[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Francisco A. Besosa, U.S. District Judge.
Ignacio Ferná ndez-de Lahongrais for José Negrón-Sostre.
Jorge E. Rivera-Ortiz for Luis Rodríguez-Sostre.
Allison J. Koury for Josué Pérez-Mercado.
Juan José Hernández-López de Victoria, with whom Hernández-López de Victoria, PSC was on brief, for Ramón Maysonet-Soler.
Judith H. Mizner, Assistant Federal Public Defender, for Wilfredo Rosario-Camacho.
Olga B. Castellón-Miranda, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Tiffany V. Monrose, Assistant United States Attorney, were on brief, for appellee.
Before Torruella, Lipez, and Thompson, Circuit Judges.
THOMPSON, Circuit Judge.
The Sixth Amendment guarantees 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." In re Oliver, 333 U.S. 257, 271-72, 68 S.Ct. 499, 92 L.Ed. 682 (1948). We have repeatedly held that this right extends to the process of jury selection. United States v. Agosto-Vega, 617 F.3d 541, 546 (1st Cir. 2010); Owens v. United States, 483 F.3d 48, 61 (1st Cir. 2007). Yet when voir dire was conducted in this case, the defendants' family members and friends were excluded from the courtroom, allegedly due to the Puerto Rico court's " longstanding practice" of excluding the public from jury selection.
This practice, if it still exists, comes at great cost. The defendants were convicted as members of a sprawling drug conspiracy after a three-month trial. We are mindful that many days of testimony, weeks of diligent juror attention, and months of preparation led to that result. Nevertheless, the trial was doomed before it started. Because the complete exclusion of the public from jury selection infringed the defendants' Sixth Amendment rights, we are compelled to vacate the defendants' convictions and remand this case for a new trial. To ensure that holding a second trial will not subject the defendants to double jeopardy, we must also address their argument that the evidence presented at the first trial was insufficient to establish their guilt beyond a reasonable doubt.
From 2001 to June 2008, a drug marketplace operated twenty-four hours a day, seven days a week at " La Quince," a street in Altos de Cuba. It was quite an operation. With all the convenience of a supermarket, La Quince offered one-stop shopping for a number of different " brands" of cocaine, heroin, crack cocaine, marijuana, oxycodone and alprazolam. Some of the products were colorfully packaged, others had catchy names like " Godzilla" or " Bin Laden," no doubt intended to inspire brand loyalty in discerning users. The savvy marketers at La Quince even distributed free samples of new drug batches. Perhaps in an attempt to appeal to the youth market, La Quince was located within 1,000 feet of a public school. In short, Walmart had nothing on La Quince.
Like any prosperous retailer, La Quince had a sophisticated supply chain in place to speed inventory from storage to clientele.
Runners were responsible for storing the drugs and supplying them to the sellers as needed. Sellers, as the name 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 September 2008, seventy-four individuals were indicted for their involvement with the drug conspiracy centered in Altos de Cuba. Among them were the appellants: José Negrón-Sostre (" Negrón-Sostre" ), Luis Rodríguez-Sostre (" Rodríguez-Sostre" ), Josué Pérez-Mercado (" Pérez-Mercado" ), Ramón 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 narcotics 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).
A jury trial commenced in January 2010. Three months later, the jury found the appellants guilty of Counts I through V. On Count VI, the gun charge, the jury convicted Rodríguez-Sostre, Maysonet-Soler and Rosario-Camacho, but found Negrón-Sostre and Pérez-Mercado not guilty. The appellants timely appealed, and in 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 evidence was ever presented, . . . that demonstrated that [a] supposed long standing district policy of not allowing the public into the courtroom during voir dire was ever followed in this case."
All of the defendants argue that their convictions should be reversed and their cases remanded for a new trial because their Sixth Amendment rights were violated because members of the public were excluded during jury voir dire. Negrón-Sostre, Rodríguez-Sostre and Maysonet-Soler also challenge the sufficiency of the evidence supporting their convictions on some, but not all, of the charges. They make a number of other claims of error, but because they are not relevant in light
of our ultimate ruling vacating their convictions and remanding for a new trial, we need not reach the remainder of these arguments.
The Sixth Amendment Right to a Public Trial
The failure to hold a public trial is a structural error that " infect[s] the entire trial process." Owens, 483 F.3d at 64 (internal quotation marks omitted). Indeed, the Supreme Court has been " pristinely clear that the Sixth Amendment right to a public trial extends to the jury voir dire process." Agosto-Vega, 617 F.3d at 546 (citing Presley v. Georgia,558 U.S. 209, 213, 130 S.Ct. 721, 175 L.Ed.2d 675 (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 Gómez v. United States,490 U.S. 858, 873, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989)). In Waller v. Georgia,467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), the Supreme Court held that, to avoid committing structural error, courtroom closures must be justified by an overriding ...