United States v. Rosario-Camacho

United States Court of Appeals
For the First Circuit
Nos. 10-1974
10-2042
10-2055
10-2057
10-2129
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ NEGRÓN-SOSTRE;
LUIS RODRÍGUEZ-SOSTRE;
JOSUÉ PÉREZ-MERCADO;
RAMÓN MAYSONET-SOLER; and
WILFREDO ROSARIO-CAMACHO,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Lipez, and Thompson,
Circuit Judges.
Ignacio Fernández-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.
June 25, 2015
-2-
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 (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
-3-
first trial was insufficient to establish their guilt beyond a
reasonable doubt.
I.
Background1
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.2 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.
1
This circuit's approach to presenting the facts has been
inconsistent when addressing challenges other than to the
sufficiency of the evidence. See United States v. Rodríguez-Soler,
773 F.3d 289, 290 (1st Cir. 2014). We will provide additional
background when we address appellants' sufficiency challenge a
little later, but to provide some initial background here for the
Sixth Amendment challenge, we present an objective view of the
evidence. See United States v. Nelson-Rodríguez, 319 F.3d 12, 13
(1st Cir. 2003).
2
Alprazolam is the generic name for Xanax.
-4-
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 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).
3
Specifically, Count I charged the appellants with conspiracy
to possess with intent to distribute: heroin, crack cocaine,
cocaine, marijuana, oxycodone and alprazolam in violation of 21
U.S.C. §§ 841(a)(1), 846 and 860.
-5-
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."
II.
Discussion
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
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public were excluded during jury voir dire.4 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.5 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.6
A.
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
4
Rosario-Camacho also contends that his right to a public
trial was violated when his sister was excluded from the courtroom
during closing argument. Because we find that the courtroom
closure during the jury voir dire requires us to vacate and remand
for a new trial, we need not reach this argument.
5
Negrón-Sostre challenges the suffiency of the evidence
supporting counts III, IV and V. Rodríguez-Sostre challenges the
sufficiency of the evidence supporting counts I, III, V, and VI.
Maysonet-Soler challenges the sufficiency of the evidence
supporting counts I, II, III, and V. Pérez-Mercado and Rosario-
Camacho do not challenge the sufficiency of the evidence supporting
their convictions.
6
Defendants' other claims of error are: the district court's
refusal to give a requested multiple conspiracy jury instruction;
the admission of evidence of prior bad acts; jury taint and bias;
imposition of sentences that were procedurally and substantively
unreasonable; prosecutorial misconduct; the court's decision
allowing a government witness to refresh his memory by reading from
a document; requiring a witness's prior statements to be under oath
for impeachment purposes; and limiting defense counsel's ability to
effectively cross-examine witnesses to show bias, motive or
interest.
-7-
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 (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 (1989)). In Waller v. Georgia, 467 U.S.
39, 48 (1984), the Supreme Court held that, to avoid committing
structural error, courtroom closures must be justified by an
overriding interest and tailored to be "no broader than necessary
to protect that interest." The defendants contend that the
district court erred when the public was unjustifiably excluded
from the courtroom during jury voir dire.
Because defendants did not object to the exclusion at the
time of trial, "we review only for plain error."7 United States v.
Scott, 564 F.3d 34, 37 (1st Cir. 2009). Under plain-error review,
the defendants have "the burden of showing (1) that an error
occurred (2) which was clear or obvious and which not only (3)
affected [their] substantial rights, but also (4) seriously
impaired the fairness, integrity, or public reputation of judicial
7
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.
-8-
proceedings." United States v. Almonte-Nuñez, 771 F.3d 84, 89 (1st
Cir. 2014) (internal quotation marks omitted).
Was there Clear or Obvious Error?
In order to determine whether an error occurred, we must
first determine whether, contrary to the district court's findings,
there was, in fact, a courtroom closure. The relevant events of
the January 20, 2010 jury selection were the subject of an
evidentiary hearing before the same judge who presided over the
trial. Following this hearing, the district court essentially
determined no courtroom closing had occurred -- a finding the
defendants challenge on appeal. We review the district court's
findings of fact for clear error.8 Bucci v. United States, 662
F.3d 18, 21 (1st Cir. 2011). Under clear error review, we defer to
the district court's findings unless "the record, read as a whole,
gives rise to a strong, unyielding belief that a mistake has been
made." United States v. Hughes, 640 F.3d 428, 434 (1st Cir. 2011)
(internal quotation marks omitted). We will summarize the record
of that hearing, as well as the district court's findings of fact.
