662 F.3d 18 (1st Cir. 2011), 09-2468, Bucci v. United States

Docket Nº:09-2468, 09-2493.
Citation:662 F.3d 18
Opinion Judge:DYK, Circuit Judge.
Party Name:Anthony BUCCI, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee. David Jordan, Petitioner-Appellant, v. United States of America, Respondent-Appellee.
Attorney:Inga L. Parsons, for petitioner-appellant Anthony Bucci. David J. Nathanson, with whom Wood & Nathanson, LLP was on brief, for petitioner-appellant David Jordan. Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for respondent-app...
Judge Panel:Before THOMPSON, SELYA, and DYK,[*] Circuit Judges.
Case Date:October 13, 2011
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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662 F.3d 18 (1st Cir. 2011)

Anthony BUCCI, Petitioner, Appellant,


UNITED STATES of America, Respondent, Appellee.

David Jordan, Petitioner-Appellant,


United States of America, Respondent-Appellee.

Nos. 09-2468, 09-2493.

United States Court of Appeals, First Circuit.

October 13, 2011

Heard July 27, 2011.

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[Copyrighted Material Omitted]

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Inga L. Parsons, for petitioner-appellant Anthony Bucci.

David J. Nathanson, with whom Wood & Nathanson, LLP was on brief, for petitioner-appellant David Jordan.

Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for respondent-appellee the United States of America.

Before THOMPSON, SELYA, and DYK,[*] Circuit Judges.

DYK, Circuit Judge.

Anthony Bucci (" Bucci" ) and David Jordan (" Jordan" ) were jointly tried and convicted of drug-related crimes. Each appeals from the district court's denial of his 28 U.S.C. § 2255 petition for collateral relief. Both appellants contend that their Sixth Amendment right to a public trial was violated by a partial courtroom closure that occurred during jury selection; and that an improper delegation of Article III authority occurred because issues regarding the courtroom closure were determined by the clerk rather than by the judge. The appellants alternatively contend that they are entitled to new § 2255 hearings because Bucci was not permitted to attend the hearing below (although he was represented by counsel); and Jordan was neither permitted to attend nor was he provided with appointed counsel at that time. Finally, Bucci additionally asserts various claims of prosecutorial misconduct.

We affirm the district court's denial of Bucci's § 2255 petition. However, we conclude that Jordan is entitled to a new § 2255 hearing. We accordingly vacate the district court's denial of Jordan's petition and remand Jordan's case for further proceedings.

I. Background

" We recite the pertinent facts in the light most favorable to the verdict[s]...." United States v. Downs-Moses, 329 F.3d 253, 257 (1st Cir.2003). The facts are described

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in greater detail in this court's opinion on the petitioners' direct appeals, United States v. Bucci, 525 F.3d 116 (1st Cir.2008), and in the district court opinion in the § 2255 proceedings, Bucci v. United States, 677 F.Supp.2d 406 (D.Mass.2009).

The underlying case involved the robbery of a cocaine dealer, Carlos Ruiz (" Ruiz" ), by a group that included three other drug dealers, Bucci, Jon Minotti (" Minotti" ), and Francis Muolo (" Muolo" ), and a corrupt police officer, Jordan. The group devised a plan to rob Ruiz of three kilograms of his cocaine by setting up a fake drug transaction between Bucci and Ruiz, with Minotti acting as the middleman. The plan called for officer Jordan to arrive and pretend to " bust" the drug deal, providing Minotti an opportunity to escape with the drugs. Muolo was to be Minotti's getaway driver.

On December 24, 2003, Minotti accompanied Ruiz to the parking lot of the Malden Medical Center, where they met Bucci. Bucci agreed to purchase three kilograms of cocaine from Ruiz. As Minotti, the middleman, went to transfer the cocaine from Ruiz's car to Bucci's car, officer Jordan entered the parking lot in an unmarked vehicle, exited his car wearing plain clothes, shouted " Malden Police," and pointed a gun at Ruiz's head. Minotti immediately fled with all three kilograms of cocaine, traveling down an embankment and through the neighboring woods to where Muolo was waiting with a getaway car. Jordan frisked Ruiz and Bucci, detained them long enough for Minotti to complete his escape, and then released them with a warning. Muolo, Minotti, and Bucci then reunited at Muolo's apartment to divide the proceeds from their heist. However, unbeknownst to them, Ruiz had been the subject of an ongoing federal investigation, and Drug Enforcement Administration (" DEA" ) agents conducting surveillance observed the foregoing events as they occurred.

