                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 18 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-10332

              Plaintiff - Appellee,              D.C. No. 1:08-cr-00020-ARM-4

  v.
                                                 MEMORANDUM *
JAMES A. SANTOS,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 09-10334

              Plaintiff - Appellee,              D.C. No. 1:08-cr-00020-ARM-3

  v.

JOAQUINA V. SANTOS,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 09-10335

              Plaintiff - Appellee,              D.C. No. 1:08-cr-00020-ARM-1

  v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
TIMOTHY P. VILLAGOMEZ,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                       No. 09-10374

              Plaintiff - Appellant,            D.C. No. 1:08-cr-00020-ARM-1

  v.

TIMOTHY P. VILLAGOMEZ,

              Defendant - Appellee.




                  Appeal from the United States District Court
                 for the District of the Northern Mariana Islands
                 Alex R. Munson, Chief District Judge, Presiding

                        Argued and Submitted June 12, 2012
                                Honolulu, Hawaii


Before: SCHROEDER, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Defendants Timothy Villagomez (“Villagomez”), James Santos (“Santos”)

and Joaquina Santos (“Mrs. Santos”) (collectively, “Defendants”) were charged

with conspiracy to defraud the United States, wire fraud, theft from a program

receiving federal funds, and bribery concerning a program receiving federal funds.

Villagomez was formerly the Lieutenant Governor of the Commonwealth of the


                                         2
Northern Mariana Islands (“CNMI”), and Santos was formerly the Secretary of

Commerce of the CNMI. Together with Mrs. Santos, Villagomez and Santos

conspired to commit fraud in connection with CNMI’s purchase of a chemical

solvent called Rydlyme from companies Santos and Mrs. Santos owned. On

appeal, the Defendants contend that they were deprived of their right to a public

trial when the public was excluded from the courtroom during voir dire. They also

contend that the district court abused its discretion by denying their post-trial

motion for an evidentiary hearing on their allegations of juror bias. The

Government contends on cross-appeal that the district court erred in calculating

Villagomez’s Sentencing Guidelines range. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm in part and reverse in part.1

      1.     The Defendants forfeited their right to a public trial by failing to

timely object to the closure of the courtroom during voir dire. See Peretz v. United

States, 501 U.S. 923, 936 (1991); Levine v. United States, 362 U.S. 610, 619

(1960); United States v. Rivera, 682 F.3d 1223, 1232 (9th Cir. 2012) (“[A]

defendant may nevertheless forfeit the right [to a public trial], either by

affirmatively waiving it or by failing to assert it in a timely fashion.”). The



      1
         Because the parties are familiar with the facts and procedural history, we
restate them only as necessary to explain our decision.

                                           3
government has consistently argued forfeiture and the district court did not address

it, instead focusing on whether it was proper to hold a hearing under Federal Rule

of Appellate Procedure Rule 10(e).

      Here, the defendants did not object to any closure during voir dire and did

not complain about the total closure of the courtroom during voir dire until more

than a year after trial. The defendants, however, knew or should have known of

any closure at the time it happened. The defendants produced seven affiants who

swore that they were excluded from the courtroom during voir dire, and the

defendants themselves were present in the courtroom during voir dire. The

defendants’ lawyers also knew or should have known of the closure, especially

given their statements at the April 14, 2010, hearing on bail pending appeal that the

“voir dire part of the trial was completely closed” and “not a single member of the

public was allowed during the voir dire.”2

      Where a defendant forfeits a claim by failing to raise it in a timely manner,

we review for plain error. United States v. Olano, 507 U.S. 725, 731, 733 (1993);

United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc). Even



      2
         Because the Defendants forfeited their objection to the courtroom closure,
the district court should not have held the Rule 10(e) hearing. Accordingly, we do
not consider any of the district court’s findings of fact resulting from that hearing
in this part of our analysis.

                                          4
assuming that the first three elements of the plain error test are met—i.e., that the

proceedings involved error, the error is plain, and the error affected the

Defendants’ substantial rights—we have “the discretion to remedy the

error—discretion which ought to be exercised only if the error seriously affects the

fairness, integrity, or public reputation of the judicial proceedings.” Puckett v.

United States, 556 U.S. 129, 135 (2009) (internal quotation marks omitted); see

also Johnson v. United States, 520 U.S. 461, 466 (1997). We decline to exercise

that discretion here because the Defendants point to nothing in the record

suggesting that closure led to any unfairness in the jury selection or deviation from

established procedures, affected the public interest in the administration of justice,

or somehow made the jurors less attuned to their sense of responsibility or the

importance of their function. See Johnson, 520 U.S. at 470; Press-Enter. Co. v.

Superior Court of Cal., Riverside Cnty., 464 U.S. 501, 508-09 (1984).

      2.     Even if the Defendants had not forfeited their objection to the closure

of the courtroom during voir dire, that objection would not be persuasive.

Assuming without deciding, for purposes of this analysis, that the district court’s

Rule 10(e) factual findings in the Settling Order were appropriate, the Defendants

have not made the requisite showing of an affirmative courtroom closure for a non-

trivial duration. See United States v. Shryock, 342 F.3d 948, 974 (9th Cir. 2003) (a


                                           5
defendant must show not mere closure, but that it was closed affirmatively,

completely, and pursuant to judicial act or order); see also United States v.