Courtroom Security Officer ("CSO") Carlos Sierra-Medina
("Sierra-Medina") had been a CSO for nineteen years and was on duty
in the courtroom during voir dire. He testified to the regular
practice of the court prior to 2010, saying "the tendency was that,
8
As always, legal conclusions are reviewed de novo. Bucci v.
United States, 662 F.3d 18, 21 (1st Cir. 2011).
-9-
because of the space and security, the family will not be allowed"
to be in the courtroom during jury selection. Sierra-Medina
testified that this practice was followed unless an attorney made
a previous special arrangement with the judge; for instance one
such arrangement in an earlier case involved bringing additional
chairs into the courtroom for family members. He did not recall
any change in this "tendency" after the publication of our decision
in Agosto-Vega.9
Deputy U.S. Marshal Miguel Portalatín testified that he
was in charge of security for the trial and that he "didn't get any
specific instructions from [the judge] as far as closing the door
or leaving the door open." He stated that he never gave any orders
to keep people out of the courtroom because "we didn't have space,
so I didn't have to tell anybody." Although the door was not
locked, and jurors exited freely when released, Portalatín did not
recall seeing any family members in the courtroom during jury
selection.
Defendant Rosario-Camacho's sister, Maribel Rodríguez,
testified that she attempted to enter the courtroom on the morning
of jury selection and was asked by someone, "it could be security
9
In United States v. Agosto-Vega, 617 F.3d 541, 543 (1st Cir.
2010), we held that the District Court of Puerto Rico "committed a
structural error by excluding the public from the courtroom during
the selection of the jury." Our decision issued in August 2010,
eight months after the trial in this case, but nearly a year prior
to the court's evidentiary hearing on the courtroom closure issue.
-10-
officers, marshals, standing in the door," whether she was a juror.
When she replied that she was a family member, she was told "Okay,
well, family members are not allowed until we're finished." 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. It's the procedure, family members are not
allowed until we finish with the selection of the jury."
A friend of Rosario-Camacho's, Zuheily Otero González,
testified that she was present that day, and that Sierra-Medina
denied her access to the courtroom when she asked him if she could
enter for jury selection. She, too, reported that she spoke with
Rosario-Camacho's attorney and he told her she could not go into
the courtroom because "it was a practice carried out in Puerto
Rico; that it was a process between the jury, the codefendants and
the attorneys."
Defendant Rodríguez-Sostre's wife testified that a CSO
denied her entry into the courtroom on the morning of jury
selection. Defendant Maysonet-Soler's wife testified that she
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." She recounted that she tried to peek through the
-11-
window but that Sierra-Medina "told us not to do that, that that
wasn't allowed."10
After the family members testified, several of the
defense attorneys took the stand. Miriam Ramos-Grateroles, Pérez-
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." When family members asked her if they could be
present, she told them it was not allowed. She testified that she
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-
Grateroles, Zeno did not object because it was his understanding
that this was a common practice. Ramón Garay-Medina, counsel for
Negrón-Sostre, testified that he 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. He did not object because "it was the
10
Several of the family members also testified that papers were
put over the window in the door to block their view into the
courtroom. The district court relied on the testimony of CSO
Sierra-Medina and Deputy Portalatín in finding that no paper was
ever placed on the windows. Because we find that the public was
prevented from entering the courtroom, we need not resolve whether
at any time the windows were blocked.
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practice in this district not to allow the family members during
jury selection."11 Mariangela Tirado-Vales, Rodríguez-Sostre's
attorney, testified that "in all the jury selections in criminal
cases that [she had] had so far in this court," it was "the usual
process" to keep family members outside. Like the other attorneys,
Tirado-Vales testified that her failure to object was not the
result of a tactical decision, but reflective of her knowledge that
it was the "standard operating procedure" of the court to exclude
family members from jury selection. Finally, Rosario-Camacho's
attorney, Francisco Dolz Sánchez, testified that he had been
practicing in Puerto Rico since 1975 and that, since that time
"[e]verybody was used to the public being excluded during jury
selection." According to Dolz Sánchez, in the years he'd been
practicing, including his "many years" in the Federal Public
Defender's Office, it was standard operating procedure and "nobody
objected to that."
