Professional Documents
Culture Documents
Before
Torruella, Lipez, and Thompson,
Circuit Judges.
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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."
We
have repeatedly held that this right extends to the process of jury
selection.
Cir. 2010); Owens v. United States, 483 F.3d 48, 61 (1st Cir.
2007).
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marijuana,
oxycodone
and
alprazolam.2
Some
of
the
Perhaps in an
Like
any
prosperous
retailer,
La
Quince
had
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
them
were
the
appellants:
Jos
Negrn-Sostre
("Negrn-
Sostre"), Luis Rodrguez-Sostre ("Rodrguez-Sostre"), Josu PrezMercado ("Prez-Mercado"), Ramn 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).
Three months
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
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public
were
excluded
during
jury
voir
dire.4
Negrn-Sostre,
Agosto-Vega, 617
F.3d at 546 (citing Presley v. Georgia, 558 U.S. 209, 213 (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 Gmez v. United
States, 490 U.S. 858, 873 (1989)).
United States v.
[their]
substantial
rights,
but
also
(4)
seriously
We note that the government did not argue that the failure to
object constitutes waiver and, indeed, the government urges us to
apply the plain error standard.
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January
20,
2010
jury
selection
were
the
subject
of
an
evidentiary hearing before the same judge who presided over the
trial.
United States v. Hughes, 640 F.3d 428, 434 (1st Cir. 2011)
practice of the court prior to 2010, saying "the tendency was that,
Bucci v.
because of the space and security, the family will not be allowed"
to be in the courtroom during jury selection.
Sierra-Medina
to keep people out of the courtroom because "we didn't have space,
so I didn't have to tell anybody."
locked, and jurors exited freely when released, Portalatn did not
recall seeing any family members in the courtroom during jury
selection.
Defendant Rosario-Camacho's sister, Maribel Rodrguez,
testified that she attempted to enter the courtroom on the morning
of jury selection and was asked by someone, "it could be security
She
testified that she told her brother's attorney that she had not
been allowed in the courtroom and he said, "Don't worry, just wait
in here, outside.
her
selection.
entry
into
the
courtroom
on
the
morning
of
jury
asked her husband's attorney if she could enter the courtroom and
was told that only the lawyers, prosecutors, judge, defendants and
potential jurors were allowed inside and that "that's something
that is usual."
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the
family
members
testified,
several
of
the
Mercado's counsel, testified that she had tried "more than 40"
cases and that "it has been a practice, as far as I can remember,
that during jury selection, the public, the family members, are not
allowed in court."
did not object because "[it] was the standard proceeding in this
court." Alexander Zeno, counsel for Maysonet-Soler, testified that
he had been an attorney for ten years and that it was his
understanding that "nobody from the public could come into the
courtroom"
during
the
jury
selection
process.
Like
Ramos-
testified
that
has
been
practicing
in
the
District of Puerto Rico since 1989, and that "[i]t was a matter of
general information" that family members were not allowed in the
courtroom for voir dire.
10
Finally, Rosario-Camacho's
following
Following
the
findings
of
hearing,
fact,
the
district
pertinent
to
court
this
made
appeal:
the
1)
11
did not request authority from the court to exclude the public, the
doors were not locked, and "the public was not excluded from the
courtroom due to a Court order or a determination by the deputy
marshal in charge;" 3) family and friends were present in the
courthouse, but no members of the public entered the courtroom and
those who attempted to look through the windows in the courtroom
door were told to step away from the door; 4) neither the court nor
the deputy marshal ordered the courtroom closed; 5) none of the
attorneys objected to the courtroom closure, and although they all
testified that closing the courtroom was standard practice in the
district, "[n]o specific evidence was ever presented, however, that
demonstrated that this supposed long standing district policy . . .
was ever followed in this case."
finding that
the failure of the defendants' family members
to enter the courtroom was due to the
attorneys informing the family members that
they could not enter the courtroom during the
jury selection process, but not because of any
Court Order or determination by the deputy
marshal in charge to exclude the public.
Counsel did not object precisely because there
was nothing to which object [sic].
In our review of the district court's findings, we begin
by noting that the court did not specifically determine that the
courtroom was not closed. Instead, it found that every seat in the
courtroom was taken by potential jurors, the courtroom doors were
not locked, and "the public was not excluded from the courtroom due
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unauthorized
closure
of
courtroom
impeded
public
is
not
intentional
or
dispositive.
inadvertent
Id.
is
("Whether
the
constitutionally
closure
was
irrelevent.")
(quoting Walton v. Briley, 361 F.3d 431, 433 (7th Cir. 2004)).
What matters is that the public was barred. Id. (citing Martineau
v. Perrin, 601 F.2d 1196, 1200 (1st Cir. 1979), for the proposition
that the Sixth Amendment is implicated when marshals lock a
courtroom without authorization).
Here,
the
district
court,
without
finding
that
the
Undeniably, the
12
Prez-Mercado's attorney testified that she told PrezMercado's sister she could not enter the courtroom during jury
selection, and told the same to Prez-Mercado about his sister.
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contravention
beforehand.13
of
the
general
practice
--
with
the
judge
the
public.
In
that
way,
his
testimony
serves
to
during
attributable
attorneys.
to
jury
selection.
court
personnel
Moreover,
at
least
as
the
much
closure
as
to
was
the
were wholly responsible for the family members' exclusion from voir
dire.
to
without
the
public
for
an
entire
day
meeting
the
strict
Id. at 66.
as follows:
(1) the party seeking to close the hearing
must advance an overriding interest that is
likely to be prejudiced,
(2) the closure must be no broader than
necessary to protect that interest,
(3) the trial court must consider reasonable
alternatives to closing the proceeding, and
Almonte-Nuez, 771
F.3d at 89.
