United States Court of Appeals
                      For the First Circuit

Nos. 10-1974
     10-2042
     10-2055
     10-2057
     10-2129

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                        JOSÉ NEGRÓN-SOSTRE;
                      LUIS RODRÍGUEZ-SOSTRE;
                       JOSUÉ PÉREZ-MERCADO;
                    RAMÓN MAYSONET-SOLER; and
                    WILFREDO ROSARIO-CAMACHO,

                     Defendants, Appellants.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Francisco A. Besosa, U.S. District Judge]


                              Before
                 Torruella, Lipez, and Thompson,
                         Circuit Judges.


     Ignacio Fernández-de Lahongrais for José Negrón-Sostre.
     Jorge E. Rivera-Ortiz for Luis Rodríguez-Sostre.
     Allison J. Koury for Josué Pérez-Mercado.
     Juan José Hernández-López de Victoria, with whom Hernández-
López de Victoria, PSC was on brief, for Ramón Maysonet-Soler.
     Judith H. Mizner, Assistant Federal Public Defender, for
Wilfredo Rosario-Camacho.
     Olga B. Castellón-Miranda, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Tiffany V. Monrose, Assistant United States
Attorney, were on brief, for appellee.



                          June 25, 2015




                               -2-
             THOMPSON, Circuit Judge.    The Sixth Amendment guarantees

the right to a public trial, and "without exception all courts have

held that an accused is at the very least entitled to have his

friends, relatives and counsel present, no matter with what offense

he may be charged."    In re Oliver, 

, 271-72 (1948).   We

have repeatedly held that this right extends to the process of jury

selection.     United States v. Agosto-Vega, 

, 546 (1st

Cir. 2010); Owens v. United States, 

, 61 (1st Cir.

2007).   Yet when voir dire was conducted in this case, the

defendants' family members and friends were excluded from the

courtroom, allegedly due to the Puerto Rico court's "longstanding

practice" of excluding the public from jury selection.

             This practice, if it still exists, comes at great cost.

The defendants were convicted as members of a sprawling drug

conspiracy after a three-month trial.        We are mindful that many

days of testimony, weeks of diligent juror attention, and months of

preparation led to that result. Nevertheless, the trial was doomed

before it started.      Because the complete exclusion of the public

from jury selection infringed the defendants' Sixth Amendment

rights, we are compelled to vacate the defendants' convictions and

remand this case for a new trial.       To ensure that holding a second

trial will not subject the defendants to double jeopardy, we must

also address their argument that the evidence presented at the




                                  -3-
first trial was insufficient to establish their guilt beyond a

reasonable doubt.

                                    I.

                             Background1

            From 2001 to June 2008, a drug marketplace operated

twenty-four hours a day, seven days a week at "La Quince," a street

in Altos de Cuba.       It was quite an operation.         With all the

convenience of a supermarket, La Quince offered one-stop shopping

for a number of different "brands" of cocaine, heroin, crack

cocaine,   marijuana,   oxycodone    and   alprazolam.2    Some   of   the

products were colorfully packaged, others had catchy names like

"Godzilla" or "Bin Laden," no doubt intended to inspire brand

loyalty in discerning users. The savvy marketers at La Quince even

distributed free samples of new drug batches.             Perhaps in an

attempt to appeal to the youth market, La Quince was located within

1,000 feet of a public school. In short, Walmart had nothing on La

Quince.




     1
      This circuit's approach to presenting the facts has been
inconsistent when addressing challenges other than to the
sufficiency of the evidence. See United States v. Rodríguez-Soler,

, 290 (1st Cir. 2014).    We will provide additional
background when we address appellants' sufficiency challenge a
little later, but to provide some initial background here for the
Sixth Amendment challenge, we present an objective view of the
evidence. See United States v. Nelson-Rodríguez, 

, 13
(1st Cir. 2003).
     2
      Alprazolam is the generic name for Xanax.

                                    -4-
            Like    any      prosperous     retailer,    La   Quince   had   a

sophisticated supply chain in place to speed inventory from storage

to clientele.      Runners were responsible for storing the drugs and

supplying them to the sellers as needed.                Sellers, as the name

implies, sold the drugs to the individual users and gave the

proceeds to the runners, who delivered the cash to those at the top

of the chain, the owners of each individual brand of drug.

            It is the owners who are the subject of this appeal.             In

September 2008, seventy-four individuals were indicted for their

involvement with the drug conspiracy centered in Altos de Cuba.

Among    them   were   the    appellants:    José   Negrón-Sostre   ("Negrón-

Sostre"), Luis Rodríguez-Sostre ("Rodríguez-Sostre"), Josué Pérez-

Mercado ("Pérez-Mercado"), Ramón Maysonet-Soler ("Maysonet-Soler"),

and Wilfredo Rosario-Camacho ("Rosario-Camacho"). Each of the

appellants was charged with six counts: conspiracy to possess with

the intent to distribute narcotics3 within 1,000 feet of a school

(Count I); aiding and abetting in the possession with the intent to

distribute heroin, crack cocaine, cocaine, and marijuana (Counts

II-V); and conspiracy to carry and use firearms during and in

relation to drug-trafficking crimes (Count VI).




     3
      Specifically, Count I charged the appellants with conspiracy
to possess with intent to distribute: heroin, crack cocaine,
cocaine, marijuana, oxycodone and alprazolam in violation of 21
U.S.C. §§ 841(a)(1), 846 and 860.

                                      -5-
           A jury trial commenced in January 2010.            Three months

later, the jury found the appellants guilty of Counts I through V.

