Anthony Bucci (“Bucci”) and David Jordan (“Jordan”) were jointly tried and convicted of drug-related crimes. Each appeals from the district court’s denial of his 28 U.S.C. § 2255 petition for collateral relief. Both appellants contend that their Sixth Amendment right to a public trial was violated by a partial courtroom closure that occurred during jury selection; and that an improper delegation of Article III authority occurred because issues regarding the courtroom closure were determined by the clerk rather than by the judge. The appellants alternatively contend that they are entitled to new § 2255 hearings because Bucci was not permitted to attend the hearing below (although he was represented by counsel); and Jordan was neither permitted to attend nor was he provided with appointed counsel at that time. Finally, Bucci additionally asserts various claims of prosecutorial misconduct.
We affirm the district court’s denial of Bucei’s § 2255 petition. However, we conclude that Jordan is entitled to a new § 2255 hearing. We accordingly vacate the district court’s denial of Jordan’s petition and remand Jordan’s case for further proceedings.
I. Background
“We recite the pertinent facts in the light most favorable to the verdict[s].... ”
United States v. Downs-Moses,
The underlying case involved the robbery of a cocaine dealer, Carlos Ruiz (“Ruiz”), by a group that included three other drug dealers, Bucci, Jon Minotti (“Minotti”), and Francis Muolo (“Muolo”), and a corrupt police officer, Jordan. The group devised a plan to rob Ruiz of three kilograms of his cocaine by setting up a fake drug transaction between Bucci and Ruiz, with Minotti acting as the middleman. The plan called for officer Jordan to arrive and pretend to “bust” the drug deal, providing Minotti an opportunity to escape with the drugs. Muolo was to be Minotti’s getaway driver.
On December 24, 2003, Minotti accompanied Ruiz to the parking lot of the Malden Medical Center, where they met Bucci. Bucci agreed to purchase three kilograms of cocaine from Ruiz. As Minotti, the middleman, went to transfer the cocaine from Ruiz’s car to Bucci’s car, officer Jordan entered the parking lot in an unmarked vehicle, exited his car wearing plain clothes, shouted “Malden Police,” and pointed a gun at Ruiz’s head. Minotti immediately fled with all three kilograms of cocaine, traveling down an embankment and through the neighboring woods to where Muolo was waiting with a getaway car. Jordan frisked Ruiz and Bucci, detained them long enough for Minotti to complete his escape, and then released them with a warning. Muolo, Minotti, and Bucci then reunited at Muolo’s apartment to divide the proceeds from their heist. However, unbeknownst to them, Ruiz had been the subject of an ongoing federal investigation, and Drug Enforcement Administration (“DEA”) agents conducting surveillance observed the foregoing events as they occurred.
On July 6, 2004, a federal grand jury returned an eight-count indictment charging Bucci and Jordan with, among other things, conspiracy to distribute cocaine, 21 U.S.C. § 846, possession of cocaine with intent to distribute,
Id.
§ 841(a)(1), and possession of a firearm in connection with a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A). Minotti and Muolo agreed to plead guilty to the same charges and to testify against Bucci and Jordan in exchange for lesser sentences. On April 12, 2006, a jury convicted Bucci and Jordan of all counts. This court affirmed their convictions and sentences.
See Bucci,
In May 2009, both Bucci and Jordan filed petitions seeking collateral relief under 28 U.S.C. § 2255. Following a three-day evidentiary hearing, the district court denied both petitions.
See Bucci,
When a district court has held an evidentiary hearing on a petitioner’s § 2255 claim, “we review its factual conclusions for clear error.”
Owens v. United States,
II. Bucci’s Right to a Public Trial
We consider first Bucci’s claim regarding the partial courtroom closure that took place during jury selection, summarizing existing law and then turning to the facts of this case.
A.
The Supreme Court made clear in
Waller v. Georgia,
[ 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
[ 4 ] it must make findings adequate to support the closure.
Id.
at 48,
The situation in
Waller
involved a suppression hearing regarding the admissibility of wiretap evidence.
Id.
at 41-42,
The Supreme Court recently made clear that the Sixth Amendment right to a public trial extends to “any stage of a criminal trial,” including “the
voir dire
of prospective jurors.”
Presley v. Georgia
- U.S. -,
After Presley was convicted, he moved for a new trial and presented evidence showing that prospective jurors could have been accommodated in the jury box and one half of the courtroom, leaving the other half of the courtroom open for public seating. Id. The trial judge denied the motion, expressing concern that “family members [might have] intermingle[d] with the jurors.” Id.
The Supreme Court reversed Presley’s conviction, finding that it was “well settled” under the Court’s precedents that the Sixth Amendment right to a public trial applied to jury selection. Id. at 723-24. In applying the Waller test, the Court concluded that
[t]he generic risk of jurors overhearing prejudicial remarks, unsubstantiated by any specific threat or incident, is inherent whenever members of the public are present during the selection of jurors. If broad concerns of this sort were sufficient to override a defendant’s constitutional right to a public trial, a court could exclude the public from jury selection almost as a matter of course.
