United States v. James Santos ( 2012 )

FILED
NOT FOR PUBLICATION DEC 18 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10332
Plaintiff - Appellee, D.C. No. 1:08-cr-00020-ARM-4
v.
MEMORANDUM *
JAMES A. SANTOS,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 09-10334
Plaintiff - Appellee, D.C. No. 1:08-cr-00020-ARM-3
v.
JOAQUINA V. SANTOS,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 09-10335
Plaintiff - Appellee, D.C. No. 1:08-cr-00020-ARM-1
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
TIMOTHY P. VILLAGOMEZ,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 09-10374
Plaintiff - Appellant, D.C. No. 1:08-cr-00020-ARM-1
v.
TIMOTHY P. VILLAGOMEZ,
Defendant - Appellee.
Appeal from the United States District Court
for the District of the Northern Mariana Islands
Alex R. Munson, Chief District Judge, Presiding
Argued and Submitted June 12, 2012
Honolulu, Hawaii
Before: SCHROEDER, CALLAHAN, and N.R. SMITH, Circuit Judges.
Defendants Timothy Villagomez (“Villagomez”), James Santos (“Santos”)
and Joaquina Santos (“Mrs. Santos”) (collectively, “Defendants”) were charged
with conspiracy to defraud the United States, wire fraud, theft from a program
receiving federal funds, and bribery concerning a program receiving federal funds.
Villagomez was formerly the Lieutenant Governor of the Commonwealth of the
2
Northern Mariana Islands (“CNMI”), and Santos was formerly the Secretary of
Commerce of the CNMI. Together with Mrs. Santos, Villagomez and Santos
conspired to commit fraud in connection with CNMI’s purchase of a chemical
solvent called Rydlyme from companies Santos and Mrs. Santos owned. On
appeal, the Defendants contend that they were deprived of their right to a public
trial when the public was excluded from the courtroom during voir dire. They also
contend that the district court abused its discretion by denying their post-trial
motion for an evidentiary hearing on their allegations of juror bias. The
Government contends on cross-appeal that the district court erred in calculating
Villagomez’s Sentencing Guidelines range. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm in part and reverse in part.1
1. The Defendants forfeited their right to a public trial by failing to
timely object to the closure of the courtroom during voir dire. See Peretz v. United
States, 501 U.S. 923, 936 (1991); Levine v. United States, 362 U.S. 610, 619
(1960); United States v. Rivera, 682 F.3d 1223, 1232 (9th Cir. 2012) (“[A]
defendant may nevertheless forfeit the right [to a public trial], either by
affirmatively waiving it or by failing to assert it in a timely fashion.”). The
1
Because the parties are familiar with the facts and procedural history, we
restate them only as necessary to explain our decision.
3
government has consistently argued forfeiture and the district court did not address
it, instead focusing on whether it was proper to hold a hearing under Federal Rule
of Appellate Procedure Rule 10(e).
Here, the defendants did not object to any closure during voir dire and did
not complain about the total closure of the courtroom during voir dire until more
than a year after trial. The defendants, however, knew or should have known of
any closure at the time it happened. The defendants produced seven affiants who
swore that they were excluded from the courtroom during voir dire, and the
defendants themselves were present in the courtroom during voir dire. The
defendants’ lawyers also knew or should have known of the closure, especially
given their statements at the April 14, 2010, hearing on bail pending appeal that the
“voir dire part of the trial was completely closed” and “not a single member of the
public was allowed during the voir dire.”2
Where a defendant forfeits a claim by failing to raise it in a timely manner,
we review for plain error. United States v. Olano, 507 U.S. 725, 731, 733 (1993);
United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc). Even
2
Because the Defendants forfeited their objection to the courtroom closure,
the district court should not have held the Rule 10(e) hearing. Accordingly, we do
not consider any of the district court’s findings of fact resulting from that hearing
in this part of our analysis.
4
assuming that the first three elements of the plain error test are met—i.e., that the
proceedings involved error, the error is plain, and the error affected the
Defendants’ substantial rights—we have “the discretion to remedy the
error—discretion which ought to be exercised only if the error seriously affects the
fairness, integrity, or public reputation of the judicial proceedings.” Puckett v.
United States, 556 U.S. 129, 135 (2009) (internal quotation marks omitted); see
also Johnson v. United States, 520 U.S. 461, 466 (1997). We decline to exercise
that discretion here because the Defendants point to nothing in the record
suggesting that closure led to any unfairness in the jury selection or deviation from
established procedures, affected the public interest in the administration of justice,
or somehow made the jurors less attuned to their sense of responsibility or the
importance of their function. See Johnson, 520 U.S. at 470; Press-Enter. Co. v.
Superior Court of Cal., Riverside Cnty., 464 U.S. 501, 508-09 (1984).
2. Even if the Defendants had not forfeited their objection to the closure
of the courtroom during voir dire, that objection would not be persuasive.
Assuming without deciding, for purposes of this analysis, that the district court’s
Rule 10(e) factual findings in the Settling Order were appropriate, the Defendants
have not made the requisite showing of an affirmative courtroom closure for a non-
trivial duration. See United States v. Shryock, 342 F.3d 948, 974 (9th Cir. 2003) (a
5
defendant must show not mere closure, but that it was closed affirmatively,
completely, and pursuant to judicial act or order); see also United States v.