On Count VI, the gun charge, the jury convicted Rodríguez-Sostre,

Maysonet-Soler and Rosario-Camacho, but found Negrón-Sostre and

Pérez-Mercado not guilty.     The appellants timely appealed, and in

March 2011 they moved to supplement the record, alleging that they

were denied their right to a public trial when their family members

were excluded from the courtroom during jury voir dire.

           On July 6, 2011, the district court held an evidentiary

hearing to determine whether the public had been excluded from the

courtroom in violation of the defendants' Sixth Amendment rights.

In December 2011, the district court issued a memorandum and

findings   of   fact,   concluding   in    summary   that   "[n]o   specific

evidence was ever presented, . . . that demonstrated that [a]

supposed long standing district policy of not allowing the public

into the courtroom during voir dire was ever followed in this

case."

                                     II.

                               Discussion

            All of the defendants argue that their convictions

should be reversed and their cases remanded for a new trial because

their Sixth Amendment rights were violated because members of the




                                     -6-
public   were   excluded   during   jury   voir   dire.4   Negrón-Sostre,

Rodríguez-Sostre and Maysonet-Soler also challenge the sufficiency

of the evidence supporting their convictions on some, but not all,

of the charges.5    They make a number of other claims of error, but

because they are not relevant in light of our ultimate ruling

vacating their convictions and remanding for a new trial, we need

not reach the remainder of these arguments.6

                                A.
            The Sixth Amendment Right to a Public Trial

           The failure to hold a public trial is a structural error

that "infect[s] the entire trial process."          

(internal quotation marks omitted).        Indeed, the Supreme Court has


     4
      Rosario-Camacho also contends that his right to a public
trial was violated when his sister was excluded from the courtroom
during closing argument.     Because we find that the courtroom
closure during the jury voir dire requires us to vacate and remand
for a new trial, we need not reach this argument.
     5
      Negrón-Sostre challenges the suffiency of the evidence
supporting counts III, IV and V. Rodríguez-Sostre challenges the
sufficiency of the evidence supporting counts I, III, V, and VI.
Maysonet-Soler challenges the sufficiency of the evidence
supporting counts I, II, III, and V. Pérez-Mercado and Rosario-
Camacho do not challenge the sufficiency of the evidence supporting
their convictions.
     6
      Defendants' other claims of error are: the district court's
refusal to give a requested multiple conspiracy jury instruction;
the admission of evidence of prior bad acts; jury taint and bias;
imposition of sentences that were procedurally and substantively
unreasonable; prosecutorial misconduct; the court's decision
allowing a government witness to refresh his memory by reading from
a document; requiring a witness's prior statements to be under oath
for impeachment purposes; and limiting defense counsel's ability to
effectively cross-examine witnesses to show bias, motive or
interest.

                                    -7-
been "pristinely clear that the Sixth Amendment right to a public

trial extends to the jury voir dire process."          

(citing Presley v. Georgia, 

, 213 (2010)).

That is so because "[j]ury selection is the primary means by which

a court may enforce a defendant's right to be tried by a jury free

from ethnic, racial, or political prejudice . . . or predisposition

about the defendant's culpability . . . ." 

(first and second alterations in original) (quoting Gómez v. United

States, 

, 873 (1989)).       In Waller v. Georgia, 

, 48 (1984), the Supreme Court held that, to avoid committing

structural error, courtroom closures must be justified by an

overriding interest and tailored to be "no broader than necessary

to protect that interest."         The defendants contend that the

district court erred when the public was unjustifiably excluded

from the courtroom during jury voir dire.

           Because defendants did not object to the exclusion at the

time of trial, "we review only for plain error."7      United States v.

Scott, 

, 37 (1st Cir. 2009).      Under plain-error review,

the defendants have "the burden of showing (1) that an error

occurred (2) which was clear or obvious and which not only (3)

affected   [their]   substantial   rights,    but   also   (4)   seriously

impaired the fairness, integrity, or public reputation of judicial


     7
      We note that the government did not argue that the failure to
object constitutes waiver and, indeed, the government urges us to
apply the plain error standard.

                                   -8-
proceedings." United States v. Almonte-Nuñez, 

, 89 (1st

Cir. 2014) (internal quotation marks omitted).

                  Was there Clear or Obvious Error?

            In order to determine whether an error occurred, we must

first determine whether, contrary to the district court's findings,

there was, in fact, a courtroom closure.            The relevant events of

the   January   20,   2010   jury   selection    were   the   subject   of   an

evidentiary hearing before the same judge who presided over the

trial.    Following this hearing, the district court essentially

determined no courtroom closing had occurred -- a finding the

defendants challenge on appeal.             We review the district court's

findings of fact for clear error.8            Bucci v. United States, 

, 21 (1st Cir. 2011).        Under clear error review, we defer to

the district court's findings unless "the record, read as a whole,

gives rise to a strong, unyielding belief that a mistake has been

made."    United States v. Hughes, 

, 434 (1st Cir. 2011)

(internal quotation marks omitted).           We will summarize the record

of that hearing, as well as the district court's findings of fact.

            Courtroom Security Officer ("CSO") Carlos Sierra-Medina

("Sierra-Medina") had been a CSO for nineteen years and was on duty

in the courtroom during voir dire.             He testified to the regular

practice of the court prior to 2010, saying "the tendency was that,



      8
      As always, legal conclusions are reviewed de novo.            Bucci v.
United States, 

, 21 (1st Cir. 2011).