Id. at 725. The Court also concluded that the trial court did not “consider all reasonable alternatives to the closure,” stating:
Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials.... Without knowing the precise circumstances, some possibilities include reserving one or more rows for the public; dividing the jury venire panel to reduce courtroom congestion; or instructing prospective jurors not to engage or interact with audience members.
Id.
Both
Waller
and
Presley
involved total courtroom closure situations where all members of the public were excluded during some phase of the trial.
See Presley,
B.
Because the circumstances regarding the alleged courtroom closure in this case are not reflected in the official trial transcript, the district court held an evidentiary hearing on Bucci’s claim to determine *24 the relevant facts. During the hearing, the district court heard testimony from members of the courtroom staff, members of the appellants’ families, and Bucci’s trial counsel. Below, we summarize the district court’s findings of fact and the record of the hearing.
Jury empanelment for the Bucci-Jordan criminal trial was scheduled to take place on March 20, 2006, in courtroom 11 of the John Joseph Moakley Courthouse. Judge Lindsay presided over the trial. Courtroom 11 is the only courtroom in the building equipped with a mechanical lift, which, because he was wheelchair bound, Judge Lindsay required in order to get onto the bench. Courtroom 11 contains fourteen benches in its public seating area, each of which can comfortably seat four people for a normal capacity of fifty-six. At a maximum capacity of five per bench, the public area of courtroom 11 can seat seventy people.
Because the Bucci-Jordan trial involved two defendants, one of whom was a police officer, courtroom deputy clerk Lisa Hourihan (“Ms. Hourihan”) arranged for a larger venire than usual. After discussing the matter with Judge Lindsay, Ms. Hourihan ordered a sixty-five juror venire.
On March 20, 2006, the doors to courtroom 11 were unlocked prior to 9:00 a.m. Before the proceedings began, approximately twelve to twenty-five members of the public took seats in the public area of the courtroom. Included in this group were Bucci’s mother, Rosemarie Keefe (“Mrs. Keefe”); Bucci’s wife, Melissa Bucci (“Mrs. Bucci”); Jordan’s wife (“Mrs. Jordan”); and Bucci’s paralegal, Michael Kevin Dupont (“Dupont”). Between 9:00 a.m. and about 10:40 a.m., the courtroom staff and counsel for the government and both defendants were in the courtroom engaged in preparing for the proceedings. Judge Lindsay and the jury venire were not yet present in the courtroom during this time.
When the venire was ready to enter, Ms. Hourihan realized that courtroom 11, which had a maximum capacity of seventy spectators, could not seat the entire sixty-five person jury venire if more than a dozen members of the public occupied seats. Thus, in accordance with Judge Lindsay’s past practice, Ms. Hourihan left her desk in front of the judge’s bench, went to the public area of the courtroom, and asked that all members of the public clear the courtroom to make way for the jury-
As the members of the public exited the courtroom, Bucci’s paralegal Dupont protested the courtroom closure and informed Ms. Hourihan that Bucci’s family members had a right to be present during jury selection. Dupont was a well-known and frequent pro se litigant who had been hired by the Bucci family to take notes and provide insight during the trial. Dupont was not employed by Bucci’s counsel. In response to Dupont’s objection, Ms. Hourihan exited the courtroom through the back doors and consulted Judge Lindsay, who instructed her to accommodate Dupont’s request. Ms. Hourihan accordingly went back into the courtroom and cleared a bench in the front row (which was usually kept vacant because an audio/video podium blocked it from the judge’s line of sight). Ms. Hourihan then exited the courtroom through the front doors and specifically invited Mrs. Keefe, Mrs. Bucci, and Mrs. Jordan to return and sit at the newly-cleared bench in the front row.
After Mrs. Keefe, Mrs. Bucci, and Mrs. Jordan took their seats, the sixty-five members of the jury venire were escorted into the courtroom and seated five to a bench at each of the remaining empty benches. At that point, the fourteen-bench courtroom consisted of thirteen *25 benches entirely filled with prospective jurors (five per bench) and the fourteenth bench containing Mrs. Keefe, Mrs. Bucci, Mrs. Jordan, and two empty seats. Two additional members of the public thus could have been seated.
Ms. Hourihan thereafter called the court to order, Judge Lindsay entered and took the bench, and the official transcript of the proceedings began at 10:40 a.m. Judge Lindsay proceeded to conduct the jury empanelment by first filling the jury box with prospective jurors starting with those seated in the first row of the public area. As those in the jury box were excused for cause, Judge Lindsay would replace the excused jurors with those next in line. This method resulted in the spectator benches being emptied sequentially from front to back.
