United States v. Gomez

• Decision Date: 15 January 2013
• Docket Number: Docket No. 10–1095–cr.
• Citation: 705 F.3d 68
• Parties: UNITED STATES of America, Appellee, v. Amilcar GOMEZ, aka Goofy, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

705 F.3d 68

UNITED STATES of America, Appellee,

v.Amilcar GOMEZ, aka Goofy, Defendant–Appellant.

Docket No. 10–1095–cr.

United States Court of Appeals, Second Circuit.

Argued: Nov. 14, 2011.

Decided: Jan. 15, 2013.

Jason A. Jones, Assistant United States Attorney, Brooklyn, NY (Loretta E. Lynch, United States Attorney for the Eastern District of New York, Peter A. Norling, Carter H. Burwell, Assistant United States Attorneys, Brooklyn, NY, on the brief), for Appellee.

Edward Irizarry, New York, NY, for Defendant–Appellant.

Before: KEARSE, McLAUGHLIN, and CABRANES, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Amilcar Gomez appeals from a judgment of the United States District Court for the Eastern District of New York, Sterling Johnson, Jr., Judge, convicting him of racketeering conspiracy, in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d), murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1), and unlawful possession of a firearm, in violation of 18 U.S.C. § 924(c)(1)(A)(i), and sentencing him principally to life imprisonment. On appeal, Gomez contends, inter alia, (1) that his Sixth Amendment right to a public trial was violated when the trial judge excluded his family during the voir dire of prospective jurors; (2) that he was denied a fair trial when the court closed the evidence without giving him an opportunity to present a defense; and (3) that he was denied his Sixth Amendment right to the effective assistance of counsel because his attorney (a) failed to object to the exclusion of his family during voir dire, (b) failed to object to the evidence-closing procedure employed by the court, and (c) failed to advise Gomez of his right to testify at trial. For the reasons that follow, we affirm the judgment of conviction. We reject all of Gomez's contentions except the claim that his attorney did not advise him of his right to testify, which we decline to reach on this appeal. That issue is more appropriate for a proceeding brought under 28 U.S.C. § 2255, in which the record can be developed in the district court.

I. BACKGROUND

The trial evidence, the sufficiency of which is not challenged, may be summarized briefly as follows. La Mara Salvatrucha (“MS–13”) is a violent international street gang. Gomez was the leader of the MS–13 chapter in Jamaica, New York.

In April 2005, while Gomez was in immigration custody, he was interviewed by agents of United States Immigration and Customs Enforcement (“ICE”) and, after waiving his Miranda rights, confessed to having participated in the killing of a member of a rival gang in March 2003. Gomez agreed to cooperate with ICE in its investigation of MS–13 and was released from immigration custody so that he could assist ICE proactively. In June 2005, during two meetings at the United States Attorney's Office for the Eastern District of New York (“USAO” or “Office”), Gomez again admitted participating in the March 2003 homicide, and he admitted to various other criminal activities.

In August 2006, after Gomez failed to comply with the rules set by his ICE handlers, he was taken into custody and was named in three counts of a five-count superseding indictment. He was charged with RICO conspiracy, in violation of 18 U.S.C. § 1962(d) (Count One); using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2 (Count Two); and murder in aid of racketeering, in violation of 18 U.S.C. §§ 1959(a)(1) and 2 (Count Five). Gomez was convicted on all three counts and was sentenced principally to prison terms of 365 months on Count One, to be followed by 60 months on Count Two, and, concurrently with those terms, to imprisonment for life on Count Five.

On appeal, Gomez contends principally that he was denied his right to a public trial when the court excluded his family from the courtroom during jury selection, see Part II.A. below; that he was denied the right to testify at trial and present a defense, see Part II.B. below; and that he was denied effective assistance of counsel, see Part III below. He also complains that the district court allowed the government to treat him unfairly with respect to a proffer agreement entered into in October 2005, see Part II.C. below.

II. CHALLENGES TO THE CONVICTION AND SENTENCE

A. The Right to a Public Trial

Gomez's trial was scheduled to begin on March 30, 2009. On that day, with Gomez present, his attorney requested an adjournment, stating that Gomez wished to speak with additional witnesses. The court denied the application, and the following colloquy ensued:

THE COURT: .... We're going to trial.

Now, who are those people in the rear?

MR. AUSTER[ Gomez's counsel]: Those, I believe, are some of my client's family. I will speak to them and advise them that they should leave during the course of jury selection.