                                      -9-
because of the space and security, the family will not be allowed"

to be in the courtroom during jury selection.          Sierra-Medina

testified that this practice was followed unless an attorney made

a previous special arrangement with the judge; for instance one

such arrangement in an earlier case involved bringing additional

chairs into the courtroom for family members.      He did not recall

any change in this "tendency" after the publication of our decision

in Agosto-Vega.9

             Deputy U.S. Marshal Miguel Portalatín testified that he

was in charge of security for the trial and that he "didn't get any

specific instructions from [the judge] as far as closing the door

or leaving the door open."    He stated that he never gave any orders

to keep people out of the courtroom because "we didn't have space,

so I didn't have to tell anybody."       Although the door was not

locked, and jurors exited freely when released, Portalatín did not

recall seeing any family members in the courtroom during jury

selection.

             Defendant Rosario-Camacho's sister, Maribel Rodríguez,

testified that she attempted to enter the courtroom on the morning

of jury selection and was asked by someone, "it could be security



     9
      In United States v. Agosto-Vega, 

, 543 (1st Cir.
2010), we held that the District Court of Puerto Rico "committed a
structural error by excluding the public from the courtroom during
the selection of the jury." Our decision issued in August 2010,
eight months after the trial in this case, but nearly a year prior
to the court's evidentiary hearing on the courtroom closure issue.

                                 -10-
officers, marshals, standing in the door," whether she was a juror.

When she replied that she was a family member, she was told "Okay,

well, family members are not allowed until we're finished."               She

testified that she told her brother's attorney that she had not

been allowed in the courtroom and he said, "Don't worry, just wait

in here, outside.       It's the procedure, family members are not

allowed until we finish with the selection of the jury."

           A friend of Rosario-Camacho's, Zuheily Otero González,

testified that she was present that day, and that Sierra-Medina

denied her access to the courtroom when she asked him if she could

enter for jury selection.       She, too, reported that she spoke with

Rosario-Camacho's attorney and he told her she could not go into

the courtroom because "it was a practice carried out in Puerto

Rico; that it was a process between the jury, the codefendants and

the attorneys."

           Defendant Rodríguez-Sostre's wife testified that a CSO

denied   her   entry   into   the   courtroom   on   the   morning   of   jury

selection.     Defendant Maysonet-Soler's wife testified that she

asked her husband's attorney if she could enter the courtroom and

was told that only the lawyers, prosecutors, judge, defendants and

potential jurors were allowed inside and that "that's something

that is usual."    She recounted that she tried to peek through the




                                     -11-
window but that Sierra-Medina "told us not to do that, that that

wasn't allowed."10

             After   the    family   members     testified,     several   of   the

defense attorneys took the stand.           Miriam Ramos-Grateroles, Pérez-

Mercado's counsel, testified that she had tried "more than 40"

cases and that "it has been a practice, as far as I can remember,

that during jury selection, the public, the family members, are not

allowed in court."      When family members asked her if they could be

present, she told them it was not allowed.              She testified that she

did not object because "[it] was the standard proceeding in this

court." Alexander Zeno, counsel for Maysonet-Soler, testified that

he had been an attorney for ten years and that it was his

understanding that "nobody from the public could come into the

courtroom"     during      the   jury     selection    process.    Like   Ramos-

Grateroles, Zeno did not object because it was his understanding

that this was a common practice.            Ramón Garay-Medina, counsel for

Negrón-Sostre,       testified    that    he    has   been   practicing   in   the

District of Puerto Rico since 1989, and that "[i]t was a matter of

general information" that family members were not allowed in the

courtroom for voir dire.          He did not object because "it was the


     10
      Several of the family members also testified that papers were
put over the window in the door to block their view into the
courtroom.   The district court relied on the testimony of CSO
Sierra-Medina and Deputy Portalatín in finding that no paper was
ever placed on the windows. Because we find that the public was
prevented from entering the courtroom, we need not resolve whether
at any time the windows were blocked.

                                         -12-
practice in this district not to allow the family members during

jury selection."11       Mariangela Tirado-Vales, Rodríguez-Sostre's

attorney, testified that "in all the jury selections in criminal

cases that [she had] had so far in this court," it was "the usual

process" to keep family members outside. Like the other attorneys,

Tirado-Vales testified that her failure to object was not the

result of a tactical decision, but reflective of her knowledge that

it was the "standard operating procedure" of the court to exclude

family members from jury selection.                 Finally, Rosario-Camacho's

attorney, Francisco Dolz Sánchez, testified that he had been

practicing in Puerto Rico since 1975 and that, since that time

"[e]verybody was used to the public being excluded during jury

selection."     According to Dolz Sánchez, in the years he'd been

practicing, including his "many years" in the Federal Public

Defender's Office, it was standard operating procedure and "nobody

objected to that."

            Following    the   hearing,       the    district   court   made   the

following     findings   of    fact,    pertinent       to   this   appeal:     1)

approximately seventy-five potential jurors were in attendance that

day, taking up all of the available seating; 2) the deputy marshal


     11
      On cross-examination, Garay-Medina confirmed that in the
afternoon, because jurors were coming in and out of the courtroom
during voir dire, he expressed a concern to the judge that the
jurors might not hear some of the questions. Garay-Medina admitted
that he raised the issue of sealing the room to prevent jurors from
leaving. The court did not, however, give an order to seal the
courtroom.