Though at least 21 seats became available as prospective jurors were excused, members of the public were not invited to fill the newly-vacated seats. One or two court security officers stood outside the courtroom’s doors and denied entry to all who attempted to enter. Excluded members of the public included friends and family members of the defendants, Bucci’s paralegal Dupont, and, apparently, a Malden Police internal affairs investigator and a newspaper reporter. The security officers informed at least some members of the public that the courtroom would be closed all day. The district court found that the officers believed they were carrying out Ms. Hourihan’s earlier directive to clear the courtroom.
At approximately 1:15 p.m., the court took a lunch recess. Jury selection resumed at approximately 2:15 p.m., and there were no further efforts by any court personnel to bar members of the public from entering the courtroom. Neither of the defendants’ counsel objected at trial to the courtroom closure.
c.
Judge Lindsay became ill and died, and a new judge was assigned to preside over the § 2255 hearings. The district court on collateral review noted that there was “a very real legal question” as to whether Bucci could show “cause” for his procedural default in failing to object to the courtroom closure, but the court declined to address the issue and went “on to analyze the substance of the case on the assumption that ... cause for [any] default has been adequately shown.” Tr. of Evidentiary Hr’g at 94, Bucci v. United States, No. 04-10194-RCL (D.Mass. Oct. 22, 2009), ECF No. 442.
The court concluded that, because “three members of the public were present when jury empanelment began,” the fact “[t]hat other members of the public were not allowed into the courtroom [did] not amount to a closure implicating the Sixth Amendment,” even though two seats in the courtroom initially remained available and were not permitted to be filled by members of the public.
Bucci,
The court also found no Sixth Amendment violation in the fact that the court security officers “continued to prohibit members of the public from entering the courtroom even as seats became available.”
Id.
at 415. In the district court’s view, this continued closure was within “the trial judge’s power to place reasonable time, place, and manner limits on trial access.”
Id.
The court further reasoned that “[t]he presence of the defendants’ closest family members vindicated their public trial rights by ensuring that the defendants were ‘fairly dealt with and not unjustly condemned’ and by ‘keep[ing] [the defendants’] triers keenly alive to a sense of their responsibility and to the importance
*26
of their functions.”
Id.
at 416 (second and third alterations in original) (quoting
Waller,
The district court further found that there were other justifications for the partial courtroom closure, including the risk that the public would intermingle with the prospective jurors and might block counsels’ view of the venire — concerns that did not in fact initiate the closure.
Accordingly, the district court denied Bucci’s Sixth Amendment claim asserted in his § 2255 petition.
D.
Bucci correctly points out that the courtroom closure here likely violated the Sixth Amendment. Because this case involves a partial, as opposed to a total, courtroom closure, the first
Waller
factor requires only a “substantial” interest justifying the courtroom closure, rather than a “ ‘compelling’ interest.”
DeLuca,
While space limitations can constitute a substantial justification for limiting the number of spectators admitted,
4
the courtroom here at all times had multiple empty seats which could have been made available to the public. Two spectator seats on the benches were available when voir dire began. Also, at the outset, 12 jurors could have been seated in the jury box, thus immediately freeing up a like number of spaces for spectators. At least 21 more seats became available as prospective jurors were excused. As this court explained in
Owens,
“once there was sufficient space in the courtroom, we see no state interest — compelling or otherwise— in not permitting [the defendant’s] family, friends, or other members of the public to observe the proceedings.”
Nor could the § 2255 district court’s alternative theories support closure. The district court found the closure justified because it “lessened the risk of intermingling between potential jurors and the defendants’ close family members.”
Bucci,
There is also a problem here with court personnel handpicking only select members of the defendants’ families to remain in the courtroom while the general public was excluded. This court has recognized that “the same standard [regarding courtroom closures] applies to family members as to the general public.”
Owens,
Nonetheless, we do not decide the merits of the Sixth Amendment claim. As we now discuss, we conclude that Bucci’s Sixth Amendment claim has procedurally defaulted and that no “cause” has been shown that would excuse his default. We consider Jordan’s claim later in the opinion.
E.
Collateral relief in a § 2255 proceeding is generally unavailable if the petitioner has procedurally defaulted his claim by “failing] to raise [the] claim in a timely manner at trial or on [direct] appeal.”
Berthoff v. United States,
It is undisputed that Bucci’s counsel did not object at trial to the courtroom closure. Nonetheless, Bucci contends that his claim has not procedurally defaulted for several reasons.
Bucci first contends that Dupont’s objection at trial preserved the issue. While Dupont had been hired by Bucci’s family to take notes, Dupont was not employed by Bucci’s trial counsel. This court has held that, when a defendant is represented by counsel, motions and objections made by parties other than the defendant’s counsel are not sufficient to preserve a claim of error on the defendant’s behalf, absent a court-approved “hybrid representation.”
See United States v. Washington,
Bucci next argues that his Sixth Amendment claim was nonetheless preserved when he raised the issue for the first time on his direct appeal.
7
This court noted that the issue had not been raised at trial and declined to address it — even under the “plain error” standard — because “the Spartan record” was “inadequate to permit meaningful review.”
