Bucci v. United States

United States Court of Appeals
For the First Circuit

Nos. 09-2468; 09-2493

ANTHONY BUCCI,
Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,
Respondent, Appellee.

DAVID JORDAN,
Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,
Respondent-Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]

Before
Thompson, Selya, and Dyk,*
Circuit Judges.

Inga L. Parsons for petitioner-appellant Anthony Bucci.
David J. Nathanson, with whom Wood & Nathanson, LLP was on
brief, for petitioner-appellant David Jordan.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
respondent-appellee the United States of America.

October 13, 2011

*
Of the Federal Circuit, sitting by designation.
 DYK, Circuit Judge. 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 Bucci’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,

329 F.3d 253, 257 (1st Cir. 2003). The facts are described in

greater detail in this court’s opinion on the petitioners’ direct

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appeals, United States v. Bucci, 525 F.3d 116 (1st Cir. 2008), and

in the district court opinion in the § 2255 proceedings, Bucci v.

United States, 677 F. Supp. 2d 406 (D. Mass. 2009).

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

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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, 525 F.3d at 134.

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, 677 F. Supp. 2d at 420. Bucci and Jordan

both appealed, and we consolidated their cases. We have

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a).

When a district court has held an evidentiary hearing on

a petitioner’s § 2255 claim, “we review its factual conclusions for

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clear error.” Owens v. United States, 483 F.3d 48, 57 (1st Cir.

2007). We review the district court’s legal conclusions de novo.

Parsley v. United States, 604 F.3d 667, 671 (1st Cir. 2010).

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, 467

U.S. 39, 46 (1984), that the Sixth Amendment guarantees criminal

defendants the right to a trial that is open to members of the

public. This right was “created for the benefit of the defendant,”

as openness in criminal proceedings “encourages witnesses to come

forward,” “discourages perjury,” and “ensure[s] that judge and

prosecutor carry out their duties responsibly.” Id. (internal

quotation mark omitted). Closure of a trial can be justified only

by an overriding interest, “such as the defendant’s right to a fair

trial or the government’s interest in inhibiting disclosure of

sensitive information.” Id. at 45. “Such circumstances will be

rare, however, and the balance of interests must be struck with

special care.” Id. In Waller, the Supreme Court provided a four-

part standard for courts to apply prior to excluding the public

from any stage of a criminal trial:

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 [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 trial court closed the courtroom to all members of the public

during the entire seven-day suppression hearing. Id. at 42, 48.

The state sought to justify the closure on the grounds that a

public trial would impinge upon the privacy rights of non-

defendants whose conversations were also captured in the wiretap

recordings, and that unnecessary publication of the evidence might

render it inadmissible under state law. Id. at 41, 48. The

Supreme Court reversed. The Court reasoned that, “[u]nder certain

circumstances, these interests may well justify closing portions of

a suppression hearing,” but the trial court had not adequately

justified the closure in this case. Id. at 48-49. The Supreme

Court further held that such Sixth Amendment violations constitute

structural error for which “the defendant should not be required to

prove specific prejudice in order to obtain relief,” because “the

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benefits of a public trial are frequently intangible, difficult to

prove, or a matter of chance.” Id. at 49 & n.9.1

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, 130 S. Ct. 721, 724 (2010); see also Owens v.

United States, 483 F.3d 48, 66 (1st Cir. 2007). In Presley, the

trial judge excluded the defendant’s uncle, the only spectator

present at the time, from the courtroom during jury selection.

Presley, 130 S. Ct. at 722. The defendant’s counsel objected, but

the trial court explained that, given the size of the jury pool,

“[t]here just isn’t space for [the public] to sit in the audience,”

and the “uncle cannot sit and intermingle with members of the jury

panel.” Id. (first alteration in original) (internal quotation

marks omitted).