                                       -13-
did not request authority from the court to exclude the public, the

doors were not locked, and "the public was not excluded from the

courtroom due to a Court order or a determination by the deputy

marshal in charge;" 3) family and friends were present in the

courthouse, but no members of the public entered the courtroom and

those who attempted to look through the windows in the courtroom

door were told to step away from the door; 4) neither the court nor

the deputy marshal ordered the courtroom closed; 5) none of the

attorneys objected to the courtroom closure, and although they all

testified that closing the courtroom was standard practice in the

district, "[n]o specific evidence was ever presented, however, that

demonstrated that this supposed long standing district policy . . .

was ever followed in this case."   The district court concluded by

finding that

          the failure of the defendants' family members
          to enter the courtroom was due to the
          attorneys informing the family members that
          they could not enter the courtroom during the
          jury selection process, but not because of any
          Court Order or determination by the deputy
          marshal in charge to exclude the public.
          Counsel did not object precisely because there
          was nothing to which object [sic].


          In our review of the district court's findings, we begin

by noting that the court did not specifically determine that the

courtroom was not closed. Instead, it found that every seat in the

courtroom was taken by potential jurors, the courtroom doors were

not locked, and "the public was not excluded from the courtroom due

                               -14-
to a Court order or a determination by the deputy marshal in

charge." In finding that neither the court nor the deputy marshals

had "ordered" the courtroom to be closed, the district court

sidestepped the issue of whether the courtroom had in fact been

closed despite the absence of any such order.                      However, the issue

of whether there was an actual courtroom closure is key because,

"even if the courtroom was closed because of inattention by the

judge, courts have expressed concern in the past where a court

officer's      unauthorized     closure       of   a    courtroom     impeded    public

access."       

.           That the courtroom closure was

the result of inaction by the judge, rather than an affirmative

order,    is    not    dispositive.       

   closure   was

intentional      or    inadvertent      is    constitutionally            irrelevent.")

(quoting Walton v. Briley, 

, 433 (7th Cir. 2004)).

What matters is that the public was barred. 

v. Perrin, 

, 1200 (1st Cir. 1979), for the proposition

that the Sixth Amendment is implicated when marshals lock a

courtroom without authorization).

               Here,   the   district    court,        without     finding    that   the

courtroom was closed, blamed the defense attorneys for "informing

the family members that they could not enter."                       Undeniably, the

lawyers were partly at fault.12              However, it would be a misreading


     12
      Pérez-Mercado's attorney testified that she told Pérez-
Mercado's sister she could not enter the courtroom during jury
selection, and told the same to Pérez-Mercado about his sister.

                                        -15-
of the record to suggest that the lawyers were wholly to blame.

Indeed, the court's finding ignores CSO Sierra-Medina's testimony

that the general practice in Puerto Rico -- in other words, the

default rule -- was to exclude members of the public from voir dire

unless the attorneys made "arrangements" -- that is, made requests

in   contravention   of    the   general   practice    --   with   the   judge

beforehand.13    And in this case Sierra-Medina did not recall taking

any actions that day that were contrary to that "tendency" to

exclude    the   public.    In   that   way,   his    testimony    serves   to

corroborate the testimony of those family members who said that

Sierra-Medina had turned them away from the door, an assertion he

never denied during the hearing.        His testimony makes clear that a

courtroom closure occurred, accomplished not through locks and

direct orders, but through the actions of a CSO familiar with the

court's regular practice.14


Rosario-Camacho's sister and Rosario-Camacho's friend each
testified that Rosario-Camacho's lawyer told them they could not
enter the courtroom.    And Maysonet-Soler's wife testified that
Maysonet-Soler's lawyer told her the same.
      13
      For example, Sierra-Medina testified that, in another case
where the room was full of jurors, the judge had him bring in extra
chairs for the family.
      14
      In addition to CSO Sierra-Medina's characterization of the
Puerto Rico court's "tendency" to close the courtroom, each of the
defense attorneys testified to the same (alarming) practice. None
of the attorneys objected to the closure. They testified that this
was not due to a tactical decision, but rather the result of their
familiarity with the practice in Puerto Rico of closing the
courtroom during voir dire. The government tacitly admitted this
policy in a statement it made during a bench conference at trial,

                                    -16-
             Our review of the record convinces us that the court

clearly erred in not finding that a complete courtroom closure

occurred     during    jury      selection.           Moreover,      the    closure     was

attributable    to     court     personnel       at    least    as   much    as    to   the

attorneys.     The court clearly erred in finding that the attorneys

were wholly responsible for the family members' exclusion from voir

dire.      Having found a courtroom closure, we must now determine

whether that closure, absent express authorization from the judge,

can nevertheless pass constitutional muster.

             Although courtroom closures may be justified in some

circumstances, these closures "are to be rare and only for cause

shown that outweighs the value of openness." 

(internal quotation marks omitted).                   "[C]losure of jury selection

to   the   public     for   an   entire    day        without   meeting      the   strict

requirements of Waller would violate a defendant's right to a

public trial."      

     In Bucci, we summarized the Waller test

as follows:

             (1) the party seeking to close the hearing
             must advance an overriding interest that is
             likely to be prejudiced,
             (2) the closure must be no broader than
             necessary to protect that interest,
             (3) the trial court must consider reasonable
             alternatives to closing the proceeding, and


when it characterized the facts in Presley v. Georgia, 

, 724 (2010), by saying "the Defendant invoked his right to a
public trial, and it was in a process similar to what's done in
Puerto Rico during jury voir dire, everyone was removed from the
courtroom." (emphasis added).

                                          -17-
          (4) it must make findings adequate to support
          the 

.   Given the peculiar posture of this case -- where

no party affirmatively sought to close the courtroom, and where the

district court erroneously found that there was no closure -- the

Waller test was never applied.    Because the courtroom was in fact

closed absent the balancing of interests required by Waller, that

closure was a clear and obvious error, satisfying the first two

prongs of our plain error analysis.