Bucci,
Bucci contends that, even if this court on appeal did not explicitly find his Sixth Amendment claim preserved, the very act of raising the issue for the first time on his direct appeal itself preserved the claim and entitles him to “plain error” review on a subsequent § 2255 petition.
While this court has not yet considered this issue in relation to § 2255, this court has addressed essentially the same issue in the § 2254 context relating to habeas petitions by state prisoners. In
Commonwealth v. Horton,
*29
The Supreme Court made clear in
Frady
that procedural defaults in § 2255 cases are to be reviewed under the same “cause and actual prejudice” standard applied in § 2254 cases.
See Frady,
Because we find that Bucci’s Sixth Amendment claim was procedurally defaulted due to his failure to object to the courtroom closure at trial, in general Bucci would not be entitled to collateral relief under § 2255 unless he could show both (1) “cause” for having procedurally defaulted his claim; and (2) “actual prejudice” resulting from the alleged error.
See Frady,
Bucci argues that the “cause” prong of this test is satisfied on grounds that his counsel’s failure to object to the partial courtroom closure at trial constituted ineffective assistance of counsel. The Supreme Court has recognized that ineffective assistance of counsel can constitute cause sufficient to excuse a procedural default, but only if the representation was “constitutionally ineffective under the standard established in
Strickland.” Murray v. Carrier,
To establish deficient performance under
Strickland,
the defendant must show that his counsel’s actions “fell below an objective standard of reasonableness.”
Id.
at 688,
Important interests are served by requiring contemporaneous objections to courtroom closures. As the Supreme Court has recognized, objecting to a procedural error at trial “can often correct or avoid the mistake so that it cannot possibly affect the ultimate outcome.”
Puckett v. United States,
Nonetheless, in
Owens,
this court held that the defense counsel’s failure to object to a complete courtroom closure for an entire day of jury selection “may show that [counsel’s] performance fell below ‘an objective standard of reasonableness.’ ”
We consider the question of ineffective assistance under the particular facts of this case, under the usual Strickland presumption of competency. Here, Bucci’s trial counsel testified that he had knowledge of the partial closure. Even if reasonably competent counsel under the “prevailing professional norms” would have viewed the partial closure as a potential Sixth Amendment violation (an issue which we do not decide), 11 we think that, under the applicable objective standard, competent counsel could have knowingly and reasonably declined to raise the constitutional issue in this case because doing so would be a waste of the defense’s time, energy, and resources.
A competent defense counsel is “entitled to formulate a strategy that [is] reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies.”
Richter,
Here, we think competent defense counsel could have reasonably concluded that the presence of Bucci’s family members sufficiently mitigated the risk of actual prejudice to Bucci to the point that Bucci *32 had little or nothing to gain from opening the courtroom to additional members of the public. In other words, we think that competent defense counsel in this case could have reasonably concluded that even a successful Sixth Amendment challenge to the partial courtroom closure would have done little to increase the defense’s chances of securing a not-guilty verdict. As such, an objectively reasonable defense counsel could have made the strategic decision to forego the Sixth Amendment objection in favor of conserving the defense’s limited resources for other important issues. Rather than raising a complicated constitutional issue that might require briefing and a hearing while offering limited upside to the defendant, the defense counsel could have reasonably believed his client’s interests would be best served by moving the trial along and focusing on the immediate task of jury selection.
Under these circumstances, Bucci’s counsel’s failure to raise the objection at trial did not fall below the “objective standard of reasonableness” required to establish constitutionally ineffective assistance under Strickland. Bucci thus has not shown “cause” that excuses his procedural default. While we find the defense counsel’s actions here were reasonable where the partial courtroom closure only occurred during part of the voir dire proceeding, we note that the reasonableness of counsel failing to object under other circumstances, such as partial closure of an entire trial, might present a quite different question.
F.
Bucci contends that the district court erred in conducting the § 2255 hearing in his absence, that his counsel was ineffective in failing to request his presence, and that he is entitled to a new § 2255 hearing. Because this issue was not raised before the district court, our review is for plain error.
United States v. Rodriguez,
Section 2255 provides that a district court “may entertain and determine such motion without requiring the production of the prisoner at the hearing.” 28 U.S.C. § 2255(c). Whether the petitioner should be present at his § 2255 hearing “depends upon the issues raised by the particular case,”
United States v. Hayman,
While Bucci was present when the courtroom closure occurred, he was not the only defense witness available to testify as to the events in question. At the § 2255 hearing, various members of the courtroom staff, Michael Natola (Bucei’s trial counsel), Mrs. Keefe (Bucci’s mother), and Richard Morganti (Jordan’s brother-in-law) testified as to the events that occurred inside the courtroom. Bucci does not demonstrate, or even contend, that he had anything material to add to this testimony. The Supreme Court has recognized that “there are times when allegations of facts outside the record can be fully investigated without requiring the personal presence of the prisoner,” and that district courts have “discretion to exercise their common sense” as to such matters.
