Judge Mark W. Bennett of the Northern District of Iowa said in his 44-page memorandum opinion and order: “To be clear, I now believe that it is for the Ninth Circuit Court of Appeals to determine whether or not the out-of-circuit decisions…upon which I had originally relied, stand for the proposition that belated assertion of a claim of closure of the courtroom during jury selection, when the circumstances on which that claim was based were known or should have been known to the appellant at the time of trial, bar supplementation of the record concerning claim pursuant to Rule 10 (e).”
He added, “I also believed that it is for the Ninth Circuit Court of Appeals to decide whether or not to adopt such a rule. Thus, I again confine myself to the role of fact finder, attempting to settle the record as to whether and why no objection was made at that time to the purported closure of the courtroom to members of the public and family members during jury selection in this case.”
According to the judge, “There could be several reasons for what, in hindsight, seems like glaring obliviousness: Just a few possible reasons are that there was nothing in dress of appearance to distinguish prospective jurors from members of the public or members of the defendants’ families and one can reasonably expect attorneys to have a sort of tunnel vision when focusing on a task as daunting and nuanced as jury selection.”
He added, “I do not (and cannot) make a finding as to what the reason might have been. I can only find that nothing in the record shows that the attorneys actually noticed, and I decline to find, on this record, that they should have noticed.”
Bennett said he found that the “defendants themselves should have known at the time about the exclusion of family members from the courtroom during jury selection, but I cannot find that the attorneys also should have known at the time.”
“It is certainly likely to me,” Bennett said, “that the defendants complained to their attorneys that their family members were not being allowed to enter the courthouse or the courtroom during jury selection, but no evidence was produced in the Rule 10 (e) proceedings that showed they communicated such concerns to their attorneys.”
Bennett said there is “no basis” that “any family members” were prevented from entering the courtroom “at all during jury selection because they were family members….”
Bennett was on island and conducted evidentiary hearings on Nov. 9 and 10.
Assistant U.S. Attorney Eric O’Malley was the prosecutor, while the defense counsels were Leilani Lujan, Victorino Torres, Joaquin Torres, and Ramon Quichocho.
Former Chief Judge Alex R. Munson testified via videoconference that he did not order, or he had no policy to exclude the public or family members from the courtroom.
Villagomez and the Santos couple were convicted of bribery, theft and wire fraud in April 2009.
They have appealed their conviction to the U.S. Court of Appeals for the Ninth Circuit.
Villagomez, 48, is serving his sentence of seven years and three months in Tucson, Arizona.
Mrs. Santos, 51, and her 49-year-old husband each received a sentence of six years and six months in prison.
She is an inmate in Dublin, California while her husband is in jail in Atwater, also in California.