  Did the Error Affect the Defendants' Rights and the Judicial

                           Proceedings?

          We now turn to the remaining third and fourth prongs,

addressing whether the error affected the defendants' substantial

rights, and whether it "seriously impaired the fairness, integrity,

or public reputation of judicial proceedings."   

.

          Although a brief, inadvertent closure may be excusable,

the exclusion of the public for the entirety of voir dire without

meeting the Waller test is a structural error.    

.   "The category of structural error has been reserved

for a very limited class of cases" including "a total withholding

of the right to counsel at trial," and "the specter of a biased

judge."   United States v. Padilla, 

, 219 (1st Cir.

2005) (internal quotation marks and citations omitted). Structural

errors, as distinguished from trial errors, infect the entire trial

                                 -18-
process.     

rights, structural rights are 'basic

protection[s] whose precise effects are unmeasurable.'" 

(quoting Sullivan v. Louisiana, 

, 281

(1993)).     Our precedent is unequivocal; structural error in the

form of a denial of the public trial right prejudices a defendant

notwithstanding that the prejudice may be difficult to detect. See

   In Owens, we explored specific ways that such a closure

may prejudice a defendant: "It is possible that jurors might have

been more forthcoming about biases and past experiences if they had

faced the public.         It is also possible that [the parties] might

have picked a more impartial jury or asked different questions with

local citizenry watching."        

concerns are at play

here where the public, including the family and friends of the

defendants, was excluded.        Therefore, it is clear on the facts of

this case that the third prong has been met.

             It remains then, for us to determine whether the error

affected the fairness, integrity or public reputation of the

proceeding as a whole.       Once again, Owens guides our analysis.        We

stated there that improper courtroom closure "call[s] into question

the fundamental fairness of [the] trial." 

transcends the criminal process by depriving a defendant of those

basic protections [without which] a criminal trial cannot reliably

serve its function as a vehicle for determination of guilt or

innocence,     and   no    criminal     punishment   may   be   regarded   as


                                      -19-
fundamentally fair."     

(internal quotation

marks and citation omitted)).         Indeed, given the importance of the

public trial right, it would be hard to see how the public

reputation     and   integrity   of     the   proceedings   would   not   be

compromised in this case.

             And that conclusion is not altered by our acknowledgment

of the role defense counsel contributed to the closure.             Although

it is disturbing to us that this practice passed without objection

by those who seemingly accepted it as lawful status quo in Puerto

Rico, we have no reason to believe the attorneys made a tactical

decision not to object (in order to "sandbag" the court into

creating a reversible error).          On the contrary, it is apparent,

given the testimony of Sierra-Medina and the defense attorneys, as

well as the statement made by the prosecutor at sidebar (see fn.

12), that the practice of excluding the public from voir dire was

alive and well in Puerto Rico long past the point when Owens made

clear that it was unacceptable.         It is a practice which however it

got started, could only have been sustained and implemented by the

court, not by defense attorneys.              We reiterate, the ultimate

responsibility of avoiding "even the appearance that our nation's

courtrooms are closed or inaccessible to the public" lies with the

judge.   

.        "We commend to the sound judgment

of the district court the responsibility, in the first instance, of

ensuring both openness and order, and above all, preserving the


                                      -20-
defendant's constitutional right to a public trial."                         

court's failure in this instance to properly police the

public's    access    to        defendants'   jury    voir     dire   substantially

impaired the fairness of the trial proceedings.                    We find that the

fourth prong has been met.

             Summing up, the closure of the courtroom during the

entirety of voir dire was a plain and obvious error that, as a

structural error, affected the defendants' substantial rights and

seriously impaired the fairness, integrity, or public reputation of

the proceedings.           Our precedent compels us to find that the

structural error in this case was plain error.                     Accordingly, we

vacate the defendants' convictions and remand their cases for a new

trial.    

.

                                         B.

                          Sufficiency of the Evidence

             Because the defendants will now have a new trial on the

same charges, "to prevent an allegation that they will be subjected

to double jeopardy in violation of the Fifth Amendment by reason of

this     retrial,    it    is     incumbent    upon     us    to   address    [their]

contentions    that       the    government    failed    to    present   sufficient

evidence at the first trial" to sustain their convictions.                         

challenges to the sufficiency of the evidence

de novo, "considering all the evidence, direct and circumstantial,

in the light most favorable to the prosecution, drawing all


                                        -21-
reasonable inferences consistent with the verdict, and avoiding

credibility judgments, to determine whether a rational jury could

have found the defendant[s] guilty beyond a reasonable doubt." 

(internal quotation marks omitted).      "Testimony from even

just one witness can support a conviction."        United States v.

Alejandro-Montañez, 

, 357 (1st Cir. 2015) (internal

quotation marks omitted).

                         Further Background15

           During the three-month trial, the jury heard testimony

from several cooperating witnesses who were involved in the drug

operation, including two runners and a seller.          Alfredo Sierra-

García ("Sierra-García") testified that at the age of thirteen he

became a "lookout" at La Quince -- a drug point where several

owners sold drugs at the same location.         According to Sierra-

García, La Quince featured something for every drug consumer:

heroin, cocaine, marijuana, and alprazolam were all on offer.        He

described how the drugs were packaged with different brightly-

colored papers that corresponded to a variety of brand names and

owners.   He testified that the lookouts were necessary to prevent

the losses the owners would suffer if police arrested a seller and

confiscated the drugs.    In that capacity, he was paid to warn all

of the sellers if police were approaching.



