ct. 721 (citing Waller, 467 U.S. at 48, 104 S.Ct. 2210).

Here, the “overriding interest” in closure advanced by the Government is to protect UC-188’s safety, and that of his undercover colleagues, and to preserve his ability to continue serving as an undercover detective in the New York City area. The Second Circuit has previously addressed this scenario, and has repeatedly held that “courts may properly order courtrooms closed during the testimony of undercover police officers, in order to protect both the officers’ safety and their future effectiveness.” Gonzalez v. Quinones, 211 F.3d 735, 738 (2d Cir.2000) (citing cases); see also Brown v. Artuz, 283 F.3d 492, 501 (2d Cir.2002) (the “safety of a police officer working undercover surely constitutes an overriding interest”). In Ayala v. Speckard, the Second Circuit, en banc, stated that:

The State’s interest in maintaining the continued effectiveness of an undercover officer is an extremely substantial interest, and the trial judge in each case was amply justified in concluding that this interest would be seriously prejudiced by requiring the officer to testify in an open courtroom. There is no requirement that the prosecution must prove that particular individuals likely to attend the trial will disclose the officer’s identity. Of course, the defendant himself has an opportunity to observe the officer (a second opportunity, if the defendant is guilty), and might communicate a description of the officer to others, particularly if the defendant is at liberty pending trial. The defendant’s right of presence at his trial requires accepting that risk, but the right to a public trial does not require the further risk that the officer’s identity will become known through observation by members of the public who might enter the courtroom and see the officer testifying. The gravity of the state interest in protecting the secrecy of the officer’s identity from casual observers and the [571]*571likelihood that this interest will be prejudiced by the officer’s testifying in open court are both sufficiently substantial to justify the limited closure of the courtroom during the officer’s testimony.

131 F.3d 62, 72 (2d Cir.1997) (en banc) (emphases added). The Government’s interest in closure here is, therefore, properly held to be extremely substantial.

The Government’s interest must, of course, be weighed against the harm such closure would cause to the defendants’ right to an open trial. As the Second Circuit has stated:

[T]he sensible course is for the trial judge to recognize that open trials are strongly favored, to require persuasive evidence of serious risk to an important interest in ordering any closure, and to realize that the more extensive is the closure requested, the greater must be the gravity of the required interest and the likelihood of risk to that interest.

Ayala, 131 F.3d at 70.

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Bluebook (online)
8 F. Supp. 3d 568, 2014 WL 1274084, 2014 U.S. Dist. LEXIS 44017, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-urena-nysd-2014.