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

1
See also United States v. Gonzalez-Lopez, 548 U.S. 140, 148-
49 & n.4 (2006) (noting that “structural defects” such as the
denial of the right to public trial “defy analysis by ‘harmless-
error’ standards because they affec[t] the framework within which
the trial proceeds, and are not simply an error in the trial
process itself”) (alteration in original) (internal quotation marks
omitted).

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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, 130 S. Ct. at 722; Waller,

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467 U.S. at 42.2 In partial closure cases–-i.e., where courtroom

access is restricted but some members of the public are permitted

to attend--this court and several of our sister circuits have held

that a “substantial” interest, rather than a “compelling” one, will

justify partial closure. United States v. DeLuca, 137 F.3d 24, 32-

35 (1st Cir. 1998) (holding that requiring public spectators to

present identification before entering the courtroom did not

violate the Sixth Amendment right to public trial, where defendants

were associated with past efforts to obstruct fair fact finding,

and where members of the public actually attended).3

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 the relevant facts. During the hearing,

2
See also United States v. Agosto-Vega, 617 F.3d 541, 547-48
(1st Cir. 2010) (applying the Waller test and finding a Sixth
Amendment violation where there was a “total exclusion of members
of the public . . . from the jury voir dire process”); Owens, 483
F.3d at 66 (same).
3
See also Garcia v. Bertsch, 470 F.3d 748, 752-53 (8th Cir.
2006) (“[W]here a trial judge orders a partial closure . . . ,
courts have required only a ‘substantial reason’ for the partial
closure, instead of the more stringent ‘overriding interest’
required by Waller.”); United States v. Smith, 426 F.3d 567, 572
(2d Cir. 2005) (same); Judd v. Haley, 250 F.3d 1308, 1315 (11th
Cir. 2001) (same); United States v. Osborne, 68 F.3d 94, 98-99 (5th
Cir. 1995) (same); Nieto v. Sullivan, 879 F.2d 743, 753 (10th Cir.
1989) (same); United States v. Sherlock, 962 F.2d 1349, 1357 (9th
Cir. 1989) (same).

-9-
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,

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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

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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 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.

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 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

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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, 677 F. Supp. 2d at 414.

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 of their functions.” Id. at 416 (second and third

alterations in original) (quoting Waller, 467 U.S. at 46).

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 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, 137 F.3d at 33-34. However, even under this

less stringent standard, it is difficult to see a substantial

justification for the courtroom closure.

While space limitations can constitute a substantial

justification for limiting the number of spectators admitted,4 the

4
See, e.g., United States v. Shryock, 342 F.3d 948, 974 (9th
Cir. 2003) (rejecting argument that limited seating in an otherwise
open courtroom amounted to a “de facto closed courtroom” (internal
quotation marks omitted)); United States ex rel. Laws v. Yeager,
448 F.2d 74, 81 (3d Cir. 1971) (“[T]he Sixth Amendment . . . limits
the trial judge to the exclusion of those persons or classes of
persons only whose particular exclusion is justified by lack of
space or for reasons particularly applicable to them.”) (emphasis
added) (quoting United States v. Kobli, 172 F.2d 919, 923 (3d Cir.
1949)) (internal quotation marks omitted).

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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.” 483 F.3d at 62

(footnote omitted). Moreover, even if the courtroom were

completely filled with prospective jurors, it would likely not

justify the closure in this case. The Supreme Court in Presley

made clear that alternative methods of increasing the available

public seating, such as splitting the venire, must be adopted if

reasonable. 130 S. Ct. at 725.

