United States v. Aguiar

894 F.3d 351

UNITED STATES of America, Appellee

v.Carlos AGUIAR, also known as Los, Appellant

No. 15-3027

United States Court of Appeals, District of Columbia Circuit.

Argued February 8, 2018

Decided July 3, 2018

Erica J. Hashimoto, Washington, appointed by the court, argued the cause for appellant. On the briefs were Steven H. Goldblatt, Washington, appointed by the court, Amit R. Vora, Supervisory Attorney, and Caleb Redmond and Joseph Flanagan, Student Counsel.

Carlos Aguilar, pro se, filed the brief for appellant.

James A. Ewing, Assistant U.S. Attorney, Washington, argued the cause for appellee. With him on the brief were Jessie K. Liu, U.S. Attorney, and Elizabeth Trosman, T. Anthony Quinn, Washington, and Nicholas P. Coleman, Assistant U.S. Attorneys. Suzanne G. Curt, Assistant U.S. Attorney, Washington, entered an appearance.

Before: Rogers, Griffith, and Srinivasan, Circuit Judges.

Opinion, dissenting in part, filed by Circuit Judge Griffith.

Rogers, Circuit Judge

This is an appeal from the denial of a collateral attack pursuant to 28 U.S.C. § 2255 on a conviction by a jury of crimes relating to a series of armed bank robberies. Carlos Aguiar contends the district court erred in denying the motion because his trial and appellate counsel failed to object to the closure of voir dire , in violation of his Sixth Amendment right to a public trial, and because trial counsel failed to explain the sentencing consequences under 18 U.S.C. § 924(c) of rejecting the government's plea offer and going to trial, in violation of his Sixth Amendment right to the effective assistance of counsel. The first contention fails in light of Weaver v. Massachusetts , ––– U.S. ––––, 137 S.Ct. 1899, 198 L.Ed.2d 420 (2017), because Aguiar has not shown prejudicial error from the voir dire closure. The second contention regarding the plea offer requires a remand because "the motion and the files and records of the case" do not "conclusively show" Aguiar is "entitled to no relief." 28 U.S.C. § 2255(b).

I.

In superseding indictments, Aguiar and five co-defendants were charged with RICO and armed bank robbery conspiracies, two armed bank robberies, three counts of unlawful possession of a firearm by a convicted felon, and two counts of possession or use of a fully automatic assault weapon in connection with a crime of violence in violation of 18 U.S.C. § 924(c)(1)(B)(ii). Earlier Aguiar had rejected the government's offer of a plea to three counts: RICO conspiracy, felon in possession of a firearm, and § 924(c)(1)(B)(ii), with a likely total sentence of between 47 and 51 years, including a mandatory 30 years on the § 924(c) count. A jury found Aguiar guilty of all charges except possession or use of fully automatic assault weapons, instead finding him guilty of possession or use of semi-automatic weapons in violation of §§ 924(c)(1)(B)(i) & (C)(i). He was sentenced to an aggregate term of 60 years' imprisonment, including mandatory consecutive terms of 10 and 25 years' imprisonment for the § 924(c) convictions, and ordered to pay restitution of $361,000. On direct appeal, this court affirmed the judgment of conviction. See United States v. Burwell, et al. , 642 F.3d 1062 (D.C. Cir. 2011), aff'd , 690 F.3d 500 (D.C. Cir. 2012).

Thereafter, on September 12, 2012, Aguiar, pro se , filed a motion pursuant to 28 U.S.C. § 2255(a) to vacate the judgment of conviction on the grounds of ineffective assistance of trial counsel. He argued that counsel failed to investigate and object to the exclusion of Aguiar's family members from voir dire , in violation of his Sixth Amendment public-trial right, and failed to explain to him the sentencing consequences for the two § 924(c) counts of rejecting the plea offer and going to trial, in violation of his Sixth Amendment right to effective assistance of counsel. Under the two-part test of Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Aguiar had to show counsel's performance was deficient "under prevailing professional norms," id . at 688, 104 S.Ct. 2052, and that the deficient performance was prejudicial, creating a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id . at 694, 104 S.Ct. 2052. The district court denied Aguiar's motion without an evidentiary hearing because he had not proffered factual allegations to require a hearing and "the files and records of the case" showed he was entitled to no relief. United States v.Aguiar , 82 F.Supp.3d 70, 74, 76 (D.D.C. Feb. 12, 2015) ; 28 U.S.C. § 2255(b). As the court resolved in United States v. Abney , 812 F.3d 1079, 1086–87 (D.C. Cir. 2016), our review of the denial of a § 2255 motion on the ground of ineffective assistance of counsel is de novo. See United States v. Stubblefield , 820 F.3d 445, 448 (D.C. Cir. 2016) (citing Abney ). The district court's denial of an evidentiary hearing is reviewed for abuse of discretion. See United States v. Morrison , 98 F.3d 619, 625–26 (D.C. Cir. 1996).¹

II.