Following the hearing, the district court made the
following findings of fact, pertinent to this appeal: 1)
approximately seventy-five potential jurors were in attendance that
day, taking up all of the available seating; 2) the deputy marshal
11
On cross-examination, Garay-Medina confirmed that in the
afternoon, because jurors were coming in and out of the courtroom
during voir dire, he expressed a concern to the judge that the
jurors might not hear some of the questions. Garay-Medina admitted
that he raised the issue of sealing the room to prevent jurors from
leaving. The court did not, however, give an order to seal the
courtroom.
-13-
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." The district court concluded by
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
-14-
to a Court order or a determination by the deputy marshal in
charge." In finding that neither the court nor the deputy marshals
had "ordered" the courtroom to be closed, the district court
sidestepped the issue of whether the courtroom had in fact been
closed despite the absence of any such order. However, the issue
of whether there was an actual courtroom closure is key because,
"even if the courtroom was closed because of inattention by the
judge, courts have expressed concern in the past where a court
officer's unauthorized closure of a courtroom impeded public
access." Owens, 483 F.3d at 63. That the courtroom closure was
the result of inaction by the judge, rather than an affirmative
order, is not dispositive. Id. ("Whether the closure was
intentional or inadvertent is constitutionally 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
courtroom was closed, blamed the defense attorneys for "informing
the family members that they could not enter." Undeniably, the
lawyers were partly at fault.12 However, it would be a misreading
12
Pérez-Mercado's attorney testified that she told Pérez-
Mercado's sister she could not enter the courtroom during jury
selection, and told the same to Pérez-Mercado about his sister.
-15-
of the record to suggest that the lawyers were wholly to blame.
Indeed, the court's finding ignores CSO Sierra-Medina's testimony
that the general practice in Puerto Rico -- in other words, the
default rule -- was to exclude members of the public from voir dire
unless the attorneys made "arrangements" -- that is, made requests
in contravention of the general practice -- with the judge
beforehand.13 And in this case Sierra-Medina did not recall taking
any actions that day that were contrary to that "tendency" to
exclude the public. In that way, his testimony serves to
corroborate the testimony of those family members who said that
Sierra-Medina had turned them away from the door, an assertion he
never denied during the hearing. His testimony makes clear that a
courtroom closure occurred, accomplished not through locks and
direct orders, but through the actions of a CSO familiar with the
court's regular practice.14
Rosario-Camacho's sister and Rosario-Camacho's friend each
testified that Rosario-Camacho's lawyer told them they could not
enter the courtroom. And Maysonet-Soler's wife testified that
Maysonet-Soler's lawyer told her the same.
13
For example, Sierra-Medina testified that, in another case
where the room was full of jurors, the judge had him bring in extra
chairs for the family.
14
In addition to CSO Sierra-Medina's characterization of the
Puerto Rico court's "tendency" to close the courtroom, each of the
defense attorneys testified to the same (alarming) practice. None
of the attorneys objected to the closure. They testified that this
was not due to a tactical decision, but rather the result of their
familiarity with the practice in Puerto Rico of closing the
courtroom during voir dire. The government tacitly admitted this
policy in a statement it made during a bench conference at trial,
-16-
Our review of the record convinces us that the court
clearly erred in not finding that a complete courtroom closure
occurred during jury selection. Moreover, the closure was
attributable to court personnel at least as much as to the
attorneys. The court clearly erred in finding that the attorneys
were wholly responsible for the family members' exclusion from voir
dire. Having found a courtroom closure, we must now determine
whether that closure, absent express authorization from the judge,
can nevertheless pass constitutional muster.
Although courtroom closures may be justified in some
circumstances, these closures "are to be rare and only for cause
shown that outweighs the value of openness." Owens, 483 F.3d at 61
(internal quotation marks omitted). "[C]losure of jury selection
to the public for an entire day without meeting the strict
requirements of Waller would violate a defendant's right to a
public trial." Id. at 66. In Bucci, we summarized the Waller test
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
when it characterized the facts in Presley v. Georgia, 130 S. Ct.