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,

677 F. Supp. 2d at 416. However, the Supreme Court expressly

rejected the justification of preventing juror-public intermingling

because this “generic risk” is “inherent” to every voir dire

proceeding. Presley, 130 S. Ct. at 725. The district court also

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found that “allowing spectators immediately to take the seats of

the excused jurors in the first and second rows would block Judge

Lindsay’s and counsels’ view of the venirepersons next in line to

fill the jury box.” Bucci, 677 F. Supp. 2d at 417. The purported

concern that members of the public would block Judge Lindsay’s and

counsels’ view of the venire does not constitute a substantial

justification. Nor, contrary to the government’s argument, is this

a case in which the denial of the public trial right could be

characterized as “trivial.”5

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, 483 F.3d at 62 n.12; see also Davis v. United

5
See Peterson v. Williams, 85 F.3d 39, 42-44 (2d Cir. 1996)
(holding that a brief and accidental continuation of a proper
courtroom closure, which was not noticed by any of the
participants, was too trivial to amount to a Sixth Amendment
violation); see also United States v. Perry, 479 F.3d 885, 887-88,
890-91 (D.C. Cir. 2007) (finding closure trivial where the court
excluded only the defendant’s eight-year-old son based on the
court’s belief that viewing the trial was inappropriate and that
his presence was intended as an appeal to juror sympathy); United
States v. Ivester, 316 F.3d 955, 959-60 (9th Cir. 2003) (temporary
exclusion of the public from the courtroom to question the entire
jury to determine if they were concerned for their safety, in a
narcotics trafficking case, was deemed “so trivial as to not
implicate [the defendant’s] Sixth Amendment rights”); Braun v.
Powell, 227 F.3d 908, 919-20 (7th Cir. 2000) (exclusion of a single
member of the venire not chosen for the jury deemed trivial).

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States, 247 F. 394, 395 (8th Cir. 1917) (“It is not essential to

the right of attendance that a person be a relative of the accused,

an attorney, a witness, or a reporter for the press, nor can those

classes be taken as the exclusive representatives of the public.”)

(emphasis added).

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 “fail[ing] to raise [the] claim in a timely manner at trial or

on [direct] appeal.” Berthoff v. United States, 308 F.3d 124, 127-

28 (1st Cir. 2002); see also United States v. Frady, 456 U.S. 152,

167-68 (1982). If a petitioner’s claim has procedurally defaulted,

collateral review under § 2255 will be available only if the

petitioner can show both (1) “cause” for having procedurally

defaulted his claim; and (2) “actual prejudice” resulting from the

alleged error. Frady, 456 U.S. at 167-68.6

6
A procedural default may also be excused by a showing of
actual innocence. See Bousley v. United States, 523 U.S. 614, 622
(1998). Bucci has not attempted to make any such showing.

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 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, 434 F.3d 7, 16

(1st Cir. 2006). Here, the district court did not approve any

hybrid representation for Bucci that included Dupont. Dupont’s

objection therefore cannot be attributed to Bucci.

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, 525 F.3d at 129.

This court suggested that, if Bucci should choose to file a § 2255

petition, “the district court may hold an evidentiary hearing to

7
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, 525 F.3d at 129.

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test the merits of [his] claim.” Id. Far from finding that

Bucci’s Sixth Amendment claim was preserved, this court in Bucci’s

direct appeal found that it had not been properly raised at the

trial court level.

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, 753 N.E. 2d 119, 127 (Mass.

2001), a defendant contended for the first time on direct appeal

that his right to a public trial had been violated when the state

trial court conducted jury voir dire in a private jury deliberation

room, excluding members of the public. Because the defendant had

not objected at trial, the Massachusetts Supreme Judicial Court

found the issue forfeited and considered the defendant’s claim only

for “a substantial likelihood of a miscarriage of justice,” id.,

which is a limited standard of review akin to the federal “plain

error” standard. After exhausting his state appeals, the defendant

filed a § 2254 petition in federal district court. See Horton v.

