United States v. Acosta-ColóN

• Decision Date: 18 December 2013
• Docket Number: 10–2466.,Nos. 10–1076,10–1115,10–1099,10–1875,s. 10–1076
• Citation: 741 F.3d 179
• Parties: UNITED STATES of America, Appellee, v. José David ACOSTA–COLÓN, a/k/a David; Jorge Fournier–Olavarría, a/k/a Mesón; Fernando L. Castillo–Morales, a/k/a Yaguita; Alexis Rodríguez–Rodríguez, a/k/a Sandro; and Daniel Guzmán–Correa, a/k/a Danny Pincho, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

741 F.3d 179

UNITED STATES of America, Appellee,

v.José David ACOSTA–COLÓN, a/k/a David; Jorge Fournier–Olavarría, a/k/a Mesón; Fernando L. Castillo–Morales, a/k/a Yaguita; Alexis Rodríguez–Rodríguez, a/k/a Sandro; and Daniel Guzmán–Correa, a/k/a Danny Pincho, Defendants, Appellants.

Nos. 10–1076, 10–1099, 10–1115, 10–1875, 10–2466.

United States Court of Appeals, First Circuit.

Dec. 18, 2013.

H. Manuel Hernández for José David Acosta–Colón.

Luis Rafael Rivera, with whom Luis Rafael Rivera Law Offices was on brief, for Jorge Fournier–Olavarría.

Carlos M. Calderón Garnier for Fernando L. Castillo–Morales.

Lydia Lizarribar–Masini for Alexis Rodríguez–Rodríguez.

Linda Backiel for Daniel Guzmán–Correa.

Myriam Yvette Fernández–González, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and Juan Carlos Reyes–Ramos, Assistant United States Attorney, were on brief, for the United States.

Before HOWARD, SELYA, and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge.

Overview

Today we deal with the fallout from a deadly drug conspiracy in Puerto Rico involving a small army of criminals affiliated with “the Combo of Dr. Pila” (from now on, “the Combo”), a vicious gang named after a local housing project where members ran one of their many drug points. The five defendants whose joint trial led to these consolidated appeals are Acosta, Fournier, Castillo, Rodríguez, and Guzmán (their full names and aliases appear in our case caption).

A federal grand jury indicted each of them for conspiring to possess and distribute illegal drugs within 1,000 feet of a public-housing facility. See21 U.S.C. §§ 841, 846, and 860. The grand jury also indicted Fournier, Rodríguez, and Guzmán—but not Acosta and Castillo—for aiding and abetting the use or carrying of a firearm “during and in relation to” a drug crime or the possession of a firearm “in furtherance” of that crime. See18 U.S.C. §§ 2 and 924(c)(1)(A). As shorthand, we shall refer to these counts as the drug-conspiracy count and the gun count.

Covering the period from January 2003 to July 2007, the indictment tagged Rodríguez and Guzmán as “leaders” in the Combo conspiracy, Acosta and Castillo as “sellers,” and Fournier as a “facilitator.” These five were not the only ones indicted. Far from it. The grand jury also indicted 90 others on similar charges. But some of them copped pleas and agreed to testify for the government at our defendants' trial.

After hearing what these and other witnesses had to say, the jury filled out defendant-specific verdict forms, finding, essentially, each defendant guilty as charged and picking drug-weight ranges for the drugs each defendant conspired to possess and distribute—all while using a beyond-a-reasonable-doubt standard. The only slight wrinkle on the conviction front is that the jury found Acosta—and Acosta only—not guilty of participating in drug-related conspiracy activities within 1,000 feet of a public-housing project. Later, the district judge imposed the following prison sentences: Acosta, 151 months on the drug-conspiracy count; Fournier, 78 months on the drug-conspiracy count plus 60 consecutive months on the gun count; Castillo, 120 months on the drug-conspiracy count; Rodríguez, 240 months on the drug-conspiracy count and 60 consecutive months on the gun count; and Guzmán, life on the drug-conspiracy count plus 60 consecutive months on the gun count.

Their appeals raise a staggering number of issues for review, though not all require our extended attention. To make our opinion manageable, we sort the issues out person by person, highlighting only those facts needed to put things in perspective. And for anyone wishing to know our ending up front, we note that when all is said and done we affirm across the board.

Acosta

(1)

Public Trial

Acosta starts things off by accusing the district judge of closing the courtroom to “the public” during the jury-selection process. The judge's action, he insists, denied him his Sixth Amendment right to a public trial. SeeU.S. Const. amend. VI. The backstory, at least so far as the record discloses, may be swiftly summarized.