721, 724 (2010), by saying "the Defendant invoked his right to a
public trial, and it was in a process similar to what's done in
Puerto Rico during jury voir dire, everyone was removed from the
courtroom." (emphasis added).
-17-
(4) it must make findings adequate to support
the closure.
662 F.3d at 22. Given the peculiar posture of this case -- where
no party affirmatively sought to close the courtroom, and where the
district court erroneously found that there was no closure -- the
Waller test was never applied. Because the courtroom was in fact
closed absent the balancing of interests required by Waller, that
closure was a clear and obvious error, satisfying the first two
prongs of our plain error analysis.
Did the Error Affect the Defendants' Rights and the Judicial
Proceedings?
We now turn to the remaining third and fourth prongs,
addressing whether the error affected the defendants' substantial
rights, and whether it "seriously impaired the fairness, integrity,
or public reputation of judicial proceedings." Almonte-Nuñez, 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. Agosto-Vega, 617
F.3d at 543. "The category of structural error has been reserved
for a very limited class of cases" including "a total withholding
of the right to counsel at trial," and "the specter of a biased
judge." United States v. Padilla, 415 F.3d 211, 219 (1st Cir.
2005) (internal quotation marks and citations omitted). Structural
errors, as distinguished from trial errors, infect the entire trial
-18-
process. Id. "Unlike trial rights, structural rights are 'basic
protection[s] whose precise effects are unmeasurable.'" Owens, 483
F.3d at 64 (quoting Sullivan v. Louisiana, 508 U.S. 275, 281
(1993)). Our precedent is unequivocal; structural error in the
form of a denial of the public trial right prejudices a defendant
notwithstanding that the prejudice may be difficult to detect. See
id. at 65. In Owens, we explored specific ways that such a closure
may prejudice a defendant: "It is possible that jurors might have
been more forthcoming about biases and past experiences if they had
faced the public. It is also possible that [the parties] might
have picked a more impartial jury or asked different questions with
local citizenry watching." Id. Those same concerns are at play
here where the public, including the family and friends of the
defendants, was excluded. Therefore, it is clear on the facts of
this case that the third prong has been met.
It remains then, for us to determine whether the error
affected the fairness, integrity or public reputation of the
proceeding as a whole. Once again, Owens guides our analysis. We
stated there that improper courtroom closure "call[s] into question
the fundamental fairness of [the] trial." Id. "[S]tructural error
transcends the criminal process by depriving a defendant of those
basic protections [without which] a criminal trial cannot reliably
serve its function as a vehicle for determination of guilt or
innocence, and no criminal punishment may be regarded as
-19-
fundamentally fair." Padilla, 415 F.3d at 219 (internal quotation
marks and citation omitted)). Indeed, given the importance of the
public trial right, it would be hard to see how the public
reputation and integrity of the proceedings would not be
compromised in this case.
And that conclusion is not altered by our acknowledgment
of the role defense counsel contributed to the closure. Although
it is disturbing to us that this practice passed without objection
by those who seemingly accepted it as lawful status quo in Puerto
Rico, we have no reason to believe the attorneys made a tactical
decision not to object (in order to "sandbag" the court into
creating a reversible error). On the contrary, it is apparent,
given the testimony of Sierra-Medina and the defense attorneys, as
well as the statement made by the prosecutor at sidebar (see fn.
12), that the practice of excluding the public from voir dire was
alive and well in Puerto Rico long past the point when Owens made
clear that it was unacceptable. It is a practice which however it
got started, could only have been sustained and implemented by the
court, not by defense attorneys. We reiterate, the ultimate
responsibility of avoiding "even the appearance that our nation's
courtrooms are closed or inaccessible to the public" lies with the
judge. Scott, 564 F.3d at 39. "We commend to the sound judgment
of the district court the responsibility, in the first instance, of
ensuring both openness and order, and above all, preserving the
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defendant's constitutional right to a public trial." Id. The
district court's failure in this instance to properly police the
public's access to defendants' jury voir dire substantially
impaired the fairness of the trial proceedings. We find that the
fourth prong has been met.