Allen, 370 F.3d 75 (1st Cir. 2004). The district court “rejected

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[the petitioner’s § 2254] claim on procedural default grounds

because defense counsel did not object at trial.” Id. at 80. This

court affirmed, reasoning that “[t]he [state supreme court] did

review the claim for a ‘substantial miscarriage of justice,’ but

this sort of limited review does not work a waiver of the

contemporaneous objection requirement.” Id. at 81 (internal

citation omitted). Thus, the defendant’s failure to object at

trial triggered a procedural default which could be excused only by

satisfying the “cause and prejudice” standard. Id. This court has

since applied this rule in multiple § 2254 cases,8 and many of our

sister circuits have adopted the same approach.9

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,

456 U.S. at 164-67; see also Francis v. Henderson, 425 U.S. 536,

8
See Lynch v. Ficco, 438 F.3d 35, 45 (1st Cir. 2006); see
also Glacken v. Dickhaut, 585 F.3d 547, 550-51 (1st Cir. 2009);
Obershaw v. Lanman, 453 F.3d 56, 68 (1st Cir. 2006) (“Where, as
here, the state court finds forfeiture because of the defendant’s
failure to object at trial, the fact that it reviews for a
‘substantial likelihood of a miscarriage of justice’ does not
constitute a waiver of the requirement that the defendant timely
object.”). But see Clarke v. Spencer, 582 F.3d 135, 143-44 (1st
Cir. 2009) (finding procedural default avoided where, even though
defendant failed to object at trial, the state appellate court
waived the forfeiture and rejected his claim on the merits).
9
See, e.g., Rocha v. Thaler, 619 F.3d 387, 403-04 (5th Cir.
2010) (collecting cases and noting that the First, Third, Fourth,
Sixth, Seventh, Tenth, and Eleventh Circuits have adopted the same
approach, while the Eighth and Ninth Circuits have held otherwise).

-21-
542 (1976); Davis v. United States, 417 U.S. 333, 344 (1974).

Thus, we hold that a claim asserted in a § 2255 petition is

procedurally defaulted if the defendant failed to object to the

alleged error at trial, even if the defendant subsequently raised

the issue on direct appeal under “plain error” review.10

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,

456 U.S. at 167-68. Bucci argues that he need not establish

prejudice because a public-trial violation is a structural error.

See Owens, 483 F.3d at 64. It is an open question, however,

whether a partial public trial violation like the one here

constitutes structural error. See Purvis v. Crosby, 451 F.3d 734,

740 (11th Cir. 2006); Carson v. Fischer, 4721 F.3d 83, 95 (2d Cir.

10
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,” 465
U.S. at 167-68 (emphasis added), implying that failure to object at
trial was alone sufficient to trigger a default. The Court also
referred to the petitioner’s failure to object both at trial and on
his direct appeal as a “double procedural default,” id. at 168
(emphasis added), implying that each failure to object
independently constituted a procedural default for which “cause and
prejudice” need be shown.

-22-
2005). We need not decide the question because Bucci has failed to

establish “cause” excusing his procedural default.

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, 477 U.S. 478, 488 (1986) (citing

Strickland v. Washington, 466 U.S. 668 (1984)). Under Strickland,

the defense counsel’s performance will be found constitutionally

ineffective only if the defendant can show (a) that his counsel’s

performance was deficient; and (b) that he was prejudiced as a

result of the deficient performance. 466 U.S. at 687. The

prejudice prong here is the same as the prejudice requirement of

the cause and prejudice standard. Even if the prejudice

requirement were satisfied (a question we do not decide), a showing

of deficient performance would still be necessary.

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. The question

is whether the counsel’s performance fell “within the wide range of

reasonable professional assistance” that a competent criminal

-23-
defense counsel could provide under “prevailing professional

norms.” Id. at 688-89. “Surmounting Strickland’s high bar is

never an easy task.” Padilla v. Kentucky, 130 S. Ct. 1473, 1485

(2010). Judicial scrutiny of the defense counsel’s performance is

“highly deferential,” and the defendant must overcome a “strong

presumption . . . that, under the circumstances, the challenged

action ‘might be considered sound trial strategy.’” Strickland,

466 U.S. at 689. The inquiry focuses on “the objective

reasonableness of counsel’s performance, not counsel’s subjective

state of mind.” Harrington v. Richter, 131 S. Ct. 770, 790 (2011);

see also Dugas v. Coplan, 428 F.3d 317, 328 n.10 (1st Cir. 2005);

Cofske v. United States, 290 F.3d 437, 444-45 (1st Cir. 2002). The

reviewing court is therefore “required not simply to give [the]

attorneys the benefit of the doubt, but to affirmatively entertain

the range of possible reasons . . . counsel may have had for

proceeding as they did.” Cullen v. Pinholster, 131 S. Ct. 1388,

1407 (2011) (first alteration in original) (citation omitted)

(internal quotation marks omitted).