Machibroda v. United States,
III. Jordan’s Right to a Public Trial
We turn now to Jordan’s case and the question of whether Jordan’s claim, like Bucci’s, is barred by his procedural default.
Because it is undisputed that Jordan failed to raise the courtroom closure issue either at trial or on his direct appeal, it is clear that his Sixth Amendment claim was procedurally defaulted. In addition to the prejudice requirement, there is a question of whether Jordan can satisfy the cause requirement.
Frady,
We note that, in view of the hearing testimony below, it may be questionable whether Jordan’s counsel was unaware of the courtroom closure, given that Jordan’s counsel was likely present in the courtroom and Ms. Hourihan testified that she announced the closure “[t]o everybody that was in the courtroom.” Tr. of Evidentiary Hr’g at 17,
Bucci v. United States,
No. 04-10194-RCL (D.Mass. Oct. 14, 2009), ECF No. 436. If Jordan’s counsel was present, Jordan may also have difficulty in showing that counsel’s unawareness (if it existed) was caused by an “objective factor external to the defense,” as would be required for attorney unawareness to constitute “cause.”
Murray,
The § 2255 hearing below failed to address Jordan’s allegations concerning “cause.” While hearing testimony detailed the courtroom closure generally, Jordan’s trial counsel did not testify, and no testimony focused on the whereabouts of Jordan’s counsel during the events in question; counsel’s unawareness of the closure; or, if counsel was unaware, whether his lack of awareness was caused by some “objective factor external to the defense.” The government does not argue that the hearing that was conducted provided a sufficient basis for this court to reject Jordan’s argument that his counsel’s failure to object should be excused. Jordan is entitled to an evidentiary hearing on the cause issue, and to have counsel appointed pursuant to Rule 8(e) of the Rules Governing Section 2255 Proceedings.
See
28 U.S.C. § 2255(b);
United States v. Butt,
If Jordan can overcome the hurdle of his procedural default, Jordan contends he is also entitled to a new § 2255 hearing on the merits of his Sixth Amendment claim because he was not provided with counsel at the hearing.
Although petitioners have no constitutional right to counsel in § 2255 proceedings,
Pennsylvania v. Finley,
If an evidentiary hearing is warranted, the judge must appoint an attorney to represent a moving party who qualifies [as an indigent] under 18 U.S.C. § 3006A. The judge must conduct the hearing as soon as practicable after giving the attorneys adequate time to investigate and prepare.
Rules Governing § 2255 Proceedings 8(c) (2009) (emphasis added). While the application of Rule 8(c) is an issue of first impression in the First Circuit, all of our sister circuits that have considered the issue have held that Rule 8(c) requires the court to appoint counsel for indigent petitioners if it holds a § 2255 evidentiary hearing, and the failure to do so constitutes structural error requiring automatic vacatur or reversal. 15 We agree, and the government does not argue to the contrary.
However, the government contends that Jordan had no right to counsel under Rule 8(c), as to the merits of the public trial issue, because “the record establishes that the district court held a hearing [only] on Bueci’s § 2255 motion, not Jordan’s.” Appellee’s Br. 16. In other words, the government contends that the evidentiary hearing conducted by the court pertained only to Bucci’s case, and that Jordan’s case was decided based on the record of Bucci’s hearing.
While the district court characterized the hearing as being limited to Bucci’s claim, a proceeding which in substance “clearly resemble[s] an evidentiary hearing” on a petitioner’s claim amounts to an
*35
“evidentiary hearing” within the meaning of Rule 8(c), “despite the district court’s unwillingness to categorize it as such.”
Shepherd,
In short, Jordan is entitled to a hearing (and counsel) to consider the issues of “cause” and “prejudice” for his procedural default. If Jordan can overcome his procedural default, he is entitled to a new hearing as to the merits of his Sixth Amendment claim. The district comb, if it so elects, may combine these two hearings. We accordingly vacate the district court’s dismissal of Jordan’s § 2255 petition and remand Jordan’s case for further proceedings consistent with this opinion.
IV. Article III
In addition to their Sixth Amendment claims, both Bucci and Jordan alternatively assert for the first time on the present appeals that an improper delegation of Article III authority occurred when the courtroom closure was effectuated by Ms. Hourihan (the clerk) rather than by Judge Lindsay himself.
We first note that there is a substantial question as to whether the appellants’ Article III claims are properly before this court, as they were not asserted in the appellants’ § 2255 petitions; were not addressed by the district court below; and were not included in the appellants’ Certificates of Appealability (“COA”). 16 Moreover, neither Bucci nor Jordan raised an Article III objection at trial or on direct appeal, so the same procedural default issues discussed above regarding the appellants’ Sixth Amendment claims are present here. However, we need not decide these procedural issues, because we find that the appellants’ Article III claims lack merit.
The question presented is whether, in the absence of a contemporaneous objection by trial counsel to a partial courtroom closure, a judge commits an impermissible delegation of Article III authority if he authorizes his staff to regulate public attendance and does not address the Waller factors sua sponte on the record. We hold that the delegation of administrative tasks regarding courtroom seating does not violate Article III.