Summing up, the closure of the courtroom during the
entirety of voir dire was a plain and obvious error that, as a
structural error, affected the defendants' substantial rights and
seriously impaired the fairness, integrity, or public reputation of
the proceedings. Our precedent compels us to find that the
structural error in this case was plain error. Accordingly, we
vacate the defendants' convictions and remand their cases for a new
trial. Agosto-Vega, 617 F.3d at 543.
B.
Sufficiency of the Evidence
Because the defendants will now have a new trial on the
same charges, "to prevent an allegation that they will be subjected
to double jeopardy in violation of the Fifth Amendment by reason of
this retrial, it is incumbent upon us to address [their]
contentions that the government failed to present sufficient
evidence at the first trial" to sustain their convictions. Id.
We review challenges to the sufficiency of the evidence
de novo, "considering all the evidence, direct and circumstantial,
in the light most favorable to the prosecution, drawing all
-21-
reasonable inferences consistent with the verdict, and avoiding
credibility judgments, to determine whether a rational jury could
have found the defendant[s] guilty beyond a reasonable doubt." Id.
at 548 (internal quotation marks omitted). "Testimony from even
just one witness can support a conviction." United States v.
Alejandro-Montañez, 778 F.3d 352, 357 (1st Cir. 2015) (internal
quotation marks omitted).
Further Background15
During the three-month trial, the jury heard testimony
from several cooperating witnesses who were involved in the drug
operation, including two runners and a seller. Alfredo Sierra-
García ("Sierra-García") testified that at the age of thirteen he
became a "lookout" at La Quince -- a drug point where several
owners sold drugs at the same location. According to Sierra-
García, La Quince featured something for every drug consumer:
heroin, cocaine, marijuana, and alprazolam were all on offer. He
described how the drugs were packaged with different brightly-
colored papers that corresponded to a variety of brand names and
owners. He testified that the lookouts were necessary to prevent
the losses the owners would suffer if police arrested a seller and
confiscated the drugs. In that capacity, he was paid to warn all
of the sellers if police were approaching.
15
Only Negrón-Sostre, Rodríguez-Sostre, and Maysonet-Soler
challenge the sufficiency of the evidence.
-22-
Sierra-García described a hierarchy at La Quince
consisting of owners, sellers, runners, and packagers, with the
owners atop the pecking order, functioning as "bosses." The La
Quince organization also offered opportunities for advancement;
Sierra-García later became a runner for Negrón-Sostre, who owned a
brand of heroin known as Arco Iris. According to Sierra-García,
Negrón-Sostre held two positions in the heroin department; not only
was he an owner, but he also worked as a runner for Pérez-Mercado,
the owner of the Regalito brand of heroin.
Sierra-García testified that drug brand ownership in La
Quince was something of a family business, with Maysonet-Soler
having inherited his interest from his mother. According to Sierra-
García, Maysonet-Soler owned the brand of cocaine known as Green,
or Osito.
The jury also heard testimony from Xiomara Rosado-Pabón
("Rosado-Pabón"), who worked as a runner for Rodríguez-Sostre. She
testified that Rodríguez-Sostre owned the Lexus brand of heroin.
Jesús Robles-Santana ("Robles-Santana"), a seller, described the
variety of products available at La Quince, recalling that fifteen
or sixteen different brands of heroin were available there at any
one time. Employee turnover was high in this cut-throat business;
many of the individuals Robles-Santana identified as sellers are
now deceased. Others survived and thrived. According to Robles-
-23-
Santana, by 2007, Rosario-Camacho controlled all of the crack
cocaine and marijuana at La Quince.
La Quince offered not only a vast selection, but
convenient shopping hours as well. The drug point operated on a
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-García, crack users "would come in at
six." Rather than allow potential sales to slip through the
cracks, as it were, the normal shift was extended another hour to
cater to the 6:00 a.m. rush.
La Quince was a streamlined model of efficiency. During
their shifts, according to Sierra-García and Rosado-Pabón, sellers
were allowed to peddle brands from different owners simultaneously.
Similarly, runners carried drugs for multiple owners.
There was always something new to tempt the shoppers at
La Quince, and debut products received savvy marketing support.