Although a brief, inadvertent closure may be excusable,
the exclusion of the public for the entirety of voir dire without
meeting the Waller test is a structural error.
F.3d at 543.
Agosto-Vega, 617
process.
Id.
Id.
here where the public, including the family and friends of the
defendants, was excluded.
We
and
no
criminal
punishment
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may
be
regarded
as
fundamentally fair."
and
integrity
of
the
proceedings
would
not
be
Although
got started, could only have been sustained and implemented by the
court, not by defense attorneys.
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Id.
The
access
to
defendants'
jury
voir
dire
substantially
Accordingly, we
vacate the defendants' convictions and remand their cases for a new
trial.
retrial,
contentions
it
that
is
the
incumbent
government
upon
failed
us
to
to
address
present
[their]
sufficient
Id.
-21-
United States v.
Alfredo Sierra-
According to Sierra-
He
described how the drugs were packaged with different brightlycolored papers that corresponded to a variety of brand names and
owners.
the losses the owners would suffer if police arrested a seller and
confiscated the drugs.
15
and
Maysonet-Soler
Sierra-Garca
described
hierarchy
at
La
Quince
The La
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According to Robles-
Quince
offered
not
only
vast
selection,
but
twenty-four hour schedule, with two shifts for the sale of cocaine,
heroin and other drugs starting at 6:00 a.m. and 6:00 p.m.
Shifts
for crack cocaine, however, began at 7:00 a.m. and 7:00 p.m. These
separate shifts were tailored to serve that particular market
because, according to Sierra-Garca, crack users "would come in at
six."
During
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point regularly, and that the men met and had discussions there.
But even the best-managed business occasionally has personnel
problems. According to Sierra-Garca, a dispute arose at La Quince
over the sale of cocaine, leading Maysonet-Soler to shoot at
Rodrguez-Sostre's sister.
impact
business,
problem."
several
held
meeting
"to
fix
the
were present at this meeting where peace was restored when the
owners agreed that Rodrguez-Sostre would be allowed to "finish off
some bundles" of his inventory at the drug point before MaysonetSoler would be allowed to take over.
Defendants Negrn-Sostre, Rodrguez-Sostre, and MaysonetSoler have each challenged the sufficiency of the evidence of some,
but not all, of the charges against them.
16
and
distribute
drugs
in
violation
of
21
U.S.C.
841(a)(1), 846, and 860, but only Rodrguez-Sostre and MaysonetSoler have challenged the sufficiency of the evidence supporting
this charge.
United States v.
and
Maysonet-Soler
argue
that
the
over-arching
conspiracy,
and
thus
variance
existed
We look to the
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In evaluating the
common
purpose,
e.g.,
the
distribution
of
drugs;
(2)
United States v. Portela, 167 F.3d 687, 695 n.3 (1st Cir.
1999).
Id. at 695.
Although Maysonet-Soler owned brands of cocaine, and RodrguezSostre heroin, they both shared an interest in furthering the
distribution of drugs at the La Quince drug point.
We next consider interdependence. Interdependence was at
the very heart of La Quince -- a highly-organized drug supermarket
where
owners
worked
cooperatively
to
maximize
profits.
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Id at 90.
Id.
La
It is reasonable to infer
depends."
Portela,
167
F.3d
at
695
(alterations
in
"[E]vidence of an
The jury heard testimony that sellers sold drugs for multiple
From this
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owners
met
to
resolve
the
problem
that
arose
after
the
participants,
with
Negrn-Sostre
wearing
two
hats,
The highly-organized
nature of the shift system and the meetings between the owners all
suffice to show overlap.
The defendants argue, however, that there were many
groups selling drugs independently, and the fact that there were
different brands of drugs was indicative of independent lines of
supply. Further, they assert that because the owners did not share
profits, and there was "no central figure" in control, La Quince
played
host
conspiracy.
to
multiple
conspiracies,
rather
than
single
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There
is
no
requirement
that
the
members
of
the
There is
In United States v.
Dellosantos, 649 F.3d 109, 121 (1st Cir. 2011), we applied the
supermarket simile to determine that multiple conspiracies existed
where cocaine from one "chain" of three suppliers, and marijuana
from another chain of two different suppliers, was sold by a single
owner.
chains were part of separate conspiracies, and the fact that their
products were sold by a single "supermarket" owner did not make
"the members of the two separate chains overall business partners."
Id.
and Maysonet-Soler not only owned the brands, but they ran the
supermarket.
It is the
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location
--
with
security,
ample
inventory,
and
staffed
by
while
the
analysis
of
common
goals,
single
demonstrates
the
conspiracy.17
defendants'
Moreover,
knowledge
the
of
same
and
evidence
voluntary
Negrn-
17
Maysonet-
Soler argues that, while there "may have been evidence that [he]
agreed with other persons to sell cocaine," the evidence failed to
show that he aided and abetted the possession with intent to
distribute heroin, crack cocaine, and marijuana (Counts II, III,
and V).
In essence, the defendants argue that the evidence did
not connect each of them to any of the illicit drugs other than
their own brands.
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demonstrating
the
"that
defendant
consciously
shared
the
It is
themselves
with
"supermarket" at La Quince.
the
venture
of
operating
drug
drug
point.
The
government
"is
entitled
to
rely,
even
reasonable
doubt."
Lugo-Guerrero,
-33-
524
F.3d
at
13
they
aided
and
abetted
the
possession
with
intent
to
protect all owners from losses -- not from shoplifters, but from
law enforcement.
-34-
necessary."
Accordingly, there
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