U.S.A v. Agosto-vega, 09-1158

• Decision Date: 18 August 2010
• Docket Number: 09-1159.,No. 09-1158,09-1158
• Citation: 617 F.3d 541
• Parties: UNITED STATES of America, Appellee,v.Braulio AGOSTO-VEGA, Braulio Agosto Motors, Inc., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

617 F.3d 541

UNITED STATES of America, Appellee,v.Braulio AGOSTO-VEGA, Braulio Agosto Motors, Inc., Defendants, Appellants.

Nos. 09-1158, 09-1159.

United States Court of Appeals, First Circuit.

Heard April 7, 2010.

Decided Aug. 18, 2010.

Martin G. Weinberg, with whom Francisco Rebollo-Casalduc, were on brief for appellant Agosto-Vega.

Kimberly Homan, for appellant Braulio Agosto Motors, Inc.

Lisa E. Jones, Attorney, Department of Justice, Environment & Natural Resources Division, with whom John C. Cruden, Acting Assistant Attorney General, Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Thomas F. Klumper, Desireé Laborde-Sanfiorenzo, Assistant United States Attorneys, Michael R. Fisher, United States Environmental Protection Agency Silvia Carreño, Office of the Regional Counsel, were on brief for appellee.

Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge.

This is a consolidated appeal from a jury verdict which found Appellants Braulio Agosto-Vega (Agosto) and Braulio Agosto Motors, Inc. (Agosto Motors) guilty of violating criminal provisions of the Clean Water Act (CWA), 33 U.S.C. §§ 1251 et seq.

The principal issue presented is whether Appellants were deprived of their constitutional right to a public trial pursuant to the Sixth Amendment. As will be explained more fully, we find that the District Court committed a structural error by excluding the public from the courtroom during the selection of the jury. See Presley v. Georgia, --- U.S. ----, 130 S.Ct. 721, --- L.Ed.2d ---- (Jan. 19, 2010) (per curiam). We are thus required to vacate Appellants' convictions and remand their cases for a new trial.

Nevertheless, considering that Appellants will have a new trial on the same charges, to prevent an allegation that they will be subjected to double jeopardy in violation of the Fifth Amendment by reason of this retrial, it is incumbent upon us to address Appellants' contentions that the government failed to present sufficient evidence at the first trial to allow the jury to conclude that they were guilty beyond a reasonable doubt of the charges presented against them. See United States v. Mélendez-Rivas, 566 F.3d 41, 43 (1st Cir.2009). We conclude that the government proved the charges against Appellants by sufficient evidence to establish their guilt beyond a reasonable doubt.

I. Factual background and procedural synopsis ¹

Agosto was the owner and principal officer of Agosto Motors, an automobile dealership in San Juan, Puerto Rico, as well as of another closely-held family corporation, Mansiones de Hacienda Jiménez, Inc. (Mansiones), a real estate development company which he used to develop a housing project in Río Grande, Puerto Rico called Mansiones de Hacienda Jiménez (the development, or the project). Both companies were run out of the same office, and had as officers various members of the Agosto family.

The development began selling units in 2003, with the first purchasers moving into their residences in the summer of 2004. Almost immediately, several of the new homeowners began to experience frequent overflows of raw sewage from the septic tanks located in front of their houses. These tanks would become completely full, often in a matter of days, and raw sewage would routinely overflow into the front yards, onto the sidewalks, and into streets, where it would then drain into the storm sewers. Raw sewage would also bubble up inside the homes through the toilets, the bath tubs, and the sink drains. As would be expected, the septic tank issue became contentious and was the subject of numerous meetings, telephone calls, and correspondence between the homeowners individually, the Homeowners Association, and Agosto, his representatives, and his lawyers.

Although at first Agosto paid reputable companies to dispose of the waste, he soon turned to Mansiones employees. They would use a hose to suction the raw sewage from the septic tanks and either discharge the wastewater directly into storm drains that emptied directly into Jiménez Creek (the Creek) through an underground pipe, or into a large tank truck registered to Agosto Motors, which would then be emptied into the storm drains, onto land adjacent to the Creek's basin, or into the Creek itself. The Creek is a tributary of the Espíritu Santo River, a major river on the northeastern coast of Puerto Rico, in the Municipality of Río Grande, which empties into the Atlantic Ocean.

