U.S. v. Alcantara, No. 02-1010.

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Straub
• Citation: 396 F.3d 189
• Parties: UNITED STATES of America, Appellee, v. Diomedes ALCANTARA, also known as Lenox Estefan, also known as Josie Alcantara, also known as Diomedes Alcantara, also known as El Princepe, also known as Fnu Lnu; Edwin Pujols, also known as El Gordito; Jose Gilberto Deleon; Melbin Garcia; Ramon Emilio Rodriguez; Edison Antonio Genao-Almanzar; Marco Perez; Gonzalo Gasso, Defendants, Carlos Goiry, also known as The Engineer, Defendant-Appellant. United States of America, Appellee, v. Luz Marina Munoz, also known as Tusa, Defendant-Appellant.
• Decision Date: 24 January 2005
• Docket Number: No. 03-1061.,No. 02-1010.

396 F.3d 189 UNITED STATES of America, Appellee,
v.
Diomedes ALCANTARA, also known as Lenox Estefan, also known as Josie Alcantara, also known as Diomedes Alcantara, also known as El Princepe, also known as Fnu Lnu; Edwin Pujols, also known as El Gordito; Jose Gilberto Deleon; Melbin Garcia; Ramon Emilio Rodriguez; Edison Antonio Genao-Almanzar; Marco Perez; Gonzalo Gasso, Defendants,
Carlos Goiry, also known as The Engineer, Defendant-Appellant.
United States of America, Appellee,
v.
Luz Marina Munoz, also known as Tusa, Defendant-Appellant. No. 02-1010. No. 03-1061. United States Court of Appeals, Second Circuit. Argued: March 9, 2004 and May 18, 2004. Decided: January 24, 2005.

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Anthony L. Ricco (John M. Rodriguez, on the brief), New York, NY, for Defendant-Appellant Carlos Goiry.

John A. Cirando, D.J. & J.A. Cirando, Esq., Syracuse, NY, for Defendant-Appellant Luz Marina Munoz.

Kim A. Berger & Miriam H. Baer, Assistant United States Attorneys (Marc L. Mukasey, Assistant United States Attorney, of counsel; James B. Comey & David N. Kelley, United States Attorneys for the Southern District of New York, on the briefs), New York, NY, for Appellee.

Before: WALKER, Chief Judge, CARDAMONE, WINTER, STRAUB, and LAY,^* Circuit Judges.

STRAUB, Circuit Judge.

Defendant-Appellant Carlos Goiry appeals from a judgment entered on January 10, 2002, by the United States District Court for the Southern District of New York (Shirley Wohl Kram, Judge), convicting him, after a guilty plea, of conspiracy to distribute and possess with intent to distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. The District Court sentenced Goiry to 135 months' imprisonment, to be followed by five years' supervised release, and a $100 mandatory special assessment. Defendant-Appellant Luz Marina Munoz appeals from a judgment entered by the same court on October 22, 2002, convicting Munoz, after a guilty plea, of conspiracy to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), and 846. The District Court sentenced Munoz to 46 months' imprisonment, to be followed by four years' supervised release, and a $100 special assessment.

Oral arguments were heard in the appeals of the Munoz and Goiry cases by two panels of this court on March 9, 2004, and May 18, 2004, respectively.¹ We have consolidated these cases for purposes of disposition on appeal because they raise a similar issue. In both cases, the District Court conducted important criminal proceedings in the robing room² rather than in the open courtroom. Munoz entered her plea in the robing room and Goiry was sentenced in the robing room.

The public and press have a qualified First Amendment right of access to

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plea and sentencing proceedings. United States v. Haller, 837 F.2d 84, 86-87 (2d Cir.1988); In re Washington Post Co., 807 F.2d 383, 389 (4th Cir.1986). Therefore, "[t]he power to close a courtroom where proceedings are being conducted during the course of a criminal prosecution ... is one to be very seldom exercised, and even then only with the greatest caution, under urgent circumstances, and for very clear and apparent reasons." United States v. Cojab, 996 F.2d 1404, 1405 (2d Cir.1993). Before excluding the public from such proceedings, district courts must make findings on the record demonstrating the need for the exclusion. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13-14, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986); Haller, 837 F.2d at 87. In addition, two decades ago, we established procedures for providing notice to the public that must be followed before closing a proceeding to which a First Amendment right of access attaches. To ensure that members of the public have notice that a motion to close the courtroom has been made, and have an opportunity to challenge the closure, a closure motion — whether made by a party or by the court sua sponte — must be docketed in the public docket files maintained in the court clerk's office. See In re The Herald Co., 734 F.2d 93, 102-03 (2d Cir.1984).