Rivera, 682 F.3d 1223, 1229 (9th Cir. 2012) (when a closure is trivial, “exclusion
of members of the public from a judicial proceeding does not implicate the
constitutional guarantee”); United States v. Withers, 638 F.3d 1055, 1063 (9th Cir.
2011) (a courtroom closure must be total and of significant duration); United States
v. Ivester, 316 F.3d 955, 959-60 (9th Cir. 2003) (holding that some closures are too
trivial to implicate the Sixth Amendment right to a public trial). Here, the Settling
Order reveals that the closure occurred not because of an affirmative court order,3
but because the large pool of prospective jurors occupied every available seat in
the small courtroom, at least during the first day of voir dire. The Settling Order
also makes no findings regarding the duration of the closure, except that it was no
longer than during voir dire, which occurred over the afternoon of one day and the
morning of the next. Thus, even accepting the findings in the district court’s Rule
10(e) Settling Order, the Defendants have not met their burden of demonstrating
that the closure was non-trivial.
3
The settling judge found there was no order to exclude members of the
public during jury selection.
6
3. The district court properly denied the Defendants’ post-trial motion
for an evidentiary hearing due to alleged juror bias. To demonstrate actual bias,
the Defendants must show that: (1) “a juror failed to answer honestly a material
question on voir dire,” and (2) “a correct response would have provided a valid
basis for a challenge for cause.” McDonough Power Equip., Inc. v. Greenwood,
464 U.S. 548, 556 (1984); Estrada v. Scribner, 512 F.3d 1227, 1240 (9th Cir.
2008). Here, the district court did not clearly err in finding that the jurors were
honest in their answers about their relationships with the Defendants, attorneys,
and witnesses when asked. The record shows that the jurors who were related,
albeit distantly, to some of the witnesses answered the questions asked of them
honestly. The defense attorneys could have requested further inquiry, but they did
not. Cf. Sanders v. Lamarque, 357 F.3d 943, 947-50 (9th Cir. 2004) (“[T]he record
demonstrates that any failure by the prosecution to discover information regarding
[juror’s background] was due to its own lack of diligence and not any concealment
or deliberate withholding of information by [the juror].”). Moreover, even if the
Defendants could establish that the jurors’ answers were dishonest, they failed to
show that an honest answer regarding the familial relationships would have
supported a challenge for cause.
7
Implied bias is found in only “extraordinary cases” based on all the relevant
circumstances. Dyer v. Calderon, 151 F.3d 970, 981 (9th Cir. 1998). No
extraordinary circumstances exist here: (a) no court has presumed bias based on
familial relationships alone; (b) the jurors answered accurately and honestly the
questions asked of them and pledged under oath that they could impartially weigh
the evidence; and (c) the Defendants did not allege that the jurors knew of these
familial relationships or even that the jurors knew the witnesses personally. Cf.
Fields v. Brown, 503 F.3d 755, 767 (9th Cir. 2007) (holding that a juror’s failure to
volunteer details when he was not asked a specific question does not imply
intentional dishonesty). Without something more, these are not “extreme
circumstances” warranting presumed bias.
4. The district court erred in finding that a four-level increase for
Villagomez for participating in high-level public corruption would be double
counting when combined with his base level of 14, which was based on his status
as a public official. In calculating the Sentencing Guidelines range, “double
counting” is allowed when the increases account for distinct harms. United States
v. Holt, 510 F.3d 1007, 1012 (9th Cir. 2007). As opposed to the base-level for all
public officials, U.S.S.G. § 2C1.1(b)(3) applies a 4-level increase to all defendants
involved in a crime of high-level corruption, whether a public official or otherwise.
8
Thus, the distinct harm at which § 2C1.1(b)(3) is aimed is the corruption of high-
level public officials as distinct from an individual official’s breach of the public
trust.
For the foregoing reasons, we AFFIRM the district court with respect to the
Defendants’ appeals, and we VACATE Villagomez’s sentence and REMAND for
new sentencing proceedings consistent with this disposition.
9
FILED
United States v. Santos, 09-10332, 09-10334, 09-10335, 09-10374 DEC 18 2012
MOLLY C. DWYER, CLERK
N.R. SMITH, Circuit Judge, concurring in part and dissenting in part: U .S. C O U R T OF APPE ALS
I concur in all but part two of the majority’s disposition. I disagree that the
courtroom closure, which occurred during the entirety of voir dire over the course
of two days, was of a non-trivial duration. A courtroom closure that lasts for the
entire jury selection process cannot be deemed trivial. See, e.g., Owens v. United
States, 483 F.3d 28, 63 (1st Cir. 2007) (“[T]his was not a mere fifteen or twenty-
minute closure; rather [the defendant’s] trial was allegedly closed to the public for
an entire day while jury selection proceeded.”); United States v. Gupta, 699 F.3d
682, 685, 689 (2d Cir. 2012) (“the district court’s intentional, unjustified exclusion
of the public for the entirety of voir dire [lasting less than one day] was neither
brief nor trivial, and thus violated [defendant’s] Sixth Amendment right to a public
trial.”).