On July 6, 2004, a federal grand jury returned an eight-count indictment charging Bucci and Jordan with, among other things, conspiracy to distribute cocaine, 21 U.S.C. § 846, possession of cocaine with intent to distribute, Id. § 841(a)(1), and possession of a firearm in connection with a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A). Minotti and Muolo agreed to plead guilty to the same charges and to testify against Bucci and Jordan in exchange for lesser sentences. On April 12, 2006, a jury convicted Bucci and Jordan of all counts. This court affirmed their convictions and sentences. See Bucci, 525 F.3d at 134.

In May 2009, both Bucci and Jordan filed petitions seeking collateral relief under 28 U.S.C. § 2255. Following a three-day evidentiary hearing, the district court denied both petitions. See Bucci, 677 F.Supp.2d at 420. Bucci and Jordan both appealed, and we consolidated their cases. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a).

When a district court has held an evidentiary hearing on a petitioner's § 2255 claim, " we review its factual conclusions for clear error." Owens v. United States, 483 F.3d 48, 57 (1st Cir.2007). We review the district court's legal conclusions de novo. Parsley v. United States, 604 F.3d 667, 671 (1st Cir.2010).

II. Bucci's Right to a Public Trial

We consider first Bucci's claim regarding the partial courtroom closure that took place during jury selection, summarizing existing law and then turning to the facts of this case.


The Supreme Court made clear in

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Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), that the Sixth Amendment guarantees criminal defendants the right to a trial that is open to members of the public. This right was " created for the benefit of the defendant," as openness in criminal proceedings " encourages witnesses to come forward," " discourages perjury," and " ensure[s] that judge and prosecutor carry out their duties responsibly." Id. (internal quotation mark omitted). Closure of a trial can be justified only by an overriding interest, " such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information." Id. at 45, 104 S.Ct. 2210. " Such circumstances will be rare, however, and the balance of interests must be struck with special care." Id. In Waller, the Supreme Court provided a four-part standard for courts to apply prior to excluding the public from any stage of a criminal trial:

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

Id. at 48, 104 S.Ct. 2210.

The situation in Waller involved a suppression hearing regarding the admissibility of wiretap evidence. Id. at 41-42, 104 S.Ct. 2210. The trial court closed the courtroom to all members of the public during the entire seven-day suppression hearing. Id. at 42, 48, 104 S.Ct. 2210. The state sought to justify the closure on the grounds that a public trial would impinge upon the privacy rights of non-defendants whose conversations were also captured in the wiretap recordings, and that unnecessary publication of the evidence might render it inadmissible under state law. Id. at 41, 48, 104 S.Ct. 2210. The Supreme Court reversed. The Court reasoned that, " [u]nder certain circumstances, these interests may well justify closing portions of a suppression hearing," but the trial court had not adequately justified the closure in this case. Id. at 48-49, 104 S.Ct. 2210. The Supreme Court further held that such Sixth Amendment violations constitute structural error for which " the defendant should not be required to prove specific prejudice in order to obtain relief," because " the benefits of a public trial are frequently intangible, difficult to prove, or a matter of chance." Id. at 49 & n. 9, 104 S.Ct. 2210.1

The Supreme Court recently made clear that the Sixth Amendment right to a public trial extends to " any stage of a criminal trial," including " the voir dire of prospective jurors." Presley v. Georgia, __ U.S. __, 130 S.Ct. 721, 724, 175 L.Ed.2d 675 (2010); see also Owens v. United States, 483 F.3d 48, 66 (1st Cir.2007). In Presley, the trial judge excluded the defendant's uncle, the only spectator present at the time, from the courtroom during jury selection. Presley, 130 S.Ct. at 722. The defendant's counsel objected, but the trial court explained that, given the size of the jury pool, " [t]here just isn't space for [the public] to sit in the audience," and the " uncle cannot sit and intermingle with members of the jury panel." Id. (first

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alteration in original) (internal quotation marks omitted).

After Presley was convicted, he moved for a new trial and presented evidence showing that prospective jurors could have been accommodated in the jury box and one half of the courtroom, leaving the other half of the courtroom open for public seating. Id. The trial judge denied the motion, expressing concern that " family members [might have] intermingle[d] with the jurors." Id.

The Supreme Court reversed Presley's conviction, finding that it was " well settled" under the Court's precedents that the Sixth Amendment right to a public trial applied to jury selection. Id. at 723-24. In applying the Waller test, the Court concluded that

[t]he generic risk of jurors overhearing prejudicial remarks, unsubstantiated by any specific threat or incident, is inherent...

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