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, 129 S. Ct.

1423, 1428 (2009). Moreover, trial courts are “ordinarily in the

-24-
best position to determine the relevant facts and adjudicate the

dispute” with respect to procedural errors. Id. In the courtroom

closure context, a contemporaneous objection calls the Sixth

Amendment issue to the trial court’s attention and facilitates the

court’s consideration of the Waller factors, providing an

opportunity for the court to articulate its reasoning on the record

regarding the closure’s justification, scope, and possible

alternatives. Also, “the contemporaneous-objection rule prevents

a litigant from ‘sandbagging’ the court–-remaining silent about his

objection and belatedly raising the error only if the case does not

conclude in his favor.” Puckett, 129 S. Ct. at 1428. Any contrary

rule could encourage defendants to “take their chances on a verdict

of not guilty in . . . trial court with the intent to raise their

constitutional claims in a federal habeas court if their initial

gamble does not pay off.” Wainwright v. Sykes, 433 U.S. 72, 89

(1977); cf. McCleskey v. Zant, 499 U.S. 467, 491-92 (1991)

(“[H]abeas corpus review may give litigants incentives to withhold

claims for manipulative purposes and may establish disincentives to

present claims when evidence is fresh.”).

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.’” 483 F.3d at

63. And Owens concluded that “given that the courtroom was closed

-25-
to the public for an entire day,” failure to object could not have

been “sound trial strategy.” Id. at 64. But unlike Owens, the

present case involved only a partial courtroom closure. In such

situations, we cannot conclude that the absence of a sound trial

strategy should be presumed. In our view, two features distinguish

a partial closure from a complete closure. A complete closure has

a far more severe impact on the rights of the accused than a

partial closure (as reflected in the difference between the

“overriding interest” and “substantial reason” standards). See

Waller, 467 U.S. at 48 (using the “overriding interest” standard

for a complete closure); DeLuca, 137 F.3d at 32-35 (requiring only

a “substantial” interest for a partial closure). Moreover, a

complete closure is extremely difficult to justify, and an

objection by counsel is not likely to divert attention and

resources from other significant issues; in contrast, a partial

closure is likely to involve weighing competing considerations and

creates the prospect of protracted proceedings and the concomitant

diversion, as discussed below. These differences suggest that, in

complete closure situations, counsel’s failure to object

presumptively is an unsound trial strategy, whereas in partial

closure situations, no such presumption is appropriate.

We consider the question of ineffective assistance under

the particular facts of this case, free of any presumption. Here,

Bucci’s trial counsel testified that he had knowledge of the

-26-
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, 131 S. Ct. at 789. In doing so, a competent attorney can

elect to “avoid activities that appear ‘distractive from more

important duties.’” Id. (quoting Bobby v. Van Hook, 130 S. Ct. 13,

19 (2009) (per curiam)). In other words, the Strickland standard

for ineffective assistance “reflects the reality that lawyers do

not enjoy the benefit of endless time, energy or financial

resources.” Rogers v. Zant, 13 F.3d 384, 387 (11th Cir. 1994).

Indeed, while criminal defendants are entitled to competent

representation, the Constitution “does not insure that defense

11
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.

