United States v. Negrón-Sostre, s. 10–1974

• Decision Date: 25 June 2015
• Docket Number: 10–2129.,10–2057,10–2042,10–2055,Nos. 10–1974,s. 10–1974
• Citation: 790 F.3d 295
• Parties: UNITED STATES of America, Appellee, v. José NEGRÓN–SOSTRE; Luis Rodríguez–Sostre; Josué Prez–Mercado; Ramón Maysonet–Soler; and Wilfredo Rosario–Camacho, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

790 F.3d 295

UNITED STATES of America, Appellee

v.José NEGRÓN–SOSTRE; Luis Rodríguez–Sostre; Josué Prez–Mercado; Ramón Maysonet–Soler; and Wilfredo Rosario–Camacho, Defendants, Appellants.

Nos. 10–1974

10–2042

10–2055

10–2057

10–2129.

United States Court of Appeals, First Circuit.

June 25, 2015.

Ignacio Fernández-de Lahongrais for José Negrón–Sostre.

Jorge E. Rivera–Ortiz for Luis Rodríguez–Sostre.

Allison J. Koury for Josué Pérez–Mercado.

Juan José Hernández–López de Victoria, with whom Hernández–López de Victoria, PSC was on brief, for Ramón Maysonet–Soler.

Judith H. Mizner, Assistant Federal Public Defender, for Wilfredo Rosario–Camacho.

Olga B. Castellón–Miranda, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and Tiffany V. Monrose, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, LIPEZ, and THOMPSON, Circuit Judges.

Opinion

THOMPSON, Circuit Judge.

The Sixth Amendment guarantees the right to a public trial, and “without exception all courts have held that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged.” In re Oliver, 333 U.S. 257, 271–72, 68 S.Ct. 499, 92 L.Ed. 682 (1948). We have repeatedly held that this right extends to the process of jury selection. United States v. Agosto–Vega, 617 F.3d 541, 546 (1st Cir.2010) ; Owens v. United States, 483 F.3d 48, 61 (1st Cir.2007). Yet when voir dire was conducted in this case, the defendants' family members and friends were excluded from the courtroom, allegedly due to the Puerto Rico court's “longstanding practice” of excluding the public from jury selection.

This practice, if it still exists, comes at great cost. The defendants were convicted as members of a sprawling drug conspiracy after a three-month trial. We are mindful that many days of testimony, weeks of diligent juror attention, and months of preparation led to that result. Nevertheless, the trial was doomed before it started. Because the complete exclusion of the public from jury selection infringed the defendants' Sixth Amendment rights, we are compelled to vacate the defendants' convictions and remand this case for a new trial. To ensure that holding a second trial will not subject the defendants to double jeopardy, we must also address their argument that the evidence presented at the first trial was insufficient to establish their guilt beyond a reasonable doubt.

I.Background¹

From 2001 to June 2008, a drug marketplace operated twenty-four hours a day, seven days a week at “La Quince,” a street in Altos de Cuba. It was quite an operation. With all the convenience of a supermarket, La Quince offered one-stop shopping for a number of different “brands” of cocaine, heroin, crack cocaine, marijuana, oxycodone and alprazolam.² Some of the products were colorfully packaged, others had catchy names like “Godzilla” or “Bin Laden,” no doubt intended to inspire brand loyalty in discerning users. The savvy marketers at La Quince even distributed free samples of new drug batches. Perhaps in an attempt to appeal to the youth market, La Quince was located within 1,000 feet of a public school. In short, Walmart had nothing on La Quince.

Like any prosperous retailer, La Quince had a sophisticated supply chain in place to speed inventory from storage to clientele.

Runners were responsible for storing the drugs and supplying them to the sellers as needed. Sellers, as the name implies, sold the drugs to the individual users and gave the proceeds to the runners, who delivered the cash to those at the top of the chain, the owners of each individual brand of drug.

It is the owners who are the subject of this appeal. In September 2008, seventy-four individuals were indicted for their involvement with the drug conspiracy centered in Altos de Cuba. Among them were the appellants: José Negrón–Sostre (“Negrón–Sostre”), Luis Rodríguez–Sostre (“Rodríguez–Sostre”), Josué Pérez–Mercado (“Pérez–Mercado”), Ramón Maysonet–Soler (“Maysonet–Soler”), and Wilfredo Rosario–Camacho (“Rosario–Camacho”). Each of the appellants was charged with six counts: conspiracy to possess with the intent to distribute narcotics³ within 1,000 feet of a school (Count I); aiding and abetting in the possession with the intent to distribute heroin, crack cocaine, cocaine, and marijuana (Counts II–V); and conspiracy to carry and use firearms during and in relation to drug-trafficking crimes (Count VI).

