Bucci v. US, Civil Action No. 09-10775-WGY

• Decision Date: 31 December 2009
• Docket Number: 09-10787-WGY.,Civil Action No. 09-10775-WGY
• Parties: Anthony BUCCI, Petitioner, v. UNITED STATES, Respondent. David Jordan, Petitioner, v. United States, Respondent.
• Court: U.S. District Court — District of Massachusetts

677 F.Supp.2d 406

Anthony BUCCI, Petitioner, v. UNITED STATES, Respondent.

David Jordan,¹ Petitioner, v. United States, Respondent.

Civil Action Nos. 09-10775-WGY, 09-10787-WGY.

United States District Court, D. Massachusetts.

December 31, 2009.

Raymond A. Mansolillo, Boston, MA, for Petitioner.

John T. McNeil, S. Theodore Merritt, United States Attorney's Office, John Joseph Moakley, Boston, MA, for Respondents.

MEMORANDUM AND ORDER

YOUNG, District Judge.

I. INTRODUCTION

Pursuant to 28 U.S.C. § 2255, Anthony Bucci ("Bucci") seeks to vacate his sentence due to alleged constitutional violations during his trial and sentencing. Bucci's Pet. Doc. No. 398². He presents five grounds for his relief. Bucci's Mem. Supp. § 2255 Mot. ("Bucci's Mem.") Doc. No. 400. In Ground One, Bucci alleges that his right to a public trial was violated because the judge closed the courtroom to the public during jury empanelment. Bucci next claims that the prosecution violated its duty to disclose evidence exculpating Bucci, Ground Two, and committed other outrageous misconduct, Ground Three. In Grounds Four and Five Bucci alleges ineffective assistance of counsel at the trial and sentencing proceedings. The government denies each of these claims. Government's Mot. Summ. Dismissal ("Gov.'s Mem.") Doc. No. 413.

A. Procedural Posture

Bucci was tried before a jury in the United States District Court in March 2006. He was convicted on Counts 1, 2, and 5 (conspiracy to distribute cocaine, aiding and abetting, and possession with intent to distribute cocaine) as well as on Count 3 pursuant to 18 U.S.C. 924(c)(1)(A) (using or carrying a firearm during and in relation to a drug trafficking crime). He was sentenced to a total of 252 months, 168 months on drug charges (Counts 1, 2, and 5) and a consecutive term of 84 months pursuant to 18 U.S.C. § 924(c)(1)(A) for the firearm charge (Count 3). Bucci's Mem. 88. On appeal, Bucci's conviction and sentence were affirmed. United States v. Bucci, No. 06-2746 (1st Cir. May 13, 2008) Doc. No. 390.

B. Facts

This case involves a number of drug dealers: Bucci, Jon Minotti ("Minotti"), Carlos Ruiz ("Ruiz"), and a corrupt police officer David Jordan ("Jordan"). Bucci, unsatisfied with the quality of drugs purchased from Ruiz, intended to steal drugs from Ruiz, and needed assistance. He approached Minotti, a long time friend of Jordan. The three planned to arrange a transaction between Ruiz and Bucci with Minotti as a middleman. When Minotti went to transfer three kilograms of cocaine from Ruiz's car to Bucci's car, in accordance with the scheme, Jordan arrived at the scene and identified himself as a Malden Police Officer. Jordan was in plain clothes and he pointed a gun at Ruiz's head. Minotti escaped with the narcotics, and both Ruiz and Bucci were let go after Jordan frisked and questioned them. Unbeknownst to Jordan, police were monitoring Ruiz's transactions, and Jordan's involvement was soon discovered.

C. Federal Jurisdiction

This Court may exercise jurisdiction over Bucci's petition for habeas corpus under 28 U.S.C. § 2255 because he is detained pursuant to conviction and a sentence from a federal court.

II. ANALYSIS

A. Standard of review

Pursuant to 28 U.S.C. § 2255, a court may discharge or resentence a defendant if it concludes that the sentence "was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). As a general matter, claims not raised on direct appeal may not be raised on collateral proceedings such as a petition pursuant to 28 U.S.C. § 2255, unless the petitioner shows cause that excuses the procedural default, and actual prejudice that resulted from the alleged error. United States v. Frady, 456 U.S. 152, 167, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). "The habeas petitioner must show `not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (citing Frady, 456 U.S. at 170, 102 S.Ct. 1584).

B. Bucci's claims

1. Courtroom closure (Ground One)

Bucci claims that the exclusion of some of his family and friends from the courtroom during jury empanelment violated his Sixth Amendment right to a public trial. Because Bucci procedurally defaulted on this Sixth Amendment claim, he must normally show cause and actual prejudice. Frady, 456 U.S. at 167-68, 102 S.Ct. 1584. If, however, a total closure of the courtroom occurred without sufficient justification as Bucci contends, this would constitute "structural error," relieving Bucci of the burden to show actual prejudice. Owens v. United States, 483 F.3d 48, 64 (1st Cir.2007) ("A defendant who is seeking to excuse a procedurally defaulted claim of structural error such as failure to hold a public trial need not establish actual prejudice.").