-27-
counsel will recognize and raise every conceivable constitutional

claim.” Engle v. Isaac, 456 U.S. 107, 133-34 (1982).12

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 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

12
See also Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th Cir.
1998) (holding that “counsel could reasonably have decided to
utilize his limited resources in investigating other avenues”);
Smith v. Collins, 977 F.2d 951, 960 (5th Cir. 1992) (finding no
inadequate assistance in defense counsel’s failure to object to
admission of defendant’s prior conviction, because “[t]he defense
of a criminal case is not an undertaking in which everything not
prohibited is required. Nor does it contemplate the employment of
wholly unlimited time and resources. Just as counsel is not
obliged to advance every available nonfrivolous argument, so
counsel is not necessarily ineffective for failing to investigate
every conceivable matter inquiry into which could be classified as
nonfrivolous.” (citations omitted)).

-28-
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.

Rodriguez, 311 F.3d at 437. We reject these claims because we

conclude that there was no error, plain or otherwise, in conducting

the hearing without Bucci present.

Section 2255 provides that a district court “may

entertain and determine such motion without requiring the

-29-
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, 342 U.S. 205, 223 (1952), and is a matter left to

the district court’s sound discretion, Kent v. United States, 272

F.2d 795, 797 (1st Cir. 1959); see also Sanders v. United States,

373 U.S. 1, 21 (1963).

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 (Bucci’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, 368 U.S. 487, 495 (1962).

Here, the court could have “reasonably decided that [Bucci’s]

testimony . . . would add little or nothing” to the testimony of

other available witnesses. Chang v. United States, 250 F.3d 79, 86

(2d Cir. 2001). The court did not abuse its discretion, much less

-30-
commit plain error, in holding the hearing without Bucci’s being

present.

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, 456 U.S.

at 167-68. In addition to asserting ineffective assistance of

counsel as cause for his procedural default, Jordan asserts that

“his counsel neither knew of nor had any reason to know of the

[courtroom] closure.” Jordan’s Reply Br. 21. The government so

far has been willing to assume that Jordan’s counsel was unaware of

the closure.13 Jordan contends that his counsel’s alleged

13
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.

-31-
unawareness itself constitutes “cause” excusing his failure to

object--even absent a showing of constitutionally ineffective

assistance–-because his unawareness was due to some “objective

factor external to the defense.” Jordan’s Br. 37 (citing Murray,

477 U.S. at 488).

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, 477 U.S. at 488.14 But

14
See also Burks v. Dubois, 55 F.3d 712, 717 (1st Cir. 1995)
(“If inadvertence of counsel, without more, were deemed to
constitute sufficient cause, the cause requirement would be reduced
to little more than a speed bump on the road to a federal forum.”);
Magee v. Harshbarger, 16 F.3d 469, 472 (1st Cir. 1994) (rejecting
claim of “cause” based on counsel’s alleged unawareness of
prejudicial evidence, because the court was “unable to find any
‘external impediments’ to trial counsel’s failure to timely notice
the allegedly prejudicial entry” and object to its admission).
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.
635 F.3d 39 (2d Cir. 2011). We do not read Morales as addressing
the question whether counsel’s unawareness could excuse a
procedural default of a public trial claim. Only an ineffective

-32-
we nonetheless conclude that Jordan is entitled to a new § 2255

hearing.

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(c) of the Rules

Governing Section 2255 Proceedings. See 28 U.S.C. § 2255(b);

United States v. Butt, 731 F.2d 75, 78 (1st Cir. 1984).

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, Finley, 481 U.S. at 555-56, Rule

assistance claim was raised in Morales, not a public trial claim as
such. See id. at 42.

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8(c) of the Rules Governing Section 2255 Proceedings requires the

appointment of counsel if an evidentiary hearing is required. Rule

8(c) provides, in relevant part:

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 Bucci’s § 2255 motion, not Jordan’s.”