THE COURT: Well, what I want them to do, because I'm going to need those seats for the jurors who are going to come up, we're going to select the jurors. So, we'll ask them to step out and then we'll select the jurors and then they can come back in.

MR. AUSTER: Okay.

THE COURT: Okay?

MR. AUSTER: Yeah. Now—I meant “yes,” your Honor.

....

THE COURT: So, you'll have the family step out when the jury comes in ‘cause we're going to need those seats. Then when the jury's selected, they can come back in.

MR. AUSTER: Okay.

....

MR. AUSTER: Your Honor, approximately two hours for the selection of the jury, do you think?

THE COURT: Yeah, we'll—it's not going to be long....

....

MR. AUSTER: .... If I tell the[ family] two hours, is that reasonable?

....

THE COURT: Oh, yeah. Yeah.

(Trial Transcript (“Tr.”) at 3–6 (emphasis added).)

Gomez contends that this exclusion of his family from the courtroom violated his right to a public trial and that he is therefore entitled to a new trial. We disagree.

The Sixth Amendment to the Constitution grants a criminal defendant the right to a public trial, see, e.g., Waller v. Georgia, 467 U.S. 39, 43–47, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), which “extends to the voir dire of prospective jurors,” Presley v. Georgia, 558 U.S. 209, 130 S.Ct. 721, 724, 175 L.Ed.2d 675 (2010).

“ ‘The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions....' ”

Waller, 467 U.S. at 46, 104 S.Ct. 2210 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 380, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) (quoting In re Oliver, 333 U.S. 257, 270 n. 25, 68 S.Ct. 499, 92 L.Ed. 682 (1948) (other internal quotation marks omitted))); see, e.g., Morales v. United States, 635 F.3d 39, 44 & n. 11 (2d Cir.2011) (values “generally understood to be ... protected by the Sixth Amendment right to a public trial” include “(1) ensur[ing] a fair trial, (2) remind[ing] the prosecutor and judge of their responsibility to the accused and the importance of their functions, (3) encourag[ing] witnesses to come forward, and (4) discourag[ing] perjury”). And “[w]hile a public presence will more likely bring to light any errors that do occur, it is the openness of the proceeding itself, regardless of what actually transpires, that imparts ‘the appearance of fairness so essential to public confidence in the system’ as a whole.”

United States v. Gupta, 699 F.3d 682, 689 (2d Cir.2012) (“Gupta ”)(quoting Press–Enterprise Co. v. Superior Court of California, 464 U.S. 501, 508, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984)).

However, the right to a public trial “is not absolute.” Gupta, 699 F.3d at 687. The right

“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. Such circumstances will be rare, however, and the balance of interests must be struck with special care.” Waller, 467 U.S. at 45, 104 S.Ct. 2210. To overcome the guarantee's “presumption of openness,” Press–Enter. Co. v.[ ]Super. Ct. of Cal., 464 U.S. 501, 510, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (internal quotation marks omitted), trial courts must—“ before excluding the public from any stage of a criminal trial,” Presley, 130 S.Ct. at 724 (emphasis added)—satisfy themselves that the following four criteria have been met: (1) “the party seeking to close the [proceeding] 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,” Waller, 467 U.S. at 48, 104 S.Ct. 2210;accord Gibbons[ v. Savage ], 555 F.3d [112,] 116 [ (2d Cir.2009) ]; Ayala v. Speckard, 131 F.3d 62, 69 (2d Cir.1997) (in banc). In other words, if a court intends to exclude the public from a criminal proceeding, it must first analyze the Waller factors and make specific findings with regard to those factors. If a trial court fails to adhere to this procedure, any intentional closure is unjustified and will, in all but the rarest of cases, require reversal. E.g., Presley, 130 S.Ct. at 725.

Gupta, 699 F.3d at 687 (emphases in Gupta ).

A defendant claiming deprivation of the right to a public trial need not demonstrate specific prejudice in order to obtain relief, for a violation of that right is a structural error that is not subject to harmless-error review. See, e.g., Johnson v. United States, 520 U.S. 461, 468–69, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); Waller, 467 U.S. at 49–50, 104 S.Ct. 2210. “Whether an error can be found harmless,” however, “is simply a different question from whether it can be subjected to plain-error review.” Puckett v. United States, 556 U.S. 129, 139, 129 S.Ct. 1423, 173...