Sierra-García recalled seeing Rodríguez-Sostre, Negrón-Sostre, and
Maysonet-Soler distributing samples of new drug batches at the drug
point.
The management style at La Quince was similarly hands-on.
Robles-Santana testified that he saw defendants Rodríguez-Sostre,
Negrón-Sostre, Rosario-Camacho, and Maysonet-Soler at the drug
-24-
point regularly, and that the men met and had discussions there.
But even the best-managed business occasionally has personnel
problems. According to Sierra-García, a dispute arose at La Quince
over the sale of cocaine, leading Maysonet-Soler to shoot at
Rodríguez-Sostre's sister. Concerned that this incident could
impact business, several owners held a meeting "to fix the
problem." Maysonet-Soler, Rodríguez-Sostre, and Rosario-Camacho
were present at this meeting where peace was restored when the
owners agreed that Rodríguez-Sostre would be allowed to "finish off
some bundles" of his inventory at the drug point before Maysonet-
Soler would be allowed to take over.
Defendants Negrón-Sostre, Rodríguez-Sostre, and Maysonet-
Soler have each challenged the sufficiency of the evidence of some,
but not all, of the charges against them. Because the evidence to
convict each defendant was largely the same, we take defendants'
challenges count by count.16
16
Rodríguez-Sostre is the only defendant who appears to
challenge Count VI, conspiracy to use a firearm during a drug-
trafficking crime. However, the only reference Rodríguez-Sostre
makes to Count VI is to adopt by reference the arguments made in
Maysonet-Soler's brief, but Maysonet-Soler only challenges Counts
I, II, III and V. Neither defendant has made any argument about
Count VI. "[W]e see no reason to abandon the settled appellate
rule that issues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived."
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
-25-
Count I - Conspiracy to Distribute Drugs
All of the defendants were convicted of conspiracy to
possess and distribute drugs in violation of 21 U.S.C.
§§ 841(a)(1), 846, and 860, but only Rodríguez-Sostre and Maysonet-
Soler have challenged the sufficiency of the evidence supporting
this charge. To sustain a conviction, "the government must
establish that (1) a conspiracy existed; (2) the defendant[s] had
knowledge of the conspiracy; and (3) the defendant[s] knowingly and
voluntarily participated in the conspiracy." United States v.
Díaz-Arias, 717 F.3d 1, 20 (1st Cir. 2013) (internal quotation
marks omitted). The agreement to conspire does not need to be
express and its existence may be proven by circumstantial evidence.
United States v. Lizardo, 445 F.3d 73, 81 (1st Cir. 2006). "[E]ach
coconspirator need not know of or have contact with all other
members, nor must they know all of the details of the conspiracy or
participate in every act in furtherance of it." United States v.
Martínez-Medina, 279 F.3d 105, 113 (1st Cir. 2002).
Rodríguez-Sostre and Maysonet-Soler argue that the
evidence showed multiple conspiracies, but did not support a
single, over-arching conspiracy, and thus a variance existed
between the evidence presented and the charge. We look to the
totality of the evidence to determine whether it supports the
existence of a single conspiracy. United States v. Mangual-
Santiago, 562 F.3d 411, 421 (1st Cir. 2009). In evaluating the
-26-
evidence, we consider the following factors: "(1) the existence of
a common purpose, e.g., the distribution of drugs; (2)
interdependence of various elements in the overall plan; and (3)
overlap among the participants." United States v. Rivera Calderón,
578 F.3d 78, 89 (1st Cir. 2009).
The first factor, common goal or purpose, is "broadly
drawn." United States v. Portela, 167 F.3d 687, 695 n.3 (1st Cir.
1999). We have previously found that having "an interest in
furthering the distribution" of drugs is sufficient evidence of a
common goal. Id. at 695. Here, there was ample testimonial
evidence that Maysonet-Soler and Rodríguez-Sostre were "member[s]
of a large drug distribution network that had the common purpose of
selling drugs for profit." Rivera Calderón, 578 F.3d at 89.
Although Maysonet-Soler owned brands of cocaine, and Rodríguez-
Sostre 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.