While there is no record of courtroom closure in the official trial transcript, Bucci alleges—and the government does not deny—that on the morning of March 20, 2006, the courtroom was cleared of spectators to make way for the jury venire and not all members of the public were allowed back in that morning. This Court held an evidentiary hearing over the course of three days better to determine the course of events as they unfolded during the first day of Bucci's trial. During the hearing, the Court heard the testimony of witnesses present on March 20, 2006, including some members of Bucci's friends and family, the courtroom deputy clerk assigned to Judge Reginald Lindsay ("Judge Lindsay"), the official court reporter for the session, the jury commissioner, and Bucci's trial lawyers. This Court finds the following facts:³

a. Findings of fact

Jury empanelment for the Bucci-Jordan criminal trial was scheduled to take place on Monday, March 20, 2006. Judge Lindsay, who was wheelchair bound, presided over the trial in Courtroom 11 of the John Joseph Moakley Courthouse. Courtroom 11 was and still is the only courtroom in the building equipped with a lift that enabled Judge Lindsay to get onto the bench. The public area in Courtroom 11 has fourteen benches, each of which seat four people comfortably, for a normal capacity of fifty-six persons. Hr'g Tr. vol. 3 at 15. Prior to March 20, realizing that this trial involved two defendants, one of whom was a police officer, Courtroom Deputy Clerk Lisa Hourihan ("Ms.Hourihan") arranged to obtain a larger venire than usual. After a discussion with Judge Lindsay, Ms. Hourihan ordered sixty-five jurors. Hr'g Tr. vol. 1 at 12-13; Hr'g Tr. vol. 3 at 5.

On March 20, 2006, the Official Court Reporter for the session Deborah Joyce ("Joyce"), as was her routine, unlocked the doors of the courtroom prior to 9:00 a.m. Hr'g Tr. vol. 1 at 92-93. Once the doors were unlocked, various members of the public including, Bucci's mother, Rosemarie Keefe ("Mrs.Keefe"); Bucci's wife, Melissa Bucci ("Mrs.Bucci"); Jordan's wife ("Mrs.Jordan"), Michael Kevin Dupont⁴ ("Dupont"); other members of the defendants' family and friends; and a few other spectators, took seats in the public area of the courtroom. Id. at 18-19, 95-96; Hr'g Tr. vol. 2 at 13-14; Bucci's Mem., Ex. 7. Between the time that the doors opened and the time that the jury venire was brought to the courtroom, counsel for the government and the defendants as well as the courtroom staff went about setting up for the proceedings. Judge Lindsay was not present in the courtroom and he did not enter the courtroom at any time before the jury venire was already present. Hr'g Tr. vol. 1 at 15, 17, 99; Hr'g Tr. vol. 3 at 28.

When the Jury Commissioner notified Ms. Hourihan that the venire was ready to come up to the courtroom, there were approximately twelve to twenty-five spectators seated in the public area. Realizing that there would hardly be room for the sixty-five potential jurors as the courtroom comfortably sat fifty-six persons, Ms. Hourihan asked spectators sitting in the public area to clear the courtroom to make way for the jury. Hr'g Tr. vol. 1 at 17-18, 94. As the public exited the courtroom into the hallway, Dupont told Ms. Hourihan that Bucci's family members had a right to be present for the jury selection. Id. at 19-20. Ms. Hourihan then went out through the back doors of the courtroom and consulted Judge Lindsay. Id. at 20, 96. Afterwards, Ms. Hourihan cleared a bench in the first row on the left side of the courtroom (facing towards the bench), which was usually kept vacant because the audio/video podium blocked it from the judge's line of sight. Id. at 20. Ms. Hourihan went out into the hallway and invited Mrs. Keefe, Mrs. Bucci, and Mrs. Jordan to come back in and sit at this bench in the first row. Id. at 21, 96-97; Hr'g Tr. vol. 3 at 23; Hr'g Tr. vol. 2 at 98.

While Mrs. Keefe, Mrs. Bucci, and Mrs. Jordan took their seats, the venire lined up outside the courtroom in the order their names had randomly been placed on the jury list, as was the practice of the session. Hr'g Tr. vol. 3 at 6. Shortly thereafter, they were brought into the courtroom and filled in the remaining benches, preserving the order in which they had lined up.⁵ The venire sat shoulder to shoulder, five persons to a bench rather than the usual four, given that there were thirteen benches left and sixty-five venire members. Ms. Hourihan then called the court to order, Judge Lindsay came onto the bench, and the proceedings began at 10:40 a.m., at which time the official transcript also begins. Trial Tr. Jury Trial Day One, 1, March 20, 2006. This Court explicitly finds that the record maintained by Joyce was a complete and accurate record of the events in court starting at 10:40 a.m. that...