15
See Graham v. Portuondo, 506 F.3d 105, 107 (2d Cir. 2007);
Green v. United States, 262 F.3d 715, 718-19 (8th Cir. 2001);
Shepherd v. United States, 253 F.3d 585, 588 (11th Cir. 2001);
United States v. Iasiello, 166 F.3d 212, 214 (3d Cir. 1999); United
States v. Duarte-Higareda, 68 F.3d 369, 370 (9th Cir. 1995); Swazo
v. Wyo. Dep’t of Corr. State Penitentiary Warden, 23 F.3d 332, 333-
34 (10th Cir. 1994); United States v. Vasquez, 7 F.3d 81, 85 (5th
Cir. 1993); Rauter v. United States, 871 F.2d 693, 695-97 (7th Cir.
1989).

-34-
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 “evidentiary hearing” within the meaning of

Rule 8(c), “despite the district court’s unwillingness to

categorize it as such.” Shepherd, 253 F.3d at 587. Here, we find

that the substance of the proceeding below--which related to both

defendants’ voir dire, included testimony from both defendants’

relatives, and resulted in judgment against both parties--clearly

indicates that the court held a Rule 8(c) “evidentiary hearing” on

the merits of both Bucci’s and Jordan’s claims. Jordan was

therefore entitled to have appointed counsel in connection with the

hearing. The hearing below as to the merits of his Sixth Amendment

claim “must be treated as a nullity, and the court’s findings

disregarded.” Kent, 272 F.2d at 797.

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 court, if it so elects, may combine

-35-
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

16
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, 597 F.3d 74, 83 (1st Cir. 2010) (“[A] court of
appeals should not consider the merits of an issue advanced by a
habeas petitioner unless a COA has first been obtained with respect
to that issue.” (citation omitted) (internal quotation marks
omitted)).

-36-
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 ‘[c]ases or

controversies committed to Art. III 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, 312 F.3d 512, 515-16 (1st Cir. 2002) (alterations in

original) (quoting United States v. Johnson, 48 F.3d 806, 809 (4th

Cir. 1995)); see also United States v. Raddatz, 447 U.S. 667, 683

(1980) (holding that, “so long as the ultimate decision is made by

the district court,” the delegation of authority to a magistrate to

hold an evidentiary hearing and to make proposed factual findings

and legal recommendations does not violate Article III).17

17
See also United States v. York, 357 F.3d 14, 21-22 (1st
Cir. 2004); Allen, 312 F.3d at 515-16 (both holding that probation
officer’s role in determining details of court ordered psychiatric

-37-
 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

testing does not violate Article III). But see United States v.
Melendez-Santana, 353 F.3d 93, 101 (1st Cir. 2003) (finding an
Article III violation where the district court gave a probation
officer “discretion” to determine not only the details of the
defendant’s drug treatment, but also whether the defendant would be
required to undergo such treatment), overruled, in part, on other
grounds by United States v. Padilla, 415 F.3d 211, 215 (1st Cir.
2005) (en banc).

-38-
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, 617 F.3d 581, 596 (1st Cir. 2010) (citation

omitted); see also Pinkerton v. United States, 328 U.S. 640 (1946).

Thus, to establish Bucci’s guilt as Jordan’s co-conspirator with

respect to the firearm charge, the government had the burden of

proving beyond a reasonable doubt that Bucci could have reasonably

foreseen that Jordan would carry a firearm during the robbery. To

that end, the prosecution enlisted Minotti–-one of Bucci’s co-

conspirators who pled guilty–-to testify at Bucci’s trial that he

-39-
(Minotti) reasonably foresaw that Jordan would carry a firearm

during the robbery. The government’s apparent theory was that, if

Jordan’s carrying a firearm were reasonably foreseeable to Minotti,

it would also have been reasonably foreseeable to Bucci. Any error

in admitting Minotti’s testimony is not at issue in this § 2255

proceeding.