In March and April of 2005, after receiving multiple complaints, the Puerto Rico Environmental Quality Board (EQB) and the U.S. Environmental Protection Agency (EPA) investigated the allegations regarding the discharges into the Creek, which was classified as an “SD” fluvial resource, indicating that it was suitable for drinking and recreational use. The investigation revealed that thousands of gallons of raw sewage had been discharged into the Creek. These discharges caused the water in the Creek, at times, to turn black and reek of sewage.

On May 11, 2005, Agosto and Agosto's brother Juan ² were indicted by a federal grand jury and charged with engaging in a conspiracy to violate the CWA (Count One), as well as three counts of aiding and abetting in the unlawful discharge of raw sewage from a point source into waters of the United States, namely the Creek (Counts Two through Four). See 33 U.S.C. §§ 1311 and 1319(c)(2)(A). Agosto Motors was charged with two of the three counts of aiding and abetting alleged in the indictment.

The trial began on June 18, 2008. When jury selection was about to commence, counsel for Agosto called the attention of the district judge to the fact that the court's security officers were refusing to allow members of the Agosto family into the courtroom during jury selection. The judge responded that there was no room for them or anyone not a member of the venire because “the benches are full of jurors.” The court indicated that her regular courtroom was under repair thus necessitating the use of the smaller facility, which was the only courtroom available at the time. Defense counsel suggested that the jury box be used to seat jurors, thus opening seating in the courtroom benches for the Agosto family members, a suggestion rejected by the district judge, who indicated that she wanted to keep all the jurors together. The court expressed concern regarding “family members touching potential jurors while the selection of the jury is going on.” The court maintained its view that there was not enough room for the family members at that time, and that jury empanelment was not part of the process in which it particularly mattered whether Agosto's relatives were present. It stated: “[l]isten, this is selection of the jury. There is no evidence. There is no argument. This isn't something that if relatives aren't there ... [sic]p.” Over the objections of Agosto's lawyer, the court closed the courtroom, and no one was allowed into the courtroom during the entire jury selection process. Neither defense counsel, nor the court, nor government counsel suggested that the Agosto family members be permitted to enter as room became available during the proceedings, i.e., as potential jurors were dismissed.

After selection was completed and the jury sworn, defense counsel stated for the record that Agosto's family had spent the entire day outside the courtroom waiting to come into the trial but had never been allowed into the courtroom. This was so, notwithstanding that in addition to the jury box there had also been available three empty benches in the well of the courtroom in which jurors could have been seated, thus making room for the Agosto relatives to sit in that section of the courtroom during the jury selection. The district judge indicated that it was not her practice to allow the well to be used for the purpose indicated by counsel, and again stated that space constraints had required the public's exclusion, while faulting defense counsel for failing to ask the court again to admit the family members after some of the prospective jurors had been excused. Agosto's counsel then stated that he knew “for a fact” that a courtroom security officer had prevented a member of the press from entering the courtroom during the jury selection process at a point when there were seats available by reason of jurors being excused. This assertion was not refuted in any manner by counsel for the government, but the court indicated that it did not consider counsel's assertion to be an established fact. After a sixteen-day trial, which lasted intermittently through July 24, 2008, Agosto and Agosto Motors were convicted on all counts.

In this appeal, Appellants contend that their convictions should be vacated, and their case remanded for a new trial, because their Sixth Amendment rights were violated when the district court excluded the public from the courtroom during jury selection. They also challenge the sufficiency of the evidence supporting their convictions, claiming that the government failed to prove beyond a reasonable doubt (1) that they had knowledge of the illegal discharges, and (2) that the creek into which the pollutants were dumped constitutes “navigable waters of the United States” within the meaning of the CWA. Both challenges reference essential elements of the crimes charged. Additional claims of error need not be decided as they are not relevant considering our ultimate ruling on this appeal.

II. Discussion

A. The Sixth Amendment right to a public trial

We are informed on this issue by the Supreme Court's recent decision in Presley, --- U.S. ----, 130 S.Ct. 721, --- L.Ed.2d ----, as well as by our own circuit precedents, particularly Owens v. United States, 483 F.3d 48 (1st Cir.2007). Presley was not decided until after Appellants were convicted, but Owens dates back to the year before the present trial. We begin with the facts of Presley for reasons which will become obvious.

At the commencement of Presley's...