A jury trial commenced in January 2010. Three months later, the jury found the appellants guilty of Counts I through V. On Count VI, the gun charge, the jury convicted Rodríguez–Sostre, Maysonet–Soler and Rosario–Camacho, but found Negrón–Sostre and Pérez–Mercado not guilty. The appellants timely appealed, and in March 2011 they moved to supplement the record, alleging that they were denied their right to a public trial when their family members were excluded from the courtroom during jury voir dire.

On July 6, 2011, the district court held an evidentiary hearing to determine whether the public had been excluded from the courtroom in violation of the defendants' Sixth Amendment rights. In December 2011, the district court issued a memorandum and findings of fact, concluding in summary that “[n]o specific evidence was ever presented, ... that demonstrated that [a] supposed long standing district policy of not allowing the public into the courtroom during voir dire was ever followed in this case.”

II.Discussion

All of the defendants argue that their convictions should be reversed and their cases remanded for a new trial because their Sixth Amendment rights were violated because members of the public were excluded during jury voir dire.⁴ Negrón–Sostre, Rodríguez–Sostre and Maysonet–Soler also challenge the sufficiency of the evidence supporting their convictions on some, but not all, of the charges.⁵ They make a number of other claims of error, but because they are not relevant in light of our ultimate ruling vacating their convictions and remanding for a new trial, we need not reach the remainder of these arguments.⁶

A.The Sixth Amendment Right to a Public Trial

The failure to hold a public trial is a structural error that “infect[s] the entire trial process.” Owens, 483 F.3d at 64 (internal quotation marks omitted). Indeed, the Supreme Court has been “pristinely clear that the Sixth Amendment right to a public trial extends to the jury voir dire process.” Agosto–Vega, 617 F.3d at 546 (citing Presley v. Georgia, 558 U.S. 209, 213, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010) ). That is so because “[j]ury selection is the primary means by which a court may enforce a defendant's right to be tried by a jury free from ethnic, racial, or political prejudice ... or predisposition about the defendant's culpability....” Owens, 483 F.3d at 63 (first and second alterations in original) (quoting Gómez v. United States, 490 U.S. 858, 873, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989) ). In Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), the Supreme Court held that, to avoid committing structural error, courtroom closures must be justified by an overriding interest and tailored to be “no broader than necessary to protect that interest.” The defendants contend that the district court erred when the public was unjustifiably excluded from the courtroom during jury voir dire.

Because defendants did not object to the exclusion at the time of trial, “we review only for plain error.”⁷ United States v. Scott, 564 F.3d 34, 37 (1st Cir.2009). Under plain-error review, the defendants have “the burden of showing (1) that an error occurred (2) which was clear or obvious and which not only (3) affected [their] substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” United States v. Almonte–Nuñez, 771 F.3d 84, 89 (1st Cir.2014) (internal quotation marks omitted).

Was there Clear or Obvious Error?

In order to determine whether an error occurred, we must first determine whether, contrary to the district court's findings, there was, in fact, a courtroom closure. The relevant events of the January 20, 2010 jury selection were the subject of an evidentiary hearing before the same judge who presided over the trial. Following this hearing, the district court essentially determined no courtroom closing had occurred—a finding the defendants challenge on appeal. We review the district court's findings of fact for clear error.⁸ Bucci v. United States, 662 F.3d 18, 21 (1st Cir.2011). Under clear error review, we defer to the district court's findings unless “the record, read as a whole, gives rise to a strong, unyielding belief that a mistake has been made.”

United States v. Hughes, 640 F.3d 428, 434 (1st Cir.2011) (internal quotation marks omitted). We will summarize the record of that hearing, as well as the district court's findings of fact.

Courtroom Security Officer (“CSO”) Carlos Sierra–Medina (“Sierra–Medina”) had been a CSO for nineteen years and was on duty in the courtroom during voir dire. He testified to the regular practice of the court prior to 2010, saying “the tendency was that, because of the space and security, the family will not be allowed” to be in the courtroom during jury selection. Sierra–Medina testified that this practice was followed unless an attorney made a previous special arrangement with the judge; for instance one such arrangement in an earlier case involved bringing additional chairs into the courtroom for family members. He did not recall any change in this “tendency” after the publication of our decision in Agosto–Vega. ⁹

Deputy U.S. Marshal Miguel Portalatín testified that he was in charge of security for the trial and that he “didn't get any specific instructions from [the judge] as far as closing the door or leaving the door open.” He stated that he never...