The Pinkerton theory also played a role in Bucci’s

sentencing enhancement. Pursuant to 18 U.S.C. § 924(c)(1)(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,

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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 Minotti-Jordan

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

18
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, 677 F.
Supp. 2d at 418 n.12; see also Docket Sheets, Minotti, No. 04-
10325-GAO (motion to seal sentencing affidavit, ECF No. 67, denied
on July 14, 2006); Tr. of Sentencing, United States v. Bucci, No.
04–10194-RCL (D. Mass. Nov. 15, 2006), J.A. 188.

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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:

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

19
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

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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, 373 U.S.

83, 87 (1963). In Brady, the Supreme Court held that the

government’s suppression of evidence favorable to the accused

violates due process if the evidence is material to guilt or

punishment. To prevail on a Brady claim, “petitioner must

demonstrate: (1) the evidence at issue is favorable to him because

it is exculpatory or impeaching; (2) the Government suppressed the

evidence; and (3) prejudice ensued from the suppression (i.e., the

suppressed evidence was material to guilt or punishment).” Conley

v. United States, 415 F.3d 183, 188 (1st Cir. 2005) (citing

Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).

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, 527 U.S. at 280; see also United States v. Celestin, 612

F.3d 14, 23 (1st Cir. 2010). A “reasonable probability” exists if

foresee Jordan’s possession of the firearm, but then later changed
his position in order to meet the prosecution’s plea demands.

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the evidentiary suppression “undermines confidence in the outcome

of the trial.” Kyles v. Whitley, 514 U.S. 419, 434 (1995); see

also United States v. Avilés-Colón, 536 F.3d 1, 20 (1st Cir. 2008).

Moreover, “[s]uppressed evidence that is merely cumulative of

evidence already in the defendant’s possession does not justify a

new trial.” United States v. Turner, 501 F.3d 59, 73 (1st Cir.

2007) (citing Conley, 415 F.3d at 189).20

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

20
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, 456 U.S. at 167-68. This is of
little moment, however, because as the Supreme Court has
recognized, the “cause and prejudice” test “parallel[s] two of the
three components of the alleged Brady violation itself”–-i.e., the
prosecution’s suppression itself can constitute “cause” for failing
to object, and the “prejudice” prongs of both tests require a
“reasonable probability” that the result would have been different.
Strickler, 527 U.S. at 282; see also Rocha v. Thaler, 619 F.3d 387,
394 (5th Cir. 2010).

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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, 514 U.S. at 434.

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

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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 subordination of

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perjury grounds only if the petitioner can show: (1) that the

prosecution elicited 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,

586 F.3d 115, 119 (1st Cir. 2009) (quoting United States v. Agurs,

427 U.S. 97, 103 (1976)). Here, Bucci has failed to show that

Minotti’s testimony was false.

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, 926

F.2d 1554, 1563 (10th Cir. 1991)) (internal quotation mark

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omitted).21 Thus, because Bucci has failed to establish that

Minotti testified falsely at Bucci’s trial, we reject Bucci’s claim

that the prosecution knowingly subordinated perjury.

In like vein, Bucci contends that the prosecution

improperly coerced Minotti 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.

21
See also United States v. Doherty, 867 F.2d 47, 70 (1st Cir.
1989) (finding no decision that “prohibits a prosecutor from
calling witnesses who will present conflicting stories”); United
States v. Hemmer, 729 F.2d 10, 17 (1st Cir. 1984) (“Simply because
there exist[] inconsistencies between [a witness’s] grand jury and
trial testimony does not warrant the inference that the government
knowingly introduced perjurious testimony.”).
22
See Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978)
(finding no Due Process violation where prosecutor threatened to
charge defendant with a more serious crime if he did not accept a
plea, because the prosecutor did “no more than openly present[] the
defendant with the unpleasant alternatives of forgoing trial or
facing charges on which he was plainly subject to prosecution”);
United States v. Jenkins, 537 F.3d 1, 4 (1st Cir. 2008) (finding no
Due Process violation because “[h]ere, as in Bordenkircher, the
prosecutor tried to induce a plea by agreeing to lenient treatment
for defendant”).

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 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.

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