"Interdependence exists where the activities of one aspect of the
scheme are necessary or advantageous to the success of another
aspect of the scheme." Id. (internal quotation marks omitted). In
Rivera Calderón, evidence that the participants "actively worked
with each other to protect the drug points from threats," and held
-27-
meetings to discuss security at the drug point, demonstrated
interdependence. Id at 90. Here, Sierra-García testified that
lookouts were hired to warn all of the participants of the approach
of law enforcement, and in so doing protected all of the owners
from losses. There was also testimony that Robles-Santana saw
Rodríguez-Sostre, Maysonet-Soler, and other owners talking at the
drug point "daily."
"Interdependency [is] also demonstrated by the various
rules established by the participants in the conspiracy." Id. La
Quince ran like clockwork in twelve-hour shifts, with a separate
schedule for the sale of crack cocaine. It is reasonable to infer
that the shift system did not spring fully-formed by happenstance,
but rather was devised by the owners for the benefit of them all.
"[K]nown interdependence . . . makes it reasonable to
speak of a tacit understanding between the distributor and others
upon whose unlawful acts the distributor knows his own success
likely depends." Portela, 167 F.3d at 695 (alterations in
original) (internal quotation marks omitted). "[E]vidence of an
individual participant's understanding of the interdependence of
the co-conspirators' activities is . . . often the best evidence []
of tacit agreement between the individual and his co-conspirators."
Id. The jury heard testimony that sellers sold drugs for multiple
owners, and that this was permitted by the owners. From this
evidence it would be reasonable for the jury to infer that the
-28-
owners worked cooperatively to ensure the success of the drug
point. Further evidence of this cooperation was the testimony that
several owners met to resolve the problem that arose after
Maysonet-Soler shot at Rodríguez-Sostre's sister. And perhaps the
strongest evidence of this cooperation is the fact that a solution
was reached at that meeting, implying that peaceful commerce for
all at La Quince was more important to the participants than the
individual goals of either of the feuding owners.
Finally, the evidence demonstrated substantial overlap
among the participants, with Negrón-Sostre wearing two hats,
working as a runner for Pérez-Mercado, while at the same time
owning his own brand of heroin. Negrón-Sostre was not the only
multi-tasker; runners and sellers worked for multiple owners, and
lookouts worked for the benefit of all. 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 to multiple conspiracies, rather than a single
conspiracy. According to the defendants, the only thing they had
in common was the location in which they peddled their wares.
-29-
There is no requirement that the members of the
conspiracy share profits, or answer to a single boss. There is
abundant evidence, however, that the owners worked cooperatively to
maintain security and negotiate disputes in order to maximize their
own profits. "The fact that every defendant did not participate in
every transaction necessary to fulfill the aim of their agreement
does not transform a continuing plan into multiple conspiracies."
Id. at 696 (internal quotation marks omitted).
The defendants suggest that "this case may be best
understood if we think of the coconspirators as owners of a
supermarket that sold different products." 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. In that case, we found that the members of the distinct
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. Here, unlike the defendants in Dellosantos, Rodríguez-Sostre
and Maysonet-Soler not only owned the brands, but they ran the
supermarket. A supermarket is an enterprise that offers one-stop
shopping for a number of different products and brands. It is the
very consolidation of all of those brands within one convenient
-30-
location -- with security, ample inventory, and staffed by
personnel in regular shifts -- that makes a supermarket profitable.
It is the fact that the defendant drug-brand owners also ran the
drug "supermarket" that evidences the conspiracy.
"Ultimately, while the analysis of common goals,
interdependence, and overlap is useful for resolving challenges to
the sufficiency of the evidence on appeal, this court has looked
beyond any such lists of factors to the totality of the evidence in
determining whether there is factual support for a finding of a
single conspiracy." Portela, 167 F.3d at 696 (internal quotation
marks omitted). Our review of the record reveals ample evidence to
support a single conspiracy.17 Moreover, the same evidence
demonstrates the defendants' knowledge of and voluntary
participation in that conspiracy.
Counts II-V - Aiding and Abetting
Regarding the remaining counts, Negrón-Sostre, Rodríguez-
Sostre, and Maysonet-Soler all sound a similar theme. Negrón-
Sostre concedes that there was sufficient evidence to convict him
of Count II (heroin), but he argues that there was no evidence that
he assisted or intended to assist in the possession with intent to
17
Because there was sufficient evidence of a single,
overarching conspiracy, "there [is] no variance between the
evidence produced at trial and the indictment." United States v.