It is well settled that, “[w]hile ‘[e]ases or controversies committed to Art. Ill courts cannot be delegated to nonjudicial officers for resolution!,] [t]hat general principle does not ... prohibit courts from using nonjudicial officers to support judicial functions, as long as that judicial officer retains and exercises ultimate responsibility.’ ”
United States v. Allen,
Here, the record shows that Judge Lindsay was responsible for the decision as to whether to close the courtroom. The district court on collateral review found that Ms. Hourihan “was following Judge Lindsay’s instructions” when she asked the public to clear the courtroom, “as [it] was the practice in that session of the Court” to close the courtroom when an oversized venire would require most of the public seating. Tr. of Evidentiary Hr’g at 86-87, Bucci v. United States, No. 04-10194-RCL (D.Mass. Oct. 22, 2009), ECF No. 442. The court further found that, after Dupont objected and contended that “Mr. Bucci’s wife and mother” had a right to be present, Ms. Hourihan “went back to consult Judge Lindsay and Judge Lindsay ... accommodated them by directing her to bring them in and seat them in row 11.” Id. at 87-88.
It is thus clear that, at all times, Judge Lindsay was responsible for the decision to close the courtroom, and he merely delegated the administrative details. If the defendants had properly objected to the partial courtroom closure at trial, we are confident that Judge Lindsay — not Ms. Hourihan — would have weighed the Waller factors and made a determination as to the closure’s constitutionality. We merely hold that, having made the decision to close the courtroom partially, the court’s delegation of administrative details regarding the closure to his staff did not violate Article III.
V. Prosecutorial Misconduct
We turn next to Bucci’s claims of prosecutorial misconduct. Necessary to an understanding of Bucci’s claims is a brief description of the theory the prosecution asserted at trial.
Bucci was charged and convicted of carrying a firearm during the commission of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). Because only officer Jordan carried a firearm during the robbery, the government sought to convict Bucci for the firearm charge by invoking the
Pinkerton
theory of vicarious conspiratorial liability, under which “members of a conspiracy are substantively liable for the foreseeable criminal conduct of the other members of the conspiracy.”
United States v. Rivera-Rodriguez,
The Pinkerton theory also played a role in Bucci’s sentencing enhancement. Pursuant to 18 U.S.C. § 924(c)(l)(A)(i)-(ii), the mandatory minimum sentence for carrying a firearm during the commission of a drug trafficking crime is increased from five years (60 months) to seven years (84 months) if the firearm was brandished during the commission of the crime. It being undisputed that Jordan brandished his firearm during the robbery, the prosecution sought to add the brandishing enhancement at Bucci’s sentencing hearing. The district court agreed, finding that Bucci could have reasonably foreseen that Jordan would draw his firearm.
Bucci first contends that the prosecution committed Brady violations by withholding two statements made by Minotti, the co-conspirator that testified against Bucci. The first of these statements was pertinent only to Bucci’s sentence enhancement, as it was not made until after Bucci’s trial. After Bucci was convicted, but before he was sentenced, Minotti submitted an affidavit (“Sentencing Affidavit”) to his own sentencing judge (a different judge than Bucci’s). In his Sentencing Affidavit, Minotti stated that the conspirators met in the Malden Medical Center parking lot at about 9:00 a.m. on the morning of the robbery to discuss the details of their plan. At the meeting, Jordan allegedly asked Minotti if Ruiz (the target) carried a firearm, and Minotti allegedly informed Jordan that Ruiz never did. Bucci alleges that the prosecution failed to disclose this affidavit to the defense and that it constituted material exculpatory evidence. 18
However, the affidavit is in large part cumulative of other evidence the prosecution did submit to Bucci detailing the exact same conversation. In connection with his plea agreement, Minotti disclosed the details of his conversation with Jordan during several proffer sessions with the government. The prosecution provided the government’s notes of these interviews to Bucci during discovery. The disclosed pieces of evidence contain substantially the same information concerning the MinottiJordan conversation as did Minotti’s Sentencing Affidavit — i.e., that the conspirators had a 9:00 a.m. meeting at the Malden Medical Center, and that Minotti informed Jordan at the meeting that Ruiz would likely be unarmed. Both the Sentencing Affidavit and the disclosed proffer materials are unclear as to whether Bucci overheard the conversation between Minotti and Jordan. Bucci appears to concede that the Sentencing Affidavit is cumulative insofar as it describes the meeting, but he nonetheless argues that the Sentencing Affidavit “ ‘went beyond the discovery materials’ in stating that it was [Minotti’s] subjective belief that Jordan would not draw his gun.” Bucci’s Reply 33-34. Specifically, the Sentencing Affidavit stated:
*38 It ... never dawned on me that Jordan would even consider pulling his service weapon. It was not part of any plan and it would be plainly unnecessary. I expected that at most Jordan would simply identify himself as a police officer and inquire as to what was going on.