Here, the District Court apparently decided sua sponte to conduct Goiry's sentencing and Munoz's plea proceeding in the robing room, and did not provide notice to the public of its intention to close the proceedings as is required by Herald. In neither case did the court make findings on the record demonstrating the need for closure. There is no indication in the record of either case that there were circumstances present that would warrant closed proceedings. The public and press have a right to trust that the rules and procedures we have established will be followed. Therefore, in the exercise of our supervisory powers, we remand both cases to the District Court for further proceedings to be held in the public courtroom.

We also conclude that conducting Munoz's plea proceeding in the robing room violated Federal Rule of Criminal Procedure 11, which requires that such proceedings be conducted in "open court," and that conducting Goiry's sentencing in the robing room violated 18 U.S.C. § 3553(c), which requires that the District Court state in "open court" its reasons for imposing the sentence. Although we need not reach those issues because we are remanding both cases under our supervisory powers, we believe Rule 11 and § 3553(c)'s were clearly violated and thus address the issues to provide guidance to district courts.

BACKGROUND

I. LUZ MARINA MUNOZ

On December 19, 2001, Munoz pleaded guilty to a single count of conspiracy to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), and 846. The transcript of the plea proceeding indicates that it was held in the District Court's robing room,³ and the parties agree that the proceeding indeed occurred in the robing room.

No motion to close the plea proceeding was docketed by the District Court on the public docket sheet maintained by the clerk's office. Rather, the docket sheet indicates that on November 30, 2001, the court ordered "that the pre-trial conference in this matter is adjourned ... until 12/19/01 at 2:00 p.m. in Room 906, 40 Centre Street, New York, New York."

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Room 906 is the District Court's courtroom. The docket sheet does not indicate the fact that Munoz's plea proceeding was instead held in the robing room.

The transcript from Munoz's plea proceeding demonstrates that the District Court conducted a thorough plea colloquy. In response to questions from the court, Munoz indicated that she was aware of the nature of the proceedings, understood the rights she was waiving by pleading guilty, and was satisfied with her attorney. She further indicated that she had discussed the United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.") with her attorney, and was aware of the minimum and maximum penalties applicable to the charge to which she was pleading guilty. She then described her participation in a conspiracy to distribute cocaine, and pleaded guilty to the count charged.

On June 26, 2002, six months after the guilty plea, the District Court conducted an evidentiary hearing to determine if Munoz was entitled to "safety-valve" relief. See 18 U.S.C. § 3553(f)(1)-(5); U.S.S.G. §§ 2D.1.1(b)(6), 5C1.2 (2001). At this hearing, which was held in the courtroom, Munoz admitted that she was guilty of the offense with which she had been charged and described in detail her involvement in the crime. On October 7, 2002, the District Court held that Munoz had truthfully disclosed all the information she had regarding her offense and was entitled to safety-valve relief.

On October 9, 2002, the court sentenced Munoz to 46 months' imprisonment, to be followed by four years' supervised release, and a $100 special assessment. It appears that Munoz's sentencing proceeding was held in the courtroom.

On November 15, 2002, Munoz sent a letter to the District Court in which she stated that she wanted to appeal but "didn't have the support of [her] attorney." Although Munoz did not file a notice of appeal within 10 days of judgment as required by Federal Rule of Appellate Procedure 4(b)(1)(A), the District Court found that Munoz had made a sufficient showing of "excusable neglect or good cause," and extended the time for filing to 30 days. See Fed. R.App. P. 4(b)(4).

Munoz did not object in the District Court to the fact that her plea proceeding was held in the robing room. However, on appeal, Munoz argues that the District Court's acceptance of her guilty plea in the robing room instead of in the open courtroom violated Federal Rule of Criminal Procedure 11 and her Sixth Amendment right to a public trial. She also argues that her plea should be vacated because she received ineffective assistance of counsel.

II. CARLOS GOIRY

On October 6, 2000, Goiry appeared before Magistrate Judge Kevin Nathaniel Fox and pleaded guilty to conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846.⁴ After conducting a thorough plea proceeding in the courtroom, Magistrate Judge Fox stated his intention to recommend to the District Court that Goiry's guilty plea be accepted. By an order dated April 16, 2001, the District Court accepted Goiry's plea.

Before sentencing, the United States Probation Office prepared a presentence investigation report ("PSR"). The PSR determined that Goiry's base offense level was 38 under U.S.S.G. § 2D1.1(c)(1) (2000) based on drug quantity, and that Goiry was entitled to a three-level reduction under

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U.S.S.G. § 3E.1.1(a) and (b) based on his timely plea and acceptance of responsibility. The PSR did not recommend any adjustments for Goiry's role in the offense. The PSR further determined that Goiry, under the Guidelines, had a Criminal History Category of I, and based on an adjusted...