Mangual-Santiago, 562 F.3d 411, 423 (1st Cir. 2009). "A variance
is grounds for reversal only if it is prejudicial." Id. at 421.
There being no variance, we do not reach the question of prejudice.
-31-
distribute crack cocaine, cocaine, or marijuana (Counts III, IV,
and V, respectively). Rodríguez-Sostre challenges Counts III
(crack cocaine) and V (marijuana), contending that no evidence was
presented that he aided and abetted any of his co-defendants in the
possession with intent to distribute these substances. 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. Maysonet-Soler further argues that co-operating
witness Rosado-Pabón didn't tie him to the others, and mere
knowledge of his co-defendants' drug trafficking (and his presence
during sales) is insufficent to prove he aided and abetted that
trafficking. Because the required showing is the same under each
count, we will analyze them together.
It is a well-settled principle of aiding and abetting
liability that if the government proves the elements of a crime
charged by proof beyond a reasonable doubt, a defendant may be held
indirectly responsible as an aider and abettor if he "associated
himself with the venture . . . participated in it as something that
he wished to bring about, and . . . sought by his actions to make
-32-
the venture succeed." United States v. Lugo-Guerrero, 524 F.3d 5,
13 (1st Cir. 2008). The government can satisfy its burden by
demonstrating "that the defendant consciously shared the
principal's knowledge of the underlying criminal act, and intended
to help the principal." United States v. Bristol-Mártir, 570 F.3d
29, 39 (1st Cir. 2009) (internal quotation marks omitted). It is
not necessary to prove that a defendant had "[k]nowledge of the
particular controlled substance being imported or distributed . . .
intent to distribute can be inferred from the quantity of drugs
involved." Id. (first alteration in original) (internal quotation
marks omitted).
As discussed in the previous section, there was ample
testimony that Negrón-Sostre, Rodríguez-Sostre, and Maysonet-Soler
associated themselves with the venture of operating a drug
"supermarket" at La Quince. Robles-Santana testified that he saw
these defendants at La Quince regularly, and that the defendants
met and had discussions there. Further, Sierra-García described
seeing the defendants handing out samples of new drug batches at
the drug point. The government "is entitled to rely, even
exclusively, on circumstantial evidence to prove its case, and the
proof need not exclude every reasonable hypothesis of innocence,
provided the record as a whole supports a conclusion of guilt
beyond a reasonable doubt." Lugo-Guerrero, 524 F.3d at 13
(internal quotation marks omitted). Although the defendants' mere
-33-
presence in La Quince is not sufficient, standing alone, to prove
that they aided and abetted the possession with intent to
distribute every type of drug sold there, their regular, ongoing
presence and interaction with each other is certainly strong
circumstantial evidence that they associated themselves with the
venture.
La Quince was a highly-organized operation that ran 24/7
and provided seemingly all of the illicit substances its clientele
might desire. Lookouts, much like store security, served to
protect all owners from losses -- not from shoplifters, but from
law enforcement. Runners supplied multiple sellers, and sellers
simultaneously sold brands from several owners, much like warehouse
operators and sales clerks. All of these workers were organized in
strict twelve-hour shifts. This level of coordination would not
have been possible without the participation of the defendants with
an intent to ensure the success of the venture. Not only did the
owners cooperate by allowing their runners and sellers to work for
different owners at the same time, but when necessary, they met to
resolve a dispute that might have threatened the profitability of
the enterprise.
It is apparent that each of the defendants consciously
shared knowledge of the criminal design of the La Quince drug
point, and worked together to ensure its success; "[k]nowledge of
the particular controlled substance being . . . distributed is not
-34-
necessary." Bristol-Martir, 570 F.3d at 39 (first alteration in
original) (internal quotation marks omitted). Accordingly, there
was sufficient evidence to establish that each of the defendants
aided and abetted each of the others in the possession with intent
to distribute all of the types of drugs charged.
III.
Conclusion
There was sufficient evidence to sustain the defendants'
convictions, however, the closure of the courtroom during jury
selection was a structural error that requires us to vacate their
convictions and remand for a new trial.
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