     15
      Only Negrón-Sostre, Rodríguez-Sostre,       and    Maysonet-Soler
challenge the sufficiency of the evidence.

                                -22-
            Sierra-García   described   a   hierarchy   at   La   Quince

consisting of owners, sellers, runners, and packagers, with the

owners atop the pecking order, functioning as "bosses."           The La

Quince organization also offered opportunities for advancement;

Sierra-García later became a runner for Negrón-Sostre, who owned a

brand of heroin known as Arco Iris. According to Sierra-García,

Negrón-Sostre held two positions in the heroin department; not only

was he an owner, but he also worked as a runner for Pérez-Mercado,

the owner of the Regalito brand of heroin.

            Sierra-García testified that drug brand ownership in La

Quince was something of a family business, with Maysonet-Soler

having inherited his interest from his mother. According to Sierra-

García, Maysonet-Soler owned the brand of cocaine known as Green,

or Osito.

            The jury also heard testimony from Xiomara Rosado-Pabón

("Rosado-Pabón"), who worked as a runner for Rodríguez-Sostre. She

testified that Rodríguez-Sostre owned the Lexus brand of heroin.

Jesús Robles-Santana ("Robles-Santana"), a seller, described the

variety of products available at La Quince, recalling that fifteen

or sixteen different brands of heroin were available there at any

one time. Employee turnover was high in this cut-throat business;

many of the individuals Robles-Santana identified as sellers are

now deceased.   Others survived and thrived.     According to Robles-




                                 -23-
Santana, by 2007, Rosario-Camacho controlled all of the crack

cocaine and marijuana at La Quince.

          La   Quince   offered   not    only   a   vast   selection,   but

convenient shopping hours as well.        The drug point operated on a

twenty-four hour schedule, with two shifts for the sale of cocaine,

heroin and other drugs starting at 6:00 a.m. and 6:00 p.m.         Shifts

for crack cocaine, however, began at 7:00 a.m. and 7:00 p.m. These

separate shifts were tailored to serve that particular market

because, according to Sierra-García, crack users "would come in at

six."    Rather than allow potential sales to slip through the

cracks, as it were, the normal shift was extended another hour to

cater to the 6:00 a.m. rush.

          La Quince was a streamlined model of efficiency.         During

their shifts, according to Sierra-García and Rosado-Pabón, sellers

were allowed to peddle brands from different owners simultaneously.

Similarly, runners carried drugs for multiple owners.

          There was always something new to tempt the shoppers at

La Quince, and debut products received savvy marketing support.

Sierra-García recalled seeing Rodríguez-Sostre, Negrón-Sostre, and

Maysonet-Soler distributing samples of new drug batches at the drug

point.

          The management style at La Quince was similarly hands-on.

Robles-Santana testified that he saw defendants Rodríguez-Sostre,

Negrón-Sostre, Rosario-Camacho, and Maysonet-Soler at the drug


                                  -24-
point regularly, and that the men met and had discussions there.

But even the best-managed business occasionally has personnel

problems. According to Sierra-García, a dispute arose at La Quince

over the sale of cocaine, leading Maysonet-Soler to shoot at

Rodríguez-Sostre's sister.       Concerned that this incident could

impact    business,   several   owners    held   a    meeting   "to   fix   the

problem."    Maysonet-Soler, Rodríguez-Sostre, and Rosario-Camacho

were present at this meeting where peace was restored when the

owners agreed that Rodríguez-Sostre would be allowed to "finish off

some bundles" of his inventory at the drug point before Maysonet-

Soler would be allowed to take over.

            Defendants Negrón-Sostre, Rodríguez-Sostre, and Maysonet-

Soler have each challenged the sufficiency of the evidence of some,

but not all, of the charges against them.            Because the evidence to

convict each defendant was largely the same, we take defendants'

challenges count by count.16




     16
      Rodríguez-Sostre is the only defendant who appears to
challenge Count VI, conspiracy to use a firearm during a drug-
trafficking crime. However, the only reference Rodríguez-Sostre
makes to Count VI is to adopt by reference the arguments made in
Maysonet-Soler's brief, but Maysonet-Soler only challenges Counts
I, II, III and V. Neither defendant has made any argument about
Count VI. "[W]e see no reason to abandon the settled appellate
rule that issues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived."
United States v. Zannino, 

, 17 (1st Cir. 1990).

                                   -25-
                Count I - Conspiracy to Distribute Drugs

           All of the defendants were convicted of conspiracy to

possess   and     distribute   drugs    in     violation     of     21   U.S.C.

§§ 841(a)(1), 846, and 860, but only Rodríguez-Sostre and Maysonet-

Soler have challenged the sufficiency of the evidence supporting

this charge.       To sustain a conviction, "the government must

establish that (1) a conspiracy existed; (2) the defendant[s] had

knowledge of the conspiracy; and (3) the defendant[s] knowingly and

voluntarily participated in the conspiracy."               United States v.

Díaz-Arias, 

, 20 (1st Cir. 2013) (internal quotation

marks omitted).      The agreement to conspire does not need to be

express and its existence may be proven by circumstantial evidence.

United States v. Lizardo, 

, 81 (1st Cir. 2006). "[E]ach

coconspirator need not know of or have contact with all other

members, nor must they know all of the details of the conspiracy or

participate in every act in furtherance of it."             United States v.

Martínez-Medina, 

, 113 (1st Cir. 2002).