The protections afforded by the Sixth Amendment to the Constitution that "the accused shall enjoy the right to a ... public trial" extend to voir dire . Presley v. Georgia , 558 U.S. 209, 213, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010). Voir dire is "presumptively ... a public process with exceptions only for good cause shown." Press-Enterprise Co. v. Sup. Ct. of Cal. , 464 U.S. 501, 505, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984). Consequently, "the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure." Waller v. Georgia , 467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) ; see CNN v. United States , 824 F.2d 1046, 1048 (D.C. Cir. 1987).

It is undisputed that the courtroom where voir dire was conducted for the trial of Aguiar and his co-defendants was closed, that defense counsel did not object, and that the district court did not conduct the Waller test. According to affidavits of Aguiar's mother and sister, when they attempted to observe voir dire on the first day of trial, a court security officer "informed [them] that [they] could not enter the courtroom because the jury selection had started, and that nobody was being allowed to enter until the jury selection was finished." Affid. of Lily Aguiar, at 1 (Sept. 12, 2012); see Affid. of Mariana Aguiar, at 1 (Sept. 12, 2012). The district court concluded that the alleged closure was "so trivial that it did not violate the Sixth Amendment," Aguiar , 82 F.Supp.3d at 84–85 (citing United States v. Perry , 479 F.3d 885, 890 (D.C. Cir. 2007) ), and confirmed it had "never ordered that the courtroom be closed" and "that Aguiar's mother and sister were not permitted into the courtroom by a security officer who was not acting under the authority of the [district] [c]ourt," id. at 84.

When, as here, a defendant first objects to a voir dire closure in a collateral attack on his conviction, the Supreme Court instructed in Weaver v. Massachusetts , ––– U.S. ––––, 137 S.Ct. 1899, 1907, 198 L.Ed.2d 420 (2017), that, notwithstanding a structural error, see id. at 1908, "not every public-trial violation will in fact lead to a fundamentally unfair trial" or "always deprive[ ] the defendant of a reasonable probability of a different outcome," id . at 1911.

[W]hen a defendant raises a public-trial violation via an ineffective-assistance-of-counsel claim, Strickland prejudice is not shown automatically. Instead, the burden is on the defendant to show either a reasonable probability of a different outcome in his or her case or, as the Court has assumed for these purposes, to show that the particular public-trial violation was so serious as to render his or her trial fundamentally unfair.

Id. (internal citation omitted). The Court rejected Weaver's challenge to the closure of voir dire because he had "offered no evidence or legal argument" that but for counsel's error there was a reasonable probability of a different outcome, or that his trial was rendered fundamentally unfair. Id . at 1912–13.

In circumstances strikingly similar to Aguiar's, Weaver's mother and her minister were excluded from the courtroom for two days during voir dire . Id. at 1913. "The closure was limited to the jury voir dire ; the courtroom remained open during the evidentiary phase of the trial; the closure decision apparently was made by court officers rather than the judge; there were many members of the venire who did not become jurors but who did observe the proceedings; and there was a record made of the proceedings that does not indicate any basis for concern, other than the closure itself." Id . Weaver made "no suggestion that any juror lied during voir dire ; no suggestion of misbehavior by the prosecutor, judge, or any other party; and no suggestion that any of the participants failed to approach their duties with the neutrality and serious purpose that our system demands." Id .

Assuming Aguiar's counsel's failure to object to the closure of voir dire constituted deficient performance under Strickland 's first prong, Weaver is dispositive of Strickland 's second prong. Aguiar proffered no evidence that had the district court conducted voir dire in open court, there was a reasonable probability the result of the proceeding would have been different, or that the voir dire proceedings were fundamentally unfair. He, like Weaver, suggests no misconduct by any party. The closed proceedings were held on the record, in the presence of all parties and their counsel, and Aguiar points to nothing in the closed proceedings that would remove his challenge from the reach of Weaver . The evidentiary and sentencing phases of the trial were held in open court, as were peremptory strikes and the district...