Aff. of John Minotti at 4, Minotti, No. 04-10325-GAO (D.Mass. July 11, 2006), J.A. 425, 428.
Bucci points to another alleged item of Brady material — a statement Minotti allegedly made during one of his proffer sessions with the government wherein he allegedly stated that he did not reasonably foresee Jordan would carry a firearm during the robbery. 19 This portion of the proffer session (if it existed) was not made available to Bucci. Because Minotti allegedly made this prior inconsistent statement before Bucci’s trial, it was potentially pertinent to both Bucci’s conviction and sentence enhancement.
The question is whether the government was obligated to disclose Minotti’s two statements under
Brady v. Maryland,
To satisfy the prejudice (i.e., materiality) prong of the
Brady
analysis, the petitioner must show there is “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”
Strickler,
*39 We find that Bucci has failed to show prejudice. The use of a prior inconsistent statement to impeach Minotti’s trial testimony as to the issue of foreseeability would likely have had little bearing on Bucci’s guilt or innocence. Minotti’s subjective opinion that it was reasonably foreseeable that Jordan might carry a firearm is of dubious relevance to whether it was objectively foreseeable to Bucci. Even without Minotti’s testimony as to the gun’s foreseeability, the circumstances of the robbery alone provide overwhelming evidence that anyone in Bucci’s position could have reasonably foreseen that officer Jordan might carry his service firearm during the robbery. These circumstances include the facts that (a) Bucci knew that Jordan was an actual police officer, and police officers often carry guns; (b) the conspirators’ plan involved Jordan’s playing the role of a police officer performing a drug bust; (c) Ruiz might not have believed Jordan was a police officer if Jordan arrived at the scene unarmed; and (d) even if everyone expected Ruiz to be unarmed, the possibility still existed that Jordan might need a gun for protection if Ruiz became physically violent when faced with the threat of losing over $80,000 worth of his cocaine.
Under these circumstances, we do not find any “reasonable probability” that the mere impeachment of Minotti’s subjective opinion testimony would have caused the jury to instead find it unforeseeable that officer Jordan might carry a gun during the robbery. The possible suppression of Minotti’s alleged prior inconsistent statement does not “undermine[] [our] confidence in the outcome of [Bucci’s] trial.”
Kyles,
Similarly, given the court’s reasoning for applying the brandishing enhancement, we find it even more unlikely that Minotti’s Sentencing Affidavit would have changed the result of Bucci’s sentencing. In finding that it was “entirely foreseeable” that Jordan would brandish his firearm during the robbery, the district court focused heavily on the fact that Jordan had to make the fake drug “bust” look believable to Ruiz, their target. The court reasoned that the success of the conspirators’ plan hinged on Jordan’s ability to “make [the robbery] seem like a real police encounter.” Tr. of Sentencing at 22, United States v. Bucci, No. 04-10194-RCL (D.Mass. Nov. 15, 2006), J.A. 188, 209. Ruiz did not know that Bucci and Minotti were working with Jordan. Rather, from Ruiz’s perspective, Jordan was merely a single man—wearing plain clothes and driving an.unmarked car—who decided to interrupt a large drug deal. In the sentencing court’s view, it was reasonably foreseeable that Jordan would pull out his gun “to convince this guy, Ruiz, ... that he’s a police officer” when confronting three hardened criminals without backup. Id. at 22; J.A. 211.
In view of the sentencing court’s reasoning, we do not find any “reasonable probability” that the court would have instead found Jordan’s brandishing unforeseeable if it had been presented with Minotti’s prior statements. Even if Jordan believed that Ruiz would be unarmed, this would have little relevance to Bucci’s state of mind. The court’s reasoning that Jordan would likely pull out his firearm to make the ruse look believable would still apply.
Accordingly, because Bucci has failed to show that he was prejudiced by the alleged suppression of either of Minotti’s statements, we reject Bucci’s Brady claims.
Bucci next contends that the prosecution knowingly elicited perjured testimony from Minotti when it had him testify against Bucci at trial that he reasonably foresaw Jordan would carry a firearm. A conviction can be reversed on subornation of perjury grounds only if the petitioner can show: (1) that the prosecution elicited
*40
false testimony; (2) that the prosecution knew or reasonably should have known that the testimony was false; and (3) that there is a “reasonable likelihood that the false testimony could have affected the judgment of the jury.”
Perkins v. Russo,
Bucci contends that Minotti’s testimony that he reasonably foresaw Jordan would carry a gun was false because Minotti allegedly first took the opposite position during his proffer sessions with the government, as detailed in Minotti’s Post-Conviction Affidavit. However, even if Minotti did initially adopt an a no-foreseeability position during his proffer sessions, it would not establish the falsity of his later testimony. Minotti could have lied when he told the prosecution that he did not foresee that Jordan would carry a firearm, and yet testified truthfully at Bucci’s trial that he actually did foresee the gun. As this court has held, “the fact that a witness contradicts herself or changes her story does not establish perjury” and “do[es] not create an inference, let alone prove, that the prosecutor knowingly presented perjured testimony.”