           Rodríguez-Sostre    and     Maysonet-Soler       argue    that   the

evidence showed multiple conspiracies, but did not support a

single,   over-arching   conspiracy,     and    thus   a   variance      existed

between the evidence presented and the charge.               We look to the

totality of the evidence to determine whether it supports the

existence of a single conspiracy.              United States v. Mangual-

Santiago, 

, 421 (1st Cir. 2009).               In evaluating the


                                  -26-
evidence, we consider the following factors: "(1) the existence of

a   common    purpose,   e.g.,   the     distribution   of   drugs;   (2)

interdependence of various elements in the overall plan; and (3)

overlap among the participants." United States v. Rivera Calderón,

, 89 (1st Cir. 2009).

             The first factor, common goal or purpose, is "broadly

drawn."   United States v. Portela, 

, 695 n.3 (1st Cir.

1999).     We have previously found that having "an interest in

furthering the distribution" of drugs is sufficient evidence of a

common goal.       

  Here, there was ample testimonial

evidence that Maysonet-Soler and Rodríguez-Sostre were "member[s]

of a large drug distribution network that had the common purpose of

selling drugs for profit."       Rivera 

.

Although Maysonet-Soler owned brands of cocaine, and Rodríguez-

Sostre heroin, they both shared an interest in furthering the

distribution of drugs at the La Quince drug point.

             We next consider interdependence. Interdependence was at

the very heart of La Quince -- a highly-organized drug supermarket

where     owners    worked   cooperatively     to   maximize    profits.

"Interdependence exists where the activities of one aspect of the

scheme are necessary or advantageous to the success of another

aspect of the scheme." 

marks omitted). In

Rivera Calderón, evidence that the participants "actively worked

with each other to protect the drug points from threats," and held


                                  -27-
meetings to discuss security at the drug point, demonstrated

interdependence.     Id at 90.   Here, Sierra-García testified that

lookouts were hired to warn all of the participants of the approach

of law enforcement, and in so doing protected all of the owners

from losses.    There was also testimony that Robles-Santana saw

Rodríguez-Sostre, Maysonet-Soler, and other owners talking at the

drug point "daily."

           "Interdependency [is] also demonstrated by the various

rules established by the participants in the conspiracy."           

ran like clockwork in twelve-hour shifts, with a separate

schedule for the sale of crack cocaine.        It is reasonable to infer

that the shift system did not spring fully-formed by happenstance,

but rather was devised by the owners for the benefit of them all.

           "[K]nown interdependence . . . makes it reasonable to

speak of a tacit understanding between the distributor and others

upon whose unlawful acts the distributor knows his own success

likely   depends."    

   (alterations   in

original) (internal quotation marks omitted).             "[E]vidence of an

individual participant's understanding of the interdependence of

the co-conspirators' activities is . . . often the best evidence []

of tacit agreement between the individual and his co-conspirators."

heard testimony that sellers sold drugs for multiple

owners, and that this was permitted by the owners.               From this

evidence it would be reasonable for the jury to infer that the


                                 -28-
owners worked cooperatively to ensure the success of the drug

point. Further evidence of this cooperation was the testimony that

several    owners      met   to   resolve    the   problem   that   arose    after

Maysonet-Soler shot at Rodríguez-Sostre's sister.               And perhaps the

strongest evidence of this cooperation is the fact that a solution

was reached at that meeting, implying that peaceful commerce for

all at La Quince was more important to the participants than the

individual goals of either of the feuding owners.

               Finally, the evidence demonstrated substantial overlap

among    the    participants,      with    Negrón-Sostre     wearing   two    hats,

working as a runner for Pérez-Mercado, while at the same time

owning his own brand of heroin.              Negrón-Sostre was not the only

multi-tasker; runners and sellers worked for multiple owners, and

lookouts worked for the benefit of all.                 The highly-organized

nature of the shift system and the meetings between the owners all

suffice to show overlap.

                The defendants argue, however, that there were many

groups selling drugs independently, and the fact that there were

different brands of drugs was indicative of independent lines of

supply. Further, they assert that because the owners did not share

profits, and there was "no central figure" in control, La Quince

played    host    to    multiple    conspiracies,     rather    than   a     single

conspiracy.      According to the defendants, the only thing they had

in common was the location in which they peddled their wares.


                                          -29-
           There   is   no   requirement   that   the   members    of   the

conspiracy share profits, or answer to a single boss.             There is

abundant evidence, however, that the owners worked cooperatively to

maintain security and negotiate disputes in order to maximize their

own profits. "The fact that every defendant did not participate in

every transaction necessary to fulfill the aim of their agreement

does not transform a continuing plan into multiple conspiracies."

(internal quotation marks omitted).

           The defendants suggest that "this case may be best

understood if we think of the coconspirators as owners of a

supermarket that sold different products."         In United States v.

Dellosantos, 

, 121 (1st Cir. 2011), we applied the

supermarket simile to determine that multiple conspiracies existed

where cocaine from one "chain" of three suppliers, and marijuana

from another chain of two different suppliers, was sold by a single

owner.   In that case, we found that the members of the distinct

chains were part of separate conspiracies, and the fact that their

products were sold by a single "supermarket" owner did not make

"the members of the two separate chains overall business partners."

the defendants in Dellosantos, Rodríguez-Sostre

and Maysonet-Soler not only owned the brands, but they ran the

supermarket.   A supermarket is an enterprise that offers one-stop

shopping for a number of different products and brands.           It is the

very consolidation of all of those brands within one convenient


                                  -30-
location       --   with   security,   ample    inventory,       and    staffed   by

personnel in regular shifts -- that makes a supermarket profitable.