Just before picking the jury, the district judge called counsel to sidebar. “I've been informed by my [court-security officer],” the judge said, “that the marshals informed him that three buses” that looked like “school buses” had “arrived here with persons who have T-shirts saying, ‘Danny, we support you and we back you.’ ” “Danny” is defendant Guzmán. Anyway, “I'm not going to allow that,” the judge added, “and none of those persons are going to walk into the courtroom. They are going to be sent back[,] and they are going to be—”. Guzmán's counsel interrupted, saying, “I don't think that's appropriate. I had no idea. Send them back.” At the risk of stating the obvious, context makes clear that counsel was calling the bus-riders' actions inappropriate, not the judge's ruling. And while the judge did not blame the lawyers, he did stress that he would not “tolerate any activity like that from any of the defendants.” Tell “you[r] clients” to “behave,” he continued, or else “I'm going to exclude them from the courtroom,” install “a camera next” to “the holding cells,” and let them “watch the trial from there.” “Very well,” Rodríguez's lawyer said, followed immediately by the judge's saying, “I'm going to order the marshals to remove them from the court.”

Every criminal defendant has a Sixth–Amendment right to a public trial—a right designed to ensure a fundamentally fair process, since the public's very presence there helps keep judges, prosecutors, and witnesses on their toes. See, e.g., Waller v. Georgia, 467 U.S. 39, 46–47, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). But this public-trial right is not absolute and must be balanced against other important considerations in the administration of justice. See, e.g., id. at 45, 104 S.Ct. 2210. For example, a judge may close the courtroom to all members of the public if he detects a compelling interest that needs protecting, considers sensible closure alternatives, ensures that closure is no broader than required, and makes findings sufficient to support his ruling. See, e.g., Presley v. Georgia, 558 U.S. 209, 213–14, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010) (adding that when a defendant objects to a closure but does not offer alternatives, the judge must think of some on his own); Owens v. United States, 483 F.3d 48, 61–62 (1st Cir.2007). On the other hand, a judge may order a partial courtroom closure—partial, because only some members of the public are kept out—if he pinpoints a substantial interest that needs protecting and then does the other things that we just listed. See, e.g., Bucci v. United States, 662 F.3d 18, 23 (1st Cir.2011) (citing United States v. DeLuca, 137 F.3d 24, 34 (1st Cir.1998)).

Acosta is having a devil of a time explaining what type of closure happened here. First he says that the judge barred “the public in general” during this phase of the trial, not just Guzmán's t-shirt-wearing supporters, apparently. Backing off a bit, then he says (emphasis ours) that at the very “least” the judge barred “defendants' families.” Later still, he says that the judge “may” have barred his family, friends, and supporters (hardly a take-it-to-the-bank kind of statement). And he says all this without citing to the record.

Even pushing that failure aside, Acosta cannot overcome this problem: The judge put the exclusion matter squarely on the table for all the defendants' lawyers at sidebar, explaining what he intended to do with the t-shirt wearers. Each attorney had the chance to speak up. And attorneys for two of Acosta's codefendants did precisely that. But not Acosta's lawyer—he said nothing, despite the judge's placing the issue front and center and the other lawyers' voicing their opinion on this weighty subject. Fournier's attorney peeped no words of protest either, which is a problem for him, as we shall shortly see. Ultimately, then, given the particular facts of our case, we conclude that Acosta's lawyer had to know that he had to chime in on the exclusion issue—as others had—or else waive any claim. So his silence constitutes classic waiver, rather than forfeiture, which means that he cannot challenge the judge's ruling even as plain error. See, e.g., United States v. Christi, 682 F.3d 138, 142 (1st Cir.2012) (Souter, J.) (citing, among other cases, Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960), which deems a courtroom-exclusion issue waived if counsel knew about the exclusion and “saw no disregard of a right” but now peddles the argument “as an afterthought on appeal”).

(2)

Alibi Witness

Acosta also challenges the judge's decision banning him from calling his wife as an alibi witness at trial. Here is what happened.

Shortly after the indictment issued, the government, relying on Fed.R.Crim.P. 12.1, demanded that each defendant give notice of any alibi defense that they intended to use. Rule 12.1(a) provides that a request like that “must state the time, date, and place of the alleged offense.” And the version of the Rule in effect at the relevant time said that if the defendant wishes to raise an alibi defense, he must—within 10 (now 14) days—notify the government in writing of his intent to do so. And the government's request here stated:

The defendant committed the charged offense throughout the years 2003, 2004, 2005, 2006, and until July 2007, during the day and night hours, in or within the Dr. Pila Public Housing Project; and/or within the Ponce Housing Public Housing Project; the José M. Gándara Public Housing Project; the Portugues Public Housing Project; the Los Rosales Public Housing Project; and within the Municipalities of Ponce and Juana Díaz, Puerto Rico.

One of Acosta's then-codefendants, José Ríos Santiago (“Ríos”), who later pled guilty to the...