United States v. Lebon, 4
F.3d 1, 1 (1st Cir.1993) (quoting
Tapia v. Tansy,
In like vein, Bucci contends that the prosecution improperly coerced Minot-ti to testify against Bucci, and to change his subjective position regarding the foreseeability of Jordan’s carrying a firearm, by extending Minotti an offer of leniency. This allegation is based on Minotti’s Post-Conviction Affidavit, which alleges nothing more than that he felt compelled to testify and change his position regarding the firearm’s foreseeability in order to secure a plea agreement. It is well settled that a prosecutor’s threat to pursue more serious charges or sentencing supported by probable cause does not amount to improper coercion. 22 We accordingly reject Bucci’s coercion claim.
VI. Conclusion
For the foregoing reasons, we affirm the district court’s denial of Bucci’s § 2255 petition, vacate the district court’s denial of Jordan’s § 2255 petition, and remand Jordan’s case for further proceedings consistent with this opinion.
Affirmed in part, vacated in part, and remanded.
Notes
.
See also United States v. Gonzalez-Lopez,
.
See also United States v. Agosto-Vega,
.
See also Garcia v. Bertsch,
.
See, e.g., United States v. Shryock,
.
See Peterson v. Williams,
. A procedural default may also be excused by a showing of actual innocence.
See Bousley v. United States,
. Bucci raised the issue by filing a pro se motion. Though Bucci was represented by counsel, this court exercised its discretion to accept his pro se filing.
Bucci,
.
See Lynch v. Ficco,
. See, e.g., Rocha v. Thaler,
. We further note that, while the Supreme Court in
Frady
did not directly address this issue, the Court's choice of language implied that failure to object at trial can alone trigger a procedural default. The Court stated that the cause and prejudice standard must be satisfied "to obtain collateral relief based on trial errors
to which no contemporaneous objection was made,”
. Bucci's trial counsel was aware of the closure and stated at Bucci's § 2255 hearing that "it didn't occur to [him] to object” to the courtroom closure because "[i]t didn't occur to [him] that it was ... improper to ask people to leave the courtroom during jury selection.” Tr. of Evidentiary Hr'g at 65, Bucci v. United States, No. 04-10194-RCL (D.Mass. Oct. 14, 2009), ECF No. 436.
.
See also Babbitt v. Calderon,
. The government states in its brief on the present appeal that, "apparently!,] • • • Jordan's attorney” “was not aware of [the closure],” Appellee's Br. 42, apparently relying on conversations with Jordan’s counsel in the proceedings below, see Gov’ts Mot. for Summ. Dismissal at 3 n. 1, Jordan v. United States, No. 04-CR-10194-WGY (D.Mass. July 29, 2009), ECF No. 415 (noting that “[u]ndersigned counsel has conferred with both of Jordan’s trial counsel” and ”[n]either recalls anything of the partial closure of the courtroom during jury selection”). The government further stated that ”[t]his is not a case in which trial counsel should have known to be on the look-out for courtroom closure issues,” and that "trial counsel did not have any reason to be particularly attentive to whether the courtroom clerk or the court security officers moved spectators out of the courtroom at the outset of jury selection.” Id. at 5 n. 3.
.
See also Burks v. Dubois,
We note that in
Morales v. United States
the Second Circuit held that if defense counsel were unaware of the courtroom closure, the failure to object could not constitute ineffective assistance.
.
See Graham v. Portuondo,
.
See
28 U.S.C. § 2253(c)(1)(B), (3) (requiring a COA denoting the "specific [appealable] issue or issues” before an appeal can be taken from a final disposition of a § 2255 petition);
Peralta v. United States,
.
See also United States v. York,
. At Minotti’s sentencing, the government recognized that it “ha[d] an obligation to disclose [the Sentencing Affidavit] to the other defendants in this case.” Tr. of Sentencing at 6,
United States v. Minotti,
No. 04-10325-GAO (D.Mass. July 13, 2006), J.A. 362, 367. There is no evidence that this occurred. But we note that Minotti's Sentencing Affidavit became part of the public record prior to Bucci's sentencing hearing.
See Bucci,
. Minotti’s statement does not appear in the government's notes documenting his proffer sessions. Rather, for proof that Minotti made such a statement, Bucci relies on an affidavit Minotti himself submitted to Bucci’s § 2255 counsel long after Bucci was convicted ("Post-Conviction Affidavit”), apparently seeking to aid Bucci in his § 2255 petition. In the Post-Conviction Affidavit, Minotti asserts that he initially told prosecutors he did not foresee Jordan’s possession of the firearm, but then later changed his position in order to meet the prosecution’s plea demands.
. Because Bucci did not raise his present
Brady
claims on his direct appeal, he must show "cause and actual prejudice” excusing his procedural default.
See Frady,
.
See also United States v. Doherty,
.
See Bordenkircher v. Hayes,