 It is the fact that the defendant drug-brand owners also ran the

drug "supermarket" that evidences the conspiracy.

               "Ultimately,    while     the    analysis    of    common    goals,

interdependence, and overlap is useful for resolving challenges to

the sufficiency of the evidence on appeal, this court has looked

beyond any such lists of factors to the totality of the evidence in

determining whether there is factual support for a finding of a

single conspiracy."         

(internal quotation

marks omitted). Our review of the record reveals ample evidence to

support    a    single     conspiracy.17       Moreover,   the    same     evidence

demonstrates        the    defendants'     knowledge       of     and    voluntary

participation in that conspiracy.

                     Counts II-V - Aiding and Abetting

               Regarding the remaining counts, Negrón-Sostre, Rodríguez-

Sostre, and Maysonet-Soler all sound a similar theme.                      Negrón-

Sostre concedes that there was sufficient evidence to convict him

of Count II (heroin), but he argues that there was no evidence that

he assisted or intended to assist in the possession with intent to



     17
      Because there was sufficient evidence of a single,
overarching conspiracy, "there [is] no variance between the
evidence produced at trial and the indictment." United States v.
Mangual-Santiago, 

, 423 (1st Cir. 2009). "A variance
is grounds for reversal only if it is prejudicial." 

There being no variance, we do not reach the question of prejudice.

                                       -31-
distribute crack cocaine, cocaine, or marijuana (Counts III, IV,

and V, respectively).     Rodríguez-Sostre challenges Counts III

(crack cocaine) and V (marijuana), contending that no evidence was

presented that he aided and abetted any of his co-defendants in the

possession with intent to distribute these substances.   Maysonet-

Soler argues that, while there "may have been evidence that [he]

agreed with other persons to sell cocaine," the evidence failed to

show that he aided and abetted the possession with intent to

distribute heroin, crack cocaine, and marijuana (Counts II, III,

and V).

          In essence, the defendants argue that the evidence did

not connect each of them to any of the illicit drugs other than

their own brands.   Maysonet-Soler further argues that co-operating

witness Rosado-Pabón didn't tie him to the others, and mere

knowledge of his co-defendants' drug trafficking (and his presence

during sales) is insufficent to prove he aided and abetted that

trafficking.   Because the required showing is the same under each

count, we will analyze them together.

          It is a well-settled principle of aiding and abetting

liability that if the government proves the elements of a crime

charged by proof beyond a reasonable doubt, a defendant may be held

indirectly responsible as an aider and abettor if he "associated

himself with the venture . . . participated in it as something that

he wished to bring about, and . . . sought by his actions to make


                                -32-
the venture succeed."      United States v. Lugo-Guerrero, 

,

13 (1st Cir. 2008).         The government can satisfy its burden by

demonstrating     "that     the    defendant        consciously     shared          the

principal's knowledge of the underlying criminal act, and intended

to help the principal."      United States v. Bristol-Mártir, 

, 39 (1st Cir. 2009) (internal quotation marks omitted).                     It is

not necessary to prove that a defendant had "[k]nowledge of the

particular controlled substance being imported or distributed . . .

intent to distribute can be inferred from the quantity of drugs

involved." 

in original) (internal quotation

marks omitted).

             As discussed in the previous section, there was ample

testimony that Negrón-Sostre, Rodríguez-Sostre, and Maysonet-Soler

associated    themselves    with     the    venture    of   operating      a    drug

"supermarket" at La Quince.        Robles-Santana testified that he saw

these defendants at La Quince regularly, and that the defendants

met and had discussions there.             Further, Sierra-García described

seeing the defendants handing out samples of new drug batches at

the   drug   point.   The    government       "is   entitled   to   rely,       even

exclusively, on circumstantial evidence to prove its case, and the

proof need not exclude every reasonable hypothesis of innocence,

provided the record as a whole supports a conclusion of guilt

beyond   a   reasonable    doubt."         

(internal quotation marks omitted).           Although the defendants' mere


                                     -33-
presence in La Quince is not sufficient, standing alone, to prove

that   they    aided   and   abetted   the   possession   with   intent   to

distribute every type of drug sold there, their regular, ongoing

presence and interaction with each other is certainly strong

circumstantial evidence that they associated themselves with the

venture.

              La Quince was a highly-organized operation that ran 24/7

and provided seemingly all of the illicit substances its clientele

might desire.       Lookouts, much like store security, served to

protect all owners from losses -- not from shoplifters, but from

law enforcement.       Runners supplied multiple sellers, and sellers

simultaneously sold brands from several owners, much like warehouse

operators and sales clerks. All of these workers were organized in

strict twelve-hour shifts.       This level of coordination would not

have been possible without the participation of the defendants with

an intent to ensure the success of the venture.           Not only did the

owners cooperate by allowing their runners and sellers to work for

different owners at the same time, but when necessary, they met to

resolve a dispute that might have threatened the profitability of

the enterprise.

              It is apparent that each of the defendants consciously

shared knowledge of the criminal design of the La Quince drug

point, and worked together to ensure its success; "[k]nowledge of

the particular controlled substance being . . . distributed is not


                                   -34-
necessary."   

(first alteration in

original) (internal quotation marks omitted).   Accordingly, there

was sufficient evidence to establish that each of the defendants

aided and abetted each of the others in the possession with intent

to distribute all of the types of drugs charged.

                               III.

                           Conclusion

          There was sufficient evidence to sustain the defendants'

convictions, however, the closure of the courtroom during jury

selection was a structural error that requires us to vacate their

convictions and remand for a new trial.




                               -35-