Rivera, 682 F.3d 1223, 1229 (9th Cir. 2012) (when a closure is trivial, “exclusion

of members of the public from a judicial proceeding does not implicate the

constitutional guarantee”); United States v. Withers, 638 F.3d 1055, 1063 (9th Cir.

2011) (a courtroom closure must be total and of significant duration); United States

v. Ivester, 316 F.3d 955, 959-60 (9th Cir. 2003) (holding that some closures are too

trivial to implicate the Sixth Amendment right to a public trial). Here, the Settling

Order reveals that the closure occurred not because of an affirmative court order,3

but because the large pool of prospective jurors occupied every available seat in

the small courtroom, at least during the first day of voir dire. The Settling Order

also makes no findings regarding the duration of the closure, except that it was no

longer than during voir dire, which occurred over the afternoon of one day and the

morning of the next. Thus, even accepting the findings in the district court’s Rule

10(e) Settling Order, the Defendants have not met their burden of demonstrating

that the closure was non-trivial.




      3
        The settling judge found there was no order to exclude members of the
public during jury selection.

                                          6
      3.     The district court properly denied the Defendants’ post-trial motion

for an evidentiary hearing due to alleged juror bias. To demonstrate actual bias,

the Defendants must show that: (1) “a juror failed to answer honestly a material

question on voir dire,” and (2) “a correct response would have provided a valid

basis for a challenge for cause.” McDonough Power Equip., Inc. v. Greenwood,

464 U.S. 548, 556 (1984); Estrada v. Scribner, 512 F.3d 1227, 1240 (9th Cir.

2008). Here, the district court did not clearly err in finding that the jurors were

honest in their answers about their relationships with the Defendants, attorneys,

and witnesses when asked. The record shows that the jurors who were related,

albeit distantly, to some of the witnesses answered the questions asked of them

honestly. The defense attorneys could have requested further inquiry, but they did

not. Cf. Sanders v. Lamarque, 357 F.3d 943, 947-50 (9th Cir. 2004) (“[T]he record

demonstrates that any failure by the prosecution to discover information regarding

[juror’s background] was due to its own lack of diligence and not any concealment

or deliberate withholding of information by [the juror].”). Moreover, even if the

Defendants could establish that the jurors’ answers were dishonest, they failed to

show that an honest answer regarding the familial relationships would have

supported a challenge for cause.




                                           7
      Implied bias is found in only “extraordinary cases” based on all the relevant

circumstances. Dyer v. Calderon, 151 F.3d 970, 981 (9th Cir. 1998). No

extraordinary circumstances exist here: (a) no court has presumed bias based on

familial relationships alone; (b) the jurors answered accurately and honestly the

questions asked of them and pledged under oath that they could impartially weigh

the evidence; and (c) the Defendants did not allege that the jurors knew of these

familial relationships or even that the jurors knew the witnesses personally. Cf.

Fields v. Brown, 503 F.3d 755, 767 (9th Cir. 2007) (holding that a juror’s failure to

volunteer details when he was not asked a specific question does not imply

intentional dishonesty). Without something more, these are not “extreme

circumstances” warranting presumed bias.

      4.     The district court erred in finding that a four-level increase for

Villagomez for participating in high-level public corruption would be double

counting when combined with his base level of 14, which was based on his status

as a public official. In calculating the Sentencing Guidelines range, “double

counting” is allowed when the increases account for distinct harms. United States

v. Holt, 510 F.3d 1007, 1012 (9th Cir. 2007). As opposed to the base-level for all

public officials, U.S.S.G. § 2C1.1(b)(3) applies a 4-level increase to all defendants

involved in a crime of high-level corruption, whether a public official or otherwise.


                                           8
Thus, the distinct harm at which § 2C1.1(b)(3) is aimed is the corruption of high-

level public officials as distinct from an individual official’s breach of the public

trust.

         For the foregoing reasons, we AFFIRM the district court with respect to the

Defendants’ appeals, and we VACATE Villagomez’s sentence and REMAND for

new sentencing proceedings consistent with this disposition.




                                           9
                                                                               FILED
United States v. Santos, 09-10332, 09-10334, 09-10335, 09-10374                 DEC 18 2012

                                                                           MOLLY C. DWYER, CLERK
N.R. SMITH, Circuit Judge, concurring in part and dissenting in part:        U .S. C O U R T OF APPE ALS




        I concur in all but part two of the majority’s disposition. I disagree that the

courtroom closure, which occurred during the entirety of voir dire over the course

of two days, was of a non-trivial duration. A courtroom closure that lasts for the

entire jury selection process cannot be deemed trivial. See, e.g., Owens v. United

States, 483 F.3d 28, 63 (1st Cir. 2007) (“[T]his was not a mere fifteen or twenty-

minute closure; rather [the defendant’s] trial was allegedly closed to the public for

an entire day while jury selection proceeded.”); United States v. Gupta, 699 F.3d

682, 685, 689 (2d Cir. 2012) (“the district court’s intentional, unjustified exclusion

of the public for the entirety of voir dire [lasting less than one day] was neither

brief nor trivial, and thus violated [defendant’s] Sixth Amendment right to a public

trial.”).
